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ginia charter, situate, lying, and being, to the nortliwest of the river Ohio, subject to the terms and conditions contained in the before-recited act of Congress of the 13th day of September last: that is to say, upon condition that the territory so ceded shall be laid out and formed into Slates, containing a suitable extent of territory, not less than 10!0, nor more than 150 miles square, or as near thereto as circumstances will admit : and that the States so formed shall be distinct republican States, and admitted members of the Federal Union ; having the same rights of sovereignty, freedom, and independence, as the other States.
" That all the lands within the territory so ceded to the United States, and not reserved for, or appropriated to, any of the beforementioned purposes, or disposed of in bounties to the officers and soldiers of the American army, shall be considered a common fund for the use and benefit of such of the United States as have become, or shall become, members of the confederation or federal alliance of the said States, Virginia inclusive, according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever: Provided, That the trust hereby reposed in the delegates of this State shall not be executed, unless three of them, at least, are present in Congress,
" Resolved, That the United States, in Congress assembled, are ready to receive this deed whenever the delegates of the State of Virginia are ready to execute the same.
" The delegates of Virginia then proceeded and signed, sealed, and deliv ered, the said deed ; whereupon Congress came to the following resolution :.
“ The delegates of the commonwealth of Virginia having executed the deed,
Resolved, That the same be recorded and enrolled among the acts of the United States in Congress assembled.”
On the 7th July, 1786, Congress proposed to Virginia to alter her act of cession, by the following resolution :
“ 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 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 inay require; which States shall hereafter become members of the Federal Union, and 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.”
Afterward and before Virginia assented to the proposed change, on the 13th July, 1787, Congress passed the memorable ordinance for the “gor. ernment of the territory northwest of the river Ohio," which, as a bill of rights, is only surpassed by the Declaration of Independence, and, as a fundamental law for the guarantee of civil and religious liberty, and the protection of life, property, and person, is beyond all praise, and entitles the framers of it to the eternal gratitude of posterity. By this compact (the 5th article) is is ordained as follows:
36 ART. 5. Of the ordinance of Congress for the government of the terri. tory north west of the river Ohio.
- 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 bound by the lastinentioned 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 so far to be altered, that if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of 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 shali be at liberty to form a permanent constitution and State government: Provided, The constitution so to be formed shall be republican, and in conformity to the principles contained in these articles; and so far as it can be con. sistent 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 the State than sixty thousand."
On the 30th December, 1788, Virginia acceded to said article, as follows:
“Whereas, the United States, in Congress assembled, did, on the 7th day of July, in the year of our Lord one thousand seven hundred and eightysix, state certain reasons, showing that a division of the territory which bath been ceded to the said United States, by this commonwealth, into States, in conformity to the terms of cession, should the same be adhered to, would be attended with many inconveniences, and did recommend a revision of the act of cession, so far as to empower Congress to make such a division of the said territory into distinct republican States, not more than five, nor less than three in number, as the situation of that country and future circumstances might require. And the said United States, in Congress assembled, have, in an ordinance for the government of the territory northwest of the river Ohio, passed on the 13th of July, 1787, declared the following as one of the articles of compact between the original States and the people and States in the said territory, viz:
[Here the fifth article of compact, of the ordinance of Congress, of 13th July, 1787, as above inserted, is recited verbatim.]
" And it is expedient that ihis commonwealth do assent to the proposed alteration, so as to ratify and confirm the said article of compact between the original States and the people and States in the said territory.
“Be it enacted, therefore, by the General Assembly, That the aforecited article of compact, between the original States and the people and States, in the territory northwest of the Ohio river, be, and the same is hereby, ratified and confirmed, any thing to the contrary in the deed of cession of the said territory by this commonwealth to the United States not withstanding."
Here it may not be amiss to observe, that in September, 1787, the Constitution of the United States was framed, by which the ordinance of 1787, so far as it was a compact between the people of the United States, the State of Virginia, and the people of the northwestern territory, was confirmed and became inviolable.
3d. As to the manner in which the United States have carried the ces. sion into effect.
The first action of Congress was in the application of Ohio to be admitted as a State, in 1802, when the line " on the north, by an east and west line drawn through the southerly extreme of Lake Michigan," was prescribed as the line.
The next act of Congress was in 1805, when the territory of Michigan was formed, when the same line was established as her southern boundary.
Again-In 1816, the State of Indiana (the middle State mentioned in the 5th article of the ordinance of 1787) was admitted into the Union, with her northern boundary " teu miles north of the southern extreme of Lake Michigan."
In 1818, Illinois was admitted as a State, with her northern boundary established at north latitude, 42 degrees, 30 minutes. And
Lastly-In 1836, Michigan was admitted as a State, and forced by Congress to permit Ohio to have her northern boundary north of the river Maumee, “ north of the east line from the most southerly extreme of Lake Michigan."
In connexion with the last act of Congress on this subject, we beg leave to add, that we have perused the able and elaborate reports of the judiciary committees in Congress, on the question of boundary between Ohio and Michigan, in 1836, and although both claim for Congress the power to fix the boundaries of Ohio, Michigan, and Illinois, north of the east and west line running through the southerly extreme of Lake Michigan; yet, their principal argument in favor of Ohio was, that in 1787, according to the maps then extant, an east line from the southerly extreme of Lake Michigan, would strike Lake Erie in the Detroit river, and to rectify a mistake, and carry into effect the evident intent of the parties to the ordinance of 1787, according as they understood it, they gave Ohio her claimed boundary; and as this portion of information is at least curious, if not use. ful, we subjoin an extract from the report of the committee of the Senate :
« We also declare in justice to the State, that, for the reasons which we will now proceed to detail, Congress cannot, consistently, with the original understanding of the compact between the State and this Government, and those obligations which, though not strictly legal, are of great equitable and moral force among pations as well as individuals, withhold its assent to the line proposed in the bill.
" It is a fact which is established by the general testimony of the maps of the country around the southern border of Lake Michigan, which were in existence at the time the constitution of Ohio was accepted by Congress, and of which we have any knowledge, that, at that period, the latitude of the southern extreme of that lake was believed to be between 42 degrees 20 minutes, and 42 degrees 30 minutes north.
“ Mitchell's map, published in the year 1775, so lays down this lake and the adjacent country, that a line drawn due east from this point, strikes the territorial line of the United States in latitude 42 degrees, 20 minutes north; far north of the most northerly cape of Maumee bay, and in the Detroit river, north of Lake Erie itself. As this is alleged to have been the very map relied on by Congress, and by the convention of Ohio, at the time of the admission of the State, and as it was theri considered every where as a map which, in reference to the northwestern territory, had no superior for accuracy, we have caused a lithographic sketch, taken from the original preserved in the Department of State, exhibiting the country according to that map, and a sketch according to the maps of the present day, to be appended to this report. From this, it will be seen at a glance, that, it was ihen believed by both parties, that the new State of Ohio would comprehend, not only the whole territory in controversy, but a much larger tract of country lying north of it. We have also examined the following maps, which fully confirm the statement relied on by Ohio, thąt prior to and at the time of her admission into the Union, it was received as a settled point among geographers, that the disputed tract was all clearly within the limits assigned to her.
“1. A map of the British dominions in North America, according to the treaty of 1763, by Peter Bell, geographer, published in 1772. By this, the latitude of the southern extreme of Lake Michigan is about 42 degrees 30 minutes, an eastern line drawn from which would strike the territorial line, as laid down in this map, in the Detroit river, north of Lake Erie,
62. A map of the British colonies in North America, engraved by Wil. liam Faden. and published in 1777. It is now the property of the Massachusetts Historical Society. This exhibits the southern extreme of Lake Michigan still farther north than Bell's map, and the eastern line, drawn from this extreme, also strikes the territorial line north of Lake Erie.
"3. A map, No. 64, of Kitchin's atlas, belonging to the Boston Marine Insurance Company. The latitude of the points above referred to, is laid down very much as in Bell's map.
44. An ancient map belonging to Harvard College, entitled . An accurate map of North America, describing and distinguishing the British and Spanish dominions on this great continent, according to the definite treaty concluded at Paris on the 10th of February, 1763; also, all the West India islands; the whole laid down according to the latest and most authentic im. provements; by Eman Bowen, geographer to his Majesty, and John Gibson, engineer. By this, also, the southern extreme of Lake Michigan or Illinois' is represented in latitude 40 degrees 30 minutes north, and a line drawn due east from it would pass above · Lake Erie or Okswego,' as that lake is here laid down.
“5. A map belonging to the Boston Marine Insurance Company, published by Laurie and Whittle, at London, in 1794, entitled · A new map of North America, with the West India islands, divided according to the preliminary articles of peace signed at Versailles, 20th January, 1783, wherein are particularly distinguished the United States, and the several provinces, governments, &c., which compose the British dominions, laid down according to the latest surveys, and corrected from the original material of Governor Pownall, member of Parliament. This lays down the southern ex. treme of Lake Michigan or Illinois,' as about 40 degrees 35 minutes north; and a line drawn due east from it would strike far above • Lake Erie or Okswego,' as it is protracted on this map.
“6. An ancient map of the northwestern territory, with a supplement to the map of Hudson's and Baffin's bays, exhibits the same results.
" These, with Mitchell's map above referred to have satisfied us of the
state of geographical information in regard to the country in dispute prior to the admission of Ohio. Lewis's maps confirm the impressions they have given us, and further show, that, so late as 1815, and even till a still later period, the geographers of the United States believed that an east line, drawn from the southerly extreme of Lake Michigan, would strike the territorial line of the United States far above the northerly cape of Maumee bay, which is the most northerly point now contended for by Ohio. Vame's map of the United States, published in 1818, also exhibits the same results.
"A map entitled 'A map of the State of Ohio, from actual survey, by How and Bounce, engraved by H. S. Tanner, Philadelphia, published at Chillicothe in 1815,' also lays down the northern boundary of Ohio, north of the mouth of the Miami bay.
“By all these maps, Ohio appeared to be entitled not only to the territory in dispute, but to a tract embracing perhaps much more than a thousand square miles on the north of it. The map of Hutchins was the only one produced to contradict the general testimony of other geographers; and even this so lays down Lake Michigan, that an east line drawn from its southern extreme, protracted on the same parallel of latitude, would strike near the northern cape of Maumee bay, and give Ohio more than she claims, by including within her limits a part of the country lying on the northeastern border of Indiana.
“Such being the general impression in 1802, and long after, it may be asked, why this proviso was inserted in the constitution of Ohio ? We can only answer, as is done by those, who, on the part of Ohio, have represented the fact to us, that, at the time of the session of the Ohio convention, a member of that body was induced to suspect that there was a mistake as to the southern limit of Lake Michigan by the representations of a beaver trapper, who had hunted around its border; and, upon his suggestion, in order to prevent the possibility of the State's losing the outlet of one of her principal rivers, in consequence of a mere mistake as to the latitude of a single place, of which but little was known at the time, the proviso was introduced. At that day the whole country, in the vicinity of the southern extreme of Lake Michigan, was thronged with savages, and rarely visited by a white man. Even at a much later period, there were few who could boast that they had penetrated to within fifty miles of the spot whish is called the southern limit of Lake Michigan. The maps until long after the last war exhibit the whole southern part of the lake as inclining to the east, although our subsequent surveys in that quarter have accurately proved, that while the lake runs much farther south than was supposed, it actually inclines to the west, and is very far from what was formerly supposed to be its true position.
“ The result is, then, that the intention of both the real parties to this compact has been defeated by a mere mistake as to a single fact, and it is yet within the power of one of those parties to carry out their common design so far as to satisfy the other, which has been injured by the mistake, without attempting to restore all or even half of that which has been actually lost by the error. The whole tract in dispute contains but about six hundred square miles. It is the case of a detective execution of a power manifestly intended to have been executed in good faith, and generally be. lieved to have been well executed, for nearly twenty years. That Congress did not, during this period, express its assent to the line proposed in the constitution of Ohio, which was only to become the boundary on the ascer