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now claimed by their State, some of which obviously proceeded upon the supposition, that no assent had been, even impliedly, given by Congress to the extension of the boundary, for the purpose of noticing the legislative measures taken by Congress in relation to its designation. By the act of the 20th of May, 1812, the President was directed to cause to be surveyed, marked and designated, so much of the western and northern boundaries of the State of Ohio not already ascertained, as divides the State from Indiana and Michigan, agreeably to the act of the 30th of April, 1802. The line marked in pursuance of this law, is the one which has hitherto formed the actual boundary of the State, and to which the territorial authorities of Michigan now hold and claim jurisdiction. On the 14th December, 1831, a memorial to Congress of the Legislature of Ohio was presented in the Senate of the United States, praying that measures might be adopted by Congress for the speedy and permanent establishment of the dividing line between that State and the Territory of Michigan; and, in pur. suance of this memorial, an act was subsequently passed by both Houses, and on the 14th of July, 1832, approved by the President,“to provide for the taking of certain observations preparatory to the adjustment of the northern boundary line of the State of Ohio." This act directs the President “to cause to be ascertained, by accurate observation, the latitude and longitude of the southerly extreme of Lake Michigan; and that he cause to be ascertained by like observation, the point on the Miami of the Lake which is due east therefrom, and also the latitude and longitude of the most northerly cape of the Miami Ba : also, that he cause to be ascertained, with all practicable accuracy, the latitude and longitude of the most southerly point in the northern boundary line of the United States in Lake Erie; and also, the points at which a direct line drawn from the southerly extreme of Lake Michigan, to the most southerly point in said northern boundary line of the United States, will intersect the Miami river and bay; and also, that he cause to be ascertained by like observation, the point in the Mississippi which is due west from the southerly extreme of Lake Mich gan; and that the said observations be made, and the result thereof returned, to the proper department within the current year.
It is very obvious, from the provisions of this law, that all the questions of fact connected with this controversy, were carefully attended to in framing its provisions; and it is believed to be a fair inference from those provisions, that the existence of the particular geographical fact suggested in the Ohio Constitution, had not been so lately as 1832, ascertained with such certainty as to enable Congress to act upon the subject. The report submitted at the next session, of the progress made in the work, and of the time it would require, led to a provision in the general appropriation law of the 20 March, 1833, extending the time for making these observations and returns, until the 31st of December, 1835, and making further appropriations for the purpose. From the subsequent report of Captain Talcott, the engineer to whom the duties prescribed by the act of 1832, were committed, it appears that considerable progress has been made in their
execution, but that the whole of the present year will probably be required to complete them.
Without dwelling longer on this point, I have the honor to state, as the result of my investigations and reflections concerning it, that they have brought me to the following conclusions:
First. That the Congress of the United States, by receiving Ohio into the Union, without objecting to the proviso contained in the sixth section of the seventh article of her Constitution, implicdly assented to the proviso.
Secondly. That the assent thus given to the proviso, did not involve nor include an assent on the part of Congress, to the then actual and present extension of the northern boundary to the line mentioned in the proviso—it being the contemplation of the parties, that the decision of Congress on the question of giving or refusing such assent, should be made at a future day and by some future act, on the ascertainment of a particular fact, which has not even yet been duly ascertained.—And,
Thirdly, That until this last mentioned assent shall have been given by Congress, the tract in dispute must be considered as forming, legally, a part of the Territory of Michigan.
If I am correct in these views, it will then probably be admitted on all hands, that until the line provisionally fixed by the act of 1802, and the Constitution of Ohio, for the northern boundary of Ohio, and expressly fixed by the law of 1805, for the southern boundary of the Territory of Michigan, shall have been altered by Congress, or by the decree of some competent judicial tribunal, it will be the duty ofthe President to consider it as the boundary of the Territory of Michigan; and to protect and maintain, in accordance with it, and by such legal and appropriate measures as may be within his power, i he jurisdiction and sovereignty of the United Sta:es. Such, in my opinion at least, are the duties which now devolve upon him.
This leads me to notice the steps recently taken by the State and Territorial authorities, giving to the controversy the new and alarming aspect which has attracted the attention of ihe President.
On the one hand, the S'ate of Ohio has passed a law extending the bounds of her northern counties and the jurisdiction of the officers thereof, over the Territory in dispute; erecting part of that Territory into townships, and directing elections for township officers to be held therein on the first Monday of April next, and providing for the appointment of Commissione is to mark the line as claimed by Ohio. It is stated in the papers before me, that the Governor of Ohio has actually appointed Commissioners under this law, and that they are expected to enter on the performance of their duties, immediately after the first day of April next. It is also stated, that he has taken measures for supporting the Commissioners by a military escort, in the event of a forcible resistance, on the part of Michigan, to the execution of their duties.
On the other hand, the Legislative Council of Michigan have passed an act making it a criminal offence, punishable by fine and imprison
ment, in any person who shall exercise, or attempt to exercise, any official functions, or shall officiate in any office or situation, within any part of the present jurisdiction of the Territory, or within the limits of any of the counties therein, as now organized, by virtue of any commission or authority not derived from the Territory, or under its laws, or under the government of the United States, and also subjecting to the like prosecution and punishment, any person residing within the limits of Michigan, who shall accept of any office or trust from any State or authority other than the Government of the United States or Territory of Michigan.
The acting Governor of the Territory of Michigan, has issued orders to Brigadier General Brown, of ihe Militia of the Territory, intrusting him with discretionary powers to order each brigade of such militia, into actual service, so soon as the emergency requires it, and commanding him to arrest the Commissioners of Ohio “the moment they stick the first stake in the soil of Michigan.”? In anticipation that the Governor of Ohio may order a military force to sustain the Commissioners and officers of Ohio, General Brown is further commanded, “the moment he may learn that a military force of any description, ordered out by the authorities of Ohio, is about to approach the disputed territory, to place himself, with a suflicient force of a like character, on the ground in contestation, and to fire upon the first military officer or man who persists in crossing the boundary line, as at present claimed by Michigan, with any hostile intention, or disposition and determination, to prevent his execution of the previous orders."
The laws thus passed by the State and Territorial Legislatures, are equally irrepealable by the President. It is true that Congress have the power to annul any law of the Territory; but until so annulled, it will be obligatory on all persons within the limits of the Territory, unless repugnant to the Constitution of the United States, or to the acts of Congress applicable to the Territory. The act of Michigan does not appear to me to be liable to any such objection; and I must therefore deem it a valid law.
The act of the Legislature of Ohio extending the jurisdiction of that State over a part of the Territory of Michigan, is, as we have , seen, repugnant to the act of Congress of the 11th of January, 1805, erecting that Territory, and to the acts subsequently passed for its government; and its actual and complete enforcement would therefore involve a most serious violation of the laws of the United States. But I do not think that the mere running of the boundary line directed by that law, would, in itself, and without any attempt to exercise jurisdiction over the disputed Territory, constitute a criminal offence against any act of Congress. Nor would it so far obstruct the faithful execution of the laws of the United States, as to require any action of the President.
The mere running of the line, will, however, constitute an offence against the Territorial act of the 12th of February, 1835; and if the Commissioners of Ohio should attempt to execute the duties imposed
on them by the law of their State, prosecutions may be instituted against them in the proper courts of the Territory; although, if the action of Ohio should be confined to the designation of the line, it is not perceived that any necessity can exist for such prosecutions.
The 2:d section of the act of the 30th of April, 1790, “for the punishment of certain crimes against the United States,” provides, that, "If any person or persons shall knowingly and wilfully obstruct, resist, or oppose any officer of the United States, in serving, or attempting to serve or execute any mesne process, or warrant, or any rule or order of any of the Courts of the United States, or any other legal or judicial writ or process whatsoever, or shall assult, beat, or wound any officer, or other person duly authorized, in serving or executing any writ, rule, order, process, or warrant aforesaid; every person so knowingly and wilfuily offending in the premises, shall, on conviction thereof, be imprisoned no: exceeding twelve months, and fined not exceeding three hundred dollars” The obstruction by unarmed individuals, either singly or in numbers, of the process and orders issued and made by the officers of Michigan, would probably be reached by this law. An attempt by a military force, actually embodied, to suppress the jurisdiction of the Territorial officers, acting as they do under the laws of the United States, in the disputed tract, and to maintain therein the exclusive jurisdiction of Ohio, would expose the parties concerned, if the region in dispute be legally a part of the Territory of Michigan, to criminal prosecutions of a still more serious character.
In whatever form an encroachment may be made on the jurisdic, tion of the United States, in the Territory of Michigan, the only proper mode of resisting and correcting it, is through the instrumentality of the judicial tribunals. The same remark is applicable to the jurisdiction claimed by the State of Ohio; and it is scarcely to be doubted, that the citizens of that State will' ultimately perceive, that they will lose nothing by forbearance, until the action of Congress can be had upon the whole subject; and that, in the mean time, their rights may be sufficiently protected, by peaceable appeals to the Courts of their own State, or of the Union.
The steps recently taken by both parties, and those which are threatened in the documents before me, indicate a state of feeling unpropitious to the quiet and orderly employment of legal remedies; and in any prosecutions which may be instituted, there is danger that forcible resistance may be made to the due execution of process. In that case, it is easy to foresee, that contingencies may occur, which would demand the active interposition of the President. In the mean time, so far as respects the Executive and other officers of Ohio, and the measures proposed to be adopted by them, the President has no right to interfere, except by persuasion and remonstrance, until some act shall be committed on their part, involving a practical violation of the Constitution or laws of the United States.
The Territory of Michigan being exclusively under the Government of the United States, the authority of the President over the
measures of the Executive and other officers of that Territory is more extensive. If he should be of opinion that those measures are injudicious and of dangerous tendency, and that they cannot otherwise be arrested, he may remove such of the officers from whom they emanate, as hold their offices by appointment from the President and Senate, and at the pleasure of the former, and may appoint other persons in their stead. In this way the Executive of the United States may, to some extent, lawfully control the official action of the authorities of the Territory.
The President has already instructed the Executive of Michigan, that military force can only be lawfully resorted to, in aid of, and in subordination to, the civil authorities. He may also with propriety be advised, that criminal prosecutions should not be instituted, except where really necessary to maintain the jurisdiction of the United States, and to protect the officers of the Territory in the rightful execution of their lawful powers: and that great circumspection should be used to preserve technical regularity in the proceedings, and to prevent any unnecessary rigor towards individuals. If, in the progress of any such prosecution, a crisis should unhappily arise, in which the ordinary power of the civil officers shall be inadequate to the execution of their duties, it will then be for the President to determine, how far the circumstances of the case may require him to employ the means placed in his hands, by the Constitution and laws, for the purpose of maintaining their supremacy. At present, however, it is unnecessary to pursue this particular topic; and as the precautionary measures already taken by the President, and those yet in contemplation, are well calculated to prevent, on either side, any fórcible infraction of the laws, it is to be hoped that it may not become needful to resume it.
I have the honor to be, with the highest respect, your obedient ser vant,
B. F. BUTLER. TO THE PRESIDENT OF THE UNITED STATES.
MEETING AT TOLEDO. An adjourned meeting of the citizens of Toledo, was held in said village, at the house of J. B. Davis, on Friday, April 10th, 1835, to take into consideration what further arrangements were proper to protect the citizens from lawless aggression and violence.
After a few remarks from several gentlemen present, it was
Resolved, That a Committee be appointed to wait upon Governor Lucas, and ascertain how far the citizens of this town may rely upon the protection of the State, in defending their rights under her Laws and Constitution, and to consult and concert such measures as may be proper and expedient.