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The representatives are directed to be apportioned among the states, according to numbers, which is determined by adding to the whole number of free persons, including those bound to service for a term of years, and exclusive of Indians not taxed, three fifths of all other persons. (a) The number of representatives cannot exceed one for every thirty thousand, but each state is entitled to have at least one representative. The actual enumeration or census of the inhabitants of the United States is to be made every ten years, and the representatives newly apportioned upon the same, under a new ratio, according to the relative increase of the population of the states. (b) The number fixed by the constitution in the first instance, and until a census was taken, was sixty-five members. The apportionment under the fourth census, by the Act of Congress of 7th March, 1822, was to a ratio of one representative for every forty thousand persons in each state, and it made the whole number of representatives amount to two hundred and thirteen members. Under the fifth census, completed in 1831, and which made the population of the United States amount to twelve millions eight hundred and fifty-six thousand persons, the ratio of representation was enlarged to one representative for every fortyseven thousand and seven hundred persons, making in the whole, two hundred and forty members. (c) The rule of appor

(a) Art. 1, sec. 2.

(b) Art. 1, sec. 2.

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(c) Act of Congress, May 22d, 1832, c. 91. In 1836 the territories of Michigan and Arkansas were admitted as states into the Union. See infra, p. 384. And in 1845 the territories of Iowa and Florida were also admitted as states. See infra, p. 384. And in 1846 the territory of Wisconsin, and in 1845 the republic of Texas. Id. By the 6th census, completed in 1841, the number of persons in the United States was 17,069,453, making an increase over the census of 1830, of 4,202,646 inhabitants, and showing a gain in a ratio exceeding 32 per cent. for the last ten years; and by the Act of Congress of June 25, 1842, c. 47, the ratio of representation was enlarged to one representative for every 70,680 persons in each state, and one additional representative for each state having a greater fraction than one moiety of the said ratio. This ratio reduced the number of the members of the House of Representatives, after the 3d of March, 1843, to 223 members, besides a delegate from the three territories then existing. By this reduction, and with the addition of members from the new states, the House of Representatives consisted, on the 1st of January, 1847, of 230 members, and representation by delegates of certain territories had ceased. The Act of Congress last mentioned also prescribed, that the number of representatives in each state,

1 By the census completed in 1851, the number of inhabitants in the United States is 23,191,876. By the twenty-fifth section of the Act of May 23, 1850, 233 representatives are to be apportioned among the states.

tionment of the representatives among the several states according to numbers, has been attended with great difficulties in the application, because the relative numbers in each state do not, and never will, bear such an exact proportion to the aggregate, that a common divisor for all will leave no fraction in any state. Every decennial apportionment has raised and agitated the embarrassing question. As an absolute, exact, relative equality is impossible, the principle which has ultimately prevailed, is the principle of approximation, by making the apportionment among the several states according to their numbers, as near as may be. This is done by allowing to every state a member for every fraction of its numbers, exceeding a moiety of the ratio, and rejecting all representations of fractions less than a moiety. (a)

under the apportionment, should be elected by districts composed of contiguous territory, equal in number to the number of representatives to which the state should be entitled; and that no one district should elect more than one representative. This direction was authorized by the provision in the constitution, (art. 1, sec. 4,) that "the times, places, and manner of holding elections for senators or representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators." The election of members of Congress by districts had been heretofore adopted in some of the states, and not in others. Uniformity on the subject was desirable, and the measure itself was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each state, a due influence in the choice of representatives, so as not to leave the aggregate minority of the people in a state, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils. (a) See Story's Comm. on the Constitution, vol. ii. pp. 141-171, where the subject is fully examined, and the opinion of Mr. Jefferson on the one side, and Mr. Webster's report in the Senate, in April, 1832, on the other, are given at large. These documents contain the substance of the arguments for and against the principle of apportionment as adopted and settled by Congress. The same difficulty arose in the legislature of New York, in 1791, on the apportionment of the state representation, according to the census then recently taken, and the same principle of approximation was adopted; and the author of this note was then one of the members of the House of Assembly who concurred in that rule. (Journal of the Assembly of New York for 1791, p. 26.) But the constitution of New York gave greater facility to such a rule, for it directed the senators in each district to be apportioned according to the number of the qualified electors, as near as may be; and this is the manner in which the amended constitution of 1822 expresses itself on the subject.'

1 The constitution of 1822 provided that each senate district should contain an equal number of inhabitants, as nearly as may be, excluding aliens, paupers, and persons of color not taxed. And the constitution of 1846 has the same provision, except that it does not exclude paupers.

The rule of apportionment established by the constitution is exposed to the objection that three fifths of the slaves in the southern states are computed in establishing the apportionment

of the representation. But this article was the result of * 231 necessity, and grew out of the fact of the existence of domestic slavery in a portion of our country. The evil has been of too long standing, and is too extensive and too deeply rooted to be speedily eradicated, or even to be discussed without great judgment and discretion. But the same rule which apportions the representatives, extends to direct taxes; and the slaves in the southern states, while they give those states an increased number of representatives, contribute, on the other hand, when that mode of taxation is resorted to, equally to increase the measure of their contributions. (a)

The number of the House of Representatives would seem to be quite large enough, on its present computation; and, unless the ratio be hereafter enlarged from time to time, as the exigency may require, the House would be in danger of increasing too rapidly, and would probably become, in time, much too unwieldy a body for convenience of debate and joint consultation. A due acquaintance with the local interests of every part of the Union ought to be carried into the House, and a sufficient number collected, for all the purposes of information, discussion, and diffusive sympathy with the wants and wishes of the people. When these objects are obtained, any further increase neither promotes deliberation, nor increases the public safety. All numerous bodies of men, although selected with the greatest care, are too much swayed by passion, and too impatient of protracted deliberation.

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The United States, in their improvements upon the exercise of the right of representation, may, as we apprehend, claim preeminence over all other governments, ancient and modern. Our elections are held at stated seasons, established by law. The people generally vote by ballot, in small districts, and public officers preside over the elections, receive the votes, and maintain order and fairness. (b) Though the competition be

(a) Federalist, vol. ii. No. 54.

(b) Voting by ballot was introduced in the province of Massachusetts in 1634. In New York, the people voted viva voce, until after the revolution, and then voting by

tween candidates is active, and the zeal of rival par- * 232 ties sufficiently excited, the elections are everywhere conducted with tranquillity. The legislature of each state prescribes the times, places, and manner of holding elections, subject, however, to the interference and control of Congress, which is permitted them for the sake of their own preservation, and which, it is to be presumed, they will not be disposed to exercise, except when any state shall neglect or refuse to make adequate provision for the purpose. The privilege of voting, as we have already seen, is conferred upon all persons who are of sufficient competency by their age, and of sufficient ability to take care of themselves. The ancient Greeks and Romans had not only very imperfect notions of the value of representation, but the number and power of their popular assemblies were so great, and they were so liable to disorder, as to render it a very provident measure with them, to be guarded in diffusing the privileges of free citizens. Not a tenth part of the people of Athens were admitted to the privilege of voting in the assemblies of the people; and, indeed, nine tenths of the inhabitants throughout all Greece were slaves. (a) In Sparta, the number

ballot was constitutionally established. Elections in Virginia and Kentucky are still viva voce, and not by ballot, and this provision is established by the existing constitutions of those states. In Georgia, also, by the constitution of 1790, all elections by the people were by votes viva voce; but the legislature might otherwise direct; and they have since declared all elections to be by ballot.

(a) Mitford's Greece, vol. i. pp. 354, 357. In the treatise of G. F. Schömann, a profound German scholar, De Comitiis Atheniensium, published in Latin in 1819, and translated into English, at Cambridge, in England, in 1838, the democratical government of Athens is discussed with masterly erudition. He states, that during the vigor of the Athenian democracy, every citizen of the age of eighteen had a right to hold offices, and to give a vote at the assemblies of the people. That the most crowded assemblies rarely exceeded 8,000, though Attica contained 20,000 citizens; pp. 65, 69, 128. That all were reckoned citizens whose parents were both such ; p. 66. To assume unlawfully the rights of a citizen, was punished by being sold into slavery; p. 74. The assemblies of the people were convened by magistrates, (Prytanes and Strategi,) and the chairmen or presidents (Prytanes and Proedri) presided at them, and proposed the subjects to be discussed, and had the bills, which had been previously prepared and sanctioned by the senate, (for the fundamental law allowed none others to be considered,) recited, and gave permission to the orators to speak, though the liberty of addressing the people on the subject from the Bema was open to all. The chairman also put the question to vote, whether to adopt or reject the proposition. The assembly had the right to vary or alter it; pp. 53, 81, 90, 101, 104, 107, 130, 245. The people generally voted by show of hands, and sometimes by ballot; p. 127.

of votes was fixed at ten thousand. In Rome, this privilege was for many ages confined to the Pomaria of the city, (a) and it continued to be so confined, and to be tolerable in its operations, until the memorable social war extended it to all the inhabitants of Italy, south of the Rubicon and the Arnus. As no test of property or character

They voted by tribes, (of which there were ten,) but a majority of the whole assembly, collectively, decided.

The structure and history of the Athenian democracy has much to warn, and very little to console the friends of freedom. From the incurable defect, among others, of assembling the people to make laws in masses, and not by representation, and from the want of a due and well-defined separation of the powers of government into distinct departments, that celebrated republic became violent and profligate in its career, and ended in despotism and slavery. The general assemblies of the people, without any adequate checks, assumed and exercised all the supreme powers of the state, legislative, executive and judicial.

(a) Thirty-five tribes voted in the comitia held in, the city of Rome; but the city tribes (Plebs urbana) consisted only of four within the walls of the city, and the Liberti were inscribed in the city tribes. The other thirty-one tribes were rural tribes, who occupied the lands for a considerable district of country around the city, and they were the ruling and influential body. See Lond. Q. Review, No. 112, for June, 1836, the Review of Professor Druman's History of Rome. But the Roman slaves were not represented, and Rome exercised the right of absolute sovereignty over the dominions of its auxiliaries. The Roman citizens, who exclusively exercised as voters the powers of government, bore, therefore, a very small proportion in numbers to the gross amount of the inhabitants. The Roman mode of passing laws, and voting in their comitia, was orderly, and under great checks, during the best periods of the government. When a law was proposed and discussed, and the religious rites duly performed, and no intercession made, the people proceeded to vote, and every citizen was ordered to repair to his century. The method of voting was originally viva voce, but after the year of the city 614, it was by ballot by the leges tabellaria, which applied equally to the election of magistrates, to public trials, and to making and repealing laws. The people were made to pass in order over some narrow planks, called pontes, into the septa, or enclosures, where certain officers delivered to every voter two tablets, one for and one against the proposition, and each person threw into a chest which of them he pleased, and they were pointed off, and the greatest number of points, either way, determined the sense of the century, and the greatest number of centuries passed for the voice of the whole people, who either passed or rejected the law. See Heineccius's Antiquit. Rom. Jur. lib. 1, tit. 2, sec. 3-11. Opera, tom. iv., where the ancient learning on the subject is collected. And see Hooke's Rom. Hist. b. 1, c. 7, sec. 4, note. Cicero condemned the secret vote by ballot, as being a cover for corrupt and hypocritical votes. His object was to obtain or measure the moral value of the votes by a consideration of the persons who gave them. Cic. De Legibus, b. 3. Mr. Barnham, the translator of Cicero's treatises, De Republica and De Legibus, in his note to b. 3, De Legibus, learnedly discusses the superior value and safety of open voting by poll; but the orderly and specific mode of voting by ballot seems to render the latter preferable in that point of view.

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