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there is no reason to say, that it can, or ought to be otherwise in regard to representatives; for that would be to contravene the very injunctions of the constitution, which require the like rule of apportionment in each case. In the one, the apportionment may be run down below unity; in the other, it cannot. But this does not change the nature of the rule, but only the extent of its application.

§ 678. In 1790, a bill was introduced into the house of representatives, giving one representative for every thirty thousand, and leaving the fractions unrepresented; thus producing an inequality, which was greatly complained of. It passed the house; and was amended in the senate by allowing an additional representative to the states having the largest fractions. The house finally concurred in the amendment, after a warm debate. The history of these proceedings is summarily stated by the biographer of Washington, as follows: "Construing," says he, "the constitution to authorize a process, by which the whole number of representatives should be ascertained on the whole population of the United States, and afterwards apportioned among the several states according to their respective numbers, the senate applied the number thirty thousand, as a divisor, to the total population, and taking the quotient, which was one hundred and twenty, as the number of representatives given by the ratio, which had been adopted in the house, where the bill originated, they apportioned that number among the several states by that ratio, until as many representatives, as it

200,000, there is no logic, which, consistently with common sense, or justice, could, upon any constitutional apportionment, assign three representatives to one, and seven to the other, any more than it could of a direct tax the proportion of three to one, and seven to the other.

would give, were allotted to each. The residuary members were then distributed among the states having the highest fractions. Without professing the principle, on which this apportionment was made, the amendment of the senate merely allotted to the states respectively the number of members, which the process just mentioned would give. The result was a more equitable apportionment of representatives to population, and a still more exact accordance, than was found in the original bill, with the prevailing sentiment, which, both within doors and without, seemed to require, that the popular branch of the legislature should consist of as many members, as the fundamental laws of the government would admit. If the rule of construing that instrument was correct, the amendment removed objections, which were certainly well founded, and was not easily assailable by the advocates of a numerous representative body. But the rule was novel, and overturned opinions, which had been generally assumed, and were supposed to be settled. In one branch. of the legislature, it had been already rejected; and in the other, the majority in its favour was only one."

§ 679. The debate in the two houses, however, was purely political, and the division of the votes purely geographical; the southern states voting against it, and the northern in its favour. The president returned the bill with two objections. "1. That the constitu


1 The words of the bill were, "That from and after the the third day of March, 1793, the house of representatives shall be composed of one hundred and twenty-seven members, elected within the several states according to the following apportionment, that is to say, within the state of New-Hampshire, five, within the state of Massachusetts, sixteen," &c. &c. enumerating all the states.

25 Marshall's Life of Washington, ch. 5, p. 321, 322.

3 4 Jefferson's Correspondence, 466.

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tion has prescribed, that representatives shall be apportioned among the several states according to their respective numbers; and there is no proportion or divisor, which, applied to the respective numbers of the states, will yield the number and 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." The bill was accordingly lost, two thirds of the house not being in its favour. It is understood, that the president's cabinet was greatly divided on the question.2

§680. 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

15 Marshall's Life of Washington, ch. 5, p. 324, note. 2 Id. p. 323; 4 Jefferson's Correspondence, 466.

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.

§ 681. This question, which a learned commentator has supposed to be now finally at rest,1 has been (as has been already intimated) recently revived and discussed with great ability. Instead 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.9

1 Rawle on Constitution, 43; 5 Marshall's Life of Washington, 324. 2 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 NewHampshire 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 NewHampshire shall have three members, Massachusetts sixteen, &c. We are, therefore, to find by experiment what has been the principle of the

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

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

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:

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"The first member of the clause of the constitution above cited, is express that 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 of each state, will give to them the number of re

1 Journal of Convention, 217, 237, 352.

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