The statute of New Jersey, to which I have referred as framed in 1790, was entitled “An Act to _prescribe the manner_ of appointing Senators of the United States and Electors of the President and Vice-President of the United States on the part of this State.” This was in pursuance of the National Constitution. It was the execution, on the part of the State, of the power with which it was invested to prescribe the manner of electing Senators. I have no purpose of raising any question with regard to the validity of this statute prescribing the election of Senators _in joint meeting_. Constant usage is in its favor; and yet I have no hesitation in saying that it has always seemed to me inconsistent with a just construction of the National Constitution. Senators are to be “chosen by the Legislature”; but the Legislature is composed of two separate bodies, defined by the State Constitution. Senators, therefore, should be chosen by the two bodies separately. So it has always seemed to me, and the practice of my own State is accordingly. In this opinion I am sustained by so eminent an authority as Chancellor Kent, who, after setting forth the usage, proceeds to express his dissent from it as a just construction of the National Constitution. His language is explicit:-- “I should think, if the question was a new one, that, when the Constitution directed that the Senators should be chosen by _the Legislature_, it meant, not the members of the Legislature _per capita_, but the Legislature in the true technical sense, being the two Houses acting in their separate and organized capacities, with the ordinary constitutional right of negative on each other’s proceedings.”[1] It is difficult to resist this conclusion, especially when it is considered that in any other way the smaller body is actually swamped by the larger. In a joint meeting the Senate loses its relative power. I adduce this, not for criticism, but only for illustration. Even admitting that the received usage of choosing Senators in joint meeting is consistent with the National Constitution, it is clear that it should not be extended; and this is the precise question before us. Contrary to all usage or precedent, and without any direct sanction in the Constitution or statutes of New Jersey, the Legislature has undertaken in joint meeting, not only to choose a Senator, but also to prescribe the manner of choosing him. Finding that it could not choose according to existing usage, it adopted the resolution declaring that the election should be determined by a minority of votes instead of a majority.