"shall be ma within three years after the first meeting "of the congress of the United States, and within every "subsequent term of ten years, in such manner, as they "shall, by law, direct. The number of representatives "shall not exceed one for every thirty thousand; 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 eight, Rhode-Island and Providence "Plantations one, Connecticut five, New-York six, New"Jersey four, Pennsylvania eight, Delaware one, Mary"land six, Virginia ten, North-Carolina five, South"Carolina five, and Georgia three."

§ 630. The first apportionment thus made, being of a temporary and fugacious character, requires no commentary.1 The basis assumed was probably very nearly the same, which the constitution pointed out for all future apportionments, or, at least, of all the free persons in the states.2

It is obvious, that the question, how the apportionment should be made, was one, upon which a considerable diversity of judgment might, and probably would, exist. Three leading principles of apportionment would, at once, present themselves. One was to adopt the rule already existing, under the confederation; that is, an equality of representation and vote by each state, thus giving each state a right to send not less than two, nor more than seven representatives, and in the determination of questions, each state to have one vote. This would naturally receive encouragement from all those, who were attached to the confederation, and preferred

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a mere league of states, to a government in any degree national.1 And accordingly it formed, as it should seem, the basis of what was called the New-Jersey Plan." This rule of apportionment met, however, with a decided opposition, and was negatived in the convention at an early period, seven states voting against it, three being in its favour, and one being divided.

§ 631. Another principle might be, to apportion the representation of the states according to the relative property of each, thus making property the basis of representation. This might commend itself to some persons, because it would introduce a salutary check into the legislature in regard to taxation, by securing, in some measure, an equalization of the public burthens, by the voice of those, who were called to give most towards the common contributions. That taxation ought to go hand in hand with representation, had been a favourite theory of the American people. Under the confederation, all the common expenses were required to be borne by the states in proportion to the value of the land within each state. But it has been already seen, that this mode of contribution was extremely difficult and embarrassing, and unsatisfactory in practice, under the confederation. There do not, indeed,

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1 Journ. of Convention, 111, 153, 159.

2 Mr. Patterson's Plan, Journ. of Convention, 123; 4 Elliot's Debates, (Yates's Minutes,) 74; Id. 81; Id. 107 to 113, 116; 2 Pitk. Hist. 228, 229, 232.

3 Journ. of Convention, 11th June, 111. See also Id. 153, 154; 4 Elliot's Debates, (Yates's Minutes,) 68.

4 4 Elliot's Debates, (Yates's Minutes,) 68, 69; Journ. of Convention, 11th June, 111; Id. 5th July, 158; Id. 11th July, 169.

5 Confederation, Art. 8.

6 Journals of Congress, 17th Feb. 1783, vol. 8, p. 129 to 133; Id. 27th Sept. 1785, vol. 10, p. 328; Id. 18th April, 1783, vol. 8, p. 188; 1 Elliot's Debates, 56; 2 Elliot's Debates, 113; 1 Tuck. Black. Comm. App. 235, 236, 243 to 246; The Federalist, No. 30; Id. No. 21.

seem to be any traces in the proceedings of the convention, that this scheme had an exclusive influence with any persons in that body. It mixed itself up with other considerations, without acquiring any decisive preponderance. In the first place, it was easy to provide a remedial check upon undue direct taxation, the only species, of which there could be the slightest danger of unequal and oppressive levies. And it will be seen, that this was sufficiently provided for, by declaring, that representatives and direct taxes should be apportioned by the same ratio.

§ 632. In the next place, although property may not be directly aimed at, as a basis in the representation, provided for by the constitution, it cannot, on the other hand, be deemed to be totally excluded, as will presently be seen. In the next place, it is not admitted, that property alone can, in a free government, safely be relied on, as the sole basis of representation. It may be true, and probably is, that in the ordinary course of affairs, it is not the interest, or policy of those, who possess property, to oppress those, who want it. But, in every well-ordered commonwealth, persons, as well as property, should possess a just share of influence. The liberties of the people are too dear, and too sacred to be entrusted to any persons, who may not, at all times, have a common sympathy and common interest with the people in the preservation of their public rights, privileges, and liberties. Checks and balances, if not indispensable to, are at least a great conservative in, the operations of all free governments. And, perhaps, upon mere abstract theory, it cannot be justly affirmed, that either persons or property, numbers or wealth, can safely be trusted, as the final repositaries of the delegated powers of government.1 By apportioning influence among each, vigilance, caution, and mutual checks are naturally introduced, and perpetuated.

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§ 633. The third and remaining principle was, to apportion the representatives among the states according to their relative numbers. This had the recommendation of great simplicity and uniformity in its operation, of being generally acceptable to the people, and of being less liable to fraud and evasion, than any other, which could be devised. Besides; although wealth and property cannot be affirmed to be in different states, exactly in proportion to the numbers; they are not so widely separated from it, as, at a hasty glance, might be imagined. There is, if not a natural, at least a very common connexion between them; and, perhaps, an apportionment of taxes according to numbers is as equitable a rule for contributions according to relative wealth, as any, which can be practically obtained.

§ 634. The scheme, therefore, under all the circumstances, of making numbers the basis of the representation of the Union, seems to have obtained more general favour, than any other in the convention, because it had a natural and universal connexion with the rights and liberties of the whole people.

§ 635. But here a difficulty of a very serious nature arose. There were other persons in several of the states, than those, who were free. There were some persons, who were bound to service for a term of years; though these were so few, that they would scarcely vary the result of the general rule, in any important degree. There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states. It was necessary, therefore, to provide for these cases, though they were attended with no practical difficulty. There seems not to have been any objection in including, in the ratio of representation, persons bound to service for a term of years, and in excluding Indians not taxed. The real (and it was a very exciting) controversy was in regard to slaves, whether they should be included in the enumeration, or not.1 On the one hand, it was contended, that slaves were treated in the states, which tolerated slavery, as property, and not as persons. They were bought and sold, devised and transferred, like any other property. They had no civil rights, or political privileges. They had no will of their own; but were bound to absolute obedience to their masters. There was, then, no more reason for including them in the census of persons, than there would be for including any brute animals whatsoever. If theywere to be represented as property, the rule should beextended, soas to embrace all other property. It would be a gross inequality to allow representation for slaves to the southern states; for that, in effect, would be, to allow to their masters a predominant right, founded on mere property. Thus, five thousand free persons, in a slave-state, might possess the same power

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