which the Committee on the Judiciary arrived in relation to this matter.” Mr. Trumbull defended the report. Mr. Sumner followed.

MR. PRESIDENT,—When the Senator from Illinois rose to speak, I had made up my mind to say nothing in this debate; but topics have been introduced by him which I am unwilling should pass without notice.

The Senator did not disguise that the case is without a precedent in the history of the Senate. Never before has a Senator appeared in this Chamber with the credentials of a minority. And I venture to say further, that the rule of a majority has the constant consecration of history in the proceedings of parliamentary or electoral bodies. It is the rule of the House of Commons in the choice of Speaker; and this is the most important precedent for us, for our Parliamentary Law is derived from England. But it antedates the English Parliament. The oldest electoral body in the world is the Conclave of Cardinals; but who has heard that a Pope was ever elected by a minority? I ask your attention to this example, that you may see how the rule of the minority is constantly rejected, notwithstanding temptation, inducement, and pressure to adopt it. There have been many contested elections, during which the Cardinals, separated from the world, each in a small apartment or cell of the Vatican or the Palace of the Quirinal, have been imprisoned like a jury, sometimes for months, waiting for the requisite majority. They did not undertake to change the rule, and set up the will of a minority. There was Lambertini, who shone as Pope Benedict the Fourteenth, conspicuous as statesman and patron of letters, who was not chosen until after six months’ ineffectual efforts. Such instances stand like so many pillars, and I refer to them now as proper to guide your conduct.

The question before us is of law, and nothing else. It is not a question of politics or of sentiment, except so far as these enter into the determination of law. It is a question for reason alone.

It lies in a nutshell. A brief text of the National Constitution, and another brief text of a local statute, are all that need be considered.

The National Constitution provides as follows:—

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:—

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:—