POWERS OF CONGRESS — ADMISSION OF NEW STATES,
§ 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.
§ 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."
§ 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.
§ 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
§ 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.
§ 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.
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.
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