of the said Six Nations and their tributaries, inhabiting as far as the 45th degree of north latitude, as appendant to the Government of New York." They concluded that "by Congress accepting this cession, the jurisdiction of the whole Western territory, belonging to the Six Nations and their tributaries, will be vested in the United States." The power of the United States over the region inhabited by Indians under the protection of the United States was called "jurisdiction," showing that the committee considered the region occupied by the Indian tribes as essentially a dependency, though under the outward form of a protectorate.

There seems to have never been any question in Congress but that the Congress was the successor of the King of Great Britain both as respects the States of the Union, and as respects the regions external to the Union and subject to its control. Nor does there ever seem to have been any question but that the power of the Congress, as the Disposer of the affairs of the Union, extended only to the making of rules and regulations for the common interest and benefit of all the States of the Union. The difficulty arose concerning the application of these principles to the administration of the dependencies of the Union. The party which in the years 1775 and 1776 had been the anti-Imperialist party on account of their devotion to the principle of States' Rights, were inclined to the opinion that the power of the Union over the dependencies extended only to the making of dispositions respecting them as if they were States of the Union, and hence extended only to the making of regulations concerning the common interests of the whole political organism consisting of the States and the dependencies of the Union. If the power of the Congress was only this, it could make no regulations even for the purpose of granting the title to the soil in the dependencies or relating to the settlement of unoccupied regions

belonging to the United States, since it could certainly do neither of these things in any of the States. The provision, therefore, in the resolution of October 10, 1780, that the lands in the Western region should be 'granted or settled at such times and under such regulations" as should thereafter "be agreed on by the United States in Congress assembled, or any nine or more of them," was a concession forced, by the necessity of the case, from the anti-Imperialist party, and a yielding by them, to that extent, to the Federal-Imperialist view.

When it came to be a question of the Congress making regulations for other purposes than these, the anti-Imperialists evidently blocked the way. The disposition to be made concerning the claims of the Land Companies to portions of the Western region was forced upon the attention of Congress by petitions of these Companies, in 1779 and 1780, and the Congress, by its committee, adjudicated these claims in 1783, and reported in favor of recognizing them in part, but never made any regulation "assigning territories" to them. So in the case of Vermont, the Congress in 1784, on the application of Vermont, adjudicated, by a committee, the question both of its right to a distinct existence and of its boundaries; but, though a decision was made that it was entitled to a distinct existence and though the boundaries were ascertained, no regulation was made in execution of the adjudication. So far as the Indian tribes were concerned, the power of disposition was exercised, under the provisions of the Articles of Confederation, not through regulations made by Congress in the form of legislation, but by regulations made in the form of treaties with the tribes.

By the resolution of October 10, 1780, therefore, the power of the Union, as the Imperial State of the American Empire, over its dependencies, was declared to be the power of disposition-the dispositive power. The antiImperialist party, however, evidently fearing that such

power exercised by a popular representative body like the Congress might, in practice, come to be virtually a power of legislation with a mere pretence of previous adjudication, insisted that the power should be construed as strictly as possible against the Congress and against the Union, in so far as it included power to make rules and regulations in execution of adjudications. Though, in joining in the resolution of October 10, 1780, the antiImperialists admitted that the power of disposition, from its very definition, implied the power to make rules and regulations, they had at the same time succeeded in having the power of regulation separated from the power of disposition, so as to leave it doubtful whether the regulations which were to be made in execution of the adjudications of Congress were to be made by the Congress or made by the dependencies themselves. Since to allow the dependencies to make such regulations was practically to have no regulations made at all, the effect of the resolution of October 10, 1780, was, in fact, to give the Congress power over the Western region only for the purpose of granting the primary title to the soil and for the purpose of colonizing the region. Thenceforward, the question was whether or not the power of Congress to regulate the Western region was a limited one, so that, although it was its duty to adjudicate all matters arising between the Union and the dependencies, it had power to make rules and regulations only in a restricted class of cases,—in a word, it became a question of the extent of the regulative power of the Union over its dependencies.

TH

CHAPTER XXII

THE REGULATIVE POWER, 1783-1787

HE committee of Congress appointed to consider and report on the general policy to be pursued toward the Western region, in their report made October 14, 1783, proposed a resolution for the appointment of a committee to consider the expediency of

laying out a suitable District within the said territory and erecting it into a distinct Government," and recommended that this committee be instructed, in case they were in favor of laying out such a District,

to devise a plan for the government of the inhabitants and the administration of justice, until their number and circumstances shall entitle them to a place among the States of the Union, when they shall be at liberty to form a Constitution for themselves, not inconsistent with the republican principles which are the basis of the Constitutions of the respective States of the Union.

A plan "for the government of the inhabitants and the administration of justice" in the Western dependencies until they were admitted to the Union would have been a plan based on the mere will of Congress. The Union would have "governed" these dependencies during the whole period that they were without representation in Congress.

Elbridge Gerry, of Massachusetts, proposed an amendment to this resolution, which was adopted, and which declared it to be the intention of Congress to erect a

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District of the Western territory into a distinct Government, as soon as circumstances shall permit, and "in the interim to appoint a committee to report a plan, consistent with the principles of the Confederation for connecting with the Union, by a temporary form of government, the purchasers and inhabitants of the said District." A plan "for connecting [the District] with the Union, by a temporary form of government," was a plan based on the theory that a compact existed between the Union and the District. It was not a plan to allow the popula tions in the Western region to form their own Government and then enter into a treaty with the Union concerning the powers which it should exercise over them. The temporary form of government was itself to be of such a kind as to "connect" the dependencies with the Union, but "connection," by its very definition, necessarily implies a contractual, that is, a federal relationship.

The "circumstances" referred to in Gerry's resolution, which were to permit the devising of a plan of government, were a satisfactory cession by Virginia and the extinguishment of the Indian title. The first of these circumstances occurred on March 1, 1784, when the cession of Virginia was accepted by Congress. A committee of Congress was immediately appointed to devise a plan of government for the Western region, of which Thomas Jefferson was the chairman, and David Howell, of Rhode Island and Samuel Chase, of Maryland members. On March 11, 1784, this committee reported a resolution which, in an amended form, was adopted April 23, 1784, which became known as the Resolution of 1784 for the Government of the Northwest Territory. The Resolution, after providing that the region to be ceded by the States to the Union should be "divided into distinct States," which were described by boundaries, made the following provisions for the "temporary and