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law passed January 26th, 1835, the legalized voters inhabiting the Territory, to assemble and choose delegates to meet in the city of Detroit, to form for them a State Government.
The delegates thus elected met, at the time and place appointed, formed a constitution, and adopted certain propositions which have been submitted to Congress. And Michigan, as a State, claims the right to be admitted into the Union on an equal footing with the original States, and with jurisdiction co-extensive with the boundaries assigned to the Territory of Michigan, by the act of 1805. (App. A 2, 3, 4.)
If there were no parties to be affected, by the decision to be made on this application of the people of Michigan, but the applicants on the one side, and the people of the United States on the other, the committee believe it would be speedily and harmoniously adjusted.
With great propriety in that case, all discussion as to the power of the people of a Territory to take measures, without authority first had from the United States, to ascertain their numbers, and to form a State Government, could be waived; and Congress might at once proceed to decide, whether the form of government offered is republican or not, according to the directions of the constitution.
Unfortunately, Michigan claims jurisdiction over a district of country which has, by a law of Congress, been made a part of Indiana, and also over a tract of land to which Ohio lays claim. The first conflict of jurisdiction to which allusion has been made, might, probably, be adjusted without difficulty. But the committee add, with regret, that the contest in which the authorities of Michigan and Ohio are involved, has become so much embittered, that it would be impolitic and unwise to permit the opportunity now enjoyed by Congress to pass by, without exerting all its constitutional power, to adjust peaceably and forever, if possible, this unpleasant dispute between two communities, destined to become an ornament to our noble confederacy.
It has already been said, that the people of Michigan claim the right to form a State Government having jurisdiction over the whole country included within the boundaries of the Territory established by the act of 1805. One of these boundaries is a line drawn due east from the southern extreme of Lake Michigan. North of that line, Ohio and Indiana each claim power to govern.
To elucidate this claim of Michigan, that its justice and propriety may be understood, and the consequences intimately connected with the conclusions to which Congress may come concerning it be fully comprehended, it will be necessary to revise and examine various acts and proceedings of Congress, before and since the adoption of the Federal constitution, and other public documents, copies of which are appended to this report, and to which the attention of the House is respectfully invited.
In support of their title to the high privileges demanded, the people of Michigan rely on the provisions of the act of 1805, and especially on the force and effect of that part of the second section of that law, in which it is declared that the inhabitants of the Territory "shall be entitled to, and enjoy, all and singular, the rights, privileges, and advantages, granted and secured to the people of the Territory of the United States Northwest of the River Ohio," by the ordinance of the 13th of July. 1787. In the absence of this reference to the ordinance, all would admit that the act of 1805 is an ordinary act of legislation, subject to be repealed or modified by Congress.
There is nothing to be found on the face of it which would justify a different interpretation. It does not purport to be perpetual. On the contrary, in the first section it is explicitly declared, that the separate Territory shall be constituted "for the purpose of temporary government."
If indeed language the reverse of this had been used, it would have been idle and nugatory. One Congress cannot establish boundaries for a Territory, or confer political, religious, or civil privileges, on any portion of the people inhabiting the Territories of the United States, and deny to a succeeding Congress the right to change such boundaries, or diminish, or increase, or modify, the immunities thus granted.
The third section of the fourth article of the Federal constitution, gives power to Congress, "to dispose of, and make all needful rules and regulations respecting the territory, or other property, of the United States."
By the ordinance of 1787, the whole territory northwest of the Ohio, for the purposes of temporary government, is declared to be "one district; subject however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient." From this article of the constitution, the United States derive all the power they possess, to constitute temporary or Territorial Governments in the Territories west of the Mississippi, and south of the river Ohio; and from these words in the ordinance and the constitution, they must deduce all their authority, to divide the Territory Northwest of the River Ohio, into separate districts; but neither in the constitution nor the ordinance, can one word be discovered, calculated to countenance the opinion, that the boundaries of these districts are to be considered perpetual and unalterable.
It appears to be very evident that Congress bears, in all respects, to the people of the Territories, until they have been authorized to form and have actually formed a State, a relation strikingly similar to that of the several State Legislatures, to the territories within their respective limits before its political divisions have been made part of the fundamental law. After counties, or other civil corporations in a State, have been established, and their boundaries declared to be a part of the fundamental law of the land, it is admitted, that their limits cannot be diminished or increased, but by a change of the constitution. But, in the absence of all constitutional prohibition, is it not too self-evident a proposition to need demonstration, that such limits may be changed or altered, by an ordinary act of the Legislature?
Supposing, then, that there is nothing in the character of the act of 1805, except the reference made to the ordinance of 1787, to make it any thing but an act to fix the boundaries of a territory or district "for the purposes of temporary government," and that all its provisions would but for that be liable to be repealed, altered and amended, let us inquire into the effect of this reference, and for that purpose we will first advert to the stipulations of the ordinance, and then proceed to scrutinize the various acts and proceedings, of the parties to that compact connected with its execution, to ascertain the true import and meaning of its language, and be prepared to consummate the objects for which it was intelligently designed.
It is not necessary to quote the ordinance at large; it will be found in the 1st vol. Laws U. S. page 475. The fifth article of it is relied on, by the people of Michigan, to give validity to their claim, and is in these words: (see Appendix C. 11) "There shall be formed in said Territory, not less than three nor more than five States; and the boundaries of the States, as
soon as Virginia shall alter her act of cession, and assent to the same, shall become fixed and established as follows, to wit: the western State in the said Territory, shall be bounded by the Mississippi, the Ohio and Wabash rivers, a direct line drawn from the Wabash and Post Vincents, due north to the territorial line between the United States and Canada, and by the said territorial line, the Lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line, the Wabash from Post Vincents to the Ohio, by the Ohio, by a direct line draw due north from the mouth of the Great Miami, to the said territorial line, and by the said territorial line. The eastern State shall be bounded by the last mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: Provided, however, and it is further understood and declared, that the boundaries of these three States shall be subject to be so far altered, that if Congress shall hereafter find it to be expedient, they shall have authority to form one or two States, in that part of the said Territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan; and whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever, and shall be at liberty to form a permanent constitution and State Government."
It will be perceived that neither the east, the west nor the north boundary lines of Michigan are named in the ordinance; their immutable character depends upon the construction to be given to the act of 1805, considered as a part execution by Congress, of a trust confided by the ordinance in the authority given, to form, if it should be deemed expedient, more than three States in the territory to which it relates. But it is maintained, that the south boun-dary of Michigan, is a line north of which Congress never had the power to extend the jurisdiction of the three States, bounded south by the Ohio, unless the whole Territory to the Canada line was included. To maintain this position, in part, these words in the 5th article of the ordinance are relied on: "if Congress shall hereafter find it to be expedient, they shall have authority to form one or two States, in that part of the said Territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan."
At the time the ordinance was adopted, the geography of that rich region which it was designed to divide into States was but little understood. But the Congress of that day had abundant information with regard to it, to have satisfied them, that it would be entirely unreasonable to make an east and west line through the southern extreme of Lake Michigan, a permanent north boundary for the three States on the Ohio, and to give, at the same time, a discretionary power to their successors, to form the whole territory north of that limit into one State. It will be shown that it would have been an unequal distribution of the territory in question, if Congress had been required to make only two States in the country referred to, then how completely superfluous must have been the power to organize but one!
Mitchell's map of the United States was published in 1755, and was considered high authority on all geographical questions. We have the evidence of Mr. Adams, one of the commissioners who negotiated for the treaty of peace in Paris in 1783, to prove that Mitchell's map alone was used by those commissioners at their public conferences, and that upon it was marked out the whole of the boundary lines of the United States (see
(Appendix, G.) Accurate copies of that map are still to be seen; one of them has been examined by the committee. On it, few, very few, great natural objects in the Northwest Territory are correctly delineated. The latitude and longitude of most of its principal rivers and lakes are incorrectly exhibited. There is, with regard to Lake Michigan particularly, a great error committed. The southern bend, or extreme of that lake, is located at forty-two degrees twenty minutes north. A number of other maps from the State Department have been also examined, and all of them which were published prior to the year 1815, locate the southern bend, or extreme of Lake Michigan, at forty-two degrees twenty minutes north latitude; apparently copying the map which had been previously published by Mitchell. If then, we make two divisions of the territory northwest of the Ohio, by a line drawn due east from the Mississippi, so as to touch the southern extreme of Lake Michigan, as laid down on the maps, to which alone the Congress in 1787 must have referred, there will be an area north of that line of 215,652 square miles, and south of the same an area of only 136,617 square miles. If we decide then, that the Congress of 1787 intended, by the ordinance, to compel their successors to divide the area first mentioned into not more than two, and the other area into three States, we must determine that they unjustly wished to enforce the formation of States, in the territory in question, to be in power and population greatly disproportioned.
The ordinance, moreover, authorizes the formation of only one State north of this east and west line; and unless it was intended that Congress should have authority to change this line, so as to annex a part of the country north of it to the three States on the Ohio river, we must impute to those who framed and adopted that instrument, the belief that their successors could, by possibility, think it to be expedient to form one State with an area of 215,652 square miles, larger than any three States of the Union, and obviously of most overshadowing and gigantic dimensions. It is not to be supposed, that the same men who, as it will appear, earnestly and perseveringly, out of a jealous regard for the security and independence of the smaller States of the confederacy, sought to diminish the power and resources of Virginia, by asking a surrender of part of its large domain, and had refused to guarantee to that State a title to the territory out of which the State of Kentucky has been formed, would themselves have given a discretionary power to those who were to come after them, that might be exercised in a manner entirely destructive of those rights they were struggling to guard. If further evidence be necessary to prove that the line to be drawn due east from the Mississippi through the southern extreme of Lake Michigan, was not intended to be a fixed and unchangeable boundary, under any circumstances, the committee think such testimony can be readily collected from the various acts and proceedings of the parties to that compact, which will now be considered.
At the commencement of the war of our revolution, Virginia claimed all that vast extent of territory which lies cast of the Mississippi, west of Maryland and Pennsylvania, and north of the north boundaries of Tennessee and North Carolina.
New York, Massachusetts, and Connecticut, each, claimed, also, a portion of the same territory lying northwest of the river Ohio. For our present purpose, it is deemed to be unnecessary to inquire into the validity of these claims; the several charters, however, in which they have had
their origin, will be found by the curious in the Appendix (B); nor shall we comment on the deeds of cession from the States of New York, Massachusetts, or Connecticut, (Appendix C 5, 7,8,) neither of these deeds having relation to the compact contained in the fifth article of the ordinance. It will be necessary to advert to the acts and deeds of cession of Virginia alone, and the proceedings of Congress with regard to them. (See Appendix C.) After that confederacy was partly formed, to whose enlightened and patriotic measures every lover of our institutions oft reverts with pride and pleasure, the continental Congress became satisfied, that the continued possession, by Virginia, of that immense country which has been indicated, would endanger the union of the several communities then combined to resist the tyranny and oppression of a foreign power. It was foreseen, too, that in the event of a successful issue to the war, no common Government could be established, by those who had confederated to produce that result; no perpetual union could be formed among thirteen political communities, if one of them was to have jurisdiction over a territory competent to sustain a population equal to that of the other twelve combined. Soon, therefore, after the treaty with France had brightened the hopes of our fathers, and rendered it highly probable that the war of the revolution would eventuate in the foundation of an independent Government on this side of the Atlantic, the anxiety of the continental Congress increased, to adjust, amicably, all conflicting titles to the wild lands of the west. For that purpose, on the 6th of September, 1780, a resolution was passed, earnestly recommending to those States who had claims to the western country, to pass such laws, and give their delegates in Congress such powers, as would effectually remove the only obstacle to a final ratification of the articles of confederation. On the 2d of January, 1781, Virginia responded to this request, and passed a law, offering to cede all right and title to the lands. northwest of the Ohio, with certain conditions; to two of which alone it will be profitable to advert. One of these conditions was, "that the territory so ceded, shall be laid out and formed into States, containing a suitable extent of territory, not less than one hundred, nor more than one hundred and fifty miles square:" and the other was, "that all the remaining territory of Virginia, between the Atlantic ocean and the southeast side of the river Ohio, and the Maryland, Pennsylvania, and North Carolina boundaries, shall be guarantied to the Commonwealth of Virginia, by the United States." To the first of these propositions Congress acceded readily; for it conformed to a resolution which they had adopted, on the 10th of October, 1780, when it was "resolved, that the unappropriated lands, that may be ceded, or relinquished, to the United States, by any particular State, shall be disposed of for the common benefit of the United States, and be settled, and formed into distinct republican States, which shall become members of the Federal Union, and have the same rights of sovereignty, freedom and independence, as the other States; that each State, which shall be so formed, shall contain a suitable extent of territory, not less than one hundred nor more than one hundred and fifty miles square."
The other proposition for a guaranty was decidedly rejected, because Congress wished "to avoid all discussion of the territorial rights of individual States." Notwithstanding this refusal to give the guaranty demanded, Virginia, on the 1st of March, 1784, ceded to the United States all right and title which that Commonwealth had to the territory lying northwest of the river Ohio, with conditions: one of which was that it