The provision for the election of members by rotation was adopted unanimously at the suggestion of Gorham and Randolph.19 Penn's Frame of Government for Pennsylvania had provided that in the Council one-third of the members should be elected every year, and at the time of the Convention the upper houses of New York, Virginia and Delaware as well as of the first named State were filled in a similar manner.20 The idea is said to have been borrowed from the senates of the cities in the Netherlands,21 who had taken it from Venice. The grant to each State of an equal right of suffrage in the Senate was the result of the controversy between the large and small States, which nearly disrupted the Convention and finally resulted in the Connecticut compromise, suggested by Roger Sherman, as previously described.22

Luther Martin of Maryland wished that the Senate should vote by States, and Gouverneur Morris of Pennsylvania that the number from each State should be three; but neither was able to carry more than the members of his own delegation in favor of his views.23 The provision for the temporary supply of vacancies in the Senate by the State executives was inserted by the Committee of Detail in the following form:

"Vacancies may be supplied by the executive until the next meeting of the legislature." 24

Upon the consideration of their report,

"Mr. Madison, in order to prevent doubts whether resignations could be made by senators, or whether they could refuse to accept, moved to strike out the words after 'vacancies,' and insert the words 'happening by refusals to accept, resignations, or otherwise, may be supplied by the legislature of the State in the representation of which such vacancies shall happen, or by the executive thereof until the next meeting of the legislature.' Mr. Gouverneur Morris. This is absolutely necessary; otherwise, as members chosen into the Senate are disqualified from be

19 Ibid., p. 241.

20 Poore's Charters and Constitutions, vol. ii, pp. 1520, 1334, 1910; vol. i, p. 274; Stevens, Sources of the Constitution, p. 78; supra, § 49, note 9.

21 Campbell, The Puritan in Holland, England and America, vol. ii,

p. 423; Stevens, Sources of the Constitution, p. 78.

22 Supra, §§ 48, 64.

23 Madison Papers, Elliot's Debates, 2d ed., vol. v, pp. 356–357. 24 Ibid., p. 377.

ing appointed to any office, by Section 9, of this article, it will be in the power of the legislature, by appointing a man a Senator against his consent, to deprive the United States of his services.

"The motion of Mr. Madison was agreed to nem. con.'

"25

The other words of this clause seem to have been inserted by the Committee of Style without discussion. The Convention considered and disapproved suggestions that senators must have a property qualification,26 that like members of the House of Lords they should have the right to enter their dissents, in all cases, upon the journal, that they should choose the President in case of a failure of a choice by the electors, 28 that their consent should be required to pardons,29 and that they should have the power to declare war 30 and decide controversies between the States.31 proceedings as to the presidency of the Senate, impeachments, and the power of that body to concur in treaties and approve appointments will be described later.32 The latter were suggested by the powers of the colonial councils.33

§ 77. Senatorial Elections.

The

The Constitution simply directs that the senators from each State shall be chosen by the Legislature thereof," 1 without prescribing the manner of the choice. A subsequent provision is that

"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 chusing Senators." 2

For nearly one hundred years after the adoption of the Constitution Congress left the matter to the regulation of the several States. It was settled by uniform acquiescence that the governor of a State, although by the Constitution his assent was necessary

to the enactment of laws, was not a part of the legislature thereof when a senator was to be chosen.3 It was decided by the Senate that the two houses of the legislature might, by a joint resolution or rule adopted by both of them, without the consent of the governor, provide for the manner in which a senatorial election should take place; and that the State constitution cannot limit the powers of the legislature in that respect. It seems to have been the prevailing opinion shortly after the adoption of the Constitution that a senatorial election must take place by the joint action of both houses of the legislature acting separately.5 The inconveniences of this method were, however, soon obvious, and the practice was adopted in several States of electing senators in joint convention of the two legislative houses in case the houses acting separately had failed to make a choice.

8 Story on the Constitution, 5th ed., § 705.

Yulee v. Mallory, Taft's Senate Election Cases, continued by Furber, pp. 127, 129. In that case the report of the Committee on Privileges and Elections, which was presented by Mr. Bright, said, at p. 129: "The next objection is that it has not the forms of law usual in legislation, because it is not signed by the officers of each house or approved by the governor. It is a sufficient reply to state that the Constitution does not require the legislature to regulate the manner of election by law; it may be by resolution, either joint or several, or in any other method which commands the agreement of both houses of the legislature. The form of action being discretionary and the substance right, the objection becomes immaterial. The will of the two houses, when ascertained by vote in their respective chambers, is for this purpose a sufficient law, because they alone are empowered to prescribe the manner of choosing in such mode or by such means as they please. On this point a State Constitution can neither control nor modify that of the United

This method was

States, for the latter is the supreme law.' See also Lucas v. Faulkner, ibid., p. 626, infra, note 11, and Opinions of Justices, 45 N. H., 595; Opinions of Judges, 37 Vt., 665. Supra, § 55, over note 6.

5 Kent's Commentaries, vol. i, p. 226; The Federal Farmer, Letter 12. This was the contention of the Federalists of New York at the first senatorial election in that State, when they had a majority in the State senate, and their political opponents a majority in the lower house and in the joint assembly. They refused consequently to agree to an election by a joint assembly after a disagreement between the two houses, and proposed that each house should then be required to choose one of the two candidates previously chosen by the other. The assembly refused to agree to this, and consequently New York was not represented in the Senate at the first session of the First Congress (McMaster, The Political Depravity of the Fathers. Atlantic Monthly, vol. lxv, pp. 628629).

6 Kent's Commentaries, vol. i, pp. 226; Story on the Constitution, 5th ed., § 705.

approved by the Senate, which recognized an election by a majority of the members of both houses in joint convention as sufficient, although there was no concurrent majority by each house in favor of the successful candidate. It was, however, held that it was necessary that a quorum of each house should be present when the candidate was elected; since otherwise it could not be said that he was elected by the legislature. The matter was settled by Congress in 1866, by the passage of an act for the regulation of senatorial elections as follows:

"The legislature of each State which is chosen next preceding the expiration of the time for which any Senator was elected to represent such State in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a Senator in Congress. Such election shall be conducted in the following manner: Each house shall openly, by a viva-voce vote of each member present, name one person or Senator in Congress from such State, and the name of the person voted for, who receives a majority of the whole number of votes cast in each house, shall be entered on the journal of that house by the clerk

7 Simon Cameron's Case, Taft's Senate Election Cases, continued by Furber, p. 168.

8 Case of James Harlan, 1857, Taft's Senate Election Cases, continued by Furber, p. 139; but see the case of Fitch and Bright, 1857, ibid., p. 148. In Harlan's case, Senator Bayard of Delaware said: "On this state of facts, the question which I suppose to arise is, whether the legislature' of a State, under the language of the Federal Constitution delegating to the legislature the right to elect Senators of the United States, is to be taken to mean the individual members of the legislature or the body or bodies of which the legislature is composed. I suppose the term as used in the Constitution means the bodies of which the legislature is composed. The honorable Senator from Georgia, if I appreciate his argument, insists that the power being delegated to the legislature is vested in the members of the legislature, and that whenever a

majority of the members of the whole legislature under a law such as that existing in Iowa vote for a man he is elected, though one of the co-ordinate branches of that legislature may not vote for him, and may, as a body, refuse to go into an election. Sir, I hold it to be a principle of law which has. I think, no exception, that where two integral bodies are authorized to do an act, it cannot be done without the consent of those two integral bodies. They must both be present and act in the matter or there can be no validity in the act done. This is a universal law. I can call to mind no case where a contrary principle prevails, whether relating to legislative action or corporate action. Indeed, in reference to corporations, it has been decided over and over again that where there are two integral bodies who must concur in an act they must both be present and act upon the matter as bodies, not as individuals."

or secretary thereof; or if either house fails to give such majority to any person on that day, the fact shall be entered on the journal. At twelve o'clock meridian of the day following that on which proceedings are required to take place as aforesaid, the members of the two houses shall convene in joint assembly, and the journal of each house shall then be read, and if the same person has received a majority of all the votes in each house, he shall be declared duly elected Senator. But if the same person has not received a majority of the votes in each house, or if either house has failed to take proceedings as required by this section, the joint assembly shall then proceed to choose, by a viva-voce vote of each member present, a person for Senator, and the person who receives a majority of all the votes of the joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected. If no person receives such majority on the first day, the joint assembly shall meet at twelve o'clock meridian of each succeeding day during the session of the legislature, and shall take at least one vote, until a Senator is elected. Whenever on the meeting of the legislature of any State a vacancy exists in the representation of such State in the Senate, the legislature shall proceed, on the second Tuesday after meeting and organization, to elect a person to fill such vacancy, in the manner prescribed in the preceding section for the election of a Senator for a full term. Whenever during the session of the legislature of any State a vacancy occurs in the representation of such State in the Senate, similar proceedings to fill such vacancy shall be had on the second Tuesday after the legislature has organized and has notice of such vacancy. It shall be the duty of the executive of the State from which any Senator has been chosen to certify his election, under the seal of the State, to the President of the Senate of the United States. The certificate mentioned in the preceding section shall be countersigned by the secretary of state of the State."9

Under this statute, the Senate has held that an election is valid when made in a joint convention by a majority of the members of both houses, in the absence of a quorum of one of them.10

9U. S. R. S., §§ 14-19. The immediate cause of this legislation was John P. Stockton's Case, Taft's Senate Election Cases, continued by Furber, p. 226; where the Senate divided almost evenly upon the question whether a plurality of the joint assembly could elect.

10 Case of James B. Eustis, ibid., p. 464; Davidson v. Call, ibid., pp. 710712.

The last case overruled a decision on the subject by the State court; State ex rel. Fleming v. Crawford, 28 Fla., 441. See Spofford v. Kellogg; Taft's Senate Election Cases, continued by Furber, p. 471. It was the