USA > Michigan > Outlines of the political history of Michigan > Part 28
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447
CHAP. XIV.] BOUNDARY DISPUTE.
which practically would be anarchy, would have been at least very unlikely. The Michigan au- thorities did not accept or act on such an arrange- ment, and proceeded to arrest offenders, as before, including a portion of the party of the Ohio sur- vey commissioners. Governor Lucas called an extra session of the Legislature of Ohio, and they passed a statute agreeing to the terms as he as- serted them of the United States commissioners, provided the United States would compel Mich- igan to respect them, - otherwise, directing that the Ohio laws should be carried out; and they appropriated $300,000 for that purpose. The Governor, on the 18th of June, sent in a second message enclosing a sharp correspondence with Washington, in which the acting Secretary of State denied the correctness of the Governor's under- standing of the views of the commissioners and of the President, and intimated that the latter might find it necessary to interfere with the power of the United States, if Ohio persisted in running the line with an armed escort. Governor Lucas afterwards sent commissioners to Washington, and it was there understood that General Jackson would recommend the Michigan authorities to avoid any unnecessary violence. For a time things remained quiet, with an occasional difficul- ty, but no general interference.
The Legislature of . Ohio had, at the latest session, undertaken to organize a new county named Lucas county, covering the seat of difficulty,
448
TOLEDO WAR
[CHAP. XIV.
and it was understood that it was intended to open court at Toledo on the 7th of September, and that levies of troops had been made to pro- tect the judges in so doing. Governor Mason thereupon ordered out the Michigan forces, and took possession of Toledo, accompanying the troops in person. It is said, but on doubtful au- thority, that the court was organized by night, and secretly, and immediately adjourned. No op- posing forces were encountered by Governor Mason : and the Michigan levies were led back over the line, and disbanded at their various points of rendezvous. The feeling all over Mich- igan was intense, and it is fortunate there was no fatal bloodshed.
Many of the reminiscences of the campaign partake of the ludicrous. It is not desirable to record the personal incidents and misadventures which our troops reported as having befallen themselves and some of their civil adversaries. Michigan had a skeleton in her own closet, in the shape of a "claim of Lewis E. Bailey for a horse lost in the service of the State, in defending the supremacy of the laws." Year after year, from 1836 to 1846, this claim was regularly presented and regularly rejected, until in the latter year it dawned upon the minds of the Legislature that it might be better to pay fifty dollars, and inter- est from January Ist, 1836, than to waste time and printing enough to cost more than a regiment of horses; and they surrendered to a siege that
449
SOUTHERN BOUNDARY
CHAP. XIV.]
parallelled in duration that of Troy. Time has healed the other griefs, and if the historian is compelled to discuss them, it is not with the pa- thetic lament of Queen Mary over the loss of Calais, nor the hankering for territory which has made Alsace-Lorraine a debatable ground so long. However doubtful the bargain was originally by which Ohio obtained the spoils, it has been ratified too thoroughly to be disputed; and our only present emulation is friendly and neighborly.
The history of the disputed boundary is not complicated. The Ordinance of 1787, which, as already pointed out, was not a mere statute- which the confederated Congress had no power to enact - was in itself a compact, and article of government, for a region over which Congress itself could not, as then organized, legislate di- rectly at all. It had no ordinary legislative power, and reserved none; but, in pursuance of arrange- ments which had all the essentials of treaty obli- gations, defined certain limits for the temporary exercise of authority by a legislative board, until the population should reach 5,000 free male in- habitants, after which the legislative power of the Territory was absolute, subject only to certain specified restrictions necessary to justice. The time for organizing the Legislature was ascertained by the Territorial, and not by the Congressional. authorities, and it was expressly stipulated, as a perpetual compact, that while, as a matter of grace, the future States might be admitted with less than
29
450
SOUTHERN BOUNDARY.
[CHAP. XIV.
60,000 inhabitants, each should be entitled to form a permanent constitution and State government, and be admitted into the Union as a matter of right, whenever it should have that number. It was not in any way intimated or implied that Congress should be. first required to give permis- sion, before the initial steps were taken. The or- dinance itself gave this permission, as plainly as it did that for establishing a Territorial Legisla- ture to supplant the Legislative Board. The only difficulty that could arise must have arisen out of the authority to create five, instead of three States. And this was the ground insisted upon by those who questioned the right of Michigan.
The perpetual compact provided for "not less than three, nor more than five, States;" and the three contemplated were formed by the indefinite continuation northward, to the national boundary line, of the present lines between Ohio and Indiana, and between Indiana and Illinois. These were sub- ject to this proviso : " Provided, however, and it is further understood and declared, that the boundar- ies of these three States shall be subject so far to be altered that it Congress shall thereafter 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 draw 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
451
SOUTHERN BOUNDARY.
CHAP. XIV.]
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 constitu- tion and State government: Provided, the con- stitution 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 interests 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."
This compact was declared to be perpetual. It was established when there was no expectation that any change would be made in the articles of confederation, which would give Congress any legislative power that could tamper with the Or- dinance, or provide for governing Territories by direct Congressional interference.
The practical construction put upon it by the first Congress of the United States under the Constitution, was that it was unalterable. There were but two powers reserved to Congress by the Ordinance; one of them-the appointing power- being executive in its nature, and the other-the designation of States north of the latitude of the southern point of Lake Michigan-being one of those mixed powers which may be exercised by legislatures themselves, or delegated. By the Con- stitution of the United States the appointing power was made executive entirely ; and the power of
452
SOUTHERN BOUNDARY.
[CHAP. XIV.
admitting States was left Congressional. Instead of remodelling this Ordinance, the Congress of 1789 adopted this preamble : "Whereas, in order that the Ordinance of the United States in Con- gress assembled, for the government of the Ter- ritory Northwest of the River Ohio, may continue to have full effect, it is requisite that certain pro- visions should be made, so as to adapt the same to the present Constitution of the United States. " Be it enacted," etc. The change made was in transferring the executive functions to the Presi- dent and Senate, who under the Constitution had succeeded to that branch of the old powers of Congress. It is also to be remembered that the compact against change did not cover any but six specified articles of the Ordinance.
No subsequent act of Congress for the estab- lishment of Territories, outside of the lands owned before the Constitution, has ever contained com- pacts beyond the recall of Congress; and it may be doubtful whether Congress could so stipulate. But no such doubt can exist concerning the Con- gress of the Confederation ; and the Congress of 1789 evidently intended to respect their agree- ments.
The east and west line which was named in the Ordinance, was adopted without qualification. The suggestion of Mr. Binney that it was in- definite, because it has no named terminus, would hardly have been made on sober reflection. It is as definite as any boundary line could be made
453
CHAP. XIV.] SOUTHERN BOUNDARY.
for dividing northern from southern jurisdiction ; and is simply a parallel of latitude, which extends wherever there is any territory to bound. It is a mere assumption to claim that the Congress of 1787 laid it out under a mistake, or intended to give the eastern State the entire southern shore of Lake Erie, or any specific part of it. It gave no lake privileges to either of the two others, which were quite as worthy of consideration. It is definite, and is not ambiguous. In a private contract no court could find it open to construction.
Whether Congress now has the abstract power to disregard and change such a stipulation, has ceased to be a practical question. In the case of the southern boundary of Michigan, it required the consent of the State to the change before admitting it, and thus precluded the discussion of the question before the courts. The main question at issue in 1835 was whether such a change had been attempted, and whether, if attempted, valid or invalid, it was in accordance with good faith. A nation may do many things lawfully which she cannot do honestly.
When the County of Wayne was first laid out, in 1796, it included all the disputed territory, and its southern line extended to the Cuyahoga River. When it was proposed to create the State of Ohio, this county was not consulted in the first instance ; and if Judge Burnet is correct, the State was formed below the east and west line of the Ordinance for the very purpose of excluding
454
SOUTHERN BOUNDARY. [CHAP. XIV.
Wayne County, for fear it would change the political character intended to be given to the new State. By the act of Congress, which pur- ported to give all inhabitants a right to vote for delegates to a convention, no one in Wayne County was allowed to vote, either in his own county or in any other district. It had not been ascertained that the territory included had 60,000 people, and the law allowing a State to be formed was matter of favor and not of right. The statute assumed the precise boundary of the Ordinance, until it struck Lake Erie, or the national boundary line. The delegates were elected to do precisely what this act called for ; and their action was not referred back to the people for ratification. The act of Congress reserved the right to annex the country north of the line and of Ohio, to that State, or to organize one or more States there according to the Ordinance. No power was given to the Ohio convention to change the lines. That convention, however, having learned that the line mentioned in the Ordinance might probably run further south than was supposed, passed a resolution providing that, with the assent of Congress, the line should in that case be drawn from the south point of Lake Michigan to the north entrance cape of Maumee Bay.
No act or resolution was passed by Congress, for the express purpose of admitting the State, or approving its constitution. The members were allowed their seats in the two houses, like those
455
CHAP. XIV.] SOUTHERN BOUNDARY.
from other States; and the only laws passed as- sumed that the State had already become one of the United States by the act of its convention alone, under the terms of the enabling act of 1802.
When Michigan was organized as a Territory, the line of the Ordinance of 1787, and not that recommended by the Ohio convention, was adopted as the southern boundary. This wast just two years after Ohio was admitted, and when her sen- ators and representatives were able to represent her interests in Congress. Either they did not oppose the line, or their opposition was overruled. It is evident the Ordinance was still regarded as sacred.
This is all of the legislation of Congress re- cognizing or establishing boundaries. The debates in Congress in 1834 and 1835, as well as after the formation of the Constitution of Michigan, were very full, and several reports were made. It was held with almost absolute unanimity, that the dis- puted territory belonged to Michigan, until Con- gress should legislate further. Mr. Adams and others held the Ordinance was irrevocable, and be- yond the power of Congress at all. Others, holding that Congress had power to give the land to Ohio, thought it policy to so grant it. Every one felt that unless Michigan consented, there was room for legal controversy. A Territory could not sue or be sued in the United States Supreme Court. A State could sue another State there; and it had been held in the very recent contro-
456
SOUTHERN BOUNDARY. [CHAP. XIV.
versy between New York and New Jersey, as it has been several times since, that boundary ques- tions could be so litigated. It was only by acting before Michigan became a State, and by keeping her out until she surrendered her claims, that the matter could be put beyond doubt. Indiana and Illinois were as much interested as Ohio in fore- closing this future litigation ; and Michigan was coerced into either giving up her claim, or being left where she could never litigate it. How this was done will appear presently.
If Congress lawfully possessed the power to change the boundaries, its decision would have been binding, although in violation of a very solemn contract. Had it been made without the extorted consent of Michigan, the question of Congressional right could have been settled by the United States Supreme Court. This would have lessened the temporary excitement. Ohio was not willing to leave open her present right, or her right under such legislation; but, with In- diana and Illinois, desired to have it foreclosed by some act which would bind Michigan at all events.
The equities of Ohio to have the line changed were placed by that State, or its Governor, chiefly on three grounds, viz: the intent of the Congress of 1787 to follow the supposed line, which was further north than the real one; the action of the State constitutional convention; and the pre- ference of the people within the district.
457
CHAP. XIV.] SOUTHERN BOUNDARY.
The last point, if true, could hardly be regard- ed. The country had been settled, and its settle- ment made possible and facilitated, entirely under Michigan law; and the new preferences, if they existed, were very recent, and were created by the promise of improvements, coming from Indiana, which, if important enough, would sooner or later have been made necessary under any circumstances. But if the inhabitants of any por- tion of a State or Territory are entitled to have their wishes for a change of allegiance respected, there would soon be an end to governments.
If there was a mistake concerning the real position of the southerly point of Lake Michigan, no one knows just where it was supposed to be or who made it. The pencil line on a map said to have been before the committee of Congress -although the map has never been verified, and the story is somewhat apocryphal,- is said at the same time to have thrown the line a little below Detroit, and far to the north of the Mau- mee. There is no evidence that Congress paid any attention to this question, or cared where the line fell; inasmuch as it was subject to their future discretion whether to run the line at all or not. It was not the wish of the people of Mich- igan in 1802 to be separated from Ohio. It was known they would have voted against this ; and when they were separated, it was on the basis that all of Wayne County should be cut off from a voice or interest in the new State. If the Con-
458
SOUTHERN BOUNDARY.
[CHAP. XIV.
gress of 1802 examined into the matter at all of the location of the line, it is quite as likely, and more consistent with honesty, that they meant to follow the then existing lines of Wayne County, as that they meant to cut off a portion of it without giving the people a right assured to every other inhabitant of the country set apart as Ohio. Wayne County was very well known to cover this land.
What map was supposed to have been before the Congressional committee is not known. There were undoubtedly maps then extant which did not place Lake Michigan as far to the south- ward as it really ran. But there were others that did. If it had been deemed essential, some care would probably have been taken to find out the latitude. The French explorers often gave the result of their observations with accuracy, but their maps are not uniform, and very few maps of that period were carefully protracted. D'An- ville's map places the south end of Lake Michi- gan below any part of Lake Erie. Some of the French and English maps bring it so far east as to strike the line between Ohio and Indiana. The map in Parkman's "Conspiracy of Pontiac" is substantially accurate, in regard to the relative positions of the two lakes. It is not stated from what that was copied. It may be modern, but if so it is not drawn from modern sources in many respects, and in some is very inaccurate. It is probable that in the one particular of making the
459
SOUTHERN BOUNDARY.
CHAP. XIV.]
point of Lake Michigan north of the Maumee Rapids, the preponderance in number exists in favor of it among the maps then in vogue. But where this is so, they do not even approach an agreement as to the real line. And it is not asserted that the Ohio convention of 1802 acted on any map or upon any other definite informa- tion, in desiring Congress to change the line. They proceeded on the statement of a man who was no surveyor. The equity is a very slight one, at best, that hangs on such a support, and the evidence is not clear even as to that.
As to the action of the convention of 1802, its force is the other way, for they knew the line must be changed, if made to suit them, and Con- gress never changed it, but at several different periods acted adversely. The organization of Michigan, in 1805, was upon the expressed theory that the line was at all events to run east from the point of Lake Michigan. In 1807, Governor Hull procured from the Indians a grant of right of way for a road from the foot of the Miami Rapids to the Connecticut Reserve, for the expressed purpose of connecting the Ohio and Michigan settlements. In 1812, Congress required the Michigan line to be run on the parallel of the south point of Lake Michigan. Applications were made to Congress on behalf of the more northern line as desired by Ohio, repeatedly through a period of several years, and were never acceded to. Ohio never attempted to claim by
460
SOUTHERN BOUNDARY.
[CHAP. XIV.
practical steps that the line was already as she desired, until Michigan was about becoming a State; when Governor Lucas took the measures already alluded to, under pretexts of title.
The action of Governor Mason and the Mich- igan Council was no more than every civilized government is bound to exercise, when her peace- able possession under the law of the land is suddenly invaded. The United States laws, as well as the Territorial laws, had defined the Terri- torial jurisdiction ; and the Territory was in posses- sion, - not recently asserted but long undisturbed. The civil officers had no right to abdicate their powers ; and neither the Governor nor the Presi- dent, both of whom were the servants of the law, could have relieved those officers from liability for neglecting the duties which the law laid on them. No Michigan officer ever attempted to surrender the authority of the Territory. Had he done so he could have bound no one. There is no likeli- hood that Commissioners Rush and Howard made any such attempt. If they had attempted it, their action would also have been nugatory; and every one of common sense must have known it to be SO. The President of the United States has power to remove governors of Territories, and may thus indirectly secure such action as men who choose to abdicate their manhood may take to please him. But neither he nor his appointees could lawfully interfere to change or suspend the laws of the Territory ; and General Jackson is not shown to
461
CONDUCT OF MICHIGAN.
CHAP. XIV.]
have asserted any such power. It is not within the constitutional power of any State to set on foot a war of invasion ; and acts of violence done beyond the State by any one would be in law mere private misdeeds, which would be punishable in the same way, whether authorized or disavowed by the State. The opinion of Mr. Butler, and of the United States executive, was in harmony with these principles. While a nation may, perhaps, by avowing an act of its officers abroad, cover them from personal responsibility and put itself in their stead, a State of the Union has no extra- territorial functions, and cannot justify others in doing wrongful acts elsewhere.
It is probable that, in the excitement of the times, those Michigan officers who performed their functions in the disputed territory, were not always careful to measure their conduct by line and plummet; and abuses may have been com- mitted under color of law. This, though not justifiable, was, in view of the natural infirmity of human dispositions, a consequence easily foreseen ; and it resulted from the provocation and resistance. Although a defendant who justifies an assault by pleading against his adversary son assault demesnc (his own assault,) usually sets up for himself that he thereupon softly laid hands on him, (molliter manus imposuit,) yet a jury generally finds that any laying on of hands not grossly in excess of what would suffice for self-protection, is soft enough to satisfy the conscience. The alia enormia
462
CONSTITUTION ADOPTED.
[CHAP. XIV.
-the filling in or aggravation of the charges,- in cases of border violence, is not usually regarded as putting the offended-and in turn offending- power in the wrong upon the main question.
But after the lapse of forty years, and the growth of many friendly relations, it is not unpleasant to remember that the only lives lost were those of two horses, one on either side, one -according to tradition-an Ohio steed slain by General Stickney by mistake, and one lost in some unknown way, for which the State of Mich- igan paid Mr. Bailey. A sheriff's officer who was stabbed by Two Stickney recovered in due course of time; and those who suffered other griefs have probably been sufficiently repaid by the serene consciousness of having some personal adventures to talk about.
The Constitutional Convention met at Detroit, on the second Monday in May, 1835, and after a patient session, submitted a Constitution for the popular approval, which became operative by adoption. An election was called for the first Monday in October, 1835, to vote upon the Con- stitution, and to elect a Governor, Lieutenant Governor, Members of the State Legislature, and a Representative in Congress, all to become enti- tled to their offices in case the Constitution should be ratified. The first Legislature was to meet on the first Monday of November.
This Constitution contained the usual bill of rights. Its only peculiar political feature was that
463
CONSTITUTION.
CHAP. XIV.]
it gave the right of voting to all free adult white male inhabitants who were residents of Michigan when the Constitution was signed, whether citizens of the United States or not. This provision, (which had no permanent importance, because all voters would soon be otherwise qualified for naturalization) was a difficulty urged with some force in Congress, against the validity of the Constitution, as interfering with the laws of the United States. It is however to be borne in mind that the Ordinance of 1787 did not require voters to be citizens of the United States. At that time each State had its own naturalization laws; and two years' residence in the Territory made one a voter, if otherwise qualified. The action was, therefore, not entirely without prece- dent, and was necessary to prevent the dis- franchisement of those who had been allowed to vote for the delegates who sat in the convention.
The Legislature consisted of a Senate and House of Representatives, over whose acts the Governor had a veto power corresponding to that of the President. The Governor and Lieutenant Governor were to be elected for terms of two years, and the executive power was vested, as by the United States Constitution, in the Governor, or in the Governor and Senate. The courts were to consist of one Supreme Court, and such inferior courts as the Legislature should ordain ; except that express provision was made for courts of probate and justices of the peace.
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