The act provided that the Electoral Commission be composed of fifteen members consisting of five justices of the Supreme Court of the United States, five senators, and five members of the House of Representatives. The members of the commission were the following: Justices, Clifford from Maine, Miller from Iowa, Field from California, Strong from Pennsylvania, and Bradley from New Jersey; Senators, Edmunds of Vermont, Morton of Indiana, Frelinghuysen of New Jersey, Bayard of Delaware, and Thurman of Ohio; Members of the House, Payne of Ohio, Hunton of Virginia, Abbott of Massachusetts, Hoar of Massachusetts, and Garfield of Ohio.
The law provided that the fifth of the five justices to compose that part of the commission was to be selected by those justices assigned to the First, Third, Eighth, and Ninth Circuits, and that the senior in service should be president of the commission. It required that each House, by a viva voce vote of its members, should appoint the five senators and the five representatives provided by the law, which was done. Mr. Watterson says that it was believed by the Democratic members of the House that justice Davis of Illinois would be appointed as the fifth justice composing the commission, and that it was also believed that Justice Davis would be “sure for Tilden.” I had no belief upon the subject other than that founded upon my knowledge of the capacity and character of Justice Davis; and that led me to believe that he, as well as the other justices, would follow what they thought, after hearing the cases, was the law; and I believed that neither the Constitution nor the law authorized the commission to overthrow the regular returns of any State and make what must necessarily be an endless inquiry into what the votes of the people of any State had been in point of numbers, either for or against the Republican or Democratic electors. That right, by the letter and the spirit of the Constitution, was given to the States alone.
After the Electoral Act had been passed Justice Davis was elected senator from Illinois and consequently became ineligible; and the four justices selected Justice Bradley (from New Jersey) as the fifth justice of the commission. Mr. Watterson thinks that if Justice Davis had been a member of the commission he would have voted as Justice Bradley did. I agree with him in that belief.
Although the act made no provision in respect of the political character of the members of either House to be appointed, it was agreed by those representing the two parties in each House that the members selected for the commission should be three Republicans and two Democrats of the Senate and three Democrats and two Republicans of the House. Each side had faith enough in the honor of the other to be sure such would be the case, as it was. Thus the Electoral Commission was formed.
The commission met and organized January 31, 1877, only thirty-four days before the final ceremony of the election of the President must take place.
All its members were present, and the certificates of the appointments of its members, before named, were presented and recorded, showing that the Senate had by a unanimous vote appointed the persons before mentioned to be members of the commission, and that the House had appointed as its members of the commission the gentlemen named above. All the members of the commission took and subscribed the oath of office required by the statute—that they would “impartially examine and consider all questions submitted to the Commission and a true judgment give thereon, agreeably to the Constitution and the Laws.” The commission adopted simple rules of procedure and notified the two Houses that it was ready for business.
On the first day of February the two Houses met in the Hall of the House, and the opening of the electoral certificates was begun, proceeding in alphabetical order, as the act required. The votes of the States of Alabama, Arkansas, California, Colorado, Connecticut, and Delaware were read without objection and recorded as returned. The next State alphabetically was Florida. Three separate packages, which had in due course come to the hands of the president of the Senate from that State, were presented by him, the first one of which, purporting that the electors of the State had voted for Mr. Hayes, was objected to by Democratic members of the House and Senate in the manner authorized by the Electoral Act; and objections to the other certificates were in like manner made by Republican members of both Houses. Whereupon all these papers and objections were transmitted to the commission for consideration and decision. The case was correctly understood to involve substantially the same questions that would arise in respect of Louisiana and South Carolina; and the case was argued on both sides by eminent counsel and patiently heard by the commission until February 9, when, after consultation and discussion, the majority of the commission decided that the certificate showing the election of Hayes and Wheeler was the true and lawful certificate of the State of Florida and should be counted as such, upon the ground stated, as required by the act; “That it is not competent under the Constitution and the law, as it existed at the date of the passage of said act, to go into evidence aliunde the papers opened by the president of the Senate in the presence of the two Houses, to prove that other persons than those regularly certified to by the Governor of the State of Florida, in and according to the determination and declaration of their appointment by the board of state canvassers of said State prior to the time required for the performance of their duties, had been appointed electors, or by counter-proof to show that they had not.”
The members of the commission voting in favor of this decision were (alphabetically stated) Mr. Justice Bradley, Messrs. Edmunds, Frelinghuysen, Garfield, Hoar, Mr. Justice Miller, Mr. Morton, and Mr. Justice Strong. Those who voted in the negative were Messrs. Abbott, Bayard, Mr. Justice Clifford, Mr. Justice Field, and Messrs. Hunton, Payne, and Thurman.
In the course of the discussions in the consultations of the commission on the Florida case, Senator Frelinghuysen, in support of his view that there was no power to go behind the regular returns, called the attention of the commission to the debates in the Senate on January 7, 1873, as reported in the “Congressional Record,” to the opinion expressed by Senator Thurman in the consideration of a resolution authorizing an investigation as to whether the election for President and Vice-President had been conducted in Louisiana and Arkansas in 1872 in accordance with the laws of the United States, in which Mr. Thurman was reported as saying, “There seems to be no way provided by Congress, and no way, I believe, that Congress, as the Constitution stands, can provide to try the title of an elector to his office”; and he proceeded to say, “I take it that the entire control over the manner of appointing the electors is one of the reserved rights of the State.”
Mr. Thurman, on hearing this read by Mr. Frelinghuysen, said: “I have changed my mind.” Mr. Frelinghuysen, also quoting from the “Congressional Record” reporting the proceedings of the Senate on February 25, 1875, in considering the bill then pending to provide for counting the votes for President and Vice-President, read from the speech of Senator Bayard on the subject, in which Mr. Bayard said, “There is no pretext that for any cause whatever Congress has any power, or all the other departments of the Government have any power, to refuse to receive and count the result of the action of the voters of the States in that election, as certified by the electors whom they have chosen.” (See official report of the Proceedings of the Commission compiled and printed by order of Congress, page 847.)