CHAPTER IX.

THE ADMISSION OF NEW STATES.

Original States. The Constitution provided that the ratification by the conventions of nine States should be sufficient for the establishment of the Constitution between the States so ratifying the same;1 but it contemplated the accession of all the thirteen States, if all should ratify, even though some might delay until after the government should have been put into operation.

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New States. The Constitution also provided that new States may be admitted by Congress into the Union; 2 but whether they should be formed of territory at that time belonging to the States, or from territory that might thereafter be acquired, or taken in as existing States previously independent, was not expressly determined by that instrument. By the Ordinance of 1787, however, which the Constitution left in force, it had been agreed that States not exceeding five might be formed from the Northwest Territory, and received into the Union; and it may be assumed as unquestionable that the constitutional provision contemplated that the territory then under the dominion of the United States, but not within the limits of any one of them, was in due time to be formed and organized into States and admitted into the Union, as has since in many cases been done. Indeed, it could never have been understood that any territory which by pur

1 Const., Art. VII.

2 Const., Art. IV. § 3.

8 Spooner v. McConnell, 1 McLean, 337.

chase, cession, or conquest should at any time come under the control of the United States, should permanently be held in a territorial condition, and the new States, which have been formed of territory acquired by treaty, must be supposed to have been received into the Union in strict compliance with the Constitution.1 So must Texas, which as an independent State was annexed to the Union. It is true that nothing in the express terms of the Constitution indicates that it was contemplated, by those who framed and adopted it, that the bounds of the Union should be extended by the acquisition of territory, either by purchase or annexation. Nevertheless, the power in any sovereignty to acquire territory is indisputable, and of right pertains to the power to declare war and form treaties. It therefore belongs to the United States, and is denied to the States, which are forbidden to enter into treaties. And when territory is acquired, the right to suffer States to be formed therefrom, and to receive them into the Union, must follow of course, not only because the Constitution confers the power to admit new States without restriction, but also because it would be inconsistent with institutions founded on the fundamental idea of self-government that the federal government should retain territory under its own imperial rule, and deny the people the customary local institutions. The power to admit to the Union existing States, as in the case of Texas, may be questioned with more reason; 3 but the dealings of one sovereignty with another must always be

1 Compare Scott v. Sandford, 19 How. 393, 447.

2 Const., Art. I. § 10.

8 The debates which took place in Congress while the subject of the annexation of Texas was under discussion, and the contemporaneous political discussions elsewhere, give the opposing views on this subject. Most of the discussions, however, involved policy rather than constitutional power.

under subjection to the great law of necessity, and what the requirements of that law may be in any particular case only the sovereignty itself can judge when the emergency is upon it. If, therefore, an independent State is received into the Union, it must be supposed to have been accepted on sufficient and conclusive reasons.

Preliminary Steps. The Constitution does not point out what steps shall be taken for the admission of a State to the Union, but, the power having been conferred upon Congress without limitation, it is left to the discretion of that body to determine the circumstances under which the admission shall be allowed, and the steps that shall be taken to obtain it. Nevertheless, certain requisites are necessarily implied. There must be a State to admit; and a State must have a government and laws; and the government must be republican in form because States with such a government can alone be members of the Union. But how the State shall come into existence; who shall be its electors and form its government and establish its laws; how many of the electors there shall be; what shall be the extent of territory, incorporated within the limits of their State; and whether any constitution the people may have formed shall be received as satisfactory or shall be required to be amended, these and many other questions must be determined under the discretionary power conferred upon Congress.

States have been admitted, - (1.) where the people of a Territory of suitable size have, either by spontaneous action or in accordance with some territorial statute or executive proclamation, formed a constitution and elected officers to administer it, and presented the constitution to Congress and applied for admission under it; (2.) where Congress has first passed an enabling act, authorizing the people to form a constitution, prescribing rules of suffrage and other conditions, and providing for the admission

of the State when the constitution should be adopted and the conditions complied with; (3.) when a constitution, formed with or without previous congressional authority, has been presented to Congress, and that body has accepted it conditionally, requiring the consent of the people, evidenced in some form indicated, to some condition precedent to the admission, such as the consent to yield some portion of the territory claimed, or some rule of suffrage established by the state constitution, &c. Besides these there have been other peculiarities of admission, but this statement is sufficient to show that the control of Congress is exercised according to the circumstances. In one instance, admission has been refused, though the population was ample, because of objection to local laws and usages.1

With full discretionary power over the admission of States, it must be expected that the action of Congress will not always be governed by uniform sentiments and uniform rules, and it has at times confessedly been controlled by party or sectional considerations. The Constitution neither does nor can establish effectual safeguards against the control of such influences.

Seceded States. Those States whose people undertook to sever them from the Union, under claim of a right to secede, were nevertheless not released from their constitutional relations.2 Until the rebellion was overthrown their position was peculiar; they had disloyal governments exercising all the ordinary powers of sovereignty, with courts administering justice between man and man, and

1 The case of Utah. The facts concerning the admission of States to the Union are all collected, and the principles discussed, in Jameson on Constitutional Conventions.

2 White v. Cannon, 6 Wall. 443; Texas v. White, 7 Wall. 700; Shortridge v. Macon, Chase's Dec. 136; Keith v. Clark, 97 U. S. Rep.

legislatures passing laws of general, but also of purely local concern. When resistance to the federal government ceased, regard to the best interests of all concerned required that such governmental acts as had no connection with the disloyal resistance to government, and upon the basis of which the people had acted and had acquired rights, should be suffered to remain undisturbed.1 But all acts done in furtherance of the rebellion were absolutely void, and private rights could not be built up under, or in reliance upon them.2 To restore the States to their former place in the Union, no new admission was required, but they were restored to their full constitutional powers as rightful members of the Union, when the fact was recognized by the political departments of the government, and their senators and representatives were admitted to seats in Congress.3

States from other States. - The Constitution further pro

vides that "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.' The political departments of the government practically decided in the case of Virginia that, when a State goes into rebellion, any part of it, however small, which remains loyal, may with the consent of Congress maintain a loyal state government for the whole State, and that this government

1 Keppel v. Railroad Co., Chase's Dec. 167; Cook v. Oliver, 1 Woods, 437; Hatch v. Burroughs, 1 Woods, 439; Thorington v. Smith, 8 Wall. 1; Horn v. Lockhart, 17 Wall. 570; Sprott v. United States, 20 Wall. 459; Ford v. Surget, 97 U. S. Rep. 594.

2 Hanauer v. Doane, 12 Wall. 342; Hanauer v. Woodruff, 15 Wall. 439; Sprott v. United States, 20 Wall. 459; Ford v. Surget, 97 U. S. Rep. 594.

8 Texas v. White, 7 Wall. 700; Keith v. Clark, 97 U. S. Rep. 454. 4 Const., Art. IV. § 3, cl. 1.