fact, this view of the subject constituted the basis of some of the representative departments in several of the State governments.1 § 640. There was another reason urged, why the votes allowed in the Federal legislature to the people of each State ought to bear some proportion to the comparative wealth of the States. It was, that States have not an influence over other States, arising from the superior advantages of fortune, as individuals in the same State possess over their needy fellow-citizens from the like cause. The richest State in the Union can hardly indulge the hope of influencing the choice of a single representative in any other State; nor will the representatives of the largest and richest States possess any other advantages in the national legislature, than what results from superior numbers alone.2

§ 641. It is obvious that these latter reasons have no just application to the subject. They are not only overstrained and founded in an ingenious attempt to gloss over the real objections, but they have this inherent vice, that, if well founded, they apply with equal force to the representation of all property in all the States; and if not entitled to respect on this account, they contain a most gross and indefensible inequality in favor of a single species of property (slaves) existing in a few States only. It might have been contended, with full as much propriety, that rice, or cotton, or tobacco, or potatoes should have been exclusively taken into account in apportioning the representation.

§ 642. The truth is, that the arrangement adopted by the Constitution was a matter of compromise and concession, confessedly unequal in its operation, but a necessary sacrifice to that spirit of conciliation which was indispensable to the union of States having a great diversity of interests and physical condition and political institutions. It was agreed that slaves should be represented under the mild appellation of "other persons," not as free persons, but only in the proportion of three fifths. The clause was in substance borrowed from the resolve, passed by the continental Congress on the 18th of April, 1783, recommending the States to amend the Articles of Confederation in such manner that the national expenses should be defrayed out of a common treasury,

1 The Federalist, No. 54; 1 Elliot's Debates, 213.

2 The Federalist, No. 54.

1 Elliot's Debates, 212, 213; 2 Pitk. Hist. 233 to 244; Id. 245, 246, 247, 248; 1 Kent's Comm. 216, 217; The Federalist, Nos. 37, 54; 3 Dall. 171, 177, 178.

1

"which shall be supplied by the several States, in proportion to the whole number of white or other free inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons, not comprehended in the foregoing description, except Indians, not paying taxes, in each State." In order to reconcile the non-slaveholding States to this provision, another clause was inserted, that direct taxes should be apportioned in the same manner as representatives. So that, theoretically, representation and taxation might go pari passu. This provision, however, is more specious than solid; for, while in the levy of direct taxes, it apportions them on three fifths of persons not free, it, on the other hand, really exempts the other two fifths from being taxed at all as property. Whereas, if direct taxes had been apportioned, as upon principle they ought to be, according to the real value of property within the State, the whole of the slaves would have been taxable as property. But a far more striking inequality has been disclosed by the practical operations of the government. The principle of representation is constant and uniform; the levy of direct taxes is occasional and rare. In the course of forty years, no more than three direct taxes 1 have been levied; and those only under very extraordinary and pressing circumstances. The ordinary expenditures of the government are, and always have been, derived from other sources. Imposts upon foreign importations have supplied, and will generally supply, all the common wants; and if these should not furnish an adequate revenue, excises are next resorted to, as the surest and most convenient mode of taxation. Direct taxes constitute the last resort, and (as might have been foreseen) would never be laid until other resources had failed.

§ 643. Viewed in its proper light as a real compromise, in a case of conflicting interests, for the common good, the provision is entitled to great praise for its moderation, its aim at practical utility, and its tendency to satisfy the people that the Union, framed by all, ought to be dear to all, by the privileges it confers

1 Journals of Congress, 1783, Vol. 8, p. 188; 1 Elliot's Debates, 56. [This provision is somewhat modified by the fourteenth amendment, which will be considered hereafter.]

2 The Federalist, No. 54; Journal of Convention, 12th July, 171, 172; Id. 174, 175, 176, 179, 180, 210; Id. 235; Id. 372; 1 Elliot's Debates, 56, 57, 58, 60; Id. 213. 31 Tucker's Black. Comm. 190, 191; 1 Elliot's Debates, 58, 59.

* In 1798, 1813, 1815. The last was partially repealed in 1816.

as well as the blessings it secures. It had a material influence in reconciling the Southern States to other provisions in the Constitution, and especially to the power of making commercial regulations by a mere majority, which was thought peculiarly to favor the Northern States. It has sometimes been complained of as a grievance; but he who wishes well to his country will adhere steadily to it as a fundamental policy which extinguishes some of the most mischievous sources of all political divisions, those founded on geographical positions and domestic institutions. It did not, however, pass the convention without objection. Upon its first introduction, it was supported by the votes of nine States against two. In subsequent stages of the discussion it met with some opposition; 2 and in some of the State conventions it was strenuously resisted. The wish of every patriot ought now to be, requiescat in pace.

§ 644. Another part of the clause regards the periods at which the enumeration or census of the inhabitants of the United States shall be taken, in order to provide for new apportionments of representatives, according to the relative increase of the population of the States. Various propositions for this purpose were laid, at different times, before the convention. It was proposed to have the census taken once in fifteen years, and in twenty years; but the vote finally prevailed in favor of ten.5 The importance of this provision for a decennial census can scarcely be overvalued. It is the only effectual means by which the relative power of the several States could be justly represented. If the system first established had been unalterable, very gross inequalities would soon have taken place among the States, from the very unequal increase of their population. The representation would soon have exhibited a system very analogous to that of the house of commons in Great Britain, where old and decayed boroughs send representatives, not only wholly disproportionate to their importance, but in some cases, with scarcely a single inhabitant, they match the representatives of the most populous counties."

1 1 Elliot's Debates, 212, 213.

2 Journal of Convention, 11th June, 111, 112. See also Id. 11th July, 168, 169, 170, 235, 236; 4 Elliot's Debates, (Yates's Minutes,) 69.

* 1 Elliot's Debates, 58, 59, 60, 204, 212, 213, 241.

✦ Journal of Convention, 163, 164, 167, 168, 169, 172, 174, 180.

• Journal of Convention, 12th July, 168, 170, 173, 180.

1 Black. Comm. 158, 173, 174; Rawle on Constit. ch. 4, p. 44.

§645. In regard to the United States, the slightest examination of the apportionment made under the first three censuses will demonstrate this conclusion in a very striking manner. The representation of Delaware remains as it was at the first apportionment; those of New Hampshire, Rhode Island, Connecticut, New Jersey, and Maryland have had but a small comparative increase; whilst that of Massachusetts (including Maine) has swelled from eight to twenty; that of New York, from six to thirty-four; and that of Pennsylvania, from eight to twenty-six. In the mean time, the new States have sprung into being; and Ohio, which in 1803 was only entitled to one, now counts fourteen representatives. The census of 1831 exhibits still more striking results. In 1790, the whole population of the United States was about three million nine hundred and twenty-nine thousand; and in 1830, it was about twelve million eight hundred and fifty-six thousand.1 Ohio, in 1833, contained at least one million, and New York two million of inhabitants.2 These facts show the wisdom of the provision for a decennial apportionment; and, indeed, it would otherwise have happened that the system, however sound at the beginning, would by this time have been productive of gross abuses, and probably have engendered feuds and discontents of themselves sufficient to have occasioned a dissolution of the Union. We probably owe this provision to those in the convention who were in favor of a national government in preference to a mere confederation of States.8

§ 646. The next part of the clause relates to the total number of the House of Representatives. It declares that "the number of representatives shall not exceed one for every thirty thousand." This was a subject of great interest; and it has been asserted that scarcely any article of the whole Constitution seems to be rendered more worthy of attention by the weight of character, and the apparent force of argument, with which it was originally assailed.4 The number fixed by the Constitution to constitute the

1 [The population of the United States and Territories, as shown by the census of 1870, was 38,923,210. It is estimated that it would have been 3,000,000 more but for the war of 1861-1865. Indians not taxed are not included in this enumeration]

2 [The population of New York, as shown by the census of 1870, was 4,382,759, and that of Ohio 2,665,260.]

8 See Journal of Convention, 165, 168, 169, 174, 179, 180.

The Federalist, No. 55; 3 Amer. Museum, 427; Id. 534; Id. 547; 4 Elliot's Debates, (Yates and Lansing's Letter to Gov. Clinton,) 129, 130.

body, in the first instance, and until a census was taken, was sixty-five.

§ 647. Several objections were urged against the provision. First, that so small a number of representatives would be an unsafe depositary of the public interests. Secondly, that they would not possess a proper knowledge of the local circumstances of their numerous constituents. Thirdly, that they would be taken from that class of citizens which would sympathize least with the feelings of the people, and be most likely to aim at a permanent elevation of the few, on the depression of the many. Fourthly, that, defective as the number in the first instance would be, it would be more and more disproportionate by the increase of the population, and the obstacles which would prevent a correspondent increase of the representatives.1

$648. Time and experience have demonstrated the fallacy of some, and greatly impaired, if they have not utterly destroyed, the force of all of these objections. The fears which were at that period so studiously cherished, the alarms which were so forcibly spread, the dangers to liberty which were so strangely exaggerated, and the predominance of aristocratical and exclusive power which was so confidently predicted, have all vanished into air, into thin air. Truth has silently dissolved the phantoms raised by imaginations heated by prejudice or controversy, and at the distance of forty years we look back with astonishment at the laborious reasoning which was employed to tranquillize the doubts and assuage the jealousies of the people. It is fit, however, even now, to bring this reasoning under review, because it inculcates upon us the important lesson, how little reliance can be placed upon mere theory in any matters of government, and how difficult it is to vindicate the most sound practical doctrines against the specious questioning of ingenuity and hostility.

§ 649. The first objection was to the smallness of the number composing the House of Representatives.2 It was said that it was unsafe to deposit the legislative powers of the Union with so small

1 The Federalist, No. 58; 1 Elliot's Debates, 56; Id. 206, 214, 215, 218, 219, 220, 221 to 225; Id. 22ỏ to 232.

2 It is remarkable that the American writer whom I have several times cited takes an opposite objection. He says, "The national House of Representatives will be at first too large; and hereafter may be much too large to deliberate and decide upon the best measures." Thoughts upon the Political Situation of the United States of America (Worcester, 1788).