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and independence, as the original States, in conformity with the resolution of Congress of the 10th of October, 1780.”
By this resolution Congress asked for authority to change nothing relative to the contemplated States in the Northwestern Territory, except the extent and boundaries; and they asked for discretion for the purpose of adjusting their boundaries to suit the natural features of the country. And this discretion (which was accorded by Virginia) is, if I can read. and understand the laws and ordinances aright, continued over the whole northern portion of that country down to the present day.. .
The extent of the powers thus retained by Congress depends upon the ordinance of 1787 for the government of the territory northwest of the river Ohio. I join in all that has ever been said in praise of this invaluable charter. It has been called irrevocable-so it is, as long as the faith of the nation is regarded. It has been called a sacred instrument-I hold it so, next to the constitution itself (of which, indeed, this ordinance is by adoption a part)-I hold it the most sacred among the muniments of our national liberty. But it does not, therefore, follow that every manner of pretension must be sanctioned which any one thinks fit to advance in its name.
The question of the power of Congress over this disputed territory grows out of the 5th article of the ordinance. I need not trouble the Senate by reading that article; a simple analysis of its provisions, so far as they touch the present question, will suffice.
1st. It ordains that Congress shall form not less than three, nor more than five, States within that territory.
2u. It defines the boundaries of three of those States, according to the present boundaries of Ohio, Indiana, and Illinois, on all sides, except the north; and it extends them all northward to the boundary line of the United States.
3d. And it provides that “the boundaries of these three States shall be subject to be so far altered, that, if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan.”
It appears to me clear, by the mere reading of the latter part of this section, of which I give the words, that all the obligation imposed upon Congress was to form three States in said territory, the northern boundary of any of which should not be pressed farther south than the southerly bend or extreme of Lake Michigan ; that the east and west boundaries of each of the three States should be fixed within the limits prescribed; and that the northern part of the territory should be formed into States, or attached to the southern States, or part of it be formed into one or two States, and part of it attached to the State lying immediately south of it. One or two States may be formed by Congress in that part of the territory which lies north of the east and west line above named; but it is not said that they SHALL be formed of that territory, or OF ALL that territory. It were hard to reason on the subject; the ordinance itself is as clear to the point which I would sustain as any language I can use in support of it; and it is only by passing over, or interpolating, or modifying its provisions, either in statement or in argument, that a doubt has been raised as to its interpretation.
I will refer, by way of specimen, (and it is not the only one in which public documents have been thus treated in this contest,) to an article entitled “ The case of Michigan,” which appeared in the Intelligencer of the 5th instant. The writer is unknown to me, but the editors say it is " from a highly intelligent and respectable source.” The sentence in that “exposition," in which a clause in the ordinance of 1787 is misstated, is as follows:
“By the ordinance of 1787, whenever any of the States or Territories in the Northwestern territory shall have sixty thousand free inhabitants, 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, and shall be at liberty to form a permanent constitution and State government."
I call the attention of the Senate to the word Territories, in that part of the paragraph which is introductory to the quotation from the ordi. nance, and which fixes the sense of that quotation. That word is an interpolation in language, and it changes the whole sense of the paragraph. It is not to be found in the text quoted, nor in the context, nor any word or words which convey an equivalent meaning to it, in the connexion in which it is here introduced. And, unfortunately, this single word, thus thrown in, is the one on which the whole argument in behalf of Michigan and her rights to this territory must hinge: take that away, read the ordinance truly, as it is written, adding nothing, and suppressing nothing, it does not leave them ground whereon to rest the soles of their feet. It is the fifth article of that ordinance (1st vol. Laws of the United States, page 480) that has been thus misused. That article declares that there shall be formed, in the Northwestern Territory, three States; it defines their boundary on all sides, except the north, as the States of Ohio, Indiana, and Illinois are now bounded; and it extends them all northward to the northern boundary of the United States, which is there called the territorial line. It then provides that “the boundaries of these three States shall be subject to be so far altered, that, if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan.” Then follows the misquoted clause, which is in these words : And 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, and shall be at liberty to form a constitution and State government."
I am bound, in courtesy, to believe that the misrepresentation of this clause of the ordinance, by the writer who thus volunteers to instruct the community on this subject, was a mistake. But if any one can find in the clause of the ordinance referred to by that writer, and which I have just read, a vested right in this Territory (which is not formed by the ordinance or by act of Congress into a State) to come into the Union when its inhabitants shall be sixty thousand, or to hold fast, permanently, against the will of Congress, to the boundaries fixed for it as a Territory, for the express purpose of temporary government, he must have perceptions and reasoning faculties of a different order from those which are possessed by the rest of mankind. Indeed, when the ordinance is set out truly, as it is, no one will, I think, be able to draw any such inference from it.
Congress had the right, by virtue of their general powers, without any express compact authorizing it, to erect Territorial Governments, such as they might see fit, as to number, extent, and boundary, and to change and modify them at pleasure. So, at least, it has been held, and such has been the practice of the Government. And if they have not this power, the Territory of Michigan was created without authority ; for the ordinance of 1787 expressly authorizes a division of the Northwestern Territory into no more than two districts; and this express authority was exhausted by the act of the 7th May, 1800, which divided the Northwestern Territory into two separate Governments. I take it, therefore, for granted, that the general power will not be disputed by the advocates of the claims of Michigan; and if it be not, why do they fix upon, as the boundary to which they have a permanent right, that assigned to the Territory, " for the purpose of a temporary Government,” by the act'of 11th of January, 1805, instead of either of the other acts fixing other limits? That act is neither the first nor the last which gave a temporary government to the inhabitants of the country included in that territory. It first formed a part of the Government of the Northwestern Territory. It was next divided between that Territory and Indiana. It was, in the next place, attached wholly to Indiana, and made to form a part of it; next, it was formed into a separate Territory, " for the purpose of a temporary Government;" and, lastly, the whole residue of the Northwestern Territory was attached to it, and formed with it one Territory for a like purpose, and remains, and is part and parcel of it, at this day. How, then, can it be with reason contended that the limits of the local Government, to which the inhabitants of this tract of country owed allegiance, should, in its fourth modification, though never before, be holden fixed and immutable? There are no words in the law to countenance it, save what are also contained in the other laws fixing the boundaries of the several Territorial Governments, which, by different names, were, from time to time, extended, in whole or in part, over this peninsula. On the whole, that law gives to the inhabitants of that part of the Territory of Michigan no vested right to come into the Union as a State with those particular boundaries assigned them; it, therefore, throws no obstacle in the way of extending, or adjusting, and defining the boundaries of the States of Ohio and Indiana north of the east and west line above referred to, even if we admit that line to have been once made the boundary of the Michigan Territory.
I believe it has not been denied by those who advocate the claims of Michigan, that Congress had a right to extend all or either of the three southern States north to the territorial line, according to their limits as set out in the first part of the fifth article of the ordinance; but they contend that Congress must include in each of those States all or none of the territory which lies within its limits north of that line; that they cannot include a part, and exclude another part ; that an option is given them in fixing the boundaries of those States on the north, but no discretion beyond the mere choice of one of the two lines. In aid of the several arguments which I have advanced against this position, I will now adduce a
series of acts of Congress, showing a legislative construction of their own powers.
The east and west line named in the ordinance of 1787, has but a single call, “ the most southernly bend or extreme of Lake Michigan;" it has no terminus to the east or the west ; it, of course, passes across the whole territory; and if the position be correct, that Congress could not extend any State beyond that line without including all the territory which lay beyond it, and due north of such State, then Congress, in the formation of the State of Ohio, and the designation of its boundary, has violated the ordinance. In the act of April 30, 1802, under which Ohio was authorized to form a State Government, the line running due east, from the southerly extreme of Lake Michigan, is taken in part as the northern boundary of the contemplated State. Thus far it agrees with the line named in the ordinance; but it introduces another call, “ Lake Erie, or the territorial line ; and thence with the same, through Lake Erie, to the Pennsylvania line;" making a totally different northern boundary. The two lines run together till they touch Lake Erie, then diverge widely. The line’named in the ordinance runs through the southern bend of Lake Erie, and, passing out of it, cuts off a large extent of territory, with fifty or sixty thousand inhabitants, in the northeast corner of the State of Ohio, to which Michigan has the same right, by virtue of the ordinance, that she has to the country north of that line, and south of the northern cape of the Miami bay. But Congress did not consider themselves bound by the ordinance to pursue that line, or they acted under a mistake as to the true position of Lake Michigan; the bearing of which error I will hyand-by consider.
In the formation of the State of Indiana, Congress disregarded this assumed restriction in the ordinance, or they had failed to discover it. That State is extended ten miles north of the southerly extreme of Lake Michigan; and Illinois, which was admitted a few years after, is extended north about thirty-five miles further than Indiana, and within a few miles of the line of latitude which, according to the old maps, (to which I shall by-and-by more particularly refer,) cut through the southerly extreme of Lake Michigan. The mistake which had been made in the position of the object of that call was substantially corrected in the case of Illinois.
I need not now advert to the unhappy consequences which would flow from holding the east and west line, named in the ordinance, as a fixed and in moveable boundary : the question is too clear, by the very language of the ordinance itself, and the legislative constructions of it have been too frequent and unequivocal, to require this auxiliary aid in settling the principle ; still it ought not to be forgotten that the establishment of the doctrine contended for by Michigan involves, as its consequence, the dismemberment of three States of this Union, and the bringing of a large number of their citizens under a Government which they did not help to form, and to which they have never yielded, and to which I believe they never will yield, their willing allegiance.
Having, as I trust, established the position, (if any arguments were necessary to establish it,) that Congress has power to pass this act, without violating the constitution or the compact, or any principle which
ought to govern legislators, I will now proceed to offer some reasons why the proposed adjustment of boundary ought to be made.
First, then, it was the intent of the framers of the ordinance of 1787 that the northern line of each of the three southern States should extend north of the points over which that east and west line is, by actual observation and survey, found to pass. This intent is proved by the clearest evidence. At the time of the passage of that ordinance, we had no information of the country north and west of Lake Erie, save what we derived from observations made or collected under the Colonial Government. A map of that country, published in 1755, and still familiarly known as Mitchell's map, was the first in authority in England and America from the time of its publication until long after the date of the ordinance. It is said to have been the map referred to by the American and British commissioners at the treaty of peace in 1783. And in the particulars in which it bears upon the present question, it was copied, or very closely followed, in all the maps which appeared in our country from that time until after the close of the late war. That map, and indeed every contemporaneous map that I have seen, fixed the latitude of the southern extreme of Lake Michigan about 42° 20' north, or about forty-five iniles north of its actual position, and so situated with regard to Lake Erie, that a line running due east through it would touch the lake near its head, or the Detroit river a little north of its entrance into the lake. I have laid upon your table, and on that of each of the Senators, a copy, on a reduced scale, of this map, as it is preserved in the State Department; by which may be seen, at a glance, the position of those lakes and of that line, as it was then believed and understood to exist. Congress had earnestly sought the power of fixing the limits of the proposed States according to natural boundaries, so that none of them should be improperly intersected by rivers or lakes, and so that there should be secured to each such natural advantages of navigation as most properly pertained to it. They obtained that power, and intended to exert it for the benefit of each of the new States; and, in fixing that east and west, they obviously intended to prohibit any future Congress from bringing down the northern line of that State, which is now Ohio, south of a line which would touch Lake Erie near its head, or the Detroit river above the lake. Ought that intent to be defeated by a mistake, by misinformation as to the position of a natural object in a hostile country, remote from any part of the State whose boundary was to be fixed ? We are of opinion that the intent of the framers of that ordinance ought to be carried into effect, so far as it is necessary for the wellbeing of thé State that it should be so. .
It can be shown that the same intent prevailed with the Congress who passed the act of 1802, under which Ohio framed her constitution, and came into the Union as a sovereign and independent State. The line designated as her northern boundary is the same as that before referred to, laid down on Mitchell's map. That map then hung, as I have been informed, in the committee-room of the committee of Congress who reported that law. That there was a mistake in the position of this line by the Congress which enacted the law of April 30th, 1802, is proved further by the fact that the boundary they affix to Ohio is an impossible boundary. That law provides that the northern line shall run due east