only upon and through the authorities of the several States, and even as to them the Congress was without capacity for coërcion; while as to the citizens and inhabitants of the respective States the Congress had no power to control them in any particular whatever. These conclusions are the only reasonable conclusions which can be drawn from the Articles of Confederation.

THE

CHAPTER III.

ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY OF THE UNITED STATES NORTHWEST OF THE RIVER OHIO.

§ 50. When the Confederation of 1777 was formed several of the States claimed jurisdiction over and property in the territory west of the State lines. By deeds of cession those rights or claims were transferred to the United States, and on the 13th day of July, 1787, Congress adopted the ordinance for the government of so much of the territory as was situated northwest of the river Ohio.

§ 51. Although the title to the territory was derived in part from slave States, and conspicuously from the States of Maryland and Virginia, there was general and harmonious concurrence in the important provision of the ordinance which declared that there should 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." (Art. VI.)

§ 52. By repeated decisions the Supreme Court has held that the stipulations and terms of the ordinance remained in force after the adoption of the Constitution, unless a conflict should appear, and in such a case the ordinance would yield to the Constitution. As the article in regard to slavery was not controlled by the Constitution, the exclusion of slavery became the supreme and continuing law of the territories and States that were organized in the vast region covered by the ordinance of 1787, and it may be assumed, fairly, that the character and power of those States made possible the extermination of the institution of slavery in all parts of the country. The parties to the ordinance of 1787 may have

builded better than they knew, but their work is one of the four great acts or events in the history of the Republic; The Declaration of Independence, the Ordinance of 1787, the Constitution and the Amendment abolishing the institution of slavery.

§ 53. By the 14th section of the ordinance it was provided that the six articles, of which that relating to slavery was the most important, should "be considered as articles of compact between the original States and the people and States in the said territory" and to "remain unalterable, unless by common consent."

§ 54. The Supreme Court has held, and without controversy, that the organization of States within the territory, and their admission into the Union, were acts of the parties to the original contract by which the Constitution of the United States and the constitutions of the respective States were substituted in law and in fact for the stipulations contained in the ordinance. A full statement of the reasons on which the decision of the court was made to rest may be read in the opinion of Chief Justice Taney in the case of Strader v. Graham (10 How. 82).

§ 55. By the terms of the ordinance the inhabitants of the territory were secured in their religious opinions and modes of worship, trial by jury, the privilege of the writ of habeas corpus, and due process of law in all civil and criminal cases were guaranteed.

§ 56. The inhabitants were enjoined to maintain public schools as promotive of religion and morality, and as essential to good government. They were required "to preserve the utmost good faith towards the Indians" and the explicit declaration was made that "their land and property should never be taken from them without their consent," that there should be no invasion of their rights, property or liberties, and, finally, that no war should be made upon them without the authority of Congress.

Rules were given for the descent of the property of

intestates and the transmission of estates by will was authorized.

§ 57. The important offices in the territory were limited to freeholders, the leading features of a territorial government were specified and provision was made for the creation of three States. The ordinance, as a whole, was a scheme and a most liberal scheme of free government. The importance of the controversy over slavery, and the consequent importance of the inhibition contained in the ordinance of 1787, have tended to the neglect of the otherwise just and humane features of a system which then occupied and which now occupies historically a position midway between the Confederacy of 1777 and the Constitution of 1789.

CHAPTER IV.

THE PREAMBLE TO THE CONSTITUTION.

§ 58. When the Convention of 1787 assembled there was a general agreement in the opinion that the Confederacy of 1777 had failed as a frame of government, and that the absence of power to act by and through its own appointed and responsible agencies was the apparent defect of the system. The Confederacy was a league between the States; but the leading members of the Convention did not realize at the outset that that feature of the Confederation was the cause of its failure.

§ 59. Mr. Randolph proposed to enlarge and correct the Articles of Confederation so that the objects contemplated might be accomplished.1 Again he proposed to so extend the powers of the Congress as that a negligent or recusant State might be compelled to perform its obligations.2 These propositions contemplated the continuance of the league with increased powers in the hands of the general government.

§ 60. A national judiciary was a feature of Mr. Randolph's plan and in connection with the Executive it was to be clothed with power to revise the acts of the Legislative Department.

§ 61. The plan submitted by Mr. Charles Pinckney was more elaborate and more minute in its details, but it recognized the States in their sovereignty as States, as the basis of the National Government.

The Preamble opens thus: "We the people of the States of New Hampshire, Massachusetts," etc., etc., "do ordain, declare, and establish the following constitution for the government of ourselves and posterity." 3

1 Madison Papers, p. 731.

2 Same, p. 732.

3 Same, p. 735.