a treaty upon some of the principles laid down in the commission, and soon after it was executed the commissioners ceased to do anything whatever.1 During the period which elapsed from the Treaty of Peace with England to the assembling of the Convention at Annapolis, the legislation of the different states, designed to protect themselves against the policy of England, was of course without system or concert, and without uniformity of regulation. At one time duties were made extravagantly high; at another competition reduced them below the point at which any considerable revenue could be derived. At one time the states acted in open hostility to each other; at another they contemplated commercial leagues, without regard to the prohibition contained in the Articles of Confederation. No steady system was pursued by any of them, and the inefficacy of state legislation became at length so apparent that a conviction of the necessity of new powers in Congress forced itself upon the public mind. readiness you expressed in your letter to me of the 9th of December to remove to London, for the purpose of treating upon such points as may materially concern the interests, both political and commercial, of Great Britain and America, and having at the same time represented that you declared yourselves to be fully authorized and empowered to negotiate, I have been, in answer thereto, instructed to learn from you, gentlemen, what is the real nature of the powers with which you are invested-whether you are merely commissioned by Congress, or whether you have received separate powers from the respective states. A committee of North American merchants have waited upon his majesty's principal secretary of state of foreign affairs, to express how anxiously they wished to be informed upon this subject, repeated experience having taught them in particular, as well as the public in general, how little the authority of Congress could avail in any respect where the interest of any one individual state was even concerned, and particularly so where the concerns of that state might be supposed to militate against such resolutions as Congress might think proper to adopt. The apparent determination of the respective states to regulate their own separate interests renders it absolutely necessary, towards forming a permanent system of commerce, that my court should be informed how far the commissioners can be duly authorized to enter into any engagements with Great Britain which it may not be in the power of any one of the states to render totally fruitless and ineffectual." Diplomatic Correspondence, II. 297. 1 Jefferson's Works, I. 50, 51. The whole proceedings of this commission may be found in the Diplomatic Correspondence, II. 193–346. CHAPTER XIV. 1783-1787. THE PUBLIC LANDS.-GOVERNMENT OF THE NORTHWESTERN TERRITORY. THREATENED LOSS OF THE WESTERN SETTLEMENTS. THE Confederation, although preceded by a cession of western territory from the state of New York for the use of the United States, contained no grant of power to Congress to hold, manage, or dispose of such property. There had been, while the Articles of Confederation were under discussion in Congress, a proposal to insert a provision giving to Congress the sole and exclusive right and power to ascertain and fix the western boundary of such states as claimed to the Mississippi or the "South Sea," and to lay out the land beyond the boundary so ascertained into separate and independent states from time to time, as the numbers and circumstances of the inhabitants might require.' This proposal was negatived by the vote of every state except Maryland and New Jersey.' Its rejection caused the adoption of the Confederation to be postponed for a period of more than two years after it was submitted to the states. Virginia had set up claims to an indefinite extent of territory, stretching far into the western wilderness, which were looked upon with especial jealousy by Maryland; and when the Articles of Confederation came before the legislature of that state for consideration, the absence of any provision vesting in the Union any control over these claims, or any power to ascertain and fix the western boundaries of the great states, became at once a cause of irritation and alarm. The steps taken by Maryland to have this power introduced into the Articles have already been detailed. But the Articles could not be amended. Congress 1 October 15, 1777. Secret Journals, I. 328. 2 Ibid. See the account of the adoption of the Confederation, ante, pp. 90–97. could only make efforts to remove this impediment to their adoption by recommending to the states to cede their territorial claims to the Union. The first step which they took for this purpose was to recommend to the state of Virginia, and all the other states similarly situated, not to make sales of unappropriated lands during the continuance of the war.' This was followed by a full consideration of the subject presented by the objections of Maryland and the remonstrance of Virginia. Declining to reopen the question of the merits or policy of attempting to engraft the proposed power upon the Confederation, Congress deemed it more advisable to endeavor to procure a surrender of a portion of the territorial claims of the several states. In pressing a recommendation to this effect they were greatly aided by the course of the state of New York, which had already authorized its delegates in Congress to limit its western boundaries, and to cede a portion of its vacant lands to the United States. They then immediately declared, by resolve, the purposes for which such cessions were to be held. The territories were to be disposed of for the common benefit of the United States; to be settled and formed into distinct republican states, which should become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence as the other states. Each state so formed was to contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square; the necessary expenses incurred by any state in acquiring the territory ceded were to be reimbursed, and the lands were to be granted or settled at such times and under such regulations as should thereafter be agreed upon by the United States in Congress assembled, or any nine or more of them.* The cessions were made under the guarantees of this resolve. Strictly speaking, there was no express constitutional power under which Congress could thus act, either before or after the adoption of the Articles of Confederation. Before that period, if the United States could acquire and hold lands for any purpose, it could only be by the common attribute of sovereignty belonging to every government. Perhaps this power existed, by implication, in the 1 October 30, 1779. Journals, V. 401, 402. 3 February 19, 1780. 2 September 6, 1780. 4 October 10, 1780. revolutionary government; but the compact which was to constitute the new government contained no authority for the establishment of new states within the limits of the Union. But when, aside from the Articles of Confederation, and before they had been adopted, the Revolutionary Congress undertook, in 1780, to hold out these inducements to the states, as motives for their adoption of that instrument, and these motives were acted upon and the cessions made, it must be taken that the territory came rightfully into the possession of the United States. Whether the adoption of the Articles, containing no power for the government of such territories or for the admission of new states into the Union, did not place the new government in a position where, if it acted at all, it would act beyond the scope of its constitutional authority, certainly admitted of grave question.' But the acquisition of the territory itself rested upon acts which were so directly and expressly connected with the establishment of the new union under the Confederation as to make the acquisition itself part of the fundamental conditions of that union, and the principal guarantee of its continuance. Among the declared purposes for which these acquisitions were made was that of forming them into new states, to be admitted into the Union; and as all the states acquiesced in and embraced this purpose, they may be said to have conferred upon Congress an implied power to legislate to carry it into effect. Still, the want of an express authority in the Articles thus to deal with acquired territory was afterwards felt and insisted upon, as the Confederation drew towards the close of its career." Virginia, in 1781, offered to make a cession to the United States of her title to lands northwest of the Ohio, upon certain conditions, which were not satisfactory, and the subject had not been acted upon in Congress when the revenue system of 1783 was adopted for recommendation to the states. Looking to the prospect of vacant lands, as a means of hastening the extinguishment of the public debts, as well as of establishing the harmony of the Union, Congress accompanied the recommendation of the revenue system by new solicitations to the states which had made no cessions of their public lands, or had made them in part only, to comply fully 1 The Federalist. 2 Ibid. with the former recommendations. This drew from the state of New Jersey, apprehensive that the offer of Virginia might be accepted, a remonstrance against the cession proposed by that state, as partial, unjust, and illiberal.' Congress again took the subject into consideration, examined the conditions which the legislature of Virginia had annexed to their proposed grant, declared some of them inadmissible, and stated the conditions on which the cession could be received." Virginia complied with the terms proposed by Congress, and upon those terms ceded to the United States all right, title, and claim, both of soil and jurisdiction, which the state then had to the territory within the limits of its charter, lying to the northwest of the river Ohio. That magnificent region, in which now lie the powerful states of Ohio, Indiana, Illinois, Michigan, and Wisconsin, became the property of the United States, by a grant of twenty lines, executed in Congress by Thomas Jefferson and three of his colleagues, on the 1st day of March, 1784.' Soon after this cession had been completed, Congress passed a resolve for the regulation of the territory that had been or might be ceded to the United States, for the establishment of temporary and permanent governments by the settlers, and for the admission 1 June 20, 1783. 2 September 13, 1783. 'The granting part of the deed of cession, exclusive of its recitals, is as follows: "That we, the said Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, by virtue of the power and authority committed to us by the act of the said General Assembly of Virginia before recited, and in the name and for and on behalf of the said commonwealth, do by these presents convey, transfer, assign, and make over unto the United States in Congress assembled, for the benefit of the said states, Virginia inclusive, all right, title, and claim, as well of soil as of jurisdiction, which the said commonwealth hath to the territory or tract of country within the lines of the Virginia charter, situate, lying, and being to the northwest of the river Ohio, to and for the uses and purposes, and on the conditions, of the said recited act." The cession was made with the reservation of such a portion of the territory ceded, between the rivers Scioto and Little Miami, as might be required to make up the deficiencies of land on the south side of the Ohio, called the Green River lands, reserved for the Virginia troops on continental establishment (Journals, IX. 67–69). Subsequently the act of cession was altered, so as to admit of the formation of not more than five, nor less than three states, of a size more convenient than that described in the act of cession and in the resolve of October 10, 1780. Journals, XI. 139, 140. July 9, 1786. |