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It is difficult to resist this conclusion, especially when it is considered that in any other way the smaller body is actually swamped by the larger. In a joint meeting the Senate loses its relative power. I adduce this, not for criticism, but only for illustration. Even admitting that the received usage of choosing Senators in joint meeting is consistent with the National Constitution, it is clear that it should not be extended; and this is the precise question before us. Contrary to all usage or precedent, and without any direct sanction in the Constitution or statutes of New Jersey, 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 according to existing usage, it adopted the resolution declaring that the election should be determined by a minority of votes instead of a majority.

In this resolution two questions arise: first, can the Legislature itself, by legislative act, substitute a minority for a majority in the election of Senators, and thus set aside a great and traditional principle? and, secondly, can it do this in a “joint meeting,” without any previous legislative act? It is enough for the present occasion, if I show, that, whatever may be the powers of the Legislature by legislative act, it can have no such extraordinary power in the questionable assembly known as “joint meeting.” But we shall better understand the second question, after considering the first.

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 present the question now independently of any State Constitution.

In considering the power of the Legislature, it is important to put aside any influence that may be attributed to the unquestioned usage of choosing Representatives and other officers by plurality of votes. Because the people choose by plurality, it does not follow that a Legislature may. From time immemorial, the rule in the two cases has been different, unless we except the New England States, where, until recently, even popular elections were by a majority. But the origin of the practice in New England testifies to the rule.

It is proper for us to interrogate the country 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. Wirt, in his masterly argument on the impeachment of Judge Peck, develops this idea.

Following this statement, so clearly expressed, the words “Legislature” and “holding elections,” in the National Constitution, which belonged to the political system of England, may be explained by that system,—so, at least, that in case of doubt we shall find light in this quarter.

Now, from the beginning, it appears that in England there have been two different rules with regard to elections by the legislature and elections by the people. Elections by the legislature, like legislative acts, have been by majority; elections by the people for Parliament have been by plurality. This distinction is found throughout English history.

The House of Commons chooses its Speaker by 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 majority. It is only through majority that it can act. The House of Commons itself is found in the majority of its members,—never in a minority.

On the other hand, members of Parliament are chosen by plurality. No reason is assigned for the difference; but it may be found, perhaps, in two considerations: first, the superior convenience, amounting almost to necessity, of choosing members of Parliament in this way; and, secondly, the fact that popular bodies were not embraced by the Law of Corporations, which establishes the rule of the majority.

Here I adduce the authority of Mr. Cushing, in his Parliamentary Law, in the very passage cited by the Senator from Illinois:—

It will be perceived that this statement is with reference to popular elections, and not elections by corporate or legislative bodies. So far as it goes, it is explicit. But pardon me, if I say that the Senator from Illinois has misunderstood it. Had he examined it carefully, he would have seen that it had no bearing on the present case. Nobody questions the plurality rule in the election of members of Congress, although few, perhaps, have considered how it came into existence. Mr. Cushing, whom the Senator cites, explains it, and in a way to furnish no authority for a minority instead of a majority in a legislative body. The rule prevailed in England. The colonies of Virginia and New York adopted it. From these, as they became States, it gradually extended throughout the country. A different rule was carried to New England by the Puritan Fathers. Even popular elections were by the rule of the majority, as is explained by the same learned authority.