Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/111

 CH. IX.] people of the United States, formed and fashioned according to their own views, it is not to be assumed, as the basis of any reasoning, that they have given any control over the functionaries created by it, to any state, beyond what is found in the text of the instrument. When such a control is asserted, it is matter of proof, not of assumption; it is matter to be established, as of right, and not to be exercised by usurpation, until it is displaced. The burthen of proof is on the state, and not on the government of the Union. The affirmative is to be established; the negative is not to be denied, and the denial taken for a concession.

§ 628. In regard to the power of a state to prescribe the qualification of inhabitancy or residence in a district, as an additional qualification, there is this forcible reason for denying it, that it is undertaking to act upon the very qualification prescribed by the constitution, as to inhabitancy in the state, and abridging its operation. It is precisely the same exercise of power on the part of the states, as if they should prescribe, that a representative should be forty years of age, and a citizen for ten years. In each case, the very qualification fixed by the constitution is completely evaded, and indirectly abolished.

§ 629. The next clause of the second section of the first article respects the apportionment of the representatives among the states. It is as follows: Representatives and direct taxes shall be apportioned among the several states, which may be included in this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration