Statehood and How It Was Achieved

STATEHOOD AND HOW IT WAS ACHIEVED, BY HON. WM. H. KING, UTAH'S REPRESENTATIVE IN CONGRESS. I. A proper treatment of the subject requires a brief discussion of the Constitution of the United States so far as it affects the admission of states, and the relation of states to the union. In speaking of statehood and how it was achieved, of necessity the national sphere entered upon, as well as the authority by which a dependency is transformed into a sovereign and indestructible state, must be considered. The birth of a state is an event not only important to persons dwelling within its borders, but also to those residing in every part of the union. The status of the former is changed and new relations and obligations are created, which raise all persons to an equal participation in the advantages and immunities enjoyed by those residing in the strongest and oldest of the commonwealths comprising the federal union. The states are so correlated, and by the terms of the Constitution bear such an inter-relation one to the other, that the formation of a new one not only is of interest to, but affects all the others. History furnished no prototype to aid the fathers in the formation of that unique aud masterful system of government which, while it presents an imperial and national front and is vested with authority to deal with national and international affairs, yet possesses that local governmental and sovereign strength that protects the individual and insures domestic security. History was to them the serial obituary of

STATEHOOD AND HOW IT WAS ACHIEVED. 27 men who had struggled, oftentimes heroically, for the overthrow of tyrannies and the establishment of governments crowned with like sovereignty as those constituting the union. Under our system of government Utah, the youngest of the states, put aside the vestments of pupilage and territorial vassalage and quietly stepped upon the broad plane occupied by the forty-five commonwealths, and so instanti became vested with the same authority and the possessor of the same rights enjoyed and exercised by the greatest of the states. To see carved from a mighty empire of territory, a vast domain, and without contest or friction a government established and inter-related with others and yet possessing an independence which makes it the guardian of the domestic security and happiness of the individual, and that this could be done peacefully and without revolution, would have been regarded as Utopian before this government was formed, and is a prophecy of the wisdom of our fathers and the integrity of the Constitution which, under God, they devised. The authors of the federal constitution were mariners upon an unexplored sea. It is true in the Achean and Lycean Leagues, and perhaps in the Hanseatic League, as well as the Swiss cantons, which were merely alliances, and the United Netherlands, which were only an assemblage of states, examples were found from the wrecks of which some flotsam and jetsam might be obtained; but the schismatic, and indeed chaotic, careers they led, supplemented by their downfall, afforded but little light, and could not be the basis of any profound faith to those who were building for the ages liberty's immortal temple. Nor must we forget the further difficulties these experimental government builders encountered; apparently insurmountable' obstacles to national unity were occasioned by the almost irreconcilable differences between the thirteen states, and also the jealousies which were not forgotten nor fully silenced in the hour of great peril. Hamilton, who so earnestly labored for the adoption of the Constitution, was apprehensive of the result. He stated that "The establishment of a Constitution in time of profound peace by the voluntary consent of the whole people

28 IMPROVEMENT ERA. is a prodigy to the completion of which I look forward with trembling anxiety." The weakness of the thirteen states against foreign aggression, as well as the dangers menacing them from internecine strife, was apparent to the statesmen of the revolution. Without union they perceived that the contest with England would result in their destruction, and that if independence by union were achieved, only by establishing a more perfect union could that independence be preserved. Early in the year 1776 Thomas Paine wrote: "Nothing but a continental form of government can keep the peace of the continent." Later on he said: "We have every opportunity and every encouragement to form the noblest, purest Constitution on the face of the earth." And the great Wilson, whose philosophic mind contributed so much to constitutional government, said: "By adopting this Constitution we shall become a union. We are not now one. We shall form a national character; we are now too dependent upon others." It was an auspicious occasion for the establishment of a new form of government. The great Frederick, with a lofty cynicism had recently proclaimed the inability of people for self-government, and had declared for the perpetuity of imperialism. His views were shared by the rulers and leaders of Europe. The spirit of democracy seemed to be crushed and the fires of liberty extinguished. However, the hour for liberty was ripe and the task was essayed of founding a government in which the balances were to be adjusted which would give national unity and local independence. Those engaging in this labor recognized, as Bancroft says, "the supremacy of the general government in its sphere," and also regarded the states as "the parents, the protectors and the stay of the union. The union without self-existent states is a harp without strings; the states without union are chords that are unstrung. The states as they give life to the union are necessary to the continuation of that life. Within their own limits they are the guardians of industry, of property, of personal rights and of liberty. * * * The states and the United States are not antagonists, and the system can have life and health and strength and beauty only by their har

monious action." Both the sentimental and the rational application of the doctrine of laissez /aire were sought in the formation of the Constitution and in the organic law of the states. While it is true the despotism of the old world produced more or less a revolutionary spirit in the new, and the school of philosophy led by Rosseau had influenced the political philosophy of the American people, there was more than a sentimental regard for individual liberty and local self-government. Domestic tranquility, security of life, person and property and, above all, liberty of thought and speech and of conscience, were sought in the enforcement of the rationalistic interpretation of the principle of governmental noninterference. While, as stated, the past furnished no prototype, still some of the thirteen states had adopted, prior to the formation of the Federal Constitution, state constitutions in which the tripartite division into executive, legislative and judicial power had been made. That noble work, The Spirit of Laws, written by Montesquieu and published at Geneva forty years before, had pointed out the evils of despotic governments and the necessity of having checks and balances established by a division of the authority and power of government, in order to preserve a proper equilibrium and promote freedom. And the tripartite division suggested by him undoubtedly influenced the framers of the federal and state constitutions. Virginia, under the guidance of Patrick Henry, adopted a constitution in which the powers of government were properly classified and the limitations upon the executive, legislative, and judicial departments clearly prescribed. Madison and Adams, and most of those engaged in framing the Constitution, contended that this tripartite division of power was indispensably necessary to the formation of a government wherein liberty could be preserved and the functions of all parts of the system properly respected and utilized. The articles of confederation had proven defective; the centripetal and centrifugal forces had not been properly adjusted. To preserve the independence of the states and enable them to retain control over the citizen in all domestic concerns, and

30 IMPROVEMENT ERA. at the same time unite discordant sovereignties for national purposes and so adjust the relations of all as to produce a harmonious system of local and national government, was a work the consummation of which must ever be regarded as the perfection of statesmanship and the result of divine interposition. "The American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man." This eulogy by Mr. Gladstone is not undeserved. Let us now examine whether this instrument, under which statehood was obtained, is applicable to us. It has been argued that the builders of the Constitution contemplated the formation of a federal government limited in area to the thirteen states and such as might be formed from the domain ceded by them. By some it has been contended that a government constituted as ours is could only exist where the local sovereignties or states were limited in number; that the creation of others would tend to disturb the equipoise of the federal and state governments and lead inevitably to a dissolution of the union by a withdrawal of the states therefrom; or that the difficulties would be so great of exercising legitimate and proper federal control over states at a remote distance, and especially where divergent interests and views, produced by climatic or industrial conditions, existed, that the parent government would gradually increase its power until the dual form of government would be extinguished and the states be lost in the absolutism of the United States. Eminent men, predicating their conclusions upon the history of Greece and Switzerland, had stated that democracy could only exist in small and compact territories; that vast domains could be governed only by the concentration of great power in one or few persons. That this view was shared by some who were truly patriotic and devoted to the interests of the American people cannot be denied. However, we learn that there were many noble men, such as Wilson and John Adams, who regarded most, if not all, of North America, as the patrimony of the Republic and the ultimate home of millions, happy in the liberty afforded by

STATEHOOD AND HOW IT WAS ACHIEVED. 31 the state and secure in the strength given by the federal government. Philip Freneau, the poet of the revolution, predicted the territorial expansion of the Republic in these words:

• • • • "I see Freedom's established reign, cities and men, Numerous as the sands upon the ocean's shore, And empires rising where the sun descends! The Ohio soon shall glide by many a town Of note; and where the Mississippi's stream By forests shaded, now runs sweeping on, Nations shall grow, and states—not less in fame Than Greece and Rome of old. We, too, shall boast Our Scipios, Solons, Catos, sages, chiefs, That in the lap of time yet dormant lie, Waiting the joyous hour of life and light." It will be remembered that at the time of the adoption of the Constitution the United States did not extend west of the Mississippi river, and a portion of the territory lying east of it was not embraced within the union. At various times it has been vehemently argued both in and out of congress, that the authority of congress to admit new states into the union was confined to such as might be formed from the territory belonging to the states or the federal government at the time of the latter's creation. Section 3 of Article IV of the Constitution provides that: "New states may be admitted by the congress into the union, but no new states 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 legislature of the states concerned, as well as of the congress." Under this provision there can be no question as to the power of congress to admit new states carved out of the territory which the federal government acquired at the time of its organization, but as stated, it was contended by great political parties that neither this provision nor any other of the Constitution, conferred authority for the acquisition, either by conquest or purchase or otherwise, of any other territory, and when Jefferson obtained from Napoleon, in 1803, that

32 IMPROVEMENT ERA. great empire known as the Louisiana purchase, he entertained doubts as to the constitutionality of the act and urged the adoption of an amendment to the Constitution authorizing the purchase. Webster expressed doubts as to the power of congress to admit the republic of Texas as a state, because it never had been under the jurisdiction of the United States Government either de facto or de jure—thus, apparently, making a distinction between vesting a people and country, not a part of the national domain,with the attributes of statehood, and the admission of territory possessed by the United States Government. Chief Justice Marshall in the case of the American Insurance Co. vs Canter, (i Beter's Reports, page 546), speaking of the right of congress to legislate for a territory said: "The right to govern may be the inevitable consequence of the right to acquire territory." It would seem from this that the court conceded to the federal government the same right claimed by nations from the earliest times, namely: to acquire territory, either by subjugation or purchase. Aside from the ethical phase of the question, publicists and law writers have deemed it to be an attribute of sovereignty to acquire territory and govern it and its people. It would seem, however, that the federal government, being one of delegated powers and "the powers not delegated to the United States by the Constitution nor prohibited by it to the states," having been "reserved to the states respectively, or to the people," could not acquire territory unless the authority was conferred, and its exercise would be an act of usurpation. But whether the power exists or not, it has been repeatedly exercised. In the recent congress measures were introduced looking to the absorption by the United States of the Hawaiian Republic. Florida was obtained from Spain; Texas, after obtaining its independence from Mexico, was admitted; the treaty of Guadaloupe Hidalgo gave to the United States that vast area from which were organized the states of California, Nevada and Utah, and which also contributed to Wyoming and Colorado and largely to New Mexico and Arizona. Later, further land was acquired from Mexico by the Gadsden purchase, and in 1867 the inhospitable but valuable territory of Alaska was pur

chased from the Russian government. Thus the right of the federal government to acquire territory is firmly established. Whether territorial expansion beyond the present limits of the United States, as a permanent national policy, is the part of wisdom, may be open to question; but no one has ground for objection to the policy that has given us a country swept by two mighty oceans and washed by the great lakes on the north and the waters of the gulf on the south.