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of a negative in times of high party excitement. It extinguishes a constant source of jealousy and heartburning; and a disposition

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 represen tation would not be so near her exact right as it was before. But the allowance of a member for a major fraction is a direct approximation towards justice and equality. There appears to the committee to be nothing, either in the letter or the spirit of the Constitution, opposed to such a mode of apportionment. On the contrary, it seems entirely consistent with the very object which the Constitution contemplated, and well calculated to accomplish it. The argument commonly urged against it is, that it is necessary to apply some one common divisor, and to abide by its results.

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"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 State must be divided by a fixed ratio, and all resulting fractions, great or small, disregarded, this is but to take for granted the very thing in controversy. The question is, whether it be unconstitutional to make approximation to equality by allowing representatives for major fractions. The affirmative of this question is indeed denied; but it is not disproved by saying that we must abide by the operation of division, by an assumed ratio, and disregard fractions. The question still remains as it was before; and it is still to be shown what there is in the Constitution which rejects approximation as the rule of apportionment. But suppose it 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 anything, 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

on one side to exert an undue influence, and on the other to assume a hostile opposition. It relieves the executive department

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

"President Washington adopted that construction of the Constitution which applied its prohibition to each State individually. He thought that no State could, constitutionally, receive more than one 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 for thirty thousand inhabitants. Therefore, having allotted these one hundred and twelve, there still remained eight of the one hundred and twenty to be assigned; and these eight the bill assigned to the States having the largest fractions. Some of these fractions were large, and some were small. No regard was paid to fractions over a moiety of the ratio, any more than to fractions under it. There was no rule laid down, stating what fractions should entitle the States, to whom they might happen to fall, or in whose population they might happen to be found, to a representative therefor. The assignment was not made on the principle that each State should have a member for a fraction greater than half the ratio; or that all the States should have a member for a fraction, in all cases where the allowance of such member would bring her representation nearer to its exact proportion than its disallowance. There was no common measure or common rule adopted, but the assignment was matter of arbitrary dis

from all the embarrassments of opposing the popular will; and the House from all the irritation of not consulting the cabinet wishes.

§ 688. The other power, the sole power of impeachment, has a far wider scope and operation. An impeachment, as described

cretion. 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 anything 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 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

in the common law of England, is a presentment by the House of Commons, the most solemn grand inquest of the whole kingdom,

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 of 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 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. (a)

(a) Although this report did not become the basis of the apportionment in 1832, yet it was actually adopted as the basis, in the apportionment in 1842, under the new census. By the Act of 22d of June, 1842, the ratio was adopted of 70,680, and each State was declared entitled to as many representatives as its federal population would give divided by that number, and also to one additional member upon the remaining fraction, if

its population exceeded half of that number. Every decade now brings a change in the basis of representation, and thus far some increase in the number of representatives. But withal some inequality seems unavoidable; for population is at a standstill in some States, while in others there is vast increase in the course of ten years, and that increase has no representation.

to the House of Lords, the most high and supreme court of criminal jurisdiction of the kingdom.1 The articles of impeachment are a kind of bill of indictment found by the Commons, and tried by the Lords, who are, in cases of misdemeanors, considered, not only as their own peers, but as the peers of the whole nation.2 The origin and history of the jurisdiction of Parliament, in cases of impeachment, are summarily given by Mr. Woodeson; but little can be gathered therefrom which is now of much interest, and, like most other legal antiquities, they are involved in great obscurity. To what classes of offenders this applies, will be more properly an inquiry hereafter. In the Constitution of the United 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 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 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 presumed to escape punishment in the ordinary tribunals, either from their own extraordinary influence, or from the imperfect organization and powers of those tribunals. These prosecutions are, therefore, conducted by the representatives of the nation, in their public capacity, in the face of the nation and upon a responsibility which is at once felt and reverenced by the whole community." The notoriety of the proceedings, the solemn manner in which they are conducted, 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.

§ 689. This subject will be resumed hereafter, when the other provisions of the Constitution, in regard to impeachments, come

1 2 Hale's Pl. Cr. 150; 4 Black. Comm. 259; 2 Wilson's Law Lect. 165, 166. 24 Black. Comm. 260. 32 Woodeson's Lect. 40, p. 596, &c.

♦ 4 Black. Comm. 260; Rawle on the Constitution, ch. 22, pp. 210, 211; 2 Woodeson's Lect. 40, p. 596, &c.

5 Rawle on the Constitution, ch. 22, p. 209.

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