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on the subject of representation, might be shown to be inapplicable, even if it were admissible. But it is not admissible; because the amendment has not, as yet, become the sense of the United States. It is inapplicable. For although it has been observed, that, without recurring to the aggregate federal population, it might happen that three millions of persons would not give one hundred members; the answer is full as strong, to reply, that Congress would not be called upon to have one hundred members, unless one hundred times 30,000 should be contained in the separate federal populations of the several States. Indeed, the amendment proves nothing either way.

In short, it is wonderful that, after admitting the necessity of applying some ratio, and after perceiving that the application of that ratio to the aggregate federal population will produce such a number of representatives as cannot be distributed by any ratio whatever, the friends to the bill should not have abandoned it upon their own principles.

Here lies the radical objection, and the violation of the constitution. If it be not here, the Attorney General must, in candor, own that it is nowhere, in his opinion. For, if the 120 members can be established, the subdivision cannot be executed in any other, or in any fairer manner. The ratio of 30,000 is carried through the particular, as well as the aggregate federal population, as far as it can; and the remaining eight members are distributed equitably

This is the best judgment, therefore, which the Attorney General has been able to form without longer premeditation. Whether the reasoning on the opposite side ought to weigh against the interposition of a negative, it is not for him to decide.

April 4, 1792.


Recapitulation by Mr. Jefferson.

The opinion of the Secretary of State declares the bill unconstitutional; for it does not apportion the representatives among the States, strictly, according to their numbers.

It provides for fractions, which the constitution never intended.

It leaves the determination of apportioning the representatives without any fixed principle, which may hereafter be productive of great evil; and admits of caballing and bargaining on the subject.

The bill carried by a small majority-one in the Senate, and two in the House.

The whole of both Houses admit that the constitution will bear either to have the bill in its present state, or to have one for 30,000 in each State, leaving the fractions. But the minorities will not admit the constitutionality of the present bill.

The Secretary of the Treasury has not seen the bill; but presumes that the process for forming the result in the bill has been in a certain way, which he mentions.

Thinks either the division of the aggregate number in the United States by 30,000, or the particular number in each State by that ratio, would be Constitutional.

If a direct tax should be imposed, the only way of apportioning it among the several States would be that which has been pursued in the bill; and, therefore, it is consonant to the clause in the constitution respecting representation and taxation.

That there would be a residue arising upon the whole, after dividing the numbers in each State by 30,000; and that it is but right that the States having the greatest fraction should receive the benefit resulting from dividing the aggregate number in the United States by 30,000.

The bill performs every requisite in the constitution, in the manner most consistent with equality.

Although the bill cannot be said to be unconstitutional, yet there may be another construction of which the constitution is capable. But where it may be taken in either sense, it is best to follow the legislative opinion.

The Secretary of War.

It has been said that the construction of the bill may be deemed within the letter as well as the spirit of the constitution. If that is the case, the assent of the President of the United States is to be governed by the political equity of the measure.

He approves the bill upon the principle of its giving a representation to the largest fractions.

The constitutionality of the bill being only doubted, not proved, it would appear a delicate measure for the President to decide against the sense of the Legislature.

The Attorney General of the United States.

The bill does not express the principle or rule by which the number of representatives is ascertained; it is, therefore, to be sought by calculation, which makes one to 30,000, taking the whole number in the United States. But it will be found, that, dividing the number in each State by 30,000, there will be found eight States that will have each a member less than they now have, if divided according to the numbers in the States respectively, The constitution looks for a ratio in representation. But it computed individuals as to taxes.

The bill destroys the distinction of States; for the ratio yields to numbers.

The advocates of the bill admit that the constitution is susceptible of another construction, as well as of theirs.

Such a ratio is applied to the aggregate population of the United States as produces a number that cannot be distributed by any ratio whatever; and, in this, lays the unconstitutionality of the bill,

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