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.”