in the district, the council and house assembled in one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating but not of voting during this temporary government. SEC. 13. And, for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory: to provide also for the establishment of States, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest. SEC. 14. It is hereby ordained and declared by the authority aforesaid, That the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent, to wit: ART. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory. ART. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offences, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed. ART. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them. ART. 4. The said territory, and the States which may be formed therein, shall forever remain a part of this Confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in the said territory shall be subject to pay a part of the federal debts contracted or to be contracted, and a proportional part of the expenses of government, to be apportioned on them by Congress according to the same common rule and measure by which apportionments thereof shall be made on the other States; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the legislatures of the district or districts, or new States, as in the original States, within the time agreed upon by the United States in Congress assembled. The legislatures of those districts or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers. No tax shall be imposed on lands the property of the United States; and, in no case, shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor. ART. 5. 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 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 so far to be altered, that, if Congress shall here after find it expedient, they shall have authority to form one or two States in the 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 inhabitant 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: Provided, the constitution 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 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. ART. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid. Be it ordained by the authority aforesaid, That the resolutions of the 23rd of April 1784, relative to the subject of this ordinance, be, and the same as hereby repealed and declared null and void. Senator HRUSKA. One other unanimous-consent request, Mr. Chair man. The American Law Division of the Library of Congress, the Legislative Reference Service, has prepared a monograph on the appor tionment of territorial legislatures in the Northwest Territory. I shall not ask that it be inserted in the record except in part, at this point. That part has to do with the portion called the "Summary," which starts at page 56, and extends over to page 59. The monograph is signed by Robert L. Tienken, the legislative attorney, will explain the background and context in a fair way, in my judgment, as to what has happened in the Northwest Territory Ordinance. Senator BAYH. It will be included in the record. Senator HRUSKA. With the privilege of comment after the Senator has considered it. Senator PROXMIRE. I appreciate it. (The matter referred to follows:) SUMMARY Because of statistical gaps, particularly in the early years, conclusions to be drawn from the material collected as to apportionment under the Northwest Ordirance of 1787, are, at best, tentative only. The following are presented: 1. There was an intent on the part of Congress to rationally apportion the legislatures of the territorial governments when they reached the second stage. This is evidenced in several ways: (a) each act passed by Congress amending The ordinance prescribed a rational system of apportionment; (b) the later acts not only provided for apportionment of the lower house of each territorial legis lature, but of the upper house as well; (c) the later acts changed the apportionment formula from one based on free, white males aged 21 and over, to the total population (excluding Indians not taxed). Although the earlier formula was a roughly acceptable formula by today's standards (see Reynolds v. Sims, 377 U.S. 533, 577: "We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters ***"), if the assumption is made that many free white males of 21 and over at the time possessed sufficient properties to qualify as voters and thus that the standard was roughly that of voters (and see 2 Stat. 469 (Feb. 26, 1808) in which the property qualification for voting in the Indiana Territory was eased; 2 Stat. 659 (March 3, 1811) in which the property qualification was eliminated in Indiana Territory; 2 Stat. 741 (May 20, 1812) in which the property qualification was eliminated in the Illinois Territory), the whole population standard adopted by Congress for the Michigan and Wisconsin Territories was a more equitable apportionment standard. 2. The territorial legislatures reapportioned themselves at reasonably frequent intervals. This, of course, did not apply to the first legislative body of the Northwest Territory which had only one session in 1799, nor to the legislature of the territory northwest of the Ohio River which was in session for only 2 years before the State of Ohio was created. 3. Neither Congress, in the original ordinance, nor the territorial legislatures, required each county (i.e. an "area") to be represented as such. County lines were not broken by Congress nor by the territorial legislatures, but the apportionments that were made included many multimember counties and districts formed of two or more counties. These latter arrangements correspond closely to a one-man-one-vote standard. 4. The intent of Congress as to substantial equality of apportionment is reflected in the fact that it prescribed specific or limited numbers of representatives in each territorial legislature without tying them to any prescribed number of counties or other political subdivisions. It is possible to assume that Congress understood that there would be a rapid growth in the number of counties without a change in the number of representatives and that consequently representative districts would be formed on general population standards and which would include several counties, etc. Thus the essential base would be population or free, white males 21 and over. 5. While substantial equality existed in a few scattered actual or projected instances, there were many deviations, percentagewise, from a one-man-one-vote standard. There was no creation of districts from parts of two counties, a suggested, although not entirely mandatory, requirement of the one-man-one-vote standard today. From these conclusions a more general one might be drawn: The apportionment policy in the Ordinance of 1787, and in amendments thereto by Congress, developed consistently toward a more equal standard. Both intent and practice reflected an awareness of general apportionment norms. Methods of achieving substantial equality of population, or of voters, among districts, such as are utilized today, like multimember counties and combinations of counties into single districts, plus frequent apportionments, were reported to freely. The I apportionment policy of the ordinance was not a dead letter. Substantial equality was achieved at times, although in many instances there was considerable deviation among districts. Difficulty in securing census returns in the early years and rapid fluctuations in population militated against the consistent attainment of the standard. 1 Rational policies based generally on population or voter standards were, however, practiced, no matter how roughly. And these, rather than area or other conditions were essentially at the base of apportionments in the Northwest Territory. Perfect apportionment there was not, but apportionment on the basis of persons there was. It may not have been exactly one-man-one-vote, but it was certainly not premised upon arbitrary policies of discrimination. ROBERT L. TIENKEN, Senator BAYH. If there are no other questions, I want to thank the Senator from Wisconsin for being so patient, and for his contribution. Senator PROXMIRE. I enjoyed this a great deal. Thank you very much. Senator BAYH. Before recessing for lunch, I would like to submit the statement of Senator Milton Young to be included as if he were here, if there is no objection. (The statement of Senator Milton R. Young follows:) STATEMENT OF SENATOR MILTON R. YOUNG Senator YOUNG. Mr. Chairman, I am pleased to have the opportunity to appear before this subcommittee and to present my views on the problems connected with reapportionment of State legislatures. The people of North Dakota are concerned over the resulting effect of the recent Supreme Court decisions on reapportionment. I have received a great many letters on this subject commencing with the first decision handed down by the Supreme Court in 1962. The latter decisions announced in June of 1964 are, in my opinion, the most farreaching decisions in the history of our Constitution. Before coming to the U.S. Senate, I spent 12 years in the State Senate of North Dakota, and I can understand the problems which are confronting these State legislators today. The North Dakota State Legislature, presently in session, is considering a new plan of reapportionment. They have had this problem in every session since the last census in 1960. There have been some justifiable complaints about the lack of representation, but I think the remedy advocated by the courts is drastic and unfair to many people. I strongly believe that the membership of a State house of representatives should be based strictly on population. However, apportionment of a State senate, besides being based on population, should also recognize other factors which would permit rural people, industries, and residents of smaller cities and towns to have more adequate representation. The advocates of the one-man-one-vote plan are seeking to obtain fair representation as their goal. Reapportionment of a State legislature actually reconstructs the heart of a representative State government. If the courts exercise this function, we are allowing them to assume the role of a Constitutional Convention. If North Dakota approves a reapportionment plan based on the one-man-one-vote principle, it will provide inadequate representation and adversely affect many of our industries. As an example, North Dakota is recognized as the 14th ranking oil-producing State and ranks 1st in lignite coal deposits and mining operations. Lignite is being and will be used extensively for the generation of electrical power through two very large thermal generating plants already under construction. All of the oil wells, as well as most of the lignite coal deposits, are located in counties in the western half of the State. In terms of population, this section of the State has the most sparsely populated counties. These two industries, highly important to North Dakota's future, would have little representation in the State legislature if it were reapportioned in accordance with the Supreme Court decisions. Another example of this problem relates to agriculture, which is the backbone of our economy. Over one-half of our population lives in cities and towns in North Dakota, but over 80 percent of the total income in North Dakota is derived from the sale of agricultural com modities. Therefore, the people who contribute the greatest amount to our economy would be unequally represented in the State legislature. I think we all recognize that legislation is obtained by compromise and that no one is 100 percent satisfied with the end result. The action taken in Colorado on reapportionment is a good example of how a compromise was achieved by the rural and urban interests. There a reapportionment plan which called for the apportionment of the State senate on a modified population basis was approved by the people in every county in a popular referendum. To me this clearly indicates the will of the majority of the people, but their plan was overturned by the courts. The people who argue that the membership in a State senate should be based soley on population are supporting a position taken by the large metropolitan areas, who have, for many years, deplored the fact that States like North Dakota with a small population have the same representation in the U.S. Senate as their State. One of the major reasons why we have become a great Nation today is that the U.S. Senate through our Constitution has always given equal representation to every State. This is fundamental to our whole system of government. I believe that time is of the essence and that Congress should act to correct this situation. As one of the cosponsors of S.J. Res. 2, I sincerely hope that this subcommittee will act favorably on this proposed legislation. If this resolution is approved by Congress and the constitutional amendment is ratified by the required number of States, it would protect the right of the people to apportion one house of their State legislature on factors other than population. The subcommittee subsequently received the following information from Senator Young: COMMITTEE ON APPROPRIATIONS, U.S. SENATE, Hon. BIRCH BAYH, Chairman, Subcommittee on Constitutional Amendments, Senate Judiciary Committee, Washington, D.C. March 25, 1965. DEAR SENATOR BAYH: Enclosed is a copy of House Concurrent Resolution 2 passed by the North Dakota State Legislature relating to apportionment. Senator Bayh, since you have just held hearings on legislation dealing with apportionment of State legislatures I respectfully request that this resolution be made a part of the record. I believe this resolution reflects the feeling of the North Dakota State Legislature on this problem. With warmest personal regards, Sincerely, MILTON R. YOUNG. Thirty-ninth Legislative Assembly, State of North Dakota, begun and held at the Capitol in the city of Bismarck, on Tuesday, the 5th day of January 1965] HOUSE CONCURRENT RESOLUTION E2 4 CONCURRENT RESOLUTION Urging the Congress of the United States to propose an amendment to the Constitution of the United States, relating to apportionment Whereas the Supreme Court of the United States has ruled that membership in both houses of a bicameral State legislature must be apportioned according to population and has thus asserted Federal judicial authority over the basic structure of government in the various States; and Whereas this rule denies to the people of the respective States the rights to establish their legislatures upon a pattern of representation deemed suitable to the needs of each State or similar to the pattern deemed advantageous for the Congress of the United States and provided by the Federal Constitution; and |