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therly cape of the Miami Bay, after intersecting the due north line from the mouth of the Great Miami river as aforesaid, thence north-east to the Territorial line, and by the said Territorial line to the line of Pennsylvania."
We think that this proviso in our Constitution clearly settles the controversy as to whether Ohio did accept unqualifiedly the proposition of boundary contained in the act of Congress of 1802. Then, if it be settled that Ohio did not accept unqualifiedly that proposition, (as appears from her Constitution,) let us axamine, by the rule of interpretation established for Ohio, whether Congress assented to the proposition contained in the proviso of the Constitution of Ohio. "We maintain that Congress did receive and accept our Constitution, including the proviso, relating to our northern boundary; and, although it has been attempted, by those adverse to the claim of Ohio, to show that some resolutions were proposed in Congress in relation to this proviso, and failed, yet, when the facts are ascertained, it is found that the resolutions were offered by members of committees, who had not the Constitution of Ohio referred to them, or under their care, but merely the ordinance of Ohio, passed at the same time by the Convention, and that the propositions failing in their hands is no indication of the assent or dissent of Congress to our Constitution.
We have said that Congress presented to Ohio, in her act of 1802, various propositions--some of them relating to School Lands and Road money. These propositions were declared by that act, to be made for the free acceptance or rejection of the Convention- They were independent of those provisions of the act which relate to the formation of a Constitution, and were so treated by the Convention. No notice is taken of them in the Constitution, nor indeed was it necessary; but they were noticed by a separate act, or ordinance, passed by the Convention, agreeing to them, in case Congress would consent to certain modifications of, and additions to them, as originally proposed.
The Constitution and ordinance were both transmitted to Congress, and were treated there as two distinct things, and separately acted upon; two distinct acts of Congress grew out of them; one to give effect to the Constitution, approved on the 19th February, 1803, and contains the preamble which recognizes Ohio as a State, and extends the laws of the United States over her, (See 3 vol. L. U. S. page 524.) By this act Ohio was admitted into the Union.
The other was an act to give effect to the ordinance, and agreed to the changes and additions proposed by the Convention of Ohio before intimated; it was approved on the 3d of March following, (3d vol. L. U. S. page 541.) From what appears of record, it is manifest the Constitution of Ohio was adopted and
accepted by the Congress of the United States, as consistent with the act of 1802, and that the proviso in the Constitution of Ohio, was unqualifiedly received and assented to. The reason of this proviso in the Constitution is found in the fact, that while the Convention of Ohio was framing her Constitution, some of the members of it were informed that the Maps of that day, giving the geographical position of Lake Michigan, were incorrect, and that the southerly bend thereof extended much further south, than was supposed by the Convention or the Congress that passed the act of 1802. Upon this information the proviso was inserted—and subsequent observations, as to this Lake, have proved the correctness of the information, and the importance of the proviso to Ohio. There does not appear to have existed any doub? in the minds of the framers of the law of 1302, of the correctness of the Maps of that day, or, but that the northern cape of the Maumee Bay, would fall within the limits specified in that act.
The fact is, that all the Maps which were at that time received as a thority, thus presented the two points; and would it now be just or equitable in Congress, if no proviso were in our Constitution] because the point at which is northern line was to commence, has been, by observation, found to be much further south, than those who passed the act of 1802 believed it to be, while the other point or points remain the same, or about as they were then supposed and represented to be, to now attempt to confine Ohio to a point suggested in the law of 1802, when it is many miles south of the position it was believed to occupy, by the parties contracting at the time? Certainly, it appears to us, that the claim of Ohio could not, in justice, be denied or contested, if there were no proviso on the subject; for, if there is a mistake about the Lake, there can be none as to the latitude it occupied on the Map which was before Congress; and it is that which ought to govern.
But we will suppose that Ohio must le governed in her north boundary, by the act of 1802, notwithstand ng the mistake as to the position of Lake Michigan and the existence of the proviso, let us see what would be the result:
Congress, by a Taw passed in 1812, authorized the President of the United States to have the north boundary of Ohio run; in consequence of war, at that period, the survey was postponed until 1817,, when a Mr. Harris, deputy Surveyor, run the line Ohio now claims; after, which, upon the suggestion of Mr. Cass, in a letter to Mr. Tiltin, the Surveyor General, that Harris's line was not in conformity with the law of Congress of : 1802, Mr. Fulton was instructed by the Surveyor General; also,
to attempt to run the line, in conformity to the act referied to; but without any further authority from Congress. The point of termination which he essected on Lake Erie, was such, that a continuance of the line run would not intersect the territorial line, as required by the act referred to. The conclusion is, therefore, inevitable, either that the line run by Fulton is erroneous, or that the one called for by the act is impracticable. What, then, shall we infer from the claim of Michigan for the general government, predicated on Fulton's line? Why certainly, if it does not comply with, and conform to the act upon which she places so much reliance, to be consistent, she must surrender her claim. We think it evident, (granting that Ohio had no proviso in her Constitution on the subject) Michigan has no boundary but an imaginery one, ascertained to be impracticable, if we are 10 judge from the result of Fulton's attempt to run and establish the same, as claimed by her.
Your committee cannot perceive, so far as they have advanced in the investigation of the controversy, any circumstance which goes to weaken the claim of Ohio, based alone on the understanding of the parties, when she b..came a State, as to the positions of Lake Michigan, and the point where a line running due east from its northern extremity, would intersect the territorial line; but confidently believe that if the north line were commenced at the point which Lake Michigan was supposed to have occupied, at the time of the passage of the law of Congress of 1802, little or no difficulty would be found in making the line conform to the requisitions of that act. But again, Michigan contends that the ordinance which specifies the same points mentioned in the act of Congress of 1802, is unalterable, and that Congress cannot attach any part of the territory, lying north of a due east and west line running through the southern extreme of Lake Michigan, to Ohio, or the other States south of sail line; and that any act of Congress to that effect would be null and void.
We will carry out the idea, and see how Michigan would stand affected by the rule.
She contends that neither of the States now admitted into the Union, have any claim north of that line. If her position be correct, it will be found that Ohio would lose a large proportion of Cuyahoga, Geauga and Ashtabula counties; and that Indiana and Illinois, would lose the most important portions of their territory situated on the Lakes.
Thus, while she is attempting to excite the sympathy of Congress and of the people of the Union in her behalf, and holding forth Ohio in an attitude of almost unbounded strength, she is,
in fact laying claim to an extent of territory embracing nearly all the Lakes, the possession of which, would enable her to control the vast commerce of the west.
But what construction has been given by Congress to the ordinance in regard to the line in question? We find, in the 6th volume of the laws of the United States, page 69, in the 4th sec. of a law enabling Indiana to form a Constitution and admitting her into the Union, this language: *Provided the same, whenever formed, shall be republican, and not repugnant to the articles of the ordinance of the 13th July, 1787, which are declared to be irrevocable between the original States and the people, and States of the Territory north west of the Ohio, excepting so much of said articles as relate to the boundaries of the States therein to be formed. We also notice in the same volume, page 50, (year 1818,) the fifth article of the law to enable Illinois to form a Constitution and admitting her into Union, the precise proviso and exception contained in the law admitting Indiana into the Union.
Here then, so far as boundary is concerned, we have the expression of Congress in reference to the ordinance in two several instances, and which shows that the line therein designated was not considered unalterable or as in any way precluding the subsequent action of that body.
But there is another idea suggested by Michigan, or her advocates, to which we will give a passing notice. It is, that the law of Congress of 1805, organizing her into a territory, vested certain rights of which she cannot be legitimately deprived. So far as the claim is confined to what was legitimately vested, we are not disposed to contest it; but we deny that any other rights were unalterably vested, except civil and religious liberty, habeas corpus, trial by jury, &c. which the people of the United States have all a right to enjoy. As to any unalterable right vested in Michigan with regard to her boundary, we have fully shown we believe no such right exists; but we will suppose, that Congress exhausted its power over the question of boundary when Michigan was organized, and that the rights vested thereby are unchangeable; how, we ask, would she stand affected by the establishment ví this rule? Why thus: when Indinana was organized into a territory, her boundaries specified in that law of Congress must be also unchangable; and Indiana has now a right which, according to the rule of Michigan, would take from her a large portion of territory within her present boundaries, as would be seen by referring to the law by which the boundaries of Indiana were defined, when a territory. This fact alone ought to be sufficient to silence her upon this subject,
It may also be remarked in this place, that, as regards boundary,
the ordinance admitting it to be unalterable, defines no Territory, and has no application to any power less than an organ-. ized State. How, then, can Michigan, being but a Territory, claim unalterable boundaries under its provisions.
The right of Michigan, then, whatever it be, must be founded on the law creating her a Territory, and whatsoever right that law vests in her, contrary to the rights previously granted to the State of Ohio, must, according to all fair rules of construction, be null and void; because the moment the Congress of the United States, by an express or implied act assented to the Constitution of Ohio, her power over the same, to effect any subsequent change therein, was wholly exhausted, and of course, if attempted to be exercised, in a way prejudicial to Chio, would be inoperative. Another argument, which may be adduced, in favour of the right of Congress to extend, when she did, the North Boundary of Ohio, over the ordinance line, is found in the proviso of the fifth section of said ordinance, and reads thus, "that the boundaries of the three States shall be subject so far to be altered, that if Congress shall hereafter find it expedient., they shall have authority to form one or two States, in that part of the Territory which lies north of an east and west line drawn through Lake Michigan,” the language of this proviso does not place any obligation on Congress, to include all the Territory north of an east and west line, through the southerly tend of: Lake Michigan, within the boundaries of the State or States she may choose to create, but only so much as she may deen necessary, because, had such been the intention of the framers of that instrument, they would have expressed themselves in terms corresponding with that design, and this might have been done by using the word of instead of in when applied to that Territory; it is evident, therefore, from the language of the ordinance itself, as well as from other considerations, that it was not their intention to make this a permanent boundary of the one or two States to be. erected, but only a line south of which they should not be extended. There are other positions assumed by those adverse to the claim of Ohio, predicated upon entirely different grounds from those we have been noticing, which we will now proceed to answer. It is contended, in the first place, that Ohio was silent as to the proper establishment of the boundary claimed by the proviso in her Constitution, until a very recent period, and after Michigan had taken possession of the same, and had applied for admission into the Federal Union, such is not the case, as the following facts will abundantly prove.
As early as the year, 1807, we find a preamble and resolutions