I should like to call the attention of the Committee to the precise question on which we are to vote. This does not, as it seems to me, properly open the discussion to which we have been listening. I do not understand that it involves the topics introduced by my friend opposite [Mr. Wilson],—the present condition of Europe, the prospects of the liberal cause in that quarter of the globe, or the extent to which that cause may be affected by a contemporaneous movement for peace. Nor do I understand that the important considerations introduced by the gentleman on my right [Mr. Whitney, of Boylston], regarding the extent to which Government may be intrusted with the power of the sword, can materially influence our decision. I put these things aside at this time.

The question is on the final passage of the fifteen resolutions reported by the Committee on the Militia. And here let me adopt a suggestion dropped by my friend opposite [Mr. Wilson]. He regretted, if I understood him, that this whole subject was not compressed into one or two resolutions. Am I right?

Mr. Wilson. The gentleman is correct.

Mr. Sumner. I agree with him. I regret that it was not compressed into one or two resolutions. I object to these resolutions for several reasons. In the first place, there are too many; in the second place, at least two of them seem to be an assumption of power belonging to Congress, and therefore at least of doubtful constitutionality; and, in the third place, because twelve of them undertake to control matters which it were better to leave with the Legislature.

On the formation of the Constitution of Massachusetts, in 1780, it was natural that our fathers should introduce details with regard to the militia and its organization. The Constitution of the United States had not then been made. But since the establishment of this Constitution the whole condition of the militia is changed. Among the powers expressly given to Congress is the power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." And Congress has proceeded to exercise this power by the organization of a national militia. Whatever might have been the original inducement to multiform provisions on this subject in the Constitution of Massachusetts, none such exists at this day, and it is impolitic at least to introduce them.

I fear that they are more than impolitic. I will not argue here the question of Constitutional Law; but I appeal to the better judgment of my professional brethren—and I am happy to see some of them lingering at this late hour—that any attempt on the part of the State to interfere, in any way, by addition or subtraction, with the organization of the national militia, is an experiment which we should not introduce into the permanent text of our organic law. If the decisions of the Supreme Court of the United States on the powers of Congress are to prevail, then, it seems to me, any such assumption, in a case where the original power of Congress is clear, will be unconstitutional and void. In the famous case of Prigg v. Pennsylvania, after an elaborate discussion at the bar, all State legislation on the subject of fugitive slaves was declared unconstitutional and void, while Congress is recognized as the sole depository of power on this subject. According to my recollection, it was expressly held that legislation by Congress excluded all State legislation on the same subject, whether to control, qualify, or superadd to the remedy enacted by Congress. I commend gentlemen, now so swift with these provisions, to the study of this precedent. It is comparatively recent; and the principle of interpretation which it establishes is applicable to State laws on the militia, even though entirely inapplicable to State laws on fugitive slaves,—for the simple reason, that in the former case the original power of Congress is clear, while in the latter it is denied.

But the States are not without power over the militia. In the very grant to Congress is a reservation to them as follows: "reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." And here is precisely what the States can do. They may appoint the officers and train the militia.

Now, Sir, the first two resolutions before us transcend the powers of the State. They touch the enrolment and organization of the militia, and on this account are an assumption of power forbidden by the principle to which I have referred. The other thirteen resolutions, with the exception of the seventh, are in the nature of a military code, concerning the choice of officers, all of which should be left to the action of the Legislature.

In conformity with these views, Mr. Chairman, and in the hope of presenting a proposition on which the Convention may unite, I propose to strike out all after the preamble and insert two resolutions, as follows.

Art. 1. The Governor shall be the Commander-in-Chief of the Army and Navy of the State, and the Militia thereof, excepting when these forces shall be actually in the service of the United States,—and shall have power to call out the same to aid in the execution of the laws, to suppress insurrection, and to repel invasion.

Art. 2. The appointment of officers and the training of the Militia shall be regulated in such manner as may hereafter be deemed expedient by the Legislature; and all persons, who from scruples of conscience shall be averse to bearing arms, shall be excused on such conditions as shall hereafter be prescribed by law.

The first of these resolutions is identical with the seventh resolution of the Committee. The second provides for the exercise by the Legislature of powers expressly reserved to the States over the appointment of officers and the training of the militia; and taking advantage of the Act of Congress which allows the States to determine who shall be exempted from military duty, it plants in the text of the Constitution a clause by which this immunity is secured to all persons who from scruples of conscience are averse to bearing arms. I believe we cannot go far beyond these without doing too much, while these seem to me enough.

POWERS OF THE STATE OVER THE MILITIA: COLORED COMPANIES.

Speech in Convention to revise and amend the Constitution of Massachusetts, June 22, 1853.

I HAVE a suggestion for my friend opposite [Mr. Wilson], in regard to the form of his proposition, which, if he accepts it, will, as it seems to me, absolutely remove his proposition from the criticism of my most eloquent friend before me [Mr. Choate], and from the criticism of other gentlemen who have addressed the Convention. I suggest to strike out the word "militia," and substitute the words "military companies," so that his proposition will read, "that in the organization of the volunteer military companies of the Commonwealth there shall be no distinction of color or race."

Mr. Wilson. I accept the suggestion, and will amend my proposition accordingly.

Mr. Sumner. Now the proposition, as amended, I assert, is absolutely consistent with the Constitution of the United States, and, I believe, in conformity with the public sentiment of Massachusetts.

A brief inquiry will show that it is consistent with the Constitution of the United States, and in no respect interferes with the organization of the National Militia. That Constitution provides for organizing, arming, and disciplining the militia, and gives Congress full power over the subject,—in which particular, be it observed, it is clearly distinguishable from that of fugitive slaves, over whom no such power is given. To be more explicit, I will read the clause. It is found in the long list of enumerated powers of Congress, and is as follows: "The Congress shall have power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." And then, at the close of the section, it is further declared, that Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

In pursuance of this power, Congress has proceeded, by various laws, "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." The earliest of these laws, still in force, is entitled "An act more effectually to provide for the national defence, by establishing an uniform militia throughout the United States."[3] This was followed by several acts in addition. Congress, then, has undertaken to exercise the power of "organizing" the militia under the Constitution.

Here the question arises, to what extent, if any, this power, when already exercised by Congress, is exclusive in character. Among the powers delegated to Congress there may be some not for the time being exercised. For instance, there is the power "to fix the standard of weights and measures." Practically, this has never been exercised by Congress; but it is left to each State within its own jurisdiction. On the other hand, there is a power, belonging to the same group, "to establish uniform laws on the subject of bankruptcies throughout the United States," which, when exercised by Congress, has been held so far exclusive as to avoid at once all the bankrupt and insolvent laws of the several States.

I might go over all the powers of Congress, and find constant illustration of the subject. For instance, there is the power "to establish an uniform rule of naturalization," on which Chief Justice Marshall once remarked, "That the power of naturalization is exclusively in Congress does not seem to be, and certainly ought not to be, controverted."[4] There is the power "to regulate commerce with foreign nations and among the several States," which was early declared by the Supreme Court to be exclusive, so as to prevent the exercise of any part of it by the States.[5] There is the power over patents and copyrights, which is also regarded as exclusive. So also is the power "to define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations." So also is that other power, "to establish post-offices and post-roads." All these powers, as in the case of the power over the National Militia, have been exercised by Congress, and even if not absolutely exclusive in original character, have become so by exercise.

Now, Sir, upon what ground do gentlemen make any discrimination in the case of the power over the National Militia? I know of none which seems at all tenable. It is natural that the States should desire to exercise this power, since it was so important to them before the Union; but I do not see how any discrimination can be maintained at the present time. Whatever may have been the original importance of the militia to each State, yet, when the National Constitution was formed, and Congress exercised the power delegated to it over this subject, the militia of the several States was absorbed into one uniform body, organized, armed, and disciplined as the National Militia. To the States respectively, according to the express language of the Constitution, was left "the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." To this may be added the implied power of "governing" them when in the service of the State. This is all. The distinct specification of certain powers, as reserved to the States, excludes the States from the exercise of all other powers not specified or clearly implied. In other words, they are excluded from all power over the "organizing, arming, and disciplining the militia," at least after Congress has undertaken to enact laws for this purpose.

The history of the adoption of the several parts of this clause in the National Convention reflects light upon its true meaning. The first part, in regard to organizing, arming, and disciplining the militia, was passed by a vote of nine States against two; the next, reserving the appointment of officers to the States, after an ineffectual attempt to amend it by confining the appointment to officers under the rank of general officers, was passed without a division; and the last, reserving to the States the authority to train the militia according to the discipline prescribed by Congress, was passed by a vote of seven States against four.[6] It seems, then, that there was strong opposition in the Convention, even to the secondary reservation of "the authority of training the militia." But this power is not reserved unqualifiedly. The States are to train the militia "according to the discipline prescribed by Congress": not according to any discipline determined by the States, or by the States concurrently with the National Government, but absolutely according to the discipline prescribed by Congress,—nor more, nor less: thus distinctly recognizing the essentially exclusive character of the legislation of Congress on this subject.

This interpretation derives confirmation from the manner in which the militia of England was constituted or organized at the time of the adoption of the National Constitution. To the crown was given "the sole right to govern and command them," though they were "officered" by the Lord Lieutenant, the Deputy Lieutenants, and other principal landholders of the county.[7] The Commentaries of Sir William Blackstone, from which this description is drawn, were familiar to the members of the Convention; and it is reasonable to suppose, that, in the distribution of powers between the National Government and the States, on this subject, the peculiar arrangement prevailing in the mother country was not disregarded.

If it should be said, that the adoption of this conclusion would affect the character of many laws enacted by States, and thus far recognized as ancillary to the National Militia, it may be replied, that the possibility of these consequences cannot justly influence our conclusions on a question which must be determined by acknowledged principles of Constitutional Law. In obedience to these same principles, the Supreme Court, in the case of Prigg v. Pennsylvania, after asserting a power over fugitive slaves which is controverted, has proceeded to annul a large number of statutes in different States. Mr. Justice Wayne in this case said, "that the legislation by Congress upon the provision, as the supreme law of the land, excludes all State legislation upon the same subject,—and that no State can pass any law or regulation, or interpose such as may have been a law or regulation when the Constitution of the United States was ratified, to superadd to, control, qualify, or impede a remedy enacted by Congress for the delivery of fugitive slaves to the parties to whom their service or labor is due."[8] Without the sanction of any express words in the Constitution, and chiefly, if not solely, impressed by the importance of consulting "unity of purpose or uniformity of operation"[9] in the legislation with regard to fugitive slaves, the Court assumed a power over this subject, and then, as a natural incident to this assumption, excluded the States from all sovereignty in the premises.

If this rule be applicable to the pretended power over fugitive slaves, it is still more applicable to the power over the militia which nobody questions. Besides, I know of no power which so absolutely requires what has been regarded as an important criterion, "unity of purpose or uniformity of operation." No uniform military organization can spring from opposite or inharmonious systems, and all systems proceeding from different sources are liable to be opposite or inharmonious.

Now, Sir, let us apply this reasoning to the matter in hand. In Massachusetts there exists, and has for a long time existed, an anomalous system, familiarly and loosely described as the Volunteer Militia, not composed absolutely of those enrolled under the laws of the United States, but a smaller, more select, and peculiar body. It cannot be doubted that the State, by virtue of its police powers within its own borders, has power to constitute or organize a body of volunteers to aid in enforcing its laws. But it does not follow that it has power to constitute or organize a body of volunteers who shall be regarded as part of the National Militia. And, Sir, I make bold to say that the volunteer militia—I prefer to call it the volunteer military companies—cannot be regarded as part of the National Militia. It is no part of that uniform militia which it was the object of the early Act of Congress to organize. It may appear to be part of this system, it may affect to be, but I pronounce it a mistake to suppose that it is so in any just constitutional sense.

As a local system, disconnected from the National Militia, and not in any way constrained by its organization, it is within our jurisdiction. We are free to declare the principles which shall govern it. We may declare, that, whatever may be the existing law of the United States with regard to its enrolled militia,—and with this I propose no interference, because it would be futile,—I say, Massachusetts may proudly declare that in her own volunteer military companies, marshalled under her own local laws, there shall be no distinction of race or color.

THE PACIFIC RAILROAD AND THE DECLARATION OF INDEPENDENCE.

Letter to the Mayor of Boston, for the Celebration Of July 4, 1853.

Boston, July 1, 1853.

Dear Sir,—It will not be in my power to unite with the City Council of Boston in the approaching celebration of our national anniversary; but I beg to assure you that I am not insensible to the honor of their invitation.

The day itself comes full of quickening suggestions, which can need no prompting from me. And yet, with your permission, I would gladly endeavor to associate at this time one special aspiration with the general gladness. Allow me to propose the following toast.

The Railroad from the Atlantic to the Pacific.—Traversing a whole continent, and binding together two oceans, this mighty thoroughfare, when completed, will mark an epoch of human progress second only to that of our Declaration of Independence. May the day soon come!

Believe me, dear Sir, faithfully yours,

Charles Sumner.

Hon. Benjamin Seaver, Mayor, &c.

THE REPRESENTATIVE SYSTEM, AND ITS PROPER BASIS.

Speech on the Proposition to amend the Basis of the House of Representatives of Massachusetts, in the Convention to revise and amend the Constitution of that State, July 7, 1853.

Mr. President,—If the question under consideration were less important in its bearings, or less embarrassed by conflicting opinions, I should hesitate to break the silence which I have been inclined to preserve in this Convention. In taking the seat to which I was unexpectedly chosen while absent from the Commonwealth, in another sphere of duty, I felt that it would be becoming in me, and that my associates here would recognize the propriety of my course, considering the little opportunity I had enjoyed of late to make myself acquainted with the sentiments of the people on proposed changes, especially in comparison with friends to whom this movement is mainly due,—on these accounts, as also on other accounts, I felt that it would be becoming in me to interfere as little as possible with these debates. To others I willingly left the part which I might have taken.

And now, while I think, that, since our labors began, weeks, even months, have passed, and that the term is already reached, when, according to the just expectations and earnest desires of many, they should be closed, I feel that acts rather than words, that votes rather than speeches,—at least such as I might hope to make,—are needed here, to the end that the Convention, seasonably and effectively completing its beneficent work, may itself be hailed as a Great Act in the history of the Commonwealth.

But the magnitude of this question justifies debate; and allow me to add, that the State, our common mother, may feel proud of the ability, the eloquence, and the good temper with which it has thus far been conducted. Gentlemen have addressed the Convention in a manner which would grace any assembly that it has been my fortune to know, at home or abroad. Sir, the character of these proceedings gives new assurance for the future. The alarmist, who starts at every suggestion of change, and the croaker, who augurs constant evil from the irresistible tendency of events, must confess that there are men here to whose intelligence and patriotism, under God, the interests of our beloved Commonwealth may well be intrusted. Yes, Sir, Massachusetts is safe. Whatever the result even of the present important question, whichsoever scheme of representation may be adopted, Massachusetts will continue to prosper as in times past.

In the course of human history, two States, small in territory, have won enviable renown by genius and devotion to Freedom, so that their very names awaken echoes: I refer to Athens and Scotland. But Athens,—even at Salamis, repelling the Persian host, or afterwards, in the golden days of Pericles,—and Scotland, throughout her long struggle with England, down to the very Act of Union at the beginning of the last century,—were each inferior, in population and wealth, to Massachusetts at this moment. It belongs to us, according to our capacities, to see that this comparison does not end here. Others may believe that our duty is best accomplished by standing still. I like to believe that it can be completely done only by constant, incessant advance in all things,—in knowledge, in science, in art, and lastly in government itself, destined to be the bright consummation, on earth, of all knowledge, all science, and all art.

In framing our Constitution anew, we encounter a difficulty which at its original formation, in 1780, perplexed our fathers,—which perplexed the Convention of 1820,—which with its perplexities has haunted successive Legislatures and the whole people down to this day,—and which now perplexes us. This difficulty occurs in determining the Representative System, and proceeds mainly from the corporate claims of towns. From an early period in the State, towns, both great and small, with slight exceptions, have sent one or more representatives to the Legislature. In primitive days, when towns were few and the whole population was scanty, this arrangement was convenient at least, if not equitable. But now, with the increased number of towns, and the unequal distribution of a large population, it has become inconvenient, if not inequitable. The existing system does not work well, and we are summoned to reform it.

And here, Sir, let me congratulate the Convention, that, on this most important question, transcending every other, all of us, without distinction of party, are in favor of reform. All are Reformers. The existing system finds no advocate on this floor. Nobody here will do it reverence. If the call of the Convention were not already amply vindicated, if there were doubt anywhere of its expediency, the remarkable concurrence of all sides in condemning the existing representative system shows that we have not come together without cause.

The orders of the day have been filled with various plans to meet the exigency. Most of these aimed to preserve the corporate representation of towns; some of them, at least one from the venerable gentleman from Taunton [Mr. Morton], and another from the venerable gentleman from Boston [Mr. Hale], favored an opposite system, hitherto untried among us, and proposed to divide the State into districts. The question has been between these hostile propositions; and that is the question which I propose to consider, in the light of history and abstract principle, as also with reference to present exigencies. I shall speak, first, of the origin and nature of the Representative System, and its proper character under American institutions; and, secondly, I shall endeavor to indicate the principles which may conduct us to a practical conclusion in the present debate. Entering upon this service at so late a stage of the discussion, I feel like a tardy gleaner in a well-traversed field; but I shall proceed.

I.

I begin with the Origin and Nature of the Representative System. This is an invention of modern times. In antiquity there were republics and democracies, but there was no Representative System. Rulers were chosen by the people, as in many Commonwealths; senators were designated by the king or by the censors, as in Rome; ambassadors or legates were sent to a Federal Council, as to the Assembly of the Amphictyons; but in no ancient state was any body of men ever constituted by the people to represent them in the administration of their internal affairs. In Athens, the people met in public assembly, and directly acted for themselves on all questions, foreign or domestic. This was possible there, as the State was small, and the Assembly seldom exceeded five thousand citizens,—a large town-meeting, or mass-meeting, we might call it,—not inaptly termed "that fierce democratie" of Athens.

But where the territory was extensive, and the population scattered and numerous, there could be no assembly of the whole body of citizens. To meet this precise difficulty the Representative System was devised. By a machinery so obvious that we are astonished it was not employed in the ancient Commonwealths, the people, though scattered and numerous, are gathered, by their chosen representatives, into a small and deliberative assembly, where, without tumult or rashness, they consider and determine all questions which concern them. In every representative body, properly constituted, the people are practically present.

Nothing is invented and perfected at the same time; and this system is no exception to the rule. In England, where it reached its earliest vigor, it has been, and still is, anomalous in character. The existing divisions of the country, composed of boroughs, cities, and counties, were summoned by the king's writ to send representatives, with little regard to equality of any kind, whether of population, taxation, or territory. Their existence as corporate units was the prevailing title. The irregular operation of the system, increasing with lapse of time, provoked a cry for Parliamentary Reform, which, after a struggle of more than fifty years, ending in a debate that occupied the House of Commons more than fifty days, was finally carried; but, though many abuses and inequalities were removed, yet the anomalous representation by counties, cities, and boroughs still continued. And this, Sir, is the English system.

Pass now to the American system. I say American system,—for to our country belongs the honor of first giving to the world the idea of a system which, discarding corporate representation, founded itself absolutely on equality. Let us acknowledge with gratitude that from England have come five great and ever memorable institutions, by which Liberty is secured: I mean the Trial by Jury,—the writ of Habeas Corpus,—the Representative System,—the Rules and Orders of Debate,—and, lastly, that benign principle which pronounces that its air is too pure for a slave to breathe: perhaps the five most important political establishments of modern times. This glory cannot be taken from the mother country. But America has added to the Representative System another principle, without which it is incomplete, and which, in the course of events, is destined, I cannot doubt, to find acceptance wherever the Representative System is employed: I mean the principle of equality.

Here in Massachusetts, home of the ideas out of which sprang the Revolution, this principle had its earliest expression. And it is not a little curious that this very expression was suggested by the two evils of which we now complain,—namely, a practical inequality of representation, and a too numerous House.

In the earliest days of the Colony, while the number of freemen was small and gathered in one neighborhood, there was no occasion for any representative body. All could then meet in public assembly, as at ancient Athens; in fact, they did so meet, and in this way discharged the duties of legislation. But as the freemen became scattered and numerous, it was found grievous to compel the personal attendance of the whole body, and, as a substitute, the towns were empowered, in 1634, to assemble in General Court by deputies.[10] Here was the establishment of the Representative System in Massachusetts, which has continued, without interruption, down to our day. The size of the House and the relative representation of towns have varied at different times; but the great principle of representation, by which a substitute is provided for the whole body of the people, has constantly been preserved. Still a feeling has long prevailed that the system had not yet received its final form, while, with more or less precision, has been discerned that principle of equality which is essential to its completeness.

Among the acts of the first General Court of the Revolution was one passed in the summer of 1775, after the Battle of Bunker Hill, "declaratory of the right of the towns and districts to elect and depute a representative or representatives to serve for and represent them in the General Court." By this act all provisions of previous acts denying to certain towns and districts the right of sending a representative were declared null and void, and every town containing thirty qualified voters was authorized to send one.[11] The immediate consequence was the two evils to which I have already referred,—namely, inequality of representation, and a too numerous House: but the whole number of representatives which aroused the complaints of that day was three hundred and five.

These grievances were the occasion of a Convention of delegates from the towns of Essex County, at Ipswich, April 25, 1776, where was adopted a Memorial, afterwards presented and enforced at the bar of the House by John Lowell. In this remarkable document occurs the first development, if not the first proclamation, of the principle of equality in representation. Here, Sir, is the fountain and origin of an idea full of strength, beauty, and truth. Listen to the words of these Revolutionary fathers.

"If this representation is equal, it is perfect; as far as it deviates from this equality, so far it is imperfect, and approaches to that state of slavery; and the want of a just weight in representation is an evil nearly akin to being totally destitute of it. An inequality of representation has been justly esteemed the cause which has in a great degree sapped the foundation of the once admired, but now tottering, fabric of the British Empire; and we fear, that, if a different mode of representation from the present is not adopted in this Colony, our Constitution will not continue to that late period of time which the glowing heart of every true American now anticipates....

"We cannot realize that your Honors, our wise political fathers, have adverted to the present inequality of representation in this Colony, to the growth of the evil, or to the fatal consequences which will probably ensue from the continuance of it.

"Each town and district in the Colony is by some late regulations permitted to send one representative to the General Court, if such town or district consists of thirty freeholders and other inhabitants qualified to elect; if of one hundred and twenty, to send two. No town is permitted to send more than two, except the town of Boston, which may send four. There are some towns and districts in the Colony in which there are between thirty and forty freeholders, and other inhabitants qualified to elect, only; there are others besides Boston in which there are more than five hundred. The first of these may send one representative; the latter can send only two. If these towns as to property are to each other in the same respective proportion, is it not clear to a mathematical demonstration that the same number of inhabitants of equal property in the one town have but an eighth part of the weight in representation with the other?—and with what colorable pretext? we would decently inquire."[12]

Under the pressure of this powerful state paper the obnoxious law was repealed, and one "providing for a more equal representation" substituted; but the evil was only partially remedied. Then followed an unsuccessful effort to make a Constitution in 1777-8, which failed partly through dissatisfaction with its disposal of this very question. The County of Essex was again heard in another document, now known as the "Essex Result," and among the most able and instructive in our history, from which I take the following important words.

Mark well these words. Here is the Rule of Three, for the first time in history, applied to representation. This, Sir, is not the English system. I call it, with pride, the American system.

In another place the document proceeds as follows.

Then, distinctly, it proposes a system of districts, in words which I quote.

Sir, notwithstanding these appeals, sustained with unsurpassed ability, the American system failed to be adopted in the Constitution of 1780. The anomalous English system was still continued; but, as if to cover the departure from principle, it was twice declared that the representation of the people should be "founded upon the principle of equality." This declaration still continues as our guide, while the irregular operation of the existing system, with its inequalities and large numbers, is a beacon of warning.

Following closely upon these efforts in Massachusetts, this principle found an illustrious advocate in Thomas Jefferson. In his "Notes on Virginia," written in 1781, he sharply exposes the inequalities of representation;[16] and a short time afterwards, when the victory at Yorktown had rescued Virginia from invasion and secured the independence of the United Colonies, he prepared the draught of a Constitution for his native State, which, disowning the English system, and recognizing the very principle that had failed in Massachusetts, expressly provided that "the number of delegates which each county may send shall be in proportion to the number of its qualified electors; and the whole number of delegates for the State shall be so proportioned to the whole number of qualified electors in it, that they shall never exceed three hundred nor be fewer than one hundred.... If any county be reduced in its qualified electors below the number authorized to send one delegate, let it be annexed to some adjoining county."[17] This proposition, which is substantially the Rule of Three, did not find favor in Virginia, which State, like Massachusetts, was not yet prepared for such a charter of electoral equality; but it still stands as a monument at once of its author and of the true system of representation.

The American system, though first showing itself in Massachusetts and Virginia, found its earliest practical exemplification a few years later in the Constitution of the United States. By the Articles of Confederation each State was entitled to send to Congress not less than two nor more than seven representatives, and in the determination of questions each State had one vote only. This plan was rejected by the framers of the new Constitution, and another was adopted, till then untried in the history of the world. It was declared that "representatives and direct taxes shall be apportioned among the several States which may be included within this Union according to their respective numbers": not according to property, not according to territory, not according to any corporate rights, but according to their respective numbers. And this system has continued down to our day, and will continue immortal as the Union itself. Here is the Rule of Three actually incorporated into the Representative System of the United States.

An attempt has been made to render this system odious, or at least questionable, by charging upon it something of the excesses of the great French Revolution. Even if this rule had prevailed at that time in France, it would be bold to charge upon it any such consequences. But it is a mistake to suppose that it was then adopted in that country. The republican Constitution of 1791 was not founded upon numbers only, but upon numbers, territory, and taxation combined,—a mixed system, which excluded the true idea of personal equality. At the peaceful, almost bloodless, Revolution of 1848, under the lead of Lamartine, a National Assembly was convened on the simple basis of population, and one representative was allowed for every forty thousand inhabitants. Here, indeed, is the Rule of Three; but the idea originally came from our country.