was the usual mode of proceeding in electing the officers of a private corporation or company. In voting upon the names thus proposed, it was ordered—with a view, doubtless, to secure the independence and impartiality of the electors—that the freemen, instead of giving an affirmative or negative voice in the usual open and visible manner, should give their suffrages by ballot, and for that purpose should ‘use Indian corn and beans: the Indian corn to manifest election, the beans contrary.’ The names of the candidates being thus moved and voted upon, each by itself, it followed, of course, that no person could be elected but by an absolute majority.”[4]

The rule, thus curiously explained, continued in Massachusetts down to a recent day; at last it yielded to the exigency of public convenience, so that at this moment, I believe, popular elections throughout the United States are by the plurality rule. But I repeat, that this is no authority for overturning the rule of the majority in a legislative body, having in its favor so many reasons of law and tradition.

I have only alluded to the Law of Corporations; but this law is of weight in determining the present case. According to this law, the rule of the majority must prevail. Indeed, an eminent jurist says that this rule is according to the Law of Nature, as it is unquestionably according to the Roman Law, and the modern law of civilized states.[5] But what is a legislative body but a political corporation? Therefore, when 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 pars est, ibi totum: “Where the greater part is, there is the whole.” Such is an approved maxim of the law; and this maxim has in its support, first, the Law of Nature, secondly, the Law of Corporations, thirdly, the Parliamentary Law, and, fourthly, the principles of republican government. Who ever 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 legislative 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 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 three 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 prescribe the manner of electing Senators, uses language not open to evasion. This power is to be exercised by the “Legislature,” which may prescribe the manner. It is not to be exercised by any other body than the Legislature; and the manner is to be prescribed by the Legislature. But, assuming that it may be exercised in joint meeting, it is clear that this must be in pursuance of some legislative act, prescribing in advance the manner.

Supposing the case doubtful, then I submit that all presumptions and interpretations must tend to support the rule of a majority. In other words, 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 remember a rule of Hoyle, “When you are in doubt, take the trick.” Just the reverse must be done in a case like the present, involving so important a principle: when you are in doubt, do not take the trick. This is a republican government, and surely you will not abandon the first principle of a republican government without good reason. According to received maxims of law, you must always incline in favor of Liberty. In the same spirit you must always incline in favor of every principle of republican government, and especially of that vital principle which establishes the rule of the majority. Thus inclining, the way at present is easy; and here I quote another authority, very different from Hoyle. Lord Bacon, in his Maxims of the Law, after mentioning a similar presumption, says:—