From Henry Knox
War department. April 3d 1792.
Agreeably to your directions as delivered to me this day by the Attorney General, I have endeavoured to take into consideration the expediency of your giving your approbation to the Act intituled “An Act for an apportionment of Representatives among the several states according to the first enumeration,” the constitutionality thereof being doubted by some persons.
I might plead my inability to give an opinion on so important and doubtful a point, as not possessing that previous information more peculiarly resulting from a study of the Law, and from not having seen the merits of the question discussed in any of the debates of the house.
It is therefore with the highest diffidence I venture on the subject.
The point upon which the question turns is, whether the numbers of representatives shall be apportioned on the aggregate number of all the people of the United States, or on the aggregate numbers of the people of each state, notwithstanding several large fractions may exist in each state unrepresented.
It has been said that either construction may be deemed to be within the letter as well as the spirit of the constitution, if this opinion should be just, which I freely confess I am not qualified of myself at this time to decide, it would result that the assent of the President of the United States is to be governed by the political equity of the measure.
In this view of the case I find my mind less embarrassed with doubt; for although some smaller fractions may be unrepresented yet most of the large ones are comprehended—In the bill eight states each having a fraction of upwards of twenty five thousand are provided with a representative; whereas in the other seven states no one of which would have more than Twelve thousand eight hundred and sixty six—only one state that number, and the whole Seven states but little more than fifty thousand federal numbers unrepresented, provided all idea of virtual representation should be rejected according to the principle of the bill itself—but on the contrary were the fractions of the eight states possessing the largest fractions not considered upwards of Two hundred thousand federal numbers would be unrepresented.
As then the Senate and house of representatives have passed this Law (by small majorities indeed) and as the constitutionality is only doubted not proved but the equity of the measure apparent, it would appear rather a delicate measure for the President to decide the question contrary to the bill as passed.
If precedents are to be drawn from the conduct of the King of Great Britain in similar cases of doubtful laws, it would render the propriety of the President’s disapprobation still more questionable. I have the honour to be Sir with perfect respect Your most obedient servant
secy of War