gislature as
convened at the moment of election. This had been, as they set forth
at length, the undoubted law and the unbroken usage of New Jersey, and
an election falling short of this primary requirement was necessarily
invalid. "The Constitution of the United States direct," said this
memorial, "that a senator must be chosen by the Legislature, and a
minority does not constitute the Legislature." They illustrated the
wrongfulness of the position by the _reductio ad absurdum._ "The
consequences which are possible," argued the protestants, "from
admitting the right to elect 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 senator? This indeed is an extreme case, but such cases test
the propriety of legal doctrine, and many equally unjust but less
extreme may easily be offered."

Mr. Stockton took his seat on the first day of the ensuing session
(December 4, 1865) and was regularly sworn in. At the same time the
protest was presented by Mr. Cowan of Pennsylvania and referred to the
Judiciary Committee. That committee was composed of five Republicans
and two Democrats, and was therefore politically biased, if at all,
against Mr. Stockton. On the 30th of January, after a patient
examination of nearly two months, the committee, greatly to the
surprise of the Republican side of the chamber, reported that "Mr.
Stockton was duly elected and entitled to his seat." The report was
said to have been approved by every member of the committee except
Mr. Clark of New Hampshire. The validity or invalidity of the election
hinged upon the ability of the joint convention of the two branches to
declare a plurality sufficient to elect. The committee decided that
the convention possessed that power, and the report, drawn by Mr.
Trumbull, argued the point with considerable ingenuity.

The subject came up for consideration in the Senate on the 22d of March
(1866), Mr. Clark, the dissenting member of the committee, leading off
in debate. He was ably sustained by Mr. Fessenden, who left little to
be said, as was his habit in debating any question of constitutional
law. He maintained that "the Legislature, in the election of a
United-States senator, is merely the agent of the Constitution of the
United States to perform a ce