228 



CONGRESS, UNITED STATES. 



nobody having competent authority undertook 

 to prescribe that a plurality should elect." 



Mr. Fessenden, of Maine, followed, saying, 

 that the election of Senators came under this 

 clause of the Constitution : 



The Senate of the United States shall be composed 

 of two Senators from each State, chosen by the 

 Legislature thereof, for six years ; and each Senator 

 shall hare one vote. 



It will be noticed he said, that Senators are 

 to be chosen by " the Legislature," not by the 

 legislators ; not by the members of the Legisla- 

 ture, but by "the Legislature." In his view 

 the Legislature in the election of a United 

 States Senator was merely the agent of the 

 Constitution of the United States, to perform a 

 certain act. It was therefore under the control 

 of no other power. No provision in the con- 

 stitution of New Jersey providing the mode in 

 which a Senator shall be elected or the course 

 that shall be taken, or the rules of the proceed- 

 ing, or any thing of that kind would bind in any 

 way the Legislature which is to perform the 

 act. No provision of law of a previous Legis- 

 lature would in any manner bind the Legislature 

 which is to perform that act. It is independent 

 of every thing except the Constitution of the 

 United States. The constitution of a State can- 

 not bind it. The State constitution prescribes 

 who shall compose the Legislature ; but that 

 body, or those bodies thus composing the Le- 

 gislature of the State, being the agent appointed 

 by the Constitution of the United States to per- 

 form an act, is not under the slightest obligation 

 to regard any 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 United States, still 

 it must necessarily act as a Legislature in the 

 performance of that duty, because, the power 

 is not committed to the Legislature individually 

 or collectively, but committed to " the Legisla- 

 ture " of the State ; and therefore, being com- 

 mitted 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. 



The Legislature to elect, is the one in exist- 

 ence when the vacancy occurs, and if it fails, 

 the election goes over to the next. 



Mr. Stockton, of New Jersey, followed, say- 

 ing, that it belonged to the State constitution 

 to define of what the Legislature should consist. 

 This question was raised in New Jersey, before 

 the formation of the constitution of that State 

 in 1846, and the constitution was made to declare 

 the joint meeting also to be the Legislature. 

 An act done by a plurality vote, authorized by 

 a majority, was done by virtue of the majority 

 vote. No one doubted at the time, that his 

 election was legal. The members were bound 

 to that result by every rule both of law and 

 honor. The custom of the joint meeting, pre- 



scribing its own rules, has long existed in New 

 Jersey. 



Mr. Johnson, of Maryland, in reply to the 

 Senator from Maine (Mr. Fessenden), urged that 

 the Constitution of the United States did not 

 pretend to say how the Legislature of a State 

 should be organized, but left that matter to the 

 Constitution and laws of the State, and gave to 

 no department of the Federal Government the 

 slightest jurisdiction over that matter. By the 

 constitution of New Jersey, the collective body 

 in joint meeting had the power to do what 

 they severally do in their separate bodies by a 

 concurrent vote. After a lengthy debate, the 

 question "was taken, and the amendment of Mr. 

 Clark rejected yeas_19, nays 21. 



The question then recurred on the resolution 

 reported by the Judiciary Committee, with the 

 following result : 



YEAS Messrs. Anthony, Buckalew, Cowan, Davis, 

 Foster, Guthrie, Harris, Henderson, Hendricks, John- 

 son, Lane of Kansas, McDougall, Morgan, Nesmith, 

 Norton, Poland, Kiddie, Saulsbury, Stewart, Trum- 

 bull, and Willey 21. 



NATS Messrs. Brown, Chandler, Clark, Conness, 

 Cragin, Creswell, Fessenden, Grimes, Howe, Kirk- 

 wood, Lane of Indiana, Nye, Pomeroy, Kamsey, 

 Sherman, Sprague, Sumner, Wade, Wilson, and 

 Tates 20. 



Mr. Morrill (to the Secretary) : " Call my 

 name." 



The Secretary : " Mr. Morrill." 



Mr. Morrill : " I vote nay." 



Mr. Stockton : " Mr. President, I have a col- 

 league, and my colleague has telegraphed me 

 that he has paired off with the Senator from. 

 Maine (Mr. Morrill). I. telegraphed to him 

 yesterday morning that the Senator from Maine 

 did not wish any longer to be bound by his ar- 

 rangement for pairing off. I received an an- 

 swer this morning by telegraph from my col- 

 league, stating that he could not regard the 

 arrangement as at an end. I think it my duty 

 on Mr. "Wright's account to state this fact to 

 the Senate, because when he was last in this 

 chamber he told me as he left the hall that he 

 would not go home if .it were not for the fact 

 that he had paired off with the Senator from 

 Maine. Mr. President, I ask that my name be 

 called." 



The President pro tempore : " The Secretary 

 will call the name of the Senator. from New 

 Jersey." 



The Secretary called Mr. Stockton's name, 

 and he voted in the affirmative. 



Mr. Morrill : " Perhaps the statement of the 

 honorable Senator requires that I should say 

 that the fact is substantially as he states. The 

 fact changes no result, however. Some seven 

 weeks ago, perhaps, when this question was 

 expected to be called up, Mr. "Wright being 

 here in his seat, I agreed to pair off with him. 

 This week, when the question was expected to 

 come up, I felt embarrassed by the arrange- 

 ment, and I advised Mr. Stockton on Wednes- 

 day evening of that embarrassment and desired 

 him. to notify his colleague. This is Friday, 



