“The Senate of the United States shall be composed of two
Senators from each State, chosen by the _Legislature_ thereof.”
“The times, places, and _manner of holding elections for
Senators_ and Representatives shall be _prescribed_ in each
State by the _Legislature_ thereof; but the Congress may at any
time by law make or alter such regulations, except as to the
places of choosing Senators.”
In carrying out this provision, the Legislature of New Jersey, by a
statute passed April 10, 1846, and copied from a statute passed in
1790, enacted as follows:--
“Senators of the United States on the part of this State shall
be appointed _by the Senate and General Assembly of this State
in joint meeting assembled_.”
In pursuance of these two provisions of National Constitution and of
local statute, the Legislature of New Jersey has undertaken to elect a
Senator. From the statement of the case, it appears, that, on a certain
day, the two Houses assembled “in joint meeting”; that they proceeded
to act on a resolution declaring that “any candidate receiving a
_plurality_ of votes of the members present shall be declared duly
elected”; that this resolution was adopted by forty-one votes out of
eighty-one,--eleven Senators, being a majority of the Senate, and
thirty members of the House, being less than a majority of that body,
voting for it; that, in pursuance of this resolution, Mr. Stockton was
declared Senator, although he did not receive a majority of the votes
of either House or of the joint meeting. In point of fact, he received
forty votes, of which ten were from Senators and thirty from members of
the Assembly, while against him were forty-one votes; and the question
you are to decide is on the legality of this election.
The National Constitution is the original and highest source of light
on the question. Here we find, that, in the absence of any regulations
from Congress, the manner of choosing a Senator is referred to the
State Legislature. The Senator is to be chosen by the _Legislature_,
which is to _prescribe_, among other things, the _manner_ of holding
the election. Whatever the State can do must be derived from this
source, nor more nor less. The choice is by the Legislature, according
to a manner prescribed by the Legislature.
The National Constitution does not undertake to define a State
Legislature or its forms of proceeding. This is left to the State
itself. Notoriously, these Legislatures were modelled on the
Colonial Legislatures preceding them, which had been modelled on the
Parliament of the mother country. As a general rule, there were two
Chambers, upper and lower; but this was not universal. In Georgia and
Pennsylvania there was for a while only a single Chamber, constituting
the Legislature. I mention this to show how completely the State itself
was left to determine the conditions of its Legislature. But the State
speaks through the State Constitution, which fixes these conditions.
Where the Constitution is silent, can the Legislature itself venture to
speak?
Repairing to the Constitution of New Jersey, we find it providing
that “the _legislative power_ shall be vested in a Senate and General
Assembly”; that these bodies shall meet and organize separately”; that
“all bills and joint resolutions shall be read three times in each
House”; and “no bill or joint resolution shall pass, unless there be
a _majority_ of all the members of each body personally present and
agreeing thereto.” Such is the definition of a Legislature, and such
are the forms of legislative proceedings prescribed by the Constitution
of New Jersey.
The statute of New Jersey, to which I have referred as framed in 1790,
was entitled “An Act to _prescribe the manner_ of appointing Senators
of the United States and Electors of the President and Vice-President
of the United States on the part of this State.” This was in pursuance
of the National Constitution. It was the execution, on the part of the
State, of the power with which it was invested to prescribe the manner
of electing Senators.
I have no purpose of raising any question with regard to the validity
of this statute prescribing the election of Senators _in joint
meeting_. Constant usage is in its favor; and yet I have no hesitation
in saying that it has always seemed to me inconsistent with a just
construction of the National Constitution. Senators are to be “chosen
by the Legislature”; but the Legislature is composed of two separate
bodies, defined by the State Constitution. Senators, therefore, should
be chosen by the two bodies separately. So it has always seemed to
me, and the practice of my own State is accordingly. In this opinion
I am sustained by so eminent an authority as Chancellor Kent, who,
after setting forth the usage, proceeds to express his dissent from it
as a just construction of the National Constitution. His language is
explicit:--
“I should think, if the question was a new one, that, when the
Constitution directed that the Senators should be chosen by
_the Legislature_, it meant, not the members of the Legislature
_per capita_, but the Legislature in the true technical sense,
being the two Houses acting in their separate and organized
capacities, with the ordinary constitutional right of negative
on each other’s proceedings.”[1]
It is difficult to resist this conclusion, especially when it is
considered that in any other way the smaller body is actually swamped
by the larger. In a joint meeting the Senate loses its relative power.
I adduce this, not for criticism, but only for illustration. Even
admitting that the received usage of choosing Senators in joint meeting
is consistent with the National Constitution, it is clear that it
should not be extended; and this is the precise question before us.
Contrary to all usage or precedent, and without any direct sanction
in the Constitution or statutes of New Jersey, the Legislature has
undertaken in joint meeting, not only to choose a Senator, but also to
prescribe the manner of choosing him. Finding that it could not choose
according to existing usage, it adopted the resolution declaring that
the election should be determined by a minority of votes instead of a
majority.
In this resolution two questions arise: first, can the Legislature
itself, by legislative act, substitute a minority for a majority in
the election of Senators, and thus set aside a great and traditional
principle? and, secondly, can it do this in a “joint meeting,” without
any previous legislative act? It is enough for the present occasion,
if I show, that, whatever may be the powers of the Legislature by
legislative act, it can have no such extraordinary power in the
questionable assembly known as “joint meeting.” But we shall better
understand the second question, after considering the first.
To what extent can a Legislature substitute a minority for a majority
in any of its proceedings? In most cases the question is controlled
by the express language of the State Constitution; but I present the
question now independently of any State Constitution.
In considering the power of the Legislature, it is important to put
aside any influence that may be attributed to the unquestioned usage
of choosing Representatives and other officers by plurality of votes.
Because the people choose by plurality, it does not follow that a
Legislature may. From time immemorial, the rule in the two cases has
been different, unless we except the New England States, where, until
recently, even popular elections were by a majority. But the origin of
the practice in New England testifies to the rule.
It is proper for us to interrogate the country from which our
institutions are derived, for the origin of the rule. Indeed, where a
word is used in the Constitution having a previous signification or
character in the institutions of England, we cannot err, if we consider
its import there. I think we do this habitually. Mr. Wirt, in his
masterly argument on the impeachment of Judge Peck, develops this idea.
“The Constitution secures the trial by jury. Where do you get
the meaning of _a trial by jury_? Certainly not from the Civil
or Canon Law, or the Law of Nations. It is peculiar to the
Common Law; and to the Common Law, therefore, the Constitution
itself refers you for a description and explanation of
this high privilege, _the trial by jury_, and _the mode of
proceeding_ in those trials.… The very name by which it is
called into being authorizes it to look at once to the English
archetypes for its government.”[2]
Following this statement, so clearly expressed, the words “Legislature”
and “holding elections,” in the National Constitution, which belonged
to the political system of England, may be explained by that
system,--so, at least, that in case of doubt we shall find light in
this quarter.
Now, from the beginning, it appears that in England there have been
two different rules with regard to elections by the legislature and
elections by the people. Elections by the legislature, like legislative
acts, have been by majority; elections by the people for Parliament
have been by plurality. This distinction is found throughout English
history.
The House of Commons chooses its Speaker by majority. It may be said,
also, that it chooses the Ministers of the Crown in the same way,
because the fate of a cabinet depends upon a majority. In short,
whatever it does, unless it be the nomination of committees, is by
majority. It is only through majority that it can act. The House of
Commons itself is found in the majority of its members,--never in a
minority.
On the other hand, members of Parliament are chosen by plurality. No
reason is assigned for the difference; but it may be found, perhaps, in
two considerations: first, the superior convenience, amounting almost
to necessity, of choosing members of Parliament in this way; and,
secondly, the fact that popular bodies were not embraced by the Law of
Corporations, which establishes the rule of the majority.
Here I adduce the authority of Mr. Cushing, in his Parliamentary Law,
in the very passage cited by the Senator from Illinois:--
“At the time of the first settlement and colonization of the
United States, the elections of members of Parliament in
England were conducted upon the principle of plurality, which
also prevailed in all other elections in which the electors
were at liberty to select their candidates from an indefinite
number of qualified persons. Such has been, and still continues
to be, the Common Law of England; and such is the present
practice in that country in all elections.”[3]
It will be perceived that this statement is with reference to popular
elections, and not elections by corporate or legislative bodies. So far
as it goes, it is explicit. But pardon me, if I say that the Senator
from Illinois has misunderstood it. Had he examined it carefully, he
would have seen that it had no bearing on the present case. Nobody
questions the plurality rule in the election of members of Congress,
although few, perhaps, have considered how it came into existence. Mr.
Cushing, whom the Senator cites, explains it, and in a way to furnish
no authority for a minority instead of a majority in a legislative
body. The rule prevailed in England. The colonies of Virginia and
New York adopted it. From these, as they became States, it gradually
extended throughout the country. A different rule was carried to New
England by the Puritan Fathers. Even popular elections were by the rule
of the majority, as is explained by the same learned authority.
“The charter of the Colony of the Massachusetts Bay being that
of a trading company, and not municipal in its character,
the officers of the Colony were originally chosen at general
meetings of the whole body of freemen, precisely as at the
present day the directors of a business corporation, a bank,
for example, are chosen by the stockholders at a general
meeting. In the choice of Assistants, who were to be eighteen
in number, at these meetings of the Company, or, as they were
called, Courts of Election, the practice seems to have been for
the names of the candidates to be regularly moved and seconded,
and put to the question, one by one, in the same manner with
all other motions. This was then, as it is now, the mode of
proceeding in England, in the election of the Speaker of the
House of Commons, and in the appointment of committees of the
House, when they are not chosen by ballot. Probably, also, it
was the usual mode of proceeding in electing the officers of
a private corporation or company. In voting upon the names
thus proposed, it was ordered--with a view, doubtless, to
secure the independence and impartiality of the electors--that
the freemen, instead of giving an affirmative or negative
voice in the usual open and visible manner, should give their
suffrages by ballot, and for that purpose should ‘use Indian
corn and beans: the Indian corn to manifest election, the beans
contrary.’ The names of the candidates being thus moved and
voted upon, each by itself, it followed, of course, that no
person could be elected but by an absolute majority.”[4]
The rule, thus curiously explained, continued in Massachusetts down to
a recent day; at last it yielded to the exigency of public convenience,
so that at this moment, I believe, popular elections throughout the
United States are by the plurality rule. But I repeat, that this is no
authority for overturning the rule of the majority in a legislative
body, having in its favor so many reasons of law and tradition.
I have only alluded to the Law of Corporations; but this law is of
weight in determining the present case. According to this law, the
rule of the majority must prevail. Indeed, an eminent jurist says that
this rule is according to the Law of Nature, as it is unquestionably
according to the Roman Law, and the modern law of civilized states.[5]
But what is a legislative body but a political corporation? Therefore,
when asked if a Legislature, even by legislative act, may set
aside the rule of the majority in the election of Senators, I must
candidly express a doubt. The Constitution confides this power to the
“Legislature”; but the “Legislature” consists of a majority. _Ubi
major pars est, ibi totum_: “Where the greater part is, there is the
whole.” Such is an approved maxim of the law; and this maxim has in its
support, first, the Law of Nature, secondly, the Law of Corporations,
thirdly, the Parliamentary Law, and, fourthly, the principles of
republican government. Who ever thought of saying, Where the minority
is, there is the whole?
But we are not asked now to decide the question, whether the
Legislature, by legislative act, may substitute the rule of a minority
for the majority. That question is not necessarily before us. In the
present case there has been no legislative act; and the question is,
whether the rule of the minority may be substituted for the majority
by the abnormal body known as joint meeting. On this point the
conclusion is clear. Even assuming that this substitution may be made
by legislative act, it does not follow that it may be made in joint
meeting.
Surely, such a change is of immense gravity, and should be made
only under all possible solemnities and safeguards. If ever there
was occasion for the delays and precautions provided by legislative
proceedings, with three different readings in each separate House,
it must be when such a change is in question. Such surely is the
suggestion of reason. But the Constitution itself, which delegates to
the “Legislature” of each State the power to _prescribe the manner_ of
electing Senators, uses language not open to evasion. This power is
to be exercised by the “Legislature,” which may prescribe the manner.
It is not to be exercised by any other body than the Legislature; and
the manner is to be prescribed by the Legislature. But, assuming that
it may be exercised in joint meeting, it is clear that this must be in
pursuance of some legislative act, prescribing in advance the manner.
Supposing the case doubtful, then I submit that all presumptions
and interpretations must tend to support the rule of a majority. In
other words, so important a rule, having its foundation in the Law of
Nature, the Law of Corporations, Parliamentary Law, and the principles
of republican institutions, cannot be set aside without the plainest
and most positive intendment. It cannot be done by inference or
construction. If ever there was occasion where every doubt was to be
counted against the assumption of power, it is the present. I know
very little of cards, but I remember a rule of Hoyle, “When you are in
doubt, take the trick.” Just the reverse must be done in a case like
the present, involving so important a principle: when you are in doubt,
do not take the trick. This is a republican government, and surely you
will not abandon the first principle of a republican government without
good reason. According to received maxims of law, you must always
incline in favor of Liberty. In the same spirit you must always incline
in favor of every principle of republican government, and especially
of that vital principle which establishes the rule of the majority.
Thus inclining, the way at present is easy; and here I quote another
authority, very different from Hoyle. Lord Bacon, in his Maxims of the
Law, after mentioning a similar presumption, says:--
“It is a rule drawn out of the depths of reason.… It makes an
end of many questions and doubts about construction of words:
for, if the labor were only to pick out the intention of the
parties, every judge would have a several sense; _whereas this
rule doth give them a sway to take the law more certainly one
way_.”[6]
And now, Sir, I have only to add, in conclusion, let us incline in
favor of the rule of the majority. So inclining, you will at once show
reverence for the republican principle and will stand on the ancient
ways.
The question was then taken on an amendment, moved by Mr.
Clark, of New Hampshire, to insert the word “not” before the
word “duly” in the resolution of the Committee, and also before
the word “entitled,” so that it should read that he “was not
duly elected, and is not entitled to his seat.” This amendment
was lost,--Yeas 19, Nays 21. The question then recurred on
the resolution of the Committee. Upon the conclusion of the
calling of the roll, the vote stood, Yeas 21, Nays 20, when
Mr. Morrill, of Maine, said, “Call my name.” This was done,
and he said, “I vote nay.” Mr. Stockton, who had not voted,
rose, and, after stating that his colleague, Mr. Wright, was
at home, said, “When he was last in this Chamber, he told me,
as he left the Hall, that he would not go home, if it were
not for the fact that he had paired off with the Senator from
Maine. Mr. President, I ask that my name be called.” His name
was then called, and he voted in the affirmative, so that the
result was, Yeas 22, Nays 21. Meanwhile Mr. Morrill stated the
circumstances with regard to his original pair with Mr. Wright
and his withdrawal from it. The result was then declared,--Yeas
22, Nays 21,--making a majority in the affirmative, and the
resolution was treated as adopted.
* * * * *
The sequel of these proceedings, ending in the passage of a
resolution, moved by Mr. Sumner, “that the vote of Mr. Stockton
be not received,” and the adoption of a resolution declaring
him “not entitled to a seat as Senator,” will appear under the
next article.