TRENTON, NEW JERSEY, March 20, 1865.

To the Senate of the United States:

The subscribers, members of the Senate and House of Assembly of the State of New Jersey, respectfully represent:

That they protest against the admission to the Senate of the United States, as Senator from New Jersey, of Hon. John P. Stockton, on the ground that he was not appointed thereto by a majority of the votes of the joint meeting of the Legislature.

He was declared elected after the following vote:

For John P. Stockton 40 votes; John C. Ten Eyck 37 votes; James W. Wall 1 vote; Peter D. Vroom 1 vote; F. T. Frelinghuysen 1 vote; Henry S. Little 1 vote.

So that only 40 votes were cast in his favor, while 41 votes were given against his election.

Immediately previous to the election the joint meeting, by a majority of one vote, rescinded a resolution previously adopted, declaring that a majority of all the members of the Legislature were required to elect any officer, and passed a resolution that only a plurality should be necessary to a choice. Hence, Mr. Stockton, on the vote above given, was declared elected Senator. That resolution, it is respectfully submitted, was unlawful.

The Constitution of the United States, the laws of New Jersey, and usage hitherto uninterrupted, require that no one shall represent a State in the United States Senate unless he be "chosen by its Legislature," which means, we submit, at least a majority of what constituted the Legislature as convened at the moment of the election.

These words, contained in the Constitution of the United States, article one, section three, really control the whole matter. Should a Legislature make a different rule, it would be inoperative; much more, if such rule were no State law, but a simple resolution.

This being so, we submit that, in order that any particular person may be rightly spoken of as "chosen" Senator, his name should have been designated as such by all the members of the Legislature present in joint meeting, or by a majority of them. It is so in reference to all bodies of individuals, public or private. Partnerships rule by majority; so do boards of trustees, common councilmen, the Legislature itself, in passing laws. The rule is universal whenever the creating power does not otherwise specify.

There can be no reason for a different rule in relation to this matter than that of the law as to corporations aggregate. The will of such corporations is that of all members or of a majority of them. The rule is founded on the law of nature, and it is settled that in such corporations where the principle of election is not specified in the charter, it requires a majority of the corporators; in elections of civil officers, it is sometimes otherwise; but that is in consequence of positive law, made by reason of the difficulties attending the requisition of a full majority upon a popular vote. And the same law of nature which decides that a majority of a collective body shall express its will, decides, likewise, that half or less than half shall not.

That a majority agree that a minority may choose the Senator is nothing. The act required is the concurrence of the mind of the body in the choice, i.e., the designation of a particular individual as Senator. The concurrence of a minority leaves the majority non-concurrent whether they formally dissent or not, and the man named is not the choice of the majority, which the Constitution says he shall be when it declared that he shall be "chosen by the Legislature."

While this is the law, even should the Legislature make a contrary one, the next point we urge is that the Legislature have by law required the same thing.

The Constitution of the United States provides (article one, section four) that "the times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof." Under this authority the Legislature of New Jersey have passed laws in relation the Senators and Representatives.

In the case of Representatives, they have provided that the person having the greatest number of votes shall be elected. In the case of Senators, that they "shall be appointed by the Senate and General Assembly of this State in joint meeting assembled."

They do not here declare that the person having the greatest number of votes simply shall be sent. They used words which imply the concurrence of the body, created from the Senate and Assembly, in the designation, a concurrence which can only be though unanimity or the vote of a majority. This difference is not unintentional. And the word appointed is one used in the ancient constitution of New Jersey, when it regulated the joint meeting. That instrument was adopted July 2, 1776. It provided that the Council and Assembly jointly, at their first meeting yearly, should elect by a majority of votes a Governor, and that the justices of the supreme court and other officers "should be severally appointed by the Council and Assembly in manner aforesaid." The law already quoted was passed under the old constitution, and all appointments of State officers by joint meeting and of Senators were made by a majority of all the members of joint meeting present. It has from time to time been reënacted; but what has occurred to change its meaning? Under the old constitution it meant election by a majority of all the votes. We submit that such is its meaning now.

The constitution of 1846 does not, in terms, require that appointments shall be "by a majority of votes;" it directs that specified officers shall be "appointed by the Senate and General Assembly in joint meeting;" but no change has ever before taken place, or been suggested as lawful, in the method of electing. The uniform usage has been to require a majority of all the members of a joint meeting to concur before there is any appointment. Severe contests have heretofore occurred in joint meetings, numerous ballots have been had, and candidates have owed their election to the absence of opponents reducing the number necessary to a majority. It cannot be said that because the joint meeting is composed of the Legislature, they can alter or add to the law. The two Houses together cannot make a law. It requires separate action and executive approval, and the meeting of members in joint meeting is for a specific purpose and no other—to elect officers, not make laws. The consequences possible from admitting the right to select by a plurality vote furnish a conclusive argument against it. If two members vote for one person and every other member by himself for different individuals, the person having two votes would have a plurality. Can it be that in such a case he would be a Senator? This is, indeed, an extreme case; but such cases test the propriety of legal doctrine, and many equally unjust, but less extreme, may easily be offered.

Believing, therefore, that Hon. John P. Stockton is not elected Senator from New Jersey, we respectfully pray that the Senate of the United States may so decide, and declare his seat vacant.

MEMBERS OF THE SENATE.

W. W. WARE,

Cape May County.

PROVIDENCE LUDLAM,

Cumberland County.

JOSEPH L. REEVES,

Gloucester County.

GEORGE D. HORNER,

Ocean County.

MEMBERS OF THE ASSEMBLY.

GEORGE M. WRIGHT,

Bergen County.

JAMES M. SCOVEL,

Senator from Camden County.

B. BUCKLEY,

Senator from Passaic.

R. M. ACTON,

Senator from Salem.

P. C. BRINCK,

Camden County.

THOMAS BEESLEY,

Cape May County.

JAMES D. CLEAVER,

Essex County.

JOHN H. LANDELL,

Essex County.

RUFUS F. HARRISON,

Essex County.

J. B. J. ROBISON,

Essex County.

A. M. P. V. H. DICKESON,

2d Legislative District, Salem County.

WILLIAM CALLAHAN,

1st Legislative District, Salem County.

JAMES H. NIXON,

2d District, Cumberland County.

ROBERT MORE.

1st District, Cumberland County.

JOHN F. BODINE,

3d District, Camden County.

C. C. LATHROP,

2d District, Burlington County.

GARRET VAN WAGONER,

2d District, Passaic County.

N. S. ABBOTT,

1st District, Gloucester County.

SIMON LAKE,

Atlantic County.

SAMUEL FISHER,

3d District, Mercer County.

A. B. GREEN,

1st District, Mercer County.

RYNEER A. STAATS,

3d District, Somerset County.

JACOB BIRDSALL,

Ocean County.

WILLIAM D. WILSON,

2d District, Gloucester County.

HENRY J. IRICK,

4th District, Burlington County.

J. W. HEULINGS,

3d District, Burlington County.

J. W. NICHOLSON,

2d District, Camden County.

I. D. BLAUVELT,

3d District, Passaic County.

L. D. JARRARD,

1st District, Middlesex County.

SAMUEL STOCKTON,

1st District, Burlington County.

THOMAS B. PEDDIE,

Essex County.

C. A. LIGHTHIPE,

Essex County.

JOHN BATES,

2d District, Morris County.

JOSEPH T. CROWELL,

2d District, Union County.

• Protest of Members of the New Jersey Legislature against Mr. Stockton’s Right to a Seat in the Senate (introduced on 1866-01-11 10:00:00 - CREATE_FROM - e844507) [This document]

• Protest of Members of the New Jersey Legislature against Mr. Stockton’s Right to a Seat in the Senate (introduced on 1866-01-11 10:00:00 - CREATE_FROM - e844507) [This document] [view current proposal at this moment]