Mr. FESSENDEN. Then, before the vote is taken, I wish to express my opinion upon it, because upon aquestion of this kind I think opinions should e decidedly expressed, one way or the other. I confess that from the view I took of the case originall, I was exceedingly surprised, more so, I will say, than I ever was before at a judicial decision in my life, at the opinion to which the ComJudiciary arrived in relation to this matter; for, in addition to lying in a very narrow compass, it struck me that the question was a very simple one and a very clear one. I maybe wrong; but my opinion is so entirely fixed, that I never have been able to erccive, and I have been unable to find in tere ort of the committee, anything that has in the slightest degree shaken my opinion. It is ajudicial questionand ifIknow an thing of myself, I believe I am capable, in dz ciding the question of the right of a Senator to his seat, to lay aside every consideration except that which belongs to the mere question of legal right. I do not propose to go over any very particular space inlaying before the Senate Wiat I think upon the subject. the question in regard to Senators comes under this clause of the Constitution: “Th Senate of the U.S shall be composed of 2 Senatorsfrom eachStato.chosen by the legislature thereof. for 6 years; and eachSenator shall have one vote.” I did not have the pleasure of hearing the remarks made by the honorable Senfrom NewHampshire who has just taken his seat, as I was out of the Senate, and perhaps I may simply repeat what he has said. It Wlll be no ticed that the Senators are to be chosen by “the Legislature, ” not by the legislators; not by the members of the Legislature, but by “the Legislature." That is the language of the clause. It is manifest, therefore, that it may be well to consider what the relation is in which the Legislature stands to the Government in reference merely to the election of Senators. I have always held, and hold now, that the legislature, in the election of a U.S. senator, is merely the agent of the Constitution of the U.S. to perform a certain not. It is the designation of a body, a body?recognized as a constituent part of the Government of each State; the Constitution selects that body of men to perform certain acts in connection with the Government of the U.S. The body thus selected is, therefore, in the performance of that act, but the mere agent of the Constitution of the U.S. to perform it. It is, therefore, under the control of no other power. No provision in the constitution of cw Jersey providing the mode in which a Senator shall be elected or the course that shall be taken, or the rules of the proceeding, or anything of that kind would bind in any way the Legislature which is to perform the act. NO provision of law of a previous Legislature wouldin any manner bind the Legislature which is to perform that act. It is independent of everything except the Constitution of the U.S. the constitution of a State cannot bind it. The State constitution prescribes who shall comose the Legislature; but that body, or those godics thus composing the legislature of the State, bein the agent appointed by the Constitution of the nite States to perform an act, is not under the slightest obligation to regard an i of the provisions in the State constitution on the subject, because the State constitution has nothing to do with it, or any previous provisions of State law in reference to it. But while it is thus independent and may disregard those provisions, being the mere agent of the Constitution of the U.S., still it must necessaril act as a Legislature in the performance of t iat duty, because, as I said efore, the power is not committed to thaLegislature individually or collectively, but commit ted to “the Legislature” of the State; and therefore, being committed to the Legislature of the State, the Legislature, in carrying out this provision of the Constitution, must act as a Legislature; that is, there must be a legislative act. That being laid down as a principle, which it strikes me cannot be refuted, the next inquiry is, which is the Legislature to elect? The answer is a very obvious one: it is the Legislature in existence at the time that the vacancy occurs; and if that Legislature fails to elect, it goes necessarily, under the Constitution, to the next Legislature, and the place in the mean time may be filled by appointment; and when the next Legislature meet: it makes the election in the same way; it has the same power over it. That being the case, the question arises, how shall this duty be performed? I remember that once in a discussion here, I think upon the case of the Senfrom Iowa, (Mr. Harlan) or in the case of the Senfrom Illinois, the present chairman of the ComJudiciaryar i, Mr. TRUMBULL] Mr. Toornbs, of Georgia, lai it down that all that was requisite was that a majority of the members of both branches, not each branch actin separately, but a majority of the whole shoulid act on this subject; no matter when they acted, or where they acted, or how they acted they mightmeet at a tavern at any time they saw fit, and if there was a majority of both branches present and they voted for a certain man, that would be a good election. I suppose we are hardly prepared to go that lengt, because, as I said efore, it is not the men composing the body acting as individu als, but “the Legislature, ” that is to elect, and the election must therefore be a legislative not. How is that carried out? I believe the true system to be that there must be concurrent action, that each body (if there are 2 bodies of the Legislature, as there were in this case) must select the same man, but the practice has been otherwise, and I suppose the practice is defensible in many cases. We elect in the way I have supposed to be correct in Maine, we elect in that wa in Massachusetts, and in some other States. n other States the 2 Houses form a convention and the convention elects, and that is a legitimate mode. But how must that convention be formed? That convention cannot be formed by a provision in the constitution of the State. The Legislature itselfwhich is to make the election must act upon the individual case. The Legislature must thereforo vote to go into convention for that purpose. Whatever is done in relation to the election of a Senator must be done as a consequence of legislative action, otherwise it is no Section by “the Legislature.” They vote to form a convention lor the purpose of choosing a Senator, and when they meet in convention that choice may be made. If there is legislative action previously, a vote by the Senate and a vote by the HoRep to meet in convention at a particular time in order to choose a Senator, that is sufficient. When they meet what can they do? They can choose a senator, because there has been legislative action which authorizes them to choose a Senator in that form. But how? Every lawyer will admit that the parliamentary rule and the rule of the common law With regard to corporations is fixed and settled, that unless otherwise provided by the constitution of the body itselfor by the power that constituted it, elections must be by a majority a majority of a quorum, ifa quorum isfixed by law. That is the universally received, acknowledged, admitted rule of the common law and parliamentary law, that the election must be by a majority unless otherwise deter. mined by competent authority. The Legislature, when it votes to go into a convention of the 2 branches, acting as a Legislature, may provide the mode of election. If it desires to change the ordinary and received law upon the subject it may provide how the election shall be made. It may say that a plurality shall elect if it pleases. It may make any provision that itpleases in reference to the mode in which the election shall be conducted, but it must be done by the Legislature. The common law, the ordinary law as applied to electionsby a convention thus framed, must be changed by the bod that gives it authority, or it cannot be change at all. What I say is, if the Senate will pardon mo for repeating, that there must be legislative action governing the whole, because the power which the convention has is limited from the very nature of the case. Remember that it is “the Legislature” which is to choose the senator; and the Legislature say “ We will meet in convention to choose a Senator.” The Legislature may go further if it sees fit, and by legislative act cclare that that choice may be made by a plurality, or that choice may be made by a hand vote, or in any way it pleases; but it must be the body which ives the power that is to settle the mode of oing it, if that mode is to be different from the ordinary, received, acknowledged law and parliamentary law of proceeding of all bodies, whatever they may be. Now, what are the facts in this case? There was no provision whatever made by the Legislature of the State of NewJersey as to the mode in which the Senator should be chosen. The legislative action which authorized the convention was perfectly silent upon that subject. What, then, had the legislaure a right to conclude? Was it not this, and this only, that when it authorized a body other than it self, though constituted of the same members, a convention to choose a Senator, that body must proceed in the choice of a Senator, accordin to the universally received parliament ary an common law upon the subject of election? Had not the Legislature a right to suppose and to insist that in discharging the power thus conferred upon it by the Legislature which Legislature was to choose the course of proceedings of the convention should be precisely that and only that which is received by law everywhere, unless otherwise ordered, and which is provided as the mode of proceeding in all cases of election by all bodies, corporate or otherwise. But how was it in this case? In this case the 2 bodies of the Legislasure met in convention; when so met, the convention, without any legislative act, without any such authority conferred upon them without an thin done on the subject by the Legislature which termed the body, undertook to say that they would change the received, acknowledged, parliamentary law and common law in their mode of proceeding, and instead of acting according to that law, and being governed by that law as the Legislature must have intended it should he, would elect in atotal different manner from that prescribed by that law, namely, by a plu rality vote, for which they had no legislative sanction, for which there was no authority but their own will. Senators will admit that if they could do it in that way, they could do it in any other way; they con(1do it by putting the names into a box and drawing them out; they could select any mode that they chose and make an election in that way, contrary to what the law was, and ought always to be. This is the simple statement of the case; there is nothing else in it that I can perceive from beginning to end. The question is simply whether when “ the Legislature” is the body to choose and the Legislature has delegated that power to a convention of the members of the 2 Houses, without authorizing that convention, by any authority given to it from themselves by any legislative act, to change the ordinary, legal, parliamentary mode of proceedingalways recognized, that conventionthus 0t together may adopt any course of proceeding that they see fit to do, and which was necessarily legislative in its character, because it was changing the law? That being the simple question, I do not see any way in which the necessary result can beavoided, namely, that Mr. Stockton, the claimant of this seat, was not elected legally, because he did not receive a majority of the votes of either House of the Legislature, and as the case stands he was elected merely by a plurality of the convention, not receiving a majority of the votes either of the Senate or of the HoRep of the Legislature of NewJersey. But ifl understand the report, the answer is made that the convention had been previously in the habit of passing rules in reference to their roeeedings in joint meeting. So far as those les related to the election of State officers, they have nothing in the world to do with thisquestion. There is no connection whatever between the subjects. They might make such rules as they saw fit in regard to the elections of State officers. It is said, however, and I do not know but that the fact is so, that they had been in the habit of making rules in regard to the election of U.S. Senators. suppose they had; if they made rules beforehand and acted upon them, those rules, although they may have been acceded to and notquestioned, were not necessarily legal. It so. p pened, however, that previous to this election their rules had invariably required that in order to make an election one person should receive a majority of the votes of the members elected to the Legislature, or a majority of the mem. bers present, a quorum being present. An election made in either of these wa 5 would of course be legal, no matter what rule they had. If they had made no rule whatever, but had simply gone on to make an election, and an individual had received a majority of the votes of all the members present, these members being a quorum of the whole body, he would be elected. If their rules required a vote of a majority of the members elected to the Legislature, and anyone individual received that vote, he would have been elected as a matter of course there being a majority of a quorum present. bobody would think of disputing the right of the member so chosen. But because they made and acted upon a rule which was consistent with parliamentary law and consistent entirely with the common law in relation to such matters, it does not.follow that they are authorized to make a rule which overturns parliamentary law, overturns the common law, for that could not be done without levislative sanction; that is, without the action of the 2 bod ies separately legislating. The practice is of no sort of consequeneeand cannot be used as an argument for proceeding in a wrong direction. A practice which results in a thing perfectly legal and proper cannot he pleaded as a precedent for a thin that is illegal and improper. A practice which is consistent with a power that exists cannot he pleaded as a precedent for the exercise of a power that does not exist and that has never been granted. This is the 1st time in the history of NewJersey that an attempt has been made to elect by a minority, by a plurality of votes. There is no precedent of the kind either in that State or in any other in the election of U.S. Senators. I think, therefore, this answer does not hold; and I revert to the original principle which I laid down, that the election must be by the Legislature; that if the Legislature del egates that power to a convention, the convention must proceed according to the ordinary rules of parliamentary proceeding, or of common law proceedings in the case of cororations, election by a majority. That is always the rule unless it is otherwise specially provided. If the convention undertakes to vary from that and make a new rule, it assumes a legislative function which is not committed to it in any manner or to any extent. That is the simple principle upon which I put the case, and to my mind it is clear.