The daily union. [volume] (Washington [D.C.]) 1845-1857, 1857-01-16

within the provisions of the constitution and the powers
conferred on them by the constitution.
erce sngy II il insists of parts the assent OF each
of those parts be given to its action Action is to be
had An agent is constituted, consisting Of two different
assemblages making one body Now II order to make
the exercise Of their power legal what is the result neces-
sary 1t necessarily is that there must be the assent OF
those separate eItences 70 whatever action is pro-
posed to be had In order to e4ece the power thus con-
erred them constitute what is Called in legal
phrase the act of the body which is to perform the service
required ~
The next inquiry that arises is in what manner must
this act be pestorsd The constitution OF the United
States settles that Ii that the tines places and man
holding elections for the choice Of senators shall be
left TO the legislature ITSELF and as said before neeessa
ly TO The legislature which s 10 perform the ae Tbey
have full power it. There is limitation OF that
power They may do ~ witbn the forms OF law and nm
der the provisions of The costnen precisely as they
please ALI that is necessary is that there should be e-
gal the mode which they choose 10 adopt In
der to accomplish the purpose
will illustrate this by supposiDg Suppose Con-
gess exercise its reserved power One thing evident
Congress has reserved which 1t may exerc as 10
the manner OF holding elections Suppose undertakes
TO enerciss IL can Congress compel the election OF sens-
tori hold with other gentlemen the inclination OF m,
mind-although do deem the question materials,
that il cannot 1t compel State elect sena-
tori it cannot compel legislature act 1t can exercise
compulsve power either branch Of the legislature
IL cannot say the legislature to this branch TO that
branch that 1t shall particular time, at partcu-
lar place. and in particular manner If the Legislature,
after law Of Congress of this description should under
take 10 act in different manner the election would not be
valid but that is very different question from consider
ing whether Congress has the power to compel legisla-
tue to act II has no power to compel legislature to
act it certainly has power to compel compo-
nen part Of the legislature to act if it fit not to do
know this question has been much considered, and
there All illustration of it in that took
place In my own State long ago and which, think, may
shed some light upon it. The original constitution OF Mas
sachussts Of which Maine was part provided for the
election OF representatives by towns municipal corpora
tons many representatives to such and such
towns Representation not predcated entirely upon
the number of people although that might have been the
leading idea but to the town of manyoDe two, or
more representatives gvenand others to the town
OF B. and When Maine framed Its constitution il
adopted different principle, and settled questions of rep
resenaton by the consideration of the number of people,
and cased towns according their population in order
to enttle them to representatives In the Legislature
majority Of the people OF town voted ON certain occa-
sion, in Maine that 1t would send fepresen atives
whereupon the minority of the people of that town
on and elected after that vote taken member OF the
legislature The minority of supreme court held, and
their opinion unquestionaby right one and it
adopted by the legislature that in Massachusetts, the right
OF represe ntaton corporate right but in Maine
under constitution the right Of representation
corporate right but right the people and that It
not in the power Of majority to deprive the minority
the right OF representation in the legislature Of the Stae
The cases exactly similar but it may be consid
cred that the right OF representation in the Senate of tbe
United States ia in some degree corporate righa right
Of State as State The representation in the Senate il
founded upon the docrne of representing States and
he people of the States The people Of the States rep
resented by the representatives the other branch II
is to be considered right belonging to the States then
1t may be considered corporate right do not lay ths
down as principle, but only iilustrt ton Then IL
might follow that msjority Of the legislature can ii they
choose refuse to have The State represented in the Senate
At all events there is practical mode that am able
imagine ia which State be compelled exercise h
power and if there mode in which the State b
compelled TO elect senator, it follows that there is
msde IN which Congress by law could compel any
branch Of legislature 90 into election at any par
tcuar lime, although election held in different mode,
and different time and from that prescribed BY
Congress, would undoubtedly be void.
But suppose Congress should undertake to exercise this
power aud should provide that time to be fixed by
the legislature the two branches the several branches
or the members OF the legislature Of the several branch
es should meet in convention and being met major
ty OF the whole number should constitute quorum, and
that they should then proceed to the election of SENATOR
and that the who received the majority of the
thrown in convention thus formed should be declare
ed elected and hen having passed this law the several
branches of the legislature sitting separately, ach in m
resp GIVE chamber and acting under the constitution oil
the State and by virtue Of its authory, should vote
they will now proceed, particular day proceed
to form convention for the election of United States
SENATOR do they not give their assent their legal consttu
ona assent by that vote to the mode proposed by which
senator is to be elected2
If such law passed by Congress- in virtue Of the
power reserved 10 Congress the constitution egslae
on the subject and the legislature OF the State by its dis
unct branches aching according the ordinary Of
business should give heir assent TO it by voting that
the time and place fixed they would proceed In the
thus designated to elect SENATOR and the members of thu
two houses should accordingly in convention in pur
suance OF that act that voe that thus given and
an election should there be had by majority Of quorum
of the whole NUMBER according the law of Congress
would not such election be legal whether there
majority OF the there NOT whether there
majority Of the house there not2 contend that IL
would Why? Because all that is necessary s that there
should be legal assent according to the forms of proceed
ing of the legislature election II the Of III.
legislature itself when adopted Congress has provided
that 1t should be in that mode The legislature has as
sumed that positon 1t has endorsed that provision it has
accepted IT as its own; Ii goes into the convention thus
provided for by Congress to make that election When it
has gone into that convention under these rules 1t goes
virtue of act what is equivalent act of the
legislature and whatever ia done there is done by virtue
of that act
Mr. BENJAMIN. The honorable senator will permit me
to say word know he is too practised debater
be dispeased by the interruption The difficulty that
find IN his argument is that do agree what
comprehcnded by the words "manner of holding the cleo
ton The senator says that by of Congress-
agreement OF the State legislature the of holding
election would comprehend agreement in advance BY
the senate that election should be held without quo
rum of either body being present Now the legislature
might consent but the State constitution provides that
there be quorum without majority of the senate
and therefore that consent of the senate in my Judgment
would be entirely nugatoy In other words the
choice of body composed of minority of the senate not
quorum.
Mr.. FESSENDEN. My answer to that must be obvious
from what have previously said do agree with the
senator at all that there is any power the constitution
of the State beyond the designation of what shall
constitute the legislature When says quorum of
each branch shall be necessary do business il refers TO
the business OF the State 1t designate what shall
be quorum In regard business be done by vr-
tue OF the State constitution, under the State consu-
on but by virtue simply of the power granted by the
shtuton Of the United States the legislature being an