numbers of the state. It it is said, that it is impracticable to follow the meaning of the terms literally, that may be admitted; but it does not follow, that they are to be wholly disregarded, or language substituted essentially different in its import and effect. If we must depart, we must depart as little as practicable. We are to act on the doctrine of cy pres, or come as nearly as possible to the rule of the constitution. If we are at liberty to adopt a rule varying from the terms of the constitution, arguing ab inconvenienti, then it is clearly just as open to others to reason on the other side from opposing inconvenience and injustice.
§ 681. This question, which a learned commentator has supposed to be now finally at rest,[1] has been (as has been already intimated) recently revived and discussed with great ability. Instead of pursuing my own reasoning upon this subject it will be far more satisfactory to give to the reader, in a note, the arguments on each side, as they are found collected in the leading reports and documents now forming a portion of contemporary history.[2]
- ↑ Rawle on Constitution, 43; 5 Marshall's Life of Washington, 324.
- ↑ Mr. Jefferson's opinion, given on the apportionment bill in 1792, presents all the leading reasons against the doctrine of apportioning the representatives in any other manner than by a ratio without regard to fractions. It is as follows:
"The constitution has declared that 'representatives and direct taxes shall be apportioned among the several states according to their respective numbers;' that 'the number of representatives shall not exceed one for every 30,000, but each state shall have, at least, one representative; and, until such enumeration shall be made, the state of New-Hampshire shall be entitled to choose three, Massachusetts,' &c.
"The bill for apportioning representatives among the several states, without explaining any principle at all, which may show its conformity with the constitution, or guide future apportionments, says, that New-Hampshire shall have three members, Massachusetts sixteen, &c. We are, therefore, to find by experiment what has been the principle of the
