The popular vote was then cast, and it was cast at the mercy of a majority in either branch of Congress, who claimed the right to annul it by casting out States until they should throw the election into a Republican House of Representatives. I saw that dangerous power then, and, because I saw it then, am I so blind, am I so without principle in my action, that I should ask for myself a dangerous power that I refused to those who differ from me in opinion? God forbid.
This concurrence of the two houses to reject the electoral votes of a State was the great feature that John Marshall sought for in 1800. The Senate then proposed that either house should have power to reject a vote. The House of Representatives, under the lead of John Marshall, declared that they should concur to reject the vote, and upon that difference of opinion the measure fell and was never revived. In 1824 the bill prepared by Mr. Van Buren contained the same wholesome principle and provided that the two houses must concur in the rejection of a vote. Mr. Van Buren reported this bill in 1824. It was amended and passed, and, as far as I can find from the record, without a division of the Senate. It was referred in the House of Representatives to the Committee on the Judiciary, and it was reported back by Mr. Daniel Webster, without amendment, to the Committee of the Whole House, showing their approval of the bill; and that principle is thoroughly incorporated in the present measure and gives to me one of the strong reasons for my approval.
Mr. President, this bill is not the product of any one man's mind, but it is the result of careful study and frequent amendment. Mutual concessions, modifications of individual preferences, were constantly and necessarily made in the course of framing such a measure as it now stands. My individual opinions might lead me to object to the employment of the judicial branch at all, of ingrafting even to any extent political power upon the judicial branch or its members, or confiding to them any question even quasi-political in its character. To this I have expressed and still have disinclination, but my sense of the general value of this measure and the necessity for the adoption of a plan outweighed my disposition to insist upon my own preferences as to this feature. At first I was disposed to question the constitutional power to call in the five justices of the Supreme Court, but the duty of ascertaining what are the votes, the true votes, under the Constitution, having been imposed upon the commission, the methods were necessarily discretionary with the two houses. Any and every aid that intelligence and skill combined can furnish may be justly used when it is appropriate to the end in view.
Why, sir, the members of the Supreme Court have in the history of this country been employed in public service entirely distinct from judicial function. Here lately the treaty of Washington was negotiated by a member of the Supreme Court of the United States; the venerable and learned Mr. Justice Nelson, of New York, was nominated by the President and confirmed by the Senate as one of the Joint High Commission. Chief-Justice Jay was sent in 1794, while he was chief-justice of the United States, as minister plenipotentiary to England, and negotiated a treaty of permanent value and importance to both countries. He was holding court in the city of Philadelphia at the time that he was nominated and confirmed, as is found by reference to his biography, and—
Without vacating his seat upon the bench he went to England, negotiated the treaty which has since borne his name, and returned to this country in the spring of the following year.
His successor was Chief-Justice Rutledge, and the next to him was Chief-Justice Oliver Ellsworth. He, while holding the high place of chief-justice, was nominated and confirmed as minister plenipotentiary to Spain. By a law of Congress the chief-justice of the United States is ex officio the president of the Board of Regents of the Smithsonian Institution.
Mr. Morton—I should like to ask the Senator, if it does not interrupt him, whether he regards the five judges acting on this commission as acting in their character as judges of the Supreme Court, if that is their official character, and that this bill simply enlarges their jurisdiction in that respect?
Mr. Bayard—Certainly not, Mr. President. They are not acting as judges of the Supreme Court, and their powers and their jurisdiction as judges of the Supreme Court are not in any degree involved; they are simply performing functions under the government not inconsistent, by the Constitution, or the law, or the policy of the law, with the stations which they now hold. So I hold that the employment of one or more of the Supreme Court judges in the matter under discussion was appropriate legislation. We have early and high authority in the majorities in both House and Senate in the bill of 1800, in both of which houses a bill was passed creating a commission similar to that proposed by this bill and calling in the chief-justice of the United States as the chairman of the grand committee, as they called it then, a commission as we term it now.
As has been said before, many of the Senators and members of the Congress of 1800 had taken part in the convention that framed the Constitution, and all were its contemporaries, and one of the chief actors in the proceedings on the part of the House of Representatives was John Marshall, of Virginia, who one year afterward became the chief-justice of the United States, whose judicial interpretations have since that time clad the skeleton of the Constitution with muscles of robust power. Is it not safe to abide by such examples? And I could name many more, and some to whom my respect is due for other and personal reasons.
In the debate of 1817, in the case of the disputed vote of Indiana; in 1820, in the case of Missouri; and again in 1857, in the case of Wisconsin, I find an array of constitutional lawyers who took part in those debates, among them the most distinguished members of both political parties, concurring in the opinion that by appropriate legislation all causes of dispute on this all-important matter of counting the electoral vote could be and ought to be adjusted satisfactorily. Why, sir, even the dictum of Chancellor Kent, that has been read here with so much apparent confidence by the honorable Senator from Indiana, is itself expressed to be his opinion of the law "in the absence of legislation on the subject."