of misdemeanors, considered, not only as their own peers, but as the peers of the whole nation. 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 may 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 and 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

14 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, as 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 transcript 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. 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 bill 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 but 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 a 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 subdivisons 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 of 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 possess, 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 nearst 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 art 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 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.

"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