Friday, December 14.
Another member, to wit, from Massachusetts, Abijah Bigelow, elected to supply the vacancy occasioned by the resignation of William Stedman, appeared, was qualified, and took his seat.
Apportionment Bill.
Mr. Gold considered this bill as a very important one, as fixing the construction to be put on a provision of the constitution. While, on the one hand, it might be admitted that business would be in general better done by a small number of Representatives, yet, on the other hand, there were important considerations in favor of a large number, as gentlemen would find by referring to the discussions at the period of the adoption of the constitution. It was then feared by some that the representation of so great a people would be too small. If gentlemen would refer to a number of papers, drawn up by an association of gentlemen, at that time, and published under the title of "The Federalist," they would find various arguments used to induce the Legislature to make the representation full; so that, at that period, no apprehensions had existed of the Representatives becoming too numerous. On the contrary, it was supposed that the public confidence would be impaired by having a small delegation. In adverting to the relaxed state of the Union, and how much it was exposed to be shook by attempts to weaken it, it was supposed that public confidence would be inspired, and general satisfaction given, by the selection of a large number. It was true, Mr. G. said, that representation might swell so much as to operate to the exclusion of legislation; but the House of Representatives would not, even if the present ratio were retained, be so numerous as many other legislative bodies in the Union. He had no objection to increasing the numbers of the House of Representatives to such an amount as would permit public business to be done with facility. Gentlemen might differ as to the precise ratio; but, while they argued in favor of a small number, from the inconvenience of a large delegation, he hoped they would conceive with him that well-grounded apprehensions might be entertained of the evils which would result from its being too small.
Mr. Mitchill said he was in favor of the largest number proposed; and, not having been able to obtain that, he should vote for the largest on which a majority could agree. In the district represented by his colleague (Mr. Mumford) and himself, there was probably one hundred and twenty thousand souls, and yet he had not heard any murmuring that they were not adequately represented.
Congress, Mr. M. said, did not convene here to legislate on all the subjects of the rights of citizens. Our Government is, he contended, a peculiar piece of machinery, an imperium in imperio. The Representatives to Congress left behind them Legislatures, whose province it was to take care of the personal rights and the rights of property of our citizens. With these concerns, said Mr. M., we have nothing to do. We meet here under a constitution expressly framed and devised for legislating on select subjects, which, on account of the generality of their nature, could not be confided to the several States. When, then, we consider the narrow grounds we have to legislate on, that our great privileges are left at home, we shall be convinced that there is no occasion that this body should be as numerous as if we were concerned in the great questions of property and right, which are secured by the constitution, under the guardianship of the State Legislatures, and of the courts for the furthering of justice. If I were to quote a precedent of a Legislature for commanding influence, and for wisdom and sagacity in carrying us through an arduous contest whilst struggling for our liberties, I should quote the Old Congress—limited in number, but remarkable for the honesty and fidelity with which they performed what a more numerous body could not have accomplished. And, if I wished to cite an instance of the evils to be dreaded from a numerous assembly, I should quote the National Convention of France, where representatives, assembling in great number, exhibited such a spectacle of disorder as I hope we shall never, by a multitude of counsellors, run the risk of imitating.
Mr. Pitkin said that he had not expected that a bill of so much importance would have progressed so far, and gone through the Committee of the Whole in so rapid a manner as this had. What, he asked of the House, was settled by the passage of this bill? Nothing was, or could be settled by the present Congress, unless the returns were made from the different States of the number of inhabitants in each State, before the bill became a law; for Congress alone could designate and specify the number of Representatives which each State should send. The laws heretofore passed, designating the number of Representatives, had, at the same time, declared the ratio, and specified the number of Representatives of each State. Congress alone were competent to decide on the legality of the returns, and on their act alone could the State Legislatures proceed. Mr. P. presumed no member would say that it should be left to the Executive, or any Department of the Government, to say how many Representatives each State should send to Congress. The present Congress might fix the ratio as they pleased, but it would not be obligatory on the next Congress, who could, and undoubtedly would, modify or reverse it as they should think proper. This bill was, therefore, premature, and, in fact, would not settle the principle which it proposed to decide. He was, therefore, on this ground, opposed to the passage of this bill; and he believed the inconvenience of deciding it now would be greater than if the business were to rest until after the returns were made.
Mr. Quincy said that the agitation of this question at the present moment had taken him as much by surprise as it had the gentleman from Connecticut. He had no idea that a question so pregnant with interest would be hurried through the House in this way. His object in rising was to obtain a postponement of the question till some time in the next week, for the consideration of a point, which to his mind was important. He objected to the bill on the principle that it would be a violation of the constitution to pass it. It went to establish a ratio which, in its effect, must be abortive. The constitution says:
"Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and, excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative."
The constitution then had specifically made it the duty of the House to apportion the representation of each State according to its respective numbers. Was it not, he asked, infinitely absurd and a direct violation of the constitution, to apportion the representation before these numbers were known? When the constitution had made it a duty to do a thing according to a standard prescribed, would they do that thing before that standard could be in possession of the House? Suppose that in 1791, before the numbers of the States were known, Congress had undertaken to fix the ratio of representation—would not the Hall have rung with the exclamations that it was a violation of the constitution? And how would this bill, Mr. Q. asked, less violate the constitution than such an act would have done? For, as to the numbers to be ascertained by the present census, Congress were as little competent to decide as they were before any census was taken. This was the ground on which he objected to the bill as unconstitutional, and which he wished an opportunity thoroughly to examine. He therefore moved that the bill lie on the table.
Mr. Fisk said it had been deemed desirable to fix the ratio before the numbers of each State were ascertained, so as to avoid the difficulty which would arise from the fractions, and to afford an accommodation to the State Legislatures, which would be in session before the next meeting of Congress. It would indeed be necessary to pass a law declaring the number of Representatives to be sent by each State; but that would be a mere matter of form, if the ratio were previously ascertained by law.
Mr. F. treated the idea of this bill's being unconstitutional, as altogether unwarranted by fact; for it did not fix the apportionment, but merely the ratio, according to which the Representatives should be apportioned among the States when their respective numbers were known.
Mr. Wright was in favor of postponing, and decidedly opposed to the bill. He was against it, because it proposed to bestow on others a power residing in Congress. If this law were to pass, could the Secretary of State be authorized to declare the number of Representatives to which each State was entitled? Could Congress transfer to him legislative power, and authorize him to declare of how many members this body should consist? He presumed not. The power was vested in Congress, and not in the Secretary of State. But gentlemen were desirous now to fix the number of souls which should entitle to a Representative—and why? That the State Legislatures, understanding the number of Representatives to which they are entitled from knowing the census, may proceed to district their States, in anticipation of the law to be passed by Congress. But their acts would not be conclusive, because Congress might change the ratio, and they would have to undo all they had done. Mr. W. hoped that this business would be postponed, until, as heretofore, Congress would be possessed of all the information of which the nature of the case would admit. When the census was received from the President of the United States they would be much better able to act than now. In this case, Mr. W. said he held himself imperiously bound to follow the steps of his predecessors. He held it a correct maxim in general, that the practice of to-day should be the precedent for to-morrow. Why need they decide this business immediately? There was yet some months in the session, and time enough to reflect on the subject. Why legislate by halves? If this law were passed, Mr. W. asked, was it perfect? Did it declare to how many Representatives each State should be entitled? He said he could refer to cases in which errors had occurred in the census; and it was in the power of the House alone to correct any errors which might have escaped the Secretary of State. In Maryland a mistake had occurred in the last enumeration, of thirty or forty thousand souls. He believed that a great portion of the district comprising Cecil and Hartford counties had been omitted; and he recollected perfectly well that the error was corrected; and, by turning his eye to the proceedings of that day, he could see other errors. He wished, when the House acted, that they should do it understandingly, and with all the evidence before them of which the case was susceptible. He hoped the bill would be postponed until the returns of the census were received in the usual mode.
Mr. W. Alston opposed the postponement. He was as loth to depart from old practices as the gentleman from Maryland, if those practices were found to be good. But when they proved inconvenient or useless, it was certainly right to depart from them. What, then, had experience taught them on this subject? Why, that if the ratio was not fixed before the census was known, great inconvenience would result to many States. Congress, at their last session, being apprised of the circumstance, had in their law directed that complete returns should be made to the Secretary of State by the first of March next. It was well known that, if they did not fix the ratio before the first of March, they would not be able to fix it after; when the ratio was fixed, however, the apportionment would not be the work of an hour. If it became necessary to deprive a State of a Representative, he asked whether it would not be more palatable that it should be done now than after the census was known? The State deprived of a Representative could not complain; the ratio would affect it in the same proportion, whether it gave or took a member. That argument, therefore, was entitled to no consideration. Mr. A. expressed his surprise that the small States appeared to be opposed to a large ratio; for, if it would be an advantage on any side, it would be decidedly in favor of the small States. He thought, indeed, that the Representatives of the large States, in voting for a large ratio, had shown great magnanimity and liberality.
Mr. Goldsborough was in favor of postponement, and was sorry to see the bill attempted to be hurried through. Gentlemen had not maturely considered the subject, and, on reflection, would be convinced that their votes were, if not a direct, at least an indirect, violation of the constitution. This was premature legislation on what properly belonged to the next Congress, and which, act on it as they might, would unquestionably come before Congress at their next session. If it should be found that the ratio agreed on operated unfavorably on the numbers of any State or States, they would be anxious for a reconsideration of the subject. It would be immaterial whether the subject should be brought up by a bill de novo, or by a bill to repeal this, if it should indeed become a law; the ardor of discussion would be the same in either case. If this be admitted, the only argument in favor of the bill is done away. The constitution having directed that apportionment should be made accordingly to the whole census, Mr. G. said that he could not see how Congress could fix it before they knew what that census was. He did not know that every gentleman on the floor was ignorant of any of the returns; some might be already apprised of the returns of their own State. Each one made estimates no doubt, in his own mind, as to the probable result; and, for himself, Mr. G. said he had been endeavoring to make some sort of a calculation; and if the bill passed, and the ratio should prove unfavorable to the numbers of the State which he had the honor to represent, he should feel himself bound to move a repeal of the law; and they would have the whole discussion over again.
The question on the bill's laying on the table was carried—65 to 43.
And on motion, the House adjourned until Monday.