Charles Sumner; his complete works, volume 14 (of 20)

Copyright, 1874 and 1875,
BY
FRANCIS V. BALCH, Executor.

Copyright, 1900,
BY
LEE AND SHEPARD.

Statesman Edition.

Limited to One Thousand Copies.

Of which this is

Norwood Press:
Norwood, Mass., U.S.A.

CONTENTS OF VOLUME XIV.

MAJORITY OR PLURALITY IN THE ELECTION OF SENATORS.

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:—

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.

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:—

And now, Sir, I have only to add, in conclusion, let us incline in favor of the rule of the majority. So inclining, you will at once show reverence for the republican principle and will stand on the ancient ways.

A SENATOR CANNOT VOTE FOR HIMSELF.