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*...* o - | 211 J w..... . o . -4-3 5 * IN SENATE OF THE UNITED STATES.

MARCH 1, 1836.

Mr. CLArros made the following report; which was read, ordered to be printed, and that 5,000 additional copies be furnished for the use of the Senate.

the committee on the Judiciary, to whom were referred a bill to settle and establish the northern boundary line of the State of Ohio, and a joint resolution on the subject of that line, respectfully report:

That shortly after the bill and resolution above mentioned were committed to them, they proceeded to give notice to members in the different branches of Congress from the States whose northern boundary could be affected by their decision, and to the gentlemen claiming to represent Michigan as a State in this body, as well as the gentleman claiming to represent the people of Michigan, considered as a State, in the other House, that they would hear all they could respectively urge upon the consideration of the committee, in regard to any of the questions now submitted by the bill and resolution. In consequence of this notice, all parties desiring it have been heard before the committee, and have been permitted to represent their own views in their own way. The annexed papers and documents contain all the written communications which have been addressed to your committee on the subject. The questions submitted by the bill have been fully considered and decided by the Senate’s Committee on the Judiciary, at each of the two last sessions of Congress. On these several occasions, the committee, though somewhat differently constituted, reported unanimously in favor of a bill to settle the boundary line of Ohio precisely as the bill now referred to ous proposes; and on both occasions their report was, after much discussion in the Senate, adopted, such a bill having passed this body at each session by a very large majority of its members. This bill was first reported on the 12th of May, 1834, and passed here by a vote of thirty to ten, on the 5th of June afterwards; and, at the session of 1834–5, so decided was the expression of sentiment among the Senators in debate, that no voice was heard against it on the vote, and it passed without a division. At each of those sessions this bill failed in the other House. It never passed through any stage there at which a test vote could be taken upon it; and although it is supposed by many that a majority of that House in the last Congress concurred in the views which had been taken by such large majorities of the Senate, yet your committee have no means of knowing anything on that subject except from the printed journals, which show us no more than we have already stated, that no vote was ever taken upon it by which the sense of that House could be ascertained. The two former reports of this committee were purposely drawn

Gales & Seaton, print.]

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with the utmost brevity, and so as to express nothing more than the results at which, after a laborious investigation, they had unanimously arrived. Their report, on both occasions, merely declared their satisfaction with two propositions, which were all that it became necessary to decide, in order to pass the bill. The first of these was, that Congress had power to settle and establish the boundary as proposed; and the second, that it was expedient so to settle and establish it. These propositions involved a great many considerations, which were fully examined and discussed in the written arguments of the parties concerned; to which arguments the committee referred as a part of their report. The committee designedly avoided entering into any detailed reasoning of their own in these reports, chiefly because they desired that every Senator should read the arguments on both sides of the question, without any prejudice, to the effect of either of them on his mind, caused by a previous perusal of an elaborated report from them to refute it; and they were induced to cherish and indulge that desire by the peculiar difference in the situation of those then called the parties to the controversy. Michigan, as a Territory, was represented to be one of those. She was without any representation in the Senate, as a State, and the decision of the committee was against the pretensions set up in her behalf. Ohio, Indiana, and Illinois, all either immediately or by consequence, interested in the determination of the question, were fully represented in both Houses of Congress, and ready to vindicate their title to the boundary lines by them respectively claimed. While, therefore, the committee declined entering the field of disputation with an argumentative report when deciding the questions submitted, they contented themselves with performing the duty absolutely enjoined upon them, by the simple declaration of their unanimous opinion; and laid before the Senate, in connexion with it, every argument, on both sides of the question, which either party had chosen to present, to enable all others to arrive at a fair and impartial conclusion. This committee is now composed of members, some of whom were not members of it at any time during the last Congress, when the reports already referred to were made. We have stated the manner in which we have heard the parties to the controversy. We have examined the whole subject as fully as we are capable of examining it, and we have arrived at the same conclusions with our predecessors. But the resolution now submitted to us, in connexion with the bill, presents a new question, which this committee has never before determined. It asserts, in the most unqualified terms, that “as a matter of right, the State of Ohio has acquired, and can rightfully exercise, jurisdiction on her northern border to the line as described in the latter clause of the proviso contained in the sixth section of the seventh article of her constitution.” It becomes necessary, therefore, in order to prevent a misconstruction of their own views of this question, that your committee should present to the Senate their opinions in regard to it, and in connexion with it, it is impossible to avoid a brief discussion of all the principal questions involved in the reference. The state of things, too, has changed. The warmth excited by the controversy has increased until that controversy has threatened the peace of the country; and it is now due to the people of the United States that the principles upon which our conclusions have been based should be plainly laid before

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The act of cession of the 1st of March, 1784, by which Virginia authorized her delegates to convey to the United States the territory northwest of the Ohio, contained a condition which, it was foreseen by Congress at the time, would, if unchanged, forever after exceedingly embarrass the great object of the cession, which was, by the act of cession itself, defined to be the laying out and forming the country so ceded into States containing “a suitable extent of territory.” That condition was, that each of the States so formed should not be less than one hundred, nor more than one hundred and fifty miles square, or as near this as circumstances would admit. (See 1 vol. Laws U. S., 473.) Had this condition remained unaltered, Congress could have exercised no suitable discretion in the formation of new States out of the ceded territory, and the operation and effect of it must have been the erection of States of the requisite dimensions, without reference to the natural features of the country. So that while one of the States established in pursuance of it would have been excluded from commercial facilities by embracing no important water-course whatever, another would have contained a tract of the same extent, one-half of which would have been entirely covered by water, and others would be improperly divided by lakes, rivers, and mountains, or might contain too great a proportion of barren and uncultivable land. It was, therefore, foreseen, at the time, to be absolutely necessary to avoid any terms in the cession which should divest Congress of ample discretionary power, so far as regarded the boundaries of the States to be established. Moved by these considerations, Congress did, on the 6th of July, 1786, by resolution, recommend to the Legislature of Virginia to take into consideration their act of cession, and revise the same so far as to empower the United States in Congress assembled 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 might require. On the 13th of July, 1787, the “ordinance for the government of the territory of the United States northwest of the river Ohio” was passed by Congress. This ordinance carefully reserves to Congress the exercise of reasonable discretionary power, both in reference to the boundaries of the districts of which the territory might be composed, and the limits of the States which were to be formed out of it. The fifth article of this ordinance is in the following words:

“Art. 5. There shall be formed in the said territory, not less than three nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession, and consent to the same, shall become fixed and established as follows, to wit: the western State in the said territory shall be bounded by the Mississippi, the Ohio, and Wabash rivers; a direct line drawn from the Wabash and Post Vincents, due north, to the territorial line between the United States and Canada; and by the said territorial line to the Lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line, the Wabash, from Post Vincents to the Ohio, by the Ohio, by a direct line drawn due north from the mouth of the Great Miami to the said territorial line, and by the said territorial line. The eastern State shall be bounded by the last-mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: provided, however, and it is further understood and declared.

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that the boundaries of these three States shall be subject go far to be al. tered, that, if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the said territory which lies north of an east and west line drawn through the southerly bend of Lake Michigan. And whenever any of the said States shall bave 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 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 in a State than sixty thausand.”

It will be seen, from the language of this article, that it expressly contemplates that Virginia will alter her act of cession on the subject of boundaries, in pursuance of the previous recommendation of Congress. In this, the framers of the ordinance were not disappointed. On the 30th of December, 1788, the State of Virginia complied with the recommendation of Congress, in the most satisfactory manner, by an act ratify. ing and confirming the fifth article of the ordinance above recited, which thus became a part of her own act of cession. Such is the history of the means which were adopted to remove improvident and arbitrary restrictions upon the power of Congress in fixing the limits of the new States to be formed in the territory northwest of the Ohich, of which the States and Territory now claiming an interest in this controversy, as to boundaries, then constituted a part.

But if it be true that Congress had no power to extend the boundaries of Illinois, Indiana, and Ohio, which are the western, middle, and eastern States referred to in the ordinance, “north of an east and west line drawn through the southerly bend or extreme of Lake Michigan,” these measures have not conferred upon Congress the discretionary power which they were anxious to acquire, for the purpose of adapting the boundaries of these States to the situation and future circumstances of the country.” Indiana and Illinois, for example, on this principle, haying for their northern boundary a line barely touching the southern extremity of Lake Michigan, can never participate in any of the commercial facilities which that vast sheet of water was designed to confer on all the people inhabiting its borders, unless by the consent of others. Their canals, railroads, and other avenues to the lake, must receive the approbation of another and a rival district of country, before they can establish such means of communication with the lake. Such was not the construction of the fifth article of the ordinance adopted by the Congress which admitted Indiana, or the Congress which admitted Illinois into the Union.

Indiana was admitted into the Union on an equal footing with the original States, by the act of the 19th of April, 1816, the second section of which establishes her northern boundary to be " an east and west line drawn through a point ten miles north of the southern extreme of Lake Michigan.” It may be properly added, as exhibiting the sense of that Congress on the immediate question before us, that this very northern

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