cause it has the opportunity to be calmer and more deliberate, to look beyond the present, to study the effect of measures upon the future.

§ 191. When we turn from the Senate to the more numerous and popular branch, the question meets us, how are the members to be apportioned to their constituents; according to what ratio shall they be allotted among the several states. As the principle of local self-government had been preserved in the organization of the Senate by giving each commonwealth an equality of representation, so after some struggle the prin[ciple of centralization, the idea of an empire, triumphed in constructing the lower House. All state equality is here abandoned, and the members are to represent either property or population. But it was perceived that any definite distribution which should be made at the time when the Constitution was adopted, and which might then be just and equable, would, probably, as years passed by, and the nation developed in resources, become extremely unfair and one sided. Some rule must, therefore, be established which would hold good for all subsequent generations; by which the representation might be rearranged from time to time whenever a necessity should require.

§ 192. It was easy to determine that the number of delegates given to each particular state should be ascertained by the amount of the population, and not by the amount of property. It was therefore provided that at the outset each state should be entitled to a certain definite number of representatives; that the number of representatives should never exceed one for every thirty thousand; but that each state should always have at least one delegate; and that as the basis of the subsequent apportionment, an enumeration of inhabitants should be taken within three years after the first meeting of Congress and at intervals of ten years thereafter.1

§ 193. But in fixing upon the exact basis of apportionment by means of this census, a difficulty presented itself so great that it could only be evaded by a compromise. Had the inhabitants of the states been all freemen no such difficulty could

1 Const. Art. I. Sec. II. § 3.

have arisen; but most of the original thirteen states contained a mixed population of freemen and slaves, and in the Southern States the latter class bore a large proportion to the former. Should these slaves be reckoned as persons in determining the number of inhabitants in a state for the purpose of ascertaining how many delegates that state should send to the national Congress? On the one side it was urged that slaves were property, and therefore not to be included in the aggregate of population; on the other hand it was replied that slaves were actual persons, and were as much entitled to be represented as women and minors and all others who are forbidden to exercise political rights. This contrariety of opinion on so vital a question could only be arranged by a compromise, and it is thus that the Constitution settled the difficulty.

"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.' "1 The term "free persons" includes all inhabitants of every age, sex, and color who are not in a condition of slavery, except Indians not taxed; "all other persons is the constitutional euphemism for slavery.

§ 194. During the continuance of slavery this rule of the Constitution resulted in giving to the Southern States a far larger representation in Congress than would have been due simply from the number of freemen in those communities, and thus greatly added to the power of the ruling class at the South. For the slaves were, to all intents and purposes, property, made so by the state laws, and no more appropriate to be taken as the basis of an apportionment, than the cattle and horses of the Northern farmer. The claim that, being actual persons, they were to be regarded as in the same condition as women and minors, was plainly fallacious. Women and minors, though having no political capacities, are clothed with all civil rights, rights for whose protection governments are

1 Const. Art. I. Sec. III. § 3.

instituted. Slaves have no such rights; as members of the society they are completely swallowed up in their masters; even the laws for their personal safety are rather enacted in the interests of the masters, to protect their property. As the slaves could not, under any supposable circumstances, exert the slightest influence in the actual choice of legislators, the Southern freeman, while voting on behalf of a fraction of his slave population, was just so far out-voting his Northern fellowcitizen.

§ 195. This preponderating influence may be increased in the future rather than diminished. An amendment to the Constitution has abolished slavery, and the bondmen have become free. There are now no more "other persons to whom the constitutional provision can apply. Representatives must be apportioned equally over the whole country. The same number of free citizens in every part of the Union will now speak through the voice of every delegate to the national Congress. This will immediately increase the number of Southern representatives in the lower House; for the total representative population of a state will no longer be ascertained by adding to the number of freemen three fifths of the slaves, but by adding to the former freemen the whole of the former slaves. This result will be unobjectionable if the vast aggregate of persons thus suddenly raised into the status of freedom and taken as the numerical basis of apportionment, can have any actual voice, can exert any positive influence in the choice of representatives. If this power be not conferred upon them, the former governing classes at the South will have received an accession to their political importance; the balance will be even more inclined in their favor. In no other portion of the country will there be such an enormous number of free persons, who, by state laws, are deprived of all active co-operation in the management of the government, and yet who are reckoned as persons that must be fully represented in the Congress of the nation.

§ 196. This result was probably overlooked at the time when the amendment abolishing slavery was adopted. Various plans are now suggested to evade it. A second amend

ment is proposed changing the basis of representation, and providing, in substance, that the apportionment be made according to the number of those persons in each state who, by state laws, are declared to be electors. The number of delegates in Congress would then depend upon the number of those who are clothed with the capacity of voting; and a state would obtain a larger influence in Congress as it extended wider the electoral franchise among its inhabitants. The adoption of such an amendment would, doubtless, indirectly compel the several state governments in time to confer the right of voting upon negroes. A second plan assumes an amendment either defining in terms the qualifications of electors, or empowering Congress to define them. These changes would affect the entire country. A third measure applies alone to those Southern States which declared themselves separated from the Union, and consists in requiring, as a condition to a complete restoration to their political rights, that they should severally provide in their fundamental laws for conferring the electoral franchise upon negroes. I purpose, in the sequel, to offer a few observations upon these plans, and therefore pass them by, at present, with this simple statement.

SECTION III.

METHOD OF CHOOSING OFFICIAL PERSONS.

$197. General Features. A third element in the organ-, ization of the government to which our attention should be directed, is the method of choosing those persons to whom the labor and duty of administering the public affairs are intrusted. When we examine the provisions of the Constitution we are struck with the fact that among the thousands of officials who may be needed to carry on the operations of the national government, only one small class- the members of the House of Representatives are to be elected directly by the people. Amid the general acceptance of the modern doctrine that the right of suffrage is almost an essential attribute of citizenship, and while the tendency has, for many years, been to extend,

-

f

and not to contract it, this element in our organic law stands out in bold contrast to the practice of most of the states in the management of their domestic concerns. Indeed, our fathers, who framed and adopted the Constitution, though sternly republican, had not yet conceived the idea that the people were to interfere directly in the choice of all rulers. Their scheme of giving effect to the popular will was through the means of delegation. The people were to speak once in the selection of certain officials; and these representatives were afterwards to be the mouth-pieces of their constituents. This principle runs through the whole Constitution; and it was applied even in the first adoption, and in any subsequent ratification of amendments.

§ 198. The President and Vice-President. -Article II. Section I., as amended in Article XII. of the Amendments, provides for the choice of President and Vice-President as follows: "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress. The electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President."

[The ballots are to be counted by the President of the Senate in the presence of the Senate and House of Representatives.] "The person having the greatest number of votes for President shall be the President if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately by ballot, the President. But in choosing the President the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states