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ject, it is proper to premise, that whether its final settlement belongs exclusively to Congress, or to the Judiciary, it is very clear that it does not appertain to the Executive as a separate department. In accordance with this principle, although I shall be obliged to state my views on one or two of the subordinate points, more or less connected with the principal controversy, I shall carefully abstain, not only from the expression of any opinion concerning it, but from any such investigation of its merits, as might enable me to form a decided opinion thereon. It is only in obedience to the constitutional injunction, to “take care that the laws be faithfully executed,” that the President can be required or authorized to interfere in any of the matters growing out of this controversy. It is therefore our first business to ascertain, whether any acts of Congress, now in force, are likely to be obstructed in their faithful execution, by the steps taken, or about to be taken, by either of the contending parties. In my judgement there is reason to apprehend, that the acts which provide for the organization and government of the Territory of Michigan, may be thus affected. The first of these laws, approved on the 11th of January, 1805, enacts, that from and after the first of June then next, “all that part of the Indian Territory which lies north of a line drawn east from the southerly bend or extreme of Lake Michigan, until it shall intersect Lake Erie, and east of a line drawn from the said southerly bend, through the middle of said Lake, to its northern extremity, and thence due

north to the northern boundary of the United States, shall, for the

purpose of temporary government, constitute a separate Territory, and be called Michigan;” and establishes “within the said Territory,” a Territorial Government, similar to that provided for by the ordinance of 1787, and by the law of 1789, adapting it to the Federal constitution. The line given by this act, as the southern boundary of the Territorv, is the one claimed, and to which jurisdiction is now held, by the authorities of Michigan–The acts of the 16th of February, 1819, “authorizing the election of a Delegate from the Michigan Territory to the Congress of the United States, and extending the right of suffrage to the citizens of said Territory”; of the 3d of March, 1823, “to amend the ordinance and acts of Congress for the Govern ment of the Territory of Michigan, and for other purposes;” of the 5th of February, 1825, in addition to the last mentioned law; and of the 29th of January, 1827, “to allow the citizens of Michigan to elect the members of their Legislative Council, and for other purposes,” make various provisions for the Government of the Territory, and authorize, among other things, its division into counties and townships, and the appointment of county and township officers, as well as the exercise of Executive, Legislative, and Judicial powers, in and over the whole Territory, as described in the act of the 11th of January, 1805,

But though the southern boundary now claimed by the authorities

of Michigan, is thus given to that Territory, by the act of 1805, and impliedly retained by all the subsequent acts just referred to, it is by no means acknowledged by the State of Ohio. On the part of that State it is alleged that so much of the act of 1805, as relates to the southern boundary of Michigan, interferes with the true northern boundary of Ohio, as previously established by her Constitution, and by the action of Congress, and is therefore null and void. To understand the ground of this objection, and to estimate its force it is necessary to advert to the Constitution of Ohio, and to the Congressional proceedings which preceded and followed its adoption. By the act of the 30th of April, 1802, authorizing the people of the eastern division of the Northwest Territory (the now State of Ohio to form a Constitution and State Government, it was enacted “that the said State shall consist of all the territory included within the following boundaries, to wit: bounded on the east by the Pennsylvania line, on the south by the Ohio river, to the mouth of the Great Miami river, on the west by the line drawn due north from the mouth of the Great Miami aforesaid, and on the north by an east and west line drawn through the southerly extreme of Lake Michigan, and running east, after intersecting the due north line aforesaid, from the mouth of the Great Miami, until it shall intersect Lake Erie, or the territorial line, and thence with the same through Lake Erie to the Pennsylvania line aforesaid: Provided, That Congress shall be at liberty, at any time hereafter, either to attach 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 extremity 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. It will be perceived that the line prescribed in this act, for the northern boundary of Ohio, is the same with that claimed by Michigan; subject to the right of Congress to alter that boundary, by attaching to Ohio the Territory lying immediately north of it. The sixth section of the 7th article of the Constitution of Ohio, adopted on the 29th of March, 1802, declares that “the limits and boundaries of the State are as follows: that is to say, bounded on the east by the Pennsylvania line; on the south by the Ohio river, to the mouth of the Great Miami river; on the west by the line drawn due north from the mouth of the Great Miami aforesaid; and on the north by an east and west line, drawn through the southerly extreme of Lake Michigan, running east, after intersecting the due north line aforesaid, from the mouth of the Great Miami, until it shall intersect Lake Erie on the territorial line, and thence with the same through Lake Erie to the Pennsylvania line aforesaid: 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 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, thence northeast to the territorial line, and by the said territorial line to the Pennsylvania line.” It may be here observed, that the exact position of Lake Michigan was at this time unknown; and that the line described in the proviso above quoted, is the one now claimed by Ohio. Simultaneously with the adoption of their Constitution, the Convention of Ohio also passed an ordinance, accepting in a modified manner certain propositions contained in the law of 1802, by which Congress offered to the Convention to grant to Ohio certain school lands and road money. Copies of the Constitution and ordinance having been laid before Congress, the House of Representatives, on the 23d of December, 1802, referred them to a committee, with instructions to “examine the matter thereof, and to report the salae with their opinion.” On the 2nd of February, 1803, this committee reported certain resolutions in relation to the ordinance, which were subsequently embodied in a bill passed by both Houses, and approved on the third of March, 1803.-In regard to the proviso concerning the northern boundary of the State, the report of the committee contained only the following remark: “The proviso contained in the sixth section of the seventh article of the Constitution of the State of Ohio, respecting the northern boundary of that State, depending on a fact not yet ascertained, and not being submitted in the shape of other propositions from the Convention to Congress, the committee have thought it unnecessary to take it, at this time, into consideration.” - In the mean time, and on the 7th of January, 1803, the Senate had passed a resolution directing a committee to inquire “whether any, and if any, what legislative measures may be necessary for admitting the State of Ohio into the Union, and for extending to that State the laws of the United States.” This committee, on the 19th of January, 1803, made a report, approving in general of the Constitution, but taking no specific notice of the proviso above quoted. The committee submitted no resolution, but suggested that it was necessary to establish a District Court within the State, to carry into complete effect the laws of the United States within the same. On the 21st of January, the report was recommitted, with directions to report a bill according to its principles. A d on the 27th, a bill was reported, “to provide for the due execution of the laws of the United States within the State of Ohio;” which, having passed both Houses without amendment, was approved, and became a law on the 19th of February, 1803. This act extends the laws of the United States to the State of Ohio, and organizes a District Court, with its officers, &c. but contains no express assent to, nor provision concerning the Constitution of the State. In the preamble prefixed to it, it is, however, recited, that the people of the eastern division of the Territory Northwest of the Ohio had formed a Constitution and State Government,

and had given to the said State, the name of the “State of Ohio,” in pursuance of the act of Congress of the 30th of April, 1802, “whereby the said State has become one of the United States of America.” Upon this part of the case, it is contended by the authorities of the State of Ohio, that the Congress of the United States, by the admission of Ohio into the Union, with the foregoing provisions and declarations in her Constitution, virtually ratified, approved of and assented to the same; and thereby confirmed the northern boundary of the State, as described by the line mentioned in the proviso. This proposition is controverted by the authorities of Michigan, in whose behalf it is contended, that the Convention of Ohio had no authority, under the act of 1802, to insert in their Constitution any such proposal as that contained in the proviso; that Congress had no power to look into that Constitution, except to see whether it was republican in its character; and that, in admitting the State into the Union, under the circumstances above mentioned, Congress did not assent even to the proviso, much less to the proposition expressed in it. Finding it necessary to examine this branch of the case, in order to determine the validity of that part of the act of 1805, which relates to the southern boundary of the Territory of Michigan, I have given to it an anxious, and I trust, a dispassionate consideration. As its result, I am constrained to say, that in my judgment, neither of the conflicting propositions above stated is entirely correct. It does not appear to me that the Convention of Ohio transcended their powers, in proposing for the consideration of Congress the ultimate extension of the northen limits of the State, in the manner suggested in the proviso. And as no express objection was made to any part of the Constitution, I think it the sounder opinion, that by the admission of the State into the Union, the Congress of the United States impliedly assented to the proviso, as well as to every other part of that instrument. - o But the assent of Congress, thus virtually given to the proviso, is one thing, and its assent to the actual and present extension of the northern boundary of the State, as proposed in the proviso, is, in my opinion, another and very different thing. If the proviso had not been incorporated in the Constitution, or had been rejected by Congress, the north line of Ohio, notwithstanding the subsequent ascertainment of any particular fact concerning the exact position of Lake Michigan, would have been irrevocably fixed, as described in the act of 1802, and in the body of the sixth section of the seventh article of the Constitution; subject only to the right of Congress to attach to Ohio that part of Michigan lying immediately north of it. To meet the contingency of the future ascertainment of such a fact, then unknown, and to keep the subject open for the future action of Congress, the proviso was carefully inserted. By assenting to it, Congress, as it appears to me, merely agreed, that if the geographical fact suggested in the proviso should thereafter be ascertained to exist, then, and in that case, the northern boundary of the State should, if Congress thereupon assented, be extended to the more northerly line spe

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cified in the proviso. In other words, the actual and authorized extension of that boundary, was to depend upon the concurrence of two conditions precedent:—first, the ascertaining of the geographical fact mentioned in the proviso; and, secondly, the assent of Congress, “then, and in that case,” to be given to such extension. And in the mean time, the line drawn due east from the southern extreme of Lake Michigan, was provisionally fixed as the northern boundary of the State of Ohio. n The unanimity with which the Executive and Legislature of Ohio have recently taken the contrary position, may well admonish him who questions it, to do so with great deference to their opinions, and with some distrust as to the accuracy of his own. In this discrepancy of judgment, I think I may derive much support, from the practi. cal construction heretofore given to the proceedings of Congress by that body, and by the representatives in it from the State of Ohio herself. On the 2d of November, 1803, (being an early day in the session of the first Congress in which Ohio was represented,) the Senate adopted a resolution in the following words: “Resolved, That the proposition of the Convention of the State of Ohio to the Congress of the United States of America, contained in the sixth section of the seventh article of the Constitution of that State, be referred to a committee, with leave to report thereon by bill or otherwise.” Of this committee, (being the same to which a petition for the erec ting of a territorial government in Indiana, had been previously referred,) Mr. Worthington, one of the Senators of Ohio, was the Chairman. On the 4th of November, 1803, he reported a bill to divide the Indiana Territory into two separate governments, and giving the assent of Congress to the proposition of the Convention of Ohio, contained in the proviso. The bill passed the Senate, though not until that part of it giving the assent of Congress to the proposition of Ohio had been stricken out, but was lost in the House of Representatives. It was revived at the ensuing session of Congress, and having passed without any provision in relation to the northern boundary of Ohio, was approved on the 11th of January, 1805; and, as before stated, it expressly declared, that the new territory lying east of the middle of Lake Michigan, should be bounded on the south by a line drawn east from the southerly bend or extreme of Lake Michigan. So far from admitting that the northern boundary of Ohio had, in fact, been previously extended, as now claimed by that State, Congress, by this act, thus passed in 1805, showed that they were, even then, unwilling or unprepared to assent to the proposition. And by giving to the Territory of Michigan the more southern of the two lines, as its boundary on the south, they also showed, that, in their judgment, this line had been at least provisionally fixed as the northern boundary of Ohio. & I pass over the various efforts subsequently made by the Senators and Representatives of Ohio, ending only with the last session of Congress, to obtain the express assent of Congress to the boundary

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