History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2 / With Notices of Its Principle Framers

by George Ticknor Curtis

Such are the legislative powers of Congress, which are to be exercised within the States themselves;—and it is at once obvious, that they constitute a government of limited authority. The question arises, then, whether that authority is anywhere full and complete, embracing all the powers of government and extending to all the objects of which it can take cognizance. It has already been seen, that, when provision was made for the future acquisition of a seat of government, exclusive legislation over the district that might be acquired for that purpose was conferred upon Congress.[269] In the same clause, the like authority was given over all places that might be purchased, with the consent of any State legislature, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.[270] All the other places to which the authority of the United States can extend are included under the term "territories," which are out of the limits and jurisdiction of any State. As this is a subject which is intimately connected with the power to admit new States into the Union, we are now to consider the origin and history of the authority given to Congress for that purpose.

In examining the powers of Congress contained in the first article of the Constitution, the reader will not find any power to admit new States into the Union; and while he will find there the full legislative authority to govern the District of Columbia and certain other places ceded to the United States for particular purposes, of which I have already spoken, he will find no such authority there conferred in relation to the territory which had become the property of the United States by the cession of certain of the States before and after the adoption of the Articles of Confederation. If this power of legislation exists as to the territories, it is to be looked for in another connection; and although it is not the special province of this work to discuss questions of construction, it is proper here to state the history of those portions of the Constitution which relate to this branch of the authority of Congress.

In the first volume of this work, I have given an account of the origin of the Northwestern Territory, of its relations to the Union, and of the mode in which the federal Congress had dealt with it down to the time when the national Convention was assembled.[271] From the sources there referred to, and from others to which reference will now be made, it may be convenient to recapitulate what had been done or attempted by the Congress of the Confederation.

It appears that during the preparation of the Articles of Confederation an effort was made to include in them a grant of express power to the United States in Congress to ascertain and fix the western boundaries of the existing States, and to lay out the territory beyond the boundaries that were to be thus ascertained into new States. This effort totally failed. It was founded upon the idea that the land beyond the rightful boundaries of the old States was already, or would by the proposed grant of power to ascertain those boundaries become, the common property of the Union. But the States, which then claimed an uncertain extension westward from their actual settlements, were not prepared for such an admission, or such a grant; and accordingly the Articles of Confederation, which were issued in 1777 and took effect in 1781, contained no express power to deal with landed property of the United States, and no provision which could safely be construed into a power to form and admit new States out of then unoccupied lands anywhere upon the continent. Still, the Articles were successively ratified by some of the States, and finally became established, in the express contemplation that the United States should be made the proprietor of such lands, by the cession of the States which claimed to hold them. In order to procure such cessions, as the means of inducing a unanimous accession to the confederacy, the Congress in 1780 passed a resolve, in which they promised to dispose of the lands for the common benefit of the United States, to settle and form them into distinct republican States, and to admit such States into the Union on an equal footing with its present members.[272] The great cession by Virginia, made in 1784, was immediately followed by another resolve, for the regulation of the territory thus acquired.[273]

This resolve, as originally reported by Mr. Jefferson, embraced a plan for the organization of temporary governments in certain States which it undertook to describe and lay out in the Western territory, and for the admission of those States into the Union. In one particular, also, it undertook, as it was first reported, to regulate the personal rights or relations of the settlers, by providing that, after the year 1800, slavery, or involuntary servitude except for crime, should not exist in any of the States to be formed in the territory. But this clause was stricken out before the resolve was passed, and its removal left the measure a mere provision for the political organization of temporary and permanent governments of States, and for the admission of such States into the Union. So far as personal rights or relations were involved in it, the settlers were authorized to adopt, for a temporary government, the constitution and laws of any one of the original States, but the laws were to be subject to alteration by their ordinary legislature. The conditions of their admission into the Union referred solely to their political relations to the United States, or to the rights of the latter as the proprietor of the ungranted lands.

In about a year from the passage of this measure introduced by Mr. Jefferson, and after he had gone on his mission to France, an effort was made by Mr. King to legislate on the subject of the immediate and perpetual exclusion of slavery from the States described in Mr. Jefferson's resolve. Mr. King's proposition was referred to a committee, but it does not appear that it was ever acted upon.[274] The cessions of Massachusetts and Connecticut followed, in 1785 and 1786. Within two years from this period, such had been the rapidity of emigration and settlement, and so inconvenient had become the plan of 1784, that Congress felt obliged to legislate anew on the whole subject of the Northwestern Territory, and proceeded to frame and adopt the Ordinance of July 13, 1787. This instrument not only undertook to make political organizations, and to provide for the admission of new States into the Union, but it also dealt directly with the rights of individuals. Its exclusion of slavery from the territory is well known as one of its fundamental articles, not subject to alteration by the people of the territory, or their legislature.[275]

The power of Congress to deal with the admission of new States was not only denied at the time, but its alleged want of such power was one of the principal reasons which were said to require a revision of the federal system. It does not appear that the subject of legislation on the rights or condition of persons attracted particular attention; nor do we know, from anything that has come down to us, that the clause relating to slavery was stricken from Mr. Jefferson's resolve in 1784, upon the special ground of a want of constitutional power to legislate on such a question. But Mr. Jefferson has himself informed us, that a majority of the States in Congress would not consent to construe the Articles of Confederation as if they had reserved to nine States in Congress power to admit new States into the Union from the territorial possessions of the United States; and that they so shaped his measure, as to leave the question of power and the rule for voting to be determined when a new State formed in the territory should apply for admission.[276] It seems, also, that although the power to frame territorial governments, to organize States and admit them into the Union, was assumed in the Ordinance of 1787, the Congress of the Confederation never acted upon the power so far as to admit a State.[277] Finally, we are told by Mr. Madison, in the Federalist, that all that had been done in the Ordinance by the Congress of the Confederation, including the sale of lands, the organization of governments, and the prescribing of conditions of admission into the Union, had been done "without the least color of constitutional authority";[278]—an assertion which, whether justifiable or not, shows that the power of legislation was by some persons strenuously denied.[279]

With regard to the powers of Congress, under the Confederation, to erect new States in the Northwestern Territory, and to admit them into the Union, the truth seems to be this. There is no part of the Articles of Confederation which can be said to confer such a power; and, in fact, when the Articles were framed, the Union, although it then existed by an imperfect bond, not only possessed no such territory, but it did not then appear likely to become the proprietor of lands, claimed by certain of the States as the successors of the crown of Great Britain, and lying within what they regarded as their original chartered limits. The refusal of those States to allow the United States to determine their boundaries, made it unnecessary to provide for the exercise of authority over a public domain. But in the interval between the preparation of the Articles and their final ratification, a great change took place in the position of the Union. It was found that certain of the smaller States would not become parties to the Confederation, if the great States were to persist in their refusal to cede to the Union their claims to the unoccupied Western lands; and although the States which thus held themselves back, for a long time, from the ratification of the Articles, finally adopted them, before the cessions of Western territory were made, they did so upon the most solemn assertion that they expected and confided in a future relinquishment of their claims by the other States. Those just expectations were fulfilled. By the acts of cession, and by the proceedings of Congress which invited them, the United States not only became the proprietors of a great public domain, but they received that domain upon the express trust that its lands should be disposed of for the common benefit, and that the country should be settled and formed into republican States, and that those States should be admitted into the Union. In these conveyances, made and accepted upon these trusts, there was a unanimous acquiescence by the States.

While, therefore, in the formal instrument under which the Congress was organized, and by which the United States became a corporate body, there was no article which looked to the admission of new States into that body, formed out of territory thus acquired, and no power was conferred to dispose of such lands or govern such territory, there were, outside of that instrument, and closely collateral to it, certain great compacts between the States, arising out of deeds of cession and the formal guaranties by which those cessions had been invited, and with which they had been received, which proceeded as if there were a competent authority in the United States in Congress to provide for the formation of the States contemplated, and for their admission into the Union. Strictly speaking, however, there was no such authority. It was to be gathered, if at all, from public acts and general acquiescence, and could not be found in the instrument that formed the charter and established the powers of the Congress. It was an authority, therefore, liable to be doubted and denied; it was one for the exercise of which the Congress was neither well fitted nor well situated; and it was moreover so delicate, so extensive, and so different from all the other powers and duties of the government, as to make it eminently necessary to have it expressly stated and conferred in the instrument under which all the other functions of the government were to be exercised.[280]

Such was the state of things at the period of the formation of the Constitution; and as we are to look for the germ of every power embraced in that instrument in some stage of the proceedings which took place in the course of its preparation, it is important at once to resort to the first suggestion of any authority over these subjects. In doing so, we are to remember that the United States had accepted cessions of the Northwestern Territory, impressed with two distinct trusts: first, that the country should be settled and formed into distinct republican States, which should be admitted into the Union; secondly, that the lands should be disposed of for the common benefit of all the States.[281]