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 circum presentatives allotted in this bill; for, trying the several ratios of 29, 30, 31, 32, 33, the allotments would be as follows: "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 favour 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, and Georgia; and that of 27,770 to the eight others; namely, stances of each state. Any general regulation would have worked with some inequality. §684. The next clause is, that "the house of re"presentatives shall choose their speaker, and other Vermont, New-Hampshire, Massachusetts, Connecticut, New-Jersey, Delaware, North Carolina, and South Carolina. As follows: And 68,444 2 Vermont, 432,880 85,532 352,915 11 New-Hampshire, 141,823 5 FIZI 278,513 Rhode Island, 68,705 2 Delaware, 206,236 630,558 475,327 "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 num., ber 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 be "officers, and shall have the sole power of impeach"ment." § 685. Each of these privileges is of great practical value and importance. In Great Britain the house of came 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 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: 3,636,312 119 202,230 202,230 "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 commons elect their own speaker; but he must be approved by the king. This approval is now altogether a matter of course; but anciently, it seems, the king intimated his wish previously, in order to avoid the necessity of a refusal; and it was acceded to. The very language used by the speakers in former times, in order to procure the approval of the crown, was such as would not now be tolerated; and indicated, at least, 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 only; it will resemble the real one, whenever the fractions happen to be pretty equal through the whole states. The numbers of our census happen, by accident, to give the fractions all very small or very great, so as to produce the strongest case of inequality that could possibly have occurred, and which may never occur again. The probability is, that the fractions will generally descend gradually from 39,999 to 1. The inconvenience, then, of large unrepresented fractions attends both constructions; and, 1 1 Black. Comm. 181. 2 Com. Dig. Parliament, E. 5; 4 Inst. 8, Lex. Parl. ch. 12, p. 74. a disposition to undue subserviency. A similar power of approval existed in the royal governors in many of the colonies before the revolution. The exclusive while the most obvious construction is liable to no other, that of the bill incurs many and grievous ones. "1. If you permit the large fraction in one state to choose a representative for one of the small fractions in another state, you take from the latter its election, which constitutes real representation, and substitute a virtual representation of the disfranchised fractions; and the tendency of the doctrine of virtual representation has been too well discussed and appreciated by reasoning and resistance, on a former great occasion, to need developement now. "2. The bill does not say, that it has given the residuary representatives to the greatest fractions; though, in fact, it has done so. It seems to have avoided establishing that into a rule, lest it might not suit on another occasion. Perhaps it may be found the next time more convenient to distribute them among the smaller states; at another time among the larger states; at other times according to any other crotchet, which ingenuity may invent, and the combination of the day give strength to carry; or they may do it arbitrarily, by open bargain and cabal. In short, this construction introduces into congress a scramble, or a vendue for the surplus members. It generates waste of time, hot blood, and may, at some time, when the passions are high, extend a disagreement between the two houses, to the perpetual loss of the thing, as happens 1 See Christian's Note to 1 Black. Comm. 181; Com. Dig. Parliament, E. 5.; 1 Wilson's Law Lect. 159, 160; 4 Co. Inst. 8. |