quities, it is involved in great obscurity.1 To what classes of offenders it applies, will be more properly an inquiry hereafter. In the constitution of the United

just share. If there be one state in the Union with less than its right, some other state has more than its right, so that the argument, whatever be its force, applies to the bill in its present form, as strongly as it can ever apply to any bill.

"But the objection most usually urged against the principle of the proposed amendment is, that it provides for the representation of fractions. Let this objection be examined and considered. Let it be ascertained, in the first place, what these fractions, or fractional numbers, or residuary numbers, really are, which, it is said, will be represented, should the amendment prevail.

"A fraction is the broken part of some integral number. It is, therefore, a relative or derivative idea. It implies the previous existence of some fixed number, of which it is but a part, or remainder. If there be no necessity for fixing or establishing such previous number, then the fraction, resulting from it, is itself no matter of necessity, but matter of choice or of accident. Now the argument, which considers the plan proposed in the amendment, as a representation of fractions, and therefore unconstitutional, assumes, as its basis, that, according to the constitution, every member of the house of representatives represents, or ought to represent, the same, or nearly the same, number of constituents: that this number is to be regarded, as an integer; and any thing less than this is, therefore, called a fraction, or a residuum, and cannot be entitled to a representative. But all this is not the provision of the constitution of the United States. That constitution contemplates no integer, or any common number for the constituents of a member of the house of representatives. It goes not at all into these subdivisons of the population of a state. It provides for the apportionment of representatives among the several states, according to their respective numbers, and stops there. It makes no provision for the representation of districts, of states, or for the representation of any portion of the people of a state, less than the whole. It says nothing of ratios or of constituent numbers. All these things it leaves to state legislation. The right, which each state possesses to its own due portion of the representative power, is a state right, strictly; it belongs to the state, as a state; and it is to be used and exercised, as the state may see fit, subject only to the constitutional qualifications of electors. In fact, the states do make, and always have made, different provisions for the exercise of this power. In some, a single member is chosen for a certain defined district; in others, two or three members are chosen

12 Woodeson's Lect. 40, p. 596, &c.

States, the house of representatives exercises the functions of the house of commons in regard to impeachments; and the senate (as we shall hereafter see) the

for the same district; and, in some again, as New-Hampshire, RhodeIsland, Connecticut, New-Jersey, and Georgia, the whole representation of the state is exerted, as a joint, undivided representation. In these last-mentioned states, every member of the house of representatives has for his constituents all the people of the state; and all the people of those states are consequently represented in that branch of congress. If the bill before the senate should pass into a law, in its present form, whatever injustice it might do to any of those states, it would not be correct to say of them, nevertheless, that any portion of their people was unrepresented. The well-founded objection would be, as to some of them at least, that they were not adequately, competently, fairly represented; that they had not as many voices and as many votes in the house of representatives, as they were entitled to. This would be the objection. There would be no unrepresented fractions; but the state, as a state, as a whole, would be deprived of some part of its just rights.

"On the other hand, if the bill should pass, as it is now proposed to be amended, there would be no representation of fractions in any state; for a fraction supposes a division and a remainder. All, that could justly be said, would be, that some of these states, as states, possessed a portion of legislative power, a little larger than their exact right; as it must be admitted, that, should the bill pass unamended, they would possess, of that power, much less than that exact right. The same remarks are substantially true, if applied to those states, which adopt the district system, as most of them do. In Missouri, for example, there will be no fraction unrepresented, should the bill become a law in its present form; nor any member for a fraction, should the amendment prevail; because the mode of apportionment, which assigns to each state that number, which is nearst to its exact right, applies no assumed ratios, makes no subdivisions, and, of course, produces no fractions. In the one case, or in the other, the state, as a state, will have something more, or something less, than its exact proportion of representative power; but she will part out this power among her own people, in either case, in such mode, as she may choose, or exercise it altogether, as an entire representation of the people of the state.

"Whether the subdivision of the representative power within any state, if there be a subdivision, be equal or unequal, or fairly or unfairly made, congress cannot know, and has no authority to inquire. It is enough, that the state presents her own representation on the floor of congress in the mode she chooses to present it. If a state were to give

functions of the house of lords in relation to the trial of the party accused. The principles of the common law, so far as the jurisdiction is to be exercised, are

to one portion of her territory a representative for every twenty-five thousand persons, and to the rest a representative only for every fifty thousand, it would be an act of unjust legislation, doubtless, but it would be wholly beyond redress by any power in congress; because the constitution has left all this to the state itself.

"These considerations, it is thought, may show, that the constitution has not, by any implication, or necessary construction, enjoined that, which it certainly has not ordained in terms, viz. that every member of the house shall be supposed to represent the same number of constituents; and therefore, that the assumption of a ratio, as representing the common number of constituents, is not called for by the constitution. All that congress is at liberty to do, as it would seem, is to divide the whole representative power of the Union into twenty-four parts, assigning one part to each state, as near as practicable, according to its right, and leaving all subsequent arrangement, and all subdivisions, to the state itself.

"If the view thus taken of the rights of the states, and the duties of congress, be the correct view, then the plan proposed in the amendment is, in no just sense, a representation of fractions. But suppose it was otherwise; suppose a direct division were made for allowing a representative to every state, in whose population, it being first divided by a common ratio, there should be found a fraction exceeding half the amount of that ratio, what constitutional objection could be fairly urged against such a provision? Let it be always remembered, that the case here supposed provides only for a fraction exceeding the moiety of the ratio; for the committee admit, at once, that the representation of fractions, less than a moiety, is unconstitutional; because, should a member be allowed to a state for such a fraction, it would be certain, that her representation would not be so near her exact right, as it was before. But the allowance of a member for a major fraction is a direct approximation towards justice and equality. There appears to the committee to be nothing, either in the letter or the spirit of the constitution, opposed to such a mode of apportionment. On the contrary, it seems entirely consistent with the very object, which the constitution contemplated, and well calculated to accomplish it. The argument commonly urged against it is, that it is necessary to apply some one common divisor, and to abide by its results.

"If, by this, it be meant, that there must be some common rule, or common measure, applicable, and applied impartially to all the states, it is quite true. But, if that which is intended, be, that the population of each

deemed of primary obligation and government. The object of prosecutions of this sort in both countries is to reach high and potent offenders, such as might be

state must be divided by a fixed ratio, and all resulting fractions, great or small, disregarded, this is but to take for granted the very thing in controversy. The question is, whether it be unconstitutional to make approximation to equality, by allowing representatives for major fractions. The affirmative of this question is, indeed, denied; but it is not disproved, by saying, that we must abide by the operation of division, by an assumed ratio, and disregard fractions. The question still remains, as it was before; and it is still to be shown, what there is in the constitution, which rejects approximation, as the rule of apportionment. But suppose it to be necessary to find a divisor, and to abide its results. What is a divisor? Not necessarily a simple number. It may be composed of a whole number and a fraction; it may itself be the result of a previous process; it may be any thing, in short, which produces accurate and uniform division: whatever does this, is a common rule, a common standard, or, if the word be important, a common divisor. The committee refer, on this part of the case, to some observations by Professor Dean, with a table, both of which accompany this report.

"As it is not improbable, that opinion has been a good deal influenced on this subject by what took place on the passing of the first act, making an apportionment of representatives among the states, the committee have examined and considered that precedent. If it be in point to the present case, it is certainly entitled to very great weight; but if it be of questionable application, the text of the constitution, even if it were doubtful, could not be explained by a doubtful commentary. In the opinion of the committee, it is only necessary, that what was said on that occasion should be understood in connexion with the subject-matter then under consideration; and, in order to see what that subjectmatter really was, the committee think it necessary to state, shortly, the

case.

"The two houses of congress passed a bill, after the first enumeration of the people, providing for a house of representatives, which should consist of one hundred and twenty members. The bill expressed no rule or principle, by which these members were assigned to the several states. It merely said, that New-Hampshire should have five members, Massachusetts ten, and so on; going through all the states, and assigning the whole number of one hundred and twenty. Now, by the census, then recently taken, it appeared, that the whole representative population of the United States was 3,615,920; and it was evidently the wish of congress to make the house as numerous, as the constitution would allow. But the constitution has said, that there should not be

presumed to escape punishment in the ordinary tribunals, either from their own extraordinary influence, or from the imperfect organization and powers of those

more than one member for every thirty thousand persons. This prohibition was, of course, to be obeyed; but did the constitution mean, that no states should have more than one member for every thirty thousand persons? or did it only mean, that the whole house, as compared with the whole population of the United States, should not contain more than one member for every thirty thousand persons? If this last were the true construction, then the bill, in that particular, was right; if the first were the true construction, then it was wrong; because so many members could not be assigned to the states, without giving to some of them more members than one for every thirty thousand. In fact, the bill did propose to do this in regard to several states.

"President Washington adopted that construction of the constitution, which applied its prohibition to each state individually. He thought, that no state could, constitutionally, receive more than one membor for every thirty thousand of her own population. On this, therefore, his main objection to the bill was founded. That objection he states in these words:

""The constitution has also provided, that the number of representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the states; and the bill has allotted to eight of the states more than one for every thirty thousand.'

"It is now necessary to see what there was further objectionable in this bill. The number of one hundred and twelve members was all that could be divided among the states, without giving to some of them more than one member for thirty thousand inhabitants. Therefore, having allotted these one hundred and twelve, there still remained eight of the one hundred and twenty to be assigned; and these eight the bill assigned to the states having the largest fractions. Some of these fractions were large, and some were small. No regard was paid to fractions over a moiety of the ratio, any more than to fractions under it. There was no rule laid down, stating what fractions should entitle the states, to whom they might happen to fall, or in whose population they might happen to be found, to a representative therefor. The assignment was not made on the principle, that each state should have a member for a fraction greater than half the ratio; or that all the states should have a member for a fraction, in all cases where the allowance of such member would bring her representation nearer to its exact proportion than its disallowance. There was no common measure, or common