take effect on the same day as the Constitution. Thus Kentucky became, from a district of the State of Virginia, a State in the Union.

Of the proceedings above detailed, nothing can be said to impeach the substantial regularity. The three requisites thereto, described in a foregoing section, undoubtedly concurred at the time of the admission of the State into the Union. There was, however, in the earlier stages of the agitation which led to it, a degree of opposition on the part of Virginia, which, had it not been modified by other influences, would probably have flamed into actual hostilities. At the time the consent of Congress was procured to the separation of Kentucky from Virginia, the question of the location of the capital of the United States had assumed such importance that it led to combinations of interests otherwise widely opposed. By the aid of those northern members who favored the admission of Vermont, the Southern States of the Union were enabled to effect a compromise by which that State and Kentucky came in together, and the capital was located on the Potomac instead of farther north, on the Susquehanna, or the Delaware.

§ 175. While Kentucky was thus preparing herself for admission into the Union, Tennessee was undergoing an experience somewhat similar. Originally a part of North Carolina, the difficulties experienced by the latter in defending her, or even in administering government over her, led to such neglect, that early in the course of the war with England, Tennessee had set up an independent government, in defiance of the parent State, called herself the State of Frankland, elected a governor and other State officers, and prepared by arms to maintain her independent position. This rebellion was quelled, but the causes of it still operated, and finally resulted, after a series of transitions, about to be explained, in the admission of the district into the Union as the State of Tennessee.

The first act of importance in her history, after the suppression of the State of Frankland, was the passage by the legislature of North Carolina of an Act proposing, upon certain conditions, the cession to the United States of her western territory, now known as Tennessee - the motives leading to the cession being in the preamble declared to be, the repeated and earnest recommendation of Congress, made with a view to the pay

ment of the public debts and to the establishing of the harmony of the United States, and the desire of the inhabitants of such Western territory, that the cession should be made, "in order to obtain a more ample protection than they have heretofore received." Amongst the conditions of this proposed cession, the fourth, and, for our purpose, the most important, was as follows:- Provided, "That the territory so ceded shall be laid out and formed into a State or States, containing a suitable extent of territory, the inhabitants of which shall enjoy all the privileges, benefits, and advantages set forth in the Ordinance of the late Congress for the government of the western territory of the United States."1

By the same Act, the senators of the State of North Carolina, in Congress, were required to execute a deed of cession of the said territory, upon the conditions therein expressed, which was done, by a deed bearing date the 25th of February, 1790.

§ 176. A few days after the execution of the deed of cession, an Act was passed by Congress, approved April 2d, 1790, accepting the cession upon the conditions imposed.2 In May of the same year, Congress passed a second Act, for the government of the ceded territory, providing, that it should constitute a single district; that the inhabitants should enjoy all the privileges, benefits, and advantages set forth in the Ordinance of the late Congress for the government of the territory northwest of the Ohio; and that the government of said territory should be similar to that which was then exercised," &c., &c.3

It is important now to note the provisions of the "Ordinance of the late Congress," thus variously designated as passed for the government of "the Western territory of the United States," and of "the territory Northwest of the Ohio," commonly known as "the Ordinance of 1787," so far as those provisions have a bearing on the construction of the deed of cession. That Ordinance, in the 5th Article of the part of it styled "the Compact," after providing for the division of the territory, covered by it, into not less than three nor more than five States, prescribes, that "Whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its dele

11 U. S. Stat. at Large, pp. 106-109.

2 Ibid.

3 Id. p. 123.

gates, 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."

This Ordinance, though adopted before the establishment of the Federal Constitution, and so, perhaps, in effect, repealed by that Act, was afterwards expressly revived by the Congress under the new Constitution, without any changes, except merely such as were necessary to adapt it to the altered state of things.1 The right of admission into the Union, therefore, guaranteed by this Ordinance to the inhabitants of the territory northwest of the Ohio, was, by the effect of the deed of cession and of the Act of Congress accepting the same, incorporated into that deed, and became the right of the inhabitants of the Tennessee territory.

§ 177. The question whether the territory, thus ceded, should form one or more than one State, being left undecided, so that it could not be known when the contingency of there being sixty thousand free inhabitants, within the meaning of Congress, had happened, there was evidently room for a disagreement between that body and the Territory, or some portion of it, claiming admission into the Union as its right under the deed of cession. Such a disagreement actually arose, and was followed by a protracted and angry controversy, of which the effects are not entirely unfelt to this day.

§ 178. In July, 1795, the Territorial legislature of Tennessee ordered a census of the whole Territory to be taken, for the purpose of ascertaining whether there was the requisite number of inhabitants to entitle her to admission into the Union, according to the Ordinance of 1787 and the deed of cession. The Act for this purpose provided, that "if it should appear that there were sixty thousand inhabitants, counting the whole of the free

1 1 U. S. Stat. at Large, p. 50. That the adoption of the present Constitution did repeal the Ordinance, has been expressly held by the Supreme Court of the United States. Strader v. Graham, 10 How. (U. S.) R. 82.

persons, including those bound to service for a term of years, and excluding Indians not taxed, and adding three-fifths of all other persons, the Governor be authorized and requested to recommend to the people of the respective counties, to elect five persons for each county to represent them in Convention, to meet at Knoxville, at such time as he shall judge proper, for the purpose of forming a Constitution or permanent form of government." 1

The census was taken in the autumn of 1795, and the result was, that there were declared to be 77,262 inhabitants, of whom 10,613 were slaves. In November, 1795, the Governor announced this result, and, in pursuance of the Act for that purpose, called on the people to elect delegates to a Convention to frame a Constitution, to meet at Knoxville on the 11th of January, 1796. Accordingly, a Convention was elected, and met there on that day, consisting of fifty-five members, five from each of the eleven counties, and, on the 6th of February following, adopted the first Constitution of Tennessee. A copy of this Constitution was, on the 19th of the same month, forwarded by the Governor of the Territory to the President of the United States, with a notification that on the 28th of March, at which time the General Assembly of the State of Tennessee would meet to act on the Constitution, the temporary government established by the Congress would cease. This copy and notification, with accompanying documents, were received by President Washington on the 28th of February, and by him were, on the 8th of April, communicated to Congress. The claim of Tennessee to admission, based upon the provisions of the Ordinance of 1787, did not receive from that body a ready or an unquestioned assent. After an energetic discussion, however, an Act for the admission of the State was, on the 6th of May, 1796, passed by a vote of 43 to 30, and was approved by the President on the first of June following, to take effect immediately.

§ 179. The grounds of the opposition, which, in the Senate especially, was strenuous, were briefly as follows: That the compact, under which admission was claimed, was capable of two constructions: one, that so soon as sixty thousand free inhabitants should be collected within the Territory, they should be entitled to a place in the Union as an independent State; 1 Parton's Life of Andrew Jackson, Vol. I. pp. 169, 170.

the other, that Congress must first lay off the territory into one or more States, according to a just discretion, defining the same by bounds and limits; and that the admission of the States thus defined should take place as their population respectively amounted to the number of free inhabitants mentioned; that is, that the sixty thousand could not claim admission into the Union, unless they were comprised within a State whose territorial limits had been previously ascertained by an Act of Congress; that the latter construction was the preferable one, because it was conformable not only to the spirit, but to the letter of the Ordinance and deed of cession, which contemplated the erection of Tennessee into "one or more States," as Congress might determine; that the Territory of Tennessee had no other or greater rights than had the Territories northwest of the Ohio, for whom the ordinance had been expressly enacted; and it could not be pretended that the latter would be entitled to admission into the Union as one State so soon as their population should amount to sixty thousand, because the Ordinance itself divided that country into three separate and distinct States, each of which must contain sixty thousand free inhabitants before it could claim to be received; that the action of Congress upon the question now would be regarded and followed hereafter as a precedent, and hence it was of the utmost importance that no sanction should be given to any proposition which expressly or even impliedly admitted that the people inhabiting either of the territories of the United States could, at their own mere will and pleasure, and without the declared consent of Congress, erect themselves into a separate and independent State; that the provision of the Ordinance relating to the admission of new States, when there should be sixty thousand free inhabitants within their respective limits, evidently contemplated the taking of a census, and as Congress were to act upon the result of such census, it was more proper that it should be taken in pursuance of its own order than by that of a community whom interest might lead to exaggerate its numbers, and whose report, therefore, if accurate, would be received with distrust; and, finally, that there was reason to doubt the accuracy of the count taken by the territorial government, since its orders required the sheriffs of the several counties to include in their enumeration all persons within their respective limits within the period allowed