The National Constitution provides as follows:—
“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.”
“The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”
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:—
“Senators of the United States on the part of this State shall be appointed by the Senate and General Assembly of this State in joint meeting assembled.”
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.