Mississippi Territory Washington Nov. 25th. 1805
I inclosed you Not long since the Name for the Legislative Council of this Territory being then at the post office & the Mail about to start, I endorsed the Name & enclosed to you and intended to insert there in the Commission after the Mail Started—on a recurrence to the Commission I found it had been filled up as to date to wit, 29th. of april 1805 and no period fixed on in the Commission for the Commencement of their offices, other than the date, and as the tenor by which those offices are held is during the pleasure of the President for the time being, quere, whether this Commission would not be a virtual revocation of the Commissions of the former & present council from the day of its date—For a while I was inclined to the opinion that it might not in as much as those appointments differ from any others made by the President, by being Confined to a nomination, to be previously made under the ordinance and that he could only make a vacancy by a revocation of Commission, but could not fill it, until a new nomination should be made to him—but in this case there was a nomination for the President to act on—had the Commission expressed it commence from and after the 30th. day of decr. Next which is the time the present council’s appointment expires there would have been no doubt—What makes the more cautious not to hazard on this occasion is that there was a Session of the Legislature in July and a question might arise as to the legality of the laws then passed, and also the laws which may be passed at the approaching Session—again could the date be recent, those doubts would be done away by having the opinion of yourself supposed to be against them as you know all the facts, but as it now is the date may give life to Clamor and fix the responsibility on me, which would induce some to object—
Upon the Whole View of the subject therefore, and in as much as no Material inconvenience can arise, as the Session will not be admitted to Continue longer than the expiration of the Present Council, I have Concluded to inclose the Commission to you, to Commit the Mistake if their be any, or put those doubts which might arise out of the way—had I having discover’d the supposed defect in the Commission soon I should have sent on in time for your answer ere this—In consequence of there not being a full house last Session, they did not fill the Vacancy in the Nomination occasiond by the death of Mr. Lewis, which I think they ought to have done as it happend previous to within four months of the expiration of the tenor of the old Council, the time fixed by the ordinance for the President to be presented with the names of two persons—Should the President not think proper to select a council from mine & request an additional or New Nomination, I believe it would contribute much to the interest of the Territory, for the house of Representatives have Now a different temper from that which existed when this Nomination was made, and Show a most mischievous character is now out by resignation & another elected—I declare to you Sir, it will be a serious inconvenience & injury to the Territory, and perhaps the general government to have such a Council as must be formed from the present nomination, with a Solitary exception—Hency—Should you Conclude to send on a Council, please take Alexander Montgomery in the place of Joseph Spiers, which is one of the names I sent you. The Council will then be Montgomery, Hency, Hind, Burnet and Bohn—This may appear a little whimsical, but I have recd. some information which authorises it—And its almost impossible to know what to do with such a set—
I have the honor to be with very great Rspt yr Humbl
DLC: Papers of Thomas Jefferson.