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.

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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

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 populations 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.

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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

permanent Government" to be established in the ceded region:

The settlers within the territory so to be purchased [from the Indians] and offered for sale shall, either on their own petition or on the order of Congress, receive authority from them, with appointments of time and place, for their free males of full age to meet together for the purpose of establishing a temporary Government, to adopt the Constitution and laws of any of these States, so that such laws, nevertheless, shall be subject to alteration by their ordinary Legislature, and to erect, subject to like alteration, counties or townships for the election of members for their Legislature.

Such temporary Government shall only continue in force in any State until it shall have acquired twenty thousand free inhabitants, when, giving due proof thereof to Congress, they shall receive from them authority, with appointments of time and place, to call a convention of representatives to establish a permanent Constitution and Government for themselves; Provided, That both the temporary and permanent Governments be established on these principles as their basis:

First: That they shall forever remain a part of this Confederacy of the United States of America.

Second: That they shall be subject to the Articles of Confederation in all those cases in which the original States shall be so subject, and to all the acts and ordinances of the United States in Congress assembled, conformable thereto.

Third: That they in no case shall interfere with the primary disposal of the soil by the United States in Congress assembled, nor with the ordinances and regulations which Congress may find necessary for securing the title in such soil to bona fide purchasers.

Fourth: That they shall be subject to pay a part of the Federal debts contracted or to be contracted, to be apportioned on them by Congress, according to the same common rule and measure by which apportionment thereof shall be made on the other States.

Fifth: That no tax shall be imposed on lands the property of the United States.

Sixth: That the respective Governments shall be republican. Seventh: That the lands of non-resident proprietors shall in no case be taxed higher than those of residents within any new States, before the admission thereof to a vote by its delegates in Congress.

The Plan provided that each of the new States in the ceded region, under both the temporary and permanent Government, was to be connected with the Union through the medium of a delegate in Congress, who was to have the right to debate, but not to vote. Such a delegate corresponded almost exactly to the Colonial Agent which each of the American Colonies, prior to the Revolution, had sent to the British Court, to represent the Colony diplomatically before the King in Council. The Congress thus recognized itself as the Sovereign of the American Union, at whose Court the dependent States in the Western region were entitled to have diplomatic representatives.

The following clause was inserted at the end of the Resolution:

The preceding Articles shall be formed into a Charter of Compact, shall be duly executed by the President of the United States in Congress assembled, under his hand and the seal of the United States, shall be promulgated, and shall stand as Fundamental Constitutions between the thirteen original States, and those now newly described, unalterable but by the general consent of the United States in Congress assembled, and of the particular State within which such alteration is proposed to be made.

Had a plan of government for the Western region been adopted, according to which all the provisions were made a "Charter of Compact" between the Confederation and