“The will of a corporation is not merely the concurring will of all its members, but even that of the greater number. Therefore the will of a majority of all its existing members is to be regarded as being properly invested with the rights of the corporation. This rule is founded on the Law of Nature, inasmuch as, if unanimity were demanded, will and action on the part of a corporation would be quite impossible. It is also confirmed by the Roman Law.”[100]
Thomas Jefferson, a very different person from the German jurist, has also vindicated the rule.
“The Lex majoris partis is founded in Common Law as well as common right. It is the natural law of every assembly of men whose numbers are not fixed by any other law.”[101]
But the question still occurs, What is the major part of the Senate? Is it the major part of the abstract or theoretical Senate, or the major part of the real Senate? In other words, is it the major part of the Senate contemplated by the Constitution, with two Senators from each State, or the major part of the actual Senate, counting only those entitled to vote? At the present moment there is a wide difference between the two cases.
Several clauses of the Constitution are applicable to this question. I group them together.
“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six years.”
“A majority of each House shall constitute a quorum to do business.”
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution.”
“A quorum for the purpose [the election of Vice-President] shall consist of two thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.”