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sunution 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 inoment'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.
§ 83. 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, hat 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; 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 to it a relative proportion of Representatives, up to a given number, the whole being divisible by
some common divisor; but the fraction of population be longing to each beyond that point is left unprovided for. Sa 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 disregarded 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.
§ 84. 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; and 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.
$85 It is difficult to make this subject clear to the
common understanding, without introducing sorie tabular statements, which the nature of this work seems absolute ly to prohibit. But it may be stated, as an historical fact, that in every apportionment hitherto made of Representatives, whatever has been the number of inhabitants assumed as the ratio to govern the number of Representatives, whether thirty thousand or any higher number, there has always been a fraction in each State less than that number, and of course an unrepresented fraction. In some of the States, the fraction has been small; in others, very large; and in others, intermediate numbers constantly varying from each other. So that, in fact, there never has been any representation of each State, apportioned in exact proportion to its numbers, as the Consutution requires. The rule adopted has been, to assume a particular number of inhabitants as the ratio to give a single Representative, and to give to each State as many Representatives, as its population contained of that ratio or particular number; and to disregard all fractions below that.
§ 86. There remained two important points to be settled in regard to representation. First, that each State should have at least one Representative; for otherwise, it might be excluded from any share of the legislative power in one branch; and secondly, that there should be some limitation of the number of Representatives; for otherwise, Congress might increase the House to an unreasonable size. If Congress were left free to apportion the Representatives according to any basis of numbers they might select, half the States in the Union might be deprived of Representatives, if the whole number of their inhabitants fell below that basis. On the other hand, if the number selected for the basis were small, the House might become too unwieldy for business. There is, therefore, great wisdom in restricting the representation, so that there shall not be more than one Representative for every thirty thousand inhabitants in a State; and on the other hand, by a positive provision, securing tc each State a constitutional representation in the House, by at least one Representative, however sm all its own popu
ation may be. It is curious to remark, that it was ongi. nally thought a great objection to the Constitution, that the restriction of Representatives, to one for every thirty thousand, would give too small a House to be a safe depository of power; and that, now the fear is, that a restriction to double that number will hardly, in the future, restrain the size of the House within sufficiently moderate limits, for the purposes of an efficient and enlightene l legislation. So much has the growth of the country, under the auspices of the national Constitution, outstripped the most sanguine expectations of its friends.
§ 87. The next clause is; “When vacancies happen in the representation of any State, the executive authority thereof shall issue writs of election to fill such vacancies." It is obvious, that such a power ought to reside in some public functionary. The only question is, in whom it can, with most safety and convenience, be lodg ed. If vested in the general government, or in any department of it, it was thought, that there might not be as strong motives for an immediate exercise of the power, or as thorough a knowledge of local circumstances, to guide the exercise of it wisely, as if vested in the State government. It is, therefore, left to the latter, and to that branch of it, the State Executive, which is best fitted to exercise it with promptitude and discretion. And thus, one source of State jealousy is effectually dried up.
§ 88. The next clause is; "The House of Representatives shall choose their Speaker, and other officers; and shall have the sole power of impeachment.” Each of these privileges is of great practical importance. In Great Britain, the Speaker is elected by the House of Commons; but he must be approved by the King; and a similar power of approval belonged to some of the Governors in the Colonies, before the Revolution. An independent and unlimited choice by the House of Representatives of all their officers is every way desirable. It secures, on the part of their officers, a more efficient responsibility, and gives to the House a more complete authority over them. It avoids all the dangers and in
Conveniences, which may arise from differences of opinon between the House and the Executive, in periods of high party excitement. It relieves the Executive from all he embarrassments of opposing the popular will, and the House from all the irritations of not consulting the wishes of the Cabinet.
§ 89. Next, the Power of Impeachment. House of Representatives shall have the sole power of imbeachment ;" that is, the right to present a written accusation against persons in high offices and trusts, for the purpose of bringing them to trial and punishment for gross misconduct. The power, and the mode of proceeding, are borrowed from the practice of England. In that Kingdom, the House of Commons (which answers to our House of Representatives) has the right to present articles of impeachment against any person, for any gross misdemeanor, before the House of Lords, which is the court of the highest criminal jurisdiction in the realm. The articles of impeachment, are a sort of indictment; and the House, in presenting them, acts as a grand jury, and also as a public prosecutor. The great object of this power is, to bring persons to justice, who are so elevated in rank or influence, that there is danger, that they might escape punishment before the ordinary tribunals; and the exercise of the power is usually confined to political or official offences. These prosecutions are, therefore, conducted by the Representatives of the nation, in then public capacity, in the face of the nation, and upon a responsibility, which is felt and reverenced by the whole community. We shall have occasion, hereafter, to con sider the subject of impeachment more at large, in another place; and this may suffice here, as an explanation of the nature and objects of the power. No one can well doubt, that, if the power is to be exercised at all, by any popular body, it is most appropriately confided to the representatives of the people.