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Dec. 21, 1835.]
Smithsonian Institution, Northern Boundary of Ohio.
On Claims.--Mr. Naudain, chairman; Messrs. Tipton, to such an extent, or had been productive of such caShe pley, Swift, Brown.
lamitous results, as it appeared to have raged, for so On the Judiciary.--Mr. Clayton, chairman; Messrs. many hours, in the most crowded part of that great Buchanan, Leigh, Preston, Crittenden.
commercial capital. A strong expectation prevailed On the Post Office and Post Roads.--Mr. Grundy, out of doors that Congress would do something for the chairman; Messrs. Robinson, Ewing, Knight, Davis. relief of the sufferers. In cases of much less extensive
On Roads and Canals.-Mr. Hendricks, chairman; mischief, relief had, in some form, been given by ConMessrs. McKean, Robinson, Kent, Robbins.
gress. He could not take it on himself to say what reOn Pensions.-Mr. Tomlinson, chairman; Messrs. lief was expected in this instance; but,'as he had already Tallmadge, Linn, Prentiss, McKean.
said, there were already signs of strangely excited exOn the District of Columbia.-Mr. Tyler, chairman; pectation that something would be done by Congress in Messrs. Kent, Naudain, Southard, King of Alabama. the way of extending relief. In some former cases, he
On Revolutionary Claims.-Mr. Moore, chairman; believed, there had been an extension of the time for Messrs. White, Hubbard, Leigh, Shepley.
the payment of duty bonds, and other modes might be On the Contingent Expenses of the Senale.- Mr. Mc combined with that. He was not at this moment preKean, chairman; Messrs. Tomlinson, Brown.
pared to recommend, or even to propose, any specific On Engrossed Bills.-Mr. Shepley, chairman; Messrs. measure. The city of New York was represented in Hill, Morris.
the other branch by gentlemen who were in the habit Mr. KING, of Alabama, with leave, introduced a bill of constant intercourse with their constituents, and they for the better organization of the district court of Ala would be best enabled to devise some mode of relief. bama, which was read twice, and referred to the Com For one, he was disposed to do all which the constitumittee on the Judiciary.
tional power of Congress would permit him to do. It The Senate concurred in a resolution of the House might be considered as the best course, at present, to of Representatives concerning the election of chaplains; wait for some action on the part of the other House, beand
fore any report was made from the committee. But, in The Senate adjourned to Monday. ,
the mean time, they could have the subject under their
consideration. He hoped the resolution would be adopt. MONDAY, DECEMBER 21.
ed to-day, and that the public expectation would be thus
far gratified. John M. Niles, a Senator from Connecticut, ap
The resolution was adopted. pointed to fill the place of the late NATHAN SMITH, ap. peared and took his seat.
NORTHERN BOUNDARY OF OHIO. Mr. TOMLINSON presented the credentials of John Mr. EWING, pursuant to notice, rose to ask leave to M. Niles, appointed by the Executive of Connecticut | introduce a bill to define and settle the northern boundto fill the vacancy occasioned by the death of the hon ary line of the State of Ohio. orable NATIAN SMITH.
Leave being granted, Mr. Ewing introduced the bill; Mr. Niles was then sworn.
which was read, and ordered to a second reading. SMITHSONIAN INSTITUTION.
On introducing this bill, Mr. EWING addressed the
Chair in the following speech: A message was received from the President of the
Mr. President: I feel it due to the importance of the United States, by Mr. Donelson, his secretary, as fol measure which I propose, and to public expectation and lows, to wit:
public opinion in my State, that I present, at this early To the Senate and House of Representatives of the United
stage of the proceeding, a brief summary, at least, of States:
the question to which this bill will give rise. I feel it
the more important to do so, as public opinion abroad, I transmit to Congress a report from the Secretary of
throughout the Union, has been assailed, and in some State, accompanying copies of certain papers relating
measure pre-occupied, with papers issuing from various to a bequest to the United States, by Mr. James Smith
quarters inimical to the proposed measure; papers in son, of London, for the purpose of founding, at Wash
which a one-sided view of the case has been presented; ington, an establishment, under the name of the “Smith
and in some instances erroneous statements of public sonian Institution,” for the diffusion of knowledge
documents have, in the over-zeal of individuals to estabamong men. The Executive baving no authority to
lish their favorite position, been sent abroad as a part take any steps for accepting the trust and obtaining the
of the political history, and of the law and truth of the funds, the papers are communicated with a view to such
case. I wish, in behalf of Ohio, that the facts as they measures as Congress may deem necessary. ANDREW JACKSON.
exist may go forth to the public in such small compass,
that they may be seen, examined, and understood. And WASHINGTON, December 17, 1835.
I wish, by reference to documents here, and all the docThe message and documents were ordered to lie on uments that I think bear upon the question, to lighten the table.
the labor of gentlemen who wish to examine it and form SUFFERERS BY FIRE AT NEW YORK.
their judgment. This being my object, I shall attempt
little argument, and indulge in no digression. Mr. WEBSTER offered the following resolution, | This bill, so far as it relates to Obio, is the same in all and moved its consideration at this time; which was its provisions with that which I have twice offered in the agreed to:
Senate, which has twice passed this body, and which Resolved, That the Committee on Finance be instruct has been twice lost among the unfinished business of the ed to inquire what measures should be adopted by Con- | House. A few words are necessary, however, to exgress in consequence of the destruction of merchandise plain the full purport of its provisions. The act of Conand other property by the late fire in New York. I gress of the 30th April, 1802, "authorizing the inhabit
Mr. WEBSTER then offered a few observations onants of the eastern division of the Northwestern Territhe circumstances and extent of the fire. There had | tory to form a constitution and State Government,” dibeen no example in this country of a fire of such mag. rects that the contemplated State shall be bounded “on nitude. There was no place where the ravages of this the north by an east and west line drawn through the destructive element had continued for such a period and southerly extreme of Lake Michigan,” “running east
Northern Boundary of Ohio.
[Dec. 21, 1835.
until it shall intersect Lake Erie, or the territorial line; constitution. And there would seem to be the most obthence, with the same, through Lake Erie, to the Penn. | vious propriety and policy in according it, having a due sylvania line." Under this law the convention met, and / regard to the great leading features of our country in formed the constitution of Ohio; but fearing that the its civil divisions, if, indeed, Congress have the power mouth and estuary of an important river, which had its to do so without the infringement of a compact, or the course within the State, would be excluded by the pre- | violation of national faith. scribed boundary, the convention accepted it, with a This measure has long been a subject of discussion. proviso which is found in the sixth section of the sev. Those who oppose it contend that Congress, by the enth article of the constitution, and is in the following terms of the deed of cession from Virginia, by the ordiwords:
nance of 1787 for the government of the territory north"Provided always, and it is hereby fully understood and west of the river Ohio, and by their own subsequent declared by this convention, that, if the southerly bend acts, have been deprived of the power of extending the or extreme of Lake Michigan should extend so far south boundary of either of the southern States of the Norththat a line drawn due east from it should not intersect western Territory, Ohio inclusive, north of an east and Lake Erie, or if it should intersect the said lake east of west line drawn through the southerly extreme of Lake the mouth of the Miami of the Lake, then, and in that Michigan. And the first and most important inquiry is, case, with the assent of the Congress of the United whether Congress does now possess that power. To States, the northern boundary of the State shall be es. me, indeed, it seems a question of easy solution. tablished by, and extend to, a line running from the At the close of the revolutionary war, Virginia and southerly extremity of Lake Michigan to the most north Connecticut claimed each a portion of the Northwestern erly cape of the Miami bay," "thence, northeast, to the Territory. Connecticut ceded her jurisdiction without territorial line, and by the said territorial line to the any directions as to its future civil divisions, but VirPennsylvania line."
ginia required that the lands so ceded should be divided Now, sir, the position of Lake Michigan is proved to into States, “ containing a suitable extent of territory, be as was apprehended by the framers of the constitu not less than one hundred nor more than one hundred tion of Ohio. The southerly extreme of Lake Michi. and fifty miles square, or as near thereto as circum. gan is so far south that a line drawn from it due east stances will permit,” &c.; which provision was made in cuts off the mouth of the Miami of the Lake, and inter- accordance with a resolution of Congress of the 10th sects Lake Erie many miles east of that river; and this of October, 1780. bill copies substantially the above-recited proviso of the The country was at that time unexplored, and great constitution of Ohio, and will, if it become a law, give difficulties might have arisen from the fixing of any unthe express assent of Congress to the boundary desig- bending rules for the formation of new States, in respect nated therein. The objection to the boundary named to location and boundary. Congress soon became senin the act of Congress is best understood by reference sible of this, and, by their resolution of July 7, 1786, to a map of the country, which Senators will find upon | asked Virginia to revise her deed of cession. The pretheir tables. It will be seen that the Miami of the Lake, amble to that resolution shows what were the views and a large and navigable river, (the largest, I believe, wishes of that Congress in the formation of new memwhich flows northward into that chain of lakes,) has al bers of the federal Union, and what, I believe, has been most its whole course in Ohio, and its whole and entire (at least wbat ought to have been) the purpose of each navigable course in Ohio and Indiana, except the last succeeding Congress which has been called to act on eight miles, with its mouth and bay, or estuary, which this subject. It is as follows: is cut off by this east and west line, and thrown into | "Whereas it appears, from the knowledge already another jurisdiction--that of the Territory of Michigan. obtained of the tract of country lying northwest of the
I can acquit, at once, the framers of the ordinance of river Ohio, that the laying it out and forming it into 1787, and the Congress which passed the law of April new States, of the extent mentioned in the resolution 30, 1802, of the apparent neglect of the just interests of Congress of October 10, 1780, and in one of the of the great civil division of our country which com conditions contained in the cession of Virginia, will be prises the community which those acts called into being productive of many and great inconveniences; that, by They had fised, according to their belief of the geo. such a division of the country, some of the new States graphical relations of the country, boundaries to that will be deprived of the advantage of navigation; some Stale which were wholly unexceptionable. The line, will be improperly intersected by lakes, rivers, and as they had fixed it, did, as they believed, instead of cut. mountains; and some will contain too great a proportion ting off from Ohio the mouth of the Miami of the Lake, of barren and unimprovable land, and, of consequence, extend northward beyond the river Raisin, to the head | will not, for many years, if ever, have a sufficient numof the lake, or rather above it, near the mouth of the ber of inhabitants to form a respectable Government, Detroit river. I refer to an ancient map of the coun and entitle them to a seat and voice in the federal country, the same which was of the highest authority at the cil: And whereas, in fixing the limits and dimensions of time of the passage of the ordinance and the act of 1802, the new States, due attention ought to be paid to natuto show what was their purpose, and what were their ral boundaries, and a variety of circumstances which opinions as to this boundary. It is a singular case of an will be pointed out by a more perfect knowledge of the error affecting a division of land or a tract of country. country, so as to provide for the future growth and It is not a mistake in the position of an object which prosperity of each State, as well as for the accommoforms part of a boundary, but the position of a very re dation and security of the first adventurers: In order, mote oliject, lying in an unexplored region, from which | therefore, that the ends of government be attained, and a line was to be produced in the given direction, until that the States which are formed may become a speedy it should touch the Territory in question, and form the and sure accession of strength to the confederacy, boundary.
"Resolved, That it be, and is hereby, recommended But the difficulty will be remedied by adopting the to the Legislature of Virginia to take into consideration bill which I vow offer. It will give to Ohio, not all that their act of cession, and revise the same, so far as to was supposed and intended by the Congress which fra. empower the United States in Congress assembled to med the act of 1802, but it will give her all that is impor-make such a division of the territory of the United tant to her internal improvements and commercial inter: States lying northerly and westerly of the river Ohio, ests, and all that was asked for by the framers of her l into distinct republican States, not more than five nor Dec. 21, 1835.)
Northern Boundary of Ohio.
less than three, as the situation of that country and fu- of Michigan,” which appeared in the Intelligencer of ture circumstances may require; which States shall the 5th instant. The writer is unknown to me, but the hereafter become members of the federal Union, and editors say it is “from a highly intelligent and respect. have the same rights of sovereignty, freedom, and inde. | able source.” The sentence in that “exposition,” in pendence, as the original States, in conformity with the wbich a clause in the ordinance of 1787 is misstated, is resolution of Congress of the 10th of October, 1780.” as follows:
By this resolution Congress asked for authority to “By the ordinance of 1787, whenever any of the change nothing relative to the contemplated States in States or Territories in the Northwestern Territory the Northwestern Territory, except the extent and shall have sixty thousand free inhabitants, such State boundaries; and they asked for discretion for the pur-shall be admitted, by its delegates, into the Congress of pose of adjusting their boundaries to suit the natural | the United States, on an equal footing with the original features of the country. And this discretion (which States, in all respects whatever, and shall be at liberty was accorded by Virginia) is, if I can read and under- to form a permanent constitution and State Governstand the laws and ordinances aright, continued over
ment.'» the whole northern portion of that country down to I call the attention of the Senate to the word Territhe present day.
tories, in that part of the paragraph which is introducThe extent of the powers thus retained by Congress tory to the quotation from the ordinance, and which depends upon the ordinance of 1787 for the govern fixes the sense of that quotation. That word is an inment of the Territory northwest of the river Ohio. Iterpolation in language, and it changes the whole sense join in all that has ever been said in praise of this inval. of thc paragraph. It is not to be found in the text uable charter. It has been called irrevocable--so it is, quoted, nor in the context, nor any word or words as long as the faith of the nation is regarded. It has which convey an equivalent meaning to it, in the conbeen called a sacred instrument-I hold it so. Next to nexion in which it is here introduced. And, unfortuthe constitution itself (of which, indeed, this ordinance nately, this single word, thus thrown in, is the one on is by adoption a part) I hold it the most sacred among which the whole argument in behalf of Michigan and the muniments of our national liberty. But it does not, her rights to this territory must hinge: take that away, therefore, follow that every manner of pretension must read the ordinance truly, as it is written, adding nothbe sanctioned wbicb any one thinks fit to advance in its ing and suppressing nothing, it does not leave them name.
ground whereon to rest the soles of their feet. It is The question of the power of Congress over this dis the fifih article of that ordinance (1st vol. Laws of the puted territory grows out of the fifth article of the or United States, page 480) that has been thus misused. dinance. I need not trouble the Senate by reading that That article declares that there shall be formed, in the article; a simple analysis of its provisions, so far as they Northwestern Territory, three States; it defines their touch the present question, will suffice.
boundary on all sides except the north, as the States of 1st. It ordains that Congress shall form not less than Ohio, Indiana, and Illinois are now bounded; and it exthree, nor more than five, States within that Territory. tends them all northward to the northern boundary of
2d. J: defines the boundaries of three of those States, the United States, which is there called the territorial according to the present boundaries of Ohio, Indiana, line. It then provides that “the boundaries of these and Illinois, on all sides except the north; and it ex. three States shall be subject to be so far altered, that, if tends them all northward to the boundary line of the Congress shall hereafter find it expedient, they shall United States.
have authority to form one or two Slates in that part of Sd. And it provides that “the boundaries of these the Territory which lies north of an east and west line three States shall be subject to be so far allered, that, drawn through the southerly bend or extreme of Lake if Congress shall hereafter find it expedient, they shall Michigan." Then follows the misquoted clause, wbich have authority to form one or two States in that part of is in these words: “ And whenever any of the said the Territory which lies north of an east and west line States shall have sixty thousand free inhabitants therein, drawn through the southerly bend or extreme of Lake such State shall be admitted, by its delegates, into the Michigan.”
Congress of the United States, on an equal footing with It appears to me clear, by the mere reading of the the original States, in all respects whatever, and shall latter part of this section, of which I give the words, be at liberty to form a constitution and State Governthat all the obligation imposed upon Congress was to
ment." form three States in said Territory, the northern bound I am bound, in courtesy, to believe that the misrep. ary of any of which should not be pressed farther south | resentation of this clause of the ordinance, by the writhan the southerly bend or extreme of Lake Michigan; ter who thus volunteers to instruct the community on that the east and west boundaries of each of the three this subject, was a mistake. But if any one can find in States should be fixed within the limits prescribed; and | the clause of the ordinance referred to by that writer, that the northern part of the Territory should be form and which I have just read, a vested right in this Terri. ed into States, or attached to the southern States, or tory (which is not formed by the ordinance or by act of part of it be formed into one or two States, and part of Congress into a State) to come into the Union when its it attached to the State lying immediately south of it. inbabitants shall be sixty thousand, or to hold fast, perOne or two States may be formed by Congress in that manently, against the will of Congress, to the boundapart of the Territory which lies north of the east and ries fixed for it as a Territory, for the express purpose west line above named; but it is not said that they shall of temporary government, he must have perceptions be formed of that territory, or of all that territory. It and reasoning faculties of a different order from those were hard to reason on the subject; the ordinance itself which are possessed by the rest of mankind. Indeed, is as clear to the point which I would sustain as any lane when the ordinance is set out truly, as it is, no one will, guage I can use in support of it; and it is only by pass I think, be able to draw any such inference from it. ing over, or interpolating, or modifying its provisions, Congress had the right, by virtue of their general either in statement or in argument, that a doubt has powers, without any express compact authorizing it, to been raised as to its interpretation.
erect territorial Governments, such as they might see fit, I will refer, by way of specimen, (and it is not the as to number, extent, and boundary, and to change and only one in which public documents have been thus | modify them at pleasure. So at least it has been held, treated in this contest,) to an article entiiled “The case I and such has been the practice of the Government.
Northern Boundary of Ohio.
[Dec. 21, 1835.
And if they have not this power, the Territory of Michi- agrees with the line named in the ordinance; but it introgan was created without authority; for the ordinance of duces another call, “ Lake Erie, or the territorial line; 1787 expressly authorizes a division of the Northwest. | and thence, with the same, through Lake Erie, to the ern Territory into no more than "two districts;" | Pennsylvania line;" making a totally different northern and this express authority was exhausted by the act boundary. The two lines run together until they touch of the 7th of May, 1800, which divided the North Lake Erie, then diverge widely. The line named in western Territory into two separate Governments. I the ordinance runs through the southern bend of Lake take it, therefore, for granted, that the general power | Erie, and, passing out of it, cats off a large extent of will not be disputed by the advocates of the claims of territory, with fifty or sixty thousand inhabitants, in the Michigan; and if it be not, why do they fix upon, as the northeast corner of the State of Ohio, to which Michigan boundary to which they have a permanent right, that has the same right, by virtue of the ordinance, that she assigned to the Territory, “for the purpose of a tempora has to the country north of that line and south of the ry Government,” by the act of 11th January, 1805, northern cape of the Miami bay. But Congress did not instead of either of the other acts fixing other limits? consider themselves bound by the ordinance to pursue That act is neither the first nor the last which gave a that line, or they acted under a mistake as to the true temporary Government to the inhabitants of the country position of Lake Michigan; the bearing of which error included in that Territory. It first formed a part of the I will by and by consider. Government of the Northwestern Territory. It was in the formation of the State of Indiana, Congress next divided between that Territory and Indiana. It disregarded this assumed restriction in the ordinance, or was, in the next place, attached wholly to Indiana, and they had failed to discover it. That State is extended made to form a part of it; next, it was formed into a ten miles north of the southerly extreme of Lake Michiseparate Territory, “ for the purpose of a temporary ) gan; and Illinois, which was admitted a few years after, Government;" and, lastly, the whole residue of the North- 1 is extended north about thirty-five miles further than western Territory was attached to it, and formed with it Indiana, and within a few miles of the line of latitude one Territory for a like purpose, and remains, and is which, according to the old maps, (to which I shall by part and parcel of it, at this day. How, then, can it be | by more particularly refer) cut through the southerly with reason contended that the limits of the local Gov. extreme of Lake Michigan. The mistake which had ernment, to which the inhabitants of this tract of coun- / been made in the position of the object of that call was try owed allegiance, should, in its fourth modification, substantially corrected in the case of Illinois. though never before, be holden fixed and immutable!! I need not now advert to the unhappy consequences There are no words in the law to countenance it, save which would flow from holding the east and west line, what are also contained in the other laws fixing the named in the ordinance, as a fixed and immovable boundboundaries of the several territorial Governments, which, ary: the question is too clear, by the very language of by different names, were from time to time extended, the ordinance itself, and the legislative constructions of in whole or in part, over this peninsula. On the whole, it have been too frequent and unequivocal, to require that law gives to the inhabitants of that part of the Terri- this auxiliary aid in settling the principle; still it ought tory of Michigan no vested right to come into the Union not to be forgotten that the establishment of the doctrine as a State with those particular boundaries assigned | contended for by Michigan involves, as its consequence, them; it therefore throws no obstacle in the way of the dismemberment of three States of this Union, and extending, or adjusting and defining, the boundaries of the bringing of a large number of their citzens under a the States of Ohio and Indiana north of the east and west Government which they did not help to form, and to line above referred to, even if we adınit that line to have which they have never yielded, and to which I believe been once made the boundary of the Michigan Terri- | they never will yield, their willing allegiance. ory.
Having, as I trust, established the position, (if any I believe it has not been denied, by those who advo. arguments were necessary to establish it,) that Congress cate the claims of Michigan, that Congress bad a right to has power to pass this act, without violating the constiextend all or either of the three southern States north tution or the compact, or any principle which ought to to the territorial line, according to their limits as set out govern legislators, I will now proceed to offer some in the first part of the 5th article of the ordinance; but reasons why the proposed adjustment of boundary ought they contend that Congress must include in each of those to be made. States all or none of the territory which lies within its' First, then, it was the intent of the framers of the limits north of that line; that they cannot include a part, ordinance of 1787 that the northern line of each of the and exclude another part; that an option is given them three southern States should extend north of the points in fixing the boundaries of those States on the north, over which that east and west line is, by actual observabut no discretion beyond the mere choice of one of the tion and survey, found to pass. This intent is proved two lines. In aid of the several arguments which I have by the clearest evidence. At the time of the passage advanced against this position, I will now adduce a series of that ordinance, we had no information of the country of acts of Congress showing a legislative construction north and west of Lake Erie, save what we derived from of their own powers.
observations made or collected under the colonial Gov. The east and west line named in the ordinance of ernment. A map of that country, published in 1755, 1787 has but a single call, “the most southerly bend or ) and still familiarly known as Mitchell's map, was the extreme of Lake Michigan;" it has no terminus to the first in authority in England and America, from the east or the west; it of course passes across the whole time of its publication until long after the date of the territory; and if the position be correct that Congress ordinance." It is said to have been the map referred to could not extend any State beyond that line without in- | by the American and British commissioners at the treaty cluding all the territory wbich lay beyond it and due of peace in 1783. And in the particulars in which it north of such State, then Congress, in the formation of bears upon the present question, it was copied, or very the State of Ohio, and the designation of its boundary, I closely followed, in all the maps which appeared in our has violated the ordinance. In the act of April 30, 1802, I country from that time until after the close of the late under which Ohio was authorized to from a State Gov. war. That map, and indeed every contemporaneous ernment, the line running due east from the southerly map that I have seen, fixed the latitude of the southern extreme of Lake Michigan is taken in part as the north. l extreme of Lake Michigan about 42° 20' north, or about ern boundary of the contemplated State. Thus far it I forty-five miles north of its actual position, and so
Dec. 21, 1835.)
Northern Boundary of Ohio.
situated with regard to Lake Erie, that a line running United States and Great Britain to mark the boundary due east through it would touch the lake near its head, between the two countries, under the treaty of Ghent. or the Detroit river a little north of its entrance into the This duty was performed. This line was marked with lake. I have laid upon your table, and on that of each great care through the western part of Lake Erie, and of the Senators, a copy, on a reduced scale, of this map, the map showing its position is among the archives of as it is preserved in the State Department; by which state. I hold in my hand a letter from Thomas P. Jones, may be seen, at a glance, the position of those lakes and keeper of the archives, directed to Mr. Viston, of the of that line, as it was then believed and understood to exist. Ohio delegation in the House of Representatives, dated Congress had earnestly sought the power of fixing the January 7, 1835, in which he states that he has careful. limits of the proposed States according to natural boundly examined the map of Lake Erie, as laid down and aries, so that none of them should be improperly inter- | marked out by those commissioners, and that he finds sected by rivers or lakes, and so that there should be the latitude of the most southern point to be 41 deg. secured to each such natural advantages of navigation 39 min. 43 sec., as nearly as he can ascertain by the as most properly pertained to it. They obtained that scale, but that the measurement may possibly vary a power, and intended to exert it for the benefit of each second or so from the truth. So that the east and west of the new States; and, in fixing that east and west, they line would not touch the northern boundary line by obviously intended to prohibit any future Congress from about three miles. I understand, however, (for I have bringing down the northern line of that State, which is not yet seen the report,) that the Department bas at last now Ohio, south of a line which would touch Lake brought the two lines together. Lake Michigan, I beErie near its head, or the Detroit river above the lake. lieve, still holds its first position--its southern extremity Ought that intent to be defeated by a mistake, by would move no farther north; but the boundary line misinformation as to the position of a natural object in between the United States and Great Britain has been a hostile country, remote from any part of the State found more flexible, and has come abou: four miles whose boundary was to be fixed? We are of opinion south of the point at which it was fixed by the commisibat the intent of the framers of that ordinance ought sioners under the treaty of Ghent. This has, it is true, to be carried into effect, so far as it is necessary for the been an ex parte proceeding by the United States; but well-being of the State that it should be so.
Great Britain cannot object to it, as it gives her (if the It can be shown that the same intent prevailed with new position of the line be adhered to) jurisdiction over the Congress who passed the act of 1802, under which many miles of the surface of the lake, which was assignOhio framed ber constitution, and came into the Union ed by the joint commissioners to the United States. as a sovereign and independent State. The line desig. For the present, however, I am disposed to consider the nated as her northern boundary is the same as tbat be. line run by the commissioners of the United States and fore referred to, laid down on Mitchell's map. That Great Britain, in pursuance of a treaty stipulation, as the map then hung, as I have been informed, in the commit true boundary between the two countries. Taking, tee-room of the committee of Congress who reported that then, the position of the southerly extreme of Lake Michlaw. That there was a mistake in the position of this line igan, as found by Captain Talcott, and the southern by the Congress which enacted the law of April 30th, 1802, point of the northern boundary line of the United States is proved further by the fact that the boundary they affix in Lake Erie, as settled by the commissioners, and as to Ohio is an impossible boundary. The law provides measured on their map by the keeper of the public arthat the northern line shall run due east through the chives, it is clear that these lines do not close, and that one southerly extreme of Lake Michigan, until it intersects of them must be varied by legislative enactment or judi. Lake Erie or the territorial line; thence, with the same, cial construction, or the State of Ohio has no boundary. through Lake Erie, to tbe Pennsylvania line. This bound. This state of things could not have been in accordance ary, therefore, is based on the assumption that that east with the intent and purpose of the framers of the law of and west line will touch the territorial line (which is the April 30, 1802. nurthern boundary line of the United States) in Lake ''The line, then, so far as it touches the boundary of Erie, or north of it; otherwise it could not, without Ohio, was intended, by the Congress of the United changing its direction, run with it, through Lake Erie, / States, to be where it appears on Mitchell's map, and the to the Pennsylvania line.
other maps of the day. If this were the case of two inBut that line does not touch the northern boundary dividuals contracting for the transfer of land, who had line of the United States at any point in Lake Erie. The been governed in their contract by a plat spread out beact of the 14th July, 1832, directs the President “to cause fore them, and if such contract had been made, and such to be ascertained (among other things) by accurate map exhibited as showing the boundary between them; observation, the latitude and longitude of the southerly I ask every land lawyer here, if a reference in the deed extreme of Lake Michigan." Also, “that he cause to to some remote object, as that from which one of the be ascertained, with all practicable accuracy, the lati boundary lines should emanate, when the position of tude and longitude of the most southerly part in the that object was proved to have been mistaken by the northern boundary line of the l'nited States in Lake parties, would control the bounds of the grant? In equity Erie.” The performance of this duty was, as a matter would it? Would it between man and man, the facts bes of course, assigned by the President to the War Depart. ing fully made out? Would it be permitted to deseat ment. And among the executive documents of 1833–'34, the manifest intent and purpose of both parties? We vol. 6, doc. 497, is found the report, in part, of the en- know well it would not. We know that where the lines gineer employed to perform that service. He fixes the and bounds of a tract of land are shown by the vendor latitude of the southern extreme of Lake Michigan at to the purchaser, either upon the grouud or on a plat, 41 deg. 37 min. 7.9 sec. north. His observations as to and the description in the deed does not cover it, no the southern point of the northern boundary of the matter whether by accident or design, a court of equity United States in Lake Erie do not lay claim to accuracy, will hold the conveyance to be according to the boundbut he supposes it to be in latitude 41 deg. 38 min. 38ary shown, and so correct the deed. In the acts of Gore sec., being north of the east and west line one mile one ernments, there is no distinction between law and equity. thousand four hundred and forty yards. But there was The appeal to law, as it regards a nation, is an appeal another and better mode of ascertaining the last-named to the national sense of justice; and an obligation much fact than that adopted by the Department. It will be less strong than that which would move a court of equity, remembered that commissioners were appointed by the l in the case of an individual, ought to be sufficient, especial.