Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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APPORTIONMENT

I.69.1

APPORTIONMENT. The term apportionment was applied in the federal constitution to the distribution of representatives in the lower chamber of the federal congress between the several states and to the allotment of direct taxes upon the basis of population. The rate intervals at which direct taxes have been levied by the federal government, and the recurrence in the state and federal systems of regular apportionments of representatives, have led to the general restriction of this term to the distribution of representation, and it is here used in this sense alone. State constitutions employ the word in both senses, but more frequently with reference to representation. The regular annual apportionment in many of the states, New York, Illinois, and others, of a school fund raised from the several counties by valuation and distributed by population (New York) or by population of a school age (Illinois) has continued the use of the word apportionment in fiscal allotments. The word has also a legal signification. As the division of a territory into districts is usually intimately connected with the apportionment of representation to its population, the words "districting" and "re-districting" have come to be used in American politics as nearly synonymous with apportionment.

I.69.2

—The principle of representation once established and its basis determined, the apportionment of representative power in arbitrary or proportional parts becomes the next problem in any government based on representative institutions. This apportionment may rest either on status, or the representation of certain estates by members qualified, not by election, but by position; on the organic divisions of the state; or on numbers, reference being had either to population or wealth. Bentham proposed an apportionment based in part on population and in part on territory, and such a principle was adopted in France in the constitution drawn by the constituent assembly in 1791. It has been secured elsewhere in practice by combining a representation based on population with one based on the integral divisions of the state. Historically the apportionment of representation has been first by status, next by the recognition, generally on an equality, of the organic or administrative divisions of the state, and lastly by number; a method of apportionment now recognized in the fundamental law of all constitutional nations except Great Britain, and at intervals recognized even there. In general where apportionment is based on status it is arbitrary; when derived from the administrative or other divisions of a state or confederacy it is equal; and, when guided by population, it is proportional. The allotment of representation among the towns of Aragon in the first recorded instance of representation assigned other than by status, in 1162, was equal, and the same rule was followed in Castile in 1169. Frederick II. In Sicily, 1232, assigned each place two representatives. When the cities appeared by deputies in the German diet, they enjoyed equal representation, and the same was true of the municipalities represented in the states general of France. A like principle was followed in the union of Utrecht in the Netherlands, as it had been in the Swiss confederation. It reappeared in the continental congress and is preserved in the United States senate. An upper chamber swayed by this principle, even where, as in Germany and the Dominion of Canada, complete equality is not given the smaller states, and a lower chamber based on population, often with certain classes excluded—as aliens in many American states, and slaves in Cuba under the Spanish constitution—is now the rule in most representative constitutions.

I.69.3

—In allotting representatives by population among the divisions of a state, whether a definite number of representatives or a fixed ratio is applied to the population of each division, fractions always remain. Provision is generally made for treading these fractions as full ratios if over one-half; but in the United States the tendency of apportionments during the past generation has been toward a recognition of any fraction in all cases where greater proportional equality of representation is secured by doing so. Regular intervals at which an apportionment shall be made are generally prescribed in the fundamental law and the apportionment itself is generally, but not always, performed by the legislature. In the division of representation, the entire number assigned to each subdivision may be elected as a whole. French scrutin de liste, or districts, may be laid out, as in the German empire and in most states of the union, in apportioning state representation, by the body making the original apportionment, or the work of districting may be done by a second body as congressional districts, after the apportionments of representatives by congress, are laid out by the state legislatures, and in New York, Massachusetts, Michigan, and Missouri state legislative districts within the counties are laid out by county authorities, independently of the legislature. Where the election of representatives is by single districts the effort is, not unfrequently, made to lay out these subdivisions so as to give the party in power a majority. This is ordinarily done by massing the voters of the opposite party in a few districts and distributing those voting with the party in power in a larger number. In American polities this is known as "gerrymandering;" having been conspicuously practiced in the act of Feb. 11, 1812, laying out Massachusetts into senate districts, passed during the temporary ascendancy of the democratic party in the legislature of that state under Gov. Elbridge Gerry. Another instance of the same practice which has given a term to polities is the sixth congressional district in Mississippi. as laid out in 1874, which, as it lies along the Mississippi river and almost the entire length of the state, is known as the "shoe-string" district. The districts laid out in France under the second empire by the electoral decree of 1858 furnished equally remarkable cases of "gerry-mandering."

I.69.4

—As the British colonies in North America, while enjoying mutual political equality, differed greatly in size and population, the problem of an equitable apportionment of representation presented itself in the earliest inter-colonial assemblies. In the confederation made by the New England colonies in 1643, known as the "united colonies of New England," each of the four colonies was equally represented in its council by two delegates, although the burdens of taxation and military service were allotted by population. At a later date, 1648, Massachusetts demanded an additional member or an equalization between the privilege of representation and the burdens of taxation. This was denied in the reorganization of the confederacy, and to its close the share of each colony in its deliberations remained equal. The first step in American history toward an apportionment of representation upon some other basis than the equal voice of each division in the nascent nation was presented in the "plan of union," submitted by Benjamin Franklin to the commissioners from seven states, who met at Albany in June, 1765. This plan proposed a "general council" with "legislative powers," apportioned every three years among the colonies by the "proportion of money arising out of each colony to the general treasury." A provisional apportionment proposed by Franklin for the first meeting of this council is the earliest aliquot division of representation among the colonies ever offered. The same problem confronted the continental congress at its first session in Philadelphia, Sept. 5, 1774, when James Duane, of New York, proposed a committee to prepare regulations "particularly on the method of voting, whether by colonies, by poll, or by interests." Patrick Henry, declaring that he sat "not as a Virginian but an American," urged a "national" system of representation based upon free citizens, excluding slaves; but the congress, as John Adams reminded it, had accurate information neither as to the wealth nor the population of the colonies, and it was at length voted "that in determining questions in this congress each colony or province shall have one vote, the congress not being possessed of or at present able to procure materials for ascertaining the importance of each colony." There was here the distinct admission, and apparently by a unanimous vote, that the colonies were entitled not to an individual but to a proportional vote; but the precedent established of necessity was accepted in practice and became the rule of procedure in the continental congress, first by consent and later by the articles of confederation Apportionment in the acts and proceedings of the congress of the revolution is uniformly applied to the assessment of pecuniary burdens and the distribution of calls for military service. Proportional representation was urged by Virginia, but steadily voted down by the smaller states. "Our great question," wrote John Adams, when a member of the committee drafting the articles of confederation in 1776, "is whether each colony shall count one, or whether each shall have a weight in proportion to its number or wealth or exports and imports or a compound ratio of all." The subject came up for discussion in the long and desultory debate to which these articles were subjected in congress through fifteen months, and Oct. 5, 1777, three plans of apportionment were proposed in succession; first, that Rhode Island, Delaware, and Georgia should have one vote and the other states one for every 50,000 white inhabitants, with a provision that the representation of the three smaller states should increase with every additional 50,000 to their inhabitants and the ratio of representation be itself changed when it threatened to make congress too numerous; second, that every state should send a delegate for every 30,000 of its inhabitants, each delegate to have one vote, and third, that representation should be "computed by numbers proportioned" to the taxes levied on the states and paid by them into the public treasury. All three propositions were voted down, Pennsylvania and Virginia standing alone in their support, and by a vote of ten colonies to one, each was given one vote and the privilege of sending not less than two nor more than seven delegates.

I.69.5

—Repeated review and discussion have made familiar the steps by which a compromise was reached in the convention of 1787, at Philadelphia, on the distribution and apportionment of representation; the only question which provoked the menace of withdrawal from one of the states and threatened at a later date the dissolution of the convention. As at last adopted, an equal representation was given the organic divisions of the new government in the upper chamber. In the lower, number was followed as far as the free population of the country was concerned, and status in determining the share, "other persons" should play in increasing the representation of states with a slave population. The verbiage of the clause in the federal constitution, basing representation on the total free population, "three-fifths of all other persons, and excluding Indians not taxed," first appeared as an amendment to the articles of confederation in the continental congress April 18, 1783, proposing a new basis for raising revenue. It was urged and accepted in the convention as an equitable compromise and in the constitution was accompanied by a clause which provided that the federal house of representatives should never have less than a member to each state and never have more than one to every 30,000 inhabitants in the states, computed upon the constitutional rule. The constitution contained also a provisional apportionment of representation to the states, at best little more than a guess. Mr. Gorbam, of Massachusetts, a member of the committee of five which first sketched this apportionment, informed the convention that without observing fractions, the committee had been guided by the "number of blacks and whites with some regard to supposed wealth," and at a later date Mr. Gerry, of the same state, told the Massachusetts convention that, in the share given Georgia, allowance was made for expected growth from pending immigration. The only grave criticism made on the provisions respecting apportionment in the federal constitution came from Virginia and Massachusetts, who urged that the ratio should not be altered till the number of representatives reached 200. A constitutional amendment to this purport was passed by the 1st congress, but it was never ratified by the states. The constitutional rule remained unchanged and governed apportionments through 70 years, a longer span than has fallen in history to any other provision controlling the distribution of representation by changes in population.

I.69.6

—The first of the 10 decennial apportionments, including 1880, which have come up under the federal constitution, raised, in 1792, all the questions in regard to the representation of fractions and was marked by the same struggle between the north and the south, as its successors. In this and in 4 succeeding apportionments the recognition of fractions was treated as unconstitutional. Since 1830 a contrary practice has obtained and is now firmly established. The census of 1790 placed the representative population of the country at 3,636,921. Dividing this by 30,000 as a ratio, the house (2nd congress, 1st session) apportioned 113 members on a plan favoring the southern states. The senate raised the ratio to 33,000, transferring the unrepresented fractions from the east to the south. The house refused to yield and the senate insisting upon its amendment, by the casting vote of vice-president Adams, the bill lapsed, and the house passed another, with the same apportionment, but providing for a new census in 1795, to be followed by another apportionment. The senate struck out this provision, added 7 members for each large fraction, which in Delaware was 29,000, and sent the bill back to the house. There, after a hot debate, in which both sections predicted a dissolution of the union if an apportionment favoring it was not adopted, the bill passed 31 to 29; the Delaware member, the only representative from the south voting for it. A week later the bill encountered the first veto message in the history of the government. Hamilton and Knox, the two northern members of the cabinet, advised its signature; Jefferson and Randolph, the two southern members, its veto. President Washington, with some misgiving, lest he should seem to "be taking sides with a southern party;" sent to congress a brief veto, in which, without accepting or rejecting the principle first advanced by James Madison, that the representation of fractions was unconstitutional, he based his objections upon the fact that the apportionment was on a different ratio in different states and in some fell below 30,000, the constitutional limit. The first was the inevitable result of representing fractions at all; the second of assigning members to fractions after taking the smallest ratio known to the constitution. Congress yielded, and in the house 34 to 30, in the senate by a heavy majority, passed a bill placing the ratio at 33,000, and apportioning 105 members among the states, without regard to fractions. The real principle underlying this and succeeding struggles, was whether in an apportionment the nation should be considered as a whole or be dealt with by states.

I.69.7

—Following the same ratio and the same principle as in the 1st apportionment, congress, in January, 1802, (6th congress, 2nd sess.) distributed 141 members among 15 states. Senator White, of Dalaware, endeavored in the senate, to secure an additional member for an unrepresented fraction of 28,811 in his state, but his proposition was voted down, 10 to 15 as unconstitutional.

I.69.8

—Two unsuccessful attempts were made before the census of 1810, to determine the apportionment in advance, by adopting a ratio before the results of the census were known; but the house (11th congress, 2nd and 3rd sess.) laid on the table bills proposing 40,000 and 45,000 as the ratios. After the census was published, the house, (12th cong., 1st sess.), 102 to 18, placed the ratio at 37,000, distributing 180 members. The senate, on motion of senator Bayard, 22 to 12, reduced the ratio to 35,000, giving Delaware a member, with 181 as a total, and the house, 72 to 62, agreed.

I.69.9

—For the first time since the 1st apportionment, an effort was made, after the census of 1820, (17th cong., 1st sess.), to abandon an equal ratio for all the states and adopt a number which should make the average to each member within each state equal. Under the vehement opposition of Mr. John Randolph, this was voted down, 43 to 125, and, 100 to 58, the house passed the apportionment bill, as reported by its committee, with a ratio of 40,000 and a house of 212 members. The senate, 25 to 21, accepted this, but added an amendment providing that the apportionment could be changed in the case of Alabama, when its census was completed, and, while denounced as unconstitutional in the house, for prolonging the apportionment, it passed 98 to 47.

I.69.10

—Mr. James K. Polk, in 1832 reported to the house (20th cong., 1st sess.) an apportionment bill based on the 5th census, in which the ratio was 48,000, and the membership of the house 240, a ratio favorable to Tennessee and highly unfavorable to New England. The house after prolonged debate, in which several other ratios were adopted, at last, 119 to 75, reduced the ratio to 47,300, which cut down the apparent size of the fractions without changing the distribution of members, and sent the bill to the senate. There it was attacked by Mr. Webster, in an elaborate report, urging the representation of fractions over one-half; the representation of fractions less than a moiety being pronounced unconstitutional. This amendment was once lost, 23 to 24, but its principle was at length adopted, 23 to 20, the whigs generally voting with Mr. Webster. The house, 134 to 57, refused to agree, and the senate yielded. Mr. Polk presented the democratic view in a report in which he declared that the states "must be regarded as separate, distinct communities or masses of population and not as parts of the consolidated population of the union, melted down into one mass or community;" a doctrine now abandoned in federal apportionments.

I.69.11

—Debate chiefly centered, in the apportionment on the census of 1840, (27th cong., 2d sess.), on a provision requiring the states to elect by districts, moved by Mr. William Halstead, of New Jersey. Supported by the whigs and opposed by the democrats, this was passed, 101 to 99, in the house, and 29 to 19 in the senate. This measure was principally intended to divide the delegations from New York and Pennsylvania, then elected on a general ticket. It was opposed as unconstitutional, because it directed the state legislatures to lay out districts, and deprived any citizen from voting for the entire congressional representation of his state. In the struggle over this provision, fractional representation was adopted with little debate. The house, 125 to 75, placed the ratio at 50,179 and the members at 217. The senate, 28 to 18, added 6 members for fractions over one half, and the house, after once refusing, yielded to this, 111 to 102.

I.69.12

—The census of 1850 was preceded by a measure determining the method and principle of the apportionment based upon it. To the bill providing for taking the census, sections were added, on motion of Mr. S. F. Vinton, of Ohio, (31st cong., 1st sess.) placing the number of the house at 200, and requiring the secretary of the interior, as a ministerial act, to divide the representative population of the entire country by 200, and the population of each state by the quotient thus obtained as a ratio; assigning to each state representatives for each full ratio its population contained, and 1 for each fraction till the entire number, 200, was exhausted. The principle of these sections, since known as the "Vinton bill," has guided all subsequent apportionments. The house, 93 to 78, increased the number of members to 233, and the senate supported this, 27 to 17. An apportionment was made pursuant to this measure by the secretary of the interior, (32nd cong., 1st sess., ex. doc. 129). and subsequently altered under a supplementary act, (approved July 30, 1852), giving California an additional member.

I.69.13

—In apportioning representatives after the census of 1860, congress followed the principle of Vinton's bill, but abandoned its method. The house, 86 to 7, passed without debate, (37th cong., 1st sess.), a bill which, taking 233 as the basis for apportioning 233 members on Vinton's plan, then added 6 more members to represent large fractions in Vermont, Rhode Island, Ohio, Kentucky and Iowa. In the senate, Mr. Collamer, going a step farther in the support of fractional representation than had been proposed at any previous apportionment, urged that the average of population to each member should be kept equal by giving the small states an overplus. The senate, still basing its ratios on 233 members, added 8 for fractions in Pennsylvania, Ohio, Kentucky, Illinois, Iowa, Minnesota, Vermont and Rhode Island, making 241. Supplementary legislation gave California an additional member and permitted Illinois to elect a member at large.

I.69.14

—Before the census of 1870, the 8th, had been taken, these amendments had altered the constitutional rule of apportionment. The 13th amendment left no "other persons" for the three-fifths rule to operate upon, and the 15th amendment, by imposing manhood suffrage upon the states, accomplished the purpose intended by the 2nd section of the 14th amendment. Drawn as a compromise, after the failure of a proposed amendment directly expressing its purpose, the 14th amendment, in its 2nd section, imposed a new rule of apportionment by requiring the population of each state, as a basis of representation, to be diminished in the proportion between the whole number of its male citizens, 21 years of age and upward, and those whose right to vote at any state or federal election the state denied or in "any way abridged," except for crime or a share in the rebellion. This amendment was intended solely to discourage exclusions from suffrage or account of race; but senator Sumner objected to the explicit assertion of this purpose, and proposed language so broad as to include, in its literal meaning, all the abridgments of the grant of suffrage to adult citizens, based on residence, illiteracy, idiocy, insanity, non-payment of a poll-tax, or a property qualification. This interpretation was never suggested in the debates upon the amendment. It had its first recognition in two bills for taking the 9th census, drawn by Mr. James A. Garfield, and passed by the house, (41st cong., 2nd sess), but lost in the senate. In the absence of legislation the secretary of the interior added to the schedules of the 9th census, inquiries in regard to the abridgment of suffrage to citizens; but the data obtained deserved, as Mr. Francis A. Walker, superintendent of the census said, "little credit." No provision for obtaining this information was embodied in the law for taking the 10th census, and two precedents now exist for disregarding this inquiry in census legislation. When an apportionment based on the 9th census was reached in the house (42nd cong., 2nd sess.) Mr. Garfield and Mr. S. S. Cox insisted that the meagre returns reported by the secretary of the interior should be employed, such as they were. Mr. James Maynard and Mr. M. C. Kerr united in advancing the interpretation that the 14th amendment regarded only abridgments of the suffrage based "on race, color, nationality, or any other quality which inheres in the person and constitutes part of the individuality of the voter," and the house, 77 to 70, supported this commentary. In the debate in the house (46th cong., 3d sess.) on the apportionment after the 10th census, substantially the same view was adopted, Mr. Cox urging that the rule in the 14th amendment could not be practically applied. This may now be considered as the accepted doctrine, and future apportionments will probably rest upon number alone.

I.69.15

—Prior to the census of 1870 the house, (41st cong., 2nd sess.), passed, 86 to 84, a bill drawn after Vinton's measure and placing the apportionment of 275 members in the hands of the secretary of the interior. The senate, 30 to 21, increased this number to 300, and the bill was lost in the house, 96 to 94. Two years later, the house, (42nd cong., 2nd sess.), adopted, 93 to 89, a law, apportioning 283 members upon a new plan. Four of the states, Delaware, Nebraska, Nevada and Oregon, had a population less than the ratio obtained by dividing the entire population of the United States by 283. Assigning these states 4 members, their population was subtracted and the remainder of the population divided by 279 for a new ratio; upon which the remaining apportionment was made, 17 members being assigned for fractions. The senate accepted this bill; but at a later date a supplementary bill passed both chambers adding a member each to New Hampshire, Vermont, New York, Pennsylvania, Indiana, Tennessee, Louisiana and Florida, 9 in all, making the total 292. Upon its face a supplement to the other bill, this was in fact, as an accompanying report explains, to be taken with that as a new apportionment with 131,425 as a ratio, obtained by dividing the population by 290; 2 more members being given for large fractions in Florida and New Hampshire.

I.69.16

—After the census of 1880, the house, (46th cong., 3rd sess.), 136 to 123, passed a bill apportioning 319 members, on Vinton's plan, but the measure was lost in the senate.

I.69.17

—All the states of the American Union, except Delaware, provide in their constitutions for a periodical apportionment of representation, and a re-distribution of the members in one or both branches of the legislature has been made with some regularity during the last half-century in all the other states except Connecticut. This allotment of representation is usually guided exclusively by numbers in apportioning the lower branch and by population controlled by county or town lines in the upper, so that the former generally reflects changes in population more closely than the latter. The chief exception to this rule is in Vermont where representation in the lower branch has, since 1793,*14 been equally distributed among the towns while the members of the senate, since 1836, have been divided among the counties by population.

I.69.18

—The duty of apportionment is committed to the legislative authority of the state; except in Ohio, where the governor, auditor and secretary of state or any two of them have allotted representation in both branches under the constitution of 1851; in Maryland, where the governor performs the same duty by the constitution of 1867; while in Missouri, 1867, the governor, secretary of state and attorney general are empowered to lay out senate districts if the lower chamber, at its final session after any enumeration, fails to pass a bill re-districting the senate. In Massachusetts, under amendments adopted in 1836 and in 1840, the apportionment of the state was placed in the hands of the governor and council, until 1857, when it was restored to the legislature. In Illinois, by the constitution of 1870, the first apportionment under minority, representation was committed to the governor and secretary of state. Both Massachusetts, 1780, and New Hampshire, in 1784, in their early constitutions left the apportionment of representatives in a measure to the people of each town by selecting a small number of ratable polls as the ratio and permitting each town to send 1 for such ratio; the large towns, as Boston, rarely sending all the members to which they were entitled to the general court. This right, the judge of the state held (Mass. Elec. Cases, 120,) was enjoyed by the town in its corporate capacity and could not be interfered with by the legislature—The following table gives the ratio and the number of representatives at each apportionment:

Table.  Click to enlarge in new window.

I.69.19

The basis of apportionment, where dependent on the civil divisions of the state, is, in New England, the town; in the middle, western and southern states the county; in Louisiana the parish; in South Carolina, until 1868, election districts: while in New York until 1821, in Virginia, from 1850 to 1864, the state was divided into 4 districts, made up of counties, within which senators were apportioned. In Virginia 8 such districts were provided at the same time for the lower branch. Ohio, 1831, has 33 fixed senate districts within whose limits senators are apportioned, districts being united from time to time when they fall below the ratio obtained by dividing the state population by 35. Under an opinion given by attorney general Nash, in 1881, districts so united can not be separated in a subsequent apportionment until the population of each equals the state ratio for senator. Another unit in apportionment was recognized in Maryland by the division of the state, adopted in 1776 abolished in 1836, into an "eastern" and "western" shore in alloting the senate. Massachusetts was also divided up to 1831 into senate districts, made "permanent" in 1840, among which senators were apportioned. These various divisions of a state to which representation is assigned or within which it is divided must be distinguished from the ordinary district whose erection is a customary incident of apportionment where the number of representatives is greater or less than the number of counties or towns. Apportionments within the states, based upon number, rest either upon the entire population, (Alabama, 1867; Connecticut, 1828; Illinois, 1870; Louisiana, 1852, 1879; Massachusetts, 1840; Minnesota, 1857; Missouri, 1875; Nebraska, 1867; Nevada, 1864; New Hampshire, 1877, New Jersey, 1844; Ohio, 1851; Pennsylvania, 1873; Rhode Island, 1842; South Carolina, 1868; Texas, 1836, 1876; Vermont, 1836; West Virginia, 1872; Wisconsin, 1848; all the western states mentioned excluding Indians not taxed), upon the total population less aliens, (Maine, 1820; Maryland, 1867), upon the total population, less aliens and Indians not taxed. (New York, 1821; North Carolina, 1868), upon the total population less aliens ineligible to naturalization, Chinese, (California, 1879) or upon voters (Arkansas, 1874; Florida, 1868; Georgia, 1877; Indiana, 1831; Kentucky, 1850; Mississippi, 1868; Tennessee, 1834). In three states, the old limitation to a white population still remains (Iowa, 1857; Michig, 1850; Oregon, 1857), but in none of these would the recognition of a colored population affect an apportionment. In Michigan, "civilized persons of Indian descent" are included in the representative population and tax paying Indians were by the New York legislature in the last, 1879, apportionment of the state. The constitutions of Colorado, 1876, Kansas, 1859, and of Virginia, 1870, omit to designate specifically the basis of apportionment, which is presumably the entire population. In nearly all the states, limitations upon the application of the rule of numbers exist with reference to one chamber or the other; usually by requiring county lines to be observed. In New Hampshire, the upper chamber is still apportioned by direct taxation. An apportionment of this character existed till 1821 in New York, 1836 in Massachusetts, 1868 in South Carolina and from 1835 to 1868 in North Carolina. In all these states, except South Carolina, this allotment was applied to the upper branch; there one-half the lower branch was apportioned by taxation and one-half by population under a provision adopted in 1808 and continuing till 1868. Georgia and Pennsylvania both had apportionments based on freeholders in their first constitutions and ratable tax-payers were the basis for apportioning the lower branch in New Hampshire till 1877 and in Massachusetts till 1840. Before the civil war, Georgia, 1798; Maryland, 1851; North Carolina, 1835; Virginia, 1850, adopted the "federal" rule of population and in all the other slave states, the free white population was the only basis employed as to population. A like limitation occurs in most of the early constitutions in the states formed out of the northwest territory.

I.69.20

—The decennial census taken under the federal constitution has led all the states except Kentucky, which still retains an octennial period, to adopt an apportionment once in 10 years, even where, as in New York and Massachusetts, the state apportionment takes place after an intercalary state census. In 10 states (California, Indiana, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, Oregon and Wisconsin) provision is made for a new distribution of representation after every state as well as after every federal census, giving an apportionment every five years. Apportionments every 4 years, (Arkansas, 1836; Iowa, 1846; Louisiana, 1812; Kentucky, 1792; Missouri, 1820; Ohio, 1802,) every 6 years, (Alabama, 1819: Indiana, 1851,) every 7 years, (Georgia, 1798; New York, 1777; Pennsylvania, 1776, 1840; Tennessee, 1796; Vermont, 1786), and every 8 years, (Kentucky, 1850; Texas, 1845) have been required by different constitutions; but of these only Kentucky survives. It is an open question in state, as in federal, constitutional practice whether the requirement of a recurrent apportionment is mandatory or directory, whether it can be discharged only by the legislature sitting next after the enumeration or by any other, and whether once accomplished, it can be revised by a succeeding legislature. The constitution of Louisiana, adopted in 1868, prohibited the legislature from passing any act at the first session after a census before a reapportionment bill had become a law, but this restriction was dropped in the constitution of 1875. The constitutions of 6 states (Arkansas, 1874; Alabama, 1867; Connecticut, 1828; Nebraska, 1875; New York, 1846; New Jersey, 1844), require an apportionment once made to remain unchanged till the next census, and the constitutions of all the other states enjoin an apportionment "immediately" or at the "first session after" an enumeration. Mandatory language is generally used in these injunctions, but the practice of state legislatures has repeatedly construed it as directory. The constitution of Connecticut, 1828, requires a decennial apportionment of the senate, but after making an apportionment on the census of 1830 none was made till 1880 by the legislature. In New York State after the census of 1855 an apportionment was not made till 1857, and after the census of 1875 till 1879, and there have been other cases of delay. The attorney general of New York state held in an opinion (58 N. Y. A. Gen. Decisions 21) that no apportionment could be made except by the legislature meeting immediately after the enumeration, and while the law does not seem settled (19 N. Y. 41; 20 N. Y. 447, 19 Barber 81) the later decisions favor the view that an apportionment can be made only after an enumeration (3 Keyes 111). This is the accepted doctrine in Maine (Opinions of Justices, 33: 587, and 18:458), but an exception is made if the apportionment "appear to have been unconstitutional." In Massachusetts the decennial distribution is held to be "fixed and unalterable" (6 Cushing 575; 2 Gray 84), as it in is Ohio (1 Ohio, 437). In the state last named frequent changes in apportionments had been, as the court was moved to say, a "most humiliating experience." A like practice, more or less frequent, has established in most states the precedent that an apportionment can be made by any legislature and in some cases, when an apportionment has already been made, (Indiana state apportionment 1880, Ohio 1878 and 1880, in re-districting congressional districts, and Louisiana 1879), a second and third distribution of representation has been made by successive legislatures.

I.69.21

—In apportioning representation, the state authority discharging this duty is generally limited in three particulars, in the number of members to be distributed, in their distribution among the civil divisions of the state and in the representation to be given to fractions. But three state constitutions (Alabama, 1819; Georgia, 1789; North Carolina, 1776) have left the legislature complete discretion in determining its numbers at an apportionment. The usual practice has been to specify a major and minor number within which the legislature is required to act. This is now the case in all the states except 14 (Delaware, 1776; California, 1870; Colorado, 1876; Georgia, 1868; Illinois, 1870; Iowa, 1857; Massachusetts, 1837; Nebraska, 1867; New York, 1846; North Carolina, 1868; Ohio, 1851; South Carolina, 1868; Vermont, 1836 and West Virginia, 1877). In several of the earlier constitutions, instead of specifying the limits by the number of senators and representatives, a ratio is named by the constitution to be used in apportionment. This is still the case in Florida, where 1,000 registered voters is the ratio in the lower branch, in Minnesota, 2,000 population for representatives and 5,000 for senators, in New Hampshire, 1,200 population for the house, in Rhode Island 1,530, and a like practice has been followed in other states; 7,000 and 3,000, 12,000 and 4,000 being the ratios for senator and representative in 1836 and 1841 respectively in Illinois. In distributing representation the county is usually assured as the unit, the town as well as the county being used in New England. In nearly all the states which have been admitted into the Union since its organization and in several of the original states, the legislature is at liberty to group counties whose population falls below the representative ratio; but in 7 states (Florida, 1868; Georgia, 1868; Kansas, 1859; Louisiana, 1879; Michigan, 1850; New Jersey, 1844; New York, 1846), each county, and in Rhode Island, 1842, each town is guaranteed 1 member of the lower branch, and in Connecticut, 1828, each county is secured 2 senators and in New Jersey 1. Provisions prohibiting the legislature from dividing counties in laying out districts for the upper chamber and requiring such districts to be of contiguous territory, exist in many constitutions, but the inconvenience of a contrary practice has led it to be abandoned, even when no restriction exists. In Maine, the judges have held (Opinions of Justices, 18: 458) that a small county can be attached to a portion of a large county, where the latter is divided into more than one district. In New York state such an apportionment has been proposed, but never practiced. It has been held in the same state that after districts have been laid out new counties could be erected a part in each, leaving the right of suffrage unchanged (19 Barber 81); but this is doubtful and has been denied in an opinion by attorney general Talcott (Assembly Journal, 1822, p. 78), a view which is sustained in 20 N. Y., 447. A limitation upon the number of members which can be assigned any one county exists in the constitutions of most of the states having a large city, designed to prevent the concentration of too large a representation at a single point. A provision of this character was strongly urged by Chancellor Kent in the New York constitutional convention in 1821, but was voted down. Pennsylvania, in the year 1873, Rhode Island, in 1842, South Carolina, in 1868, Maine, 1820, and Florida, in 1868, have such limitations in regard to one chamber or the other, and down to a recent date they existed in Louisiana. In Maryland, 1851, Missouri, 1873, and New Hampshire, 1877, the same result is reached by largely increasing the ratio of representation when a number of members are apportioned to one county. It is the uniform practice in all the states to recognize the representation of fractions whether a constitutional provision is made for this or not. In Tennessee a county losing by unrepresented fractions in apportioning one branch, is to have special representation in apportioning the other; in Kentucky allowance is to be made for such loss in successive apportionments; in Texas fractions can be united by giving two counties having fractions equal to a ratio an additional member, but in general the legislature is left to its own discretion. In Massachusetts, under the amendments adopted in 1836 and 1840, fractions were given a proportional representation during a part of each decennial period, a plan followed in the Ohio constitution of 1851. Each fraction left in apportioning senators and representatives among districts and counties is multiplied by five, and if the product equals a full ratio, the district receives an additional member for the fifth of the five terms into which each ten year period is divided, if the product equals two ratios for the fourth and fifth terms, and so on. These additional members are known in Ohio politics as "floaters."

I.69.22

—The initial apportionment of representation prior to the existence of a written constitution in the original states was in general made by the revolutionary committee in organizing a new government after the disappearance of the colonial administration. In the admitted states and the organization of territories, an apportionment is usually provided in the enabling act. In distributing representation in the various conventions and state "congresses" called in 1775-6-7-8, an equal allotment among the recognized divisions of each colony was the rule, as it had been in the colonial legislatures. In New Hampshire, a census was taken in 1775, the earliest on record with this end in view, for the purpose of "apportioning fairly" the delegates to a convention which met Dec. 21, 1775. An unequal distribution of representation was made in South Carolina in calling a congress in 1776; but it does not appear to have been guided by population. In Pennsylvania each county and Philadelphia were given 8 members in the convention of 1776. Equal county representation was followed in New Jersey and Delaware. Massachusetts, Connecticut, Maryland, Virginia, and North Carolina adopted the apportionment already existing. The first step toward an apportionment based on number was not taken in Rhode Island till the irregular call issued by a committee appointed by the "friends of the suffrage" convention, July 20, 1841, which assigned each town a delegate to every 1,000 inhabitants, and 3 to each ward in Providence. Vermont, on organizing a central government in 1777, gave each town an equal voice. The first apportionment in Kentucky, to the convention meeting at Danville, was on the basis of a delegate to every company of militia in the Kentucky district, a unique instance in American history of representation resting on the old Teutonic foundation, an arms-bearing people. The ordinance of 1787, in providing for the government of the territory northwest of the Ohio, apportioned the membership of the lower branch of the territorial legislature by allowing, "for every 500 free male inhabitants, 1 representative, and so on progressively," until the number of representatives amounted to 25, when further apportionment was left to the legislature of the territory. In succeeding enabling acts constituting territories, the first apportionment and districting is vested in the governor and succeeding allotments committed to the legislature. Where, as in Alabama, 1817, a territory is erected from counties already part of another, the existing apportionment is accepted. Usually, in providing for a convention to draft a state constitution, the distribution of representatives is left to the territorial legislature, sometimes with a limit on the number of the convention, (Louisiana, 1811) and in other instances the enabling act makes the apportionment, (Missouri, 1820); a circumstance probably due to the fact that the proposed state was smaller in area than the existing territory. In the last three states admitted, Nevada, Nebraska, and Colorado, the act providing for a state convention authorizes the governor of the territory to lay out districts, and constitutes the governor, the federal district attorney, and the chief justice a board of apportionment to distribute the members, whose number is usually fixed by the governor, among these districts. Where the first step toward a convention is taken by the people an existing apportionment has been adopted, in West Virginia, 1861, the old representative districts of the last Virginia apportionment, in Kansas, 1857-9, and in Michigan, 1834, the lower branch of the territorial legislature, but in Tennessee, 1796, the first call was for 5 from each county. In California the constitutional convention of 1849 revised its own apportionment; an act without precedent. The convention met pursuant to a call issued by brigadier general Riley, U. S. A.,—in his capacity as civil governor of the conquered territory—dividing the state into 10 districts and apportioning delegates among them with general reference to the last Mexican apportionment, with a proviso that any district could elect more members whose admission would be decided by the convention. After three days' debate, the convention, guided principally by the votes cast, increased its number from 37 to 73.

I.69.23

—In the period succeeding the civil war, an apportionment of representation in state party conventions based on the votes cast at a recent election for the candidates of the party has come into use. It obtains in both parties in Massachusetts, New Jersey and Ohio, in the republican party in New York, in city conventions in Cincinnati and Chicago, and elsewhere. Where such a division is not employed, representation in a party convention is generally based on some legislative apportionment.

I.69.24

—The methodical distribution of representation upon an accepted basis is recent in all European governments. No principle was followed in allotting representation in the ancient German diet. The constitutions of 1815, which organized the federal diet of the German empire, divided representation with general reference to population in the plenum or general assembly, but contained no provision for an apportionment. The short-lived Frankfort assembly of 1848 was based on a representative ratio of 50,000 inhabitants. An apportionment according to population was a prominent feature of the Prussian plan for reorganizing Germany in 1866. The projects proposed by Austria at Frankfort, Sept. 1, 1863, and by Saxony, Oct. 15, 1861, both divided representation more closely in accordance with population than in the federal diet, but they adopted no uniform rule of distribution. This was provided during the organization of the North German confederation in 1866 through the adoption in September by the Prussian legislature of a law for the election of the first German parliament, under which a deputy was to be apportioned to the states in the constituent diet of the new confederacy for every 100,000 inhabitants, a surplus of 50,000 to be treated as a whole number; elective departments and districts to be settled by the government. This apportionment was extended without changing its character when the new German empire was organized in 1871, and adopted for the reichstag in article 20 of the constitution. The limits placed upon future apportionments are the stipulations that each state shall have at least one representative and the guarantee of 48 members to Bavaria, 17 to Nuremberg, 14 to Baden, and 6 to Hesse. The apportionment of representation to the states in the bundesrath, or federal council, as fixed by article 6, is not subject to revision, but gives each of the larger states a representation approximately proportioned to population, and the smaller states 1 vote each. In the Prussian kingdom an apportionment based on population was first provided by the electoral law passed by the united diet in 1848, which took the census of 1846 as a basis in distributing representation in the lower chamber, assigning 1 member to each civil division, 2 to those having 60,000 inhabitants, and for every 40,000 more inhabitants an additional member. The Prussian constitution of 1850 altered this apportionment by distributing the election of 350 members among administrative "circles" of 10,000 inhabitants each. The present Prussian lower chamber is apportioned upon much the same principle. Representation in the provincial diets of Austria is not subject to any systematic apportionment, and while the membership in the Austrian reichsrath and the Hungarian house of representatives follows the population of the crown lands represented approximately in each case, the average ratio of representation (1 to 34,000 in Hungary and 1 to 97,000 in Austria in 1869) is extremely unlike in the two bodies. The imperial patent of Feb. 26, 1861, under which the first Austrian parliament was summoned, apportioned 343 deputies among the crown lands with a general adherence to population in the share given each. The earlier Austrian constitution of 1849 provided no apportionment whatever.

I.69.25

—The states general of the old French monarchy was a body in which the distribution of representation in the two upper branches rested on status and in the third on the ancient divisions and municipalities of the kingdom. The national assembly organized under the constitution of the year III, 1791, consisted of 745 members; 247 apportioned on the basis of territory, each department having 3 members and Paris 1, 249 on population and 249 on the direct contributions of each department to the government. Under the directory, the first empire, the restoration and the monarchy of July mediate elections by groups of taxables organized upon various systems took the place of any systematic apportionment. In 1848 the provisional government, in its decree of March 5, announced population as the basis of representation and, selecting 40,000 as the ratio, apportioned 900 members among the departments in France and the colonies abroad; a principle followed by the constitution of 1848 in the apportionment it provided, carried into effect by the electoral law of 1849. The constitution proclaimed under the second empire, Jan. 14, 1852, adopted 35,000 as a representative ratio (article 34) and empowered the executive to divide the departments into districts (circonscriptions) on this basis, allowing an extra member for fractions over 25,000. These districts were not required to be of contiguous territory, often were not, and were revised under the constitution every five years. Under the republic, the constituent electoral law of Feb. 25, 1875, regulates the apportionment of members to the lower branch of the national assembly. It provides that each administrative arrondissement shall name 1 deputy, (scrutiny d'arrondissement), and those with a population over 100,000, 1 for every fraction of this number. As the French arrondissements are of nearly equal size and intended to contain about 100,000 inhabitants, this is practically a general apportionment upon a ratio of 100,000, and a representation is also given the colonies. The districts electing members, it is provided by the same enactment, must be defined by law, and can be changed only by law. At the passage of the electoral law defining the apportionment of the chamber of deputies, the national assembly also distributed among the departments in nearly equal shares, not dependent on population, the senators to be chosen by each.

I.69.26

—An equal division of representation continued to be the rule in the allotment of representation among the Spanish municipalities summoned to send members to the cores down to the final suppression of their legislative powers in the 16th century; although during the 14th century the larger cities obtained a greater proportional representation. In 1808 the central junta, in providing for the re-assembling of the cortes, assigned an equal representation to those cities last represented and to the provincial juntas, and 1 deputy besides to every 50,000 souls in the kingdom; the Spanish American colonies, most of which were then in insurrection, being included in the apportionment. The constitution of Cadiz, adopted four years later, abolished by the decree of May 4, 1814, but subsequently revived at frequent intervals by the "constitutionalists," provided an apportionment based on population, taking 70,000 as a representative ratio. The census of 1797 was assumed as a basis of the apportionment made by the constitution, but it is difficult to reconcile its allotment of representation with the returns of population; Valencia and Granada, with a nearly equal population, having respectively 19 and 2 deputies. An apportionment based on representation was demanded at every rising for the next half century by Spanish liberals, and in 1868 the electoral law, promulgated by the provisional government, declared an apportionment by provinces for every 45,000 inhabitants, a fraction over 22,500 to count as a full ratio; 350 deputies being distributed on this basis. The constitution of June 6, 1869, changed this ratio to 40,000, and that of June 30, 1876, to 50,000—in Cuba, 40,000 free persons. Representation in the present Spanish upper chamber, 1881, is distributed partly by status and in part to state corporations.

I.69.27

—In Switzerland, an equal representation of the cantons was the rule till 1848. This was embraced in the act of mediation, 1803, and in the constitution imposed by the allied powers in 1815. In 1848 the method since enacted in the constitution of 1864 was adopted. In the state council, each canton has 1 vote, in the national council, a delegate is assigned to every 20,000 inhabitants, fractions over 10,000 to count for 1. Each canton and each half of a divided canton is guaranteed 1 vote. The election is by districts. The Danish great charter, drawn in 1848, and revised in 1866, gives a member in the lower branch, landsthing, for every 16,000 inhabitants. In Belgium the chamber of representatives is based upon a ratio of 1 to 40,000, and the provincial councils are also apportioned by population, varying from 1 to 11,500 in Brabant and Hainault to 1 to 5,000 in Limbourg and Luxembourg. The members of the lower chamber in Holland, by the constitution of 1815, revised in 1848, are apportioned 1 to 45,000 of population among the provincial states. The first Mexican constitution, 1824, apportioned the house of representatives on the ratio of 1 member to every 40,000 inhabitants.

I.69.28

—As the English house of commons is, in its origin, a body made up of the consolidated representation of the shires and boroughs into which the kingdom was divided for local administration and the collection of taxes, the only apportionment known in English constitutional practice is based on the organic divisions of the state; a fact mirrored in the nearly equal representation awarded to the counties and boroughs returning members to parliament before the reform bill of 1832. The changes in representation made by this and succeeding measures have been simply a redistribution of the right of returning members of parliament among civil corporations in the United Kingdom; often with a general reference to population, but with no apportionment based upon it. Sir Thomas E. May states that "the principle of population, although rudely carried into effect, formed the basis of representation in early times," but it is difficult to reconcile this statement with the actual distribution of members. The representation given Scotland by the act of union, 1707, was intended to represent the relative importance of the two kingdoms in wealth and population; but the allotment was only approximate. Even this was not attempted at the union with Ireland in 1801. In organizing representative government in the colonies, parliament has uniformly recognized population as a basis for the apportionment of representation. Pitt's constitutional act of 1791 for the government of Canada empowered the governor of the colony to decide the number of members to be returned to the lower chamber in the colonial legislatures of Upper and Lower Canada, and to lay out districts containing an equal male population for the election of these members. Future apportionments were committed to the local authorities. The same general plan was followed in the act of Aug. 5, 1850, or-ganizing the Australian colonies, an initial apportionment by the governor and future distribution by the colonial legislatures. The act of 1841, uniting the two Canadas, accepted the old districts and made a new apportionment in the bill. By the act of union in 1866, organizing the dominion of Canada, no apportionment is provided for the senate, a fixed number being assigned each province. For the house of commons, the legislature is authorized to make a decennial apportionment of 181 members among the different provinces; dividing the population of Quebec by 65 to obtain a representative ratio, in accordance with which members are to be distributed; fractions over one-half to be reckoned as whole numbers and those less than a moiety to be omitted. At any assignment, no province is to lose in representation unless its decrease of population is over one-twentieth.

TALCOTT WILLIAMS.


Notes for this chapter


14.
Here and elsewhere dates refer to the adoption of the organic law quoted.

Footnotes for ARGENTINE CONFEDERATION

End of Notes


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