"The Declaration of Independence has an important bearing upon the construction to be placed upon the articles of confederation. Was it in character the act of a united people, or the act of independent states? The address is: 'We, therefore, the representatives of the United States of America, in general congress assembled'" (6).

§ 148. Territory ceded by the states. Pursuant to amicable adjustments, all territory held or claimed by states and outside the boundary fixed was ceded to the United States by the states owning or claiming to own such territory. In this manner the first territory outside of the limits of the original states was acquired (7), and the necessary consequence of acquiring territory was the devising of some means of governing and disposing of it (8).

The ordinance of 1787. The people of the states, ceding to the general government their unoccupied territory, made provision for the establishment of a republican

• See Pomeroy's Const., sec. 52; Jameson, Const. Conv., sec. 27.

7 See Loughborough v. Blake, 5 Wheat. 324; American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511.

8 This was provided for in the old articles of confederation and in the new constitution of 1787.

Art. 4, sec. 3, embraced this subject. This section is as follows:

"§ 3. First. 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 junction of two or more states or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress.

"Second. The congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States or of any particular state."

form of government therein. This was accomplished by the celebrated ordinances of 1787 (9).

It provided for the preservation of the civil rights of the inhabitants and for the formation of states out of the territory, so soon as the inhabitants had become sufficient in number to be entitled to the position of a state.

This ordinance plainly indicated that the United States was not to treat the parts of this territory as permanent colonies, but they were to be continued in the condition of territories only during such period of development as was deemed essential to bring them to the dignity and numerical strength necessary for the duties of statehood.

§ 149. Relation of the ordinance to the Constitution. The ordinance was a natural and proper means of preserving the rights of inhabitants of states who, by a new

9 In Scott v. Sanford it was held that the ordinance did not remain in force after the adoption of the constitution. In Pollard v. Kippe, 14 Pet. 417, the opposite and better view was held. See Mr. Justice White's opinion in Downs v. Bidwell, 182 U. S. 319-20. Webster's views are as follows: Mr. Webster said: "Let me say that in this general sense there is no such thing as extending the constitution. The constitution is extended over the United States and over nothing else. It cannot be extended over anything except over the old states, and the new states that shall come in hereafter, when they do come in. There is a want of accuracy of ideas in this respect that is quite remarkable among eminent gentlemen, and especially professional and judicial gentlemen. It seems to be taken for granted that the right of trial by jury, the habeas corpus, and every principle designed to protect personal liberty, is extended by force of the constitution itself over every new territory. That proposition cannot be maintained at all. How do you arrive at it by any reasoning or deduction? It can only be arrived at by the loosest of all possible constructions. It is said that this must be so, else the right of the habeas corpus would be lost. Undoubtedly these rights must be conferred by law before they can be enjoyed in a territory." Benton's Ex., pp. 132-33.

adjustment of boundaries, were thrown without the limits of the state of which they were citizens. It provided for a republican form of government for the territories. It was necessary to settle the political condition of the territories and guarantee the rights of the inhabitants. The ordinance was their constitution.

It has been contended that the clauses of the constitution above referred to did not confer upon congress the rights of government over the territories, because that had been provided for by the ordinance (10), but this idea has long since been abandoned (11).

§ 150. On the admission of a state the ordinance became no longer in force as to it (12). It was a question of doubt in many jurisdictions, and for a long time, whether the ordinance was to have perpetual force and continue forever a charter of the rights and liberties of the inhabitants of the Northwest territories (13).

§ 151. The acquisition of foreign territory. The right of the United States to acquire title to foreign territory by any of the modes recognized by the law of nations was one not free from difficulty, and not expressly provided for by the provisions of the national constitution.

10 This is, however, no longer an open or a practical question. 11 See § 152, below.

12 Sands v. Manistee Co., 123 U. S. 288; Peo. v. Thompson, 155 Ill. 451; State v. Cunningham, 81 Wis. 440.

13 Illinois River Packet Co. v. Peoria Bridge Co., 38 Ill. 478. In the case of Hogg v. Zanesville, 5 Ohio, 410, the court says: “This portion of the ordinance (the 4th article) of 1787 is as much obligatory towards the state of Ohio as our own constitution. In truth it is more so." In the case of La Plaisance v. Monroe, 1 Walker Ch. (Mich.), 155, the court says: "The ordinance of 1787, in my opinion, is no part of the fundamental law of the state since its admission into the Union."

The articles of confederation contained a clause which involved in doubt general powers of the national government, viz., a provision that each state retain its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by the states expressly delegated to the United States in congress assembled (14).

The same subject is alluded to in the ninth and tenth amendments to the new constitution (15).

Diverse views stated. The national government being, according to the usual form of expression, one of enumerated powers, it became a question upon which great minds differed as to whether there was any power or authority in the government of the United States to expand the boundaries of the national domain.

President Jefferson, under whose administration the first foreign territory was acquired (16), was of the opinion that it was necessary that congress should submit to the nation at large an additional amendment to the constitution approving, confirming and ratifying the act of acquiring the territory of Louisiana, which he felt impelled by inexorable necessity to acquire. He said: "The constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our union" (17).

14 See 1 Wilson's Works, 556.

15 IX. "The enumeration, in the constitution, of certain rights shall not be construed to deny or disparage others retained by the people." X. "The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." U. S. Const.

16 Louisiana.

17 Jefferson's Works, 499.

On the other hand there were those who held that the United States as a nation has an inherent right to acquire territory, and it is now established that the provisions authorizing the nation to make war and peace impliedly sanction the acquisition of territory (18).

No constitutional amendment was ever submitted or adopted enlarging the powers of the United States in this respect.

§ 152. The doctrine of inherent power. The suggestion that under the old confederation there were by virtue of the position as a nation, certain implied powers, was advanced in connection with another subject, namely; the exercise of the power to charter corporations (19). In the same connection, however, and as illustrating it, the power to make war and peace and acquire territory was mentioned. All arguments which have followed upon the power to acquire territory, the power to incorporate United States or national banks and indeed the power which sanctioned the legal tender acts, depend on this same principle.

The earliest statement of the doctrine of inherent power. James Wilson, afterwards Mr. Justice Wilson, discussed this question in his famous argument upon the power of the United States to incorporate the Bank of North America. He says: If, then any or each of the states possessed, previous to the confederation, a power, jurisdiction or right to institute and organize by a charter of incorporation a bank for North America-in other

18 Miller's Lect. on Const. 129. See especially Downs v. Bidwell, 182 U. S. 244.

19 The same proposition involved in M'Cullough v. Maryland (p. 325, n. 75, above).