Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/175

deemed of primary obligation and government. The object of prosecutions of this sort in both countries is to reach high and potent offenders, such as might be

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state must be divided by a fixed ratio, and all resulting fractions, great or small, disregarded, this is but to take for granted the very thing in controversy. The question is, whether it be unconstitutional to make approximation to equality, by allowing representatives for major fractions. The affirmative of this question is, indeed, denied; but it is not disproved, by saying, that we must abide by the operation of division, by an assumed ratio, and disregard fractions. The question still remains, as it was before; and it is still to be shown, what there is in the constitution, which rejects approximation, as the rule of apportionment. But suppose it to be necessary to find a divisor, and to abide its results. What is a divisor? Not necessarily a simple number. It may be composed of a whole number and a fraction; it may itself be the result of a previous process; it may be any thing, in short, which produces accurate and uniform division: whatever does this, is a common rule, a common standard, or, if the word be important, a common divisor. The committee refer, on this part of the case, to some observations by Professor Dean, with a table, both of which accompany this report.
"As it is not improbable, that opinion has been a good deal influenced on this subject by what took place on the passing of the first act, making an apportionment of representatives among the states, the committee have examined and considered that precedent. If it be in point to the present case, it is certainly entitled to very great weight; but if it be of questionable application, the text of the constitution, even if it were doubtful, could not be explained by a doubtful commentary. In the opinion of the committee, it is only necessary, that what was said on that occasion should be understood in connection with the subject-matter then under consideration; and, in order to see what that subject-matter really was, the committee think it necessary to state, shortly, the case.
"The two houses of congress passed a bill, after the first enumeration of the people, providing for a house of representatives, which should consist of one hundred and twenty members. The bill expressed no rule or principle, by which these members were assigned to the several states. It merely said, that New-Hampshire should have five members, Massachusetts ten, and so on; going through all the states, and assigning the whole number of one hundred and twenty. Now, by the census, then recently taken, it appeared, that the whole representative population of the United States was 3,615,920; and it was evidently the wish of congress to make the house as numerous, as the constitution would allow. But the constitution has said, that there should not be