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." 66 § 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. The eventual establishment of new states within the limits of the Union seems to have been wholly overlooked by the framers of that instrument. In the pro 1 Journal of Convention, p. 222, 307, 308, 309, 310, 311, 365, 385. gress 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.' 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. 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 Brit 12 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. 21 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. ish posts, or in maintaining and acquiring the territory, should be reimbursed.1 § 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. 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. 1 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.) 2 See Amer. Insur. Company v. Canter, 1 Peters's Sup. R. 511, 542. 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." 1 § 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 1 The Federalist, No. 38, 42, 43. 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, bona 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 |