The Committee on the Judiciary, to whom were referred the credentials of John P. Stockton, claiming to have been elected a Senator from the State of New Jersey for six years from the fourth day of March, eighteen hundred and sixty-five, together with the protest of certain members of the Legislature of said State against the validity of his election, submit the following report:

The only question involved in the decision of Mr. Stockton's right to a seat is whether an election, by a plurality of votes of the members of the legislature of New Jersey, in joint meeting assembled, in pursuance of a rule adopted by the joint meeting itself, is valid. The protestants insist that it is not, and they deny Mr. Stockton's right to a seat, because, as they say, he was not appointed by a majority of the votes of the joint meeting of the legislature.

The legislative power of the State of New Jersey is vested by the State constitution in a senate and general assembly, which are required, for legislative purposes, to meet separately; but which, for the appointment of various officers, are required to assemble in joint meeting; and when so assembled, are, by the constitution itself, styled the "legislature in joint meeting."

The constitution of New Jersey does not prescribe the manner of choosing United States senators; as, indeed, it could not, the Constitution of the United States having vested that power, in the absence of any law of Congress, exclusively in the legislature; but it does constitute the two houses one body for the purpose of appointing certain State officers. The statute of New Jersey declares that "United States senators, on the part of the State, shall be appointed by the senate and general assembly in joint meeting assembled;" but it does not prescribe any rules for the government of the joint meeting, nor declare the manner of election.

The practice in New Jersey has been for the joint meeting to prescribe the rules for its own government.

In 1794 fifteen rules were adopted, the first two of which are as follows:

1. That the election of State officers during the present session be viva voce, unless when otherwise ordered; and that all officers be put in nomination at least one day before their election.

2. That the chairman shall not be entitled to vote, except in case of a tie, and then to have a casting vote.

The other thirteen rules related chiefly to the method conducting the proceedings. Each joint meeting which has since assembled has adopted its own rules, usually those of the proceeding joint meeting, sometimes, however, with additions or exceptions.

In 1851 the following additional rule was adopted:

"Resolved, That no person shall be elected to any office, at any joint meeting during the present session, unless there be a majority of all the members elected personally present, and agreeing thereto."

In 1855 the joint meeting, after adopting the fifteen rules of the preceding joint meeting, added the following:

"That all candidates for office, upon receiving a majority of the votes cast by this joint meeting, shall be declared duly elected."

The joint meeting of 1861 adopted the rules of the preceding joint meeting for its own government, among which were the following:

1. That the election of State officers during the present session be viva voce, unless when otherwise ordered.

15. That in all questions the chairman of the joint meeting be called upon to vote in his turn, as one of the representatives in the senate or assembly; but that he have no casting vote as chairman.

16. That all candidates for office, upon receiving a majority of the votes cast by this joint meeting, shall be declared to be duly elected.

The same rules were adopted by each joint meeting from 1861 to 1865.

The joint meeting which assembled February 15, 1865, and at an adjourned session, of which Mr. Stockton was appointed senator, adopted, at its first meeting, the rules of the preceding joint meeting, except the sixteenth rule, in lieu of which the following was adopted:

"Resolved, That no candidate shall be declared elected unless upon receiving a majority of the votes of all the members elected to both houses of the legislature."

After having appointed various officers under the rules which had been adopted at the assembling of the joint meeting, the following rule was adopted:

"Resolved, That the vote for county judges and commissioners of deeds be taken by acclamation, and that the counties in which vacancies exist be called in alphabetical order."

Acting under this rule, quite a number of officers were appointed by acclamation. Not completing its business, the joint meeting adjourned from time to time till March 15, when the following rule was adopted:

"Resolved, That the resolution that no candidate shall be declared elected unless upon receiving a majority of the votes of all the members elected to both houses of the legislature be rescinded, and that any candidate receiving a plurality of votes of the members present shall be declared duly elected."

Every member of both houses, eighty-one in all, was present and voting when the above resolution was passed, and it was carried by a vote of forty-one in the affirmative, of whom eleven were senators and thirty representatives, to forty in the negative, of whom ten were senators and thirty representatives. The joint meeting then proceeded to the election of a United States senator, with the following result:

Hon. John P. Stockton forty votes; Hon. J. C. Ten Eyck thirty-seven votes; J. W. Wall one vote; P. D. Vroom one vote; F. T. Frelinghuysen one vote; H. S. Little one vote.

Whereupon John P. Stockton, having received a plurality of all the votes cast, was declared duly elected. The joint meeting then proceeded to the election of various other officers, having completed which, it rose.

The credentials of Mr. Stockton are under the great seal of State, signed by the governor and in due form. No objection appears to have been made at the time to the election. Its validity is now called in question by a protest dated March 20, 1865, and signed by eight senators and thirty members of the general assembly. The Constitution of the United States declares that the Senate of the United States "shall be composed of two senators from each State, chosen by the legislature thereof," and that "the times, places, and manner of holding election for senators and representatives shall be prescribed in each State by the legislature thereof," but Congress may at any time by law make or alter such regulations, except as to the places of choosing senators."

The right to choose United States senators in a joint meeting of the two houses which compose the legislature of a State has been too long and too frequently exercised to be now brought in question. This has been the manner of election in some States from the beginning, and is now the manner in most of them.

For the purpose of choosing United States senators the joint meeting of the two houses is regarded as the legislature, and especially would this be so in New Jersey, where the joint meeting is by the constitution of the State denominated a legislature. It has uniformly been held that when the two branches of a legislature meet in joint convention to elect a United States senator they are merged into one, and act as one body, so that an election may be effected against the entire vote of the members of one house if the person voted for receive the requisite number of votes from members of the other. It being, then, settled that the two houses of a legislature in joint meeting assembled constitute the legislature, vested by the Constitution of the United States with authority, acting as one body, to elect a senator, the question is, Did the joint meeting of the senate and general assembly of New Jersey, duly convened, in pursuance of a resolution previously concurred in by each house separately, choose John P. Stockton United States senator?

That is was competent for a plurality to elect, if a law to that effect had been prescribed by competent authority, will hardly be questioned. This is the rule very generally, if not universally, adopted in the election of members of the house of representatives, who are "chosen every second year by the people of the several States," and no one questions the validity of the election of a representative by a plurality vote when the law authorizes a plurality to elect. The laws of New Jersey are silent on this subject, but they do authorize a joint meeting of the two houses of the legislature to appoint a senator, and it has been the uniform practice of this joint meeting since the foundation of the government to prescribe the rules for its own government. These rules as to the number of votes necessary to effect an election have varied at different times, sometimes requiring a majority of all the members elected to both houses of the legislature, sometimes a majority only of those present, and in the case under consideration only a plurality.

Suppose, under the rule first stated, but seventy-nine members had been present in the joint meeting, and forty had voted for the same persons, would he have been elected? and if not, why not? Seventy-nine out of eighty-one would have constituted a quorum, and forty would have been a majority of those present. The only reason why such a vote would not have made an election, would be the existence of the rule adopted by the joint meeting, declaring that "no candidate should be elected unless receiving a majority of the votes of all the members elected to both houses of the legislature." While that rule was in force, no presiding officer would have thought of declaring a candidate elected, nor would any candidate have supposed himself elected, because he received a majority of the votes cast, unless such majority was a majority of all the members elected to the legislature. Under the other rule, "that a person receiving a majority of the votes of those present should be declared elected," who would doubt the validity of an election by thirty-one out of sixty-votes, if only so many had been cast? If the joint meeting had the right to prescribe, at one time, that it should require a majority of all elected to the legislature to elect, at another time that a majority of those present might elect, and at still another time that elections might be had by acclamation, it had the right to prescribe that a plurality should elect; and when any candidate received a plurality he thereupon became elected, not simply by the will of those who voted for him, but by the will of the joint meeting, which had previously, by a majority vote, resolved that such plurality should elect.

It might be urged in this case, with much plausibility, that inasmuch as the constitution of New Jersey recognizes the two houses in joint meeting as a legislature, that such joint meeting was the very body on whom the Constitution of the United States had conferred the power to prescribe "the times, places, and manner of holding elections for senators;" but your committee prefer placing the authority of the joint meeting to prescribe the plurality rule on the broader ground, that in the absence of any law, either of Congress of the State on the subject, a joint meeting of the two houses of a legislature, duly assembled, and vested with authority to elect a United States senator, has a right to prescribe that a plurality may elect, on the principle that the adoption of such a rule by a majority vote in the first instance makes the act, subsequently done in pursuance of such majority vote, its own.

The committee recommend for adoption the following resolution:

Resolved, That John P. Stockton was duly elected, and is entitled to his seat, as a senator from the State of New Jersey, for the term of six years from the 4th day of March, 1865.

• Report on the Contested Election of John P. Stockton (introduced on 1866-01-30 10:00:00 - CREATE_FROM - e844554) [This document]
• Resolution on the Contested Election of John P. Stockton (introduced on 1866-01-30 10:00:00 - CREATE_FROM - e682049)

• Report on the Contested Election of John P. Stockton (introduced on 1866-01-30 10:00:00 - CREATE_FROM - e844554) [This document] [view current proposal at this moment]
  • Motion to Print the Report and Papers (introduced on 1866-01-30 10:00:00 - PROCEDURE - e682054) [view current proposal at this moment]
    • None (introduced on 1866-01-30 10:00:00 - ADOPT_PROPOSAL - e682056) [view current proposal at this moment]
  • Motion to Consider the Contested Election Case of John P. Stockton (introduced on 1866-03-22 10:00:00 - PROCEDURE - e682078) [view current proposal at this moment]
    • None (introduced on 1866-03-22 10:00:00 - ADOPT_PROPOSAL - e682079) [view current proposal at this moment]
  • Motion for Unanimous Consent to Read the Committee Report (introduced on 1866-03-22 10:00:00 - PROCEDURE - e862775) [view current proposal at this moment]
    • None (introduced on 1866-03-22 10:00:00 - ADOPT_PROPOSAL - e862776) [view current proposal at this moment]