Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/174

 166 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 act 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 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