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boundary line of Indiana is, in the same section, continued easterly, until the same shall intersect the meridian line which forms the western boundary of the State of Ohio. (See 6th vol. Laws United States, 67.)
Illinois was admitted into the Union on an equal footing with the original States by the act of the 18th of April, 1818, the second section of which fixes her northern boundary by a line drawn west from the middle of Lake Michigan, on north latitude forty-two degrees thirty minutes, to the middle of the Mississippi river. By the report of Captain Talcott, of the 20th of November, 1835, which accompanies the President's message of the 9th of December last, “ the most southern extreme of Lake Michigan is in latitude forty-one degrees thirty-seven minutes seven seconds, north,” which statement he says he believes to “be true, to the nearest second.” If the construction of the ordinance of 1787, contended for by Michigan, be the true construction, Congress had no power thus to extend the boundaries of those States, and while Indiana must now surrender to Michigan a large portion of six different counties on her northern border, Illinois must hereafter surrender to Wisconsin a tract: of country containing her richest mineral region, and not surpassed for fertility by any tract of equal extent in the West, embracing the whole tract lying between Lake Michigan and the Mississippi, and between latitude forty-one degrees thirty-seven minutes seven seconds north, and latitude forty-two degrees thirty minutes north, a tract supposed to contain more than ten thousand square miles; while both States must yield their own most important facilities for commercial intercourse through the lake, to a new State, nearly surrounded on all sides by vast sheets of water, being every where, except on her southern border, bounded by lakes and the streams which connect them.
Without dwelling upon the consequences which must irresistibly flow from the adoption of a principle denying the power of Congress to confirm the boundary of Ohio, as proposed in her State constitution, it may be suficient to observe that one of these consequences will be, that the State to be formed out of the territory north of the cast and west line drawn through the southerly extreme of Lake Michigan, and west of that lake, a part of which territory is now called Wisconsin Territory, being the last State which can be formed in the northwestern territory under the ordnance of 1737, will be entitled to admission into the Union by Congress, on an equal footing with the original States in all respects whatever," whenever it shall have sixty thousand free inhabitants therein ;” and the very population of Illinois residing on that part of this territory lying north of the east and west line above referred to, inust be taken into the estimate of the “ sixty thousand free inhabitants therein.” And, unless the State of Illinois shall be dismembered, the same population must be represented in Congress both from that State and the future State of Wisconsin, and be subjected to the concurrent jurisdiction of both States, however their local laws or State constitutions may clash with or differ from each other. For the same reasqa Michigan must take not only from Ohio, but from Indiana, all the tract of land lying north of this cast and west line, and east of Lake Michigan, a large part of which is within the limits assigned to Indiana by the act admitting her into the Union; or the people residing on that part also must have a double representation in Congress, and be forever subjected to different
codes of State law and systems of State policy, which no power can ever control or reconcile with each other.
To the judgment of your committee nothing is more apparent than the correctness of the principle which Congress has thus twice, in the most solemn manner, decided. By the terms of the fifth article of the ordinance of 1787, the three States designated as the western, middle, and eastern, were to extend north to the territorial line, but there is an express reservation of authority to Congress to alter their boundaries so far as 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.”
The territory of Ohio was within the eastern State. Congress then had power to extend Ohio to the territorial or Canada line; nay, the ordinance provided that it should be so extended, unless Congress should find it expedient to alter this provision. Illinois, Indiana, and Ohio were all thus laid out by the ordinance as States to extend to the territorial line; but it was also provided that Congress might lay out one or two States "in" (not, as the ordinance has sometimes been misquoted, " out of”) that part of the territory north of the east and west line referred to. A power to form one
or two States in a territory” is not to be restricted, without the grossest violence to all the rules of construction, to a mere power to form one or two States out of that territory. The latter is a power only to divide the whole territory into two States, or form one of it all; the former is a power to select any portion of that territory for the purpose of forming one or two States and then of either assigning the whole so selected to one State or dividing it between two. The power here given to assign all the country north of the east and west line to three States primarily designated in the ordinance, embraces the power to assign any part of it to them, and it is evident that Congress has always so understood it.
The first section of the act of the 30th of April, 1802, providing for the admission of Ohio into the Union, authorizes the inhabitants of the whole eastern division of the territory northwest of the Ohio " to form a State government,” and, if it had been uncontrolled by the second section, would have provided for the adınission of the entire division into the Union as a State. This would have embraced not only the disputed territory, but the best half of all Michigan. Then the second section, containing that very boundary which is claimed to be irrevocable by Congress itself provides “that Congress shall be at liberty at any time hereafter, either to attach all of the territory lying east of the line to be drawn due north from the mouth of the Miami aforesaid 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, or dispose 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.” (See 3d vol. Laws U. S. 496.) The third section of the same act also provides that all that part of the territory of the United States northwest of the river Ohio heretofore included in the eastern division of said territory, and not included within the boundary herein prescribed for the said State, is hereby
attached to and inade a part of the Indiana Territory, from and after the formation of the said State, subject nevertheless to be hereafter disposed of by Congress, according to the right reserved in the fifth article of the ordinance aforesaid.” By the second session of the act of the 19th of April, 1816, fixing the boundaries of Indiana, it is expressly provided " that the convention thereinafter provided for, when formed, shall ratify the boundaries aforesaid ; otherwise, they shall be and remain as novo prescribed by the ordinance for the government of the territory northwest of the river Ohio." Had this convention refused to ratify the boundaries proposed, this act gave the whole territory, described as the middle State in the ordinance, to Indiana, and it has actually been within the power of Indiana to take the whole, though she has been contented with part of it. The same provision, and in the very same words, will be found in the act of the 15th of April, 1818, providing for the admission of Illinois into the Union, and it has been within her power to resuse to ratify the boundaries mentioned in the second section of that act, in which event the act gave her the whole of the northwestern territory, primarily described in the ordinance as the western State. Such is the plain construction of these acts, whaterer may have been the design of those who passed them, and the power to pass them is, we think, expressly conferred by the ordinance.
That we have not mistaken the intention of the Congress which formed the ordinance will, we think, also be made apparent by a reference to the journal of their proceedings on the passage of the résolution recommending to the State of Virginia sa to alter her deed of cession as to allow the division of the territory into States, “ as the situation of that country and future circumstan es might require.” For this purpose we present the following extracts from the journal of the old Congress of is Friday, July 7, 1786.” Congress took into consideration a report of a grand committee, to whom, among other things, was referred à motion of Mr. Monroe, respecting the cession of the western territory, and forming the same into States; and the committee having submitted that it be
“Resolved, That it be recommended to the Legislatures of Massachusetts and Virginia to take into consideration their acts of cession, and revise the same, so far as to empower the United States in Congress assembled to make such division into States of the ceded lands and territory as the situation of the country and future circumstances may require'; with this limitation and condition, however, that all the territory of the United States lying northwest of the river Ohio, shall be formed into a number of States not less than two nor more than five, to be admitted into the confederacy on the principles, and in the forms heretofore established and provided.”
A motion was made by Mr. Grayson, seconded by Mr. Lee, (both of Virginia,) to postpone the consideration of the same, in order to take up the following: “ That it be recommended to the States of Virginia and Massachusetts, so to alter their acts of cession, as that the States in the western territory may be bounded as follows: there shall be three States between the Ohio and a line running due east from the Mississippi to the eastern boundary of the United States, so as to touch the most southern part of Lake Michigan. The State lying on the Mississippi shall be separated from the middle State by a line
running due north from the western side of the mouth of the Wabash river until it intersects the said east line; the middle State shall be separated from the others by the aforesaid line, and a line running also due north from the western side of the mouth of the Big Miami till the intersection thereof with the said east line ; and the other State shall be divided from the middle State by the said line, the said east linc, Lake Erie, the bounds of Pennsylvania, the other original States, and Ohio. There shall be a State between the said east line, Lake Michigan, Lake Huron, and the straits of Michilimackinac; and another between the said east line, the Lakes Michigan and Superior, and the boundary line of the United States and the river Mississippi, to be added to the confederacy on the principles and in the forms heretofore established and provided.”
And on the question to postpone, for the purpose above mentioned, the yeas and nays. being required by Mr. Grayson, the State of Maryland, Virginia, North Carolina, Georgia, and Rhode Island voted in the affirmative; New Hampshire, Massachusetts, Connecticut, New Jersey, and Pennsylvania voted in the negative, and New York and South Carolina were divided. The votes on each side being equal, the motion was lost.
The resolution offered by the committee being then amended, finally passed on the same day, with the preamble, as follows, viz.
“Whereas it appears from the knowledge already obtained of the tract of country lying northwest of the river Ohio, that the laying it out and forming it into States of the extent mentioned in the resolution of Congress of the 10th of October, 1780, and in one of the conditions contained in the cession of Virginia, will be productive of many and great inconveniences; that by such a division of the country, some of the new States will be deprived of the advantages of navigation, some will be improperly intersected by lakes, rivers, and mountains, and some will contain too great a proportion of barren, unimprovable land, and of consequence, will not for many years, if ever, have a sufficient number of inhabitants to form a respectable government, and entitle them to have a seat and voice in the Federal councils. And whereas, in fixing the lands and dimensions of the new States, due attention ought to be paid to natural boundaries, and a variety of circumstances which will be pointed out by a more perfect knowledge of the country, so as to provide for the future growth and prosperity of each State, as well as for the accommodation and security of the first adventurers; in order, therefore, that the ends of government may be attained, and that the States which shall be formed may become a speedy and sure accession of strength to the confederacy
“Resolved, That it be, and it hereby is recommended to the Legislature of Virginia to take into consideration their act of cession, and revise the same, so 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 may require; which States shall hereafter become members of the Federal Union, and shall have the same rights of sovereignty, freedom, and independence, as the original States, in conformity with the resolution of Congress of the 10th of October, 1780.”
From this it clearly appears that a proposition to establish the east “and west line running through the most southern part of Lake Michigan, as an arbitrary and unalterable boundary between the States north and south of it, was voted down by that Congress. That construction of the ordinance which denies the power to settle the line as proposed in the bill, is thus repudiated by the fact, that the framers of that ordinance rejected a motion to make it the very instrument which, on the part of Michigan, it is now claimed to be. The preamble to the resolution which was adopted, and which led to the article which it is our duty to construe according to the design of its authors, shows that, to have established an arbitrary line by which Indiana and Illinois would have been “deprived of the advantages of navigation," and Ohio of the outlet of that river, destined to bear the principal part of her products to and from Lake Erie, thus overlooking the attention “due to natural boundaries, and a variety of circumstances which remained to be pointed out by a more perfect knowledge of the country,” would have been inconsistent with the ordinance. And now, after the lapse of nearly fifty years, we look back upon the vote of this day, in consequence of which the arbitrary line was rejected, and the discretionary power of Congress over this very boundary was obtained, as an evidence of wisdom in that Congress, which is entitled to our highest admiration. Their general prediction, that circumstances would be pointed out by a more perfect knowledge of the country, requiring the power to change the boundary, has been completely fulfilled by the discovery, within the last twenty years, of the true location of the southern limit of Lake Michigan, which entirely changes the actual position of the principal line which they had, and we now have, under consideration.
It is contended that the people of Michigan have acquired, by an act of Congress subsequent to the ordinance, a vested right to all that part of the Northwestern 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 west of a line drawn from the said southerly bend through the middle of said lake to its northern extremity, and then due north to the northern boundary of the United States.” These, it is said, are the boundaries, and this the territory given to them by the act of Congress passed thirty-one years ago, establishing the Territorial Govern. ment of Michigan. The act referred to is that of 11th January, 1805, (third volume Laws United States, 632,) “to divide the Indiana Territory into two separate governments.” The very section in that act which prescribes these boundaries, declares that they are marked out for the mere purpose of temporary government. Nothing was further from the design or language of Congress, than to give them any such vested right to the boundaries mentioned in this act. A vested right is an irrepealable right; and it would have been not only inconsistent with the design of a territorial government which was expressly declared to be temporary, to give to the country over which it was to exercise jurisdiction, metes and bounds which could never be changed, even with the change of that government itself, but it would have been equally inconsistent with the whole spirit of the ordinance. The principle asserted is, that “the day upon which that law was approved by the President of the United States, the people within the limits set forth and established in it, acquired the