278. Effects of the Rule.—The three-fifths rule formally increased the representative power and the direct taxes of the Southern States, and diminished those of the Northern. But the rule did not work as was expected. Only five times have direct taxes been imposed by Congress, and then for short periods; while the South received, down to the Civil War, a large increase of Representatives, ranging at different times from fifteen to thirty members.

279. Amendments XIII., XIV. - The conditions of representation were materially changed by the abolition of slavery. There were now no "other persons" to whom the three-fifths rule could be applied. Amendment XIV. formally modified the old rule, but the modification is inoperative owing to the effect of Amendment XV. Still, this Amendment states the original rule as it has practically worked since 1873: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." Direct taxes are not mentioned in the Amendment, but the same rule would apply to them.

280. The Census.-Representatives could not be apportioned according to population unless the population were enumerated; the population of the States would not remain stationary or increase in equal ratios; besides, the admission of new States to the Union must be provided for. To meet these requirements, the Constitution provided that an actual enumeration should be made within three years after the first meeting of Congress, and within every subsequent term of ten years, as Congress should direct. In a succeeding clause this enumeration is also called the census.

Eleven decennial censuses of the United States have been taken, beginning in 1790. Previous to 1790 the people of the States had never been carefully counted. Probably the Convention did not intend the census to be more than an enumeration of the people; but, beginning with 1810, the Government has used it more and more as an instrument for collecting and publishing other kinds of statistics. The first census cost $44,377; the last one more than $10,000,000, and it fills about thirty octavo volumes.

281. Indians not Taxed.-The Supreme Court has not defined this expression. The Census Office holds that it applies to Indians maintaining tribal relations and living upon government reservations. The broken bands and the scattered remnants of tribes still found in many States, though generally in a condition of pauperism, are included in the enumeration of the people. They are regarded as having entered the body of citizens and become subject to taxation,

although they may be exempted by local legislation or by the accident of poverty.1

1 The Census Office recognizes three kinds of population.

1. The true population embraces the total population of all the States and Territories, without regard to race, color, age, or sex.

2. The constitutional population embraces all the population that must be enumerated in order that the apportionment of Representatives and taxes may be duly made. Excluding Indians not taxed, it is the same, within the States, as the true population. The Territories are not included in the constitutional population.

3. The representative population is the total numbers in the States, according to which Representatives and taxes are apportioned among them. Practically, it is now the same as the constitutional population; but when the threefifths rule was in force, it was materially smaller. The constitutional population embraced all the slaves; the representative population only three-fifths of them. The distinction is now purely historical.-Compendium of the U. S. Census, 1870, p. 19.

CHAPTER XVIII.

APPORTIONMENTS OF REPRESENTATIVES UNDER THE

CONSTITUTION.1

Several of the different Congresses that have dealt with this subject, have found it only less difficult than the Federal Convention found the framing of the original rules. An historical résumé will be given.

282. Meaning of the Rule.-Simple as the rule seems at first view, the first Congress that was called upon to apply it practically was divided in opinion as to its meaning. The fundamental question was, whether the Nation should be dealt with as a whole, or as made up of the several States. Should the aggregate representative population of the Union be divided by the ratio to ascertain the size of the House? Or should the State populations severally be so divided and the quotients then be added? The first method would give the larger House, since there would be but a single unrepresented fraction, while the second method would give as many fractions as there were States. This is the question of representing fractions. Different methods have been followed at different times.

283. The Method of 1793-1843.-The Federalists in the Second Congress, which was the first one to deal with the subject, contended for the first plan; the Anti-federalists, for the second plan. After a heated contest, Congress passed a bill based on the National principle. President Washington, after submitting to his Cabinet the question

I See the Article, Apportionment, in Lalor's Cyclopædia. Also the following Reports: House of Representatives, 51st Congress, second session, No. 3280; Senate, same Congress, same session, No. 962, Part II.; Official Congressoinal Directory, W. H. Michael, 1891.

whether he should sign the bill, and receiving from Hamilton and Knox an affirmative answer, and from Jefferson and Randolph, a negative answer, vetoed it on other grounds. He expressed no opinion as to whether the rule should be applied to the Nation or the States. A new bill framed on the State principle was then passed and approved. It provided that the House should be composed of members elected agreeably to a ratio of one member for every 33,000 persons in each State, computed according to the rule furnished by the Constitution. No account was taken of fractions. The apportionments made under the five first censuses all conformed to this rule, but with a change of ratios.

284. Attempt to Change the Rule in 1832.—As the ratios became larger, and the States more numerous and more populous, the unrepresented fractions became larger and more numerous. It became apparent that the method of 1793 was unjust and unrepublican. Two millions of people in one State had much more representative power than the same number in a half dozen States. Mr. Webster1 pointed out in 1832 that, under the ratio of 47,700, then proposed for the ensuing apportionment, New York would have 40 Representatives, while the New England States, with a population 35,000 greater, would have but 38; that seven States named, having together 123 members, had aggregate fractions of but 53,000, while Vermont and New Jersey alone, with but 11 members, had a joint fraction of 75,000; and that Pennsylvania would have as many members as Vermont, New Hampshire, Massachusetts, and New Jersey, while her population was 130,000 less than theirs. The Senate, following Mr. Webster's lead, at first voted to reverse the decision of 1793, but afterwards concurred with the House in continuing the old rule.

285. The Method of 1843.-The rule adopted in 1793 was now reversed. The law of 1843 established a repre

1 See his works, Vol III., p. 369.

sentative ratio of 70,680; gave every State as many Representatives as its population contained this ratio times, and then gave an additional Representative to every State having a fraction greater than one-half the said ratio. Since this act, fractions have been uniformly represented, and the tendency has been to increasing complexity of method.

286. The Method of 1853-1863.—A ratio that yielded small fractions in some States would sometimes yield large fractions in others. The result was decennial contests over ratios, States favoring the ratio that would give them the largest representation. To cut off such controversies, it was provided in the Census Act of 1850 that the House of Representatives should consist of 233 members; that the Secretary of the Interior should divide the representative population of the whole country by 233 to obtain a ratio; that he should then divide the population of every State by this ratio; that he should assign to every State as many Representatives as its population contained this ratio times; and finally, that he should assign an additional Representative to the States having the largest fractions, until a total of 233 members was reached. Subsequently, an additional member was given to California.

287. Ninth and Tenth Censuses. In these apportionments, the principle of the Act of 1850 was adhered to in general, but with minor variations. In both cases Congress made the apportionment after the census had been taken.

In 1870 the population of Delaware, Nebraska, Nevada, and Oregon respectively fell below the final ratio agreed upon. Congress first fixed the number of Representatives at 283. Next it subtracted the population of these four States from the total population of the States (not including Territories), and divided the remainder by 279, the number of Representatives fixed on less the four to which the four States were entitled under the Constitution, which gave a ratio of 135,239. To each State the law then assigned as many Representatives as its representative population contained this ratio times, and seventeen were assigned for fractions. By a subsequent act, an additional Representative was given to each one of the following States: New Hampshire, Vermont, New York, Pennsylvania, Indiana, Tennessee, Louisiana, Alabama, and Florida, making 292 in all. The admission of Colorado in 1876 added one more to this number. A similar cut-and-try method was used in 1883.

288. Eleventh Census. -In making this apportionment the population of the District of Columbia and the Territories of Arizona, New Mexico, Oklahoma, and Utah was subtracted from the aggregate