political capacity. No coercion is applicable to such bodies, but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent state, it would involve the good and the bad, the innocent and guilty, in the same calamity. But this legal coercion singles out the guilty individual, and punishes him for breaking the laws of the Union.1 It is obvious that the Society of Nations will be confronted with problems similar to if not identical with the problems which faced the framers of the American Constitution when they set about to create a Supreme Court of the Union which they were rendering more perfect. The Convention creating the closer union of the Society, like the Constitution creating the more perfect union of American States, will need to be interpreted, and the experience of the United States shows that this can best be done by a permanent court of the union. General conventions or special treaties to which States of the Society of Nations are parties, will need to be interpreted; but, here again, the experience of the American Union, with its tribunal, should be enlightening. A court of the Society will necessarily be a court of limited jurisdiction; but, with the growth of confidence in that tribunal, its jurisdiction will be enlarged in the way pointed out by the Supreme Court itself; that is to say, by an agreement to submit to the tribunal questions hitherto considered political, questions which, by the very act of submission, become judicial. Gradually, as the result of experience, the usefulness of the court will be thus enhanced. The possibility of the substitution of law for physical force may dawn upon the statesmen of the modern world just as it dawned upon the framers of the American Union, and the conduct of nations, like the conduct of States of the American Union, be guided and eventually controlled by the principles of justice. Coercion there must be, for nations, as shown by experience, are even less inclined than individuals to brook control; but the choice is, and it is believed the choice must always be, either for the coercion of law, or for the coercion of arms. XIV THE ADMISSION OF NEW STATES No principle of general law is more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all, by the consent of all, can be divested only by consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it. (Chief Justice Marshall in The Antelope, 10 Wheaton, 66, 122, decided in 1825.) Section 13. And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory; to provide, also, for the establishment of States, and permanent government therein, and for their admission to a share in the Federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest: Section 14. It is hereby ordained and declared, by the authority aforesaid, that the following articles shall be considered as articles of compact, between the original States and the people and States in the said territory, and forever remain unalterable, unless by common consent, to wit: Article I. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship, or religious sentiments, in the said territories. Article II. The inhabitants of the said territory shall always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts, or engagements, bona fide, and without fraud previously formed. Article III. Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. Article IV. The said territory, and the States which may be formed therein, shall forever remain a part of this confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto. Article V. There shall be formed in the said territory not less than three nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession and consent to the same, shall become fixed and established as follows, to wit: . And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent constitution and State government: Provided, The constitution and government, so to be formed, shall be republican, and in conformity to the principles contained in these articles, and, so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than sixty thousand. Article VI. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted; Provided always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid. (An Ordinance for the government of the territory of the United States northwest of the river Ohio, July 13, 1787, Revised Statutes of the United States, 1878, pp. 15 -16.) Section 3. New States may be admitted by the Congress into this Union; but 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 Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. (Constitution of the United States, Article IV.) So far as this court has found occasion to advert to the effect of enabling acts as affirmative legislation affecting the power of new States after admission, there is to be found no sanction for the contention that any State may be deprived of any of the power constitutionally possessed by other States, as States, by reason of the terms in which the acts admitting them to the Union have been framed. The plain deduction from this case [Pollard's Lessee v. Hagan, 3 Howard, 212, decided in 1845] is that when a new State is admitted into the Union, it is so admitted with all of the powers of sovereignty and jurisdiction which pertain to the original States, and that such powers may not be constitutionally diminished, impaired or shorn away by any conditions, compacts or stipulations embraced in the act under which the new State came into the Union, which would not be valid and effectual if the subject of congressional legislation after admission. Has Oklahoma been admitted upon an equal footing with the original States? If she has, she by virtue of her jurisdictional sovereignty as such a State may determine for her own people the proper location of the local seat of government. She is not equal in power to them if she cannot. In Texas v. White, 7 Wall. 700, 725, Chief Justice Chase said in strong and memorable language that, "the Constitution, in all of its provisions looks to an undestructible Union, composed of indestructible States." In Lane County v. Oregon, 7 Wall. 76, he said: "The people of the United States constitute one nation, under one government, and this government, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence. The States disunited might continue to exist. Without the States in union there could be no such political body as the United States." To this we may add that the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears we may remain a free people, but the Union will not be the Union of the Constitution. (Mr. Justice Lurton in Coyle v. Smith, 221 United States Reports, 559, 570, 573, 579-580, decided in 1911.) So the Constitution operated to incorporate such of the old states as ratified it: so it did as new states have been admitted: so it must operate in future. It was a cession, by nine states, of so much of their separate power as was necessary for federal purposes, to the body politic, called the United States, the American Confederacy," Republic," 66 or "Empire"; as a term of designation, including states and territories. The constitution was the charter of this federal corporation, as those of the different states were the charters of their state corporations of government; each with power to legislate according to the terms of their respective charters, subject only to that charter which had been made supreme for its designated purposes. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 84.) CHAPTER XIV THE ADMISSION OF NEW STATES The As throwing very great light upon the views of public men at the time of the Constitution, the Act of Congress of July 13, 1787, commonly called the Northwest Ordinance,1 should receive careful attention, because it was passed at the very time when the Federal Convention was in session. Indeed some of the members of the Convention were obliged to absent themselves in order to take part in the Congress then meeting in New York. It is also important to note in this connection that the ordinance was approved by the Act of August 7, 1789, passed by the first Congress held under the Constitution, which continued it in effect. The ordinance therefore has the double advantage in its favor, of being drafted and promulgated during the session of the Federal Convention, and of being approved by the government installed under the Constitution. The purpose of the Act is stated in its title, "An Ordinance for the Government of the Territory of the United States north-west of the river Ohio," that vast tract of territory ceded to the United States March 1, 1784, by the Virginian delegates in Congress, pursuant to the authorization of the General Assembly of that great State, December 20, 1783, by which the struggling Confederation became possessed of an imperial domain, so that if Virginia can be, as it has been called, the mother of Presidents, it can, with equal propriety, be called the mother of States. The ordinance consists practically of two parts, the first of thirteen sections dealing with the organization of a government for the territory and with the details of that government; the second of six articles appended to the fourteenth section in the nature of a bill of rights, termed in the Act itself, "articles of compact, between the original states and the people and states in the said territory," and to “remain unalterable, unless by common consent." For purposes of government, this vast tract was to be considered as a single district, to be subject to future division by Congress. A governor, to reside in the district, was to be appointed by the Congress for a period. of three years "unless sooner revoked by Congress." There was to be a General Assembly or a Legislature, and there was to be a court. We thus |