Mr. TRUMBULL. Not operative, and then the election may be effected without the aid of the lawmaking power of the State; that is, by the body which constitutes the Legislature to make the law and not in pursuance of any law whatever. That is so in my State. We have never had a law, and there is not in the State of Illinois today any statute providing for the mode of electing Senators. I think that is the case in several of the States. The practice is this: a resolution is introduced into one of the bodies proposing to go into the election, or asking the other House to meet them on a certain day to proceed to the election of a U.S. Senator. That is sent to the other House, and if the other House concurs the 2 bodies meet on the day assigned and make the election. We have no law on the subject, but if there was a law providing the mode it certainly could not be repealed by this concurrent resolution, because that would not have the force of a law. So after all it seems, according to the views of those who think this election invalid, that a good election may be made right in the teeth 015a statute law of the State. If that is so, then it does not require a law to prescribe the mode of election. It is a mere rule. lhcSen ator says the 2 bodies acting concurrently muv do that, but they cannot when they get 00 gether. I have always held in the venous contested election cases we have had here that the use we. g. Hwll M joint convention must properly convene, that there must be a JtResolution under which may assemble; but when the get together I do not see, in the absence of any why they could not adopt this rule. requalamtionno.t going to take the ground that they can do this in opposition to a law; I do not think it necessary, because there was no law in existence here. The Senfrom Maine thinks they could do it in opposition to a law. Of course if they could in opposition to a statute law, they could in opposition to the common law. My position is that, in the absence of any law, they may adopt their own rules, just as they have always done in NewJersey. This long practice in NewJersey becomes the common law of NewJersey according to all the law books. I have before me Cushing on parliamentary law; he states that where a practice has prevailed for a length of time in a legislative ody it becomes the rule. Thatis the way most of the parliamentary rules have grown up by long practice an usage. Now, the Legislature of NewJersey and the people of NewJersey had stood by for 3 generations nearly, for more than 70 years, and seen their Senators elected to this bodyb this joint convention which had always made its own rules. Not this rule that less than a majority should elect I agree, but it had made its rules, it had made its rule requiring more than a majority of those present; it had that very rule at the 1st of the meetings of this joint convention; but I say that in the absence of any rule, it was an inherent power given it to make the rules for its government. What says the Constitution of the U.S.? “The times, places, and manner of holding elections for Sens&Reps shall be prescribed in each State by the Legislature thereof." Now, what is the egis lat are to do that? That is the question. Those who say that Mr. Stockton has no right to his seat say it is not the Legislature in the form of making a law that does it. The Senfrom Maine says it is to be done by concurrent action. Will he give me the authority for that? If they can do it by concurrent action, why can they not by joint action when they are together? It is admitted that it requires no law to prescribe the rule, that “the Legislature” means simply each body acting by itself in prescribing this rule. Now, if it means each liody acting by itself, is there any constitutional authority, any arliamentary law, that will not allow the 2 Houses when they are together to make that rule. Let us trace it a little further. “The times, glaces, and manner of holding elections for Sens&Reps shall be prescribed in each State bY the Legislature there of." Does anybody doubt the right of this joint convention to adjourn its meetings? That is the “time.” After the joint convention met, could it not adjourn to another day? This very convention did adjourn from time to time. They elect a great many officers in the State of NewJersey by oint meeting of their Legislature. It often appens that the joint meeting adjourns. The Legislature has a right to fix the “ time;" it may meet today an adjourn for 2 weeks. It. not only my fix the time but it may fix the place. oes anybody doubt that the Legislature in joint meeting when assembled could adjourn to the next day or for ten days and adjourn to meet in another portion of the capitol? Does anybody doubt that if they had 1st convened in the Senate chamber and found it inconvenient, they could resolve that they would meet the next day in the chamber of the HoRep? Then if the Legislature has a right to fix the time and has a right to fix the place, has it not the right to fix the manner? The Legislature separately said the manner was by getting together in joint meeting. That was the “mannerH prescribed by the 2 bodies when they were separate. that they would meet together and do the thing together. When they got together they had a right after they assembled (everybody admits that) to fix the time; they had the right to adjourn; they had the the right to fix the manner. Why not? What does the Constitution say? “The times, places, and manner of holding elections for Sens&Reps shall be prescribed in each State by the Legislature thereof." It was Lewislature enough ato do this, as they said once, I believe, in antimasonic times. that a man was “ good enough Morgan ” to accomplish some particular object. Now for the lite of me I cannot see how you are to say that it is a different Legislature that is to provide the “ manner;" and in the State of NewJersey it ought not to be lost sight of that the constitution of NewJersey as s that the legislature in oint meeting shal make certain elections. t does not provide for the election of a U.S. Senator, and I agree with the Senfrom Maine that the constitution of a State cannot prescribe the mode in which the Legislature shall elect U.S. senators,but it may provide that its Legislature shall be a Legislature when in joint meeting, and they have said in the constitution of NewJersey that the Legislature in joint meetin s“hall elect certain persons. They use the wor Legislature;" they do not use the word that is used in the statute of NewJersey. The statute of NewJersey says that U.S. Senators on the part of that State shall be appointed by the Senate and General Assembly in joint meeting; but the language of the constitution of the State is “ the Legislature in joint meeting." e But, sir, it is said that this was the reeal of a law. It is already admitted that the two bodies separately withouta legislative act could repeal the law. That is conceded; that is, they could disregard the law and the election would be a good one. As I have said, I cannot for the li e of me see where the authority is for the 2 bodies to disregard it separately, when meeting together they cannot disregard it. But, sir, an entire misa prehension has revailed in this whole discussion in regard to t 10common law. What is the common law of this country? What do we mean when we speak of the common law? I should hardly think it necessary to refer to books if it had not been for the questions that have been raised in this debate. Kent says, in reference to the common (“V1. “But though the great body of the common law consists of a collection of principles, to be found in the opinions of sages; or deduced from universal and immcmorial usage and receiving progressively the sanction of the courts, it is nevertheless true that the common law, so far as it is applicable to our sit uation and government. has been recognized and adoptedasone entire systemby the constitutions of Massachusetts, NewYork. NewJersey, and Maryland. It has beenassumedby the courts of justice or declared by statute. with the like modifications, as the law of the land in every State. It wasim ported by our colonial ancestors asfar nsitwas applicable. and wassanctionedby royal chartersand colonial statutes. It is also the establisheddoctrine that English statutes, passedbefore the cmitzration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the comingp of this country."KentaCommentartevs, ol. The SCOTUS has held that the remedies in the Federal courts at the common law and in equity were to be not according to the practice of the State courts, “but according to the principles of common law and equit as distinguished and defined in that country from which we derived our knowl edge of those principles." The common law is not according to the usages and customs in this country, but as defined in that country from which we derive our knowledge of those principles. From what country do we derive our knowledge of the principles of the common, law in reference to parliamentary law? From England. Now, what is the common law of England on this subject of elections? Will the Senate be astonished I do not know but that they will when I tell them that the majority rule never prevailed in England in the election of odicers at all, and does not today. The rule there is plurality and was so when {U right to fix the place, but it is said they had not our fathers came to these shores, and it was only by virtue of legal enactments that it was changed here.