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§ 471. “Terms and Conditions.”

Under the Constitution of the Commonwealth the Federal Parliament has a free hand in deciding the terms and conditions under which a new member may be admitted into the Federal family system. It will be at liberty to impose such stipulations as it thinks fit, unhampered by considerations of equality of Original States. Among the terms and conditions which may be imposed on such new States, the following may be suggested, viz., that such new States shall, before their admission, contain a population duly organized and of a certain numerical strength; that they shall have a Constitution suitable for State Government; that such Constitution shall contain a reasonable rule of suffrage; that such Constitution should contain no provision contrary to the recognized usages and policy of the other States. When Missouri applied for admission as a State in the American Union, she was received on condition that the Constitution should never be construed to authorize the passage of an act by which any of the citizens of other States should be excluded from the enjoyment of any of the privileges and immunities to which they were entitled under the Constitution of the United States. (Benton's Thirty Year's View, ch. 2.) The State of Michigan was admitted to the Union on the condition that she should surrender to the State of Ohio certain territory which had been the subject of dispute between them, and her assent was required to be given by a Convention of delegates chosen by the people for the purpose. (Campbell's Hist. Mich. ch. 14.) The State of Arkansas was admitted on the condition that its Constitution should never deprive any citizen or class of citizens of the right to vote who were entitled to vote by the Constitution at the time that instrument was presented for the approval of Congress. (Cooley's Const. Law, p. 192–4.)

The Constitution of the Commonwealth expressly authorizes the Federal Parliament to determine the extent of representation in either House to which new States shall be entitled. It is to be noted that the rule of equal representation in the Senate is only mandatory in the case of Original States; new States cannot demand parity of senatorial representation as a right; the Federal Parliament may assign to such States the number of senators which it thinks fit. In the House of Representatives the constitutional rule is, that the number of members chosen in the several States must be in proportion to the respective numbers of their people as determined by the quota (sec. 24). Notwithstanding that section each Original State is entitled to a minimum number of five representatives. No minimum number of representatives is prescribed in the Constitution for new States; and it would seem that even the principle of proportional representation in the House of Representatives, though expressed without qualification in sec. 24, might under this section be varied in the case of new States. The Federal Parliament would, clearly, under the power conferred by sec. 121, be able to fix the minimum number of senators, as well as the minimum number of representatives, to be assigned to the new States. The mode of establishing new States is prescribed by secs. 123 and 124.

That part of the compact admitting Alabama as a State respecting the public lands is nothing more than the exercise of a constitutional power vested in Congress, and would have been binding on the people of the new State whether they consented to be bound or not. (Pollard v. Hagan, 3 How. 212; Baker, Annot. Const. p. 164.)

The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively; and the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States. (Pollard v. Hagan, 3 How. 212; Withers v. Buckley, 20 How. 92; McCready v. Virginia, 94 U.S. 391; Bridge Co. v. United States, 105 U.S. 491. Id.)

Prior laws of Congress in relation to the Territories and their government have no force in the new State after its admission and adoption of a Constitution, unless they are adopted by the State Constitution. (Permoli v. First Municipality, 3 How. 589. Id.)




  ― 971 ―

Government of territories.

122. The Parliament may make laws for the government of any territory472 surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory473 in either House of the Parliament to the extent and on the terms which it thinks fit.

UNITED STATES.—The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, and nothing in this Constitution shall be construed to prejudice any claims of the United States, or of any particular State.—Const, Art. IV., sec. 3, sub-s. 2.

HISTORICAL NOTE.—Clause 3, Chap. VI. of the Commonwealth Bill of 1891 was as follows:—

“The Parliament may make such laws as it thinks fit for the provisional administration and government of any territory surrendered by any State to and accepted by the Commonwealth, or any territory in the Pacific placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may in any such case allow the representation of such territory in either House of the Parliament to such extent and on such terms as it thinks fit.”

At the Adelaide session, 1897, the clause was introduced in substantially the same form, with the omission of the words “in the Pacific.” In Committee, Sir Edward Braddon moved an amendment that the representation allowed by the Parliament should be “in accordance with the ratio of representation provided in the Constitution.” This was negatived. Mr. Wise moved an addition to the effect that no federal territory should be leased for a longer term than fifty years, or alienated in fee simple, except on payment of a perpetual rent, subject to periodic appraisement on the unimproved value. This was negatived by 21 votes to 13. (Conv. Deb., Adel., pp. 1012–9.) At the Melbourne session, the word “provisional” was omitted at Mr. Barton's suggestion, as being an undue limitation. An amendment suggested by the Legislative Assembly of South Australia, and another moved by Mr. Glynn, similar to that moved by Mr. Wise at Adelaide, were negatived. (Conv. Deb., Melb., pp. 698–9.) Drafting amendments were made after the fourth report.

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