into the Union whenever there should be sixty thousand free inhabitants therein. Instead of this, they adopted the fifth article of the ordinance, which declares that the three States on the Ohio shall extend north to the territorial line between the United States and Canada: Provided, however, and it is further understood and declared, that the boundaries of these three States shall be subject so far to be 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 cast and west line drawn through the southern bend or extreme of Lake Michigan."

The question is as to the construction of the cession of Virginia, as modified by her assent to the fifth article of the ordinance. Her assent was not given to the resolution of 1786, but to the new proposition contained in the ordinance of 1787. It is not perceived how the resolution, or any which led to it, could vary the construction of a new proposition, made because the former one was not acceptable. The report, however, assumes that, because the substitute of Mr. Grayson was rejected, and that substitute established the line dividing the northern from the southern States, the same was not established by the ordinance; the same argument would apply to all the other lines; and, in fine, it is assuming that, because Congress, in 1785, rejected a proposition which established all the lines of all the States, it could not adopt a proposition in 1787 which gave a discretionary power as to one line, without unsettling all the rest. Yet such is the argument.

But there is a point of view in which the principal fact stated, the want of an accurate survey, is entitled to consideration.

It is stated, and may be taken for granted, that Mitch. ell's map was the only evidence of the location of Lake Michigan before Congress in 1787, when the ordinance was made, and before the Legislature of Virginia when she assented to the 5th article.

On referring to that map, an east and west line drawn through the south bend of the lake is a latitude line of 42 deg., 20 min. and which would include a much greater extent of line than is claimed by Ohio.

It then becomes question of intention-of fact-which line did the parties intend-the line due east through the south bend of the lake, or the latitude line indicated by that found on Mitchell's map? There is no ground for taking any intermediate line.

Connected with the principal fact above stated, was also the fact that, in 1787-'8, it was well known that Mitchell's map was not founded on an actual survey, but was conjectural as to the location of lakes and rivers. Though made on the best authorities then to be obtained, yet no one relied on it as an accurate delineation of the location of the lakes and rivers of the north.

It is material to consider what were the objects of the contracting parties. It was not a contest between independent nations, in which the object on either side was the acquisition of territory, but simply to divide the territory of the United States into future States, that were to become members of the Union. It was not, therefore, a question of a little more or a little less on either side. On the one side, Congress desired an unlimited discretion as to all boundaries; on the other, Virginia contended that Congress should have no discretion whatever; but the boundaries of all the States should be established, as a condition to its cession. The first question then to settle was, whether the lines should be floating or fixed, when it was determined that they should be fixed; the question was not so much where, as that they should be certain, and a point was taken that could be rendered certain.

On these grounds, I have come to the conclusion that, both on the principle of construction and the fact of in

(H. OF R.

tention, the line drawn east and west through the southerly bend of Lake Michigan was immoveably fixed by the ordinance of 1787, as the dividing line between the three States on the south and the one or two States that might thereafter be formed on the north of it; that the lines of the three States, as bounded in the 5th article, were subject to be altered by Congress only in the event of its determining it to be expedient to form one or two States north of that line; and that the only act by which Congress could alter such boundaries was the formation of such State or States; and, as a consequence the formation of the territory north of that line into one or two States-the limits of the three States would be reduced to that line as their northern boundary; and that Michigan, if admitted under the power given to Congress by the ordinance, is entitled to that line as her southern boundary. This boundary Michigan has assumed and claims as her right under the ordi

nance.

I will now proceed to examine the questions arising under the ordinance:

1. Has Michigan a right to demand admission into the Union until formed into a State by Congress?

The three States formed by the fifth article, and each of them, according to their extent, had the right to apply for admission; unless Congress, by the exercise of the special power reserved in the ordinance, had restricted their limits to the lake line, they had the right to claim the whole of the northwest territory. The form. ing the one or two States north of that line was a subject of expediency-of discretion- and no portion of that territory had a right to demand that Congress should exercise that discretion that Congress should form it into a State, much less by its own act form it into a State. The territory north of the east and west line has therefore no right to demand admission into the Union until it has been formed into a State by the act of Congress.

The case of Tennessee is not in point. In that case, the cession of North Carolina was on the condition that the territory (Tennessee) ceded should be formed into one or two States, and, as one or two States, it was entitled to admission into the Union. Congress was bound to admit it at all events into the Union, and as one State, unless it should think proper to form it into two States. But under the Union Michigan was entitled to become a part of the Union, as a part of the States to which it belonged under the fifth article; it had no claim to be divided into a separate State. In the case of Tennessee, Congress neglected to form it into two States, and the inhabitants petitioned to be admitted as one State. It had the requisite number of inhabitants, and Congress could refuse it admission only on the ground that it was expedient to divide it into two States, and by thus dividing it.

To entitle Michigan, then, to an admission into the Union, under the ordinance, Congress must, by some act, have formed the territory into a State; not a politi cal community, but have designated the boundaries as a State, according to the provisions of the ordinance, viz: by forming the territory north of the east and west line into two States, of which the Territory of Michigan is one. This has not been done, though Congress has passed acts from which it may be inferred that it intended, in some aftertime, to form it into one or two States, or at least that the right should be reserved.

The power reserved to Congress by the fifth article to alter the limits of the three States was necessarily limited in time. It must have been executed prior to the admission of either of the three States with their entire extent of territory, the admission of a State necessarily carrying with it a relinquishment of all right of sovereignty in the United States.

The act for the admission of the State of Ohio, in 1803, restricts the northern boundary to the lake line; so far,

it looked to the future execution of the power. It reserved the right to restore Ohio to its original boundaries; so far, it looked to the contingency of its future determination on the expediency of exercising that power; so that, in no view, can this act of the admission of Ohio be regarded as an execution of the power.

The act of 1805, establishing the Michigan Territory by certain boundaries, probably looked to the same contingencies, but in itself had no necessary relation to the execution of the power. In itself it was in no sense an execution of the power. The result, then, is, that by no act, express or implied, has Michigan been formed into a State, or the power reserved to Congress been in any way executed.

[JUNE 9, 1836.

been altered by any act of Congress authorized by the ordinance; and that the whole territory now belongs to those three States, unless it has been relinquished by them to the United States.

II. It is now insisted that the portion of the northwestern territory, not within the limits of the States of Ohio, Indiana, and Illinois, has been relinquished by those States to the United States. And under this title it has been competent for Congress to divide it into as man y States as it shall deem proper, with such boundaries as shall be deemed expedient, under the clauses in the constitution giving to Congress the power "to dispose of and make all needful rules respecting the territory belonging to the United States, and to admit new States into the Union."

The ordinance of 1784 was a compact, unalterable, (after a sale of any part of the land,) unless by the joint consent of Congress and of the State within which the alteration proposed was to be made.

The ordinance of 1787 was a compact between the United States and the people and States in said terri

The only conditions required are, that the State shall have 60,000 inhabitants, and should have adopted a constitution conformable to the ordinance. No preliminary act of Congress is required to enable the State to form a constitution. The ordinance of 1784 provided for the establishment of temporary governments in the several States formed by it, and required acts of Congress preliminary to their forming constitutions, under which their conventions were to be called for that purpose. The ordinance of 1787 did not provide for the establishment of temporary government in any of the States formed or to be formed under it. Provision was made for a territorial government, not having any reference to States, but to the whole territory. Whenever the fact of a State having 60,000 inhabitants existed, those inhabitants were entitled to move in such manner as they should think proper, to the end to form a constitution, and demand admission into the Union.

But taking it, however, for granted that the act of 1805 was an execution of the reserved power, then it is admitted that Michigan is entitled to admission on the same principles that would have been applicable to the admission of either of the three States. That, being a State, the only condition was, that she should have 60,000 inhabitants, and have formed a republican constitution, and to the formation of which no preliminary act of Congress was required.

3. Congress has no [right to] insist on her assent to an alteration of her ordinance boundary as a condition of admission.

It could, not as a condition, have demanded it of either of the three States; they were entitled to admission by their entire boundaries, unless Congress should choose to alter them by forming one or two States north of the like line.

The result, then, is, that Michigan, in relation to the question of boundary, is not entitled to demand admission into the Union under the ordinance, because Congress has not formed her into a State under that ordinance; and the consequence follows, that the original lines of the three States, extending from the Ohio river to the northern boundary of the United States, have not

consent of the parties to the compact-"the United States and the people and States in said territory." The State of Virginia was not a party to the compact. It was therefore competent for Congress and the States to alter the provisions of any of the articles of the compact, so far as the interests of the States were concerned. The right of soil was vested in the United States by the cessions. The right of sovereignty alone remained to the States, and this right was reserved to each State. It was therefore competent for each State to relinquish to the United States its right of sovereignty to any portion of its territory; and even independent of this power, each State had the same right of relinquislíment.. The United States, by accepting such relinquishment, would hold the sovereignty of the territory relinquished, subject to the powers granted by the third section of the fourth article of the constitution. Congress would have the power to make all needful rules and regulations for the government of the territory, for its division into States, and for their admission into the Union.

The cession of Virginia looked only to the primary division of the territory into States. When admitted into the Union, they were to be admitted on an equal footing with the other States. It would be competent for Congress, with the assent of any one of these States, to divide it into two States, and each of these new States had the same power to cede any part of her territory to the United States that Virginia had to make her cession.

The three States formed by the ordinance, at the request of Congress, have severally, by the highest act of sovereignty--the act that is now required of Michigan-relinquished to the United States their right of sovereign. ty to all the territory north of their northern boundaries.

The State of Ohio accepted the lake line as her northern boundary, and, as a consequence, relinquished her right of sovereignty to the territory north of it. It was accepted, however, subject to two provisions. The first was contained in the act of 1802, authorizing Ohio to form a constitu ion, as follows:

"Provided, That Congress shall be at liberty, at any time here after, either to attach all the territory lying east of the line to be drawn due north from the mouth of the Miami aforesaid, to the territorial line, and north of an east and west line drawn through the southerly extreme of Lake Michigan, running east as aforesaid to Lake Erie, to the aforesaid State, or dispose of it otherwise, in conformity to the fifth article of compact between the original States and the people and States to be formed' in the territory northwest of the river Ohio."

Congress at this time had not determined the question of the expediency of forming the one or the two States

north of the lake line, and by this provision reserved the power of determining it thereafter.

The other provision is contained in the constitution of Ohio of 1803, as follows:

"Provided always, and it is hereby fully understood and declared by this Convention, That if the southerly bend or extreme of Lake Michigan should extend so far south that a line drawn due east from it should not intersect Lake Erie, or if it should intersect the said Lake Erie east of the mouth of the Miami river of the lake, then, and in that case, with the assent of the Congress of the United States, the northern boundary of this State shall be established by, and extended to, a direct line running from the southern extremity of Lake Michigan to the most northerly cape of the Miami bay, after intersecting the due north line from the mouth of the Great Miami river as aforesaid; thence, northeast, to the territorial line, and by the said territorial line to the Pennsylvania line."

Thus reserving to Congress the right, on the contingency specified, of granting to Ohio the extension of her northern boundary to its original limit.

The first provision was in perfect accordance with the ordinance; it bound Congress either to restore the terri. tory to Ohio, or to execute the ordinance, by forming one or two States north of the lake line.

The second provision was in direct conflict with the ordinance, and could not be executed until Congress bad determined not to form the new State or States north of the lake line; and the validity of its execution would not depend on the special power reserved to Congress by the ordinance; it would not derive its force from the act of Congress alone, but from the joint action of Congress and the State of Ohio.

It may be repeated that the power given to Congress by the ordinance to alter the boundaries of the three States was absolute, but it was also definite. It might be executed without the assent of the States, but it could be executed only in the manner prescribed. On the admission of Ohio into the Union, all power necessary to the execution of the ordinance was reserved; but it will be found that, on the admission of Indiana and Illinois, no such power was reserved, and that, in consequence of the terms on which they were admitted, it became impossible for Congress to execute the power reserved in the ordinance.

On the 7th of May, 1800, the Territory of Indiana was established, and comprised all the territory included within the boundaries of the two western States, by the ordinance of 1787.

On the 11th of January, 1805, the Territory of Michigan was established, and included all that part of the Northwestern Territory lying north of the lake line and east of a line drawn from the southerly bend of Lake Michigan, through the middle of the lake, to its northerly extremity, and thence due north to the northern boundary of the United States; thus including in Michigan, and excluding from Indiana, a part of the territory of the middle State of the ordinance of 1787.

On the 3d of February, 1809, the Territory of Illinois was established, consisting of all the territory of the western State of said ordinance.

The act of 19th April, 1816, authorized the inhabitants of the Territory of Indiana to form a constitution.

By the 2d section of the act, the northern boundary of the State was proposed to be limited to a latitude line ten miles north of the lake line, to which that State was invited to assent, by the following proviso:

[H. OF R.

Thus expressly declaring that, if the convention did not agree to the restricted boundary, their boundaries should remain as prescribed by the ordinance; that is, extending northerly to the northern boundary of the United States, and, prior to the admission of Indiana, subject to be altered by the act of Congress alone, according to the provisions of that ordinance.

The restricted boundary was ratified by the convention, and from this change of boundary, deriving its validity from the joint act and assent of Congress and the State of Indiana, Congress had deprived itself of the power of executing the power reserved in the ordinance, of forming one or two States of the territory north of the lake line.

The Territory of Illinois, as before stated, was formed of the whole territory that constituted the western State, under the ordinance of 1789.

By the act of the 18th April, 1818, the inhabitants of that Territory were authorized to form a constitution. By the 2d section of the act it was proposed to limit the northern boundary of the State to latitude 42 deg. 30 min., and the assent of Illinois was invited, by a similar proviso to that in the act relating to Indiana.

The convention ratified the restricted boundary, and thereby relinquished its right of sovereignty to the territory north of it.

Thus, by the relinquishment by the three original States of their sovereignty to the territory north of their respective restricted limits, the United States acquired the sovereignty of the same, and, under the constitution, have the power to make all needful rules and regulations for its government, for the formation of States, and for their admission into the Union; and this not in opposition to the ordinance, but in perfect accordance with the provision authorizing the alteration of the compact by

common consent.

This relinquishment it was competent for the States to make, as sovereign States, without looking to the ordinance for authority. Had Ohio, Indiana, and Illinois, been admitted into the Union with the boundaries given to the three States by the ordinance, can it be doubted that each would have had power to have relinquished any portion of its territory to the United States? By that power were the original cessions made.

The right of sovereignty being thus vested in the United States, it is competent for Congress to grant to Ohio, or confirm to Michigan, as it shall deem expedient, the territory in controversy.

It is, then, to decide in what manner any portion of its territory shall be admitted into the Union; to establish the boundaries, and to prescribe the manner in which it shall proceed to form a constitution. No portion of its territory has the right to demand admission by its own act, until Congress shall have, by law, determined these preliminaries.

2. Congress, then, having the power to define the boundaries of new States, it is improper to ask Michigan to give her assent to the boundary.

If, after Congress shall have prescribed the boundaries, the Territory should decline forming a constitution, the only consequence would be, they would remain a Territory until Congress should propose new boundaries.

VOL. XII.-265

ed a constitution in the manner Congress would have

directed, it is competent for Congress to ratify the same, and at once to admit such State into the Union.

It is now, therefore, competent for Congress to admit the State of Michigan into the Union, if satisfied with her boundaries, with the manner in which her constitution has been made, and with its provisions.

It may be here remarked that the acts of the three States of Ohio, Indiana, and Illinois, have no other effect than to alter the ordinance in relation to the number of the States and the boundaries of the three States. The right of soil remains to be disposed of, according to the conditions of the original cessions; the compact, in every other respect, remains in force. The cession of the three States affects the political right of sovereignty only. The boundaries assumed by Michigan are the same as given to the Territory by the act of 1805. Though that act, on the face of it, is merely an execution of the general power granted in the ordinance of 1787, to divide the territory into one or two districts--a power which formed no part of the compact, a power at all times repealable, and a power which was superseded by the third section of the fourth article of the constitution--yet it can scarcely be doubted that it was intended as the basis of a State, in relation to its boundaries, to be admitted into the Union. And good faith requires that those boundaries should still be accorded to her, unless there are substantial objections.

In relation to the point in controversy with Ohio, such objections, in my opinion, formed on the evidence present, do exist; arising, first, from the public works of Ohio, to which the mouth of the Maumee river is necessary, is essential to Ohio; and, secondly, from the danger to the peace of the country, from the acerbity of the controversy. On these grounds, and on these alone, I am in favor of granting the disputed territory to the State of Ohio.

Objections also exist as to the western boundary, if more than two States are to be formed of the territory north of the States of Ohio and Michigan. In that case I should not be willing to extend Michigan beyond the peninsula.

II. The objections arising under its constitution, on which I oppose it, are, to the manner in which it has been formed, and to one of its provisions.

1. It was formed on the votes of aliens. 2. It naturalizes aliens.

The revolution did not commence in anarchy, in which all who were inhabitants of the country would derive equal rights from its success. It was the secession of organized States, in which, during its whole progress, the disabilities of alienage were recognised. As between the colonies and the mother country, the principle was anomalous; but as to persons foreign to both, the disability was fully recognised.

Under the confederation, the power of removing the disability by naturalization belonged exclusively to the States. On the cession of territory to the United States, Congress had the same power in relation to the territories of the United States that was possessed by the States within their territories, and under that power a question arises whether Congress authorized foreigners to vote in

territorial elections.

The ordinance of 1784 authorized the States formed under it to adopt the constitution of any of the old States, which, when adopted, would have given the power of naturalization prescribed in it.

On the 10th May, 1786, a committee of Congress (consisting of Messrs. Monroe, Johnson, Pinkney, King, McKean, and Henry) reported an ordinance for the temporary government of the new States, in which was the following provision relating to the qualification of electors:

"Provided, also, That a freehold or life estate in fifty

[JUNE 9, 1836.

acres of land, if a citizen of any of the United States, and one year's residence if a foreigner, shall be neces sary to qualify a man as an elector for said representative" (in the General Assembly.)

September 19, 1786.-The same was again reported by Messrs. Johnson, Pinkney, Smith, Dane, and Henry. This was considered from time to time, and was assigned for a third reading for May 10, 1787, and the above provision amended by striking out one and inserting two, so as to read, "and two years' residence if a foreigner." On the 9th July, 1787, this report was referred to Messrs. Carrington, Dane, Lee, McKean, and Smith, who reported the ordinance of 1787.

In the ordinance of July 13, 1787, the proviso was altered so as to read-

"Provided, also, That a freehold of fifty acres of land in the district, having been a citizen of one of the States, and being resident in the district, or the like freehold and two years' residence in the district, shall be necessary to qualify a man as an elector of a representative."

It will be asked, why was this alteration made? Why was the word foreigner stricken out, and general words inserted, unless it were to exclude foreigners from voting? And, on the other side, it may be asked, what persons can be intended by those general words, if foreigners are not? Without expressing any opinion on this question, I shall, for the sake of the argument, take it for granted that the ordinance did authorize foreigners to vote.

This part of the ordinance was not a part of the com. pact, and was therefore liable to be modified or repealed by Congress, and consequently conferred no absolute right of citizenship. Though, under the confederation, the citizens of one State were entitled to the privileges of citizens in the other States, yet it carried with it but little political importance. The vote of an elector could not have any effect on the political power of any State other than that in which it was given. It was therefore left to each State to adopt its own rules of naturalization. When, however, a form of government was about to be adopted, in which the vote of an elector in one State might affect the political power of every State in the Union, when his vote might consequently elect a President of the United States, it became of the first impor tance that the rule of naturalization should be uniform. There was also the highest reason for its uniformity, from the adoption of the principle that citizens of one State should be entitled to the privileges of citizens in the other States. On these grounds the fourth clause of the eighth section of the first article was adopted, giving Congress power "to establish a uniform rule of naturalization."

On the adoption of the constitution, all who were citizens of any of the United States became citizens of the United States, entitled to equal political rights; but when Congress executed the power, and established a uniform rule of naturalization, no foreigner could claim in any State political rights without being naturalized according to that rule. The principle, however, has not been considered as extending to the Territories. Political rights granted to persons in Territories confer no rights of citi zenship which they can claim in a State; and the votes given in a Territory, so long as they refer only to the local legislation of the Territory, cannot affect the political power of any State.

The privilege of extending to foreigners the right of voting for representatives of the Territorial Legislature has been extended to the election of delegates of the conventions for forming State constitutions.

In the act of 1802, for the formation of the constitution of Ohio, the persons entitled to vote were "all male citizens of the United States, of full age, resident within the Territory for one year, having paid a territo