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and other days of your session, given to me of

APPORTIONIMENT,

your esteem and confidence. Should l be talled by the people of the United States to the administration of their Executive Government, it shall be my earnest endeavor to

HOUSE OF REPRESENTATIVES. Thuasdar, May 3, 1832.

fulfil their expectations; to maintain, with firm- Mr. Polk, from the Select Committee to which

ness and dignity, their interests and honor abroad; to eradicate every abuse and corruption at home; and to uphold, with vigor, and equality, and justice, the supremacy of the Constitution and the laws. * , Our greatest interest, in this world, is our liberty. Derived from our ancestors, by whose valor and blood it was established, it depends} upon the vigilance, virtue, and intelligence &f the present generation, whether it shall be preserved and transmitted to posterity, as the most precious of all earthly possessions. Next to that, in importance, is our Union, indissolubly

connected with it, also derived from the l

fathers of our country. But what we want is a practical, efficient, and powerful Union—one that shall impartially enforce the laws towards all, whether individuals or communities, who are justly subject to their authority; a Union which, if it shall ever be deemed necessory to chide one member of the confederacy, fo. fash and itemperate expressions, threatening its disturbance, will snatch violated laws and treates from beneath the feet of another mem. ber, and deliver free. citizens of the United States from unjust and ignominious imprison. ment, Gentlemen, it belongs to you, and the youn

men of your 2ge, to decide whether these great blessings of liberty and union shall be defended and preserved. The responsibility which attaches to you is immense. It is not our own country alone, that will be affected by the result of the great experiment of self government which will be shortly committed exclusively to your hands. The eyes of all civilized nations are intensely gazing upon us; and it may be truly asserted, that the sate of liberty, throughout the world, mainly depends upon the maintenance of American liberty.— May you, gentlemen, be deeply penetrated with the magnitude of the sacred trust confided to you. May you transfer into the busoms of your contemporaries, the enthusiasm which burns in your own! which you are all just entering, be long, and happy, and illustrious!

An honest Hibernian, who has been appointed to office under the present administration, meeting an acquaintance a few minutes after the assault upon Mr. Arnold, said: “The scoundrel ought to have been killed.” “Why so?” said the other. “Oh, he will do the old Pre. sident so much injury,” replied the Irishman.

EDITORIAL CHANGES. The Focus and Journal, at Louisville, Kentucky; the Commentator and Kentuckian, at Frankfort, and the Reporter and Observer, at Lexington, have been amalgamated. These

And may the career, on |

was referred the amendments of the Senate to the bill (H. R. No. 208) for the apportionment of Representatives among the several States, according to the Fifth Census, made the following Report:

The Select Committee, to whom was referred the bill passed by the House of Representatives, entitled “An act for the apportion. ment of Representatives among the several States according to the Fifth Census,” which was returned from the Senate with a propos. ed amendment thereto, have had the subject under consideration, and ask leave to report;

That the bill passed by this House, like eve. ry other upon the same subject which has become a law, assumes a common divisor or ratio of representation, which, being applied to the separate population of the respective States, and rejecting fractions, the number of Represenatives allotted to each is ascertained. It provides that there shall be one Representative in this House for each 47,700 of federal population in the respective States; and, according to this ratio, apportions to each State the num. ber of Representatives to which its population may entitle it, excluding from representation all factions of population in any State less than the ratio fixed in the bill. The bill of the House resembles, exactly, all the preceding laws enacted by Congress upon the same subject. It is difficult to conceive any case more exactly Parallel to another, than are the precedents fur. mished by the several apportionment laws of 1792, 1892, 1812, and 1822; to the bill as it passed this House. In all these cases, as is the House bill, a common ratio or divisor was taken, and employed, to produce the results. In all of them, factions existed in all the States, some greater, and others less than the moiety of the ratio, or common divisor selected; and yet, in not one of them was a Representative allotted to any State for a fraction of population below the ratio assumed. The amendment of the Senate proposes a total change of the bill as it passed this House, by striking out all after its enacting clause,and substituting a new scheme of representation of the people, in the popular branch of Congress, and is, in effect, an entire new bill. The amendment fixes the number of representatives in this House at 251 members; and, it is to be observed, that there is no ratio or common divisor that can be selected which, when applied to the respective population of the respective States, will “yield the number and allotment of representatives” proposed by it. The amendment of the Senate, unlike any former law on this subject, fixes not on a ratio of representation, but assumes the whole number of representatives of which the House shall be

are the leading papers devoted to the support of Mr. Clay.

composed, and, on principles of consolidation,

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aggregates the whole population of the sever. al States, divides this consolidated mass of federal population by the proposed number of the House; and, having thus obtained a ratio of representation, proceeds, by it, to apportion to each State such number of representatives as is equal to the number of times the ratio is contained in its population; and if, in this manner, there remain any of the number of representatives proposed as the proper number of the House, such numbers are apportioned one to each State having a fraction larger than the moiety of the ratio so obtained. The princi. ple of the amendment, as the committee understand it, is, first, to fix the number of the House, and then to apportion them to the States on a ratio ascertained from the consolidated federal population of the United States, so as to give to each State a representative for each number of times the population of such State may contain such ratio, and, also, one additional representative to each State for any fraction of its population greater than one-half that ratio; and to leave unrepresented all fractions in each State less than one-half such ratio, though the aggregate of such minor should exceed the aggregate of such major fractions. pon this principle, the amendment of the Semale allots, to eleven of the States, each one representative for fractions; and the question presented by it is, shall fractions be represented, or can they be represented according to the constitution? The committee believe that the principle adopted by the House of fixing on a ratio, applying it to the federal population of the seve. respectively, without any reference to factions, is constitutional and expedient; and that the principle now sought to be esta. blished by the amendment of the Senate, is unconstitutional and entirely inexpedient. That the apportionment adopted by the bill of the House is constitutional, and that provided in the Senate's amendment unconstitutional, will, it is believed, equally appear- * 1st. From the express provisions of the *titution applicableto the subject—and .2d. From the cotemporaneous construction gove)"o the constitution, and all the legislation ever had under it. - . By the second section of the first article of the coustitution, it is provided that “represen*tives and direct taxes shall be apportioned among the several States which may be included within this Union according to their respective numbers.” “The number of Representatives shall not oceed one for every thirty thousand, but each State shall have at least one representative.” in giving practical effect to this clause of the onstitution, the great object to be obtained, islo do that which is just to each State. This can only be accomplished by considering each State as a separate community, entitled to representatives on account of its own strength, gaining nothing from the numbers in any other State, and losing nothing on account of any hardship to which any other State may seem

to be subjected on account of its numbers. It is to be observed that the apportionment directed to be made, is among States regarded as separate distinct communisies, or masses of population, and not as parts of the consolidated populaion of the Union melte délown into one mass or community. ... We are never at liberty to consider the people of the United States as a mass, and to apportion the representatives among the States as if the whole was one nation, but must continually keep in mind that ours is a federative republic, and that the people of each member or State must be considered and acted upon as an independent community in all respects where their sovereignty has not been expressly surrendered. This being the case, it at once occurs to the committee, and they lay it down as a leadshg principle, a departure from which is not permitted by the obvious meaning of the clause in the constitution to which they have referred,” that, whatever rule of apportionment is adopted, whether it be the rule of proportion, a ratio, or common diviser; whatever it be, it ought to be just; and, to be constitutional, it must be a uniform rule oper. ating in all the States, and producing some practical result in each State. Such a rule has been uniformly adopted in all precessing apportionments. The amendment of the Senate contains no one rule applying alike to all the States, and operating in each; but, on the contrary, it arbitrarily assigns a representative to fractions in some of the States, and withholds any representative to fractions in other States, and, in fact, and in effect, makes the unrepresented fractions in some of the States a part of the constituency of the representatives of fractions in other, States in whose e.ection they have, and can have, no voice. The most natural process of apportionment would seen to be that of fixing in the mind the number of constiuents which each representative shall have; and, by a ratio or common divisor thus found, assign to each State its number of members, by dividing its representative federal population by this common divisor, and letting each State submit to the loss of its own fraction, be it great or small. This must have been the rule in the mind of the convention, because they allude to the number of constituents which may entitle to a representative: thirty thousand. Suppose Congress to take that number as a convenient ratio, what then would be the rule? Most certainly we would take thirty thousand as a common divisor, and apportion to each State its number of representatives by dividing its whole number of fed. . eral population by this common divisor; and, in every instance, compelling each State to lose its own fraction, be it greater or less than that of any other; and in no instance, could a representative, it is admitted by all, be given for a less number than the ratio or common divisor, that being fixed at thirty thousand, except in the single case where the whole population of a State did not amount to that number. Now, it is entirely competent for Congress to fix upon any other number as the ratio or con

stituency entitled to a representative. The only restriction is that the number shall not be less than thirty thousand; it may be as much greater as Congress chooses. No matter, then, what greater number is selected as a ratio, it immediately as much becomes a common divisor for all the States, as thirty thousand is when that number is selected, and when applied to the States respectively, each is as much bound to lose its own fraction, be it great or small, as it would be when the thirty thousand was selected; and any representative for a less number than the ratio or common divisor is as much a violation of the constitution in the one case as it is in the other. If the ratio or common divisor selected, was thirty thousand, it is admitted that it would be unconstitutional to assign a representative to fractions. . Now, it is clear to the coinmittee, that a change of the ratio or common divisor cannot change a constitutional principle. - - In fixing the sense and construction of this section of the constitution, it is necessary fur. ther to remark, that representatives are quantities incapable of indefinite division, but are integral numbers, each of which is incapable of division; and that the population of the respective States are ot. numbers, ascertained by the census, and incapable of being fixed by Congress. At the adoption of the constitution, the population of each State exceeded thirty thousand, and there was not the least probability that, at any future period, any State in the Union would have a population less than thirty thousand. As the constitution fixed the minimum ratio, or constituency, for a representative,

and in the most direct terms, made it applica.

ble not to the aggregate population of all the States, but to the population of the several States respectively, the just, natural, and irresistible conclusion is,that the convention who framed the constitution, intended that Congress should apportion representatives among the States, by fixing a ratio of representation, not of the population of the United States as a whole, but applicable, and to be applied, to the federal population of the several States respectively. As the convention must have foreseen that Congress might, and propably would, at the early apportionments, adopt the minimum ratio fixed by the constitution; and as, in that event, no fraction of population could be represented, the just inference is, that it was intended that any such fraction never should be regarded in any such apportionment; and so clear and irresistible, in the minds of the convention, was this conclusion from the words employed, that, to a void a mere possible, not a probable result, it was added that “each State,” though its po pulation might be less than the ratio fixed on, “shall have at least one representative.” As it was entirely improbable that any State would ever have * population less than thirty thousand, the provision of one representative for each State, could have reference only to a ratio to be fixed in future time higher than the population of some State; and as, in that case, the consti

tution provides that each State shall have one

representative, it thereby impliedly prohibits the allowing one to any fraction in any other case; for if, according to the understanding which the convention had of their own work, any other fraction might be represented consistently with the provisions of the constitution, this special limitation of the possible effects of apportionment would have been useless. ... Moreover, can it be said that a rule of apportionment is constitutional, which, in any apportionment before the last, as conceded by the principles of the amendment itself, might have operated unconstitutionally? This objection may be urged against the rule proposed by the Senate; for, at the rate of 33,000, which was the radio of the two first apportionments, every State having a less population than 150,000, might have had more than one representative for every thirty thousand; and at the ratio of 35,000, which was that of the third apportionment, every State having, less than 90,000, might, in like manner, have had more than one representative for every 30,000. And the same objection applies to any ratio less than 40,000. At any ratio, therefore, under 40,000, the rule assumed by the Senate’s amendment might operate unconstitutionally; and, at the first apportionment, this rule of the Senate, of representing major fractions, would have produced the unconstitutional effect of apportioning to each of the States of Vermont and Delaware, a representative for less than thirty thousand. Since, then, the rule of apportionment must be universal and equally applieable to the popula: tion of every State; and that adopted by the Senate’s amendment might, in the given, and would in the specified case, have resulted in apportionment." clearly unconstitutional, the committee are of opinion, that the rule itself partakes of the unconstitutional character of its effects. - ' To illustrate and enforce the correctness of the conclusion to which they have come, the committee beg leave further to add, that fractions or remainders of population in the respee: tive 8tates, less than the common divisor or ratio assumed, cannot be represented– 1st. Because it is not representatives only, but direct taxes also, which are required by he constitution to be apportioned, and, in the apportionment of such taxes, no State has ever borne, or would agree to bear, a greater share of these burthens unan that indicated by theattual number of its people, and not by the actual number of its members in the House of Representatives. For example, the population of the State of Delaware is about a one hundred and sixtieth part of the whole population of the United States. If the scheme of the amendment of giving a representative to fractions should obtain, she would then have two members out of a House of two hundred and fiftyone, or about a one hundred and twenty-fifth part of the whole number of representatives. She would not pay a one hundred and twentyfifth part, but only a one hundred and sixtieth part of the taxes. Now, is there any justice in

giving to her such a large share of representa.

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tives, when she ought not to bear, and would not bear, a similar share of a direct tax, and this, too, under a rule prescribed by the constitution, whereby both representatives and direct taxes are to be apportioned in like manner?

2d. Because the requirement of the constitution is to apportion representatives, and not the fractional parts of representatives, for the plain reason that the latter was physically impossible. You cannot have the fraction of a representative. Each representative must have a consti. tuency, and as you cannot have the fraction of a representative, so the fraction of a constituency cannot have an entire representative.

3d. Because, if such an apportionment was permissible, it would violate its own fundamen. tal principles, and be contrary to justice; for, as there are twenty-four States, each of which will, in all probability, ever have a fraction at any ratio, the fractions of some of these must be ta. ken to make up the fractions of others. Thus, for illustration, suppose that twelve of the States had each a major fraction, or a fraction aunit greater than the moiety of the ratio assumed, and the remaining twelve States have each a minor fraction, or a fraction a unit less than the moiety of the ratio assumed, the twelve States, according to the principle assumed by the amendment, having minor fractions a unit less than the moiety of the ratio, must contribute the fractional parts of their population to make up the larger fractional parts of the twelve other States,each having fractions a unit greater than the moiety of the ratio assumed, and so give to the latter twelve States each au alutional representative. That is to say, in the cost supposed, (nd if it be an extreme case, it will not be denied that approximations to it may and must occur, according to the principle of the amendment) if the ratio assumed be fifty thousand, and twelve of the States have each a fruction of 25,001, and twelve other States have each a fraction of 24,999, the fractions of the latter twelve States must contribute to the former the whole of their fractional numbers, * as to give them twelve additional represen. tatives. And can any one, the committee ask, consider as appurtionment that process which gives all of the subject to be apportioned to some, and none to others of the contributors, or which makes a whole of equal value with a factional part of itself?

The inequality and injustice of giving to a State a representative for a major froction, must be apparent to all, when it is considered that, in practice it may, and probably will, so happen that only a few States whose aggregate population may be equal to one-tenth of the whole population of the Union, may each be entitled to a representative for its major fraction, and the residue of the States, containing eight. tenths of the whole population, each having mi. nor fractions, in the aggregate, much greater than the aggregate of such major fractions, will be lenied a representative, not only for their o fractions, but for the total aggregate of them,

4th. Because the apportionment required by

the constitution is thereby directed to be made “anyong the several States;” and no process of portionment can conform to this command which does not include and apply the same rule to all the States. But if you give a representative to fractions, some of the States must necessarily be excluded from the apportionment, although they are contributors to the fund to be distributed. 5th. Because the constitution requires that representatives should be apportioned among the several States “according to their respect. ive numbers;” but by this, or any other scheme of representing fractions which can be conceived, we are compelled to disregard the respective numbers of the several States, in the apportionment, and to give to some only what belongs to all. We are obliged to consolidate into one mass the fractional population of all the States, and instead of giving to them, severally, what they are entitled to according to their respective numbers, we force some to contribute to the benefit of others. It has been argued that, as exact equality can not be attained in the apportionment of representatives, the rule of construction is, that it must be made as nearly equal as may be. Without admitting that a representation of fractions approximates to equality, and believing that it tends to greater inequality than the r rejection, this argument appears inadmissible; and, if adopted in our legislation on this subject, may lead to the worst consequences—for if, in the apportionment, Congress must make the apportionment as nearly equal" as may be, Congress must fix the numbers of the House and the ratio of representation so as to attain this sun. posed equality. In practice, it will be found in almost, perhaps every case, that the lowest ratio will make the most equal apportionment; and, according to this argument, Congress must adopt that ratio, to whatever extent the increas. ing population of the country might swell the numbers of the House. The minimum ratio fixed by the convention, and their knowledge that the numbers of the House could not keep pace with the increase of population, are, in the opinion of the committee, a conclusive refutation of the argument which interpolates on the constitution the words as near as may be; where the Convention thought proper to omit thers. The view already taken, it wood appear, is the natural and just interpretat of the constitution, and that which ought to be placed upon it, if, for the first time, we were about to fix its meaning. But such is not the case. The very question involved by the amendment occurred at the very commencement of this government, and was then fully discussed and settled. The decision then made has regulated the proceedings of Congress, in reference to this matter, ever since, and, if practice or precedents can settle any qmestion arising under the constitution, this, it would seem, is now settied in the strongest possible manner. "It may not be altogether unprofitable to trace the history of this question, the discussion and the de

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270 UNITED STATES WEEKLY TELEGRAPH

cision upon it at the first apportionment of rot. presentatives. The constitution had required an actual enumeration of the people to be made within three years after the first meeting of Congress, in order that the representatives might be apportioned among the several States according to their respective numbers. The first census having been taken, Congress, at their session of 1791–2, undertook to make the required apportionment of representatives. Great difficulties were found to exist between the House and the Senate in agreeing upon any bill of apportionment. The first bill passed by the House fixed the ratio of 30,000, the Senate amended it by striking out 30,000, and inserting 33,000, but in neither was any provision made for representing fractions; both the House and the Senate adhered, and this bill was lost by the disagreeing votes of the two bodies. A new bill was immediately brought into the House and passed. In the Semate, this same principle of representing fractions was proposed and carried by a majority of one vote, as an amendment to the House bill. It is proper here to remark that the amendment of the Senate then, as now, fixed, not the ratio of representation, but the numbers of the House. Upon its return to the House, it gave rise, to much discussion. It was sustained by its advocates by precisely the same arguments now urged in support of the amendment now under consideration. It was then, as now, contended, that the true meaning of the Constitution was, that the apportionment should be made, “as nearly as may be,” according to the numbers of the States. To show that the question we are now considering is the identical ques. tion then considered, discussed, and decided, the committee beg leave to make an extract or two foom the debates of that period. One of the advocates of the principle of representing fractions, (N. Niles,) “observed that there were evidently wanting to complete the sentence [of the Constitution] these words, “as nearly as may be,” with this explanation added, he went on to show that the principle of equality would be more strictly adhered to by admitting this amendment than by rejecting it; for, if Delaware contains 58,000 inhabitants, 28,000 were certainly nearer to 33,000 than 33,000 were to 58,000. He recited other passages of the Constitution to show that his idea was compatible with it.” Mr. dison, then a member of the House of Représentatives, in the course of the debate, expressed his opinion in the following strong language: , “We are called on to violate the Constitution, by adopting a measure that will give representatives for these separate and distinct fractions in the respective States, and afterwards are told it is not to the fractional numbers in the States that they refer, but to the aggregate of the fractions in the United States. If this reasoning is good, why do the gentlemen stop at this boundary of a representation by States? why not proceed to erect the whole of the United States into one district, without any division, in order to prevent the inequality they conceive to exist in

respect to individual States?” We find, too ohat numerous tables of calculation were then, as now, prepared, and with the same view, to wit: to show the nearer approach to equality which it was then, as now, contended would be attained by adopting the principle of representing fractions in some of the States, than could be attained in any other mode. The House at first disagreed to the Senate’s amendment; the Senate insisted; and, finally, the House, when all its members were not present, receded from their disagreement to the amend. ment by a mojority of two votes, and the bill passed. When this bill was presented to President Washington, he refused to approve it, and, returning it to Congress, assigned two reasons for the veto which he interposed. These reasons the committee will here give in his own words, to wit:

“UNITED States, April 5th, 1782. “Gentlemen of the House of Representatives:

“I have maturely considered the act passed by the two Houses, entitled “An act for an apportionment of representatives among the several States according to the first enumeration,' and I return it to your House, wherein it originated, with the following objections: : “First. 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 di. visor which, applied to the respective numbers of the States, will yield the number and allotment proposed by the bill. “Second, The Constitution has also provided that the number of representatives shall not

restriction is, by the context, and by fair and obvious construction, to be applied to the sepa.

the bill has alsoted to eight of the States more than one for every thirty thousand. r “GEORGE washingtoN.”

Upon the return of the bill, accompanied by this message, the constitutional majority required to pass it could not be obtained; but, on the contrary, a majority of five of the House voted against it, and so it failed to become a law. Immediately after the failure of this, a third bill was brought in, which, adopting a ratio of 33,000, and rejecting all the factions in every State produced by this divisor, passed both Houses of Congress, received the sanction of the President, and so became a law, which gave the first apportionment of representatives under the Constitution.

The committee are aware that it has been

sole reason why President Washington refused to approve the bill containing the principle of giving a representative to fractions, was, because that bill allotted to some of the States more representatives than one for every 30,000 of their people, and that this objection does not apply to the amendment now under consideration. The committee are not of that opinion. It is admitted that the second objection does not

exceed one for every thirty thousand, which,

rate and respective numbers of the States, and ,

urged in argument, that the chief, if not the

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