Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/176

 168 more than one member for every thirty thousand persons. This prohibition was, of course, to be obeyed; but did the constitution mean, that no states should have more than one member for every thirty thousand persons? or did it only mean, that the whole house, as compared with the whole population 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, then 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.

"President 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 restriction 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, without giving to some of them more than one member 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 fractions 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 presumed to escape punishment in the ordinary tribunals, either from their own extraordinary influence, or from the imperfect organization and powers of those