upon it; and there is every reason to believe that the people of these several Territories were as competent to establish their own governments as were the people of the thirteen original States, and that they would have done so if they had been permitted to do so.1 The writer, therefore, is unable to perceive how the power to admit a State into the Union confers upon Congress the power to govern its people before such admission. Additional light is thrown upon this question by certain proceedings in the Constitutional Convention on August 18 and 30, 1787; but before referring to them it is necessary to state that the Congress of the Confederation, on July 13 in the same year, adopted an ordinance for the government of the northwestern territory; but James Madison, in the 38th number of the " Fed eralist," asserted that this act " was done without the least color of constitutional authority "; and it is reasonable to believe that if the members of the convention had intended to continue the exercise of this power, they would have introduced into the Constitution an explicit provision to that effect, so that such future legislation as Con gress might deem proper to enact for the government of the Territories might be within instead of without its constitutional powers. Accordingly, on August 18, Mr. Madison submitted to the convention the following propositions among others : — To dispose of the unappropriated lands of the United States. To institute temporary governments for new States arising therein. These propositions were referred to the committee of detail; but before any action had been taken upon them by that com mittee, the convention, on August 30, adopted Article IV., substantially as it now reads in the Constitution. (" Elliot's Debates on the Federal Constitution," Vol. V., pages 1 This was done by the people of California, Congress having neglected to establish a government for that Territory.
439 and 497.) It will be seen, therefore, that the proposition to authorize Congress "to institute temporary governments in the new States arising in the unappropriated lands" was not accepted by the convention, which fact was equivalent to its rejection. This clearly indicates that the convention did not intend to continue the policy of governing the Territories under the Federal Constitution. Although in the deeds executed by cer tain of the thirteen original States, ceding territory to the Confederation, there were clauses granting to it the jurisdiction as well as the soil, this jurisdiction could be exer cised only in accordance with such provi sions as the Articles of Confederation con tained, or with such others as might be in corporated into the new Constitution; and the latter, as has been already shown, pro vides that Congress shall have the power to dispose of, and to regulate the territory as property only, and not to legislate for the inhabitants thereof, either as citizens or as subjects; and in regard to the territory and the jurisdiction ceded to the United States by North Carolina, on February 25, 1790, and by Georgia on April 24, 1802, and also that ceded thereto by treaties with France, Spain, Mexico, and Russia, all of which oc curred since the adoption of the Constitution, the same principle applies with equal force. There is still another provision of the Con stitution which has an importantbearing upon the question under consideration; and that is Clause 2 of Article VI., which reads as fol lows : — This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the con trary notwithstanding. It is worthy of notice that by this clause the Constitution is made supreme over the
