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There being no judicial decision of this point, the individual opinions of the judges are severally entitled to the weight due to the intrinsic strength of reasoning of each, and to the legal eminence of a Taney, a Campbell, a Grier, a Catron, a Wayne, or a Daniel. Without derogating from the respect due to the high office of the learned judges, we shall endeavor to show that the weight of argument and authority clearly preponderates against their conclusion. And we shall derive much assistance in this attempt, from the opinions previously expressed by themselves and their predecessors, as well as from the practical construction of the powers of congress, as acted on by the other departments of the government, from the adoption of the Constitution to the present time.
In order to understand this question, it will be necessary to give a brief historical sketch of the manner in which the United States have acquired and held those extensive domains which have always been known as the Territories of the United States. At the close of the Revolutionary War, there remained within the limits of the United States, and west of the old thirteen States, large tracts of unsettled lands. These lands had been the subject of much anxiety and discussion; the claims of several of the States to portions of them were conflicting, on the one hand; and on the other, it was urged, in behalf of the general government, that they ought to be considered as common property, conquered from the Crown of Great Britain by the efforts of all the States, and should be under the control of congress, to be applied as a common fund to the extinguishment of the war debt, and to be prepared for settlement and subsequent admission into the Union, as States. These last opinions, adopted by many of the most patriotic and influential men of the time, were beginning to prevail, and had before 1787 led to cessions by the States of New York, Virginia, Massachusetts, Connecticut, and South Carolina. In that year the congress of the Confederation provided for the government of the principal part of the lands thus ceded, by the celebrated "Ordinance for the government of the Territory of the United States northwest of the river Ohio." This act, besides providing for a government of the Territory, complete in all departments, executive, legislative, and judicial, and establishing rules for the descent, distribution, and conveyance of property, contains six fundamental articles, providing for the eventual division of the Territory into distinct republican States, to be admitted "into the con-
