frame one to suit them. After a discussion as to whether it were better to form a confederation before declaring independence, it was decided to declare independence first; in order that the free and independent States, and not the English colonies, might determine the conditions of permanent union. When this Confederation was established, it was vested with rights and powers conferred and defined by the States, and possessed not a trace of hereditary rights or powers descended from the British crown. The claim that Congress inherited from the British crown the right to limit the boundaries of the several States or to sequester lands, whether settled or unsettled, covered by their several charters, was, therefore, untenable, and was never sanctioned or seriously contemplated by the United States.
On the contrary, the recognition of the jurisdiction of the several States over all land, settled or unsettled, within their respective charter limits, some of which has never been ceded to, and none of which has ever been claimed by, the United States; the repeated invitations to the States to make cessions of their western lands; the care with which the terms of each cession were scrutinized; the scrupulous observance of the stipulations of these cessions, especially in the cases of Georgia and Connecticut, and of the request to Virginia to amend the terms of its cession so as to permit the Northwest Territory to be organized into more than three States; the incorporation into the articles of confederation of the provision by which the United States can take cognizance of the boundaries or jurisdiction of States only as ‘the last resort on appeal,’ when the case shall be brought before Congress by ‘the legislative or executive authority or lawful agent’ of one of the States ‘in controversy’; the adoption of the guarding clause, ‘No State shall be deprived of territory for the benefit of the United States’; the language of the ordinances of 1784 and 1787; subsequent decisions of the Supreme Court of the United States on collateral questions growing out of the cession; all abundantly show that the United States has uniformly respected the charter titles of the States to their western territory.
The events connected with the origin of this dispute have been given in some detail, for the reason that, although essential to a just estimate of the acts and motives of the leading parties to the controversy, they have not been adequately set forth by previous writers. The events which follow have been discussed by many historians, who agree on the main facts but differ in their opinions and reflections.
The motion of the Virginia delegates, offered June 7, 1776, embraced a clause ‘that a plan of confederation be prepared and transmitted to the respective colonies for their consideration.’ July 11th Congress resolved to create a committee for the purpose, which was appointed the next day, consisting of one member from each State. This committee reported a plan of confederation July 12th, which was debated at intervals until August 20th, when the committee presented an amended report. April, 1777, it was decided to devote two days in each week to the consideration of the subject. It was during the progress of these debates that Maryland offered, October 15, 1777, the motion heretofore quoted. The Articles were adopted by Congress November 15, 1777, not to be valid until ratified by all the States, and a circular was addressed to the States urging ratification. (Journals, vol. 1, pp. 408, 507, 618; vol. 2, p. 598.)
While the ratification was pending, Maryland continued her contest relative to the western lands by offering, June 22, 1778, a series of amendments to the Articles. Among these was an amendment intended to break down the safeguard which guaranteed to the States the protection of their territory from infraction by the United States. The proposed amendment was in the following words: ‘Article 9; after the words “shall be deprived of territory for the benefit of the United States,” insert “the United States, in Congress assembled, shall have the power to appoint commissioners, who shall be fully authorized and empowered to ascertain and restrict the boundaries of such of the confederated States which claim to the river Mississippi or South Sea.” ’ This amendment was rejected, receiving five votes, Maryland, New Jersey, Rhode Island, Delaware and Pennsylvania. Against it were New Hampshire, Massachusetts, Connecticut, Virginia, South Carolina and Georgia. New York was divided, and North Carolina absent.
July 9, 1778, the delegates of all the States in accordance with instructions, signed the articles in ratification of their respective States, except the delegates of New Jersey, Delaware and Maryland. Rhode Island, although signing in ratification, proposed an amendment, that the crown lands ‘shall be deemed, taken and considered as the property of these United States, and be disposed of and appropriated by Congress for the benefit of the whole Confederacy, reserving, however, to the States within whose limits such crown lands may be, the entire and complete jurisdiction thereof.’ New Jersey presented a memorial setting forth the views of her legislature on a number of matters. On the subject of the western lands New Jersey expressed views similar to those of Rhode Island; that the crown lands belong to the United States, the jurisdiction being reserved to the States within whose charter limits the land may lie. New Jersey acceded to the Confederation November 25, 1778. Delaware acceded February 23, 1779, but filed a protest, affirming the right of Delaware and all the other states to a share in the western lands. Congress permitted this protest to be filed with a condition ‘that it shall never be considered as admitting any claim by the same set up or intended to be set up.’ Maryland refused to become a member of the Confederation unless the articles should be amended to contain a provision in conformity to her views in reference to the western country. She seemed to persist in her course, notwithstanding that she had been defeated at every step. December 15, 1778, her legislature adopted ‘A declaration and a letter of instructions to her delegates in Congress,’ both of which were devoted to the subject of the western lands and were laid before Congress May 21, 1779. (Journals of Congress, vol. 2, pp. 601-605; vol. 3, pp. 281-2-3, 289. Henning's Statutes of Virginia, vol. 10, appendix.)
These documents reiterate the former claims and arguments of Maryland, extending and elaborating them. They complain that ‘the alterations and amendments proposed by our delegates to the Confederation in consequence of the aforesaid instructions by us to them given, were rejected, and no satisfactory reason assigned for the rejection thereof.’ They declare that unless amendments be made to ‘the third article of the Confederation, and the proviso to the ninth (according to which no State is to be deprived of territory for the benefit of the United States),’ that ‘we mean not to subject ourselves to such guaranty.’ * * * ‘We declare that we will accede to the Confederation, provided an article or articles be added thereto, giving full power to the United States, in Congress assembled, to ascertain and fix the western limits of the States claiming to extend to the Mississippi or South Sea, and expressly reserving or securing to the United States a right in common in and to all lands lying to the westward of the frontiers as aforesaid, not granted to, or surveyed for, or purchased by individuals at the commencement of the present war.’ Allusion is made to States ‘grasping for territories to which, in our judgment, they have not the least shadow of exclusive right.’ A picture is painted of the great advantages Virginia would enjoy by selling these lands, and attracting the population of other States. The probability that Virginia would organize this territory into independent States is made the occasion of severe arraignment, and the charge of establishing a ‘sub-confederacy,’ an ‘imperium in imperio,’ and of a movement ‘to lull suspicion to sleep, and to cover the designs of a secret ambition.’ Her former allies in the effort to establish the western limits, who had subsequently joined the Confederation, are touched up as follows:
‘Although the pressure of immediate calamities, the dread of their continuing from the appearance of disunion, and some other peculiar circumstances, may have induced some States to accede to the present Confederation contrary to their own interests and judgments, it requires no great share of foresight to predict that when these causes cease to operate the States which have thus acceded to the Confederation will consider the first occasion of asserting their just rights and securing their independence.’
Her delegates are instructed ‘not to agree to the Confederation unless an article or articles be added thereto in conformity with our declaration. Should we succeed in obtaining such article or articles, then you are hereby fully empowered to accede to the Confederation.’
While very desirous to complete the Confederation, Congress would not and could not surrender the great principles at stake. The coercive measures of Maryland had failed. What was to be done? Neither Virginia, the Carolinas, Georgia, Massachusetts