Page images
PDF
EPUB

allotment of representatives proposed by the bill. 2. The Constitution has also provided that the number of representatives shall not exceed one for thirty thousand, which restriction is by the context, and by fair and obvious construction, to be applied to the several and respective numbers of the States, and the bill has allotted to eight of the States more than one for thirty thousand.” 1 The bill was accordingly lost, two thirds of the House not being in its favor. It is understood that the President's cabinet was greatly divided on the question.2

§ 682. The second reason assigned by the President against the bill was well founded in fact, and entirely conclusive. The other, to say the least of it, is as open to question as any one which can well be imagined in a case of real difficulty of construction. It assumes, as its basis, that a common ratio, or divisor, is to be taken and applied to each State, let the fractions and inequalities left be whatever they may. Now, this is a plain departure from the terms of the Constitution. It is not there said

that any such ratio shall be taken. The language is, that the representatives shall be apportioned among the several States according to their respective numbers, that is, according to the proportion of the whole population of each State to the aggregate of all the States. To apportion according to a ratio short of the whole number in a State, is not an apportionment according to the respective numbers of the State. If it is said that it is impracticable to follow the meaning of the terms literally, that may be admitted; but it does not follow that they are to be wholly disregarded, or language substituted essentially different in its import and effect. If we must depart, we must depart as little as practicable. We are to act on the doctrine of cy pres, or come as nearly as possible to the rule of the Constitution. If we are at liberty to adopt a rule varying from the terms of the Constitution, arguing ab inconvenienti, then it is clearly just as open to others to reason on the other side from opposing inconvenience and injustice.

3

§ 683. This question, which a learned commentator has supposed to be now finally at rest, has been (as has been already intimated) recently revived and discussed with great ability. In

1 5 Marshall's Life of Washington, ch. 5, p. 324, note.

2 Id. p. 323; 4 Jefferson's Correspondence, 466.

8 Rawle on Constitution, 43; 5 Marshall's Life of Washington, 324.

stead of pursuing my own reasoning upon this subject, it will be far more satisfactory to give to the reader, in a note, the arguments on each side, as they are found collected in the leading reports and documents now forming a portion of contemporary history.1

§ 684. The next clause of the second section of the first article is: "When vacancies happen in the representation of any State, the executive authority thereof shall issue writs of election to fill such vacancies."

§ 685. The propriety of adopting this clause does not seem to have furnished any matter of discussion, either in or out of the

1 Mr. Jefferson's opinion, given on the apportionment bill in 1792, presents all the leading reasons against the doctrine of apportioning the representatives in any other manner than by a ratio without regard to fractions. It is as follows:

"The Constitution has declared that 'representatives and direct taxes shall be apportioned among the several States according to their respective numbers'; that the number of representatives shall not exceed one for every 30,000, but each State shall have, at least, one representative; and, until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts,' &c.

"The bill for apportioning representatives among the several States, without explaining any principle at all which may show its conformity with the Constitution or guide future apportionments, says, that New Hampshire shall have three members, Massachusetts sixteen, &c. We are, therefore, to find by experiment what has been the principle of the bill; to do which, it is proper to state the Federal or representable numbers of each State, and the members allotted to them by the bill. They are as follows: -

[graphic][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed]

that

"The first member of the clause of the Constitution above cited is express, representatives shall be apportioned among the several States according to their respective numbers; that is to say, they shall be apportioned by some common ratio, for proportion and ratio are equivalent words; and it is the definition of proportion among numbers, that they have a ratio common to all, or, in other words, a common divisor. Now, trial will show that there is no common ratio or divisor which, applied to the numbers

convention. It was obvious that the power ought to reside somewhere; and must be exercised either by the State or national government, or by some department thereof. The friends of State powers would naturally rest satisfied with leaving it with the State executive; and the friends of the national government would acquiesce in that arrangement, if other constitutional provisions existed sufficient to preserve its due execution. The provision, as it stands, has the strong recommendation of public convenience, and facile adaptation to the particular local circumstances of each State. Any general regulation would have worked with some inequality.

of each State, will give to them the number of representatives allotted in this bill; for, trying the several ratios of 29, 30, 31, 32, 33, the allotments would be as follows:

[graphic][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed]

"It will be said, that, though for taxes there may always be found a divisor which will apportion them among the States according to numbers exactly, without leaving any remainder; yet for representatives there can be no such common ratio, or divisor, which, applied to the several numbers, will divide them exactly, without a remainder or fraction. I answer, then, that taxes must be divided exactly, and representatives as nearly as the nearest ratio will admit, and the fractions must be neglected; because the Constitution wills, absolutely, that there be an apportionment, or common ratio; and if any fractions result from the operation, it has left them unprovided for. In fact, it could not but foresee that such fractions would result, and it meant to submit to them. It knew they would be in favor of one part of the Union at one time and of another part of it at another, so as, in the end, to balance occasional inequalities. But, instead of such a single common ratio, or uniform divisor, as prescribed by the Constitution, the bill has applied two ratios, at least, to the different States, to wit, that of 30,026 to the seven following: Rhode Island, New York, Pennsylvania, Maryland, Virginia, Kentucky,

1 Journal of Convention, 217, 237, 352.

§ 686. The next clause is, that "the House of Representatives shall choose their speaker and other officers, and shall have the sole power of impeachment."

and Georgia; and that of 27,770 to the eight others; namely, Vermont, New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, North Carolina, and South Carolina. As follows:

[graphic][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed]

"And if two ratios may be applied, then fifteen may, and the distribution become arbitrary, instead of being apportioned to numbers.

"Another member of the clause of the Constitution, which has been cited, says, 'the number of representatives shall not exceed one for every 30,000, but each State shall have at least one representative.' This last phrase proves that it had in contemplation, that all fractions, or numbers below the common ratio, were to be unrepresented; and it provides specially that, in the case of a State whose whole number shall be below the common ratio, one representative shall be given to it. This is the single instance where it allows representation to any smaller number than the common ratio, and by providing specially for it in this, shows it was understood that, without special provision, the smaller number would, in this case, be involved in the general principle.

"The first phrase of the above citation, that 'the number of representatives shall not exceed one for every 30,000,' is violated by this bill, which has given to eight States a number exceeding one for every 30,000, to wit, one for every 27,770.

'In answer to this, it is said that this phrase may mean either the thirty thousands in each State, or the thirty thousands in the whole Union; and that, in the latter case, it serves only to find the amount of the whole representation, which, in the present state of population, is one hundred and twenty members. Suppose the phrase might bear both meanings, which will common-sense apply to it? Which did the universal understanding of our country apply to it? Which did the Senate and Representatives apply to it during the pendency of the first bill, and even till an advanced stage of this second bill, when an ingenious gentleman found out the doctrine of fractions, a doctrine so difficult and inobvious as to be rejected at first sight by the very persons who afterwards became its most zealous advocates? The phrase stands in the midst of a number of others, every one of which relates to States in their separate capacity. Will not plain common-sense, then, understand it, like the rest of its context, to relate to States in their separate capacities?

"But if the phrase of one for 30,000 is only meant to give the aggregate of representatives, and not at all to influence their apportionment among the States, then the one hundred and twenty being once found, in order to apportion them we must recur to the former rule, which does it according to the numbers of the respective States; and we must take the nearest common divisor as the ratio of distribution, that is to say, that divisor which, applied to every State, gives to them such numbers as, added together, come

[blocks in formation]

§ 687. Each of these privileges is of great practical value and importance. In Great Britain the house of commons elect their

nearest to 120. This nearest common ratio will be found to be 28,858, and will distribute 119 of the 120 members, leaving only a single residuary one. It will be found, too, to place 96,648 fractional numbers in the eight northernmost States, and 105,582 in the southernmost. The following table shows it :

[graphic][subsumed][ocr errors][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed]

"Whatever may have been the intention, the effect of rejecting the nearest divisor, (which leaves but one residuary member,) and adopting a distant one, (which leaves eight,) is merely to take a member from New York and Pennsylvania each, and give them to Vermont and New Hampshire. But it will be said, 'This is giving more than one for 30,000.' True; but has it not been just said, that the one for 30,000 is prescribed only to fix the aggregate number, and that we are not to mind it when we come to apportion them among the States; that for this we must recur to the former rule, which distributes them according to the numbers in each State? Besides, does not the bill itself apportion among seven of the States by the ratio of 27,770, which is much more than one for 30,000?

"Where a phrase is susceptible of two meanings, we ought certainly to adopt that which will bring upon us the fewest inconveniences. Let us weigh those resulting from both constructions.

'From that giving to each State a member for every 30,000 in that State, results the single inconvenience, that there may be large fractions unrepresented. But it being a mere hazard on which States this will fall, hazard will equalize it in the long run.

“From the other results exactly the same inconvenience. A thousand cases may be imagined to prove it. Take one; suppose eight of the States had 45,000 inhabitants each, and the other seven 44,999 each, that is to say, each one less than each of the others, the aggregate would be 674,993, and the number of representatives, at one for 30,000 of the aggregate, would be 22. Then, after giving one member to each State, distribute the seven residuary members among the seven highest fractions; and though the difference of population be only an unit, the representation would be the double. Here a single inhabitant the more would count as 30,000. Nor is this case imaginable

« PreviousContinue »