HOUSE OF REPRESENTATIVES.
§ 570. THE second section of the first article contains the structure and organization of the house of representatives. The first clause is as follows:
"The house of representatives shall be composed of members chosen every second year by the people of the several states; and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."
§ 571. As soon as it was settled, that the legislative power should be divided into two separate and distinct branches, a very important consideration arose in regard to the organization of those branches respectively. It is obvious, that the organization of each is susceptible of very great diversities and modifications, in respect to the principles of representation; the qualification of the electors, and the elected; the term of service of the members; the ratio of representation; and the number, of which the body should be composed.
§ 572. First; the principle of representation. The American people had long been in the enjoyment of the privilege of electing, at least, one branch of the legislature; and, in some of the colonies, of electing all the branches composing the legislature. A house of representatives, under various denominations, such as a house of delegates, a house of commons, or, simply, a house of representatives, emanating directly from, and responsible to, the people, and possessing a distinct and independent legislative authority, was familiar to all the colonies, and was held by them in the highest rever-
ence and respect. They justly thought, that as the government in general should always have a common interest with the people, and be administered for their good; so it was essential to their rights and liberties, that the most numerous branch should have an immediate dependence upon, and sympathy with the people.1 There was no novelty in this view. It was not the mere result of a state of colonial dependence in which their jealousy was awake to all the natural encroachments of power in a foreign realm. They had drawn their opinions and principles from the practice of the parent country. They knew the inestimable value of the house of commons, as a component branch of the British parliament; and they believed, that it had at all times furnished the best security against the oppressions of the crown, and the aristocracy. While the power of taxation, of revenue, and of supplies, remained in the hands of a popular branch, it was difficult for usurpation to exist for any length of time without check; and prerogative must yield to that necessity which controlled at once the sword and the purse. No reasoning, therefore, was necessary to satisfy the American people of the advantages of a house of representatives, which should emanate directly from themselves; which should guard their interests, support their rights, express their opinions, make known their wants, redress their grievances, and introduce a pervading popular influence throughout all the operations of the government. Experience, as well as theory, had settled it in their minds, as a fundamental principle of a free government, and especially of a republican government, that no laws
1 The Federalist, No. 52; 1 Black. Comm. 158, 159; Paley's Moral
Philosophy, B. 6, ch. 7; I Wilson's Law Lect. 429 to 433; 2 Wilson's Law
Lect. 122 to 133.
ought to be passed without the co-operation and consent of the representatives of the people; and that these representatives should be chosen by themselves without the intervention of any other functionaries to intercept, or vary their responsibility.1
§ 473. The principle, however, had been hitherto applied to the political organization of the state legislatures only; and its application to that of the federal government was not without some diversity of opinion. This diversity had not its origin in any doubt of the correctness of the principle itself, when applied to simple republics; but, the propriety of applying it to cases of confederated republics was affected by other independent considerations. Those, who might wish to retain a very large portion of state sovereignty, in its representative character, in the councils of the Union, would naturally desire to have the house of representatives elected by the state in its political character, as under the old confederation. Those, on the other hand, who wished to impart to the government a national character, would as naturally desire an independent election by the people themselves in their primary meetings. Probably these circumstances had some operation upon the votes given on the question in the convention itself. For it appears, that upon the original proposition in the convention, "That the members of the first branch of the national legislature ought to be elected by the people of the several states, six states voted for it, two against it, and two were divided.2 And upon a subsequent motion to strike out the word "people," and insert in its place the word "legislatures,"
1 1 Tucker's Black. Comm. App. 28.
2 Journal of Convention, May 31, 1787, p. 85, 86, 135; 4 Elliot's Debates, (Yates's Minutes,) 58.
three states voted in the affirmative and eight in the negative.1 At a subsequent period a motion, that the representatives should be appointed in such manner as the legislature of each state should direct, was negatived, six states voting in the affirmative, three in the negative, and one being divided; and the final vote in favour of an election by the people was decided by the vote of nine states in the affirmative, one voting in the negative, and one being divided.2 The result was not therefore obtained without much discussion and argument; though at last an entire unanimity prevailed.3 It is satisfactory to know, that a fundamental principle of public liberty has been thus secured to ourselves and our posterity, which will for ever indissolubly connect the interests of the people with the interests of the Union.4 Under the confederation, though the delegates to congress might have been elected by the people, they were, in fact, in all the states except two, elected by the state legislature.5
1 Journal of Convention, May 31,1 787, p. 103, 104; 4 Elliot's Debates, (1
Yates's Minutes,) 62, 63, 90, 91.
2 Journal of Convention, June 21, 1787, p. 140, 141, 215; 4 Elliot's Debates, 90, 91, (Yates's Minutes.)
3 Journal of Convention, p. 216, 233.
4 Mr. Burke, in his Reflections on the French Revolution, has treated the subject of the mischiefs of an indirect choice only by the people of their representative in a masterly manner. He has demonstrated, that such a system must remove all real responsibility to the people from the representative. Mr. Jefferson has expressed his approbation of the principle of a direct choice in a very qualified manner. He says, "I approve of the greater house being chosen by the people directly. For, though I think a house so chosen will be very inferior to the present congress, will be very ill qualified to legislate for the Union, for foreign nations, &c.; yet this evil does not weigh against the good of preserving inviolate the fundamental principle, that the people ought not to be taxed but by representatives chosen immediately by themselves." 2 Jefferson's Corresp. p. 273.
5 The Federalist, No. 40.
§574. We accordingly find, that in the section under consideration, the house of representatives is required to be composed of representatives chosen by the people of the several states. The choice, too, is to be made immediately by them; so that the power is direct; the influence direct; and the responsibility direct. If any intermediate agency had been adopted, such as a choice through an electoral college, or by official personages, or by select and specially qualified functionaries pro hac vice, it is obvious, that the dependence of the representative upon the people, and the responsibility to them, would have been far less felt, and far more obstructed. Influence would have naturally grown up with patronage; and here, as in many other cases, the legal maxim would have applied, causa proxima, non remota, spectalur. The select body would have been at once the patrons and the guides of the representative; and the people themselves have become the instruments of subverting their own rights and power.
§ 575. The indirect advantages from this immediate agency of the people in the choice of their representatives are of incalculable benefit, and deserve a brief mention in this place, because they furnish us with matter for most serious reflection, in regard to the actual operations and influences of republican governments. In the first place, the right confers an additional sense of personal dignity and duty upon the mass of the people. It gives a strong direction to the education, studies, and pursuits of the whole community. It enlarges the sphere of action, and contributes, in a high degree, to the formation of the public manners, and national character. It procures to the common people courtesy and sympathy from their superiors, and diffuses a common confidence, as well as a
common interest, through all the ranks of society. It awakens a desire to examine, and sift, and debate all public proceedings, and thus nourishes a lively curiosity to acquire knowledge, and, at the same time, furnishes the means of gratifying it. The proceedings and debates of the legislature; the conduct of public officers from the highest to the lowest; the character and conduct of the executive and his ministers; the struggles, intrigues, and conduct of different parties; and the discussion of the great public measures and questions, which agitate and divide the community, are not only freely canvassed, and thus improve and elevate conversation; but they gradually furnish the mind with safe and solid materials for judgment upon all public affairs; and check that impetuosity and rashness, to which sudden impulses might otherwise lead the people, when they are artfully misguided by selfish demagogues, and plausible schemes of change.1
§ 576. But this fundamental principle of an immediate choice by the people, however important, would alone be insufficient for the public security, if the right of choice had not many auxiliary guards and accompaniments. It was indispensable, secondly, to provide for the qualifications of the electors. It is obvious, that even when the principle is established, that the popular branch of the legislature shall emanate directly from the people, there still remains a very serious question, by whom and in what manner the choice shall be made. It is a question vital to the system, and in a practical sense decisive, as to the durability and efficiency of the powers of government. Here, there is much room for doubt, and ingenious speculation, and theoretical inqui-
1 I have borrowed these views from Dr. Paley, and fear only, that by
abridging them I have lessened their force. Paley's Moral Philosophy,
ch. 6. See also 2 Wilson's Law Lect. 124 to 128.
ry; upon which different minds may arrive, and indeed have arrived, at very different results. To whom ought the right of suffrage, in a free government, to be confided? Or, in other words, who ought to be permitted to vote in the choice of the representatives of the people? Ought the right of suffrage to be absolutely universal? Ought it to be qualified and restrained? Ought it to belong to many, or few? If there ought to be restraints and qualifications, what are the true boundaries and limits of such restraints and qualifications?
§ 577. These questions are sufficiently perplexing and disquieting in theory; and in the practice of different states, and even of free states, ancient as well as modern, they have assumed almost infinite varieties of form and illustration. Perhaps they do not admit of any general, much less of any universal answer, so as to furnish an unexceptionable and certain rule for all ages and all nations. The manners, habits, institutions, characters, and pursuits of different nations; the local position of the territory, in regard to a nations; the actual organizations and classes of society; the influences of peculiar religious, civil, or political institutions; the dangers, as well as the difficulties, of the times; the degrees of knowledge or ignorance pervading the mass of society; the national temperament, and even the climate and products of the soil; the cold and thoughtful gravity of the north; and the warm and mercurial excitability of tropical or southern regions; all these may, and probably will, introduce modifications of principle, as well as of opinion, in regard to the right of suffrage, which it is not easy either to justify or to overthrow.1
1 1 Black.Comm. 171, 172. -- Mr.Justice Blackstone * has remarked,
* 1 1 Black. Comm. 171.
§ 578. The most strenuous advocate for universal suffrage has never yet contended, that the right should be absolutely universal. No one has ever been sufficiently visionary to hold, that all persons, of every age, degree, and character, should be entitled to vote in all elections of all public officers. Idiots, infants, minors, and persons insane or utterly imbecile, have been, without scruple, denied the right, as not having the sound judgment and discretion fit for its exercise. In many countries, persons guilty of crimes have also been denied the right, as a personal punishment, or as a security to society. In most countries, females, whether married or single, have been purposely excluded from voting, as interfering with sound policy, and the harmony of social life. In the few cases in which they have been permitted to vote, experience has not justified the conclusion, that it has been attended with any correspondent advantages, either to the public, or to themselves. And yet it would be extremely difficult, upon any mere theoretical reasoning, to establish any satisfactory principle,
"That the true reason of requiring any qualification with regard to
property in voters is to exclude such persons, as are in so mean a
situation, that they are esteemed to have no will of their own. If these
persons had votes, they would be tempted to dispose of them under some
undue influence or other. This would give a great, an artful, or a wealthy
man a larger share in elections, than is consistent with general liberty.
If it were probable, that every man would give his vote freely and without
influence of any kind, then, upon the true theory and genuine principles of
liberty, every member of the community, however poor, should have a vote in
election those delegates, to whose charge is committed the disposal of his
property, his liberty, and his live. But since that can hardly be expected
in persons of indigent fortunes, or such as the under the immediate
dominion of others, all popular states have been obliged to establish
certain qualifications, thereby some, who are suspected to have no will of
their own, are excluded from voting, in order to set other individuals,
whose will bay be supposed independent, more thoroughly upon a level with
each other." Similar reasoning might be employed to justify other
exclusions, besides those founded upon a want of property.
upon which the one half of every society has thus been systematically excluded by the other half from all right of participating in government, which would not, at the same time, apply to and justify many other exclusions. If it be said, that all men have a natural, equal, and unalienable right to vote, because they are all born free and equal; that they all have common rights and interests entitled to protection, and therefore have an equal right to decide, either personally or by their chosen representatives, upon the laws and regulations, which shall control, measure, and sustain those rights and interests; that they cannot be compelled to surrender, except by their free consent, what, by the bounty and order of Providence, belongs to them in common with all their race; -- what is there in these considerations, which is not equally applicable to females, as free, intelligent, moral, responsible beings, entitled to equal rights, and interests, and protection, and having a vital stake in all the regulations and laws of society? And if an exception, from the nature of the case, could be felt in regard to persons, who are idiots, infants, and insane; how can this apply to persons, who are of more mature growth, and are yet deemed minors by the municipal law? Who has an original right to fix the time and period of pupilage, or minority? Whence was derived the right of the ancient Greeks and Romans to declare, that women should be deemed never to be of age, but should be subject to perpetual guardianship? Upon what principle of natural law did the Romans, in after times, fix the majority of females, as well as of males, at twentyfive years?1 Who has a right to say that in England it shall, for some purposes, be at fourteen, for others, at seventeen, and for all, at twenty-one years; while, in
1 1 Black. Comm. 463, 464.
France, a person arrives, for all purposes, at majority, only at thirty years, in Naples at eighteen, and in Holland at twenty-five?1 Who shall say, that one man is not as well qualified, as a voter, at eighteen years of age, as another is at twenty-five, or third at forty; and far better, than most men are at eighty? And if any society is invested with authority to settle the matter of the age and sex of voters, according to its own view of its policy, or convenience, or justice, who shall say, that it has not equal authority, for like reasons, to settle any other matter regarding the rights, qualifications, and duties of voters?2
§ 579. The truth seems to be, that the right of voting, like many other rights, is one which, whether it has a fixed foundation in natural law or not, has always been treated in the practice of nations, as a strictly civil right, derived from, and regulated by each society, according to its own circumstances and interests.3 It is difficult, even in the abstract, to conceive how it could have otherwise been treated. The terms and conditions, upon which any society is formed and organized, must essentially depend upon the will of those, who are associated; or at least of those, who constitute a majority, actually controlling the rest. Originally, no man could have any right but to act for himself; and the power to choose a chief magistrate or other officer to exercise dominion or authority over others, as well as himself, could arise only upon a joint consent of the others to such appointment; and their consent might be qualified exactly according, to their
1 1 Black. Comm. 463, 464;
2 Id. 171.
3 1 Black. Comm. 171; 2 Wilson's Law Lect. 130; Montesquieu's Spirit of Laws, B. 11. ch. 6; 1 Tucker's Black. Comm. App. 52, 53.
own interests, or power, or policy. The choice of representatives to act in a legislative capacity is not only a refinement of much later stages of actual association and civilization, but could scarcely occur, until the society had assumed to itself the right to introduce such institutions, and to confer such privileges, as it deemed conducive to the public good, and to prohibit the existence of any other. In point of fact, it is well known, that representative legislative bodies, at least in the form now used, are the peculiar invention of modern times, and were unknown to antiquity. If, then, every well organized society has the right to consult for the common good of the whole, and if, upon the principles of natural law, this right is conceded by the very union of society, it seems difficult to assign any limit to this right, which is compatible with the due attainment of the end proposed. If, therefore, any society shall deem the common good and interests of the whole society best promoted under the particular circumstances, in which it is placed, by a restriction of the right of suffrage, it is not easy to state any solid ground of objection to its exercise of such an authority. At least, if any society has a clear right to deprive females, constituting one half of the whole population, from the right of suffrage, (which, with scarcely an exception, has been uniformly maintained,) it will require some astuteness to find upon what ground this exclusion can bevindicated, which does justify, or at least excuse, many other exclusions.1 Government (to use the pithy language of Mr. Burke) has been deemed a practical thing, made for the, happiness of mankind,
1 See Paley's Moral Philosophy, B. 6, ch. 7, p. 392; 1 Black. Comm. 171;
Montesquieu's Spirit of Laws, B. 11. ch. 6.
and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians.1
§ 580. Without laying any stress upon this theoretical
reasoning, which is
brought before the reader, not so much because it solves all doubts and
objections, as because it presents a view of the serious difficulties
attendant upon the assumption of an original and unalienable right of
suffrage, as originating in natural law, and independent of civil law, it
may be proper to state, that every civilized society has uniformly fixed,
modified, and regulated the right of suffrage for itself, according to its
own free will and pleasure. Every constitution of government in these
United States has assumed, as a fundamental principle, the right of the
people of the state to alter, abolish, and modify the form of its own
government, according, to the sovereign pleasure of the people.2 In fact,
the people of each state have gone much farther, and settled a far more
critical question, by deciding, who shall be the voters, entitled to
approve and reject the constitution framed by a delegated body under their
direction. In the adoption of no state constitution has the assent been
asked of any but the qualified voters; and women, and minors, and other
persons, not recognized as voters by existing laws, have been studiously
excluded. And yet the constitution has been deemed entirely obligatory upon
them, as well as upon the minority, who voted against it. From this it will
be seen, how little, even in the most free of republican governments, any
abstract right of suffrage, or any original and indefeasible privilege, has
been recognized in practice. If this consideration
1 Burke's Letter to the Sheriffs of Bristol in 1777.
2 See Locke on Government, p. 2, § 149, 227.
does not satisfy our minds, it at least will prepare us to presume, that there may be an almost infinite diversity in the established right of voting, without any state being able to assert, that its own mode is exclusively founded in natural justice, or is most conformable to sound policy, or is best adapted to the public security. It will teach us, that the question is necessarily complex and intricate in its own nature, and is scarcely susceptible of any simple solution, which shall rigidly apply to the circumstances and conditions, the interests and the feelings, the institutions and the manners of all nations.1 What may best promote the public weal, and secure the public liberty, and advance the public prosperity in one age or nation, may totally fail of similar results under local, physical, or moral predicaments essentially different.
§ 581. It would carry us too far from the immediate object of these Commentaries to take a general survey Or the various modifications, under which the right of suffrage, either in relation to laws, or magistracy, or even judicial controversies, has appeared in different nations in ancient and modern times. The examples of Greece and Rome, in ancient times, and of England in modern times, will be found most instructive.2 In England, the qualifications of voters, as also the modes of representation, are various, and framed upon no common principle. The counties are represented by knights, elected by the proprietors of lands, who are freeholders;3 the boroughs and cities are represented
1 Dr. Lieber's Encyclopedia Americana, art. Constitution.
2 See 3 Adams's Amer. Constitut. Letter 6, p. 263, &c. p. 440, &c. 1 Black. Comm. 171, 172, 173; Montesquieu's Spirit of Laws, Book 11, ch. 13; Id. B. 2, ch. 2.
3 1 Black. Comm. 172, 173; Paley's Moral Philosophy, B. 6, ch. 7; The Federalist, No. 57.
by citizens and burgesses, or others chosen by the citizens or burgesses, according to the qualifications prescribed by custom, or by the respective charters and by-laws of each borough, or city.1 In these, the right of voting is almost infinitely varied and modified.2 In the American colonies, under their charters and laws, no uniform rules in regard to the right of suffrage existed. In some of the colonies the course of the parent country was closely followed, so that freeholders alone were voters;3 in others a very near approach was made to universal suffrage among the males of competent age; and in others, again, a middle principle was adopted, which made taxation and voting dependent upon each other, or annexed to it the qualification of holding some personal estate, or the privilege of being a freeman, or the eldest son of a freeholder of the town or corporation.4 When the revolution brought about the separation of the colonies, and they formed themselves into independent states, a very striking diversity was observable in the original constitutions adopted by them;5 and a like diversity has pervaded all the constitutions of the new states, which have since grown up, and all the revised constitutions of the old states, which have received the final ratification of the people. In some of the states the right of suffrage
1 1 Black. Comm. 172 to 175; 1 Tuck. Black. Comm. App. 209 to 212. See
also Burke's Reflections on the French Revolution.
2 See Dr. Lieber's Encyclopedia Americana, art. Election; Great Britain, Constitution of.
3 See Jefferson's Notes on Virginia, 191; 1 Tucker's Black. Comm. App. 96 to 100.
4 See Charter of Rhode-Island, 1663; and Rhode-Island Laws, (edit 1789,) p. 114. See also Connecticut Charter, 1662, and Massachusetts Charters. 1628 and 1692.
5 2 Wilson's Law Lect. 132 to 138; 2 Pitkin's Hist. ch. 19, p. 294 to 316.
depends upon a certain length of residence, and payment of taxes; in others, upon mere citizenship and residence; in others, upon the possession of a freehold, or some estate of a particular value, or upon the payment of taxes, or performance of some public duty, such as service in the militia, or on the highways.1 In no two of these state constitutions will it be found, that the qualifications of the voters are settled upon the same uniform basis.2 So that we have the most abundant proofs, that among a free and enlightened people, convened for the purpose of establishing their own forms of government, and the rights of their own voters, the question, as to the due regulation of the qualifications, has been deemed a matter of mere state policy, and varied to meet the wants, to suit the prejudices, and to roster the interests of the majority. An absolute, indefeasible right to elect or be elected, seems never to have been asserted on one side, or denied on the other; but the subject has been freely canvassed, as one of mere civil polity, to be arranged upon such a basis, as the majority may deem expedient with reference to the moral, physical, and intellectual condition of the particular state.3
§ 582. It was under this known diversity of constitutional
regard to state elections, that the convention, which framed the
constitution of the Union,
1 2 Wilson's Law Lect. 132 to 138. -- Mr. Hume, in his Idea of a Perfect
Commonwealth, proposes, that the representatives should be freeholders of
20l a year, and householders worth 500l. 1 Hume's Essays, Essay 16, p. 526. 2 See The Federalist, No. 54; 2 Wilson's Law Lectures, 132 to 138; 2 Pitkin's Hist. 294 to 316.
3 Dr. Lieber's Encyclopedia Americana, art. Constitution of the United States. The Federalist, No. 52 to 54.
was assembled. The definition of the right of suffrage is very justly regarded, as a fundamental article of a republican government. It was incumbent on the convention, therefore, to define and establish this right in the constitution. To have left it open for the occasional regulation of congress would have been improper, for the reason just mentioned. To have submitted it to the legislative discretion of the states, would have been improper, for the same reason; and for the additional reason, that it would have rendered too dependent on the state governments, that branch of the federal government, which ought to be dependent on the people alone.1 Two modes of providing for the right of suffrage in the choice of representatives were presented to the consideration of that body. One was to devise some plan, which should operate uniformly in all the states, on a common principle; the other was to conform to the existing diversities in the states, thus creating a mixed mode of representation. In favour of the former course, it might be urged, that all the states ought, upon the floor of the house of representatives, to be represented equally; that this could be accomplished only by the adoption of a uniform qualification of the voters, who would thus express the same public opinion of the same body of citizens throughout the Union; that if freeholders alone in one state chose the representatives; and in another all male citizens of competent age; and in another all freemen of particular towns or corporations; and in another all taxed inhabitants; it would be obvious, that different interests and classes would obtain exclusive representations in different states; and thus the great objects of the
1 The Federalist, No. 52.
constitution, the promotion of the general welfare and common defence, might be unduly checked and obstructed; that a uniform principle would at least have this recommendation, that it could create no wellfounded jealousies among the different states, and would be most likely to satisfy the body of the people by its perfect fairness, its permanent equality of operation, and its entire independence of all local legislation, whether in the shape of state laws; or of amendments to state constitutions.
§ 583. On the other hand, it might be urged in favour of the latter course, that the reducing of the different qualifications, already existing in the different states, to one uniform rule, would have been a very difficult task, even to the convention itself, and would be dissatisfactory to the people of different states.1 It would not be very easy for the convention to frame any rule, which would satisfy the scruples, the prejudices, or the judgments of a majority of its own members. It would not be easy to induce Virginia to give up the exclusive right of freeholders to vote; or Rhode-Island, or Connecticut, the exclusive right of freemen to vote; or Massachusetts, the right of persons possessing a given value of personal property to vote; or other states, the right of persons paying taxes, or having a fixed residence, to vote. The subject itself was not susceptible of any very exact limitations upon any general reasoning. The circumstances of different states might create great diversities in the practical operation of any uniform system. And the natural attachments, which long habit and usage had sanctioned, in regard to the exercise of the
1 The Federalist, No. 52.
right, would enlist all the feelings, and interests, and opinions of every state against any substantial change in its own institutions. A great embarrassment would be thus thrown in the way of the adoption of the constitution itself, which perhaps would be thus put at hazard, upon the mere ground of theoretical propriety.1
§584. Besides; it might be urged, that it is far from being clear, upon reasoning or experience, that uniformity in the composition of a representative body is either more promotive of the general good, than a mixed system, embracing, and representing, and combining distinct interests, classes, and opinions.2 In England the house of commons, as a representative body, is founded upon no uniform principle, either of numbers, or classes, or
1 Rawle on the constitution, ch. 4, p. 40.
2 Mr. Burke manifestly thought, that no system of representative government could be safe without a large admixture of different persons and interests. "Nothing," say he, "is a due and adequate representation of a state, that does not represent its ability, as well as is property. But as ability is a vigorous and active principle, and as property is sluggish, inert, and timid, it can never be safe from the invasion of ability, unless it be, out of all proportion, predominant in the representation."* In a subsequent page of his Reflections on the French Revolution, be discussed the then favorite theory of representation proposed for the constitution of France, upon the triple basis of territory, population, and taxation, and demonstrates, with great clearness, its inconvenience, inequality, and inconsistency. The representatives, too, were to be chosen indirectly, by electors appointed by electors, who were again chosen by other electors. " The member," says Mr. Burke, "who goes to the National Assembly, is not chosen by the people, nor accountable to them. There are three elections before he is chosen; two sets of magistrates intervene between him and the primary assembly, so as to render him, as I have said, an ambassador of a state, and not the representative of the people within a state." So much for mere theory in the hands of visionary end speculative statesmen.
* Burke's Reelections on the French Revolution. See also Paley's Philosophy, B. 6, ch. 7.
places.1 The representation is made up of persons chosen by electors having, very different, and sometimes very discordant qualifications; in some cases, property is exclusively represented; in others, particular trades and pursuits; in others, inhabitancy and corporate privileges; in others, the reverse. In some cases, the representatives are chosen by very numerous voters; in others, by very few; in some cases, a single patron possesses the exclusive power of choosing representatives, as in nomination boroughs; in others, very populous cities have no right to choose any representatives at all; in some cases, a select body, forming a very small part of the inhabitants, has the exclusive right of choice; in others, non-residents can control the whole election; in some places a half million of inhabitants possess the right to choose no more representatives, than are assigned to the most insignificant borough, with scarcely an inhabitant to point out its local limits.2 Yet this inequality has never, of itself, been deemed an exclusive evil in Great Britain.3 And in every system of reform, which has found public favour in that country, many of these diversities have been embodied from choice, as important checks upon undue legislation, as facilitating the representation of different interests, and
1 Paley's Moral Philosophy, B. 6, ch. 7, p. 380, 381 to 394; DeLolme,
Const. of England, B. 1, ch. 4, p. 61, 62; 1 Kent's Comm. 219; 1 Tuck.
Black. App. 209, 210, 211; 1 Wilson's Law Lect. 431.
2 Mr. Jefferson, in his Notes on Virginia, insists with great earnestness upon the impropriety of allowing to different counties in that state, the same number of representatives, without any regard to their relative population.* And yet in the new constitution adopted in 1830-1831, Virginia has adhered to the save system in principle, and her present representation is apportioned upon an arbitrary and unequal basis.
3 Burke's Reflections on the French Revolution.
* Jefferson's Notes, 192.
different opinions; and as thus securing, by a well-balanced and intelligent representation of all the various classes of society, a permanent protection of the public liberties of the people, and a firm security of the private rights of persons and property.1 Without, therefore, asserting, that such a mixed representation is absolutely, and under all circumstances, the best, it might be safely affirmed, that the existence of various elements in the composition of the representative body is not necessarily inexpedient, unjust, or insecure; and, in many cases, may promote a wholesome restraint upon partial plans of legislation, and ensure a vigorous growth to the general interests of the Union. The planter, the farmer, the mechanic, the merchant, and the manufacturer might thus be brought to act together, in a body representing each; and thus superior intelligence, as well as mutual good-will and respect, be diffused through the whole of the collective body.2
§ 585. In the judgment of the convention, this latter reasoning seems to have obtained a decisive influence,
1 Mr. Wilson in his Lectures, considers the inequality of representation
in the house of commons, as a prominent defect in the British government.
But his objections are mainly urged against the mode of apportioning the
representation, and not against the qualifications of the voters.* In the
reform now under the consideration of parliament, there is a very great
diversity of electoral qualifications allowed, and apparently supported by
all parties. Mr. Burke in his Reflections on the French Revolution, holds
doctrine essentially different in many points from Mr. Wilson. See also in
Winne's Eunomus, Dialogue 3, § 18, 19, 20, an ingenious defence of the
existing system in Great-Britain.
2 See Paley's Moral Philosophy, B. 6, ch. 7, p. 380; Id. 394. See also Franklin's Remarks; 2 Pitk. Hist. 242.--Dr. Paley has placed the inequalities of representation in the house of commons in a strong light; and he has attempted a vindication of it, which, whether satisfactory or not, is at least urged with great skill and ingenuity of reasoning. Paley's Moral Philosophy, B. 6, ch, 7, p. 391 to 400. See also 2 Pitk. Hist. 242.
* 1 Wilson's Lect. 430 to 433.
and to have established the final result; and it was accordingly declared, in the clause under consideration, that " the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."1 Upon this clause (which was finally adopted by a unanimous vote) the Federalist has remarked, "the provision made by the convention appears to be the best, that lay within their option. It must be satisfactory to every state, because it is conformable to the standard already established by the state itself. It will be safe to the United States, because, being fixed by the state constitutions, it is not alterable by the state governments; and it cannot be feared, that the people of the states will alter this part of their constitutions in such a manner, as to abridge the rights secured to them by the federal constitution."2 The remark, in a general sense, is true; but the provision has not, in fact, and may not have, all the security against alteration by the state governments, which is so confidently affirmed. At the time, when it was made, Connecticut and Rhode-Island were acting under the royal charters of 1662 and 1663; and their legislatures possessed the power of modifying, from time to time, the right of suffrage. Rhode-Island yet continues without any written constitution, unless the charter of 1663 is to be deemed such. In Maryland successive legislatures may change the form of government; and in other states amendments may be, and indeed have been adopted,
1 Journal of Convention, 216, 233. -- The clause, however, did not pass
without opposition; a motion to strike out was made and negatived, seven
states voting in the negative, one in the affirmative, and one being
divided. Journ. of Convention, 7 Aug. p. 233.
2 The Federalist, No. 52. See also 2 Elliot's Debates, 38; 2 Wilson's Law Lect. 123, 130, 131.
materially varying the rights of suffrage.1 So that absolute stability is not to be predicated of the existing modes of suffrage; though there is little practical danger of any changes, which would work unfavourably to popular rights.
§ 586. In the third place, the term of service of representatives. In order to ensure permanent safety to the liberties of the people, other guards are indispensable, besides those, which are derived from the exercise of the right of suffrage and representation. If, when the legislature is once chosen, it is perpetual, or may last during the life of the representatives; and in case of death, or resignation only, the vacancy is to be supplied by the election of new representatives; it is easy to perceive, that in such cases there will be but a very slight check upon their acts, on the part of the people. In such cases, if the legislative body should be once corrupted, the evil would be past all remedy, at least without some violent revolution, or extraordinary calamity.2 But, when different legislative bodies are to succeed each other at short intervals, if the people disapprove of the present, they may rectify its faults, by the silent exercise of their power in the succeeding election. Besides, a legislative assembly, which is sure to be separated again, and its members soon return to private life, will feel its own interests, as well as duties, bound up with those of the community at large.3 It may, therefore, be safely laid down, as a fundamental axiom of republican governments, that there must be a dependence on, and responsibility to, the people, on the part of the representative, which shall constantly exert an influence upon
1 See 2 Wilson's Law Lect. note (d,) 136, 137.
2 1 Black. Comm. 189; Montesquieu's Spirit of Laws, B. 11, ch. 6.
3 1 Black. Comm. 189.
his acts and opinions, and produce a sympathy between him and his constituents.1 If, when he is once elected, he holds his place for life, or during good behaviour, or for a long period of years, it is obvious, that there will be little effective control exercised upon him; and he will soon learn to disregard the wishes, the interests, and even the rights of his constituents, whenever they interfere with his own selfish pursuits and objects. When appointed, he may not, indeed, consider himself, as exclusively their representative, bound by their opinions, and devoted to their peculiar local interests, although they may be wholly inconsistent with the good of the Union. He ought rather to deem himself a representative of the nation, and bound to provide for the general welfare, and to consult for the general safety.2 But still; in a just sense, he ought to feel his responsibility to them, and to act for them in common wish the rest of the people; and to deem himself, in an emphatic manner, their defender, and their friend.3
§ 587. Frequent elections are unquestionably the soundest, if not the sole policy, by which this depend-
1 The Federalist, No. 52, 57.
2 1 Black. Comm. 159. See also Dr. Franklin's Remarks; 2 Pitk. Hist. 242; Rawle on Const. 38, 39. But see 1 Tucker's Black. Comm. App. 193; 4 Elliot's Debates, 209 -- Mr. Burke in his, Speech to the Electors of Bristol, in 1774, has treated this subject with great candour, and dignity, and ability. "Parliament," said he, "is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates. But parliament is a deliberative assembly of one nation with one interest, that of the whole; where not local purposes, not local prejudices, ought to guide; but the general good, resulting from the general reason of the whole. You choose a member indeed; but then you have chosen him, he is not a member of Bristol, but he is a member of parliament." See, on this subject, 1 Tuck. Black. Comm. App. 193; 2 Lloyd's Deb. in 1789, p. 199 to 217.
3 See Burke's Speech to the Electors of Bristol in 1774.
ence and sympathy and responsibility can he effectually secured.1 But the question, what degree of frequency is best calculated to accomplish that object is not susceptible of any precise and universal answer, and must essentially depend upon very different considerations in different nations, and vary with their size, their age, their conditions, their institutions, and their local peculiarities.2
§ 588. It has been a current observation, that " where annual elections end, tyranny begins."3 But this remark, like many others of a general nature, is open to much question. There is no pretence, that there is any natural connexion between the period of a year, or any other exact revolution of time, and the political changes fit for governments or magistrates. Why is the election of a magistrate or representative more safe for one year, than for two years? For one year, more than for six months? For six months, more than for three months? It is certainly competent for a state to elect its own rulers, daily, or weekly, or monthly, or annual-
1 The Federalist, No. 52, 57.
2 Dr. Paley, with his usual practical sense, has remarked, in regard to the composition, and tenure of office, of the British house of commons, that, "the number, the fortune, and quality of the members; the variety of interests and characters among them; above all, the temporary duration of their power, and the change of men, which every new election produces, are so many securities to the public, as well against the subjection of their judgments to any external dictation, as against the formation of a junto in their won body, sufficiently powerful to govern their decisions. The representatives are so intermixed with the constituents, and the constituents with the rest of the people, that they cannot, without a partiality too flagrant to be endured, impose any burthen upon the subject, in which they do not share themselves. Nor scarcely can they adopt an advantageous regulation, in which their own interests will not participate of the advantage." Paley's Moral Philosophy, B. 6, ch. 7.
3 The Federalist, No. 53. See Montesquieu's Spirit of Laws, B. 2, ch. 3.
ly, or for a longer period, if it is deemed expedient. In this respect, it must be, or ought to be, governed by its own convenience, interests, and safety. It is, therefore, a question of sound policy, dependent upon circumstances, and not resolvable into any absolute elements dependent upon the revolution or return of natural seasons.1 The aim of every political constitution is, or ought to be, first to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue the common good of the society; and, in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue their public trust.2 Various means may be resorted to for this purpose; and doubtless one of the most efficient is the frequency of elections. But who is there, that will not perceive, upon the slightest examination of the subject, what a wide space there is for the exercise of discretion, and for diversity of judgment.
§ 589. Without pretending to go into a complete survey of the subject, in all its bearings, the frequency of elections may be materially affected, as matter of policy, by the extent of the population and territory of a country, the concentration or sparseness of the population, the nature of the pursuits, and employments, and engagements of the people; and by the local and political situation of the nation in regard to contiguous nations. If the government be of small extent, or be concentrated in a single city, it will be far more easy for the citizens to choose their rulers frequently, and to change them without mischief, than it would be, if the territory were large, the population sparse, and the means
1 The Federalist, No. 52, 53; Montesquieu's Spirit of Laws, B. 2, ch. 3;
1 Elliot's Debates, 30, 31, 39.
2 The Federalist, No. 57; 2 Elliot's Debates, 42.
of intercourse few and liable to interruption. If all the inhabitants, who are to vote, reside in towns and villages there will be little inconvenience in assembling together at a short notice to make a choice. It will be far otherwise, if the inhabitants are scattered over a large territory, and are engaged in agricultural pursuits, like the planters and farmers of the southern and western states, who must meet at a distance from their respective homes, and at some common place of assembling. In cases of this sort, the sacrifice of time necessary to accomplish the object, the expenses of the journey, the imperfect means of communication, the slow progress of interchanges of opinion, would naturally diminish the exercise of the right of suffrage. There would be great danger, under such circumstances, that there would grow up a general indifference or inattention to elections, it they were frequent, since they would create little interest, and would involve heavy charges and burthens. The nature of the pursuits and employments of the people must also have great influence in settling the question. If the mass of the citizens are engaged in employments, which take them away for a long period from home, such as employments in the whale and cod fisheries, in the fur-trade, in foreign and distant commerce, in periodical caravans, or in other pursuits, which require constant attention, or long continued labours at particular seasons; it is obvious, that frequent elections, which should interfere with their primary interests and objects, would be at once inconvenient, oppressive, and unequal. They would enable the few to obtain a complete triumph and ascendency in the affairs of the state over the many. Besides, the frequency of elections must be subject to other considerations, affecting the general comfort and convenience, as well
of rulers, as of electors. In the bleak regions of Lapland, and the farther north, and in the sultry and protracted heats of the south, a due regard must be had to the health of the inhabitants, and to the ordinary means of travelling. If the territory be large, the representatives must come from great distances, and are liable to be retarded by all the varieties of climate, and geological features of the country; by drifts of impassable snows; by sudden inundations; by chains of mountains; by extensive prairies; by numerous streams; by sandy deserts.1
§ 590. The task of legislation, too, is exceedingly different in a small state, from what it is in a large one; in a state engaged in a single pursuit, or living in pastoral simplicity, from what it is in a state engaged in the infinitely varied employments of agriculture, manufacture, and commerce, where enterprise and capital rapidly circulate; and new legislation is constantly required by the new fortunes of society. A single week might suffice for the ordinary legislation of a state of the territorial extent of Rhode-Island; while several months would scarcely suffice for that of New-York. In Great-Britain a half year is consumed in legislation for its diversified interests and occupations; while a week would accomplish all, that belongs to that of Lapland or Greenland, of the narrow republic of Geneva, or of the subordinate principalities of Germany. Athens might legislate, without obstructing the daily course of common business, for her own meagre territory; but when Rome had become the mistress of the world, the year seemed too short for all the exigencies of her sovereignty. When she deliberated for a world, she
1 1 Elliot's Debates, 33, Ames's Speech.
felt, that legislation, to be wise or safe, must be slow and cautious; that knowledge, as well as power, was indispensable for the true government of her provinces.
§ 591. Again; the local position of a nation in regard to other nations may require very different courses of legislation, and very different intervals of elections, from what would be dictated by a sense of its own interest and convenience under other circumstances. If it is surrounded by powerful and warlike neighbours, its own government must be invested with proportionately prompt means to act, and to legislate, in order to repel aggressions, and secure its own rights. Frequent changes in the public councils might not only leave it exposed to the hazard of having no efficient body in existence to act upon any sudden emergency, but also, by the fluctuations of opinion, necessarily growing out of these changes, introduce imbecility, irresolution, and the want of due information into those councils. Men, to act with vigour and effect, must have time to mature measures, and judgment and experience, as to the best method of applying them. They must not be hurried on to their conclusions by the passions, or the fears of the multitude. They must deliberate, as well as resolve. If the power drops from their hands before they have an opportunity to carry any system into full effect, or even to put it on its trial, it is impossible, that foreign nations should not be able, by intrigues, by false alarms, and by corrupt influences, to defeat the wisest measures of the best patriots.
§ 592. One other consideration of a general nature deserves attention. It is, that while, on the one hand, constantly recurring elections afford a great security to public liberty, they are not, on the other hand, without some dangers and inconveniences of a formidable
nature. The very frequency of elections has a tendency to create agitations and dissensions in the public mind; to nourish factions, and encourage restlessness, to favour rash innovations in domestic legislation and public policy; and to produce violent and sudden changes in the administration of public affairs, founded upon temporary excitements and prejudices.1
§ 593. It is plain, that some of the considerations, which have been stated, must apply with very different force to the condition and interests of different states; and they demonstrate, if not the absurdity, at least the impolicy of laying down any general maxim, as to the frequency of elections to legislative, or other offices.2 There is quite as much absurdity in laying down, as a general rule, that where annual elections end, tyranny begins, as there is in saying, that the people are free only while they are choosing their representatives, and slaves during the whole period of their service.
§ 594. If we examine this matter by the light of history, or at least of that portion of it, which is best entitled to instruct us on the point, it will be found, that there is no uniformity of practice, or principle, among free nations in regard to elections. In England it is not easy to trace out any very decided course. The history of parliament, after magna charta, proves, that that body had been accustomed usually to assemble once a year; but, as these sessions were dependent upon the good pleasure and discretion of the crown, very long and inconvenient intermissions occasionally
1 See Mr. Ames's Speech, 1 Elliot's Debates, 31, 33; Ames's Works, 20, 24.
2 Montesquieu's Spirit of Laws, B. 2, ch. 3; l Elliot's Debates, 30 to 42.
occurred, from royal contrivance, ambition, or policy.1 But, even when parliament was accustomed to sit every year, the members were not chosen every year. On the contrary, as the dissolution of parliament was solely dependent on the will of the crown, it might, and formerly it sometimes did happen, that a single parliament lasted through the whole life of the king, who convened it.2 To remedy these grievances, it was provided by a statute, passed in the reign of Charles the Second, that the intermissions should not be protracted beyond the period of three years; and by a subsequent statute of William and Mary, that the same parliament should not sit longer than three years, but be, at the end of that period, dissolved, and a new one elected. This period was, by a statute of George the First, prolonged to seven years, after an animated debate; and thus septennial became a substitute for triennial parliaments.3 Notwithstanding the constantly increasing influence of the house of commons, and its popular cast of opinion and action, more than a century has elapsed without any successful effort, or even any general desire, to change the duration of parliament. So that, as the English constitution now stands, the parliament must expire, or die a natural death, at the end of the seventh year, and not sooner, unless dissolved by the royal prerogative.4 Yet no man, tolerably well acquainted with the history of Great Britain for the last century, would venture to affirm, that the people had not enjoyed a higher degree of liberty and
1 The Federalist, No. 52.
2 1 Black. Comm. 189, and note.
3 1 Black. Comm. 189; The Federalist, No. 52, 53; 1 Elliot's Debates, 37, 39; 2 Elliot's Debates, 42.
4 1 Black. Comm. 189; The Federalist, No. 52.
influence in all the proceedings of the government, than ever existed in any antecedent period.
§ 595. If we bring, our inquiries nearer home, it will be found, that the history of the American colonies before the revolution affords an equally striking proof of the diversity of opinion and usage. It is very well known, that the principle of representation in one branch of the legislature was (as has been already stated) established in all the colonies. But the periods of election of the representatives were very different. They varied from a half-year to seven years. In Virginia the elections were septennial; in North and SouthCarolina, biennial; in Massachusetts, annual; in Connecticut and Rhode-Island, semi-annual.1 It has been very justly remarked by the Federalist, that there is not any reason to infer, from the spirit and conduct of the representatives of the people prior to the revolution, that biennial elections would have been dangerous to the public liberties. The spirit, which every where displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs, that a sufficient portion of liberty had been every where enjoyed to inspire both a sense of its worth, and a zeal for its proper enlargement. This remark holds good, as well with regard to the then colonies, whose elections were least frequent, as to those, whose elections were most frequent. Virginia was the colony, which stood first in resisting the parliamentary encroachments of Great Britain; it was the first also in espousing, by a public act, the resolution of independence. Yet her house of representatives
1 The Federalist, No. 52; 1 Elliot's Debates, 41, 42; 2 Elliot's Debates,
42; 3 Elliot's Debates, 40.
was septennial.1 When, after the revolution, the states freely framed and adopted their own constitutions of government, a similar, though not so marked a diversity of opinion, was exhibited. In Connecticut, until her recent constitution, the representatives were chosen semi-annually; in Rhode-Island they are still chosen semi-annually; in South-Carolina, Tennessee, Missouri, Illinois, and Louisiana they are chosen biennially; and in the rest of the states annually.2 And it has been justly observed in the Federalist,3 that it would not be easy to show, that Connecticut or Rhode-Island is better governed, or enjoys a greater share of rational liberty, than South-Carolina, (or any of the other states having biennial elections;) or, that either the one or the other of these states is distinguished, in these respects, and by those causes, from the states, whose elections are different from both.
§ 596. These remarks are sufficient to establish the futility of the maxim alluded to, respecting the value of annual elections. The question, how frequent elections should be, and what should be the term of service of representatives, cannot be answered in any universal form, applicable to all times, and all nations.4 It is very complex in its nature, and must ultimately resolve itself into a question of policy and sound, discretion, with reference to the particular condition and circumstances of each nation, to which it is sought to be applied. The same fundamental principles of government may require very different, if not entirely opposite practices in different states. There is great wis-
1 The Federalist, No. 52.
2 Dr. Lieber's Encycl. Americana, art. Constitutions of the United States; 3 Elliot's Debates, 260; l Kent. Comm. 215.
3 The Federalist, No. 53; 3 Elliot's Debates, 260.
4 1 Elliot's Debates, 40, 41, 42.
dom in the observations of one of our eminent statesmen on this subject. "It is apparent," said he, "that a delegation for a very short period, as for a single day, would defeat the design of representation. The election in that case would not seem to the people to be of any importance, and the person elected would think as lightly of his appointment. The other extreme is equally to be avoided. An election for a long term of years, or for life, would remove the member too far from the control of the people, would be dangerous to liberty, and in fact repugnant to the purposes of the delegation. The truth, as usual, is placed somewhere between the extremes, and, I believe, is included in this proposition; the term of election must be so long, that the representative may understand the interests of the people; and yet so limited, that his fidelity may be secured by a dependence upon their approbation."1
§ 597. The question, then, which was presented to the consideration of the convention, was, what duration of office, on the part of the members of the house of representative, was, with reference to the structure of the other branches of the legislative department of the general government, best adapted to preserve the public liberty and to promote the general welfare. I say, with reference to the structure of the other branches of the legislative department of the general government, because it is obvious, that the duration of office of the president and senate, and the nature and extent of the powers to be confided to congress, must most materially affect the decision upon this point. Absolute unanimity upon such a subject could hardly be expected; and accordingly it will be found, that no
1 Mr. Ames's Speech, 1 Elliot's Debates, 30, 31; Ames's Works, 21; 2
Elliot's Debates, 44, 46
inconsiderable diversity of opinion was exhibited in the discussions in the convention. It was, in the first instance, decided in a committee of the whole, that the period should be three years, seven states voting in the affirmative, and four in the negative.1 That period was afterwards struck out by a vote of the convention, seven states voting in the affirmative, three in the negative, and one being divided, and the word " two" was unanimously inserted in its stead.2 In the subsequent revision the clause took the shape, in which it now stands in the constitution.
§ 598. The reasons, which finally prevailed in the convention and elsewhere in favour of biennial elections in preference to any other period, may be arranged under the following heads:
§ 599. In the first place, an argument might properly be drawn from the extent of the country to be governed. The territorial extent of the United States would require the representatives to travel from great distances, and the arrangements, rendered necessary by that circumstance, would furnish much more serious objections with men fit for this service, if limited to a single year, than if extended to two years.3 Annual elections might be very well adapted to the state legislatures from the facility of convening the members, and from the familiarity of the people with all the general objects of local legislation, when they would be highly inconvenient for the legislature of the Union. If, when convened, the term of congress was of short duration, there would scarcely be time properly to examine and mature
1 Journal of the Convention, p. 67, 115, 116, 135; 4 Elliot's Debates,
(Yate's Minutes,) 70, 71.
2 Journal of the Convention, p. 141, 207, 216; 1 Elliot's Debates, 30; 4 Elliot's Debates, (Yate's Minutes,) 91, 92.
3 The Federalist, No. 53; 1 Elliot's Debates, 30, 40, 41, 42.
measures. A new election might intervene before there had been an opportunity to interchange opinions and acquire the information indispensable for wise and salutary action.1 Much of the business of the national legislature must necessarily be postponed beyond a single session; and if new men are to come every year, a great part of the information already accumulated will be lost, or be unavoidably open for re-examination before any vote can be properly had.
§ 600. In the next place, however well founded the maxim might be, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and conversely, the smaller the power, the more safely its duration may be protracted;2 that maxim, if it applied at all to the government of the Union, was favourable to the extension of the period of service beyond that of the state legislatures. The powers of congress are few and limited, and of a national character; those of the state legislatures are general, and have few positive limitations. If annual elections are safe for a state; biennial elections would not be less safe for the United States. No just objection, then, could arise from this source, upon any notion, that there would be a more perfect security for public liberty in annual than in biennial elections.
§ 601. But a far more important consideration grows out of the nature and objects of the powers of congress. The aim of every political constitution is, or ought to be, first, to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue, the common good of society; and, in the next place, to take the most effectual precautions for keeping, them virtu-
1 The Federalist, No. 53; 1 Elliot's Debates, 40, 41, 42.
2 The Federalist, No. 52; Montesquieu's Spirit of Laws, B. 2, ch. 3.
ous, whilst they continue to hold their public trust. Frequent elections have, without question, a tendency to accomplish the latter object. But too great a frequency will, almost invariably, defeat the former object, and, in most cases, put at hazard the latter. As has been already intimated, it has a tendency to introduce faction, and rash counsels, and passionate appeals to the prejudices, rather than to the sober judgment of the people. And we need not to be reminded, that faction and enthusiasm are the instruments, by which popular governments are destroyed.2 It operates also, as a great discouragement upon suitable candidates offering themselves for the public service. They can have little opportunity to establish a solid reputation, as statesmen or patriot, when their schemes are liable to be suddenly broken in upon by demagogues, who may create injurious suspicions, and even displace them from office, before their measures are fairly tried.3 And they are apt to grow weary of continued appeals to vindicate their character and conduct at the polls, since success, however triumphant, is of such short duration, and confidence is so easily loosened. These considerations, which are always of some weight, are especially applicable to services in a national legislature, at a distance from the constituents, and in cases, where a great variety of information, not easily accessible, is indispensable to a right understanding of the conduct and votes of representatives.
§ 602. But the very nature and objects of the national government require far more experience and knowledge, than what may be thought requisite in the
1 The Federalist, No. 57; 1 Kent's Comm. 215.
2 Ames's Speech; 1 Elliot's Debates, 33.
3 1 Kent's Comm. 215.
members of a state legislature. For the latter a knowledge of local interests and opinions may ordinarily suffice. But it is far different with a member of congress. He is to legislate for the interest and welfare, not of one state only, but of all the states. It is not enough, that he comes to the task with an upright intention and sound judgment, but he must have a competent degree of knowledge of all the subjects, on which he is called to legislate; and he must have skill, as to the best mode of applying it. The latter can scarcely be acquired, but by long experience and training in the national councils. The period of service ought, therefore, to bear some proportion to the variety of knowledge and practical skill, which the duties of the station demand.1
§ 603. The most superficial glance at the relative duties of a member of a state legislature and of those of a member of congress, will put this matter in a striking light. In a single state, the habits, manners, institutions, and laws, are uniform, and all the citizens are more or less conversant with them. The relative bearings of the various pursuits and occupations of the people are well understood, or easily ascertained. The general affairs of the state lie in a comparatively narrow compass, and are daily discussed and examined by those, who have an immediate interest in them, and by frequent communication with each other can interchange opinions.2 It is very different with the general government. There, every measure is to be discussed with reference to the rights, interests, and pursuits of all the states. When the constitution was adopted, there were thirteen, and there are now twenty-four
1 The Federalist, No. 53; 1 Elliot's Debates, 30, 37, 39, 40, 41; Id. 220;
2 Elliot's Debates, 42; I Kent's Comm. 215.
2 The Federalist, No. 53, 56.
states, having different laws, institutions, employments, products, and climates, and many artificial, as well as natural differences in the structure of society, growing out of these circumstances. Some of them are almost wholly agricultural; some commercial; some manufacturing; some have a mixture of all; and in no two of them are there precisely the same relative adjustments of all these interests. No legislation for the Union can be safe or wise, which is not founded upon an accurate knowledge of these diversities, and their practical influence upon public measures. What may be beneficial and politic, with reference to the interests of a single state, may be subversive of those of other states. A regulation of commerce, wise and just for the commercial states, may strike at the foundation of the prosperity of the agricultural or manufacturing states. And, on the other hand, a measure beneficial to agriculture or manufactures, may disturb, and even overwhelm the shipping interest. Large and enlightened views, comprehensive information, and a just attention to the local peculiarities, and products, and employments of different states, are absolutely indispensable qualifications for a member of congress. Yet it is obvious, that if very short periods of service are to be allowed to members of congress, the continual fluctuations in the public councils, and the perpetual changes of members will be very unfavourable to the acquirement of the proper knowledge, and the due application of it for the public welfare. One set of men will just have mastered the necessary information, when they will be succeeded by a second set, who are to go over the same grounds, and then are to be succeeded by a third. So, that inexperience, instead of practical wisdom, hasty legislation, instead of sober deliberation, and imperfect projects,
instead of well constructed systems, would characterize the national government.1
§ 604. Congress has power to regulate commerce with foreign nations and among, the several states. How can foreign trade be properly regulated by uniform laws without (I do not say some acquaintance, but) a large acquaintance with the commerce, ports, usages, and regulations of foreign states, and with the pursuits and products of the United States? How can trade between the different states be duly regulated, without an accurate knowledge of their relative situation, and climate, and productions, and facilities of intercourse.2 Congress has power to lay taxes and imposts; but how can taxes be judiciously imposed, and effectively collected, unless they are accommodated to the local circumstances of the several states? The power of taxation, even with the purest and best intentions, might, without a thorough knowledge of the diversified interests of the states, become a most oppressive and ruinous engine of power.3 It is true, that difficulties of this sort, will occur more frequently in the first operations of the government, than afterwards.4 But in a growing community, like that of the United States, whose population has already increased from three to thirteen millions within forty years, there must be a perpetual change of measures to suit the new exigencies of agriculture, commerce, and manufactures, and to ensure the vital objects of the constitution. And, so far is it from being true, that the national government has by its familiarity become more simple and facile in its machinery and operations, that it may be affirmed, that a
1 The Federalist, No. 53, 56.
far more exact and comprehensive knowledge is now necessary to preserve its adjustments, and to carry on its daily operations, than was required, or even dreamed of, at its first institution. Its very success, as a plan of government, has contributed, in no small degree, to give complexity to its legislation. And the important changes in the world during its existence has required very many developments of its powers and duties, which could hardly have occurred, as practical truths to its enlightened founders.
§ 605. There are other powers belonging to the national government, which require qualifications of a high character. They regard our foreign intercourse and diplomatic policy. Although the house of representatives does not directly participate in foreign negotiations and arrangements; yet, from the necessary connexion between the several branches of public affairs, its cooperation with the other departments of the government will be often indispensable to carry them into full effect. Treaties with foreign nations will often require the sanction of laws, not merely by way of appropriations of money to comply with their stipulations; but also to provide suitable regulations to give them a practical operation. Thus, a purchase of territory, like that of Louisiana, would not only require the house of representatives to vote an appropriation of money; and a treaty, containing clauses of indemnity, like the British treaty of 1794, in like manner require an appropriation to give it effect; but commercial treaties, in an especial manner would require many variations and additions to the existing laws in order to adjust them to the general system, and produce, where it is intended, a just reciprocity.1 It is hardly necessary to say, that a com-
1 The Federalist, No. 53.
petent knowledge of the law of nations is indispensable to every statesman; and, that ignorance may not only involve the nation in embarrassing controversies with other nations; but may also involve it in humiliating sacrifices. Congress alone is entrusted with the power to declare war. What would be said of representatives called upon to exercise this ultimate appeal of sovereignty, who were ignorant of the just rights and duties of belligerent and neutral nations?1
§ 606. Besides; the whole diplomacy of the executive department, and all those relations with independent powers, which connect themselves with foreign intercourse, are so intimately blended with the proper discharge of legislative duties, that it is impossible, that they should not be constantly brought under review in the public debates. They must frequently furnish matter for censure or praise; for accusation or vindication; for legislative checks, or legislative aids; for powerful appeals to popular favour, or popular resentment; for the ardent contests of party; and even for the graver exercise of the power of impeachment.
§ 607. And this leads us naturally to another remark; and that is, that a due exercise of some of the powers confided to the house of representatives, even in its most narrow functions, require, that the members should at least be elected for a period of two years. The power of impeachment could scarcely be exerted with effect by any body, which had not a legislative life of such a period. It would scarcely be possible, in ordinary cases, to begin and end an impeachment at a single annual session. And the effect of change of members during its prosecution would be attended with no inconsiderable embarrassment and inconvenience. If the power
1 The Federalist, No. 53.
is ever to be exerted, so as to bring great offenders to justice, there must be a prolonged legislative term of office, so as to meet the exigency. One year will not suffice to detect guilt, and to pursue it to conviction.1
§ 608. Again; the house of representatives is to be the sole judge of the elections of its own members. Now, if but one legislative session is to be held in a year, and more than one cannot ordinarily be presumed convenient or proper, spurious elections cannot be investigated and annulled in time to have a due effect The sitting member must either hold his seat during the whole period of the investigation, or he must be suspended during the same period. In either case the public mischief will be very great. The uniform practice has been to allow the member, who is returned, to hold his seat and vote, until he is displaced by the order of the house, after full investigation. If, then, a return can be obtained, no matter by what means, the irregular member is sure of holding his seat, until a long period has elapsed, (for that is indispensable to any thorough investigation of facts arising at great distances;) and thus a very pernicious encouragement is given to the use of unlawful means for obtaining irregular returns, and fraudulent elections.2
§ 609. There is one other consideration, not without its weight in all questions of this nature. Where elections are very frequent, a few of the members, as happens in all such assembles, will possess superior talents; will, by frequent re-elections, become members of long standing; will become thoroughly masters of the public business; and thus will acquire a preponderating and undue influence, of which they will naturally be dis-
1 1 Elliot's Debates, 34; Mr. Ames's Speech.
2 The Federalist, No. 53.
posed to avail themselves. The great bulk of the house will be composed of new members, who will necessarily be inexperienced, diffident, and undisciplined, and thus be subjected to the superior ability and information of the veteran legislators. If biennial elections would have no more cogent effect, than to diminish the amount of this inequality; to guard unsuspecting confidence against the snares, which may be set for it; and to stimulate a watchful and ambitious responsibility, it would have a decisive advantage over mere annual elections.1
§ 610. Such were some of the reasons, which produced, on the part of the framers of the constitution, and ultimately of the people themselves, an approbation of biennial elections. Experiencehas demonstrated the sound policy and wisdom of the provision. But looking back to the period, when the constitution was upon its passage, one cannot but be struck with the alarms, with which the public mind was on this subject attempted to be disturbed. It was repeatedly urged in and out of the state conventions, that biennial elections were dangerous to the public liberty; and that congress might perpetuate itself, and reign with absolute power over the nation.2
§ 611. In the next place, as to the qualifications of the elected. The constitution on this subject is as follows:3 "No person shall be a representative, who "shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States;
1 The Federalist, No. 53. See also 1 Tucker's Black. Comm. App. 229; 2
Wilson's Law Lectures, 151.
2 1 Elliot's Debates, 28, 37, 38, 43; Id. 217.
3 Art. J, §2, paragraph 3.
"and who shall not, when elected, be an inhabitant of that state, in which he shall be chosen."
§ 612. It is obvious, that the inquiry, as to the due qualifications of representatives, like that, as to the due qualifications of electors in a government, is susceptible, in its own nature, of very different answers, according to the habits, institutions, interests, and local peculiarities of different nations. It is a point, upon which we can arrive at no universal rule, which will accommodate itself to the welfare and wants of every people, with the same proportionate advantages. The great objects are, or ought to be, to secure, on the part of the representatives, fidelity, sound judgment, competent information, and incorruptible independence. The best modes, by which these objects can be attained, are matters of discussion and reasoning, and essentially dependent upon a large and enlightened survey of the human character and passions, as developed in the different stages of civilized society. There is great room, therefore, for diversities of judgment and opinion upon a subject so comprehensive and variable in its elements. It would be matter of surprise, if doctrines essentially different, nay, even opposite to each other, should not, under such circumstances, be maintained by political writers, equally eminent and able. Upon questions of civil policy, and the fundamental structure of governments, there has hitherto been too little harmony of opinion among the greatest men to encourage any hope, that the future will be less fruitful in dissonances, than the past. In the practice of governments, a very great diversity of qualifications has been insisted on, as prerequisites of office; and this alone would demonstrate, that there was not admitted to exist any common stan-
dard of superior excellence, adapted to all ages, and all nations.
§ 613. In Great-Britain, besides those negative qualifications, which are founded in usage, or positive law, such as the exclusion of persons holding certain offices and pensions, it is required, that every member for a county, or knight of a shire, (as he is technically called,) shall have a clear estate of freehold, or copyhold, to the value of 600 sterling per annum; and every member for a city or borough, to the value of 300, except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members of the two universities.1
§ 614. Among the American colonies antecedent to the revolution, a great diversity of qualifications existed; and the state constitutions, subsequently formed, by no means lessen that diversity. Some insist upon a freehold, or other property, of a certain value; others require a certain period of residence, and citizenship only; others require a freehold only; others a payment of taxes, or an equivalent; others, again, mix up all the various qualifications of property, residence, citizenship, and taxation, or substitute some of these, as equivalents for others.2
§ 615. The existing qualifications in the states being then so various, it may be thought, that the best course would have been, to adopt the rules of the states respectively, in regard to the most numerous branch of their own legislatures. And this course might not have been open to serious objections. But, as the qualifications of members were thought to be less carefully defined in the state constitutions, and more susceptible of
1 1 Black. Comm. 176. See 4 Instit. 46 to 48.
2 Dr. Lieber's Encycl. Americana, art. Constitutions of the United States.
uniformity, than those of the electors, the subject was thought proper for regulation by the convention.1 And it is observable, that the positive qualifications are few and simple. They respect only age, citizenship, and inhabitancy.2
§ 616. First, in regard to age. The representative must have attained twenty-five years. And certainly to this no reasonable objection can be made.3 If experience, or wisdom, or knowledge be of value in the national councils, it can scarcely be pretended, that an earlier age could afford a certain guaranty for either. That some qualification of age is proper, no one will dispute. No one will contend, that persons, who are minors, ought to be eligible; or, that those, who have not attained manhood, so as to be entitled by the common law to dispose of their persons, or estates, at their own will, would be fit depositaries of the authority to dispose of the rights, persons, and property of others. Would the mere attainment of twenty-one years of age be a more proper qualification? All just reasoning would be against it. The characters and passions of young men can scarcely be understood at the moment of their majority. They are then new to the rights of self-government; warm in their passions; ardent in their expectations; and, just escaping from pupilage, are strongly tempted to discard the lessons of caution, which riper years inculcate. What they will become, remains to be seen; and four years beyond that period is but a very short space, in which to try their virtues, develope their talents, enlarge their resources, and give them a practical insight into the business of life ade-
1 The Federalist, No. 295.
2 1 Tucker's Black. Comm. App. 197.
3 1 Tucker's Black. Comm. App. 213, 214; 2 Wilson's Law Lect. 139, 140.
quate to their own immediate wants and duties. Can the interests of others be safely confided to those, who have yet to learn how to take care of their own? The British constitution has, indeed, provided only for the members of the house of commons not being minors;1 and illustrious instances have occurred to show, that great statesmen may be formed even during their minority. But such instances are rare, they are to be looked at as prodigies, rather than as examples; as the extraordinary growth of a peculiar education and character, and a hot-bed precocity in a monarchy, rather than as the sound and thrifty growth of the open air, and the bracing hardihood of a republic. In the convention this qualification, as to age, did not pass without a struggle. It was originally carried by a vote of seven states against three, one being divided; though it was ultimately adopted without a division.2 In the state conventions it does not seem to have formed any important topic of debate.3
1 Black. Comm. 162, 173, 175; 4 Instit. 46, 47.
2 Journal of Convention, June 22, p. 143; Id. Aug. 8, p 235; 4 Elliot's Debates, (Yates's Minutes,) 94.
3 Lork Coke has with much gravity enumerated the proper qualifications of a parliament-man, drawing the resemblances from the properties of the elephant. First, that he should be without gall; that is, without malice, rancour, heat, and envy. Secondly, that he should be constant, inflexible, and not to be bowed, or turned from the right, either for fear, reward, or favour, nor in judgment respect persons. Thirdly, that he should be of a rip e memory, that remembering perils past, he might remember dangers to come. Fourthly, that though he be of the greatest strength and understanding, yet he be sociable, and go in companies; and fifthly, that he philanthropic, showing the way to every man.* Whatever one may now think of this quaint analogy, these qualities would not, in our day, be thought a bad enumeration of the proper qualities of a good modern member of parliament, or congress. * 4 Instit. 3.
§ 617. Secondly, in regard to citizenship. It is required, that the representative shall have been a citizen of the United States seven years. Upon the propriety of excluding aliens from eligibility, there could scarcely be any room for debate; for there could be no security for a due administration of any government by persons, whose interests and connexions were foreign, and who owed no permanent allegiance to it, and had no permanent stake in its measures or operations. Foreign influence, of the most corrupt and mischievous nature, could not fail to make its way into the public councils, if there was no guard against the introduction of alien representatives.1 It has accordingly been a fundamental policy of most, if not of all free states, to exclude all foreigners from holding offices in the state. The only practical question would seem to be, whether foreigners, even after naturalization, should be eligible as representatives; and if so, what was a suitable period of citizenship for the allowance of the privilege. In England, all aliens born, unless naturalized, were originally excluded from a seat in parliament; and now, by positive legislation, no alien, though naturalized, is capable of being a member of either house of parliament.2 A different course, naturally arising from the circumstances of the country, was adopted in the American colonies antecedent to the revolution, with a view to invite emigrations, and settlements, and thus to facilitate the cultivation of their wild and waste lands. A similar policy had since pervaded the state governments, and had been attended with so many advantages, that it would hare been
1 The Federalist, No. 62.
2 1 Black. Comm. 162, 175; 4 Inst. 46.
impracticable to enforce any total exclusion of naturalized citizens from office. In the convention it was originally proposed, that three years' citizenship should constitute a qualification; but that was exchanged for seven years by a vote of ten states to one.1 No objection seems even to have been suggested against this qualification; and hitherto it has obtained a general acquiescence or approbation. It certainly subserves two important purposes. 1. That the constituents have a full opportunity of knowing the character and merits of their representative. 2. That the representative has a like opportunity of learning the character, and wants, and opinions of his constituents.2
§ 618. Thirdly, in regard to inhabitancy. It is required, that the representative shall, when elected, be an inhabitant of the state, in which he shall be chosen. The object of this clause, doubtless, was to secure an attachment to, and a just representation of, the interests of the state in the national councils. It was supposed, that an inhabitant would feel a deeper concern, and possess a more enlightened view of the various interests of his constituents, than a mere stranger. And, at all events, he would generally possess more entirely their sympathy and confidence. It is observable, that the inhabitancy required is within the state, and not within any particular district of the state, in which the member is chosen. In England, in former times, it was required, that all the members of the house of commons should be inhabitants of the places, for which they were chosen. But this was for a long time wholly disregarded in practice, and was at length repealed by
1 Journal of the Convention, 8 August, 233, 234.
2 2 Wilson's Law Lectures, 141.
statute of 14 Geo. 3, ch. 58.1 This circumstance is not a little remarkable in parliamentary history; and it establishes, in a very striking manner, how little mere theory can be regarded in matters of government. It was found by experience, that boroughs and cities were often better represented by men of eminence, and known patriotism, who were strangers to them, than by those chosen from their own vicinage. And to this very hour some of the proudest names in English History, as patriots and statesmen, have been the representatives of obscure, and, if one may so say, of ignoble boroughs.
§ 619. An attempt was made in the convention to introduce a qualification of one year's residence before the election; but it failed, four states voting in favour of it, six against it, and one being divided.2 The omission to provide, that a subsequent non-residence shall be a vacation of the seat, may in some measure defeat the policy of the original limitation. For it has happened, in more than one instance, that a member, after his election, has removed to another state, and thus ceased to have that intimate intercourse with, and dependence upon his constituents, upon which so much value has been placed in all his discussions on this subject.
§ 620. It is observable, that no qualification, in point of
been required on the part of members of the house of representatives.3
Yet such a qualification is insisted on, by a considerable number of the
states, as a qualification for the popular branch of the
1 1 Black. Comm. 175; 2 Wilson's Law Lect. 142.
2 Journal of Convention, 8 August, p. 224, 225.
3 Journal of Convention, 26 July, p. 204, 205; Id. 212; Id. 241, 242.
state legislature.1 The probability is, that it was not incorporated into the constitution of the Union from the difficulty of framing a provision, that would be generally acceptable. Two reasons have, however, been assigned by a learned commentator for the omission, which deserve notice. First, that in a representative government the people have an undoubted right to judge for themselves of the qualification of their representative, and of their opinion if his integrity and ability will supply the want of estate, there is better reason for contending, that it ought not prevail. Secondly, that by requiring a property qualification, it may happen, that men, the best qualified in other respects, might be incapacitated from serving their country.2 There is, doubtless, weight in each of these considerations. The first, however, is equally applicable to all sorts of qualifications whatsoever; and proceeds upon art inadmissible foundation; and that is, that the society has no just right to regulate for the common good, what a portion of the community may deem for their special good. The other reason has a better foundation in theory; though, generally speaking, it will rarely occur in practice. But it goes very far towards overturning another fundamental guard, which is deemed essential to public liberty; and that is, that the representative should have a common interest in measures with his constituents. Now, the power of taxation, one of the most delicate and important in human society, will rarely be exerted oppressively by those, who are to share the common burthens. The possession of property has in this respect a great value
1 Dr. Lieber's Encyclopedia Americana, art. Constitutions of the United
2 1 Tucker's Black. Comm. App. 212, 213; 1 Elliot's Debates, 55, 56.
among the proper qualifications of a representative; since it will have a tendency to check any undue impositions, or sacrifices, which may equally injure his own, as well as theirs.1
§ 621. In like manner there is a total absence of any qualification founded on religious opinions. However desirable it may be, that every government should be administered by those, who have a fixed religious belief, and feel a deep responsibility to an infinitely wise and eternal Being; and however strong may be our persuasion of the everlasting value of a belief in Christianity for our present, as well as our immortal welfare; the history of the world has shown the extreme dangers, as well as difficulties, of connecting the civil power with religious opinions. Half the calamities, with which the human race have been scourged, have arisen from the union of church and state; and the people of America, above all others, have too largely partaken of the terrors and the sufferings of persecution for conscience' sake, not to feel an excessive repugnance to the introduction of religious tests. Experience has demonstrated the folly, as well as the injustice, of exclusions from office, founded upon religious opinions. They have aggravated all other evils in the political organization of societies. They carry in their train discord, oppression, and bloodshed.2 They perpetuate a savage ferocity, and insensibility to human rights and sufferings. Wherever they have been abolished, they have introduced peace and moderation, and enlightened legislation. Wherever they have been perpetuated, they have always checked, and in many
1 1 Tucker's Black. Comm. App. 212, 213.
2 See 4 Black. Comm. 44, 45, 46, 47.
cases have overturned all the securities of public liberty. The right to burn heretics survived in England almost to the close of the reign of Charles the Second;1 and it has been asserted, (but I have not been able to ascertain the fact by examination of the printed journals,) that on that occasion the whole bench of bishops voted against the repeal. We all know how slowly the Roman Catholics have recovered their just rights in England and Ireland. The triumph has been but just achieved, after a most painful contest for a half century. In the catholic countries, to this very hour, protestants are, for the most part, treated with a cold and reluctant jealousy, tolerated perhaps, but never cherished. In the actual situation of the United States a union of the states would have been impractible from the known diversity of religious sects, if any thing more, than a simple belief in Christianity in the most general form of expression, had been required. And even to this some of the states would have objected, as inconsistent with the fundamental policy of their own charters, constitutions, and laws. Whatever, indeed, may have been the desire of many persons, of a deep religious reeling, to have embodied some provision on this subject in the constitution, it may be safely affirmed, that hitherto the absence has not been felt, as an evil; and that while Christianity continues to be the belief of the enlightened, and wise, and pure, among the electors, it is impossible, that infidelity can find an easy home in the house of representatives.
§ 622. It has been justly observed, that under the reasonable qualifications established by the constitution, the door of this part of the federal government is open
1 4 Black. Comm. 49.
to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or any particular profession of religious faith.1
§ 623. A question, however, has been suggested upon this subject, which ought not to be passed over without notice. And that is, whether the states can superadd any qualifications to those prescribed by the constitution of the United States. The laws of some of the states have already required, that the representative should be a freeholder, and be resident within the district, for which he is chosen.2 If a state legislature has authority to pass laws to this effect, they may impose any other qualifications beyond those provided by the constitution, however inconvenient, restrictive, or even mischievous they may be to the interests of the Union. The legislature of one state may require, that none but a Deist, a Catholic, a Protestant, a Calvinist, or a Universalist, shall be a representative. The legislature of another state may require, that none shall be a representative but a planter, a farmer, a mechanic, or a manufacturer. It may exclude merchants, and divines, and physicians, and lawyers. Another legislature may require a high monied qualification, a freehold of great value, or personal estate of great amount. Another legislature may require, that the party shall have been born, and always lived in the state, or district; or that he shall be an inhabitant of a particular town or city, free of a corporation, or eldest son. In short, there is no end to the varieties of qualifications, which, without insisting upon extravagant cases, may be imagined. A state may, with the
2 1 Tucker's Black. Comm. App. 213.
sole object of dissolving the Union, create qualifications so high, and so singular, that it shall become impracticable to elect any representative.
§ 624. It would seem but fair reasoning upon the plainest principles of interpretation, that when the constitution established certain qualifications, as necessary for office, it meant to exclude all others, as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others. And a doubt of this sort seems to have pervaded the mind of a learned commentator.1 A power to add new qualifications is certainly equivalent to a power to very them. It adds to the aggregate, what changes the nature of the former requisites. The house of representatives seems to have acted upon this interpretation, and to have held, that the state legislatures have no power to prescribe new qualifications, unknown to the constitution of the United States.2 A celebrated American statesman,3 however, with his avowed devotion to state power, has intimated a contrary doctrine. "If," says he, "whenever the constitution assumes a single power out of many, which belong to the same subject, we should consider it as assuming the whole, it would vest the general government with a mass of powers never contemplated. On the contrary, the assumption of particular powers seems an exclusion of all not assumed. This reasoning appears to me to be sound, but on so recent a change of view, caution requires us not to be over confident."4 He intimates, however, that unless the case be either
1 1 Tucker's Black. Comm. App. 213.
2 4 Jefferson's Correspondence, 238.
3 Mr. Jefferson.
4 Jefferson's Correspondence, 239.
clear or urgent, it would be better to let it lie undisturbed.1
§ 625. It does not seem to have occurred to this celebrated statesman, that the whole of this reasoning, which is avowedly founded upon that amendment to the constitution, which provides, that "the powers not delegated nor prohibited to the states, are reserved to the states respectively, or to the people," proceeds upon a basis, which is inapplicable to the case. In the first place, no powers could be reserved to the states, except those, which existed in the states before the constitution was adopted. The amendment does not profess, and, indeed, did not intend to confer on the states any new powers; but merely to reserve to them, what were not conceded to the government of the Union. Now, it may properly be asked, where did the states get the power to appoint representatives in the national government? Was it a power, that existed at all before the constitution was adopted? If derived from the constitution, must it not be derived exactly under the qualifications established by the constitution, and none others? If the constitution has delegated no power to the states to add new qualifications, how can they claim any such power by the mere adoption of that instrument, which they did not before possess?
§ 626. The truth is, that the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president. Each is an officer of the Union, deriving his
1 4 Jefferson's Correspondence, p. 239.
powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. It is no original prerogative of state power to appoint a representative, a senator, or president for the Union. Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people. Before a state can assert the right, it must show, that the constitution has delegated and recognised it. No state can say, that it has reserved, what it never possessed.
§ 627. Besides; independent of this, there is another fundamental objection to the reasoning. The whole scope of the argument is, to show, that the legislature of the state has a right to prescribe new qualifications. Now, if the state in its political capacity had it, it would not follow, that the legislature possessed it. That must depend upon the powers confided to the state legislature by its own constitution. A state, and the legislature of a state, are quite different political beings. Now it would be very desirable to know, in which part of any state constitution this authority, exclusively of a national character, is found delegated to any state legislature. But this is not all. The amendment does not reserve the powers to the states exclusively, as political bodies; for the language of the amendment is, that the powers not delegated, &c. are reserved to the states, or to the people. To justify, then, the exercise of the power by a state, it is indispensable to show, that it has not been reserved to the people of the state. The people of the state, by adopting the constitution, have declared what their will is, as to the qualifications for office. And here the maxim, if ever, must apply, Expressio unius est exclusio alterius. It might further be urged, that the constitution, being the act of the whole
people of the United States, formed and fashioned according to their own views, it is not to be assumed, as the basis of any reasoning, that they have given any control over the functionaries created by it, to any state, beyond what is found in the text of the instrument. When such a control is asserted, it is matter of roof, not of assumption; it is matter to be established, as of right, and not to be exercised by usurpation, until it is displaced. The burthen of proof is on the state, and not on the government of the Union. The affirmative is to be established; the negative is not to be denied, and the denial taken for a concession.
§ 628. In regard to the power of a state to prescribe the qualification of inhabitancy or residence in a district, as an additional qualification, there is this forcible reason for denying it, that it is undertaking to act upon the very qualification prescribed by the constitution, as to inhabitancy in the state, and abridging its operation. It is precisely the same exercise of power on the part of the states, as if they should prescribe, that a representative should be forty years of age, and a citizen for ten years. In each case, the very qualification fixed by the constitution is completely evaded, and indirectly abolished.
§ 629. The next clause of the second section of the first article respects the apportionment of the representatives among the states. It is as follows: "Representatives and direct taxes shall be apportioned among the several states, which may be included in this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. The actual enumeration
shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner, as they shall, by law, direct. The number of representatives shall not exceed one for every thirty thousand; but each state shall have at least one representative. And until such enumeration shall be made, the state of New-Hampshire shall be entitled to choose three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, NewJersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North-Carolina five, South Carolina five, and Georgia three."
§ 630. The first apportionment thus made, being of a temporary and fugacious character, requires no commentary.1 The basis assumedwas probably very nearly the same, which the constitution pointed out for all future apportionments, or, at least, of all the free persons in the states.2
It is obvious, that the question, how: the apportionment should be made, was one, upon which a considerable diversity of judgment might, and probably would, exist. Three leading principles of apportionment would, at once, present themselves. One was to adopt the rule already existing, under the confederation; that is, an equality of representation and vote by each state, thus giving each state a right to send not less than two, nor more than seven representatives, and in the determination of questions, each state to have one vote.3 This would naturally receive encouragement from all those, who were attached to the confederation, and preferred
1 Journ. of Convention, 10th July, 165, 166, 167, 171, 172, 179, 216.
2 Journ. of Convention, 159, note. But see The Federalist, No. 55.
3 Confederation, Art. 5.
a mere league of states, to a government in any degree national.1 And accordingly it formed, as it should seem, the basis of what was called the New-Jersey Plan.2 This rule of apportionment met, however, with a decided opposition, and was negatived in the convention at an early period, seven states voting against it, three being in its favour, and one being divided.3
§ 631. Another principle might be, to apportion the representation of the states according to the relative property of each, thus making property the basis of representation. This might commend itself to some persons, because it would introduce a salutary check into the legislature in regard to taxation, by securing, in some measure, an equalization of the public burthens, by the voice of those, who were called to give most towards the common contributions.4 That taxation ought to go hand in hand with representation, bad been a favourite theory of the American people. Under the confederation, all the common expenses were required to be borne by the states in proportion to the value of the land within each state.5 But it has been already seen, that this mode of contribution was extremely difficult and embarrassing, and unsatisfactory in practice, under the confederation.6 There do not, indeed,
1 Journ. of Convention, 111, 153, 159.
2 Mr. Patterson's Plan, Journ. of Convention, 123; 4 Elliot's Debates, (Yates's Minutes,) 74; Id. 81; Id. 107 to 113, 116; 2 Pitk. Hist. 228, 229, 232.
3 Journ. of Convention. 11th June, 111. See also Id. 153, 154; 4 Elliot's Debates, (Yates's Minutes,) 68.
4 4 Elliot's Debates, (Yates's Minutes,) 68, 69; Journ. of Convention, 11th June, 111; Id. 5th July, 158; Id. 11th July, 169.
5 Confederation, Art. 8.
6 Journals of Congress, 17th Feb 1783, vol. 8, p. 129 to 133; Id. 27th Sept. 1785, vol. 10, p. 238; Id. 18th April, 1783, vol. 8, p. 188; 1 Elliot's Debates, 56; 2 Elliot's Debates, 113; 1 Tuck. Black. Comm. App. 235, 236, 243 to 246; The Federalist, No. 30; Id. No. 21.
seem to be any traces in the proceedings of the convention, that this scheme had an exclusive influence with any persons in that body. It mixed itself up with other considerations, without acquiring any decisive preponderance. In the first place, it was easy to provide a remedial check upon undue direct taxation, the only species, of which there could be the slightest danger of unequal and oppressive levies. And it will be seen, that this was sufficiently provided for, by declaring, that representatives and direct taxes should be apportioned by the same ratio.
§ 632. In the next place, although property may not be directly aimed at, as a basis in the representation, provided for by the constitution, it cannot, on the other hand, be deemed to be totally excluded, as will presently be seen. In the next place, it is not admitted, that property alone can, in a free government, safely be relied on, as the sole basis of representation. It may be true, and probably is, that in the ordinary course of affairs, it is not the interest, or policy of those, who possess property, to oppress those, who want it. But, in every well ordered commonwealth, persons, as well as property, should possess a just share of influence. The liberties of the people are too dear, and too sacred to be entrusted to any persons, who may not, at all times, have a common sympathy and common interest with the people in the preservation of their public rights, privileges, and liberties. Checks and balances, if not indispensable to, are at least a great conservative in, the operations of all free governments. And, perhaps, upon mere abstract theory, it cannot be justly affirmed, that either persons or property, numbers or wealth, can safely be trusted, as the final repositaries of the dele-
gated powers of government.1 By apportioning influence among each, vigilance, caution, and mutual checks are naturally introduced, and perpetuated.
§ 633. The third and remaining principle was, to apportion the representatives among the states according to their relative numbers. This had the recommendation of great simplicity and uniformity in its operation, of being generally acceptable to the people, and of being less liable to fraud and evasion, than any other, which could be devised.2 Besides; although wealth and property cannot be affirmed to be in different states, exactly in proportion to the numbers; they are not so widely separated from it, as, at a hasty glance, might be imagined. There is, if not a natural, at least a very common connexion between them; and, perhaps, an apportionment of taxes according to numbers is as equitable a rule for contributions according to relative wealth, as any, which can be practically obtained.3
§ 634. The scheme, therefore, under all the circumstances, of making numbers the basis of the representation of the Union, seems to have obtained more general favour, than any other in the convention, because it had a natural and universal connexion with the rights and liberties of the whole people.4
§ 635. But here a difficulty of a very serious nature arose. There were other persons in several of the states, than those, who were free. There were some persons, who were bound to service for a term of years; though these were so few, that they would scarcely
1 The Federalist, No. 51.
3 The Federalist, No. 54; Resolve of Congress, 18th April, 1783, (8 Journals of Congress, 188,1 94,1 98); 1 United States Laws,(Bioren & Duane's edit.) 29, 33, 35.
4 The Federalist, No. 54.
vary the result of the general rule, in any important degree. There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states. It was necessary, therefore, to provide for these cases, though they were attended with no practical difficulty. There seems not to have been any objection in including, in the ratio of representation, persons bound to service for a term of years, and in excluding Indians not taxed. The real (and it was a very exciting) controversy was in regard to slaves, whether they should be included in the enumeration, or not.1 On the one hand, it was contended, that slaves were treated in the states, which tolerated slavery, as property, and not as persons.2 They were bought and sold, devised and transferred, like any other property. They had no civil rights, or political privileges. They had no will of their own; but were bound to absolute obedience to their masters. There was, then, no more reason for including them in the census of persons, than there would be for including any brute animals whatsoever.3 If they were to be represented as property, the rule should be extended, so as to embrace all otherproperty. It would be a gross inequality to allow representation for slaves to the southern states; for that, in effect, would be, to allow to their masters a predominant right, founded on mere property. Thus, five thousand free persons, in a slave-state, might possess the same power
1 2 Pitk. Hist. 233 to 245.
2 The Federalist No. 51; 1 Elliot's Debates, 58 to 60; Id. 204, 212, 213; 4 Elliot's Debates, (Martin's Address,) 24.
3 4 Elliot's Debates, (Yates's Minutes,) 69; Id.2 4.
to choose a representative, as thirty thousand free persons in a non-slave-holding state.1
§ 636. On the other hand, it was contended, that slaves are deemed persons, as well as property. They partake of the qualities of both. In being compelled to labour, not for himself, but for his master; in being vendible by one master to another; and, in being subject, at all times, to be restrained in his liberty, and chastised in his body, by the will of another, the slave may appear to be degraded from the human rank, and classed with the irrational animals, which fall under the denomination of property. But, in being protected in his life and limbs against the violence of others, even of the master of his labour and liberty; and in being punishable himself for all violence committed against others; the slave is no less evidently regarded by law, as a member of the society, and not as a part of the irrational creation; as a moral person, and not as a mere article of property.2 The federal constitution should, therefore, view them in the mixed character of persons and property, which was in fact their true character. It is true, that slaves are not included in the estimate of representatives in any of the states possessing them. They neither vote themselves, nor increase the vote of their masters. But it is also true, that the constitution itself does not proceed upon any ratio of merely qualified voters, either as to representatives, or as to electors of them. If, therefore, those, who are not voters, are to be excluded from the enumeration or census, a similar inequality will exist in the apportionment among the states. For the representatives are to be chosen by those, who are qualified vot-
1 4 Elliot's Debates, (Martin's Address,) 24; Id. (Yates's Minutes,) 69.
2 The Federalist, No. 54; 1 Elliot's Debates, 212, 213.
ers, for the most numerous branch of the state legislature; and the qualifications in different states are essentially different; and, indeed, are in no two states exactly alike. The constitution itself, therefore, lays down a principle, which requires; that no regard shall be had to the policy of particular states, towards their own inhabitants. Why should not the same principle apply to slaves, as to other persons, who were excluded as voters in the states?1
§ 637. Some part of this reasoning may not be very satisfactory; and especially the latter part of it. The distinction between a free person, who is not a voter, but who is, in no sense, property, and a slave, who is not a voter, and who is, in every practical sense, property, is, and for ever must form, a sound ground for discriminating between them in every constitution of government.
§ 638. It was added, that the idea was not entirely a just one, that representation relates to persons only, and not to property. Government is instituted no less for the protection of the property, than of the persons of individuals. The one, as well as the other, may, therefore, be considered as proper to be represented by those, who are charged with the government. And, in point of fact, this view of the subject constituted the basis of some of the representative departments in several of the state governments.2
§ 639. There was another reason urged, why the votes allowed in the federal legislature to the people of each state ought to bear some proportion to the comparative wealth of the states. It was, that states
1 The Federalist, No. 55; 1 Tuck. Black. Comm. App. 190, 191; 1 Elliot's
Debates, 213, 214.
2 The Federalist, No. 54; 1 Elliot's Debates, 213.
have not an influence over other states, arising from the superior advantages of fortune, and individuals in the same state possess over their needy fellow citizens from the like cause. The richest state in the Union can hardly indulge the hope of influencing the choice of a single representative in any other state; nor will the representatives of the largest and richest states possess any other advantages in the national legislature, than what results from superior numbers alone.1
§ 640. It is obvious, that these latter reasons have no just application to the subject. They are not only over-strained, and founded in an ingenious attempt to gloss over the real objections; but they have this inherent vice, that, if well rounded, they apply with equal force to the representation of all property in all the states; and if not entitled to respect on this account, they contain a most gross and indefensible inequality in favour of a single species of property (slaves) existing in a few states only. It might have been contended, with full as much propriety, that rice, or cotton, or tobacco, or potatoes, should have been exclusively taken into account in apportioning the representation.
§ 641. The truth is, that the arrangement adopted by the constitution was a matter of compromise and concession, confessedly unequal in its operation, but a necessary sacrifice to that spirit of conciliation, which was indispensable to the union of states having a great diversity of interests, and physical condition, and political institutions.2 It was agreed, that slaves should be
1 The Federalist, No. 54.
2 1 Elliot' Debates, 212, 213; 2 Pitk. Hist. 233 to 244; Id. 245, 246, 247, 248; 1 Kent's Comm. 216, 217; The Federalist, No. 37, 54; 3 Dall. 171,1 77,1 78. -- It, at the present time, gives twenty-five slave representatives in congress.
represented, under the mild appellation of "other persons," not as free persons, but only in the proportion of three fifths. The clause was in substance borrowed from the resolve, passed by the continental congress on the 18th of April, 1783, recommending the states to amend the articles of confederation in such manner, that the national expenses should be defrayed out of a common treasury, "which shall be supplied by the several states, in proportion to the whole number of white, or other free inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons, not comprehended in the foregoing description, except Indians, not paying taxes, in each state."1 In order to reconcile the non-slave-holding states to this provision, another clause was inserted, that direct taxes should be apportioned in the same manner as representatives. So, that, theoretically, representation and taxation might go pari passu.2 This provision, however, is more specious than solid; for while, in the levy of direct taxes, it apportions them on three fifths of persons not free, it, on the other hand, really exempts the other two fifths from being taxed at all, as property.3 Whereas, if direct taxes had been apportioned, as upon principle they ought to be, according to the real value of property within the state, the whole of the slaves would have been taxable, as property. But a far more striking inequality has been disclosed by the practical operations of the government. The principle of representation is
1 Journals of Congress, 1783, vol. 8, p. 188; 1 Elliot's Debates, 56
2 The Federalist, No. 54; Journal of Convention, 12th July, 171, 172; Id. 174, 175, 176, 179, 180, 210; Id. 372; 1 Elliot's Debates, 56, 57, 58, 60; Id. 213.
3 1 Tucker's Black. Comm. 190, 191; 1 Elliot's Debates, 58, 59.
constant, and uniform; the levy of direct taxes is occasional, and rare. In the course of forty years, no more than three direct taxes1 have been levied; and those only under very extraordinary and pressing circumstances. The ordinary expenditures of the government are, and always have been, derived from other sources. Imports upon foreign importations have supplied, and will generally supply, all the common wants; and if these should not furnish an adequate revenue, excises are next resorted to, as the surest and most convenient mode of taxation. Direct taxes constitute the last resort; and (as might have been foreseen) would never be laid, until other resources had failed.
§ 642. Viewed in its proper light, as a real compromise, in a case of conflicting interests, for the common good, the provision is entitled to great praise for its moderation, its aim at practical utility, and its tendency to satisfy the people, that the Union, framed by all, ought to be dear to all, by the privileges it confers, as well as the blessings it secures. It had a material influence in reconciling the southern states to other provisions in the constitution, and especially to the power of making commercial regulations by a mere majority, which was thought peculiarly to favour the northern states.2 It has sometimes been complained of, as a grievance; but he, who wishes well to his country, will adhere steadily to it, as a fundamental policy, which extinguishes some of the most mischievous sources of all political divisions, -- those founded on geographical positions, and domestic institutions. It did not, however, pass the convention without objec-
1 In 1789, 1813, 1815. The last was partially repealed in 1816.
2 1 Elliot's Debates, 212, 213.
tion. Upon its first introduction, it was supported by the votes of nine states against two. In subsequent stages of the discussion, it met with some opposition;1 and in some of the state conventions it was strenuously resisted.2 The wish of every patriot ought now to be, requiescat in pace.
§ 643. Another part of the clause regards the periods, at which the enumeration or census of the inhabitants of the United States shall be taken, in order to provide for new apportionments of representatives, according to the relative increase of the population of the states. Various propositions for this purpose were laid, at different times, before the convention.3 It was proposed to have the census taken once in fifteen years, and in twenty years; but the vote finally prevailed in favour of ten.4 The importance of this provision for a decennial census can scarcely be overvalued. It is the only effectual means, by which the relative power of the several states could be justly represented. If the system first established had been unalterable, very gross inequalities would soon have taken place among the states, from the very unequal increase of their population. The representation would soon have exhibited a system very analogous to that of the house of commons in Great-Britain, where old and decayed boroughs send representatives, not only wholly disproportionate to their importance; but in some cases, with scarcely a single inhabitant, they match the representatives of the most populous counties.5
1 Journal of Convention, 11th. June, 111, 112. See also Id. 11th July,
168, 169, 170, 235, 236; 4 Elliot's Debates, (Yates's Minutes,) 69.
2 Elliot's Debates, 58, 59, 60, 204, 212, 213, 241.
3 Journal of Convention, 163, 164, 167, 168, 169, 172, 174, 180.
4 Journal of Convention, 12th. July, 168, 170, 173, 180.
5 1 Black. Comm. 158, 173, 174; Rawle on Constit. ch. 4, p. 44.
§ 644. In regard to the United States, the slightest examination of the apportionment made under the first three censuses will demonstrate this conclusion in a very striking manner. The representation of Delaware remains, as it was at thefirst apportionment; those of New-Hampshire, Rhode-Island, Connecticut, NewJersey, and Maryland have had but a small comparative increase; whilst that of Massachusetts (including Maine) has swelled from eight to twenty; that of New-York, from six to thirty-four; and that of Pennsylvania, from eight to twenty-six. In the mean time, the new states have sprung into being; and Ohio, which in 1803 was only entitled to one, now counts fourteen representatives.1 The census of 1831 exhibits still more striking results. In 1790, the whole population of the United States was about three millions nine hundred and twenty-nine thousand; and in 1830, it was about twelve millions eight hundred and fifty-six thousand.2 Ohio, at this very moment, contains at least one million, and New-York two millions of inhabitants. These facts show the wisdom of the provision for a decennial apportionment; and, indeed, it would otherwise have happened, that the system, however sound at the beginning, would by this time have been productive of gross abuses, and probably have engendered feuds and discontents, of themselves sufficient to have occasioned a dissolution of the Union. We probably owe this provision to those in the convention, who were in favour of a national government, in preference to a mere confederation of states.3
1 Rawle on Constitution, ch. 4, p. 45.
2 American Almanac for 1832, p. 162.
3 See Journal of Convention, 165, 168, 169, 174, 179, 180.
§ 645. The next part of the clause relates to the total number of the house of representatives. It declares, that "the number of representatives shall not exceed one for every thirty thousand." This was a subject of great interest; and it has been asserted, that scarcely. any article of the whole constitution seems to be rendered more worthy of attention by the weight of character, and the apparent force of argument, with which it was originally assailed.1 The number fixed by the constitution to constitute the body, in the first instance, and until a census was taken, was sixty-five.
§ 646. Several objections were urged against the provision; First, that so small a number of representatives would be an unsafe depositary of the public interests, Secondly, that they would not possess a proper knowledge of the local circumstances of their numerous constituents. Thirdly, that they would be taken from that class of citizens, which would sympathize least with the feelings of the people, and be most likely to aim at a permanent elevation of the few, on the depression of the many. Fourthly, that defective, as the number in the first instance would be, it would be more and more disproportionate by the increase of the population, and the obstacles, which would prevent a correspondent increase of the representatives.2
§ 647. Time and experience have demonstrated the fallacy of some, and greatly impaired, if they have not utterly destroyed, the force of all of these objections. The fears, which were at that period so studiously
1 The Federalist, No. 55; 2 Amer. Museum, 427; Id. 534; Id. 547; 4
Elliot's Debates, (Yates and Lansing's Letter to Gov. Clinton,) 129,
2 The Federalist, No. 53; 1 Elliot's Debates, 56; Id. 206, 214, 215, 218, 219, 220, 221 to 25; Id. 226 to 232.
cherished; the alarms, which were so forcibly spread; the dangers to liberty, which were so strangely exaggerated; and the predominance of aristocratical and exclusive power, which were so confidently predicted, have all vanished into air, into thin air. Truth has silently dissolved the phantoms raised by imaginations, heated by prejudice or controversy; and at the distance of forty years we look back with astonishment at the laborious reasoning, which was employed to tranquillize the doubts, and assuage the jealousies of the people. It is fit, however, even now, to bring this reasoning under review, because it inculcates upon us the important lesson, how little reliance can be placed upon mere theory in any matters of government; and how difficult it is to vindicate the most sound practical doctrines against the specious questioning of ingenuity and hostility.
§ 648. The first objection was, to the smallness of the number composing the house of representatives.1 It was said, that it was unsafe to deposit the legislative powers of the Union with so small a body of men. It was but the shadow of representation.2 Under the confederation, congress might consist of ninety-one; whereas, in the first instance, the house would consist of but sixty-five. There was no certainty, that it would ever be increased, as that would depend upon the legislature itself in its future ratio of apportionments; and it was left completely in its discretion, not only to
1 It is remarkable, that the American writer, whom I have several times
cited, takes an opposite objection. He says, "the national house of
representatives will be at first too large; and hereafter may be much too
large to deliberate and decide upon the best measures." Thoughts upon the
Political Situation of the United States of America, (Worcester,
2 2 Amer. Museum, 247, 531, 547, 551, 554.
increase, but to diminish the present number.1 Under such circumstances, there was, in fact, no constitutional security, for the whole depended upon the mere integrity and patriotism of those, who should be called to administer it.2
§ 649. In reply to these suggestions it was said, that the present number would certainly be adequate, until a census was taken. Although under the confederation ninety-one members might be chosen, in point of fact a far less number attended.3 At the very first census, supposing the lowest ratio of thirty thousand were adopted, the number of representatives would be increased to one hundred. At the expiration of twentyfive years it would, upon the same ratio, amount to two hundred; and in fifty years, to four hundred, a number, which no one could doubt would be sufficiently large to allay all the fears of the most zealous admirers of a full representation.4 In regard to the possible diminution of the number of representatives, it must be surely an imaginary case. As every state is entitled to at least one representative, the standard never would probably be reduced below the population of the smallest state. The population of Delaware, which increases more slowly, than that of any other state, would, under such circumstances, furnish the rule. And, if the other states increase to a very large degree, it is idle to suppose, that they will ever adopt a ratio, which will give the smallest stale a greater relative power and influence, than themselves.5
1 1 Elliot's Debates. 56, 57; Id. 204, 205, 206; 2 Elliot's Debates, 53,
54; Id. 99.
2 1 Elliot's Debates, 205; 2 Elliot's Debates, 53, 54, 132, 206; Id. 223, 224.
3 1 Elliot's Debates, 57, 249.
4 The Federalist, No. 55; 1 Elliot's Debates, 214, 215, 227.
5 1 Elliot's Debates, 242, 249.
§ 650. But the question itself, what is the proper and convenient number to compose a representative legislature, is as little susceptible of a precise solution, as any, which can be stated in the whole circle of politics. There is no point, upon which different nations are more at variance; and the policy of the American states themselves, on this subject, while they were colonies, and since they have become independent, has been exceedingly discordant. Independent of the differences, arising from the population and size of the states, there will be found to be great diversities among those, whose population and size nearly approach each other. In Massachusetts, the house of representatives is composed of a number between three and four hundred; in Pennsylvania, of not more than one fifth of that number; and in New-York, of not more than one fifth. In Pennsylvania the representatives do not bear a greater proportion to their constituents, than one for every four or five thousand. In Rhode-Island and Massachusetts they bear a proportion of at least one for every thousand. And according to the old constitution of Georgia, the proportion may be carried to one for every ten electors.1
§ 651. Neither is there any ground to assert, that the ratio between the representatives and the people ought, upon principle, to be the same, whether the latter be numerous or few. If the representatives from Virginia were to be chosen by the standard of RhodeIsland, they would then amount to five hundred; and in twenty or thirty years to one thousand. On the other hand, the ratio of Pennsylvania applied to Delaware would reduce the representative assembly to seven.
1 The Federalist, No. 55. See also the State Constitutions of that period.
1 Elliot's Debates, 214, 219, 220, 225, 228, 252, 253.
Nothing can be more fallacious, than to found political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power, than six or seven. But it does not follow, that six or seven hundred would be proportionably a better depositary. And if the supposition is carried on to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that, in all cases, a certain number seems necessary to secure the benefits of free consultation and discussion; to guard against too easy a combination for improper purposes; and to prevent hasty and ill-advised legislation. On the other hand the number ought to be kept within a moderate limit, in order to avoid the confusion, intemperance, and inconvenience of a multitude.1 It was a famous saying of Cardinal De Retz, that every public assembly, consisting of more than one hundred members, was a mere mob.2 But surely this is just as incorrect, as it would be to aver, that every one, which consisted of ten members, would be wise.
§ 652. The question then is, and for ever must be, in every nation, a mixed question of sound policy and discretion, with reference to its size, its population, its institutions, its local and physical condition, and all the other circumstances affecting its own interests and convenience. As a present number, sixty-five was sufficient for all the exigencies of the United States; and it was wisest and safest to leave all future questions of increase to be judged of by the future condition and exigencies of the Union. What ground could there be to suppose, that such a number chosen biennially, and responsible to their constituents, would voluntarily betray
1 The Federalist, No. 55; 1 Elliot's Debates, 219, 220, 226, 227, 241,
242, 245, 246, 253; 2 Wilson's Law Lect. 150; 1 Kent's Comm. 217.
2 2 Wilson's Law Lect. 150.
their trusts, or refuse to follow the public will? The very state of the country forbade the supposition. They would be watched with the jealousy and the power of the state legislatures.1 They would have the highest inducements to preform their duty. And to suppose, that the possession of power for so short a period could blind them to a sense of their own interests, or tempt them to destroy the public liberties, was as improbable, as any thing, which could be within the scope of the imagination.2 At all events, if they were guilty of misconduct, their removal would be inevitable; and their successors would be above all false and corrupt conduct. For to reason otherwise would be equivalent to a declaration of the universal corruption of all mankind, and the utter impracticability of a republican government. The congress, which conducted us through the revolution, was a less numerous body, than their successors will be.3 They were not chosen by, nor responsible to, the people at large;4 and though appointed from year to year, and liable to be recalled at pleasure, they were generally continued for three years. They held their consultations in secret. They transacted all our foreign affairs. They held the fate of their country in their hands during the whole war. Yet they never betrayed our rights, or our interests. Nay, calumny itself never ventured to whisper any thing against their purity or patriotism.5
1 The Federalist, No. 55; 1 Elliot's Debates, 238, 239.
2 The Federalist, No. 55; 1 Elliot's Debates, 252, 253, 254.
3 The Federalist, No. 55; 1 Elliot's Debates, 206, 223, 249.
4 Generally they were chosen by the state legislatures; but in two states, viz. Rhode-Island and Connecticut, they were chosen by the people.*
5 The Federalist, No. 55; 1 Elliot's Debates, 254.
* The Federalist, No. 40.
§ 652. The suggestion is often made, that a numerous representation is necessary to obtain the confidence of the people.1 This is not generally true. Public confidence will be easily gained by a good administration; and it will be secured by no other.2 The remark, made upon another occasion by a great man, is correct in regard to representatives -- non numerantur, ponderantur. Delaware has just as much confidence in her representation of twenty-one, as New-York has in hers of sixty-five; and Massachusetts has in hers of more than three hundred.3
§ 653. Nothing can be more unfair and impolitic, than to substitute for argument an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, inflict the most serious injury upon their own cause. As there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust; so there are other qualities in human nature, which justify a certain portion of esteem and confidence. A republican government presupposes, and requires the existence of these qualities in a higher degree, than any other form; and wholly to destroy our reliance on them is to sap all the foundation, on which our liberties must rest.4
§ 654. The next objection was, that the house of representatives would be too small to possess a due knowledge of the interests of their constituents. It was said, that the great extent of the United States, the
1 Elliot's Debates, 206, 217.
2 Id. 227, 228.
3 1 Elliot's Debates, 227, 228, 241, 252, 253, 254; 2 Elliot's Debates, 107, 116.
4 The Federalist, No. 55; 1 Elliot's Debates, 238, 239.
variety of its interests, and occupations, and institutions would require a very numerous body in order to bring home information necessary and proper for wise legislation.1
§ 655. In answer to this objection, it was admitted, that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no farther, than to those interests and circumstances, to which the authority and care of the representative relate. Ignorance of very minute objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to the performance of the legislative trust.2 If the argument, indeed, required the most minute knowledge, applicable even to all the professed objects of legislation, it would overturn itself; for the thing would be utterly impracticable. No representative, either in the state or national councils, ever could know, or even pretend to know, all arts, and sciences, and trades, and subjects, upon which legislation may operate. One of the great duties of a representative is, to inquire into, and to obtain the necessary information to enable him to act wisely and correctly in particular cases. And this is attained by bringing to the investigation of such cases talents, industry, experience, and a spirit of comprehensive inquiry. No one will pretend, that he, who is to make laws, ought not to be well instructed in their nature, interpretation, and practical results. But what would be said, if, upon such a theory, it was to be seriously urged, that none, but practical lawyers, ought ever to be eligible as legislators? The truth is, that we must rest
1 1 Elliot's Debates, 219, 220, 228, 232, 233, 241.
2 The Federalist, No. 55; 1 Elliot's Debates, 228, 229; 1 Kent's Comm. 217.
satisfied with general attainments; and it is visionary to suppose, that any one man can represent all the skill, and interests, and business, and occupations of all his constituents in a perfect manner, whether they be few or many. The most, that can be done, is, to take a comprehensive survey of the general outlines; and to search, as occasion may require, for that more intimate information, which belongs to particular subjects requiring immediate legislation.
§ 656. It is by no means true, that a large representation is necessary to understand the interests of the people. It is not either theoretically, or practically true, that a knowledge of those interests is augmented in proportion to the increase of representatives.1 The interests of the state of New-York are probably as well understood by its sixty-five representatives, as those of Massachusetts by its three or four hundred. In fact, higher qualifications will usually be sought and required, where the representatives are few, than where they are many. And there will also be a higher ambition to serve, where the smallness of the number creates a desirable distinction, than where it is shared with many, and of course individual importance is essentially diminished.
§ 657. Besides; in considering this subject, it is to be recollected, that the powers of the general government are limited; and embrace only such objects, as are of a national character. Local information of peculiar local interests is, consequently, of less value and importance, than it would be in a state legislature, where the powers are general.2 The knowledge required of a national representative is, therefore, necessarily of a
1 1 Elliot's Debates, 229.
2 The Federalist, No. 56.
more large and comprehensive character, than that of a mere state representative. Minute information, and a thorough knowledge of local interests, personal opinions, and private feelings, are far more important to the latter than the former.1 Nay, the very devotion to local views, and feelings, and interests, which naturally tends to a narrow and selfish policy, may be a just disqualification and reproach to a member of congress.2 A liberal and enlightened policy, a knowledge of national rights, duties, and interests, a familiarity with foreign governments, and diplomatic history, and a wide survey of the operations of commerce, agriculture, and manufactures, seem indispensable to a lofty discharge of his functions.3 A knowledge of the peculiar interests, and products, and institutions of the different states of the Union, is doubtless of great value; but it is rather as it conduces to the performance of the higher functions already spoken of, than as it sympathizes with the local interests and feelings of a particular district, that it is to be estimated.4 And in regard to those local facts, which are chiefly of use to a member of congress, they are precisely those, which are most easily attainable from the documentary evidence in the departments of the national government, or which lie open to an intelligent man in any part of the state, which he may represent.5 A knowledge of commerce, and taxation, and manufactures, can be obtained with more certainty by inquiries conducted through many, than through a single channel of communication. The representatives of each state
1 1 Elliot's Debates, 228, 229, 253; 2 Lloyd's Debates, (in 1789,) 189;
The Federalist, No. 56.
2 1 Elliot's Debates, 238.
3 1 Elliot's Debates, 228, 229, 253; The Federalist, No. 56.
4 The Federalist, No, 56; 1 Elliot's Debates, 220, 241, 242, 246, 253.
5 The Federalist, No. 56; 1 Elliot's Debates, 228, 229, 253.
will generally bring with them a considerable knowledge of its laws, and of the local interests of their districts. They will often have previously served as members in the state legislatures; and thus have become, in some measure, acquainted with all the local views and wants of the whole state.1
§ 658. The functions, too, of a representative in congress require very different qualifications and attainments, from those required in a state legislature. Information relative to local objects is easily obtained in a single state; for there is no difference in its laws, and its interests are but little diversified. But the legislation of congress reaches over all the states; and as the laws and local circumstances of all differ, the information, which is requisite for safe legislation, is far more difficult and various, and directs the attention abroad, rather than at home.2 Few members, comparatively speaking, will be found ignorant of the local interests of their district or state; but time, and diligence, and a rare union of sagacity and public spirit, are indispensable to avoid egregious mistakes in national measures.
§ 659. The experience of Great Britain upon this subject furnishes a very instructive commentary. Of the five hundred and fifty-eight members of the house of commons one ninth are elected by three hundred and sixty-four persons; and one half by five thousand seven hundred and twenty-three persons.3 And this half certainly have little or no claim to be deemed the guardians of the interests of the people, and indeed are
1 The Federalist, No. 56.
2 Id. No. 56; Id. No. 35.
3 See Mr. Christian's note, (34,) to 1 Black. Comm. 174, where he states the number, of which the house of commons has consisted at different periods, from which it appears, that it has been nearly doubled since the beginning of the reign of Henry the Eighth. See also 4 Inst. 1.
notoriously elected by other interests.1 Taking the population of the whole kingdom the other half will not average more than one representative for about twenty-nine thousand of the inhabitants.2 It may be added, that nothing is more common, than to select men for representatives of large and populous cities and districts, who do not reside therein; and cannot be presumed to be intimately acquainted with their local interests and feelings. The choice, however, is made from high motives, a regard to talent, public services, and political sagacity. And whatever may be the defects of the representative system of Great Britain, very few of the defects of its legislation have been imputed to the ignorance of the house of commons of the true interests or circumstances of the people.3
§ 660. In the history of the constitution it is a curious fact, that with some statesmen, possessing high political distinction, it was made a fundamental objection against the establishment of any national legislature, that if it " were composed of so numerous a body of men, as to represent the interests of all the inhabitants of the United States in the usual and true ideas of representation, the expense of supporting it would be intolerably burthensome; and that if a few only were vested with a power of legislation, the interests of a great majority of the inhabitants of the United States must be necessarily unknown; or, if known, even in the first stages of the operations of the new government, unattended to."4 In their view a free government seems to
1 The Federalist, No. 56; Paley's Moral Philosophy, B. 6, ch. 7.
2 The Federalist, No. 56, 57.
3 The Federalist, No. 56. See also Dr. Franklin's Remarks, 2 Pitkin's Hist. 242; 1 Wilson's Law Lect. 431, 432; Paley's Moral Philosophy, B. 6, ch. 7; l Kent's Comm. 219.
4 Letter of Messrs. Yates and Lansing to Gov. Clinton, 1788, (3 Amer. Museum, 156, 158.)
have been incompatible with a great extent of territory, or population. What, then, would become of Great Britain, or of France, under the present constitution of their legislative departments?
§ 661. The next objection was, that the representatives would be chosen from that class of citizens, which would have the least sympathy with the mass of the people; and would be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few.1 It was said, that the author of nature had bestowed on some men greater capacities, than on others. Birth, education, talents, and wealth, created distinctions among men, as visible, and of as much influence, as stars, garters, and ribbons. In every society men of this class will command a superior degree of respect; and if the government is so constituted, as to admit but few to exercise its powers, it will, according to the natural course of things, be in their hands. Men in the middling class, who are qualified as representatives, will not be so anxious to be chosen, as those of the first; and if they are, they will not have the means of so much influence.2
§ 662. It was answered, that the objection itself is of a very extraordinary character; for while it is levelled against a pretended oligarchy, in principle it strikes at the very root of a republican government; for it supposes the people to be incapable of making a proper choice of representatives, or indifferent to it, or utterly corrupt in the exercise of the right of suffrage. It would not be contended, that the first class of society, the men of talents, experience, and wealth, ought to be
1 The Federalist, No. 57; 1 Elliot's Debates, 220, 221. See also The
Federalist, No. 35.
2 1 Elliot's Debates, 221, 222.
constitutionally excluded from office. Such an attempt would not only be unjust, but suicidal; for it would nourish an influence and faction within the state, which, upon the very supposition, would continually exert its whole means to destroy the government, and overthrow the liberties of the people.1 What, then, is to be done? If the people are free to make the choice, they will naturally make it from that class, whatever it may be, which will in their opinion best promote their interests, and preserve their liberties.2 Nor are the poor, any more than the rich, beyond temptation, or love of power. Who are to be the electors of the representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the heirs of distinguished families, more than the children of obscurity and unpropitious fortune.3 The electors are to be the body of the people of the United States, jealous of their rights, and accustomed to the exercise of their power. Who are to be the objects of their choice? Every citizen, whose merit may commend him to the esteem and confidence of his fellow citizens. No qualification of wealth, or birth, or religion, or civil profession, is recognised in the constitution; and consequently, the people are free to choose from any rank of society according to their pleasure.4
§ 663. The persons, who shall be elected representatives, must have all the inducement to fidelity, vigilance, and a devotion to the interests of the people, which can possibly exist. They must be presumed to be selected from their known virtues, and estimable
1 Elliot's Debates, 222, 223.
2 The Federalist, No. 35; Id. No. 36; Id. No. 57.
3 The Federalist, No. 57; Id. No. 35; Id. No. 36.
4 The Federalist, No. 57; Id. No. 35; Id. No. 36.
qualities, as well as from their talents. They must have a desire to retain, and exalt their reputation, and be ambitious to deserve the continuance of that public favour, by which they have been elevated. There is in every breast a sensibility to marks of honour, of favour, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns.1 But the interest of the representative, which naturally binds him to his constituents, will be strengthened by motives of a selfish character. His election is biennial; and he must soon return to the common rank of a citizen, unless he is re-elected. Does he desire office? Then that very desire will secure his fidelity. Does he feel the value of public distinctions? Then his pride and vanity will equally attach him to a government, which affords him an opportunity to share in its honours and distinctions, and to the people, who alone can confer them.2 Besides; he can make no law, which will not weigh as heavily on himself and his friends, as on others; an he can introduce no oppression, which must not be borne by himself, when he sinks back to the common level. As for usurpation, or a perpetuation of his authority, independent of the popular will, that is hopeless, until the period shall have arrived, in which the people are ready to barter their liberties, and are ready to become the voluntary slaves of any despot.3 Whenever that period shall arrive, it will be useless to speak of guardians, or of rights. Where all are corrupt, it is idle to talk of virtue. Quis custodiet custodes?
1 The Federalist, No. 57.
2 The Federalist, No. 57.
3 The Federalist, No. 57; Id. No. 35, 36.
Who shall keep watch over the people, when they choose to betray themselves?
§ 664. The objection itself is, in truth, utterly destitute of any solid foundation. It applies with the same force to the state legislatures, as to that of the Union. It attributes to talents, and wealth, and ambition an influence, which may be exerted at all times, and everywhere. It speaks in no doubtful language, that republican government is but a shadow, and incapable of preserving life, liberty, or property.1 It supposes, that the people are always blind to their true interests, and always ready to betray them; that they can safely trust neither themselves, nor others. If such a doctrine be maintainable, all the constitutions of America are founded in egregious errors and delusions.
§ 665. The only perceptible difference between the case of a representative in congress, and in the state legislature, as to this point, is, that the one may be elected by five or six hundred citizens, and the other by as many thousands.2 Even this is true only in particular states; for the representatives in Massachusetts (who are all chosen by the towns) may be elected by six thousand citizens; nay, by any larger number, according to the population of the town. But giving the objection its full force, could this circumstance make any solid objection? Are not the senators in several of the states chosen by as large a number? Have they been found more corrupt, than the representatives? Is the objection supported by reason? Can it be said, that five or six thousand citizens are more easily corrupted, than five or six hundred?3 That the aggregate
1 The Federalist, No. 57; Id. No. 35, 36.
2 The Federalist, No. 57.
3 The Federalist, No. 57.
mass will be more under the influence of intrigue, than a portion of it? Is the consequence, deducible from the objection, admissible? If it is, then we must deprive the people of all choice of their public servants in all cases, where numbers are not required.1 What, then, is to be done in those states, where the governors are by the state constitution to be chosen by the people? Is the objection warranted by facts? The representation in the British house of commons (as has been already stated) very little exceeds the proportion of one for every thirty thousand inhabitants.2 Is it true, that the house of commons have elevated themselves upon the ruin of the many? Is it true, that the representatives of boroughs have been more faithful, or wise, or honest, or patriotic, than those of cities and of counties? Let us come to our own country. The districts in New-Hampshire, in which the senators are chosen immediately by the people, are nearly as large, as will be necessary for her representatives in congress. Those in Massachusetts come from districts having a larger population; and those in New-York from districts still larger. In New-York and Albany the members of assembly are elected by nearly as many voters, as will be required for a member of congress, calculating on the number of sixty-five only. In some of the counties of Pennsylvania the state representatives are elected in districts nearly as large, as those required for the federal representatives. In the city of Philadelphia (composed of sixty thousand inhabitants) every elector has a right to vote for each of the representatives in the state legislature; and actually elects a single member to the executive council.3 These are facts, which
1 The Federalist, No. 57.
2 Id. No. 56, 57.
3 Id. No. 57.
demonstrate the fallacy of the objection; for no one will pretend, that the rights and liberties of these states are not as well maintained, and as well understood by their senators and representatives, as those of any other states in the Union by theirs. There is yet one stronger case, that of Connecticut; for there one branch of the legislature is so constituted, that each member of it is elected by the whole state.1
§ 666. The remaining objection was, that there was no security, that the number of members would be augmented from time to time, as the progress of the population might demand.2
§ 667. It is obvious, that this objection is exclusively founded upon the supposition, that the people will be too corrupt, or too indifferent, to select proper representatives; or, that the representatives, when chosen, will totally disregard the true interests of their constituents, or wilfully betray them. Either supposition (if the preceding remarks are well founded) is equally inadmissible. There are, however, some additional considerations, which are entitled to great weight. In the first place, it is observable, that the federal constitution will not suffer in comparison with the state constitutions in regard to the security, which is provided for a gradual augmentation of the number of representatives. In many of them the subject has been left to the discretion of the legislature; and experience has thus far demonstrated not only, that the power is safely lodged, but that a gradual increase of representatives (where it could take place) has kept pace with that of the constituents.3 In the next place, as a new census is to
1 The Federalist, No. 57.
2 The Federalist, No. 58; 1 Elliot's Debates, 204, 224.
3 The Federalist, No. 58.
take place within every successive ten years, for the avowed purpose of readjusting the representation from time to time, according, to the national exigencies, it is no more to be imagined, that congress will abandon its proper duty in this respect, than in respect to any other power confided to it. Every power may be abused; every duty may be corruptly deserted. But, as the power to correct the evil will recur at least biennially to the people, it is impossible, that there can long exist any public abuse or dereliction of duty, unless the people connive at, and encourage the violation.1 In the next place, there is a peculiarity in the federal constitution, which must favour a constitutional augmentation of the representatives. One branch of the national legislature is elected by the people; the other, by the states. In the former, consequently, the large states will have more weight; in the latter, the smaller states will have the advantage. From this circumstance, it may be fairly inferred, that the larger states, and especially those of a growing population, will be strenuous advocates for increasing the number and weight of that part of the legislature, in which their influence predominates.2
§ 668. It may be said, that there will be an antagonist influence in the senate to prevent an augmentation. But, upon a close view, this objection will be found to lose most of its weight. In the first place, the house of representatives, being a co-ordinate branch, and directly emanating from the people, and speaking the known and declared sense of the majority of the people, will, upon every question of this nature, have
1 Elliot's Debates, 239.
2 The Federalist, No. 58; 2 Lloyd's Debates, in 1789, P. 192.
no small advantage, as to the means of influence and resistance. In the next place, the contest will not be to be decided merely by the votes of great states and small states, opposed to each other, but by states of intermediate sizes, approaching the two extremes by gradual advances. They will naturally arrange themselves on the one side, or the other, according to circumstances; and cannot be calculated upon, as identified permanently with either. Besides; in the new states, and those, whose population is advancing, whether they are great or small, there will be a constant tendency to favour augmentations of the representatives; and, indeed, the large states may compel it by making re-apportionments and augmentations mutual conditions of each other.1 In the third place, the house of representatives will possess an exclusive power of proposing supplies for the support or government; or, in other words, it will hold the purse-strings of the nation. This must for ever give it a powerful influence in the operations of the government; and enable it effectually to redress every serious grievance.2 The house of representatives will, at all times, have as deep an interest in maintaining the interests of the people, as the senate can have in maintaining that of the states.3
§ 669. Such is a brief view of the objections urged against this part of the constitution, and of the answers given to them. Time, as has been already intimated, has already settled them by its own irresistible demonstrations. But it is impossible to withhold our tribute of admiration from those enlightened statesmen, whose
1 The Federalist, No. 58.
2 The Federalist, No. 57; 1 Elliot's Debates, 226, 227.
3 The Federalist, No. 58.
profound reasoning, and mature wisdom, enabled the people to see the true path of safety. What was then prophecy and argument has now become fact. At each successive census, the number of representatives has been gradually augmented.1 In 1792, the ratio adopted was 33.000, which gave an aggregate of one hundred and six representatives. In 1802, the same ratio was adopted, which gave an aggregate of one hundred and forty-one members. In 1811, the ratio adopted was 35.000, which gave an aggregate of one hundred and eighty-one members. In 1822, the ratio adopted was 40.000, which gave an aggregate of two hundred and ten members. In 1832, the ratio adopted was 47.700, which gave an aggregate of two hundred and forty members.2
§ 670. In the mean time, the house of representatives has silently acquired vast influence and power over public opinion by its immediate connexion and sympathy with the people. No complaint has been urged, or could now with truth be urged, that it did not understand, or did not represent, the interests of the people, or bring to the public councils a competent knowledge of, and devotion to, the local interests and feelings of its constituents. Nay; so little is, and so little has the force of this objection been felt, that several states have voluntarily preferred to elect their representatives by a general ticket, rather than by districts. And the electors for president and vice-president are more frequently chosen in that, than in and other manner. The representatives are not, and never have
1 Act of 1792, ch. 23; Act of 1802, ch. 1; Act of 1811, ch. 9; Act of
1822, ch. 10; 1 Tuck. Black. Comm. App. 190; Rawle on Constitution, 45.
2 Act of 22d May, 1832, ch. 91.
been, chosen exclusively from any high, or privileged class of society. At this moment, and at all previous times, the house has been composed of men from almost every rank and class of society; planters, farmers, manufacturers, mechanics, lawyers, physicians, and divines; the rich, and the poor; the educated, and the uneducated men of genius; the young, and the old; the eloquent, and the taciturn; the statesman of a half century, and the aspirant, just released from his academical studies. Merit of every sort has thus been able to assert its claims, and occasionally to obtain its just rewards. And if any complaint could justly be made, it would be, that the choice had sometimes been directed by a spirit of intolerance, that forgot every thing but its own creed; or by a spirit of party, that remembered every thing but its own duty. Such infirmities, however, are inseparable from the condition of human nature; and their occurrence proves nothing more, than that the moral, like the physical world is occasionally visited by a whirlwind, or deluged by a storm.
§ 671. It remains only to take notice of two qualifications of the general principle of representation, which are engrafted on the clause. One is, that each state shall have at least one representative; the other is that already quoted, that the number of representatives shall not exceed one for every 30.000. The former was indispensable in order to secure to each state a just representation in each branch of the legislature; which, as the powers of each branch were not exactly co-extensive, and especially, as the power of originating taxation was exclusively vested in the house of representatives, was indispensable to preserve the equality of the small states, and to reconcile them to a surrender of their sovereignty. This proviso was
omitted in the first draft of the constitution, though proposed in one of the preceding resolutions.1 But it was adopted without resistance, when the draft passed under the solemn discussion of the convention.2 The other was a matter of more controversy. The original limitation proposed was 40.000;3 and it was not until the very last day of the session of the convention, that the number was reduced to 30.000.4 The object of fixing some limitation was to prevent the future existence of a very numerous and unwieldy house of representatives. The friends of a national government had no fears, that the body would ever become too small for real, effective, protecting service. The danger was, that from the natural impulses of the popular will, and the desire of ambitious candidates to attain office, the number would be soon swollen to an unreasonable size, so that it would at once generate, and combine factions, obstruct deliberations, and introduce and perpetuate turbulent and rash counsels.5
§ 672. On this subject, let the Federalist speak in its own fearless and expressive language. "In all legislative assemblies the greater the number composing them may be, the fewer will the men be, who will, in fact, direct their proceedings.6 In the first place, the more numerous any assembly may be, of whatever characters composed, the greater is known to be the
1 Journ. of Convention, 157, 158, 209, 215.
2 Journ. of Convention, 8th Aug. p. 236.
3 Journ. of Convention, 157, 217, 233, 352.
4 Journ. of Convention, 17th Sept. 1787, p. 389.
5 1 Lloyd's Debates in 1789, 427, 434; Lloyd's Debates, 183, 185, 186, 188, 189, 190.
6 The same thought is expressed with still more force in the American pamphlet, entitled, Thoughts upon the Political situation of America. (Worcester, 1788,) 54.
ascendancy of passion over reason. In the next place, 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 scepter 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 n 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."1 This amendment was never ratified by a competent number of the states to be incorporated into the constitution.2 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 Judice 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 an other 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.
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.1 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."2
§ 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.3 The president returned the bill with two objections." 1. That the constitu-
1 The words of the bill were, "That from and after 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
five, within the state of Massachusetts, sixteen," &c. &c. enumerating all
2 5 Marshall's Life of Washington, ch. 5, p. 321, 322.
3 4 Jefferson's Correspondence, 466.
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."1 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
1 5 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 cypres, 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.2
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 lending 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 representation 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.1 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:
Vermont, 85,532 3 It happens that this representation, New-Hampshire, 141,832 5 whether tried a between great and Massachusetts, 475,327 15 small states, or as between north Rhode-Island, 68,444 2 and south, yields, in the present Connecticut, 325,941 8 instance, a tolerably just result, New-York, 325,915 11 and consequently could not be objected New-Jersey, 179,556 6 to on that ground, if it were obtained Pennsylvania, 432,880 14 by the process prescribed in the Delaware, 55,538 2 constitution; but if obtained by any Maryland, 278,513 9 process out of that, it becomes Virginia, 630,558 21 inadmissible. Kentucky, 68,705 2 North Carolina, 353,521 11 South Carolina, 206,236 7 Georgia, 70,843 2 3,636,312 120
"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.
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:
Vermont, 2 2 2 2 2 3 Then the bill reverses the New-Hampshire, 4 4 4 4 4 5 constitutional precept; Massachusetts 16 15 15 14 14 16 because, by it, Rhode-Island, 2 2 2 2 2 2 representatives are not Connecticut, 8 7 7 7 7 8 apportioned among the New-York, 12 11 11 11 10 11 several states according New-Jersey, 6 5 5 5 5 6 to their respective numbers.' Pennsylvania, 14 14 13 13 13 14 Delaware, 1 1 1 1 1 2 Maryland, 9 9 8 8 8 9 Virginia, 21 21 20 19 19 21 Kentucky, 2 2 2 2 2 2 North Carolina, 12 11 11 11 10 2 South Carolina, 7 6 6 6 6 7 Georgia, 2 2 2 2 2 2 118 112 109 107 105 120
"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 representatives shall choose their speaker, and other
Vermont, New-Hampshire, Massachusetts, Connecticut, New-Jersey, Delaware,
North Carolina, and South Carolina. As follows:
And Rhode Island, 68,444 2 Vermont, 85,532 3 New York, 352,915 11 New-Hampshire, 141,823 5 Pennsylvania, 432,880 14 Massachusetts, 475,327 16 Maryland, 278,513 9 Connecticut, 235,941 8 Virginia, 630,558 21 New-Jersey, 179,556 6 Kentucky, 68,705 2 Delaware, 55,538 2 Georgia, 70,843 2 North Carolina, 353,521 12 South Carolina, 206,236 7
"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 allowsrepresentation to any smaller number 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 ease, 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 slate, 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 impeachment."
§ 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:
Ratio of Fractions 28,858 Vermont, - - 85,532 2 27,816 New-Hampshire - 141,823 4 26,391 Massachusetts - - 475,397 16 13,599 Rhode-Island - - 68,444 2 10,728 Connecticut - - 235,941 8 5,077 New-York - - 352,915 12 6,619 New-Jersey - - 179,556 6 6,408 Pennsylvania - - 432,880 15 10 _____ 96,648 Delaware - - 55,538 1 26,680 Maryland - - 278,513 9 18,791 Virginia - - - 630,558 21 24,540 Kentucky - - 68,705 2 10,989 North Carolina - - 353,521 12 7,225 South Carolina - - 206,236 7 4,230 Georgia - - - 70,843 2 13,127 105,582 _________________________________ 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.1 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.2 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 state, 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 newer 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 Corn. Dig. Parliament, E. 5; 4 Inst. 8, Lax. Parl. ch. 12, p. 74.
a disposition to undue subserviency.1 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.
Fractions. Ist - - - 45,000 2 15,000 2d - - 45,000 2 15,000 2d - - - 45,000 2 15,000 4th - - - 45,000 2 15,000 5th - - - 45,000 2 15,000 6th - - - 45,000 2 15,000 7th - - - 45,000 2 15,000 8th - - 45,000 2 15,000 9th - - 44,999 1 14,999 10th - - - 44,999 1 14,999 11th - - - 44,999 1 14,999 12th - - - 44,999 1 14,999 13th - - - 44,9.r9 1 14,999 14th - - - 44,999 1 14,999 15th - - - 44,999 1 14,999 ______ 674,993
"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 development 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, tiffs 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.
right of choosing a speaker, without any appeal to, or approval by any other department of the government, is an improvement upon the British system. It secures
now In Pennsylvania assembly: whereas the other construction reduces the
apportionment always to an arithmetical operation, about which no two men
can possibly differ.
"3. It leaves in full force the violation of the precept which declares, that representatives shall be apportioned among the states according to their numbers, that is, by some common ratio.
"Viewing this hill either as a violation of the constitution, or as giving an inconvenient exposition to its words, is it a case wherein the president ought to interpose his negative? I think it is.
"1. The non-user of his negative begins. already to excite a belief, that no president will ever venture to use it; and, consequently, has begotten a desire to raise up barriers in the state legislatures against congress throwing off the control of the constitution.
"2. It can ever be used more pleasingly to the public, than in the protection of the constitution.
"3. No invasions of the constitution are so fundamentally dangerous, as the tricks played on their own numbers, apportionment, and other circumstances respecting themselves, and affecting their legal qualifications to legislate. for the Union.
"4. The majorities, by which this bill has been carried, (to wit, of one in the senate, and two in the house of representatives,) show how divided the opinions were there.
"5. The whole of both houses admit the constitution will bear the other exposition; whereas the minorities in both deny it will hear that of the bill.
"6. The application of any one ratio is intelligible to the people, and will, therefore, be approved; whereas the complex operations of this bill will never be comprehended by them; awl, though they may acquiesce, they cannot approve, what they do not understand."
Mr. Webster's report on the same subject, in the senate in April, 1832, presents the leading arguments on the other side.
"This bill, like all laws on the same subject, must be regarded, as of an interesting and delicate nature. It respects the distribution of political power among the states of the Union. It is to determine the number of voices, which, for ten years to come, each state is to possess in the popular branch of the legislature. In the opinion of the committee, there can be few or no questions, which it is more desirable should be settled on just, fair, and satisfactory principles, than this; and, availing themselves of the benefit of the discussion, which the bill has already undergone in the senate, they have given to it a renewed and anxious consideration. The result is, that, in their opinion, the bill ought to be
a more independent and unlimited choice on the part of the house, according to the merits of the individual, and their own sense of duty. It avoids those incon-
amended. Seeing the difficulties, which belong to the whole subject, they are fully convinced, that the hill has been framed and passed in the other house, with the sincerest desire to overcome those difficulties, and to enact a law, which should do as much justice as possible to all the states. But the committee are constrained to say, that this object appears to them not to have been obtained. The unequal operation of the bill on some of the states, should it become a law, seems to the committee most manifest; and they cannot but express a doubt, whether its actual apportionment of the representative power among the several states can be considered, as conformable to the spirit of the constitution. The bill provides, that, from and after the third of March, 1833, the house of representatives shall be composed of members, elected agreeably to a ratio of one representative for every forty-seven thousand and seven hundred persons in each state, computed according to the rule prescribed by the constitution. The addition of the seven hundred to the forty-seven thousand, in the composition of this ratio, produces no effect whatever in regard to the constitution of the house. It neither adds to, nor takes from, the number of members assigned to any state. Its only effect is, a reduction of the apparent amount of the fractions, as they are usually called, or residuary numbers, alter the application of the ratio. For all other purposes, the result is precisely the same, as if the ratio had been 47,000.
"As it seems generally admitted, that inequalities do exist in this bill, and that injurious consequences will arise from its operation, which it would be desirable to avert, if any proper means of averting them, without producing others equally injurious, could be found, the committee do not think it necessary to go into a full and particular statement of these consequences. They will content themselves with presenting a few examples only of these results, and such as they find it most difficult to reconcile with justice, and the spirit of the constitution.
"In exhibiting, these examples, the committee must necessarily speak of particular states; but it is hardly necessary to say, that they speak of them as examples only, and with the most perfect respect, not only for the states themselves, but for all those, who represent them here.
"Although the bill does not commence by fixing the whole number of the proposed house of representatives, yet the process adopted by it brings out the number of two hundred and forty members. Of these two hundred and forty members, forty are assigned to the state of NewYork, that is to say, precisely one sixth part of the whole. This assignment would seem to require, that New-York should contain one sixth part of the whole population of the United States; and would be bound
veniences and collisions, which might arise from the interposition of a negative in times of high party excitement. It extinguishes a constant source of jealousy
to pay one sixth part of all her direct taxes. Yet neither of these is the
case. The whole representative population of the United Stares is
11,929,005; that of New-York is 1,918,623, which is less than one sixth of
the whole, by nearly 70,000. Of a direct tax of two hundred and forty
thousand dollars, New-York would pay only $38.59. But if, instead of
comparing the numbers assigned to New-York with the whole numbers of the
house, we compare her with other states, the inequality is still more
evident and striking.
"To the state of Vermont, the bill assigns five members. It gives, therefore, eight times as many representatives to New-York, as to Vermont; but the population of New-York is not equal to eight times the population of Vermont, by more than three hundred thousand. Vermont has five members only for 280,657 persons. If the same proportion were to be applied to New-York, it would reduce the number of her members from forty to thirty-four --- making a difference more than equal to the whole representation of Vermont, and more than sufficient to overcome her whole power in the house of representatives.
"A disproportion, almost equally striking, is manifested, if we compare New-York with Alabama. The population of Alabama is 262,208; for this, she is allowed five members. The rule of proportion, which gives to her but five members for her number, would give to New-York but thirty-six for her number. Yet New-York receives forty. As compared with Alabama, then, New-York has an excess of representation equal to four fifths of the whole representation of Alabama; and this excess itself will give her, of course, as much weight in the house, as the whole delegation of Alabama, within a single vote. Can it be said, then, that representatives are apportioned to these states according to their respective numbers?
"The ratio assumed by the bill, it will be perceived, leaves large fractions, so called, or residuary numbers, in several of the small states, to the manifest loss of a part of their just proportion of representative power. Such is the operation of the ratio, in this respect, that NewYork, with a population less than that of New-England by thirty or thirty-five thousand, has yet two more members, than all the New-England states; and there are seven states in the Union, whose members amount to the number of 123, being a clear majority of the whole house, whose aggregate fractions altogether amount only to fifty-three thousand; while Vermont and New-Jersey, having together but eleven members, have a joint fraction of seventy-five thousand.
"Pennsylvania by the bill will have, as it happens, just as many members as Vermont, New-Hampshire, Massachusetts, and New-Jersey;
and heart-burning; and a disposition on one side to exert an undue influence, and on the other, to assume a hostile opposition. It relieves the executive depart-
but her population is not equal to theirs by a hundred and thirty thousand;
and the reason of this advantage, derived to her from the provisions of the
bill, is, that her fraction, or residuum, is twelve thousand only, while
theirs is a hundred and forty-four.
"But the subject is capable of being presented in a more exact and mathematical form. The house is to consist of two hundred and forty members. Now the precise proportion of power, out of the whole mass represented by the numbers two hundred and forty, which New-York would be entitled to according to her population, is 38.59; that is to say, she would be entitled to thirty-eight members, and would have a residuum, or fraction; and, even if a member were given her for that fraction, she would still have but thirty-nine; but the bill gives her forty.
"These are a part, and but a part, of those results produced by the bill in its present form, which the committee cannot bring themselves to approve. While it is not to be denied, that, under any rule of apportionment, some degree of relative inequality must always exist, the committee cannot believe, that the senate will sanction inequality and injustice to the extent, in which they exist in this bill, if they can be avoided. But recollecting the opinions, which had been expressed in the discussions of the senate, the committee have diligently sought to learn, whether there was not some other number, which might be taken for a ratio, the application of which would work out more justice sad equality. In this pursuit the committee have not been successful. There are, it is true, other numbers, the adoption of which would relieve many of the states, which suffer under the present; but this relief would be obtained only by shifting the pressure on to other States, thus creating new grounds of complaint in other quarters. The number forty-four thousand has been generally spoken of, as the most acceptable substitute for forty-seven thousand seven hundred; but should this be adopted, great relative inequality would fall on several states, and, among them, on some of the new and growing states, whose relative disproportion, thus already great, would be constantly increasing. The committee, therefore, are of opinion, that the bill should be altered in the mode of apportionment. They think, that the process, which begins by assuming a ratio, should be abandoned, and that the bill ought to be framed on the principle of the amendment, which has been the main subject of discussion before the senate. The fairness of the principle of this amendment, and the general equity of its results, compared with those, which flow from the other process, seem plain and undeniable. The main question has been, whether the principle itself be constitutional; and this question the committee proceeded to exam-
ment from all the embarrassments of opposing the popular will; and the house from all the irritation of not consulting the cabinet wishes.
ine, respectfully asking of those, who have doubted its constitutional
propriety, to deem the question of so much importance, as to justify a
"The words of the constitution are, 'representatives and direct taxes shall be apportioned among the several states, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians, three fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner, as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative.'
"There would seem to be little difficulty in understanding these provisions. The terms used are designed, doubtless, to be received in no peculiar or technical sense, but according to their common and popular acceptation. To apportion, is to distribute by right measure; to set off in just parts; to assign in due and proper proportion. These clauses of the constitution respect, not only the portions of power, but the portions of the public burden, also, which should fall to the several states; and the same language is applied to both. 'Representatives are to be apportioned among the states according to their respective numbers, and direct taxes are to be apportioned by the same rule. The end aimed at is, that representation and taxation should go hand in hand; that each state should be represented in the same extent, to which it is made subject to the public charges by direct taxation. But, between tim apportionment of representatives and the apportionment of taxes there necessarily exists one essential difference. Representation, founded on numbers, must have some limit; and being, from its nature, a thing not capable of indefinite subdivision, it cannot be made precisely equal. A tax, indeed, cannot always, or often be apportioned with perfect exactness; as, in other matters of account there will be fractional parts of the smallest coins, and the smallest denomination of money of account, yet, by the usual subdivisions of the coin, and of tim denomination of money, the apportionment of taxes is capable of being made so exact, that tire inequality becomes minute and invisible. But representation cannot be thus divided. Of representation, there can be nothing less than one representative; nor by our constitution, more representatives than one for every thirty thousand. It is quite obvious, therefore, that tim apportionment of representative power can never be precise anti
§ 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 tale. 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 [heir 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 hills, 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.1 The articles of impeachment are a kind of hill 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
"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 38.5 9; 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, as near as may be? And is not the constitution disregarded, when the bill goes further, and gives
1 2 Hale's Pl. Comm. 150; 4 Black. Comm. 259; 2 Wilson's Lay Lect. 165, 166.
of misdemeanors, considered, not only as their own peers, but as the peers of the whole nation.1 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 tony 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 sad 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
1 4 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, at 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 transcr ipt 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
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 hill 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 lint 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 n 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 subdivisions 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 or 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
1 2 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 posses, 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 nearest 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 n member for a major fraction is a direct approximation towards justice and quality. 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 iris 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; anti 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 o! 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 member 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 fur 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 net 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
tribunals.1 These prosecutions are, therefore, conducted by the representatives of the nation,' in their public capacity, in the face of the nation, and upon a
rule, adopted, but the assignment was matter of arbitrary discretion. A
member was allowed to New-Hampshire for example, for a fraction of less
than one half the ratio, thus placing her representation further from her
exact proportion, than it was without such additional member; while a
member was refused to Georgia, whose case closely resembled that of
New-Hampshire, both having what were thought large fractions, but both
still under a moiety of the ratio, and distinguished from each other only
by a very slight difference of absolute numbers. The committee have already
fully expressed their opinion on such a mode of apportionment.
"In regard to this character of the bill. President Washington said: 'The constitution has prescribed, that representatives shall be apportioned among the several states according to their respective numbers; and there is no one proportion, or divisor, which, applied to the respective numbers of the states, will yield the number and allotment of representatives proposed by the bill.'
"This was all undoubtedly true, and was, in the judgment of the committee, a decisive objection against the bill. It is nevertheless to be observed, that the other objection completely covered the whole ground. There could, in that bill, be no allowance for a fraction, great or small; because congress had taken for the ratio the lowest number allowed by the constitution, viz. thirty thousand. Whatever fraction a state might have less than that ratio, no member could be allowed for it. It is scarcely necessary to observe, that no such objection applies to the amendment now proposed. No state should the amendment prevail, will have a greater number of members than one for every thirty thousand; nor is it likely, that that objection will ever again occur. The whole force of the precedent, whatever it be, in its application to the present case is drawn from the other objection. And what is the true import of that objection? Does it mean any thing more than, that the apportionment was not made on a common rule or principle, applicable, and applied alike to all the states?
"President Washington's words are, 'there is no one proportion or divisor, which, applied to the respective numbers of the states, will yield the number and allotment of representatives proposed by the bill.'
"If, then, he could have found a common proportion, it would have removed this objection. He required a proportion or divisor. These
1 4 Black. Comm. 260; Rawle on the Constitution, ch. 22, p. 210, 211; 2
Woodeson's Lect. 40, p. 596, &c.
responsibility, which is at once felt, and reverenced by the whole community.1 The notoriety of the proceedings; the solemn manner, in which they are conducted;
words he evidently uses, as explanatory of each other. He meant by
divisor, therefore, no more than by proportion. What he sought was, some
common and equal rule, by which the allotment had been made among the
several states; he did not find such common rule; and on that ground, he
thought the bill objectionable.
"In the opinion of the committee, no such objection applies to the amendment recommended by them. That amendment gives a rule, plain, simple, just, uniform, and of universal application. The rule has been frequently stated. It may be clearly expressed in either of two ways. Let the rule be, that the whole number of the proposed house shall be apportioned among the several states according to their respective numbers, giving to each state that number of members, which comes nearest to her exact mathematical part or proportion; or, let the rule be, that the population of each state shall be divided by a common divisor, and that, in addition to the number of members resulting from such division, a member shall be allowed to each state, whose fraction exceeds a moiety of the divisor.
"Either of these is it seems to the committee, a fair and just rule, capable of uniform application, and operating with entire impartiality. There is no want of a common proportion, or a common divisor; there is nothing left to arbitrary discretion. If the rule, in either of these forms, be adopted, it can never be doubtful how every member of any proposed number for a house of representatives ought to be assigned. Nothing will be left in the discretion of congress; the right of each state will be a mathematical right, easily ascertained, about which there can be neither doubt nor difficulty; and, in the application of the rule, there will be no room for preference, partiality, or injustice. In any case, in all time to come, it will do all, that human means can do, to allot to every state in the Union its proper and just proportion of representative power. And it is because or this, its capability of constant application, as well as because of its impartiality and justice, that the committee are earnest in recommending its adoption to congress. If it shall be adopted, they believe it will remove a cause of uneasiness and dissatisfaction, recurring, or liable to recur, with every new census, and place the rights of the states, in this respect, on a fixed basis, of which none can with reason complain. It is true, that there may be some numbers assumed for the composition of the house of representatives, to which, if the rule were applied, the result might give a member to the
1 Rawle on the Constitution, ch. 22, p. 209.
the deep extent, to which they affect the reputations of the accused; the ignominy of a conviction, which is to be known through all time; and the glory of an acquittal, which ascertains and confirms innocence; -- these are all calculated to produce a vivid and lasting interest in the public mind; and to give to such prosecutions, when necessary, a vast importance, both as a check to crime, and an incitement to virtue.
§ 687. This subject will be resumed hereafter, when the other provisions of the constitution, in regard to impeachments, come under review. It does not appear, that the vesting of the power of impeachment in the house of representatives was deemed a matter of serious doubt or question, either in the convention, or with the people.1 If the true spirit of the constitution is consulted, it would seem difficult to arrive at any other conclusion, than of its fitness. It is designed, as a method of national inquest into the conduct of public men. If such is the design, who can so properly be the inquisitors
house more than was proposed. But it will be always easy to correct this,
by altering the proposed number by adding one to it, or taking one from it;
so that this can be considered no objection to the rule.
"The committee, in conclusion, cannot admit, that it is sufficient reason for rejecting this mode of apportionment, that a different process has heretofore prevailed. The truth is, the errors and inequalities of that process were at first not obvious and startling. But they have gone on increasing; they are greatly augmented and accumulated every new census; and it is of the very nature of the process itself, that its unjust results must grow greater and greater in proportion as the population of the country enlarges. What was objectionable, though tolerable yesterday, becomes intolerable to-morrow. A change, the committee are persuaded, must come, or the whole just balance and proportion of representative power among the states will be disturbed and broken up."
Mr. Everett also made a very able speech on the same subject, in which he pressed some additional arguments with great force on the same side. See his printed Speech of 17th May. 1832.
1 Journal of Convention, p. 69, 121, 137, 225, 226, 236; 3 Elliot's
Debates, 43, 44, 45, 46.
for the nation, as the representatives of the people themselves? They must be presumed to be watchful of the interests; alive to the sympathies, and ready to redress the grievances, of the people. If it is made their duty to bring official delinquents to justice, they can scarcely fail of performing it without public denunciation, and political desertion, on the part of their con- stituents.