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 40 votes, of which ten were from Senators, and 30 from members of the Assembly, while against him were 41 votes and the question which you are to decide is on the legality of this election. The Constitution is, of course, the original and highest source of light on this question. Looking at this 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 ofholtling the election. Whatever the State can do must be derived from this source; nor more nor less. The choice is to be by the Legislature, according to a manner prescribed by the Legislature. The Constitution of the U.S. does not undertake to define a State Legislature or its forms of proceedings. This is leftto the State itself. Notoriousl at the time these legislatures were modele on the colonial Legislatures that had receded them, which had been modeled on the Parliament of the mother country. As a general rule, there were 2 Chambers, an a perand lower; but this was not universal. n Geor is and Pennsylvania there was for awhile only a single Chamber, which constituted the Legislature. Imention this to show how completely the State itself was left to determine the conditions of its Legislature. But the State speaks through its constitution, which fixes these conditions. Where the constitution is silent can the Legislature it self venture to speak? Repairing to t ie constitution of NewJersey, we find that it provides that “the legislative power shall be vested in a Senate and General Assembly;. that these bodies shall meet and organize separately; and that “ bills and JtResolutions shall be read 3 times in each House. No bill or JtResolution shall pass unless there be a majority of all the members of each House personally present and agreeing thereto.” such is the definition of a Legislature, and such are the forms of legislative iroceedings prescribed by the consfiution of i cw Jersey. The statute of NewJersey, to which I have already referred as framed in 1790, was entitled “An act to prescribe the manner of nppointin Senators of the U.S and electors of the President and VEEP on the part of this State.” This was 1s pursuance of the Constitution of the U.S. 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. have no purpose of raising any question with regard to the validity of this statute prescribing the election of Senators injointmeeling]. 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 Constitution. Senators are to be “chosen by the Legislature;” but the Legislature is composed of 2 separate bodies, defined by the State constitution. Senators, therefore, should be chosen by the 2 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 Chanceller Kent, who, after setting forth the usage under the Constitution, proceeds to express his dissent from it as a just construction of the Constitution. His language is explicit: "I should think, if the question were a new one, that when the Constitution directed that the Senators should bechosenby"toLrgis/ulurc, it meant, not the membersof the Legislature percapital, but the Legislature in the true technical sense.being thotwo Houses, acting in their separatecapacities, with the ordinary constitutional right of negative on each otggs proceedings."KmlI Commentaries, vol. 1. l). Surely it is difficult to resist this conclusion, especially when it is considered that in any other way the smaller body is actually swumped by the larger body. In a joint meeting the senate loses its relative power. But 1 adduce this not for criticism, but only forillustration. Even admitting that the received usage of choosing Senators in joint meeting is consistent with the Constitution; yet I insist that it must not be extended and this is the precise question now before us. Contrary to all usage or precedents, and without any direct sanction in the constitution or statutes of NewJersey, 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 accordin to the existing usage, it adopted the resolution declaring that the election should be determined by a minority of votes instead of a majority. Now, in this resolution 2 nestions arise: 1st, can the Legislature itsel, by legislative act, substitute a minorit for a majority in the election of Senators, an thus set aside a great and traditional principle? and 2ndly, can it do this in a “joint meeting” without any previous legislative act? It is enough for the present occasion if I insist that whatever may e the powers of the Legislature by legislative act, it can have no such extraordinary power in the abnormal assembl known as a “joint meeting." But we shall etter understand the 2nd question if we consider the 1st. 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 put the question now independent of any State constitunon. In considering the power of the Legislature it is important to put aside any intluence that may be attributed to the unquestioned usage of choosing Representatives and other officers by a plurality of votes. Because the people may choose by a plurality, it does not follow that a Legislature may. From time imme morial the rule in the 2 cases has been different, unless we except the NewEngland States, where until recently opular elections were by a majority. But the origin of the practice in NewEngland seems to testify to the rule. It is proper for us to repair to the count 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. Virt, in his masterly argument on theim eachment of Judge Peck, thus develops this idea: "The Constitution securcsmalbyjury. Where do you get the meaningof trial by jury.7 Certainly not Iftrom the civil or canon law or the law of nations is peculiar to the common law, and to the common dlaews.crtihpetrioenfore, the Constitution itself refersyou for a and exlauntion of this high privilege, theIrial by jlll and themodeof proceedingin those trials." "The new nameby which it is called into being authorizes it to look at once to the English archetypes for its government." Following this statement, so clearly expressed, the words “Legislature” and “holding elections, 7 in our Constitution, which belonged to the political system of England, may be explained bythat system; so, at least, that in case of doubt we shall find light in this quarter. Now, from the beginning, it appears that there have been 2 different rules in England with regard to election by the legislature and elections by the people. Elections by the legislature, like legislative acts, have been by a majority. Elections by the people for Parliament have been by a plurality. This distinction will be found throughout English history. The House of Commons chooses its Speaker by a 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 a majority. It is only through a majority that it can act. The House of Commons itself is found in a majority of its members; never in aminority. On the other band, members of Parliament are chosen by a lurality. No reason is as signed for this diflerence; but it may be found, perhaps, in two considerations: 1st, the supe prior convenience, amounting almost to u. necessity, of choosing members of Parliament in this way; and 2ndly, the fact that popular bodies were not embraced by the law of corporations, which establishes the rule of the majority. Here let me adduce the authorit of Mr. Cashing, in his Parliamentary Law. cite the very passage cited by the Senfrom Illinois: “At the time of the 1st settlementand colonisation of the U.S. the electionof mcmlmtsof Parliament in England wereconductedupon the principle of plurality: which also prevailed in all other electionsin which the electors wereatliberty toselect their candidatesfrom an indefinite number of qualified persons. such has been and still coptmucs to be, the common law of Englandandsuch is the present practicein that country in all elections." It Will be perceived that this statement is With reference to popular elections, and not the elections by corporate or legislative bodies. So far as it goes it is explicit. But pardon me if I say that the Senfrom Illinois [Mr. Trum Bou.] has misunderstood it. Ha he examined it carefully he would have seen that it had no bearing on the present case. Nobody questions the plurality rule in the elections of members of Congress, although few, perhaps, have considered how it came into cXistence. Mr. Cashing, whom the Senator cites, explains it, and in a way to furnish no authority for the substitute of a minority fora majority in ablegislative body. The rule revaile in England, and the colonies of irginia and NewYork adopted it. From these colonies, as they became States, it gradually extended through out the country. A different rule was carried to NewEngland by the Puritan fathers. Even by the popular elections that 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 muni cipal in its character, the officers of the colony were originally chosen at general meetingsof the whole body of frocmen; precisely as at the presentday. the directors of a businesse orporation, a bank. for example. are chosen by the stockholders at a general meeting. In the choice of assts.who were to be 18 in number, attheseincetingsof the company, or as the werecalled.courtsof election, the practice seems to have beenfor the names of the candidates to be regularly moved and 2nded and put to the question. one by one, in the some manner with all other motions. His was themasitis now, tbemoileof proceeding in England. in the electionof the Speaker of the House of Commons and in the appointment of committeesof the House. when theyare not chosen by ballot. Probably. also. it was the usual modeof proceeding in electing the officers of aprivate corporation or company. In votin upon the names thus proposed.it wasordered with a view doubtless. to secure the independenceland impartiality of the electors that the ffeclnen instead of giving an af firmative or negative voiccin the usual openand visiblemanner.should give their sulirniresby ballot, and for that purposeshould use Indian corn and beans, the Indian corn to manifest election. the beanse on trary. The names of the candidates being thus moved and voted upon. each by itself. it followed.of course. that no person could a elected but by an absolute majority.". The rule, which is thus curiously explained, continued in Massachusetts down to a recent day. At last it yielded to the exigeney of public convenience, so that at this moment, I believe popular elections throughout the U.S. are by the plurality rule. But I repeat that this is no authority for overturning the rule of the majority in alegislative body, having in its favor so many reasons of law and tradition. I have only alluded to the law of cororations; but this law is of much weight in eter mining the present case. According to this law the rule of the majority must prevail. In deed, an eminent jurist says thnt this rule is according to the law of nature, as it is unnestionably according to the Roman law, an the modern law of civilized States. But what is ablegislative body but a political corporation 2 It, therefore, I be 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 parsest, ibitotum. “Where the greater part is, there.is all.” such is approved maxim of the law, and this maxuann has in its support, 1st, the law of nature; 2ndly, the law of corporations; 3rdly, the parliamentary law; and 4tw, the principles of republican government. hoover 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 legislntive 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 the 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 3 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 escribe the manner of electing Senators, uses angnage whichisnot open to evasion. This poweristo be exercised by the“ Legislature, ”which may prescribe the manner. this not to be exercised by any other body than the Legislature, and the manner is to be rescribed by the Legislature. Now, assumingt iat it may be exercised in joint meeting, it is clear that this must be in pursuance of some legislative act, which shall prescribe in advance the manner. Supposing the case to be doubtful, then I submit that all presumptions and interpretertions must tend to an port the rule of a majority. In other wor( s, 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 remembera rule of Ho le, “ Ifyou are in doubt take the trick.” Just the reverse must be done in a case like the present, involving so important a principle; if you are in doubt do not take the trick. his is a republican Government, and surely you will not abandon the 1st principle of a republican Government without good reason. According to received maxims of the law, you must always incline in favor of liberty. In the same spirit you must always incline in favor of every principle of a republican Government, and es e cially of that vital principle which establishes the rule of the majority. Thus inclining, the way at present is easy; and here let me quote another authority very different from Hoyle. Lord Bacon, in his Maxims of the Law, after quoting a similar presumption, says: “It is a rule drawn out of the depths of reason. It makesan end of manyquestions and doubts about construction of words; or if the labor were only to pick out the intention of the artics, every judge would have a several sense; wierena this rule doth give themm away to fake the law more certainly one wou."BaconaMaxims, Rea. 3 and now, sir, I have only to say, in conclusion, let us incline in favor of the rule of the majority. So inclining, you will at once show your reverence for the republican principle and will stand on the ancient ways.