nances of the United States conformable thereto." To "forever remain a part of this Confederacy" meant that they were to be either "parcel of the Realm in tenure" or "parcel of the body of the Realm," to use the old distinction used in Calvin's Case, to which reference is evidently made-that is, that they were forever to remain either in the position of dependencies of the Union or of States admitted into the Union by representation in its Central Government, and were not to have the right of secession either from the Federal Empire or from the Federal State. This was unnecessary, since the power of the Confederation was recognized as being a power of disposition. Still it was an important matter and proper to be made the subject of an express contract.

The fourth Article also provided that the District should be subject to pay its proportional part of the federal debts and of the current expenses of the whole Government. An Imperial State exercising the power of disposition might properly have imposed this obligation upon a dependency situated as was the District, but it was a matter about which disputes might arise and hence properly settled by express contract. The same may be said of the provisions of the fourth Article according to which the proprietary title of the Confederation to the soil of the unappropriated parts of the District was to be recognized by the District, by which this land was to be free from taxes, by which non-residents were not to be taxed higher than residents, and by which the navigable rivers in the District were declared to be free and common highways. These were questions about which a difference of opinion was possible and hence properly the subject of an express contract.

The fifth Article recognized the obligation of the United States under the resolution of October 10, 1780, to lay out the Western region into distinct republican States and to admit them into the Union on equal

terms. Such contractual obligations would of course be recognized by any State or tribunal exercising dispositive power, but it was advisable to formally recognize a direct obligation existing between the Confederation and the District by means of a document evidencing the contract.

Incidentally it may be noticed that this Article finally solved the problem raised by the provision of the resolution of October 10, 1780, which required that the new States in the Western region should be not less than one hundred nor more than one hundred and fifty miles square. It provided that not less than three nor more than five States should be laid out in the region, but made this provision conditional on the consent of Virginia, which had made its cession conditional on the fulfilment by the Union of the resolution of October 10, 1780; and Virginia subsequently consented to this change. The sixth Article forbade slavery in the District. An Imperial State exercising a power of disposition would not have been likely to permit slavery in a region situated as was the Northwest Territory. Still, considering the violence of the dispute on the subject, it was eminently proper to take advantage of the power of the Confederation to enter into express contracts with its dependencies and thus settle the question.

The Ordinance was thus a compromise between the Resolution of 1784 and the Ordinance as reported in 1786 and again on April 26, 1787. The former had pushed the principle that the relationship between the Confederation and its dependencies was a relationship founded on compact to an absurdity, by assuming that the relationship could not exist except as the result of an express contract. The Ordinance as reported in 1786 and on April 26, 1787, had left it doubtful whether the relationship was founded on compact at all. The Ordinance as finally adopted proceeded on the theory that the rela

tionship was wholly founded on an implied contract, but that the Imperial State and any dependency might, by an express contract, reduce the conditions, in any respects they saw fit, to writing and agree that in these respects no change should be made except by mutual consent, the dispositive power of the Imperial State remaining unchanged as respects matters not reduced to the form of express contract.

It has been shown that the Ordinance as adopted recognized, first, that the power of the Confederation was a power of disposition, whether its action was constructive and positive or destructive and negative, and, secondly, that the power of disposition implied the power to contract with a dependency. The Ordinance had, however, another very important effect,-it recognized that the power of the Confederation over the dependencies was plenary that it was a power to dispose of them “in all cases whatsoever," and to regulate them accordingly. None of the provisions relating to the form of government of the dependencies in the Western region, or to the powers to be exercised by the Union over these dependencies until their admission into the Union as States on equal terms were incorporated in the Articles of Compact. They were all in the part of the Ordinance which was a regulation made under the power of disposition. These provisions were, of course, subject to modification or rescission by Congress at any time. Congress, by thus carefully leaving these provisions out of the Articles of Compact, in effect declared that the powers of the Confederation over the dependencies, being powers of disposition based on an implied contract, were in the nature of things limited only by the necessity of each case, and that the Confederation had the right to finally determine what the necessity in each case demanded, subject to any express contract of the Union relating to the manner of disposition. Where the Union, by express contract, had

obligated itself to exercise its powers of disposition in a certain manner, necessity of course demanded that in its regulations it should act in this manner. The plenary nature of the regulative power which was implied in the dispositive power was thus declared. The Union was declared to have power to make necessary or needful rules and regulations in all cases whatsoever.

The Ordinance, therefore, settled the question concerning the character and extent of the regulative power of the Union over its dependencies. It recognized the Union as having power to make rules and regulations in execution of and necessarily incidental to its power of disposition in all cases whatsoever, subject to all express contracts of the Union with foreign States, with the States of the Union, or with the dependencies of the Union-that is, as a power to make all needful rules and regulations respecting the dependencies.

ΤΗ

CHAPTER XXIII

THE IMPERIAL POWER, 1787

HE first resolution adopted by the Convention for framing the Constitution of the United States, which was the basis of all its subsequent action, read, according to the report of Madison, in his Journal of the Federal Convention, as follows:

Resolved: That a National Government ought to be established, consisting of a Supreme Legislative, Executive, and Judiciary.

If the American Confederation was to be reorganized so as to be a true "Nation "—that is, a State-with a Chief Executive, it was plainly necessary, if traditions were to be observed, that the Executive should administer the dependencies of the State under the superintendence of the Legislature. The power of disposition was a power neither strictly executive nor legislative, but which more closely resembled the executive than the legislative power, since it was essentially judicative in its character. Still, though the American Colonies, during their contest with Great Britain, had uniformly insisted that the political connection between them and the State of Great Britain was through the Executive of Great Britain, who was ex officio the Disposer of the Empire, the antiImperialists had never succeeded in committing the Colonies to the proposition that the Legislature of Great Britain had no power in the Empire. Dickinson had prevented the adoption of the statement to this effect in