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vernment. The Territory of Michigan could then have no more legal right to claim admission into the Union, according to the boundaries with which she was organized, than the Missouri Territory had, or than the Territory of Arkansas has now, or than any of the Territories which have at different times been organized south of the Ohio, and east of the Mississippi rivers. Those Territories, with but one exception, had not the right of admission into the Union, with any specified number of inhabitants ; nor had they secured to them any fixed and permanent boundaries. They, therefore, on their several admissions into the Union, had no legal rights, either on account of boundaries or population; and this fact has probably contributed to produce a general impression, that all our Terri. tories are similarly situated, and that all questions in relation to their admission into the Union, and in relation to the boundaries prescribed for them, are strictly legislative questions.
This impression, however, is widely incorrect in relation to all the States and Territories that have been formed in the territory northwest of the river Ohio. The people of every part of that territory had important rights guarantied to them by the ordinance of 1787_rights, both in reference to population and boundaries, of such a nature as to make all questions in relation to the latter JUDICIAL QUESTIONS, and questions which must be decided according to the laws and ordinances of Congress, and not as a mere matter of expediency.
To return from this digression. So far we see that Congress always understood the northern boundary of Ohio to be a line drawn due east from the souther extreme of Lake Michigan. The next law relative to this subject, is the act of Congress of the 20th May, 1812, entitled " An act to authorize the President of the United States to ascertain and designate certain boundaries," and is in the following words, viz. “ Be it enacted, That the surreyor general, under the direction of the President of the United States, be, and he is hereby, authorized and required (as soon as the consent of the Indians can be obtained) to cause to be surveyed, inarked, and designated so much of the western and northern boundaries of the State of Ohio, which have not already been ascertained, as divides said State from the Territories of Indiana and Michigan, agreeably to the boundaries as established by the act entitled • An act to enable the people of the eastern division of the territory northwest of the river Ohio to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes,' passed April 30, 1802 ;” and cause to be made a plat or plan of so much of the boundary line as runs from the southerly extreme of Lake Michigan to Lake Erie, particularly noting the place where the said line intersects the margin of said lake, and to return the same, when made, to Congress.
It will be observed that the above act provides that the northern boundary line of Ohio “shall be surveyed, marked, and designated, agreeably to the boundaries established by the act of Congress authorizing Ohio to form a constitution and State Government,” and not in conformity to the proviso contained in the sixth section of the seventh article of the constitution of the State of Ohio. It will not be unimportant that this fact should be borne in mind.
The war of 1812, and the hostile feelings of the Indians on the northwestern borders of Ohio, for some time afterward, delayed the survey and
establishment of the northern boundary of that State, as here provided for, until 1818, at which time the work was completed, and returns were made to Congress.
Thus we see that the whole legislation of Congress, from the ordinance of 1787 down to the present time, has uniformly, invariably, and expli. citly, pointed to, and recognised, a line drawn due east from the most southern extreme of Lake Michigan, until it intersects Lake Erie, as the northern boundary of Ohio, or the boundary line between that State and the Territory of Michigan. In examining acts so clear, so positive, and so explicit as they are, it would be impossible to conceive what the ingenuity of man could devise as a reasonable foundation for the claim of Ohio to any portion of country north of the line here spoken of. The inquiry would be natural. On what can Ohio rest her claim.? On what can she possibly place the least reliance? It is evident that no one, or even two acts of Congress, however clear and positive they may be in her favor, can outweigh so many acts, and so long a course of legislation. She must have something of greater weight to do this, something paramount to any act or acts of Congress whatever. What is it? Why, after all the reasoning which the delegation from Ohio have found it necessary to use, to place their claim in the strongest possible light; after the whole story has been told, and every thing admitted according to their statements, the strong position relied on to upset and render void all other legislation of Congress on this subject, is simply the implied assent of that body to an unauthorized act of the Ohio convention ! Congress authorized the people of the Northwestern Territory, living within certain well defined boundaries, to form a constitution and State Government. The people living within those boundaries, in pursuance of this authority, assembled in convention, and formed a constitution, agreeably to the act giving them authority. The convention then added a clause, (not contemplated by the authority under which they acted,) providing that in a certain event, and " with the assent of Congress,” the State which they then represented should include a tract of country north of, and beyond, the limits mentioned in the law under which the convention acted. Congress, by the preamble to the act providing for the execution of the laws of the United States within said State, declared that the said State had formed a constitution and State Government, in pursuance of the act of Congress giving them authority to do so. No notice whatever being taken of the proviso in the constitution, (which was not in pursuance of the said act of Con. gress,) it is therefore contended that Congress assented to, and accepted of, said proviso, as well as of every other
part of the constitution. This is a brief but fair and correct statement of the case; and strange as it may appear, so far as law is concerned, this is the ground, and the whole ground, on which Ohio rests her claim! Well may some of the delegation from that State strive, as they have done, to propagate the notion that this question of boundary between Ohio and Michigan is not a judicial question; that Michigan has no rights, and that Congress are wholly un. trammelled by former legislation, and can now settle the matter as they choose ; for unless some such loose notions can be set afloat, and taken advantage of, it will probably be found that the ground on which this claim stands is entirely too narrow, notwithstanding it was so boldly proclaimed to the committee, in the outset, that the claim of Ohio would be perfectly good in a court of strict law. This claim avowedly rests alone
on the implied assent of Congress to certain distinct propositions of the convention of the State of Ohio. The first question naturally occurring is, what reason is there to infer such assent? It cannot be inferred from the acceptance of the constitution of the State of Ohio, as a whole, because the only questions necessary for Congress to ask, in relation to that constitution, were, " is it republican?" Does it secure to the people of Ohio the political rights and privileges guarantied to them by the ordinance of Congress of the 13th July, 1787? These were the only qualifications required by said ordinance for the admission to the Union of any of the new States in the Northwestern Territory, and if these questions could be answered in the affirmative, Congress was not at liberty to refuse, and could not refuse, to accept the constitution of Ohio, even though it had contained a hundred propositions, which the convention had no authority from Congress to place there, and which, if they belonged any where, properly belonged to another place.
The fifth article of the ordinance of 1787, which has been before quoted, expressly says : “ And whenever any of the said States shall have sixty thousand free inbabitants therein, such State shall be admitted, by its de. legates, into the Congress of the United States on an equal footing with the original States in all respects whatever, and shall be at liberty to form a permanent constitution and State Government: Provided, The constitution and Government so to be formed shall be republican, and in conformity to the principles contained in these articles ; and so far as it can be, consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants than sixty thousand."
Congress having decided that the admission of Ohio into the Union was consistent with the general interest, passed a law, approved on the 30th day of April, 1802, fixing permanently the boundaries of the State, and authorizing the people living within those boundaries to form a constitution and State Government. Whenever, therefore, in pursuance of this law, the people of Ohio had formed a constitution, and that constitution had been examined, and found republican in its character, Congress could not refuse the State admission into the Union on the same footing with the original States, even though her constitution had contained any number of extravagant propositions, which it could never have been the intention of Congress to sanction. How then could such admission into the Union be construed to imply the assent of Congress to the proposition of the convention to change the boundaries of Ohio ? These boundaries had been permanently fixed by the law of Congress under which the convention acted. That law authorized the convention to form a constitution and State Government, but gave them no authority whatever to enter into a negotiation about boundaries, which is a very different thing from forming a constitution within boundaries already given.
The boundaries of the State having, as has just been observed, been fixed by law of Congress, the convention could not change them, nor could they, without manifest impropriety, insert in the constitution any proposition to that effect. They could not, because, in the first place, they were not authorized or expected to do so ; in the second place, because they were not elected for that purpose by the people; and lastly, because the constitution, for reasons heretofore assigned, is not a proper place for any proposition of this sort. If it could with propriety have been made
by the convention, such a proposition would, beyond doubt, properly have belonged, with the other propositions which were embodied in an ordinance by the convention, and with the constitution submitted to Congress.
Such seems to have been the opinion of a committee of the House of Representatives, consisting of Mr. Randolph, Mr. Elmendorf, Mr. God. dard, Mr. Henderson, and Mr. Archer, to whom was referreu, on the 23d December, 1802, " a letter from Thomas Worthington, an agent appointed by the convention of the State of Ohio, enclosing a copy of the constitution of said State, and an ordinance passed by said convention, containing certain propositions for the consideration of Congress, with instructions that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House." (See H. Jour, vol. 4, page 258.)
In pursuance of these instructions, this committce, on the 20 February, 1803, made their report, the preamble to which is in the following words, viz. 6. The committee to whom were referred a letter from Edward Tiffin, president of the convention of the State of Ohio, and a letter from Thomas Worthington, special agent of said State, enclosing the constitution thereof, together with sundry propositions in addition, and in modification of those contained in the act entitled . An act to enable the people of the eastern division of the territory northwest of the river Ohio to form a constitution and State Government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes,' report,” &c. &c. After speaking of several propositions relative to donations of land, the report proceeds to say: 6. 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.”
The preamble to the report from which the foregoing extract is taken, is here copied, as is the extract itself, for the purpose of showing how far one of the Ohio delegation (Mr. Vinton) is in error', when he says, in his written argument on this subject, that this report " was not a report on the constitution of Ohio, nor had it any thing to do with that constitution." It would appear by the extract from the Journal of the House, before quoted, that the constitution was referred, with other papers, to this committee, and that they were instructed to report their opinion thereupon to the House.
By the preamble here copied, it appears that the committee did report their opinion to the House, not in part, but in full, on all the subjects referred to them, so far as they deemed it necessary to report at all. The ex. tract here quoted relates particularly and exclusively to the proposition in the constitution of the State of Ohio, on which the delegation from that State found their claim in the present controversy. Can it be said then that this report “has nothing to do with the constitution of Ohio ?” It is the only report ever made in the House of Representatives, either upon that constitution, or upon any of the papers accompanying it; and the extract from it, which has been quoted, is the only report, or part of a report, ever made in either House of Congress, relative to the proposition in the constitution of Ohio, which is now the sole ground of controversy between that State and the Territory of Michigan.
For a lucid and able exposition of the grounds of dispute between Ohio and Michigan, I beg leave to refer the committee to the message of Governor Cass to the Legislative Council of Michigan Territory, in 1831, an ex. tract of which is appended to this letter, and I also beg leave to refer the committee to two very able letters on this subject written in 1820 by the Hon. William Woodbridge, then secretary of the Territory, and (in the absence of Governor Cass) the acting Governor thereof. One of these letters was addressed to Governor Brown, then Governor of Ohio, and the other to the Secretary of State of the United States.
At Detroit, where the message of Governor Cass, and the letters of Judge Woodbridge, were written, access to congressional documents could not be had, and being obliged to rely on memory alone for both the words and sentiment of the foregoing report of Mr. Randolph, on the proviso in the constitution of Ohio, on which that State, rests her claim, it is not surprising that some slight inaccuracies should have been committed. On comparing the said report of Mr. Randolph with what those gentlemen have said on the subject, such seems to have been the case. The error, however, is quite unimportant. The sentiment expressed is substantially the same, and those who think to weaken the arguments of Governor Cass and Judge Woodbridge, by showing the sentiment of Mr. Randolple's report to have been incorrectly stated, will probably be disappointed.
It will be found, on referring to that report, that it bears quite as strongly against the claim of Ohio as has ever been stated by those gentlemen. It will be observed that, instead of one reason, as mentioned by Governor Cass and Judge Woodbridge, the report itself assigns two reasons why the committee thought it unnecessary to take the proposition of Ohio into consideration. The first was that that proposition depended on a fact not then ascertained. This certainly might be considered a good reason why Congress should not act upon the proposition at that time, and it is a good reason why the same body should not attempt to change the boundary at the present time, for that fact is not yet ascertained. I beg leave to state distinctly and positively that the fact that a due east line from the southern extreme of Lake Michigan will not intersect the national boundary in Lake Erie, is not yet ascertained. On the contrary, it is known that such a line will intersect the national boundary, or, if it does not, the difference will be so trifling that it can scarcely be told.
The other reason assigned in the report, why the committee thought it unnecessary to consider the proposition of the convention, is, that said proposition was “ not submitted in the shape of the other propositions from the convention to Congress.” If it were a proposition at all, it should have been placed among the other propositions, as has been before remarked ; and if it were not a proposition, it might be classed among the idle, nugatory, and unauthorized provisions in the constitution, of which the convention might have inserted a hundred; and still Congress, as has been before shown, would have been obliged to accept said constitution, provided it was republican in its character. Here are certainly two good and sufficient reasons assigned why neither the committee nor Congress should act on the subject at that time, and why they should leave the boundaries of Ohio as they were fixed in the law authorizing her to form a constitution. Congress did so leave them.
Congress did so leave them. On the 19th February,