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but even that the rights themselves may be annulled and destroyed. But it seems to have been forgotten that the right of a patentee is not derived from state authority, but has its foundation in the Constitution and laws of the United States. As the state prohibition of its exercise, in whatever terms expressed, under whatsoever pretext made, however coloured and disguised, would, in truth, be a violation of the right itself, I am forced to the conclusion that such a legislative act would be wholly void, as repugnant to that law which is confessed by all to be supreme and paramount.
. II. I consider the grant to Messrs. Livingston and Fulton as repugnant, also, to that clause of the Constitution of the United States which vests in Congress the power “to regulate commerce with foreign nations and among the several states ;" which power I regard also as necessarily exclusive. It has been so treated by every department of the government, and by all classes of citizens, in every quarter of the Union, ever since the adoption of the Federal Constitution. It was to effect this transfer of power that the Constitution owes its origin. This was the express motive for assembling the Federal Convention. The exclusive grant of this power was essentially requisite to give to our shipping its nationality and protection; and the surrender of this power was, in this state, the most formidable obsta. cle to the ratification of the new Constitution. It possessed the best harbour upon the Atlantic coast; the fertility of its western territory was known; the rapid increase of its population was confidently antieipated; the tide of immigration had begun to flow in upon it; and the consequent accession of wealth and power promised from these sources afforded the most seductive objects to the ambition of its statesmen and politicians. These were the causes, indeed, which combined to delay and resist the adoption of the Constitution in this state, until it became certain that, by the assent of “nine states," it would go into immediate operation among them, while this state and the other recusant members of the old Confederacy would thus be deprived of the benefits both of the former compact, and of the government by which it was superseded.
It remains only to consider in what manner Mr. Gibbons may best avail himself of the rights conferred by his patents and coasting license under the Constitution and laws of the United States. My advice is, that he send his boat
into those waters between this state and New-Jersey which are claimed as lying within the territorial boundary, as well as the jurisdiction of the former, without confining her navigation to those waters which, though admitted to be within the limits of the latter, yet over which New-York claims, nevertheless, exclusive jurisdiction. Nor need he be deterred by fear of having his boats seized under the act of 1811, authorizing Messrs. Livingston and Fulton immediately to seize and keep possession of his property before condemnation, and without trial; thus giving them the benefit of an execution before the verdict of a jury or the judgment of a court, and without the intervention of the sheriff; for I hold this monstrous provision to be so clearly repugnant to that fundamental law which man derives from his Creator, and which is paramount to all human authority, that no judge on earth will venture to execute it.
W. A. DUER. Albany, July 14th, 1816.
AN ORDINANCE FOR THE GOVERNMENT OF THE TERRITO
RY OF THE UNITED STATES NORTHWEST OF THE RIVER OHIO.
Be it ordained by the United States in Congress assembled, that the said territory, for the purposes of temporary government, be one district ; subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient.
Be it ordained by the authority aforesaid, that the estates both of resident and non-resident proprietors in the said territory dying intestate, shall descend to, and be distributed among their children, and the descendants of a deceased child, in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and where there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate shall have in equal parts among them their deceased parents' share ; and there shall in no case be a distinction between kindred of the whole and half blood ; saving in all cases to the widow of the intestate her third part of the real estate for life, and one third part of the personal estate; and this law relative to
descents and dower shall remain in full force until altered by the Legislature of the district. And until the governor and judges shall adopt laws as hereinafter mentioned, estates in the said territory may be devised or bequeathed by wills in writing, signed and sealed by him or her in whom the estate may be (being of full age), and attested by three witnesses ; and real estates may be conveyed by lease and release, or bargain and sale, signed, sealed, and delivered by the person, being of full age, in whom the estate may be, and attested by two witnesses, provided such wills be duly proved, and such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates, courts, and registers shall be appointed for that purpose; and personal property may be transferred by delivery; saving, however, to the French and Canadian inhabitants, and other settlers, of the Kaskaskies, Saint Vincent's, and the neighbouring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property.
Be it ordained by the authority aforesaid, that there shall be appointed from time to time, by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress : he shall reside in the district, and have a freehold estate therein in one thousand acres of land, while in the exercise of his of. fice.
There shall be appointed from time to time, by Congress, a'secretary, whose commission shall continue in force for four years, unless sooner revoked; he shall reside in the district, and have a freehold estate therein in five hundred acres of land, while in the exercise of his office : it shall be his duty to keep and preserve the acts and laws passed by the Legislature, and the public records of the district, and the proceedings of the governor in his executive department; and transmit authentic copies of such acts and proceedings, every six months, to the secretary of Congress : there shali also be appointed a court, to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in five hundred acres of land, while in the exercise of their offices; and their commissions shall continue in force during good behaviour. The governor and judges, or a majority of them, shall
adopt and publish in the district such laws of the original states, criminal and civil, as may be necessary and best suited to the circumstances of the district, and report them to Congress from time to time; which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress; but afterward the Legislature shall have authority to alter them as they shall think fit.
The governor for the time being shall be commanderin-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress.
Previous to the organization of the General Assembly, the governor shall appoint such magistrates and other civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order in the same: after the General Assembly shall be organized, the powers and duties of magistrates and other civil officers shall be regulated and defined by the said assembly; but all magistrates and other civil officers not herein otherwise directed shall, during the continuance of this temporary government, be appointed the governor.
For the prevention of crimes and injuries, the laws to be adopted or made shall have force in all parts of the district, and for the execution of process, criminal and civil, the governor shall make proper divisions thereof; and he shall proceed from time to time, as circumstances may require, to lay out the parts of the district in which the Indian titles shall have been extinguished into counties and townships, subject, however, to such alterations as may thereafter be made by the Legislature.
So soon as there shall be five thousand free male inhabi. tants, of full age, in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties or townships to represent them in the General Assembly ; provided that for every five hundred free male inhabitants, there shall be one representative, and so on progressively with the number of free male inhabitants shall the right of representation increase, until the number of representatives shall amount to twenty-five; after which the number and proportion of representatives shall be regulated by the Legislature: provided ihat no person be eligible or qualified to act as a representative unless he shall have been a citizen of one of
the United States three years, and be a resident in the district, or unless he shall have resided in the district three years; and in either case, shall likewise hold in his own right, in fee-simple, two hundred acres of land within the same: provided, also, that a freehold in fifty acres of land in the district, having been a citizen of one of the states, and being resident in the district, or the like freehold, and two years residence in the district, shall be necessary to qualify a man as an elector of a representative.
The representatives thus elected shall serve for the term of two years ; and in case of the death of a representative, or removal from office, the governor shall issue a writ to the county or township for which he was a member to elect another in his stead, to serve for the residue of the term.
The General Assembly, or Legislature, shall consist of the governor, legislative council, and a house of representatives. The legislative council shall consist of five members, to continue in office five years, unless sooner removed by Congress, any three of whom to be a quorum; and the mem. bers of the council shall be nominated and appointed in the following manner, to wit: As soon as representatives shall be elected, the governor shall appoint a time and place for them to meet together, and when met, they shåll nominate ten persons, residents in the district, and each possessed of a freehold in five hundred acres of land, and return their names to Congress ; five of whom Congress shall appoint and commission to serve as aforesaid ; and whenever a vacancy shall happen in the council, by death or removal from office, the House of Representatives shall nominate two persons, qualified as aforesaid for each vacancy, and return their names to Congress, one of whom Congress shall appoint and commission for the residue of the term. And every five years, four months at least before the expiration of the time of service of the members of council, the said house shall nominate ten persons, qualified as aforesaid, and return their names to Congress ; five of whom Congress shall appoint and commission to serve as members of the council' five years, unless sooner removed. And the governor, Legislative Council, and House of Representatives shall have authority to make laws, in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared. And all bills having passed by a majority in the house, and by a