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In the next place,

ascendancy of passion over reason. the larger the number, the greater will be the proportion of members of limited information and weak capacities. Now, it is precisely on characters of this description, that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway, as if a sceptre had been placed in his single hand. On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning; and passion the slave of sophistry and declamation. The people can never err more than in supposing, that in multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will for ever admonish them, that, on the contrary, after securing a sufficient number for the purposes of safety, of local information, and of diffusive sympathy, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic; but the soul, that animates it, will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs, by which its motions are directed."1

1 The Federalist, No. 58. Mr. Ames, in a debate in congress, in 1789, on amending the constitution in regard to representation, observed," By enlarging the representation, we lessen the chance of selecting men of the greatest wisdom and abilities; because small districts may be conducted by intrigue; but in large districts nothing but real dignity of character can secure an election."* Unfortunately, the experience of

* 2 Lloyd's Debates, 183.

§ 673. As a fit conclusion of this part of the subject it may be remarked, that congress, at its first session in 1789, in pursuance of a desire expressed by several of the state conventions, in favour of further declaratory and restrictive amendments to the constitution, proposed twelve additional articles. The first was on the very subject now under consideration, and was expressed in the following terms: "After the first enumeration required by the first article of the constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred; after which the proportion shall be so regulated by congress, that there shall not be less than one hundred representatives, nor less than one for every forty thousand persons, until the number of representatives shall amount to two hundred; after which, the proportion shall be so regulated by congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand." This amendment was never ratified by a competent number of the states to be incorporated into the constitution. It was probably thought, that the whole subject was safe, where it was already lodged; and that congress ought to be left free to exercise a sound discretion, according to the future exigencies of the nation, either to increase, or diminish the number of representatives.

§ 674. There yet remain two practical questions of no inconsiderable importance, connected with the

the United States has not justified the belief, that large districts will always choose men of the greatest wisdom, abilities, and real dignity. 1 Journ. of Convention, &c. Suppt. 466 to 481.

2 The debates in congress on this amendment will be found in 2 Lloyd's Debates, 182 to 194; Id. 250.

clause of the constitution now under consideration. One is, what are to be deemed direct taxes within the meaning of the clause. The other is, in what manner the apportionment of representatives is to be made. The first will naturally come under review in examining the powers of congress, and the constitutional limitations upon those powers; and may, therefore, for the present, be passed over. The other was a subject of much discussion at the time, when the first apportionment was before congress after the first census was taken; and has been recently revived with new and increased interest and ability. It deserves, therefore, a very deliberate examination.


§675. The language of the constitution is, that "representatives and direct taxes shall be apportioned among the several states, &c. according to their "respective numbers;" and at the first view it would not seem to involve the slightest difficulty. A moment's reflection will dissipate the illusion, and teach us, that there is a difficulty intrinsic in the very nature of the subject. In regard to direct taxes, the natural course would be to assume a particular sum to be raised, as three millions of dollars; and to apportion it among the states according to their relative numbers. But even here, there will always be a very small fractional amount incapable of exact distribution, since the numbers in each state will never exactly coincide with any common divisor, or give an exact aliquot part for each state without any remainder. But, as the amount may be carried through a long series of descending money fractions, it may be ultimately reduced to the smallest fraction of any existing, or even imaginary coin.

§ 676. But the difficulty is far otherwise in regard to representatives. Here, there can be no subdivision of the unit; each state must be entitled to an entire representative, and a fraction of a representative is incapable of apportionment. Yet it will be perceived at once, that it is scarcely possible, and certainly is wholly improbable, that the relative numbers in each state should bear such an exact proportion to the aggregate, that there should exist a common divisor for all, which should leave no fraction in any state. Such a case never yet has existed; and in all human probability it never will. Every common divisor, hitherto applied, has left a fraction greater, or smaller, in every state;1 and what has been in the past must continue to be for the future. Assume the whole population to be three, or six, or nine, or twelve millions, or any other number; if you follow the injunctions of the constitution, and attempt to apportion the representatives according to the numbers in each state, it will be found to be absolutely impossible. The theory, however true, becomes practically false in its application. Each state may have assigned a relative proportion of representatives up to a given number, the whole being divisible by some common divisor; but the fraction of population belonging to each beyond that point is left unprovided for. So that the apportionment is, at best, only an approximation to the rule laid down by the constitution, and not a strict compliance with the rule. The fraction in one state may be ten times as great, as that in another; and so may differ in each state in any assignable mathematical proportion. What then is to be done? Is the constitution to be wholly disre

1 See 5 Marshall's Life of Washington, ch. 5, p. 319.

garded on this point? Or is it to be followed out in its true spirit, though unavoidably differing from the letter, by the nearest approximation to it? If an additional representative can be assigned to one state beyond its relative proportion to the whole population, it is equally true, that it can be assigned to all, that are in a similar predicament. If a fraction admits of representation in any case, what prohibits the application of the rule to all fractions? The only constitutional limitation seems to be, that no state shall have more than one representative for every thirty thousand persons. Subject to this, the truest rule seems to be, that the apportionment ought to be the nearest practical approximation to the terms of the constitution; and the rule ought to be such, that it shall always work the same way in regard to all the states, and be as little open to cavil, or controversy, or abuse, as possible.

§ 677. But it may be asked, what are the first steps to be taken in order to arrive at a constitutional apportionment? Plainly, by taking the aggregate of population in all the states, (according to the constitutional rule,) and then ascertain the relative proportion of the population of each state to the population of the whole. This is necessarily so in regard to direct taxes;1 and

1 "By the constitution," says Mr. Chief Justice Marshall in delivering the opinion of the court, "direct taxation, in its application to states, shall be apportioned to numbers. Representation is not made the foundation of taxation. If, under the enumeration of a representative for every 30,000 souls, one state had been found to contain 59,000 and another 60,000, the first would have been entitled to only one representative, and the last to two. Their taxes, however, would not have been as one to two, but as fifty-nine to sixty."* This is perfectly correct, because the constitution prohibits more than one representative for every 30,000. But if one state contain 100,000 souls, and another

* Loughborough v. Blake, 5 Wheaton's R. 317, 320.

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