Federal Colonies
With the cession of western "wastelands" to the federal United States, in Congress Assembled, not only proprietorship, but the dimension of territorial sovereignty were seemingly added to the character of the United States. In its relationship to the original States, the federal Congress continued as a federal league to which agency for certain limited sovereign functions had been delegated. The States fully retained their "territorial sovereignty." In its relationship to the "territories," (lands where jurisdiction had been ceded by the States,) the federal United States theoretically stood as sovereign, although there were doubts as to its capacity to hold such sovereignty.
As stated in Blackstone's Commentaries, "View of the Constitution of the United States," as annotated by St. George Tucker, William Young Birch and Abraham Small, c1803:
"...The eventual establishment of new states, within the limits of the territory of the United States, seems to have been overlooked by the compilers of that instrument. The inconvenience of this omission had been felt, and congress were, perhaps, led into an assumption of power not strictly warranted by the confederation; in the establishment of a government north-west of the Ohio." (Sec.3.)
In 1783, Congress formed a committee to "prepare a plan for the temporary government of the western territory." Thomas Jefferson, chairman of the committee, delivered a report in March 1784 proposing the division of the land into ten territories. Initial plans were to allow resident settlers to hold a convention to temporarily adopt any one of the existing State's constitutions; alterable by a subsequently established elected Assembly. When the population equaled any one of the existing States, the settlers could petition Congress for a convention to establish a permanent constitution and admission into the Confederacy on an "equal footing" with the rest of the States. (Various drafts and versions of plans can be viewed at the Library on Congress online - "Documents from the Continental Congress.")
The final version of the 1784 Northwest Ordinance essentially followed the pattern of the former Royal Colonies. It provided for a Governor, appointed by the Congress; judges, appointed by Congress; a Council, appointed by the Congress; and an elected General Assembly. The Governor had power to call or dissolve the legislature and his approval was required for the passage of any law. When the population reached 20,000, a convention could be called, on a date set by Congress, to establish a permanent State constitution. The new State would then be admitted on "an equal footing" with "the original States." This ordinance was repealed before implemented.
Congressman David Howell of Rhode Island complained that America's new western territories were "the most complicated and embarrassing Subject before Congress since peace has taken place."
The May 20, 1785 "Northwest Land Ordinance" established only the mode of surveying and disposing of the federally owned lands within the territories. All springs and mines were to be noted in official surveys. The Ordinance asserted a reservation in any sale of "one-third part of all gold, silver, copper or lead mines, to be sold or disposed of as Congress should afterwards direct." This Ordinance was supplemented on July 9, 1788; adjusting details in respect to surveying, military warrants and allocation of proceeds, but leaving the mineral reservations unaltered.)
Finally, on July 13, 1787, "The Northwest Ordinance" was passed, replacing the 1784 Ordinance by repeal and providing for the temporary government of the territories (or "districts.") The 1787 Ordinance included many of the provisions of the prior ordinance, including a Governor, Council and Judges appointed by the federal Congress. The Ordinance provided for a locally elected House of Representatives that, together with the Council, formed the legislature. However, the Governor's approval was required for all new legislation and he could call or dissolve the legislature.
[Later, after adoption of the Constitution, the president, with Senatorial consent, replaced the Congress in the appointment of officers to the new Territories.
"By the act of 1 Cong. c. 8, the president of the United States is authorised to nominate, and by and with the advice and consent of the senate, to appoint all officers, which, by that ordinance were to have been appointed by congress, under the confederation." (Tucker's Blackstone's Commentaries, Section 9.)]
A new feature of the Ordinance was that whenever a population of 60,000 free inhabitants had been achieved in the territory, it automatically qualified for admittance to the Confederacy on an "equal footing with the original States in all respects whatever," and could then establish its own permanent republican constitution and internal government.
"...whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent constitution and State government: Provided, the constitution and government so to be formed, shall be republican, and in conformity to the principles contained in these articles; and, so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than sixty thousand."
Within the Ordinance, six articles, were to be considered as articles of compact between the original states, and the people and states of the said territory, and to remain unalterable, unless by common consent. These included guarantees for certain individual and common rights; establishment of certain responsibilities and prohibitions.
In 1787, South Carolina ceded a 3.1 million acre narrow strip to Congress.
