CHAPTER XXX.



POWERS OF CONGRESS -- ADMISSION OF NEW STATES,

AND ACQUISITION OF TERRITORY.



§ 1308. THE third section of the fourth article contains two distinct

clauses. The first is -- "New states may be admitted by the congress

into this Union. But no new state shall be formed or erected within the

jurisdiction of any other state, nor any state be formed by the

jurisdiction of two or more states, or parts of states, without the

consent of the legislature of the states concerned, as well as of the

congress."



§ 1309. A clause on this subject was introduced into the original draft

of the constitution, varying in some respects from the present, and

especially in requiring the consent of two thirds of the members present

of both houses to the admission of any new state. After various

modifications, attempted or carried, the clause substantially in its

present form was agreed to by the vote of eight states against three.

[1]



§ 1310. In the articles of confederation no provision is to be found on

this important subject. Canada was to be admitted of right, upon her

acceding to the measures of the United States. But no other colony (by

which was evidently meant no other British colony) was to be admitted,

unless by the consent of nine states. [2] The eventual establishment of

new states within the limits of the Union seems to have been wholly

overlooked by the framers of that instrument. [3] In the progress of the

revolution it was not only perceived, that from the acknowledged extent

of the territory of several of the states, and its geographical

position, it might be expedient to divide it into two states; but a much

more interesting question arose, to whom of right belonged the vacant

territory appertaining to the crown at the time of the revolution,

whether to the states, within whose chartered limits it was situated, or

to the Union in its federative capacity. This was a subject of long and

ardent controversy, and (as has been already suggested) threatened to

disturb the peace, if not to overthrow the government of the Union. [4]

It was upon this ground, that several of the states refused to ratify

the articles of confederation, insisting upon the right of the

confederacy to a portion of the vacant and unpatented territory included

within their chartered limits. Some of the states most interested in the

vacant and unpatented western territory, at length yielded to the

earnest solicitations of congress on this subject. [5] To induce them to

make liberal cessions, congress declared, that the ceded territory

should be disposed of for the common benefit of the Union, and formed

into republican states, with the same rights of sovereignty, freedom,

and independence, as the other states; to be of a suitable extent of

territory, not less than one hundred, nor more than one hundred and

fifty miles square; and that the reasonable expenses incurred by the

state, since the commencement of the war, in subduing British posts, or

in maintaining and acquiring the territory, should be reimbursed. [6]



§ 1311. Of the power of the general government thus constitutionally to

acquire territory under the articles of the confederation, serious

doubts were at the time expressed; more serious than, perhaps, upon

sober argument, could be justified. It is difficult to conceive, why the

common attribute of sovereignty, the power to acquire lands by cession,

or by conquest, did not apply to the government of the Union, in common

with other sovereignties; unless the declaration, that every power not

expressly delegated was retained by the states, amounted to (which

admitted of some doubt) a constitutional prohibition. [7] Upon more than

one occasion it has been boldly pronounced to have been founded in

usurpation. "It is now no longer," said the Federalist in 1788, "a point

of speculation and hope, that the western territory is a mine of vast

wealth to the United States; and although it is not of such a nature, as

to extricate them from their present distresses, or for some time to

come to yield any regular supplies for the public expenses; yet it must

hereafter be able, under proper management, both to effect a gradual

discharge of the domestic debt, and to furnish for a certain period

liberal tributes to the federal treasury. A very large proportion of

this fund has been already surrendered by individual states; and it may

with reason be expected, that the remaining states will not persist in

withholding similar proofs of their equity and generosity. We may

calculate, therefore, that a rich and fertile soil of an area equal to

the inhabited extent of the United States will soon become a national

stock. Congress have assumed the administration of this stock. They have

begun to make it productive. Congress have undertaken to do more; they

have proceeded to form new states; to erect temporary governments; to

appoint officers for them; and to prescribe the conditions, on which

such states shall be admitted into the confederacy. All this has been

done, and done without the least colour of constitutional authority. Yet

no blame has been whispered, and no alarm has been sounded." [8]



§ 1312. The truth is, that the importance, and even justice of the title

to the public lands on the part of the federal government, and the

additional security, which it gave to the Union, overcame all scruples

of the people, as to its constitutional character. The measure, to which

the Federalist alludes in such emphatic terms, is the famous ordinance

of congress, of the 13th of July, 1787, which has ever since

constituted, in most respects, the model of all our territorial

governments; and is equally remarkable for the brevity and exactness of

its text, and for its masterly display of the fundamental principles of

civil and religious liberty. It begins by providing a scheme for the

descent and distributions of estates equally among all the children, and

their representatives, or other relatives of the deceased in equal

degree, making no distinction between the whole and half blood; and for

the mode of disposing of real estate by will, and by conveyances. It

then proceeds to provide for the organization of the territorial

governments, according to their progress in population, confiding the

whole power to a governor and judges in the first instance, subject to

the control of congress. As soon as the territory contains five thousand

inhabitants, it provides for the establishment of a general legislature,

to consist of three branches, a governor, a legislative council, and a

house of representatives; with a power to the legislature to appoint a

delegate to congress. It then proceeds to state certain fundamental

articles of compact between the original states, and the people and

states in the territory, which are to remain unalterable, unless by

common consent. The first provides for freedom of religious opinions and

worship. The second provides for the right to the writ of habeas corpus;

for the trial by jury; for a proportionate representation in the

legislature; for Judicial proceedings according to the course of the

common law; for capital offences being bailable; for fines being

moderate, and punishments not cruel or unusual; for no man's being

deprived of his liberty or property, but by the judgment of his peers,

or the law of the land; for full compensation for property taken, or

services demanded for the public exigencies; "and for the just

preservation of rights and property, that no law ought ever to be made,

or have force in the said territory, that shall in any manner whatever

interfere with, or affect private contracts or engagements, bonā fide,

and without fraud previously formed." The third provides for the

encouragement of religion, and education, and schools, and for good

faith and due respect for the rights and property of the Indians. The

fourth provides, that the territory and states formed therein shall for

ever remain a part of the confederacy, subject to the constitutional

authority of congress; that the inhabitants shall be liable to be taxed

proportionately for the public expenses; that the legislatures in the

territory shall never interfere with the primary disposal of the soil by

congress, nor with their regulations for securing the title to the soil

to purchasers; that no tax shall be imposed on lands, the property of

the United States; and nonresident proprietors shall not be taxed more

than residents; that the navigable waters leading into the Mississippi

and St. Lawrence, and the carrying places between the same shall be

common highways, and for ever free. The fifth provides, that there shall

be formed in the territory not less than three, nor more than five

states with certain boundaries; and whenever any of the said states

shall contain 60,000 free inhabitants, such state shall (and may before)

be admitted by its delegates into congress on an equal footing with the

original states in all respects whatever, and shall be at liberty to

form a permanent constitution and state government, provided it shall be

republican, and in conformity to these articles of compact. The sixth

and last provides, that there shall be neither slavery nor involuntary

servitude in the said territory, otherwise than in the punishment of

crimes; but fugitives from other states, owing service therein, may be

reclaimed. [9] Such is a brief outline of this most important ordinance,

the effects of which upon the destinies of the country have already been

abundantly demonstrated in the territory, by an almost unexampled

prosperity and rapidity of population, by the formation of republican

governments, anti by an enlightened system of jurisprudence. Already

three states, composing a part of that territory, have been admitted

into the Union; and others are fast advancing towards the same grade of

political dignity. [10]



§ 1313. It was doubtless with reference principally to this territory,

that the article of the constitution, now under consideration, was

adopted. The general precaution, that no new states shall be formed

without the concurrence of the national government, and of the states

concerned, is consonant to the principles, which ought to govern all

such transactions. The particular precaution against the erection of new

states by the partition of a state without its own consent, will quiet

the jealousy of the larger states; as that of the smaller will also be

quieted by a like precaution against a junction of states without their

consent. [11] Under this provision no less than eleven states have, in

the space of little more than forty years, been admitted into the Union

upon an equality with the original states. And it scarcely requires the

spirit of prophecy to foretell, that in a few years the predominance of

numbers, of population, and of power will be unequivocally transferred

from the old to the new states. May the patriotic wish be for ever true

to the fact, felix prole parens.



§ 1314. Since the adoption of the constitution large acquisitions of

territory have been made by the United States, by the purchase of

Louisiana and Florida, and by the cession of Georgia, which have greatly

increased the contemplated number of states. The constitutionality of

the two former acquisitions, though formerly much questioned, is now

considered settled beyond any practical doubt. [12]



§ 1315. At the time, when the preliminary measures were taken for the

admission of the state of Missouri into the Union, an attempt was made

to include a restriction, prohibiting the introduction of slavery into

that state, as a condition of the admission. On that occasion the

question was largely discussed, whether congress possessed a

constitutional authority to impose such a restriction, upon the ground,

that the prescribing of such a condition is inconsistent with the

sovereignty of the state to be admitted, and its equality with the other

states. The final result of the vote, which authorized the erection of

that state, seems to establish the rightful authority of congress to

impose such a restriction, although it was not then applied. In the act

passed for this purpose, there is an express clause, that in all the

territory ceded by France to the United States under the name of

Louisiana, which lies north of 360 30' N. Lat., not included within the

limits of the state of Missouri, slavery and involuntary servitude,

otherwise than in the punishment of crimes, whereof the parties shall

have been duly convicted, shall be, and is hereby for ever prohibited.

[13] An objection of a similar character was taken to the compact

between Virginia and Kentucky upon the ground, that it was a restriction

upon state sovereignty. But the Supreme Court had no hesitation in

overruling it, considering it as opposed by the theory of all free

governments, and especially of those, which constitute the American

Republics. [14]



____________



1. Journal of Convention, p. 222, 307, 308, 309, 310, 311, 365, 385.



2. Article 11.



3. The Federalist, No. 43.



4. 2 Pitk. Hist. ch. 11, p. 17, 19, 24, 27, 28, 29 to 32; Id. 32 to 36;

1 Kent's Comm. Lect. 10, p. 197, 198. See also 1 Secret Journals of

Congress in 1775, p. 368 to 386; Id. 433 to 438; Id. 445, 446.



5. 1 Tuck. Black. Comm. App. 283, 284, 285, 286; 2 Pitkin's Hist. ch.

11, p. 33 to 36; 1 U.S. Laws, (Duane &, Bioren's Edition,) p. 467, 472;

ante vol. 1, § 227, 228.



6. See 1 Secret Journals of Congress, 6th Sept. 1780, p. 440 to 444; 6

Journal of Congress, 10th Oct. 1780. p. 213; 2 Pitkin's Hist. ch. 11, p.

34, 35, 36; 7 Journal of Congress, 1st March, 1781, p. 43 to 48; Land

Laws of U. S. Introductory chapter, 1 U. S. Laws, p. 452, (Duane &

Bioren's Edition.)



7. See Amer. Insur. Company v. Carter, 1 Peters's Sup. R. 511, 549.



8. The Federalist, No. 38, 42, 43.



9. See 3 Story's Laws of United States App. 2073, &c.; 1 Tucker's Black.

Comm. App. 278, 282.



10. In Mr. Webster's Speech on Mr. Foote's Resolution, in Jan. 1830,

there is a very interesting and powerful view of this subject, which

will amply repay the diligence of a deliberate perusal. See Webster's

Speeches, &c.; p. 360 to 364; Id. 369. It is well known, that the

ordinance of 1787 was drawn by the Hon. Nathan Dane of Massachusetts,

and adopted with scarcely a verbal alteration by Congress. It is a noble

and imperishable monument to his fame.



11. The Federalist, No. 43.



12. See Ante, Vol. iii. p. 156, § 1278 to § 1283; American Insurance

Company v. Canter, 1 Peters's Sup. R. 511, 542.



13. Act. 6, March 1820, ch. 20. -- The same subject was immediately

afterwards much discussed in the state legislatures; and opposite

opinions were expressed by different states in the form of solemn

resolutions.



14. Green v. Biddle, 8 Wheat. R. 1, 87, 88.