Mr. HOWE. I differ with the Senfrom NewJersey upon the point he now states, that there never was any law of NewJersey which directed the number of voices. I say that by force of that law which empowered the 2 Houses in joint meeting to choose a Senator, by the very terms of that law, a majority was required to elect; and iriproof of this I inadethe assertion that if the jomt convention had not adopted a rule to the contrary, not a Senator here would have ventured to assert that less than a majority could elect. There was a law, then, which required a majority of the votes of the 2 Houses in order to elect; and although I answered the question of the Senfrom Maine precisely as he would have answered it himself, I was not controlled by the same reason. I do not think that such a clause in the resolution providing for the joint convention, assented to by the 2 Houses, would have been the law which would have prevented the 2 Houses in oint meeting from adopting a different rule; T think it was that old and precedent law which directed that the 2 Houses in joint meeting should choose the a Senator. It is by force of that law that they are precluded from electing by anything short of a majority. I will not now undertake to say how much additional force such a clause in the resolution assented to by the 2 Houses would have added to that. That was the force of the original law; and being so, it was not in the power of the 2 Houses to weaken or diminish the force of that law, or to substitute anything for that majority which the original law required. Mr. HENDRICKS. Mr. President, when this question was before the ComJudiciary I was very confident that the sitting member was entitled to his seat. I have lis tened with a great deal of care to the debate and have not been able to change my mind on that subject. I shall ask the attention of the Senate for a very few minutes while I consider the case. On the questions of fact there is no dider once; there can be none. The election took place in ajoint meeting of the 2 Houses of the Legislature of NewJersey. That election took place pursuant to a resolution adopted by that joint meeting; and I was very clear, and I am yet, in the opinion that that joint meeting had the power in advance of the election to pass the resolution which it did adopt. It is not necessary to discuss the question whether that convention could by any regulation or rule de part from a rule prescribed by the 2 Houses acting separately, for that question is not involved. The Legislature actingin its separate branches did not undertake to prescribe the rule which should govern the election; it simply declared that the election should take place in ajoint meeting of the 2 Houses. As to the mode of proceeding in thatjoint meeting, the Legislature adopted no rule or law, and the question in my judgment is simply whethertho joint meeting had the power, 1st rescribin the rule, to elect in the mode in which it did clect I understand the astute Senfrom Maine [Mr. Fassaunsx] to relyin his argument mainly upon one oint, namel, that the Legislature, acting in totwo branc ies, conferred upon the convention the power to elect; between the convention met it was governed by parliament ary law, not by any law prescribed by Congress. for there was none; not by any law prescribed by the Legislature, because there was none; but by the common law governing parliament ary bodies; and that that was a law which the convention orjoiut meeting could not disregard. Now, sir. what was the common law governing that body? The Senator assumes that the common law, the arliamentary law governing the body. required, a majority, and that the body itselfcould not adopt any other rule of election. In that [think he is mistaken. I think the parliamentary law conferred upon that body the power as a parliamentary body to prescribe the manner in which it should proceed to do the act which it had the power to do. Upon that subjectl call the attention of the Senate to the law as given by Mr. Cushing in his very great work on the Law and Practice of Legislative Assemblies. It will be found in section 3 of chapter 4,part one: “ In all collective bodies of men. assembledand acting togetherfor the purpose of deliberating and deciding upon any subject or for the purpose of selecting to an office. it is an admitted principle that whatever is one or agreedto by the greaternumber shall stand as the actor the Will 01the whole., That is the general principle in all deliber ative bodies. He goes on to say: “The law of the majority is universally admitted in all legislative assemblies.unless.in reference to particularcuses. persons or circumstances.adifferent rule is prescribe bysome paramount authorit or is agreedupon beforeland and established by the assemblyitself.bywhich asmnller numberis permitted, or a larger number is required. to do someparticular not. But even in those cases it is the Will of thema jority that governs: because it is by i i maior vote. in the 1st instance. that the rule itself is established." There is the parliamentary law which conferred upon this joint meeting the power to do the very act which it did. The Senator simply assumes that parliamentary law denied to that joint meeting the power to do the act A, c7 rvs which it did. I dispute the proposition of the Senator. I say the parliamentary law enabled the joint meeting to do what it did, in advance to prescribe the number of votes that should be required to elect, and I say it on the authority of Cashing, and I know of no authority to the contrary. I will read a little further: "Every question which is proponnded to a leizis lative assemblyfor its determination.andvotedupon in any of the mannersdescribed, receivesitsdecision according to the preponderanceof the votes, which, unless some other rule is exressly rescribed. as there usually is in each assemb y in reerenceto particular questions is ordinarily effectedby a major“? In those caseswhere the rules or customsof any assembly allow a vote to remain on an equal division, the decision. as neither side preponderates, is necessarily in the negative. In many case s it is provided. either by a constitutional requisition or by rule, that partieularquestions, in order toprevail, shall require more or admit of lessthan the ordinary maiority in their favor." When the joint meeting by a majorit vote agreed that a plurality should elect, on then a plurality vote was given that plurality vote became the judgment of the majority for the simple reason that the majority in advance had agreed that the plurality vote should have the elfect of a majority vote; ahd it is upon that principle that Cashing lays down the law, for it is the majority vote in advance prescribing the mode which ives the force of a majority vote to the pluraizity vote when it is given. I cannot express this so well as Cashing expresses it, and therefore I will read a part of what he says again: "The law of the majority is universally admitted in all legislative assemblies, unless in reference to particularcases, persons, or circumstancesaditierent rule is prescribed by someparamount authority" The Senator admits that the legisiature acting in its separate branches would be a para mount authority which could prescribe the rule that a plurality should elect, but the author goes on:, "or is agreed upon beforehand and established by the assemblyitself by which a small number is permitted or a larger number required to do some articular not. But evenin those cases it is the will of the majority that governs.because it is by a majority vote in the 1st instance that the rule itself is estab llshed." If the authority of parliamentary law controlled that joint meeting, then I say parliamentary law gave to the oint meeting the power to prescribe the vote that should control, and that was done by a resolution adopted by a majority. The oint mectiu agreed in ad: vance that a plurality should e ect; and then when the plurality vote was ven it was the vote of the majorit. Indee, sir, I may say it was the vote of e body, because the body had agreed that that should be the vote of the body and conclusive upon the question. I But, Mr. President} wish to call the attention of the Senate to anotherquestion in connection with this case. The constitution of the U.S. conferred upon the Legislature the power to choose a Senator. The legislature, it is conceded, could proper] confer the power to choose a Senator upon tejoint meeting, and the joint meeting could then choose the Senator. Congress not having prescribed any regulation of manner, the Legislature having prescribed no regulation of manner, it was left for the joint meeting to choose a Senator. Now, if the word “choose” governs and defines the power of the Legislature when each branch acts separatcly, why does it not define the power of the joint meeting in doing the very act? The Senator says that the parliamentary law went into thatjoint meeting and governed it. If the Constitution uses the word “choose, ” why does not the same parliamentary law govern the Legislature in doing that very act? Let me call attention now to one or 2 provisions of the Constitution bearing upon this EOlllbl “The HoRep shall O composed of members ciiosen every 2nd year by the people of the several States.” The manner of choosing may be prescribed by congress; it may be prescribed by the Legislature of the State, but the choice is to be made by the people. The Senator says that in choosing, in the absence of a regulation prescribed by some paramount authority, a majority vote alone can control. If his construction be right, the people in electing a member to the HoRep must elect by a majority vote, because the Constitution merely confers upon them the power to choose; it does not say they may choose by a minority vote, but that they may choose. We know, however, that without a regulation upon the subject, members of the HoRep are chosen by a plurality vote in many of the States.