11 62

acceptance of the legislature become the seat of the Government of the United States, and to exercise like authority over all places purchased for the erection of forts, magazines, arsenals, dockyards, and other needful building." In the general discussion, that part of the clause relating to the seat of the gov ernment was unanimously adopted but the part which would permit the Govern ment to exercise "like authority over all places purchased by the General Government in the States" was opposed on the ground that the power "might be made use of to enslave any particular state by buying its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience of the General Government." 03 It was therefore moved to insert after the word "purchased" the words "by the consent of the legislatures of the States," and this proposal was unanimously adopted. Thus, by a process of combination of proposals, which involved consideration of the danger in permitting the Government to purchase property at will within the states, this provision came into existence in its present form. While the Federal Government acquired the exclusive right to soil and jurisdiction as to the seat of the government and as to forts, arsenals,. and the like, such right could be exercised only with the consent of the legislatures of the States.

From this history it follows also that it was the intention of the framers that the General Government was not to own land within the States except for governmental uses and that such uses did not contemplate the raising of revenue, which was provided for by the taxing power. This history also indicates that the framers did not intend that the Federal Government should become a proprietor of revenue-bearing lands within the States as a means of exercising its delegated powers, such as the power over foreign relations and national defense. In practice, we have departed from the intention of the framers as to the scope of this clause. Court decisions have sustained the power of the Federal Government to purchase land within a State without first obtaining the consent of its legislature, saying that the consent of the legislature is necessary only to transfer political jurisdiction." Court decisions have also sustained the power of the Federal Government to acquire land within a State by the exercise of eminent domain. It is significant, however, that the exercise of both such powers is limited to instances where it is necessary and proper for the exercise of a delegated function," which does not include the acquisition of revenuebearing lands in the capacity of proprietor.

ARTICLE IV, SECTION 3

At the time of the drafting of the Constitution, a public domain was in existence, and the problem concerned its ownership and treatment, as between the Federal Government and the States. The problem arose out of this background. Of the Thirteen Original Colonies, the royal grants to seven " had extensive boundaries, extending westward to the Pacific Ocean, or the South Sea, and north and south over vast conflicting areas. Certain of the Colonies also had territorial claims predicated on Indian treaties. As might be supposed, the States not having territorial claims were aware of the great inequality of power and resources that would result if the land-claiming States maintained their claims.

Delaware, in ratifying the articles through its legislature on February 23, 1779, passed a resolution stating that it considered "itself justly entitled to a

6 Ft. Leavenworth R. R. v. Lowe (114 U. S. 525, 530 (1884)). In this case the Court observed:

"It would seem to have been the opinion of the framers of the Constitution that, without the consent of the States, the new Government would not be able to acquire lands within them; and therefore it was provided that when it might require such lands for the erection of forts and other buildings for the defense of the country, or the discharge of other duties devolving upon it, and the consent of the States in which they were situated was obtained for their acquisition, such consent should carry with it political dominion and legislative authority over them. Purchase with such consent was the only mode then thought of for the acquisition by the General Government of title to lands in the States. Since the adop tion of the Constitution this view has not generally prevailed."

Kohl v. United States (91 U. S. 367 (1875)). This very fundamental change in constitutional doctrine and consequent policy of the Federal Government was justified as an incident of sovereignty which belongs to all free governments. See Hanson Lumber Co. v. United States (261 U. S. 581 (1923)); James v. Dravo Construction Co (302 U. S. 134 (1937)).

66 The seven colonies holding western lands were Massachusetts, Connecticut. New York, Pennsylvania, Virginia, North Carolina, and South Carolina. Hacker, The Shaping

of the American Tradition 211 (1947).

* * * 68

right in common with the members of the Union to that extensive tract of country which lies westward of the frontiers of the United States, the property of which was not vested in or granted to individuals at the commencement of the present war." The Congress of the Confederation ordered that this paper be filed but stipulated it should not "be considered at admitting any claim On May 21, 1779, Maryland made a similar objection, stating: "We are convinced policy and justice require that a country unsettled at the commencement of this war, claimed by the British crown and ceded to it by the Treaty of Paris, if wrested from the common enemy by the blood and treasure of the 13 States, should be considered as a common property subject to be parceled out by Congress into free, convenient, and independent governments in such manner and at such times as the wisdom of that assembly shall hereafter direct."

70

Virginia in the meantime had begun to make sales of its western lands. On October 30, 1779, the Congress passed a resolution asking all States to discontinue sales of lands in western territory during the continuance of the war." In response to this appeal and in the interest of harmony, New York proposed to turn over its western lands to the United States.

On September 6, 1780, the Congress recommended to the land-claiming States that they make liberal cessions to the United States," and on October 10, 1780, announced that such lands as the States might cede "shall be disposed of for the common benefit of the United States and be settled and formed into distinct republican States, which shall have the same rights of sovereignty, freedom, and independence, as the other States." 72 This promise of statehood was repeated with more definiteness by the Congress in 1785 and in 1787, as follows:

* * *

"Whenever any of the said States shall have 60,000 free inhabitants thereiin, such State shall be admitted, by its delegates, into the Congress of the United States, on equal footing with the original States in all respects whatever."" In response to this promise, the land-claiming State executed deeds to the Congress embracing their western lands, regarding the pledge of the Congress and its acceptance as a compact between the Congress and the States, and as a guaranty that the Congress, would not hold the land permanently but would dispose of it for the common benefit. " The Virginia cession, which is typical, purports: * to * * * make over unto the United States, in Congress assembled, for the benefit of the said States, all right, title, and claim, as well of soil as jurisdiction, which this Commonwealth hath to the territory or tract of country within the limits of the Virginia Charter, situate, lying, and being to the northwest of the river Ohio, subject to the terms and conditions contained in the before-recited act of Congress of the 13th day of September last, that is to say: Upon condition that the territory so ceded shall be laid out and formed into States * * *; and the States so formed shall be distinct republican States, and admitted members of the Federal Union, having the same rights of sovereignty, freedom, and independence as the other States." "

All but two of the cessions were accomplished before the Constitution was ratified. By the cessions and the compact arising out of them, the principle of

76

7 Papers of the Continental Congress, No. 70, folio 699 (1779).

68 13 Journals of the Continental Congress 236 (W. C. Ford ed. 1909).

14 id. at 621, 622.

70 15 Id. at 1226.

17 Journals of the Continental Congress 806 (Hunt ed. 1910).

218 id. at 915.

734 id. at 952, 954.

It is sometimes overlooked that there was no scheme for the admission of new States provided by the Articles of Confederation. Since there was no public domain at the time the Congress was framing the articles (1776-77) and none at the time they were ratified by the thirteenth State in 1781; there was no need for such a policy. The articles merely provided that Canada could be admitted, she not being one of the original 13.

After the articles were ratified and the public domain was created, an admission scheme for new States became necessary. It was established as an extralegal or political arrangement by agreement between the Congress and the States which was never followed by the Congress under the Confederation because no new State was admitted by it. If the Union had not been reorganized by the new Constitution, undoubtedly the Congress under the Confederation would have followed the policy to which it had agreed. The fact is, however, that the Congress under the Constitution inherited the policy and in most respects has followed it.

2 Federal and State Constitutions 955, 956 (Thorpe ed. 1909). See Virginia's Cession of Western Lands to the United States (Dec. 20, 1783). sec. 3.

76 See Tallman, The Public Domain, 20 Texas Law Review 55 (1941), for an enumeration of these various cessions, and generally for an excellent account of the acquisition of our Federal public domain.

federalism, established by the Revolution as applicable to the land areas embraced within the Colonies, was extended to Territories. The United States acquired its original territory-not as owner or proprietor-but as trustee, upon the condition that, as soon as practicable, the lands would be carved into States to be admitted into the Union on equal political footing.

These facts were, of course, known at the time of the Federal convention. Inasmuch as the settlement of future land disputes between the States was regarded of considerable importance, Mr. Carrol of Maryland moved that a provision be inserted for the settlement of such matters by the Supreme Court." Gouverneur Morris held this to be unnecessary, since other provisions vested the Court with the necesssary jurisdiction. However, in view of the doubtful authority of the Congress of the Confederacy to accept the land cessions from the States, it was considered necessary to provide specific authorization on the matter for the new Congress." Morris therefore proposed article IV, section 3, in its present form, which was adopted with only Maryland dissenting." Considered in this context, the scope of the power conferred upon the Congress to make needful rules and regulations respecting "territory or other property belonging to the United States," as visioned by the framers, becomes clear. The term "territory" refers to lands already ceded by the land-claiming States to the General Government. The expression "other property" refers to lands or territory that might be subsequently ceded or acquired by judicial controversy. That this is a reasonable conclusion is verified by the fact that only land claims were under discussion. It is also consistent with the position taken by Maryland. which refused to join the confederacy until the State cessions were promised. Simply stated, the provision was understood to be one for the regulation by the Congress of whatever additional property and lands might come into the possession of United States as a result of further cessions by the States and by adjudication of controversies before the Supreme Court, subject, however, to the trusteeship contemplated by the “equal footing" compact.

Eminent lawyers of the era understood it to be the law, as well as the policy of the United States, that territory so acquired should be held by the Federal Government as trustee, and created into new States when the population of the area justified it. Subsequent to the adoption of the Constitution, it was recognized that the United States had the right to acquire territory by other means. such as by treaty (purchase) conquest, or discovery. But the same concept of trusteeship was held to apply to lands obtained through these methods as applied to lands ceded by the States.1 This concept of trusteeship was considered to be of such significance that it was incorporated into the provisions of treaties such as the Louisiana Purchase of 1803, the treaty with Spain of 1819, and the Mexican

77 The particular clause offered by Mr. Carrol would have added : "Provided, nevertheless, that nothing in this constitution shall be construed to affect the claim of the United States to vacant lands ceded to them by the treaty of peace."

"This," he said, "might be understood as relating to lands not claimed by any particular states," but he had in view also some of the claims of particular states.

After some debate, in which James Wilson and James Madison said that the matter of land claims would be settled by the Supreme Court, Carrol withdrew his motion and made the following motion:

"Nothing in this constitution shall be construed to alter the claims of the United States or of the individual states in the western territory, but all such claims shall be examined into and decided upon by the Supreme Court of the United States."

Luther Martin insisted that this was necessary to eliminate all doubt as to the method of settling land claims. 2 Farrand, Records of the Federal Convention 464, 466 (1911). 78 In Scott v. Sanford (19 How. 393 (U. S. 1856)), Chief Justice Taney recognized this lack of authority. He said, "The Congress of the Confederation had no power to accept these cessions."

79 2 Farrand, op. cit., supra, note 77 at 466.

so In 1787 all of the States had not ceded their claims to territory to the United States. The cession of South Carolina was not completed until 1787; that of North Carolina until February 1790, that of Connecticut to the western reserve until 1800, and that of Georgia until 1802. Ibid.

81 "There can be no question that it was the general intention at the time that the Con stitution was adopted that all the territory then under the sovereignty of the United States and not included within the limits of any one of the then several States should ultimately be divided up and admitted as States into the Union." 1 Willoughby, The Constitutional Law of the United States, 413 (2d ed., 1929). At 414, 415 Willoughby says that Jefferson. Madison, Monroe, John Quincy Adams, Webster, Calhoun, and Clay, as well as others, sup ported this view.

81a 1 Willoughby, op. cit., supra, note 81, at 407, 426. See also Gardner. Our Right to Acquire and Hold Foreign Territory, passim; United States v. Huckabee (16 Wall. 414, 44 (U. S. 1873)).

82

83

cession of 1848, whereby the western areas were acquired. Moreover it has been unequivocably announced in a series of leading judicial decisions. In Shively v. Bowlby," the Supreme Court said briefly : "The territories acquired by Congress, whether by deed of cession from the original states, or by treaty with a foreign country, are held with the object, as soon as their population and condition justify it, of being admitted into the Union as states, upon an equal footing wih the original states in all respects;

85

* *

The same rule was held to apply to tidelands, or lands beneath navigable waters, in Weber v. Board of Harbor Commissioners. Here the Supreme Court declared:

"Although the title to the soil under the tidewaters of the bay was acquired by the United States by cession from Mexico, equally with the title of the upland, they held it only in trust for the future State. Upon the admission of California into the Union upon equal footing with the original States, absolute property in and dominion and sovereignty over all soils under the tidewaters within her limits passed to the State, with the consequent right to dispose of the title to any part of said soils in such manner as she might deem proper, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several States, the regulation of which was vested in the General Government." The development of the country has been in accordance with this principle. All Territories, other than Alaska, within our continental limits have been carved into States which have been admitted into the Union on the basis of political equality. While some Territories, such as Alaska, Hawaii, and Puerto Rico, have not yet been admitted as States, bills providing statehood for Alaska and Hawaii are presently being considered.56

It appears therefore that the Federal Government has not followed the policy of holding the vast land areas of the continent as subject Territories. On the other hand, in keeping with the theory of our federalism, and with the limitations on Federal power contained in the Constitution, with exceptions to be noted, the Federal Government, by the rapid formation of States, has recognized the limited nature of its trusteeship. It is this process which extends federalism to the

82 The treaty of 1803 for the cession of Louisiana, 8 Stat. 202, provided :

"The inhabitants of the ceded territory shall be incorporated into the Union of the United States and admitted as soon as possible according to the principles of the Federal Constitution."

The treaty of 1819 with Spain, 8 Stat. 256, provided: "The inhabitants of the Territories shall be incorporated in the Union of the United States as soon as it may be consistent with the principles of the Federal Constitution."

The treaty of 1848 with Mexico, 9 Stat. 930, provided:

be incorporated

"The Mexicans * ** in the Territories aforesaid shall # in the Union of the United States and be admitted at the proper time (to be judged by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States

1 Willoughby, op. cit., supra, note 81, at 414, says:

"In the provisions of all these several treaties there is thus to be recognized the presence of the idea in the minds of those who framed and ratified them that the Territories thus acquired were to be incorporated as integral elements in the United States and ultimately to be erected as States"

Pollard v. Hagan (3 How. 212 (U. S. 1845)); Weber v. Board of Harbor Commissioners (18 Wall. 57 (U. S. 1873)); Shively v. Bowlby (152 U. S. 1 (1893)); Knight v. United Land Ass'n (142 U. S. 161 (1891)). See Tallman, The Public Domain, 20 Texas Law Review 55, 79 (1941); Rottschaefer, Handbook on American Constitutional Law 119 (1939). Rottschaefer points out that conditions on admission may not be imposed which would place the State "in a political position in the Union inferior to that occupied by the other States"; however, agreements or restrictions with respect to control of public lands do not relate to political position, hence do not impair or offend the doctrine of "equal footing," which means political equality. The act of February 22, 1889, creating North Dakota, South Dakota, Montana, and Washington is quoted in part in 33 Harvard Law Review 410-411 (1920). It appears that as part of the terms of admission, certain areas of the nonprivate lands held as territory were granted to those States upon restrictions as to sales prices and the use of the funds. A provision is also quoted in that Review from the Constitution of North Dakota which constituted an acceptance of the grant, being in the nature of a trust. Agreements of that naure, made in connection with the admission of a State, or after admission, involve no violation of equal footing, even though they contain restrictions or because the grants and restrictions applicable to one State or group of States differ from those applicable to other States. See note 88, infra.

84 Note 83, supra.

85 Note 83, supra.

H. R. 49. being a redraft of some twelve earlier bills, providing statehood for Hawaii, passed the House of Representatives at the first session of the Eightieth Congress and is now pending for Senate consideration. H. R. 206 and H. R. 1808 providing statehood for Alaska are both pending before the Eightieth Congress, second session. S. 59, providing statehood for Puerto Rico, was introduced at the first session of the Eightieth Congress. 73335-4884

Territories and makes the Congress a nursery of States rather than the mother of domestic imperialism. In final analysis this is but an expression of the principle that the States and not the Federal Government are to be the landown.ng and land-controlling units.

FEDERAL RETENTION AND CONTROL OF SEAWARD AREAS WOULD BE CONTRARY TO OUB POLITICAL ORGANIZATION AND POLICY

Regardless of what may have been the intention of the framers, it must be recognized that the United States has held and at present holds relatively large land areas within the States. Commencing with the cessions made by the seven land-claiming States, our major territorial acquisitions consisted of the Louisana Purchase in 1803, the acquisition of Florida in 1819, the annexation of Texas in 1845, the Oregon Convention in 1846, the Mexican cession in 1848, the Gads Purchase in 1853, and the purchase of Alaska in 1867. By the middle of the nineteenth century, the United States had come into possession of over a billion and a half acres of so-called public domain.

87

As has been said, the area within the continental United States (except Alaska) has been erected into States which have been admitted into the Union on the basis of political equality with existing States. Such equality referred in to way to the size and resources of the States, since obviously no two States had natural equality in these respects. Moreover, substantial differences or inequale ties resulted from agreements between the United States and the prospective States evidenced by the terms by which such States were admitted to the Union." The extreme case on the one hand is that of Texas. As an independent Repubic Texas agreed to pay its own public debt and retained all of its nonprivate lank and their resources, ceding nothing to the United States except forts, barracks and similar defense properties. On the other hand are other States, notably the Western States, which either disclaimed all rights in nonprivate lands with their borders or agreed not to interfere with the property of the United States it such lands. In these latter cases, the United States came to be released from its original trusteeship and came to own large land areas within the States for nongovernmental purposes.

89

Even so, Federal trusteeship of a modified character was substituted. The Federal Government, in its treatment of such land areas, has recognized the

87 Lands of the Free, 18 (U. S. Department of the Interior, 1940).

88 It is not always recognized that even political equality of States was not specifically provided for in the Constitution, although it has been held to be implied by the language art. IV, sec. 3. The history of art. IV, sec. 3, in this respect is interesting. When the Federal convention turned over its 23 resolutions to the Committee of Detail from whit the first draft was made, art. XXVII would have included a provision providing "that t** States shall be admitted on the same terms as the original States." Objection was made by Gouverneur Morris in the form of a motion to delete so that Congress should not bound to admit new States upon equal terms with others. In support of the motion, Mir Langdon said he did not "know but circumstances might arise which would render it ** convenient to admit new States on terms of equality." Mr. Williams was "for leaving te Legislature free." The motion to delete was accepted and art. IV, sec. 3, came to be writes in its present form. Thus constitutional equality of States was rejected and congressi supremacy-involving the right to grant equality or inequality-was established. 2 Far rand, op. cit., supra, note 77 at 188. However it has been held that congressional supe acy does not permit Congress to provide for political inequality. 1 Willoughby, op, al supra, note 81 at 310-315. See note 89, infra.

See note 6, supra, for information as to admission of Texas. The acts providing f the admission of Utah, 28 Stat. 107 (1894), as amended, 45 Stat. 1252 (1929), and No Mexico, 36 Stat. 557 (1910), contained provisions under which the people of such Sta "forever disclaim all right and title to the unappropriated and ungranted public lat lying within their boundaries. The act of September 9, 1850, 9 Stat. 452, admitting Calefornia, provides: * the said State of California is admitted into the Union on the express cond tion that the people of said State, through their legislature or otherwise, shall never inter fere with the primary disposal of the public lands within its limits, and shall pass no l and do no act whereby the title of the United States to, and right to dispose of, the s shall be impaired. * * *"*

there:

See note 83, supra, for information as to North Dakota, South Dakota, Montana, and Washington, and Van Brocklin v. Tennessee (117 U. S. 151 (1886)) for a summary of like provisions under which other States entered the Union. See also Stearns v. Minnesota (179 U. S. 223 (1900)), establishing the validity of all such agreements. The Court said a mere agreement [between a State and the United States] in reference t property involves no question of equality of status, but only of the power of a State to with the Nation * * in reference to such property. That a State and the Na are competent to enter into an agreement of such a nature has been affirmed in past decisions of this court, and that they have been frequently made in the admission of new States, as well as subsequently thereto is a matter of history.

Id. at 245