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the three first States alone. The omission of the word “said," in stating what professed to be the substance alone of the ordinance provision, does not change its import or effect. In relation to the use of the phrase “ States or Territories,” it is simply necessary to observe, that the three divisions of the Northwestern Territory were not, and could not be, considered as States, in the common acceptation of the word “ States” ať the present time, until they formed State constitutions. They are not and never have been States, with permanent constitutions, agreeably to the original boundaries by which they were described. When they became States, with such constitutions, it was with diminished areas, limits, and bounds. It was when or after Congress had, in effect, determined that there should be more than three States formed in the Northwestern Territory. It is, therefore, obvious that when the ordinance adverts to States, having no permanent constitutions, it means Territories. How could that instrument, upon any other exposition, have intended to speak of a mere Territory as a State, before a State Government was formed ? If it were a State, other than by boundaries, prior to the adoption of a State constitution, whence the necessity of declaring that whenever it attained a population of sixty thousand free inhabitants, it should be at liberty to form a permanent constitution and State Government, and should be admitted into the Congress by its delegates? From the year 1780 to the adoption of the Federal Constitution, Congress were in the habit of speaking of a Territory, or of given portions or divisions of Territory, as States before they formed permanent State constitutions, or were admitted into the confederacy. In the resolution of 1780, they declared that “the unappropriated lands ceded or relinquished to the United States,” shall “ be settled and formed into distinct republican States, which shall become members of the Federal Union, and have the same rights of sovereignty, freedom, and independence, as the other States.” In the resolution of 1784, providing for the government of the territory ceded, or to be ceded, by the individual States to the confederacy, it is declared that "it shall be divided into distinct States; that the settlers on any such territory shall, within the limits of their States, meet together for the purpose of establishing a temporary Government;" that " when any such State shaLL HAVE acquired twenty thousand free inhabitants,” they shall have authority to call a convention of representatives to establish a permanent constitution for themselves;” that “whensoever any of the said States shall have, of free inhabitants, as many as shall be in any one the least numerous of the thirteen original States, such State shall be admitted by its delegates into the Congress of the United States, on an equal footing with the said original States ;” and that “until such admission by their delegates into Congress, any of the said States, AFTER the establishment of their temporary Government, shall have authority to keep a member in Congress, with a right of debating, but not of voting.” In the resolution of 1786, asking Virginia to revise her deed of cession, Congress propose such a revision as to empower them “ to make such a division of the territory of the United States, lying northerly and westerly of the river Ohio, into distinct republican States, not more than five nor less than three, as the situation of that country and future circumstances may require.” The ordinance confirms the authority of Congress to divide
the Territory into not less than three nor more than five States, and declares, that " whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever."
It is, then, evident that Congress, in all these resolutions and compacts, have used the phrases “ Territory” and “States” as synonymous; that they have spoken of Territories as States before they became States in fact, and even before they were divided into specific territorial Goyernments; and that in constituting, in 1805, a separate Territory, to be called Michigan, of “all that part of the Indiana Territory which lies north of a line drawn east of 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,” Congress gave a pledge to the people of that Territory, thus specifically bounded by distinct lines, that it should, with these boundaries, be a State, and, whenever it attained a population of sixty thousand free inhabitants, should be at liberty to form a permanent constitution and State Government, and be admitted into the Union on an equal footing with the original States, in all respects whatever. This position, if it needed confirmation, is impregnably fortified by the provision in the same act, establishing the Territory of Michigan, without reservation or qualification as to boundaries, declaring that its inhabitants shall be entitled to, and enjoy, all and singular, the rights, privileges, and advantages granted and secured to the people of the Territory of the United States northwest of the river Ohio, by the said ordinance” of 1787. And the most important of all these rights, privileges, and advantages, was, that whenever they attained the requisite population of sixty thousand free inhabitants, they should be admitted as a distinct republican State into the Union. The Territories, when established with specific boundaries, are incipient States. “Their territorial Governments are stages in the progress of the people of the United States, northwest of the river Ohio, towards State Governments. That progress may be accelerated, but cannot, constitutionally, be retarded by any act of the General Government. And the people of Michigan have a right, with a population double the requisite number, and with a republican constitution, conforming to the principles of the ordinance of 1787, to claim admission into the Union as a State, with the sovereignty, freedom, and independence, belonging to the original States. The nature and principles of our free institutions; the liberty, security, and independence of the people, the ends of all just Government; and the fruition of the object of forning States in the Northwestern Territory, that they may become a speedy and sure accession of strength to the confederacy,” are great considerations, in addition to those of compact right and public faith, urging the Congress of the United States to the immediate admission of the State of Michigan into the Union
Labored efforts have been made to prove that the inhabitants of Michigan have no vested right to come into the Union, as a State, with the particular boundaries assigned them by the act of 1805. The noble ordinance, so often referred to, gave to Congress the power to form one or two States
north of the east and west line running through the southerly extreme of Lake Michigan. These States, so far as Congress were concerned, were to be divisions of Territory, with defined limits, within which the people could establish a permanent State Government, when their numbers amounted to sixty thousand. The power to form a STATE Government was never vested in Congress, either under the confederation, or by the Federal constitution. Such a power it ever has been, and we trust it always will be, the peculiar and exclusive province of the people, having an interest in the formation of such Government, to exercise.
Congress may admit new States into the Union,” but it has no power to form their State Governments.
From 1787 to 1802, nothing was done by Congress to indicate their intention of ever forming the one or two States contemplated in the proviso of the fifth section of the ordinance. The circumstances and situation of the country did not call for any indication of their intentions until the people of the eastern division of the Northwestern Territory petitioned Congress for permission to form a State Government. That body then provided, in the act authorizing the admission of Ohio into the Union, for the exercise of a power to form the one or two additional States. They bounded Ohio on the north by the east and west line, running through the southern extreme of Lake Michigan, and reserved the privilege either of attaching, at any time thereafter, all the territory north of that line to Ohio, or of disposing 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. In another section of that act, it is provided that, from and after the formation of the State prescribed in said act, all the territory embraced in the eastern State of the ordinance, north of the east and west line running through the southerely extreme of Lake Michigan, shall be attached to the Indiana Territory, subject to the disposition of Congress “ according to the right reserved in the fifth article of the ordinance.” It is manifest, from the provisions of these two sections taken in connexion, that Congress, from and after the formation of the State prescribed in the act, and the annexation of what is now the eastern part of Michigan to the Indiana Territory, had no right to attach this part of Michigan to the State of Ohio. The whole country north of the east and west line aforesaid became forthwith attached to the Indiana Territory, and could be disposed of afterwards in conformity only to the reserved right in the fifth article of the ordinance ; in other words, could only be formed into one or two States, and admitted as such into the Union, according to the principles of that compact. Whatever provisos, therefore, Ohio might have incorporated into her constitution in relation to a change of northern boundary, they would have become null and void the very moment her State Government was formed. From that moment, Congress had said, that all the country to the north of Ohio, as bounded in the act of 1802, should be attached to the Indiana Territory, and should, at a future day, become a part of the one or two States which they were at liberty to form north of the east and west line. If Ohio, therefore, had desired the whole of the eastern division to be one State, she should have asked “the assent of Congress” to the measure, before forming her Siate Government. Congress could not, according to any fair interpretation of the language of the
first proviso in the fifth section of the ordinance, have given to the State of Ohio a part of the territory north of the east and west line. She, consequently, could have, and can have, no right to it. Congress have no power to “ assent” to the proviso in her constitution, extending her northern boundary north of that line. Again : the moment Ohio had formed her State Government, the people north of the east and west line acquired rights, privileges, and advantages, which could not be taken from them without their consent. They had been excluded from any participation in forming the constitution of Ohio. They were not allowed to have a voice in electing representatives to the convention to form that constitution. Could Congress afterwards, in good faith, attach them to a State foreign to them? Certainly not, according to the principles of our representative institutions; and certainly not, in accordance with those of the ordinance of 1787.
The annexation of the people of the eastern part of Michigan to the Territory of Indiana continued to the year 1805. On the 11th of January in that year, it was enacted by Congress, that “all that part of the Indiana Territory which lies north of a line drawn through 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 purposes of temporary government, constitute a separate territory, and be called Michigan.”
To the inhabitants of this territory was given the enjoyment of “all and singular the rights, privileges, and advantages granted and secured to the people of the Territory of the United States northwest of the rirer Ohio, by the said ordinance” of 1787. This act made a disposition of all that part of the former eastern States which had been attached temporarily to the Territory of Indiana. It disposed of it in the only way in which Congress had the power to dispose of it, “according to the right reserved in the fifth article of the ordinance.” It was joined to so much of the “middle State,” as lay north of the “ east and west line aforesaid,” and constituted, in the language of the constitution of the United States, a sepa. rate territory, or a separate State, in the language of the ordinance of 1787. At this point, the power of Congress, under the ordinance, was exhausted, as respects the disposition of that portion of the Territory. It was exhausted by the words of the act authorizing Ohio to form a constitution. The people within the limits of the Michigan Territory had conferred on them all and singular the rights and privileges of one of the “Said States” of the proviso of the fifth article of the ordinance. Any other construction of the act of 1805 would take from the people of the Territory of Michigan the most important of the rights guarantied to the people of the whole Northwestern Territory. Such an idea cannot for a moment be admitted, without charging the Government of the United States with the violation of a solemn compact ; a compact which they were bound to fulfil upon principles of natural justice and conventional right, and which the sixth article of the constitution of the United States, declaring all engagements and contracts entered into before its adoption to be valid, enjoined them to fulfil.
By the act creating the Territory of Michigan, to the people of that Territory were given the rights which appertained to the people of the
eastern, middle, and western States of the ordinance. To the people of these States appertained the right of forming permanent constitutions and State governments, and of admission into the Union. If, therefore, within the limits of Michigan, prescribed in the act of 1805, there was not a right, on attaining a population of sixty thousand free inhabitants, to form a permanent constitution and State government, and to demand admission into the Union; or, if their territory may be diminished without their consent, Congress would take from the people within the original limits of Michigan, to which they have a vested right, one of their most inestimable compact privileges. Over the residue of the territory north of the east and west line, the territory west of lake Michigan, the people within the original boundaries of Michigan had no control. Congress had debarred them of the privilege of availing themselves of the population of what is now called the Wisconsin Territory, by the act temporarily annexing it to Michigan. It was thus annexed by Congress, with the right of disposing of it according to the power reserved in the fifth article of the ordinance. A similar phraseology is used in the act annexing the eastern part of Michigan to the Indiana Territory. But we find no such reservation on the part of Congress, when, in 1805, they created the Territory of Michigan. In that act there is a total silence about the reserved rights of Congress. And why? Because it was the last disposition of that part of the country that Congress could make. With this act their powers were exhausted.
It has been said that it was the intention of the framers of the ordinance of 1787, to extend the States of Ohio, Indiana, and Illinois, north of the east and west line passing through the southerly extreme of lake Michigan; and the truth of this assertion is deduced from the circumstance, that there was in existence at the time a map of the country, published by Mitchell in 1755, which placed the southern bend of lake Michigan further north than subsequent observations have proved it to be. But how is it known, on whose authority is it assumed, that the Congress of 1787 were governed, in their deliberations concerning the Northwestern Territory, by that map? Does the fact appear upon the Journals, or in the history, of that Congress? And shall the rights of Michigan, shall a part of her territory, be taken from her on speculative conjectures? In 1778, about nine years before the ordinance of 1787 was passed, a map was published by Captain Thomas Hutchins; and on this map the southern bend of Lake Michigan, and its relative position, were laid down nearly as they have since been ascertained to be by actual observation and survey. May we not, then, rationally suppose that it was this map, the author of which was, at the time, the geographer of the United States, which gave light to the members of the Congress of the confederation, and induced them to propose to Virginia an alteration of her act of cession, and to fix the lines and boundaries as they are established in the ordinance ?
It asserted that the east and west line of the ordinance of 1787 cuts off a large extent of territory and population on the northeast corner of the State of Ohio. A highly intelligent and distinguished officer of the corps of engineers, Captain Talcott, has made a report, which the President has transmitted to Congress, and which proves that this east and west line intersects the territorial line in the waters of Lake Erie long before it reaches the northeast corner of the State of Ohio. It also