Confederation was not binding on the government
of the United States when the Constitution was
formed. When it is borne in mind that large tracts of
this territory were reserved for distribution among
the Continental soldiers, it is impossible for me to
believe that it was ever considered that the result of
the cession was to take the Northwest Territory out
of the Union, the necessary effect of which would
have been to expatriate the very men who by their
suffering and valor had secured the liberty of their
united country. Can it be conceived that North
Carolina, after the adoption of the Constitution,
would cede to the general government the territory
south of the Ohio river, intending thereby to
expatriate those dauntless mountaineers of North
Carolina who had shed lustre upon the
Revolutionary arms by the victory of King's
mountain? And the rights bestowed by Congress
after the adoption of the Constitution, as I shall
proceed to demonstrate, were utterly incompatible
with such a theory.

 Beyond question, in one of the early laws
 enacted at the first session of the First Congress,
 the binding force of the ordinance was recognized,
 and certain of its provisions concerning the
 appointment of officers in the territory were
 amended to conform the ordinance to the new
 Constitution. 1 Stat. at L. 50, chap. 8.

 In view of this it cannot, it seems to me, be
 doubted that the United States continued to be
 composed of states and territories, all forming an
 integral part thereof and incorporated therein, as
 was the case prior to the adoption of the
 Constitution. Subsequently, the territory now
 embraced in the state of Tennessee was ceded to
 the United States by the state of North Carolina. In
 order to insure the rights of the native inhabitants, it
 was expressly stipulated that the inhabitants of the
 ceded territory should enjoy all the rights,
 privileges, benefits, and advantages set forth in the
 ordinance "of the late Congress for the
 government of the western territory of the United
 States." A condition was, however, inserted in the
 cession, that no regulation should be made by
 Congress tending to emancipate slaves. By act of
 April 2, 1790 (1 Stat. at L. 106, chap. 6) this cession
 was accepted. And at the same session, on May
 26, 1790, an act was passed for the government of
this territory, under the designation of "the territory
of the United States south of the Ohio river." 1 Stat.
at L. 123, chap. 14. This act, except as to the
prohibition which was found in the Northwest


Territory ordinance as to slavery, in express terms
declared that the inhabitants of the territory should
enjoy all the rights conferred by that ordinance.

 A government for the Mississippi territory was
 organized on April 7, 1798. 1 Stat. at L. 549, chap.
 28. The land embraced was claimed by the state of
 Georgia, and her rights were saved by the act. The
 6th section thereof provided as follows:

 "Sec. 6. And be it further enacted, That from
 and after the establishment of the said
 government, the people of the aforesaid territory
 shall be entitled to and enjoy, all and singular, the
 rights, privileges, and advantages granted to the
 people of the territory of the United States
 northwest of the river Ohio, in and by the aforesaid
 ordinance of the thirteenth day of July, in the year
 one thousand seven hundred and eighty-seven, in
 as full and ample a manner as the same are
 possessed and enjoyed by the people of the said
 last-mentioned territory."

 Thus clearly defined by boundaries, by
 common citizenship, by like guaranties, stood the
 United States when the plan of acquiring by
 purchase from France the province of Louisiana
 was conceived by President Jefferson. Naturally,
 the suggestion which arose was the power on the
 part of the government of the United States, under
 the Constitution, to incorporate into the United
 States-a Union then composed, as I have stated,
 of states and territories-a foreign province
 inhabited by an alien people, and thus make them
 partakers in the American commonwealth. Mr.
 Jefferson, not doubting the power of the United
 States to acquire, consulted Attorney General
 Lincoln as to the right by treaty to stipulate for
 incorporation. By that officer Mr. Jefferson was, in
 effect, advised that the power to incorporate, that
 is, to share the privileges and immunities of the
 people of the United States with a foreign
 population, required the consent of the people of
 the United States, and it was suggested, therefore,
 that if a treaty of cession were made containing
 such agreements it should be put in the form of a
 change of boundaries, instead of a cession, so as
 thereby to bring the territory within the United
 States. The letter of Mr. Lincoln was sent by
 President Jefferson to Mr. Gallatin, the Secretary of
the Treasury. Mr. Gallatin did not agree as to the
propriety of the expedient suggested by Mr.
Lincoln. In a letter to President Jefferson, in effect
so stating, he said: