This statement that _some_
territory did actually pass by this cession, is taken from the opinion
of the court, delivered by Mr. Justice Wayne, in the case of Howard
_v._ Ingersoll, reported in 13 How., 405. It is an obscure matter,
and, on some examination of it, I have been led to doubt whether any
territory actually passed by this cession. But as the fact is not
important to the argument, I have not thought it necessary further to
investigate it.]

It must be remembered also, as has been already stated, that not only
was there a confident expectation entertained by the other States,
that North Carolina and Georgia would complete the plan already so far
executed by New York, Virginia, Massachusetts, Connecticut, and South
Carolina, but that the opinion was in no small degree prevalent, that
the just title to this "back country," as it was termed, had vested in
the United States by the treaty of peace, and could not rightfully be
claimed by any individual State.

There is another consideration applicable to this part of the subject,
and entitled, in my judgment, to great weight.

The Congress of the Confederation had assumed the power not only to
dispose of the lands ceded, but to institute Governments and make laws
for their inhabitants. In other words, they had proceeded to act under
the cession, which, as we have seen, was as well of the jurisdiction
as of the soil. This ordinance was passed on the 13th of July, 1787.
The Convention for framing the Constitution was then in session at
Philadelphia. The proof is direct and decisive, that it was known to
the Convention.[6] It is equally clear that it was admitted and
understood not to be within the legitimate powers of the Confederation
to pass this ordinance. (Jefferson's Works, vol. 9, pp. 251, 276;
Federalist, Nos. 38, 43.)

[Footnote 6: It was published in a newspaper at Philadelphia, in May,
and a copy of it was sent by R.H. Lee to Gen. Washington, on the 15th
of July. (See p. 261, Cor. of Am. Rev., vol. 4, and Writings of
Washington, vol. 9, p. 174.)]

The importance of conferring on the new Government regular powers
commensurate with the objects to be attained, and thus avoiding the
alternative of a failure to execute the trust assumed by the
acceptance of the cessions made and expected, or its execution by
usurpation, could scarcely fail to be perceived. That it was in fact
perceived, is clearly shown by the Federalist, (No. 38,) where this
very argument