The Apportionment of Members Among the States



From the New York Packet. Tuesday, February 12, 1788.



HAMILTON OR MADISON





To the People of the State of New York:



The next view which I shall take of the House of Representatives

relates to the appointment of its members to the several States which

is to be determined by the same rule with that of direct taxes. It is

not contended that the number of people in each State ought not to be

the standard for regulating the proportion of those who are to

represent the people of each State. The establishment of the same rule

for the appointment of taxes, will probably be as little contested;

though the rule itself in this case, is by no means founded on the same

principle. In the former case, the rule is understood to refer to the

personal rights of the people, with which it has a natural and

universal connection.



In the latter, it has reference to the proportion of wealth, of which

it is in no case a precise measure, and in ordinary cases a very unfit

one. But notwithstanding the imperfection of the rule as applied to the

relative wealth and contributions of the States, it is evidently the

least objectionable among the practicable rules, and had too recently

obtained the general sanction of America, not to have found a ready

preference with the convention. All this is admitted, it will perhaps

be said; but does it follow, from an admission of numbers for the

measure of representation, or of slaves combined with free citizens as

a ratio of taxation, that slaves ought to be included in the numerical

rule of representation? Slaves are considered as property, not as

persons. They ought therefore to be comprehended in estimates of

taxation which are founded on property, and to be excluded from

representation which is regulated by a census of persons. This is the

objection, as I understand it, stated in its full force. I shall be

equally candid in stating the reasoning which may be offered on the

opposite side. “We subscribe to the doctrine,” might one of our

Southern brethren observe, “that representation relates more

immediately to persons, and taxation more immediately to property, and

we join in the application of this distinction to the case of our

slaves. But we must deny the fact, that slaves are considered merely as

property, and in no respect whatever as persons. The true state of the

case is, that they partake of both these qualities: being considered by

our laws, in some respects, as persons, and in other respects as

property. In being compelled to labor, not for himself, but for a

master; in being vendible by one master to another master; and in being

subject at all times to be restrained in his liberty and chastised in

his body, by the capricious will of another, the slave may appear to be

degraded from the human rank, and classed with those irrational animals

which fall under the legal denomination of property. In being

protected, on the other hand, in his life and in his limbs, against the

violence of all others, even the master of his labor and his liberty;

and in being punishable himself for all violence committed against

others, the slave is no less evidently regarded by the law as a member

of the society, not as a part of the irrational creation; as a moral

person, not as a mere article of property. The federal Constitution,

therefore, decides with great propriety on the case of our slaves, when

it views them in the mixed character of persons and of property. This

is in fact their true character. It is the character bestowed on them

by the laws under which they live; and it will not be denied, that

these are the proper criterion; because it is only under the pretext

that the laws have transformed the negroes into subjects of property,

that a place is disputed them in the computation of numbers; and it is

admitted, that if the laws were to restore the rights which have been

taken away, the negroes could no longer be refused an equal share of

representation with the other inhabitants. “This question may be placed

in another light. It is agreed on all sides, that numbers are the best

scale of wealth and taxation, as they are the only proper scale of

representation. Would the convention have been impartial or consistent,

if they had rejected the slaves from the list of inhabitants, when the

shares of representation were to be calculated, and inserted them on

the lists when the tariff of contributions was to be adjusted? Could it

be reasonably expected, that the Southern States would concur in a

system, which considered their slaves in some degree as men, when

burdens were to be imposed, but refused to consider them in the same

light, when advantages were to be conferred? Might not some surprise

also be expressed, that those who reproach the Southern States with the

barbarous policy of considering as property a part of their human

brethren, should themselves contend, that the government to which all

the States are to be parties, ought to consider this unfortunate race

more completely in the unnatural light of property, than the very laws

of which they complain? “It may be replied, perhaps, that slaves are

not included in the estimate of representatives in any of the States

possessing them. They neither vote themselves nor increase the votes of

their masters. Upon what principle, then, ought they to be taken into

the federal estimate of representation? In rejecting them altogether,

the Constitution would, in this respect, have followed the very laws

which have been appealed to as the proper guide. “This objection is

repelled by a single observation. It is a fundamental principle of the

proposed Constitution, that as the aggregate number of representatives

allotted to the several States is to be determined by a federal rule,

founded on the aggregate number of inhabitants, so the right of

choosing this allotted number in each State is to be exercised by such

part of the inhabitants as the State itself may designate. The

qualifications on which the right of suffrage depend are not, perhaps,

the same in any two States. In some of the States the difference is

very material. In every State, a certain proportion of inhabitants are

deprived of this right by the constitution of the State, who will be

included in the census by which the federal Constitution apportions the

representatives.



In this point of view the Southern States might retort the complaint,

by insisting that the principle laid down by the convention required

that no regard should be had to the policy of particular States towards

their own inhabitants; and consequently, that the slaves, as

inhabitants, should have been admitted into the census according to

their full number, in like manner with other inhabitants, who, by the

policy of other States, are not admitted to all the rights of citizens.

A rigorous adherence, however, to this principle, is waived by those

who would be gainers by it. All that they ask is that equal moderation

be shown on the other side. Let the case of the slaves be considered,

as it is in truth, a peculiar one. Let the compromising expedient of

the Constitution be mutually adopted, which regards them as

inhabitants, but as debased by servitude below the equal level of free

inhabitants, which regards the SLAVE as divested of two fifths of the

MAN. “After all, may not another ground be taken on which this article

of the Constitution will admit of a still more ready defense? We have

hitherto proceeded on the idea that representation related to persons

only, and not at all to property. But is it a just idea?



Government is instituted no less for protection of the property, than

of the persons, of individuals. The one as well as the other,

therefore, may be considered as represented by those who are charged

with the government. Upon this principle it is, that in several of the

States, and particularly in the State of New York, one branch of the

government is intended more especially to be the guardian of property,

and is accordingly elected by that part of the society which is most

interested in this object of government. In the federal Constitution,

this policy does not prevail. The rights of property are committed into

the same hands with the personal rights. Some attention ought,

therefore, to be paid to property in the choice of those hands. “For

another reason, the votes allowed in the federal legislature to the

people of each State, ought to bear some proportion to the comparative

wealth of the States. States have not, like individuals, an influence

over each other, arising from superior advantages of fortune. If the

law allows an opulent citizen but a single vote in the choice of his

representative, the respect and consequence which he derives from his

fortunate situation very frequently guide the votes of others to the

objects of his choice; and through this imperceptible channel the

rights of property are conveyed into the public representation. A State

possesses no such influence over other States. It is not probable that

the richest State in the Confederacy will ever influence the choice of

a single representative in any other State. Nor will the

representatives of the larger and richer States possess any other

advantage in the federal legislature, over the representatives of other

States, than what may result from their superior number alone. As far,

therefore, as their superior wealth and weight may justly entitle them

to any advantage, it ought to be secured to them by a superior share of

representation. The new Constitution is, in this respect, materially

different from the existing Confederation, as well as from that of the

United Netherlands, and other similar confederacies. In each of the

latter, the efficacy of the federal resolutions depends on the

subsequent and voluntary resolutions of the states composing the union.

Hence the states, though possessing an equal vote in the public

councils, have an unequal influence, corresponding with the unequal

importance of these subsequent and voluntary resolutions. Under the

proposed Constitution, the federal acts will take effect without the

necessary intervention of the individual States. They will depend

merely on the majority of votes in the federal legislature, and

consequently each vote, whether proceeding from a larger or smaller

State, or a State more or less wealthy or powerful, will have an equal

weight and efficacy: in the same manner as the votes individually given

in a State legislature, by the representatives of unequal counties or

other districts, have each a precise equality of value and effect; or

if there be any difference in the case, it proceeds from the difference

in the personal character of the individual representative, rather than

from any regard to the extent of the district from which he comes.

“Such is the reasoning which an advocate for the Southern interests

might employ on this subject; and although it may appear to be a little

strained in some points, yet, on the whole, I must confess that it

fully reconciles me to the scale of representation which the convention

have established. In one respect, the establishment of a common measure

for representation and taxation will have a very salutary effect. As

the accuracy of the census to be obtained by the Congress will

necessarily depend, in a considerable degree on the disposition, if not

on the co-operation, of the States, it is of great importance that the

States should feel as little bias as possible, to swell or to reduce

the amount of their numbers. Were their share of representation alone

to be governed by this rule, they would have an interest in

exaggerating their inhabitants. Were the rule to decide their share of

taxation alone, a contrary temptation would prevail. By extending the

rule to both objects, the States will have opposite interests, which

will control and balance each other, and produce the requisite

impartiality.



PUBLIUS.









THE FEDERALIST.