for a commentator to discuss the question without bias, even were he so rash as to attempt to add to what was said by the eminent men who were engaged.

The reasons assigned by the majority were chiefly historical, designed to show that when the Constitution was adopted such a tax would have been considered as direct, and necessarily apportioned. In this it seems that they were successful. The chief reliance of the minority was on the principle stare decisis. They contended that the court ought not to overturn a construction of the Constitution settled by repeated decisions of their predecessors in the judiciary as well as acts of the other two departments of the government, which they contended had been undisturbed for over one hundred years. They argued, moreover, that the impossibility of the just apportionment of such a tax proved that it could not be within the intention of the Constitution; that the decision crippled the United States by depriving them of a power which might be indispensable to the successful conduct of a foreign war, when their ports were blockaded and so little revenue could be derived from a tariff; that it perpetuated a system of taxation unfair to the poor; and finally that it prevented the government from imposing upon the rich their just share of the public burdens.

One effect of the decision has been salutary. It has defeated an odious scheme of class-legislation. If upheld it will be a safeguard to property from any spoliation under the guise of Federal taxation, give encouragement to a new doctrine of State rights that may be of other assistance in the future, and afford a check to waste of the national treasury. Upon the other hand it has raised an obstacle against the further reduction of an oppressive tariff. It has shorn the United States of a power that might be essential to their preservation in case of war. And it has given a blow to settled principles of constitutional construction which makes no decision of the past seem any longer secure.38

37 See supra, § 41.

discuss the rules for the construction

28 In the last volume the writer will of the Constitution.

APPENDIX TO CHAPTER VIII.

JEFFERSON'S OPINION ON THE APPORTIONMENT OF 1792.

"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 New Hampshire 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 New Hampshire shall have three members, Massachusetts sixteen, &c. We are, therefore, to find by experiment what has been the principle of the 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:

"It happens that this representation, whether tried as between great and small States, or as between North and South, yields, in the present instance, a tolerably just result, and consequently could not be objected to on that ground, if it were obtained by the process prescribed in the

Constitution; but, if obtained, by any process out of that, it becomes inadmissible.

"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 representatives allotted in this bill; for, trying the several ratios of 29, 30, 31, 32, 33, the allottments would be as follows:

"Then the bill reverses the constitutional precept; because, by it, representatives are not apportioned among the several States according to their respective numbers.

"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 favor 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, Vermont, New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, North Carolina, and South Carolina. As follows:

"And if two ratios may be applied, then fifteen may, and the distribution become arbitrary, instead of being apportioned to numbers. "Another member of the clause of the Constitution, which has been cited says 'the number of representatives shall not exceed one for every 30,000, but each State shall have at least one representative.' This last phrase proves that it had in contemplation, that all fractions, or numbers below the common ratio, were to be unrepresented; and it provides specially that, in the case of a State whose whole number shall be below the common ratio, one representative shall be given to it. This is the single instance where it allows a representation 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 case, be involved in the general principle.

"The first phrase of the above citation, that the number of representatives shall not exceed one for every 30,000,' is violated by this bill, which has given to eight States a number exceeding one for every 30,000, to wit, one for every 27,770.

"In answer to this, it is said that this phrase may mean either the thirty thousands in each State, or the thirty thousands in the whole Union; and that, in the latter case, it serves only to find the amount of the whole representation, which, in the present state of population, is one hundred and twenty members. Suppose the phrase might bear both meanings, which will common sense apply to it? Which did the universal understanding of our country apply to it? Which did the Senate and Representatives apply to it during the pendency of the first bill,

and even till an advanced stage of this second bill, when an ingenious gentleman found out the doctrine of fractions, a doctrine so difficult and inobvious as to be rejected at first sight by the very persons who afterwards became 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:

"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 Hampshire. But it will be said 'This is giving more than one for