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 connection 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 appears 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 thous• and 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 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 "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 alloted 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 those 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 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 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 The thousand; nor is it likely that the objection will ever again occur. 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 allottment 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 rep resentative 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. 2 2 Story on the Constitution, 5th ed., vol. i, pp. 495, 512. See Senate Documents, 22d Cong., 1st Session, vol. ii, No. 93; ibid., No. 94; ibid., vol. iii, CHAPTER IX. VACANCIES IN THE HOUSE OF REPRESENTATIVES AND RESIGNATIONS FROM CONGRESS. § 70. Vacancies in the House of Representatives. THE next clause is: "When Vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.") 66 This was inserted by the committee of detail and adopted unanimously upon the consideration of their report.2 The propriety of adopting this clause does not seem to have furnished any matter of discussion, either in or out of the convention. It was obvious that the power ought to rest 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 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 circumstances of each State. Any general regulation would have worked with some inequality." An interesting question arose in 1837. The law of Mississippi fixed the time for the election of representatives in November. The President having called a special session of Congress to meet in September, the governor of Mississippi, on the 13th of June, issued writs for an election in July for two representatives to Congress to fill the vacancies caused by the expiration of the terms § 70. 1 Article I, Section 2. 2 Madison Papers, Elliot's Debates, 2d. ed., vol. v, pp. 377, 395. 3 Story on the Constitution, 5th ed., § 685, pp. 495-499. |