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treaty, upon some of the principles laid down in the commission, and soon after it was executed, the commissioners ceased to do any thing 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.

ulate 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 V.

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.1 This proposal was negatived by the vote of every State except Maryland and New Jersey.2 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.

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Virginia

3 See the account of the adop

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.1 But the Articles could not be amended. Congress 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.2 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

tion of the Confederation, ante, pp.

131 - 141.

1 Ante, pp. 131 – 136.

2 October 30, 1779. Journals,

V. 401, 402.

3 September 6, 1780.

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.2

The cessions were made under the guaranties 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. Per

1 February 19, 1780.

2 October 10, 1780.

haps this power existed, by implication, in the 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.1 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 ac quisition itself part of the fundamental conditions of that Union, and the principal guaranty 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

1 The Federalist.

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