24th CONGRESS, 1st Session.

judicially.

[ Rep. No. 980. }

Ho. OF REPS.

23478

NORTHERN BOUNDARY OF OHIO, AND ADMISSION OF MICHIGAN INTO THE UNION.

Mr. THOMAS, from the Committee on the Judiciary, made the following

REPORT:

The Committee on the Judiciary, to which was referred a memorial from the people of Michigan, asking admission into the Union of the State they have organized; and the message of the President of the United States, communicating to Congress a copy of the constitution adopted by the people of Michigan for forming a State Government, and other documents connected therewith; and another message from the President of the United States, transmitting, for the information of Congress, documents from the State and War Departments, relative to the northern boundary of the State of Ohio, have the honor to report in part:

That the subjects which have been submitted to their consideration are of grave import, and merit, as they have received, a most careful, deliberate, and dispassionate examination.

Congress, on the 11th day of January, 1805, passed a law declaring, that all that part of the Indiana Territory, which lies north of a line drawn east from 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 purpose of tempo rary government, constitute a separate Territory, and be called Michigan. (Appendix A 1.)

In 1832, means were adopted to ascertain whether the people, resident within these boundaries, desired to form for themselves a constitution and State Government, when it appeared, that a large majority of them were in favor of that measure. Accordingly, the Legislative Council of Michigan, applied to Congress at two successive sessions, to direct, by law, a census of the Territory to be taken, and to authorize the people to assemble, by their representatives, in convention, and form a State Government. Failing in these attempts, in consequence it is believed of the urgent character of other business before Congress, the Legislative Council of Michigan, on the 6th of April, 1834, passed a law directing a census to be taken, and having ascertained that there were eighty-seven thousand two hundred and seventythree free inhabitants within the limits of Michigan, they authorized, by a Blair & Rives, printers.

law passed January 26th, 1835, the legalized voters inhabiting the Territory, to assemble and choose delegates to meet in the city of Detroit, to form for them a State Government.

The delegates thus elected met, at the time and place appointed, formed a constitution, and adopted certain propositions which have been submitted to Congress. And Michigan, as a State, claims the right to be admitted into the Union on an equal footing with the original States, and with jurisdiction, co-extensive with the boundaries assigned to the Territory of Michigan, by the act of 1805. (App. A 2, 3, 4.)

If there were no parties to be affected, by the decision to be made on this application of the people of Michigan, but the applicants on the one side, and the people of the United States on the other, the committee believe it would be speedily and harmoniously adjusted.

With great propriety in that case, all discussion as to the power of the people of a Territory to take measures, without authority first had from the United States, to ascertain their numbers, and to form a State Government, could be waived; and Congress might at once proceed to decide, whether the form of government offered is republican or not, according to the directions of the constitution.

Unfortunately, Michigan claims jurisdiction over a district of country which has, by a law of Congress, been made a part of Indiana, and also over a tract of land to which Ohio lays claim. The first conflict of jurisdiction to which allusion has been made, might, probably, be adjusted without difficulty. But the committee add, with regret, that the contest in which the authorities of Michigan and Ohio are involved, has become so much embittered, that it would be impolitic and unwise to permit the opportunity now enjoyed by Congress to pass by, without exerting all its constitutional power, to adjust peaceably and forever, if possible, this unpleasant dispute between two communities, destined to become an ornament to our noble confederacy.

It has already been said, that the people of Michigan claim the right to form a State Government having jurisdiction over the whole country included within the boundaries of the Territory established by the act of 1805. One of these boundaries is a line drawn due east from the southern extreme of Lake Michigan. North of that line, Ohio and Indiana each claim power to govern.

To elucidate this claim of Michigan, that its justice and propriety may be understood, and the consequences intimately connected with the conclusions to which Congress may come concerning it be fully comprehended, it will be necessary to revise and examine various acts and proceedings of Congress, before and since the adoption of the Federal constitution, and other public documents, copies of which are appended to this report, and to which the attention of the House is respectfully invited.

In support of their title to the high privileges demanded, the people of Michigan rely on the provisions of the act of 1805, and especially on the force and effect of that part of the second section of that law, in which it is declared that the inhabitants of the Territory "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 ordinance of the 13th of July. 1787. In the absence of this reference to the ordinance, all would admit that the act of 1805 is an ordinary act of legislation, subject to be repealed or modified by Congress.

There is nothing to be found on the face of it which would justify a different interpretation. It does not purport to be perpetual. On the contrary, in the first section it is explicitly declared, that the separate Territory shall be constituted "for the purpose of temporary government."

If indeed language the reverse of this had been used, it would have been idle and nugatory. One Congress cannot establish boundaries for a Territory, or confer political, religious, or civil privileges, on any portion of the people inhabiting the Territories of the United States, and deny to a succeeding Congress the right to change such boundaries, or diminish, or increase, or modify, the immunities thus granted.

The third section of the fourth article of the Federal constitution, gives power to Congress, "to dispose of, and make all needful rules and regulations respecting the territory, or other property, of the United States."

By the ordinance of 1787, the whole territory northwest of the Ohio, for the purposes of temporary government, is declared to be "one district; subject however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient." From this article of the constitution, the United States derive all the power they possess, to constitute temporary or Territorial Governments in the Territories west of the Mississippi, and south of the river Ohio; and from these words in the ordinance and the constitution, they must deduce all their authority, to divide the Territory Northwest of the River Ohio, into separate districts; but neither in the constitution nor the ordinance, can one word be discovered, calculated to countenance the opinion, that the boundaries of these districts are to be considered perpetual and unalterable.

It appears to be very evident that Congress bears, in all respects, to the people of the Territories, until they have been authorized to form and have actually formed a State, a relation strikingly similar to that of the several State Legislatures, to the territories within their respective limits before its political divisions have been made part of the fundamental law. After counties, or other civil corporations in a State, have been established, and their boundaries declared to be a part of the fundamental law of the land, it is admitted, that their limits cannot be diminished or increased, but by a change of the constitution. But, in the absence of all constitutional prohibition, is it not too self-evident a proposition to need demonstration, that such limits may be changed or altered, by an ordinary act of the Legislature?

Supposing, then, that there is nothing in the character of the act of 1805, except the reference made to the ordinance of 1787, to make it any thing but an act to fix the boundaries of a territory or district "for the purposes of temporary government," and that all its provisions would but for that be liable to be repealed, altered and amended, let us inquire into the effect of this reference, and for that purpose we will first advert to the stipulations of the ordinance, and then proceed to scrutinize the various acts and proceedings, of the parties to that compact connected with its execution, to ascertain the true import and meaning of its language, and be prepared to consummate the objects for which it was intelligently designed.

It is not necessary to quote the ordinance at large; it will be found in the 1st vol. Laws U. S. page 475. The fifth article of it is relied on, by the people of Michigan, to give validity to their claim, and is in these words: (see Appendix C. 11) "There shall be formed in 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 assent 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, 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 draw 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, that the boundaries of these three States shall be subject to be so far altered, that if Congress shall hereafter find it to be 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 or extreme of Lake Michigan; 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 permanent constitution and State Government."

It will be perceived that neither the east, the west nor the north boundary lines of Michigan are named in the ordinance; their immutable character depends upon the construction to be given to the act of 1805, considered as a part execution by Congress, of a trust confided by the ordinance in the authority given, to form, if it should be deemed expedient, more than three States in the territory to which it relates. But it is maintained, that the south boundary of Michigan, is a line north of which Congress never had the power to extend the jurisdiction of the three States, bounded south by the Ohio, unless the whole Territory to the Canada line was included. To maintain this position, in part, these words in the 5th article of the ordinance are relied on: "if Congress shall hereafter find it to be 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 or extreme of Lake Michigan."

At the time the ordinance was adopted, the geography of that rich region which it was designed to divide into States was but little understood. But the Congress of that day had abundant information with regard to it, to have satisfied them, that it would be entirely unreasonable to make an east and west line through the southern extreme of Lake Michigan, a permanent north boundary for the three States on the Ohio, and to give, at the same time, a discretionary power to their successors, to form the whole territory north of that limit into one State. It will be shown that it would have been an unequal distribution of the territory in question, if Congress had been required to make only two States in the country referred to, then how completely superfluous must have been the power to organize but one!

Mitchell's map of the United States was published in 1755, and was considered high authority on all geographical questions. We have the evidence of Mr. Adams, one of the commissioners who negotiated for the treaty of peace in Paris in 1783, to prove that Mitchell's map alone was used by those commissioners at their public conferences, and that upon it was marked out the whole of the boundary lines of the United States (see