The view of Maryland, concurred in by the States making no claim to the western territory, was that it ought "to be considered as a common property subject to be parcelled out by Congress into free, convenient and independent governments," inasmuch as it consisted of territory ceded by the treaty of Paris of 1763 to the British Crown and conquered from the mother country by the united efforts of the thirteen colonies. Maryland felt so strongly on this point that it refused to enter the Confederation unless and until the western domain was secured for the common benefit.

Against this action of its neighbor, Virginia protested, since it claimed not only the territory to the South of the Ohio, from which the State of Kentucky was carved, but also the territory to the northwest of the Ohio extending to the Mississippi River. The first step toward a compromise was taken by the State of New York, which, on February 19, 1780, empowered its delegates to concede for the common benefit a portion of the territory to which it laid claim.1 On September 6th of the same year the Congress, encouraged by this action on the part of New York, advised the States to surrender a portion of their claims to the territory in question, inasmuch as without such action the Union under the Articles of Confederation essential to our very existence as a free, sovereign and independent people" could not be established; and the States could not hope to preserve their claims, as to do so would endanger the Confederation, with the consequence that they would lose credit and confidence at home and prestige and reputation abroad.

On the 10th of October the Congress took a final step,2 in as far as any

"The Revolution brought about several important changes in the territorial conditions of the former colonies. As soon as the English authority was extinguished, the States which had once had charters asserted that the territory embraced by such charters reverted to them. In the second place, the restriction to land east of the Appalachian water-shed and outside Indian tracts was held to have no more force. In the third place, several communities, notably Vermont, asserted that they were no longer included within the State of which they had been a part while it was still a colony. And in 1778 Virginia troops conquered the Northwest region, then a part of the English Province of Quebec. The result was confusion and clashing of interests. Western New York and Northern Pennsylvania were claimed by Massachusetts and Connecticut respectively; New York, Massachusetts and Connecticut, and Virginia all claimed the same parcel of territory north of the Ohio River; and the States with strictly defined boundaries, especially Maryland, protested against the appropriation by individual States of lands gained by the common effort of the Revolutionary War.

"The controversy delayed the ratification of the Articles of Confederation and was finally adjusted by a series of agreements between the competing States, and a series of cessions to the Union, not completed until 1802."

This deed of cession was authorized by Congress March 1, 1781. Journals of the Continental Congress, Vol. xix, pp. 211-13.

The pledge of Congress took the following form:

Resolved, That the unappropriated lands that may be ceded or relinquished to the United States, by any particular states, pursuant to the recommendation of Congress of the 6 day of September last, shall be disposed of for the common benefit of the United States and be settled and formed into distinct republican states, which shall become members of the federal union, and have the same rights of sovereignty, freedom and independence, as the other states: that each state which shall be so formed shall contain a suitable

measure taken by it could be final, resolving that the lands to which the States should cede their claims should be formed into republican States upon a footing of equality with those forming the Union which, by the second of the Articles of Confederation, was declared to be free, sovereign and independent.

Relinquishes

The question had now become largely one between Virginia and Mary- Virginia land. “Preferring the good of the country to every object of smaller Claim importance," the State of Virginia sacrificed whatever claim it may have had to the west and the northwest by offering to cede it to the Union, thus removing from Maryland all ground for further delay in acceding to the Confederation. Yielding to the pressure of the States and to the desire of France that the Union be consummated in the interest of the common cause, the State of Maryland authorized, on February 2, 1781, its delegates to ratify the Articles. This was done on March 1, 1781. Pursuant to the agreement, Virginia authorized, by an act of December 20, 1783,1 its delegates to execute a deed of cession to the territory in question to the United States, which was done on March 1, 1784, and on April 23d of the same year the Congress provided a temporary government for the ceded territory.2

It was evident that the United States in Congress assembled had earnestly sought to quiet title to the western territory, in order to open it to settlers upon what then was and now must be called equitable terms. The delegates of the States had pledged the Confederation to the admission of tracts to the west as States upon a footing of equality when the time should come for such action. The members of the Federal Convention who in some instances were, as has been stated, members of the very Congress which proposed the Northwest Ordinance during the sessions of the Convention, appeared to have taken it as a matter of course that the territory west of the mountains would be carved into States and admitted to the more perfect Union upon terms of equality. Therefore Article XVII of the first draft of the Constitution, reported on August 6, 1787, provided that new States should be admitted on the same terms with the original States. Mr. Gouverneur Morris moved to strike out this clause, saying that "he did not wish to bind down the Legislature to admit Western States on the terms here stated . . .

extent of territory, not less than one hundred nor more than one hundred and fifty miles square, or as near thereto as circumstances will admit:

That the necessary and reasonable expences which any particular state shall have incurred since the commencement of the present war, in subduing any of the British posts, or in maintaining forts or garrisons within and for the defence, or in acquiring any part of the territory that may be ceded or relinquished to the United States, shall be reimbursed; That the said lands shall be granted and settled at such times and under such regulations as shall hereafter be agreed on by the United States in Congress assembled, or any nine or more of them. Journals of the Continental Congress, Vol. XVIII, p. 915.

1

See American History Leaflets, No. 22, pp. 12-15.

'Journals of the American Congress, Vol. IV, pp. 379–80.

New States on Equality with Old

He did not wish however to throw the power into their hands."1 Mr. Madison opposed this motion, "insisting that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States." Mr. Mason followed him, saying, "If it were possible by just means to prevent emigrations to the Western Country, it might be good policy. But go the people will as they find it for their interest, and the best policy is to treat them with that equality which will make them friends not enemies." But Roger Sherman of Connecticut had already put the matter on unassailable grounds, saying that he "thought there was no probability that the number of future States would exceed that of the Existing States. If the event should ever happen, it was too remote to be taken into consideration at this time. Besides We are providing for our posterity, for our children & our grand Children who would be as likely to be citizens of new Western States, as of the old States. On this consideration alone, we ought to make no such discrimination as was proposed by the motion." 2

Because of the opposition of men of the school of Gouverneur Morris, the principle of equality was not consecrated in the Constitution, but as equality is the very life and breath of American institutions it has obtained in practice, and each new State is admitted to the Union upon a footing of equality. For, as stated by Mr. Justice Lurton in delivering the opinion of the Supreme Court in the case of Coyle v. Smith (221 U. S., 559, 580), decided in 1911:

The constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears we may remain a free people, but the Union will not be the Union of the Constitution.3

The rights of the existing States, however, were safeguarded against partition or involuntary union with other States, which provisions inured to the benefit of all States. They are thus expressed in the third section of Article IV of the perfected Constitution:

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.

It will be observed that the consent of Congress is required even when the States themselves might be willing, inasmuch as the question is one concerning the Union as a whole as well as of the States thought to be more closely involved.

2

Documentary History, Vol. iii, pp. 642-3. Session of August 29th.

Ibid., pp. 332-3. Session of July 14th.

'J. B. Scott, Judicial Settlement of Controversies between States, Vol. i, p. 64.

of the

A further passage of this section may be quoted as showing how easily despotism in others is the exercise of just rights in ourselves, for in the next succeeding clause it is provided that "the Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory Government or other Property belonging to the United States." And this clause has Territories been interpreted by the Supreme Court to vest in the Congress, as to it shall seem expedient, the unquestioned and indeed unquestionable right to govern the territories of the United States until their admission to the Union. As a matter of fact Congress has exercised this power in such a way that the governors of the territories, the judges of their courts created by act of Congress, are appointed by the President by and with the consent of the Senate, and that the acts of their legislatures, created by the Congress and invested with such powers as the Congress deems advisable, may be set aside by the Congress of the United States. A delegate from each territory, elected by the qualified voters thereof, does indeed sit in the House of Representatives, but he may not vote although he may participate in debate.

As pronounced a friend and advocate of the more perfect Union under the Constitution as Chancellor Kent feared that the evils of the old system would reappear in the new, saying in his Commentaries on American Law, first published in 1826:

If, therefore, the government of the United States should carry into execution the project of colonizing the great valley of the Oregan to the west of the Rocky Mountains, it would afford a subject of grave consideration what would be the future civil and political destiny of that country. It would be a long time before it would be populous enough to be created into one or more independent states; and, in the meantime, upon the doctrine taught by the acts of congress, and even by the judicial decisions of the Supreme Court, the colonists would be in a state of the most complete subordination, and as dependent upon the will of congress as the people of this country would have been upon the king and parliament of Great Britain, if they could have sustained their claim to bind us in all cases whatsoever. Such a state of absolute sovereignty on the one hand, and of absolute dependence on the other, is not at all congenial with the free and independent spirit of our native institutions; and the establishment of distant territorial governments, ruled according to will and pleasure, would have a very natural tendency, as all proconsular governments have had, to abuse and oppression.1 But the Congress has exercised its powers in wisdom, and the territories have been rapidly, indeed some think too rapidly, admitted to statehood. In Milton's conception, Presbyterian might indeed be "old priest writ large," but the Congress of the United States is not another form or name for that imperious Parliament whose powers it exercises in the New World.

'James Kent, Commentaries, 1826, Vol. I, pp. 360–1.

XV

AMENDMENTS AND RATIFICATIONS

It must be recollected that the Constitution was proposed to the people of the States as a whole, and unanimously adopted as a whole, it being a part of the Constitution that not less than 34 should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases where peculiar interests were at stake a majority even of 34 are distrusted and a unanimity required to make any change affecting those cases.

When the Constitution was adopted as a whole, it is certain that there are many of its parts which if proposed by themselves would have been promptly rejected. It is far from impossible that every part of a whole would be rejected by a majority and yet the whole be unanimously accepted. Constitutions will rarely, probably never be formed without mutual concessions, without articles conditioned on & balancing each other. Is there a Constitution of a single State out of the 24 that would bear the experiment of having its component parts submitted to the people separately, and decided on according to their insulated merits. (Extract from letter of James Madison to Robert Y. Hayne, United States Senator from South Carolina, dated April 3/4, 1830, Gaillard Hunt, Editor, The Writings of James Madison, Vol. IX, 1910, p. 392, note.)

But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitution of the United States, was not effected without immense opposition. Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states. These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them. (Chief Justice Marshall in Barron v. The Mayor and City of Baltimore, 7 Peters, 243, 250, decided in 1833.)

The prohibition alluded to as contained in the amendments to the constitution, as well as others with which it is associated in those articles, were not designed as limits upon the State governments in reference to their own citizens. They are exclusively restrictions upon federal power, intended to prevent interference with the rights of the States, and of their citizens. Such has been the interpretation given to those amendments by this court, in the case of Barron v. The Mayor and City Council of Baltimore, 7 Pet., 243; and such indeed is the only rational and intelligible interpretation which those amendments can bear, since it is neither probable nor credible that the States should have anxiously insisted to ingraft upon the federal constitution restrictions upon their own authority,restrictions which some of the States regarded as the sine qua non of its adoption by them. (Mr. Justice Daniel in Fox v. The State of Ohio, 5 Howard, 410, 434-435, decided in 1847.)

66

66

"This term United States, designates the whole American empire." It is the name given to our great republic, composed of states and territories; 5 Wh. 514; constituent parts of one great empire: 6 Wh. 414; "who have formed a confederated government; 12 Wh. 334; 2 Pet. 590, 1; by the act of the people of the great empire," the "great republic," the American empire," the United States. 'The people of America," "the American people," "the people of the United States," are but terms and names, to designate the grantor of the thing, which was thus formed, by the people, of the constituent parts; the thing, the power which formed it, by a thing, this constitution, established by the ratifications of nine things, conventions of nine states, by the people