§ 686. The other power, the sole power of impeachment, has a far wider scope and operation. An impeachment, as described in the common law of England,

perfect. There must always exist some degree of inequality. Those, who framed, and those, who adopted the constitution, were, of course, fully acquainted with this necessary operation of the provision. In the senate, the states are entitled to a fixed number of senators; and, therefore, in regard to their representation, in that body, there is no consequential or incidental inequality arising. But, being represented in the house of representatives according to their respective numbers of people, it is unavoidable, that, in assigning to each state its number of members, the exact proportion of each, out of a given number, cannot always or often be expressed in whole numbers; that is to say, it will not often be found, that there belongs to a state exactly one tenth, or one twentieth, or one thirtieth of the whole house; and, therefore, no number of representatives will exactly correspond with the right of such state, or the precise share of representation, which belongs to it, according to its population.

"The constitution, therefore, must be understood, not as enjoining an absolute relative equality because that would be demanding an impossibility but as requiring of congress to make the apportionment of representatives among the several states, according to their respective numbers, as near as may be. That, which cannot be done perfectly, must be done in a manner as near perfection, as can be. If exactness cannot, from the nature of things, be attained, then the greatest practicable approach to exactness ought to be made.

"Congress is not absolved from all rule, merely because the rule of perfect justice cannot be applied. In such a case, approximation becomes a rule; it takes the place of that other rule, which would be preferable, but which is found inapplicable, and becomes, itself, an obligation of binding force. The nearest approximation to exact truth, or exact right, when that exact truth, or that exact right cannot itself be reached, prevails in other cases, not as matter of discretion, but as an intelligible and definite rule, dictated by justice, and conforming to the common sense of mankind; a rule of no less binding force in cases, to which it is applicable, and no more to be departed from, than any other rule or obligation.

"The committee understand the constitution, as they would have understood it, if it had said, in so many words, that representatives should be apportioned among the states, according to their respective numbers, as near as may be. If this be not its true meaning, then it has either given, on this most delicate and important subject, a rule, which is always impracticable, or else it has given no rule at all; because, if the rule be, that representatives shall be apportioned exactly according

is a presentment by the house of commons, the most solemn grand inquest of the whole kingdom, to the house of lords, the most high and supreme court of

to numbers, it is impracticable in every case; and if, for this reason, that cannot be the rule, then there is no rule whatever, unless the rule be, that they shall be apportioned, as near as may be.

"This construction, indeed, which the committee adopt, has not, to their knowledge, been denied; and they proceed in the discussion of the question before the senate, taking for granted, that such is the true and undeniable meaning of the constitution.

"The next thing to be observed is, that the constitution prescribes no particular process, by which this apportionment is to be wrought out. It has plainly described the end to be accomplished, viz. the nearest approach to relative equality of representation among the states; and whatever accomplishes this end, and nothing else, is the true process. In truth, if, without any process whatever, whether elaborate or easy, congress could perceive the exact proportion of representative power rightfully belonging to each state, it would perfectly fulfil its duty by conferring that portion on each, without reference to any process whatever. It would be enough, that the proper end had been attained. And it is to be remarked further, that, whether this end be attained best by one process or by another, it becomes, when each process has been carried through, not matter of opinion, but matter of mathematical certainty. If the whole population of the United States, the population of each state, and the proposed number of the house of representatives, be all given, then, between two bills apportioning the members among the several states, it can be told, with absolute certainty, which bill assigns to any and every state the number nearest to the exact proportion of that state; in other words, which of the two bills, if either, apportions the representatives according to the number of the states, respectively, as near as may be. If, therefore, a particular process of apportionment be adopted, and objection be made to the injustice or inequality of its result, it is, surely, no answer to such objection to say, that the inequality necessarily results from the nature of the process. Before such answer could avail, it would be necessary to show, either that the constitution prescribes such process, and makes it necessary, or that there is no other mode of proceeding, which would produce less inequality and less injustice. If inequality, which might have otherwise been avoided, be produced by a given process, then that process is a wrong one. It is not suited to the case, and should be rejected.

"Nor do the committee perceive how it can be matter of constitutional propriety or validity, or in any way a constitutional question, whether the process, which may be applied to the case, be simple or compound, one process or many processes; since, in the end, it may

criminal jurisdiction of the kingdom. The articles of impeachment are a kind of bill of indictment found by the commons, and tried by the lords, who are, in cases

always be seen, whether the result be that, which has been aimed at, namely, the nearest practicable approach to precise justice and relative inequality. The committee, indeed, are of opinion, in this case, that the simplest, and most obvious way of proceeding, is also the true and constitutional way. To them it appears, that in carrying into effect this part of the constitution, the first thing naturally to be done is, to decide on the whole number, of which the house is to be composed; as when, under the same clause of the constitution, a tax is to be apportioned among the states, the amount of the whole tax is, in the first place, to be settled.

"When the whole number of the proposed house is thus ascertained, and fixed, it becomes the entire representative power of all the people in the Union. It is then a very simple matter to ascertain how much of this representative power each state is entitled to by its numbers. If, for example, the house is to contain 240 members, then the number 240 expresses the representative power of all the states; and a plain calculation readily shows how much of this power belongs to each state. This portion, it is true, will not always, nor often, be expressed in whole numbers, but it may always be precisely exhibited by a decimal form of expression. If the portion of any state be seldom, or never, one exact tenth, one exact fifteenth, or one exact twentieth, it will still always be capable of precise decimal expression, as one tenth and two hundredths, one twelfth and four hundredths, one fifteenth and six hundredths, and so on; and the exact portion of the state, being thus decimally expressed, will always show, to mathematical certainty, what integral number comes nearest to such exact portion. For example, in a house consisting of two hundred and forty members, the exact mathematical proportion, to which her numbers entitle the state of NewYork, is 38.59; it is certain, therefore, that thirty-nine is the integral or whole number, nearest to her exact proportion of the representative power of the Union. Why, then, should she not have thirty-nine ? and why should she have forty? She is not quite entitled to thirty-nine; that number is something more than her right. But, allowing her thirtynine, from the necessity of giving her whole numbers, and because that is the nearest whole number, is not the constitution fully obeyed, when she has received the thirty-ninth number? Is not her proper number of representatives then apportioned to her, near as may be ? And is not the constitution disregarded, when the bill goes further, and gives

as

1 2 Hale's Pl. Comm. 150; 4 Black. Comm. 259; 2 Wilson's Law Lect. 165, 166.

of misdemeanors, considered, not only as their own peers, but as the peers of the whole nation. The origin and history of the jurisdiction of parliament, in

her a fortieth member? For what is such a fortieth member given? Not for her absolute numbers; for her absolute numbers do not entitle her to thirty-nine. Not for the sake of apportioning her members to her numbers, as near as may be, because thirty-nine is a nearer apportionment of members to numbers than forty. But it is given, say the advocates of the bill, because the process, which has been adopted, gives it. The answer is, no such process is enjoined by the constitution.

"The case of New York may be compared or contrasted with that of Missouri. The exact proportion of Missouri, in a general representation of two hundred and forty, is two and six tenths; that is to say, it comes nearer to three members, than to two, yet it is confined to two. But why is not Missouri entitled to that number of representatives, which comes nearest to her exact proportion? Is the constitution fulfilled as to her, while that number is withheld, and while, at the same time, in another state, not only is that nearest number given, but an additional member given also? Is it an answer, with which the people of Missouri ought to be satisfied, when it is said, that this obvious injustice is the necessary result of the process adopted by the bill? May they not say, with propriety, that since three is the nearest whole number to their exact right, to that number they are entitled, and the process, which deprives them of it, must be a wrong process? A similar comparison might be made between New-York and Vermont. The exact proportion, to which Vermont is entitled, in a representation of two hundred and forty, is 5.646. Her nearest whole number, therefore, would be six. Now, two things are undeniably true: first, that to take away the fortieth member from New-York would bring her representation nearer to her exact proportion, than it stands by leaving her that fortieth member. Secondly, that giving the member, thus taken from New-York, to Vermont, would bring her representation nearer to her exact right, than it is by the bill. And both these propositions are equally true of a transfer of the twenty-eighth member assigned by the bill to Pennsylvania, to Delaware, and of the thirteenth member assigned to Kentucky, to Missouri; in other words, Vermont has, by her numbers, more right to six members, than New-York has to forty. Delaware, by her numbers, has more right to two members, than Pennsylvania has to twenty-eight; and Missouri, by her numbers, has more right to three members, than Kentucky has to thirteen. Without disturbing the proposed number of the house, the mere changing of these three members, from and to the six states respectively, would

14 Black. Comm. 260.

cases of impeachment, are summarily given by Mr. Woodeson; but little can be gathered from it, which is now of much interest, and, like most other legal anti

bring the representation of each of the whole six nearer to their due proportion, according to their respective numbers, than the bill, in its present form makes it. In the face of this indisputable truth, how can it be said, that the bill apportions these members among those states, according to their respective number, as near as may be ?

"The principle, on which the proposed amendment is founded, is an effectual corrective for these, and all other equally great inequalities. It may be applied, at all times, and in all cases, and its result will always be the nearest approach to perfect justice. It is equally simple and impartial. As a rule of apportionment, it is little other than a transcript of the words of the constitution, and its results are mathematically certain. The constitution, as the committee understand it, says, representatives shall be apportioned among the states, according to their respective numbers of people, as near as may be. The rule adopted by the committee says, out of the whole number of the house, that number shall be apportioned to each state, which comes nearest to its exact right, according to its number of people.

"Where is the repugnancy between the constitution and the rule ? The arguments against the rule seem to assume, that there is a necessity of instituting some process adopting some number as the ratio, or as that number of people, which each member shall be understood to represent; but the committee see no occasion for any other process whatever, than simply the ascertainment of that quantum, out of the whole mass of the representative power, which each state may claim.

"But it is said, that, although a state may receive a number of representatives, which is something less than its exact proportion of representation, yet, that it can, in no case, constitutionally receive more. How is this proposition proved? How is it shown, that the constitution is less perfectly fulfilled by allowing a state a small excess, than by subjecting her to a large deficiency? What the constitution requires, is the nearest practicable approach to precise justice. The rule is approximation; and we ought to approach, therefore, on whichever side we can approach nearest.

"But there is still a more conclusive answer to be given to this suggestion. The whole number of representatives, of which the house is to be composed, is, of necessity, limited. This number, whatever it is, is that which is to be apportioned, and nothing else can be apportioned. This is the whole sum to be distributed. If, therefore, in making the apportionment, some state receive less than their just share, it must necessarily follow, that some other states have received more than their