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156

UNITED states weekly TELEGRAPH.

ascertainment of that quantum, out of the whole sportionment of representatives among the sore- o mass of the representative power, which each ral States according to their respective num- “.

State may claim.

something less than its exact proportion of re.

bers, and stops there. But it is said that, although a State may re-for the representation of districts, of States, or ceive a number of representatives which is for the representation of any portion of the peo.

It makes no provision

ple of a State less than the whole. It says no

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presentation, yet, that it can, in no case, con- thing of ratios or of constituent numbers. All To

stitutionally receive more. How is this propo. sition proved? How is it shown that the constituation 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 num. fier of representatives of which the House is to be compesed, 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 States receive less than their just share, it must necessarily follow that some other States have received more than their 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. Ut 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 atnendment 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

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 constitu. tional 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 cer.

members are chosen for the same district; and, in some again, as New Hampshire, Rhode ls. and, Conflecticut, New Jersey, and Georgia, the whole representation of the State is exert. ed as a joint, undivided representation. In these last mentioned States, every member of the House of Representatives has for his consti. tuents all the people of the State; and all the people of those States are consequently repre: sented 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, com: petently, fairly, represented; that they had not as many voices and as many votes in the House of Itepresentatives 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 9 some part of its just rights. On the other hand, if the bill should pass o it is now proposed to be amended, there woul be no representations of fractions in any State; for a fraction supposes a division and a remain" der. 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

is to be regarded as an integer; and any thing|fraction, should the amendment prevail; beless than this is therefore called a fraction or a cause the mode of apportionment which assigns residuum, and cannot be entitled to a repre- to each State that number which is nearest to

sentative. the Constitution of the United States.

But all this is not the provision of its exact right, applies no assumed ratios, - That make no subdivisions, and, of course, produces Constitution contemplates no integer, or any no fractions.

In the one case, or in the other,

common number for the constituents of a mem- the State, as a State, will have something more, ber of of the House of Representatives. It or something less, than its exact proportion of goes not at all into these subdivisions of the representative power; but she will part out

population of a State. It provides for the ap-st

his power among her own people, in either

tain defined district; in others, two or three .

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* in such mode as she may choose, or ex

****her as an entire representation

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Whethershesubdivision of the representative * within any State, if there be a subdivil ion, he equal or unequal, or fairly or unfairly o, Cotes cannot know, and has no au. tolytoinquire, it is enough that the State *her own represenation on the floor of *in the modeshe chooses to present it.

Isasite were to give to one portion of her ter

**presentative for every twenty-five
*nd persons, and to the rest a representa-
tre only for every fifty thousand, it would be
**of unjust legislation, doubtless, but it
would be wholly beyond redress by any power
*"gress because the constitution has left

ill this to the State itself.
to: considerations, it is thought, may show
the constitution has not, by any implication

onecessary construction, enjoined that which

**inly has notordained in terms, viz. that

**mber of the House shall be supposed

: . the same number of constituents,
o: **, that the assumption of a ratio,
tu Ponting the common number of consti.
**hol called for by the constitution. All
o: o: is at liberty to do, as it would
.." side the whole representative
Power of the Union into twenty-four parts, as-
: *Poench state, as near as prac
o *ording to its right, and leaving all
**rrangement, and all subdivisions,
to the State itself.
so othus taken of the rights of the
* and the duties of Congress, be the cor-
.****!he plan proposed in the amend.

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plicable and applied impartially to all the States: it is quite true. But, if that which is intended be, that the population of each State must be divided by a fixed ratio, and all resulting fractions, great or small, disregarded, this is but to take for granted the verything in controversy, The question is, whether it be unconstitutional to make approximation to equality, by allowing representatives for major fractions?, The affirmative of this question, is, indeed, denied, but it is not disproved, by saying that we must abide by the operation of division, by an assumed ra: tio, and disregard fractions. The question still remains as it was before; and it is still to be shown what there is in the constitution which rejects approximation as the rule of apportionment. But suppose it be necessary to find a divisor, and to abide its results. What is a divisor? Not necessarily a simple number. It may be composed of a whole number and a fraction, it may itself be the result of a previous process; it may be any thing, in short, which produces accurate and uniform division: whatever does this, is a common rule, a common standard, or, if the word he important, a commen divisor. The committee refer, on this part of the case, to some observations by Professor Dean, with a table, both of which accompany this report. As it is not improbable that opinion has been a good deal influenced on this subject by what took place on the passing of the first act making an apportionment of representatives among the States, the committee have examined and considered that precedent. If it be in point to the present case, it is certainly entitled to very great weight 5 but if it be 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 occasien should be understood in connexion with the subject matter then under consideration; and, in order to see what that subject matter really was, the committee think it nccessary 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 120 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 twentyNow, by the census, then recently taken, it

ity. §o i. *ppears to the committee to appeared that the whole representative popu, $."er in the letter or the spirit of lation of the United States was 3,615,920; and

situ - -
* opposed to such a mode of ap it was evidently the wish of Congress to make
*** contrary, it seems entire-line house as numerous as the Constitution

But the Constitution has said

tution Co
"*"Plated, and well calculatedlthat there should not be more than one mem.

* meant that there must be

"gainstit. : he argument commonly|ber for every thirty thousand persons. , This * that it is necessary to apply prohibition was, of course, to be obeyed; but o divisor, and to abide by its did the constitution mean that no State should

have more than one member for every thirty thousand persons 2 or did it only mean tho' the

*, or common measure, ap- whole House, as compared with the whole po

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158

UNITED STATES WEEKLY TELEGRAPH.

pulation of the United States, should not contain more than one member for every thirty thousand persons ! If this last were the true construction, then the bill, in that particular, was right ; if the first were the true construction, when 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. 1’resident 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 these words: “The Constitution has also provided that the number of representatives shall not exceed one for every thirty thousand ; which restric, tion 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 allotted 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, with. out giving to some of them more than one mem ber for thirty thousand inhabitants. Therefore, having allotted these 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 fraction should entitle the States to whom 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 haf 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 factions, but both still under a moiety of the ratio, and distinguished from each other only be 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, Presi

dent 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 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 necessa. ry 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 thousand; nor is it likely that that objection will ever again occur. The 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 allotment 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 ob. jection applies to the amendment recommend. ed 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 num: ber 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 f vision, 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 impartiali

ty. There is no want of a common proportion,

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arbitrary discretion. If the rule, in either of these forms, be adopted, it can never be doubt filhowevery member of any proposed number for a House of Representatives ought to be assignd. 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; ind, in the application of the rule, there will be no room for preference, partiality, or injus

tite. 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 representative power. And it is because of this, its capability of constant appli

alon, as well as because ofits impartiality and

justice, that the committee are earnest in recommending its adoption to congress. If it thill be adopted, they believe it will remove a cause of uneasiness and dissatisfaction, recurfing, 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 with reason can 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 al. onng 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 pro** 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 aug. mented and accumulated every new censuo; *lit is of the very nature of the process it. self, that itsuojust results must grow greater and greater in proportion as the poplulation of the county enlarges, what was objectionable though tolerable yesterday, becomes intolerable to morrow. A change, the conmittee are !. must come, or the whole just baand proportion of representative power * the Sales will be disturbed and broken The committee therefore, recommend to Mrike out the whole bill, after the enacting duo, and insert the following amendment: Th", from and after the third day of March, Amo Domini one thousand eight hundred and *y three, the House of Representatives shall *of-members; and, in order that the * representative, may be apportioned among several States as near may be, according to **pective numbers, they shall be chosen ** following manner, that is to say, there

or a common divisor: there is nothing left to

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These Islands seem still destined to occupy a prominent place in the affairs of nations, and the dispute relative to them in the year 1770, between Great Britain and Spain, is now in a manner revived, between the descendants of these two nations. - Considerable excitement was caused in Buenos Ayres, on Tuesday last, upon the arrival of the schooner Flor del Rio, from Montevideo, bringing an account of the proceedings of the United States sloop of war Lexington, Capt Duncan, against the Colony at the Falkland Islands. Several individuals from thence came in the schooner, and gave the following detail: That the Lexington arrived on the 28th of December, below the Islands in Berkely Sound, where she anchored under the French flag, with a signal at the fore for a pilot, and having in tow a small shallop, built among the Islands, and which was going to Port Louis to obtain Buenos Ayres papers, in order to seal on account of the colony-Capt. Duncan had told

be chosen within each state that number *Presentatives which is the nearest to its *Proportion of representation in a House "- members as aforesaid, according to its "Pulsion, compared with the whole populaon ofulle United states, both being computed

he master of the shallop, that the fishery on the coast was open to all the world, and he would give him a sea letter to sail under the American flag; upon which, those in the shallop separated themselves from the colony. A gale of wind detained the Lexington three days at her anchorage—she then made sail and anchored abreast of the colony: a Lieutenant and a number of men landed in a boat from the shallop. Captain Brisbane and Mr. Metcalf, (the latter had been left in charge of the colony,) were walking the beach unsuspicious of danger. The Lieutenant invited them in the name of the Commander to go on board the Lexington, which they did—other boats had come on shore with marines, who took off forcibly all the men they could find. Most of the natives of Buenos Ayres, escaped to the interior; the cannon was spiked, first arms broken to pieces and thrown into the water; o set fire to, &c. All the persons who ad thus been forcibly taken away, were put on shore, except Captain Brisbane and six Buenos Ayreans—the latter were placed in irons. The seal skins and some trifling articles which had been embargoed, awaiting the decision of the Prize Court of Buenos Ayres, were taken from Mr. Wernet's store-house, and delivered to Captain Davison, of the Harriett, who had gone from Buenos Ayres in the sloop of war as pilot. This property was then shipped on board the American schooner Dash, Capt. Keating, which at the time was lying there. Capt. Duncan had told Davison to go into the store-house and take away any thing he thought was his property—he accordingly took a few boat oars, a boat. keel, some loose pieces of boat, three bags of shot, some pow: der, a little sheet lead, a whale boat and oars, and muskets. Neither the boat or muskets belonged to him. Davison posted on the door of Mr. Vernet's dwelling-house, a proclamation in writing, signed by Capt. Duncan, declaring the capture of the vessels to be piracy, &c. oil. at the same time, freedom o fishery. During the stay of the Lexington, the Buenos Ayreans who had fled into the interior, returned, and Captain Duncan gave their head man a document, stating that he was a peaceable person, &c. Captains Duncan and Davison, it is stated, spread a variety of reports, in order to alarm the settlers, such as, that they would never be safe from the resentment of the American whalers—that Mr. Wernet would not again return to the Islands, that the Govern. ment of Buenos Ayres disapproved of the capture of yessels, &c. &c. and Captain Duncan offered a free passage to thcse who wished to leave the colony. The consequence was, that all the female residents, as well as Mr. Wernet’s slaves and various individuals, went on board the Lexington.

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provisions, it was nearly a fortnight after the
arrival of the Lexington, before the schooner
Dash was sent to take them away.
Mr. Wernet has given notice through the
public press of Buenos Ayres, that he shall
publish a statement of all the circumstances
connected with the case, to prove how scrupu-
lously he acted, and that nothing has been
done but what was perfectly justifiable on his
part. -
The Government of Buenos Ayres is far from
persuading itself, that that of the United States
can approve conduct so opposed to the rights
of nations, and contrary to the good under-
standing existing between both Republics. By
the last Message of the President of the United
Stetes to Congress, it appears that he is about
to send a Minister to this Government, who
will remove any difficulty or doubts that may
have arisen.
The Government trusts, that all will be
amicably arranged, and that the rights of the
nation it is charged to defend, will be preserved,
and worthily sustained.
JUAN RAMON BALCARCE.
- MANUEL JOSE GARCIA.

Circular to the different Provinces.

The delegate. Govornment of this Province has the honor to address. His Ex, the Governof of . . . . . ., to inform him that the political and military Government of the Falkland Isl. ands having embargoed three North American vessels, which had been sealing against orders of the Government, it proceeded immediately to the investigation of the affair. The Consul of that Republic forwarded to the Government his remonstrances: these were answered, but without concluding the inquiry, or a decisive sentence being pronounced ; the Commander of the U. S. corvette Lexington, which sailed from this port, with the avoved object to take off some men, who had been left on one of the Island, s invaded on the 31st December last, the port of La Soledad, went on shore with armed men, destroyed the artillery, burned the powder, disposed of the public and private property, and keeps under arrest, on board said corvette, the director of the fisheries of the Colony, and in irons six citizens of the Republic.

We are informed that Mr. George W. Slocum lias been suspended from his consular functions, in consequence of the interference attributed to him in the proceeding of the corvette Lexington in the Falkland Islands.-Gd

The families killed all the milch cows which Mr. Vernet had lent them, and most of the beef and hides were sold to the Lexington; which ship finally quitted the Falklands on the 22d January, and arrived at Montevideo, with Capt. Brisbane and the six Buenos Ayreans, prisoners. It is added, that, notwithstanding the anxiety expressed relative to the seven Americans, who were left on staten land by the schooner Superior, for the purpose of seai. ing, and who were reported to be destitute of

ceta Mercantil.

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