The 1790 Census and the First Veto

On April 1, 2022, the National Archives released the 1950 Census. For more information and to view the census, visit the National Archives website.

The U.S. Constitution requires that an enumeration be taken every 10 years to determine the size of the House of Representatives. The Constitution originally designated 65 members in the House but directed Congress to reapportion representation after the first census. 

In 1790 Congress passed the First Census Act, which required that the enumeration begin on Monday, August 2, 1790, and be conducted by marshals of the U.S. judicial districts. According to the legislation, the marshals were tasked with visiting every household, posting completed census schedules in public places within each jurisdiction, and sending the President the aggregate amount. When complete, the census showed the aggregate population of the United States at 3,929,214.

After the 1790 Census was complete, Congress began to craft legislation to reapportion seats in the House of Representatives. After months of consideration, debate, and a failed bill, the House passed an apportionment bill in February 1792. After the Senate made its changes, and a conference committee attempted to hammer out the differences, the House agreed to the Senate’s amendments, and on March 28, 1792, the bill went to President George Washington for his approval.

The final version of the bill proposed an additional 55 members to the House, for a total of 120, beginning with the Third Congress in 1793. The 120 was divided into the following number of members per state: New Hampshire, 5; Massachusetts, 16; Vermont, 3; Rhode Island, 2; Connecticut, 8; New York, 11; New Jersey, 6; Pennsylvania, 14; Delaware, two; Maryland, 9; Virginia, 21; Kentucky, 2; North Carolina, 12; South Carolina, 7; and Georgia, 2.

When Washington received the bill, he asked his cabinet members—Attorney General Edmund Randolph, Secretary of State Thomas Jefferson, Secretary of the Treasury Alexander Hamilton, and Secretary of War Henry Knox—for their opinions. The men were split. 

On April 4, 1792, both Randolph and Jefferson, separately, wrote to Washington saying the bill was unconstitutional because of how Congress arrived at 120, the total number of representatives. Jefferson argued that, according to the Constitution, members must be apportioned by a common ratio or divisor, and the bill used “two ratios, at least, to the different states;”—30,026 for seven states and 27,770 for the other eight. He further pointed out that the Constitution required that, “the number of representatives shall not exceed one for every 30,000,” which the bill violated by having eight states exceeding one member for every 30,000 persons. 

In their letters to Washington on April 3 and 4, respectively, Knox and Hamilton expressed their support of the legislation. Knox acknowledged he was not an expert on the subject but argued the Constitution didn’t specify an exact method of apportionment. Hamilton’s correspondence admitted that he had not read the bill and that he would like more time. However, given that Washington wanted Hamilton’s opinion that morning, Hamilton wrote, “Upon the whole then, The Bill apportions the Representatives among the several states according to their respective numbers; so as that the number of representatives does not exceed one for every 30000 persons each state having at least one member. It therefore performs every requisition of the constitution; and it will not be denied that it performs this in the manner most consistent with equality.

Ultimately, Washington found Randolph and Jefferson’s arguments about the unconstitutionality of the bill more convincing. While he was initially hesitant, on April 5, 1792, Washington exercised his—and the nation’s—first veto and sent the bill back to the House of Representatives without his approval. 

In his veto message, Washington wrote:

I have maturely considered the Act passed by the two Houses, intitled, “An Act for an apportionment of Representatives among the several States according to the first enumeration,” and I return it to your House, wherein it originated, with the following objections.

First—The Constitution has prescribed that representatives shall be apportioned among the several States according to their respective numbers: and there is no one proportion or divisor which, applied to the respective numbers of the States will yield the number and allotment of representatives proposed by the Bill.

Second—The Constitution has also provided that the number of Representatives shall not exceed one for every thirty thousand; which restriction is, by the context, and by fair and obvious construction, to be applied to the separate and respective numbers of the States: and the bill has allotted to eight of the States, more than one for thirty thousand.

After an unsuccessful attempt to override the veto, the House revised the bill, and on April 10, 1792, Congress passed new legislation using the Jefferson Method of apportionment. The new bill put the size of the House of Representatives at 105, which was composed of members elected to a ratio of one member for every 30,000 persons, “computed according to the rule prescribed by the Constitution.” This last part meant that 30,000 was the total of all non-enslaved persons in a state plus three-fifths of enslaved persons.

The distribution of members by state was: New Hampshire, 4; Massachusetts, 14; Vermont, 2; Rhode Island, 2; Connecticut, 7; New York, 10; New Jersey, 5; Pennsylvania, 13; Delaware, 1; Maryland, 8; Virginia, 19; Kentucky, 2; North Carolina, 10; South Carolina, 6; and Georgia, 2.

This time Washington signed the legislation, and An Act apportioning Representatives among the several States, according to the first enumeration became law on April 14, 1792. Jefferson’s method for apportionment continued to be used for apportioning members of the U.S. House of Representative through the 1830 Census.

Thank you to Martha Grove in the Center for Legislative Archives for providing images for this post!

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