« AnteriorContinuar »
right, of which no human tribunal could divest them, without their own consent, whenever they attained, within those boundaries, the population designated by the ordinance, to become a State, to form a State Government, and to be admitted as such into the Union.” (See Document A, page 2.) If this be true, then and upon the same principle, the people of every other territory which has been established by a similar act, have acquired the same right. Thus the act of the 7th of May, 1800, “to divide the territory of the United States northwest of the Ohio into two separate governments,” constitutes, for the purposes of temporary government, a separate territory, to be called the Indiana Territory, assigns it definite metes and bounds, while it guaranties to all the people of the territory the same rights and privileges which were secured to the people of Michigan by the act of the 11th January, 1805, and in the very same words; and if by force of these provisions on the 7th day of May, 1800, when that law establishing the Indiana Territory was approved, the people within the limits set forth and described therein acquired a vested right, whenever they attained, within these boundaries, the requisite population to become a State, to form a State Government, and to be admitted into the Union, then all the subsequent legislation of Congress on the subject has been in violation of that right, and none more so than the very law establishing the Territory of Michigan itself, which, upon the principle asserted, has taken away vested rights from all the people of the whole territory, and conferred different and incompatible vested rights upon the people of Michigan alone. So, too, the act of the 30th of April, 1802, which assigned a territory to the State of Ohio, in the third section, attaches the eastern division of what is now called the Territory of Michigan to the Indiana Territory, and makes it a part of it, while it also guaranties to the inhabitants therein the same privileges and immunities secured by the subsequent act under which Michigan became a Territory and now claims these vested rights. Thus, by the operation of the two acts, of the 7th of May, 1800, and the 30th April, 1802, all the Territory of Michigan was attached to and became a part of Indiana Territory. According to the argument employed now, the people of Michigan had first acquired, together with all the other people of Indiana Territory, a vested right that the whole Territory of Indiana should be formed into a State, when there were sixty thousand free inhabitants therein; and they now have acquired a separate vested right, that when Michigan alone has the same number of inhabitants, she shall be a State, established with totally different boundaries. The consequence of considering the establishment of a mere territorial government, avowedly for a temporary purpose, as giving a right to the people, within its temporary limits, to form a State Government whenever they have sixty thousand free inhabitants therein, without any power in Congress to change one of its boundaries, will be shown to be inconsistent with all the received opinions on the subject, and especially with the doctrines of Congress, by considering for a moment what is now set up, that each of the Territories established subsequently to the first act of this kind, has trenched upon the pretended vested rights, secured by every act preceding it, although vested and irrepealable rights are, by the course of this argument, necessarily supposed to have been conferred by each preceding act establishing a Territory. The truth is, although it is most manifestly expedient and for the benefit of our whole country, as
well as that of the people of Michigan, that this territory should, with proper boundaries, be formed into a State ; yet there is nothing, either in the ordinance or any law of Congress, to prevent Congress from an nexing the whole territory to Indiana and Ohio at any moment before the assent of Congress to a State constitution proposed for Michigan by the people of the territory. On the contrary, the language of the ordinance clearly confers this right upon Congress as we conceive, and the act admitting Ohio into the Union recognises it, while it expressly reserves the power to attach that part of the territory which is north of her line to that State.
We think, therefore, that it is true, as is asserted in the argument in behalf of Michigan, that “Michigan has no cause of disagreement with Indiana, that cannot be adjusted by Congress.” For the same reasons we think it is true, that Wisconsin can have no cause of disagreement with Illinois, which cannot be adjusted by Congress. Is there, can there be, any similar cause of disagreement between Ohio and Michigan, which cannot be adjusted by Congress ?
The sixth section of the seventh article of the constitution of Ohio contains a copy of the boundaries of that State, as laid down in the second section of the act of the 30th of April, 1802. By this section, all the boundaries of the State were permanently established except the northern boundary, which, as it has been seen, was by express reservation liable to be entirely changed at any time thereafter “by the addition of that part of the Territory of Michigan lying east of the line to be drawn due north from the inouth of the Great Miami to the territorial line, and north of an east and west line drawn through the southerly extreme of Lake Michigan, running east as aforesaid to Lake Erie, to the aforesaid State.” The section of the constitution of Ohio above referred to, contains also the following proviso: “ Provided, always, and it is hereby fully understood and declared by this convention, that, if the southern 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 the said Lake Erie 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 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."
This proviso proposes the boundaries contended for by Ohio. They are the boundaries fixed in the bill and described established by a direct line running from the southern extremity of Lake Michigan to the most northerly cape of the Miami bay ; thence northeast to the northern boundary of the United States; thence with said line to the Pennsylvania line.”
This was, in the view of Ohio, therefore, to be her northern boundary if Congress assented, upon the ascertainment of either one of the two following geographical facts, viz:
1st. “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."
2d. “ Or if that line should intersect the said Lake Erie east of the mouth of the Miami river of the Lake."
In either of these events the people of Ohio declared this to be her boundary, with the assent of the Congress of the United States, and they so declared it when they assented to become members of the Union. It was a part of their very proposal to join the Union, and we accepted the whole proposal. The geographical fact required to bé ascertained and long believed to exist, is now officially ascertained and communicated to Congress by the President in his message of the 9th of December last, transmitting the letter of Captain Talcott, of the engineers, dated November 23, 1835. Captain Talcott reports that “the north
cape of the Maumee bay is in latitude 41° 44' 07'' N.” and “the most southern extreme of Lake Michigan is in latitude 41° 37' 07" N.” We regard it as certain, therefore, that the southerly bend or extreme of Lake Michigan extends so far south, that a line drawn due east from it, if it can intersect Lake Erie any where, must intersect it east of the mouth of the Miami river of the lake. The map exhibited by the engineer, and sketched by him, shows that the line strikes the shore of the lake in west longitude 83, about one-third of a degree east of the mouth of the Miami.
It is thus rendered unnecessary to decide the other question, whether the southerly bend or extreme of Lake Michigan extends so far south, that a line drawn due east from it will not intersect the territorial line in Lake Erie. But, it may not be amiss here to obserye, that were we called on to decide it, we should look for the territorial line in the lake, as laid down and marked out by the commissioners to settle the boundary line under the treaty of Ghent, the latitude of the most southerly point of which is shown by the certificate of the proper officer of the Department of State to be 41 degrees 39 minutes 43 seconds, as nearly as can be ascertained by the scale; and, consequently, the east and west line referred to could not intersect it. We could not adopt any other location of the territorial line, which would surrender the jurisdiction of the United States to Great Britain, over a portion of the lake or its islands, merely to give one of the parties to this controversy an advantage in the argument, could that possibly be the effect of a different location. But no such consequence could flow. The fact of the occurrence of one of the contingencies, stated in the proviso to the constitution of Ohio, is all that is required; and that fact is not disputed.
After the 29th of November, 1802, when the constitution of Ohio was adopted, it was submitted to Congress for consideration; and, on the 19th February, 1803, with this constitution before them, Congress passed an act which expressly recognises that constitution, as a constitutioa and State Governinent formed in pursuance of the previous act of the 30th April, 1802, “whereby (Congress then proclaims) the said State has become one of the United States of America ;' and, on this assumption and solemn declaration, Congress proceeded at once to extend all the laws of the United States over the State, “to have the same force and effect within the said State, as elsewhere within the United States.”
We do not hesitate, then, to express our conviction that, while Con- · gress has never yet, in terms, declared its satisfaction with the line now contended for by Ohio as her northern boundary, it has in the most solemn manner accepted her State constitution, recognised it as made in
pursuance of a lawful authority to make it, conferred by an act which reserved the right to annex to Ohio, at any future period, a country embracing the whole territory in dispute, and has by these means assented to the terms of the proviso, which is one of the essential features of her constitution—we say essential, because every thing regarding her boundaries touches her sovereignty, her very being, as an independent State. We hold that, by the acceptance of this constitution, Congress undertook that if the fact should be thereafter satisfactorily ascertained that the southerly bend or extreme of Lake Michigan extends so far south that a line drawn due east from it must intersect Lake Erie east of the mouth of the Miami river of the lake, then, with the assent of Congress, the northern boundary should be the very boundary described in the bill; and while we negative the assertion of the right to the line, contained in the resolution referred to us, considered as a strictly legal right, to perfect which no further action of Congress is requisite, and adopt the distinction which was well taken by the Attorney General, in his letter to the President of the 21st of March last, between the assent of Congress to the proviso, which has been given, and its assent to the actual extension of the northern boundary, as proposed in the proviso, which has not been given, we also declare, in justice to the State, that for the reasons which we will now proceed to detail, Congress cannot, consistently with the original understanding of the compact between the State and this Government, and those obligations which, though not strictly legal, are of great equitable and moral force among nations as well as individuals, withhold its assent to the line proposed in the bill.
It is a fact which is cstablished by the general testimony of the maps of the country around the southern border of Lake Michigan, which were in existence at the time the constitution of Ohio was accepted by Congress, and of which we have any knowledge, that at that period the lati. tude of the southern extreme of that lake was believed to be between 42° 20', and 42° 30' north.
Mitchell's map, published in the year 1755, so lays down this lake and the adjacent country, that a line drawn due east from this point, strikes the territorial line of the United States in latitude 42° 20' north, far north of the most northerly cape of Maumee bay, and in the Detroit river, north of Lake Erie itself. As this is alleged to have been the very map relied on by Congress, and by the convention of Ohio, at the time of the admission of the State, and as it was then considered every where as a map which, in reference to the Northwestern Territory, had no superior for accuracy, we have caused a lithrographic sketch, taken from the original preserved in the Department of State, exhibiting the country according to that map, and a sketch according to the maps of the present day, to be appended to this report. From this it will be seen at a glance that it was then believed by both parties that the new State of Ohio, would comprehend not only the whole territory in controversy, but a much larger tract of country lying north of it. We have also examined the following maps, which fully confirm the statement relied on by Ohio, that prior to, and at the time of her admission into the Union, it was received as a settled point among geographers that the disputed tract was all clearly within the limits assigned to her.
1. A map of the British dominions in North America, according to the treaty in 1763, by Peter Bell, geographer, published in 1772. By this, the latitude of the southern extreme of Lake Michigan is about 42° 30', an eastern line drawn from which would strike the territorial line, as laid down in this map, in the Detroit river, north of Lake Erie.
2. A map of the British colonies in North America, engraved by William Faden, and published in 1777. It is now the property of the Massachusetts Historical Society. This exhibits the southern extreme of Lake Michigan still farther north than Bell's map, and the eastern line, drawn from this extreme, also strikes the territorial line north of Lake Erie.
3. A map, No. 64, of Kitchin's atlas, belonging to the Boston Marine Insurance Company. The latitude of the points above referred to is laid down very much as in Bell's map.
4. An ancient map belonging to Harvard College, entitled “An accurate map of North America, describing and distinguishing the British and Spanish dominions on this great continent, according to the definite treaty concluded at Paris on the 10th of February, 1763; also, all the West India islands, the whole laid down according to the latest and most authentic improvements, by Eman Bowen, geographer to his Majesty, and John Gibson, engineer.” By this also, the southern extreme of " Lake Michigan or Illinois,” is represented in latitude 40° 30' north, and a line drawn due east from it would pass above “ Lake Erie or Okswego," as that lake is here laid down.
5. A map belonging to the Boston Marine Insurance Company, published by Laurie and Whittle, at London, in 1794, entitled “ À new Map of North America, with the West India Islands, divided according to the preliminary articles of peace signed at Versailles 20th January, 1783, wherein are particularly distinguished the United States, and the several Provinces, Governments, &c., which compose the British Dominions, laid down according to the latest surveys, and corrected from the original materials of Governor Pownall, Member of Parliament."
This lays down the southern extreme of “ Lake Michigan or Illinois 40° 35' north; and a line drawn due east from it would strike far above " Lake Erie or Okswego,” as it is protracted on this map.
6. An ancient map of the Northwestern Territory, with a supplement to the map of Hudson's and Baffin's bays, exhibits the same results.
These, with Mitchell's map above referred to have satisfied us of the state of geographical information in regard to the country in dispute prior to the admission of Ohio. Lewis's maps confirm the impressions they have given us, and further show, that so late as 1815, and even till a still later period, the geographers of the United States believed that an east line, drawn from the southerly extreme of Lake Michigan, would strike the territorial line of the United States far above the northerly cape of Maumee bay, which is the most northern point now contended for by Ohio. Vame's map of the United States, published in 1818, also exhibits the same results.
A map entitled “A Map of the State of Ohio, from actual survey, by Hough and Bounce, engraved by H. S. Tanner, Philadelphia, published at Chillicothe in 1815,” also lays down the northern boundary of Ohio north of the mouth of the Miami bay.
By all these maps, Ohio appeared to be entitled not only to the territory in dispute, but to a tract embracing perhaps much more than a thousand square miles on the north of it. The map of Hutchins was the