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:—
“At the time of the first settlement and colonization of the United States, the elections of members of Parliament in England were conducted upon the principle of plurality, which also prevailed in all other elections in which the electors were at liberty to select their candidates from an indefinite number of qualified persons. Such has been, and still continues to be, the Common Law of England; and such is the present practice in that country in all elections.”[3]
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 charter of the Colony of the Massachusetts Bay being that of a trading company, and not municipal in its character, the officers of the Colony were originally chosen at general meetings of the whole body of freemen, precisely as at the present day the directors of a business corporation, a bank, for example, are chosen by the stockholders at a general meeting. In the choice of Assistants, who were to be eighteen in number, at these meetings of the Company, or, as they were called, Courts of Election, the practice seems to have been for the names of the candidates to be regularly moved and seconded, and put to the question, one by one, in the same manner with all other motions. This was then, as it is now, the mode of proceeding in England, in the election of the Speaker of the House of Commons, and in the appointment of committees of the House, when they are not chosen by ballot. Probably, also, it 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.