January tenth, 1791, and some two months later was admitted by congress as the fourteenth state of the Union.

(2) The second request for admission came from the the western frontier counties of Virginia, now known as Kentucky. The national constitution provides,' that "no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress." Kentucky therefore in its desire to become a separate state had to secure the consent of Virginia as well as that of congress. After many preliminaries a Kentucky convention met, July twenty-sixth, 1790, which voted a separation in accordance with terms set by Virginia, and then summoned a constitutional convention. Meanwhile in February, 1791, the congress of the United States passed an act giving consent to the formation of the new state. The convention met, April, 1792, prepared a constitution and without referendum ordered it into effect, June first, 1792, on which date the new state became a member of the Union.

(3) In the same manner, at the desire of Maine, the legislature of Massachusetts in 1819 gave consent to the formation of the district of Maine into a separate state. A convention was then called in that district, and the constitution thus prepared was later approved at the polls. A petition was then presented to congress, accompanied by a copy of the constitution, asking that Maine be admitted as a state. This petition was granted and a new state thus added to the Union.

(4) The case of Texas differs from the preceding in that its territory was not under the American flag but originally

1 Article IV., Section 3.

formed a part of Mexico. In 1835 Texas declared its independence of Mexico and virtually secured it in March of the following year by the battle of San Jacinto. As an independent state under its own flag it found itself burdened with debt in an attempt to maintain a free existence on scanty resources. It, therefore, opened up negotiations with the United States and by agreement a joint resolution for annexation was passed, first by the congress1 and then by the legislature of Texas.2 Under the provisions of an enabling act Texas was authorized to call a convention, which framed a constitution, August, 1845. This was ratified at the polls in October, and some two months later Texas was formally received as a state into the Union.

(5) The case of West Virginia was in form like that of Kentucky or Maine. When Virginia seceded from the Union in 1861, the people of the western mountainous part of the state, who were opposed to slavery, refused to join in the movement and organized at Wheeling a loyal government which claimed to be the legal government of Virginia. The legislature of this government then submitted to the voters a referendum asking whether there should be organized a new state to be composed of the forty western counties. The vote being strongly affirmative, a convention was summoned which prepared and submitted a constitution. This was ratified April third, 1862. The legislature then in May gave consent to the formation of the new state and congress was petitioned to allow its admission. This consent was given, December thirty-first, on condition that a change be made in the slavery clause of the proposed constitution. This change was approved by the convention, February twelfth, and by the voters, March twenty-sixth, and on notification of this 2 July 4, 1845.

1 Signed by the President, March 1, 1845.

the President of the United States, June nineteenth, proclaimed the admission of West Virginia into the Union.

STATES FORMED FROM THE NATIONAL DOMAIN

II. The remaining thirty states were all formed from the national domain, from lands either ceded by the original states to the Union, or obtained by it from other nations through treaty, war, or purchase. Over these lands congress had jurisdiction and under the constitution might in its discretion organize from time to time suitable portions into republican forms of government,' and admit them as states into the Union. This provision has been of profound significance in our constitutional history, since congress following the precedent of the Ordinance of 1787 has definitely insisted on democratic republican forms of government, so that these thirty states were kept at the start from tendencies towards an undue conservatism.2 / The general practice has been, first, to encourage settlement by generous homestead laws and then to organize portions into territories, each having a form of government not unlike that of a state, except that an act of congress takes the place of a constitution. When a territory is considered by congress to be sufficiently populous, and in other respects also worthy of statehood, an enabling act is passed which provides for the calling of a constitutional convention, sets forth the usual conditions with which the convention must comply, and often dictates special

1 Article IV, Sections 3 and 4. For an explanation of the steps leading up to the Ordinance of 1787, see, Evolution of the American System of Forming and Admitting New States into the Union, by George H. Alden, Annals, Vol. XVIII. 3, November, 1901.

2 The changes demanded by congress in the constitution of New Mexico illustrate this, see, p. 110.

Such as acceptance of boundaries, republican form of government, etc.

conditions by requiring the insertion into the constitution of certain provisions in the form of an "irrevocable compact" between congress and the would-be state. When the constitution made by the convention has been ratified by the voters of the territory, congress may then, if all conditions have been complied with, pass an act admitting the

1 One of the most famous of these is that of Utah, which reads as follows:

ARTICLE III

ORDINANCE

The following ordinance shall be irrevocable without the consent of the United States and the people of this State:

First. Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.

Second. The people inhabiting this State do affirm and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries hereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States. The lands belonging to citizens of the United States residing without this State shall never be taxed at a higher rate than the lands belonging to residents of this State; nor shall taxes be imposed by this State on lands or property herein belonging to or which may hereafter be purchased by the United States or reserved for its use; but nothing in this ordinance shall preclude this State from taxing, as other lands are taxed, any lands owned or held by any Indian who has severed his tribal relations and has obtained from the United States or from any person, by patent or other grant, a title thereto, save and except such lands as have been or may be granted to any Indian or Indians under any act of Congress containing a provision exempting the land thus granted from taxation, which lastmentioned lands shall be exempt from taxation so long, and to such extent, as is or may be provided in the act of Congress granting the same.

Third. All debts and liabilities of the Territory of Utah, incurred by authority of the legislative assembly thereof, are hereby assumed and shall be paid by this State.

Fourth. The legislature shall make laws for the establishment and maintenance of a system of public schools, which shall be open to all the children of the State and be free from sectarian control.

territory as a state in the Union; or, in case of prospective adjournment before final action in the territory has been taken, it may authorize the president to proclaim the admission of the state, when he is satisfied that all requirements have been fully met.

Some of the territories, unwilling to await the slower action of congress, have endeavored to hasten the process by preparing constitutions on their own responsibility and demanding from congress as their right, recognition as states. Such rights in general have been based on the wording of the Ordinance of 1787, or the constitution itself, or on some treaty provision in the case of lands ceded by France, Spain and Mexico. Whatever basis in right any particular territory might have had, congress admittedly has full discretionary powers and legally need admit no territory as a state except when and how it wills. In the case of some of these territories congress has good-naturedly admitted them on request, when accompanied by a proper constitution, but in other cases conflicting interests or reasons of policy dictated a refusal and compelled delay.2

FIVE PERIODS OF DEVELOPMENT

In concluding these explanations preliminary to the study of the growth of state constitutions from 1776, it may be said that there are five natural periods of constitutional development, each of which will now briefly be described and then elaborated more in detail in later chapters.

(1) In the first or revolutionary period, ending with the election of Jefferson in 1800, the thirteen colonies declared

1 For example: Tennessee, Arkansas, Michigan, Florida, Iowa, Wiscon

sin, California, Oregon, Kansas, Nevada, Nebraska, Colorado.

2 Typical illustrations of the details of such actions may be found summarized in Jameson's Constitutional Conventions, pp. 175-208.