[41] Act 1 Geo. III. ch. 23.
[42] This was afterwards stricken out.
[43] Ante, Vol. I. Book III. Chap. V.
[44] Mr. Jefferson has very lucidly stated the position of the question in some observations furnished by him, when in Paris, to one of the editors of the Encyclopédie Méthodique, in 1786 or 1787, which I here insert entire. "The eleventh Article of Confederation admits Canada to accede to the Confederation at its own will, but adds, 'no other Colony shall be admitted to the same unless such admission be agreed to by nine States.' When the plan of April, 1784, for establishing new States, was on the carpet, the committee who framed the report of that plan had inserted this clause: 'Provided nine States agree to such admission, according to the reservation of the eleventh of the Articles of Confederation.' It was objected,—1. That the words of the Confederation, 'no other Colony,' could refer only to the residuary possessions of Great Britain, as the two Floridas, Nova Scotia, &c., not being already parts of the Union; that the law for 'admitting' a new member into the Union could not be applied to a territory which was already in the Union, as making part of a State which was a member of it. 2. That it would be improper to allow 'nine' States to receive a new member, because the same reasons which rendered that number proper now would render a greater one proper when the number composing the Union should be increased. They therefore struck out this paragraph, and inserted a proviso, that 'the consent of so many States in Congress shall be first obtained as may at the time be competent'; thus leaving the question whether the eleventh Article applies to the admission of new States to be decided when that admission shall be asked. See the Journal of Congress of April 20, 1784. Another doubt was started in this debate, viz. whether the agreement of the nine States required by the Confederation was to be made by their legislatures, or by their delegates in Congress? The expression adopted, viz. 'so many States in Congress is first obtained,' shows what was their sense of this matter. If it be agreed that the eleventh Article of the Confederation is not to be applied to the admission of these new States, then it is contended that their admission comes within the thirteenth Article, which forbids 'any alteration unless agreed to in a Congress of the United States, and afterwards confirmed by the legislatures of every State.' The independence of the new States of Kentucky and Franklin will soon bring on the ultimate decision of all these questions." (Jefferson's Works, IX. 251.) That the admission of a new State into the Union could have been regarded as an alteration of the Articles of Confederation, within the meaning and intention of the thirteenth Article, seems scarcely probable. Such an admission would only have increased the number of the parties to the Union, but it would of itself have made no change in the Articles; and it was against alterations in the Articles that the provision of the thirteenth was directed. The objections which Mr. Jefferson informs us were raised in Congress to a deduction of the power from the eleventh Article, appear to be decisive. In truth, when the Articles of Confederation were framed, the subject of the admission of new States, so far as it had been considered at all, was connected with the difficult and delicate controversy respecting the western boundaries of some of the old States, and the equitable claim of the Union to become the proprietor of the unoccupied lands beyond those boundaries. An attempt was made to obtain for Congress, in the Articles of Confederation, power to ascertain and fix the western boundaries of those States, and to lay out the lands beyond them into new States. But it failed (ante, Vol. I. 291), and Congress could thereafter be said to possess no power to admit new States, except what depended on a doubtful construction of the Articles of Confederation.
Still, both when they invited the cessions of their territorial claims by the States of Virginia, New York, &c., and after those cessions had been made, Congress acted as if they had constitutional authority to form new States, and to admit them into the Union. (Ante, Vol. I. 292-308.) When the Ordinance of 1787, for the regulation and government of the Northwestern Territory, was adopted, the power to admit new States was again assumed. The Convention for forming the Constitution was, however, then sitting, and it may be that the framers of the Ordinance introduced into that instrument the stipulation that the new States should be admitted on an equal footing with the old ones, in the confidence that the constitutional power would be supplied by the Convention. At any rate, the provisions of the Ordinance, as well as those of the previous resolves of Congress on the same subject of the Northwestern Territory, and the position of Kentucky, Vermont, Maine, and Tennessee (then called Franklin), imposed upon the Convention an imperative necessity for some action that would open the door of the Union to new members.
[45] Ante, Vol. I. Book III. Chap. III. pp. 260-275.
[46] As the resolution was originally passed, it declared that "a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States." On account of the ambiguity of the expression "existing laws," and the controversies to which it might give rise, the provision was subsequently changed to a guaranty of "a republican form of government," and of protection against "invasion" and "domestic violence," as it now stands in Art. IV. Sect. 4 of the Constitution.
[47] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia voted for it (6); Connecticut, New Jersey, New York, Delaware, and Maryland voted against it (5).
[48] See Madison, Elliot, V. 157, 158, 183.
[49] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 6; Connecticut, New York, New Jersey, no, 3; Delaware, Maryland, divided. See further on the subject of "Ratification," post, Index.