James Madison Papers

To James Madison from John Breckinridge, 18 March 1806

Washington 18 March 1806


I had the honor of receiving your letter covering one from Judge Woodward, on which you desire my opinion on the several points therein stated.


By the 2nd. section of the act constituting the territory of Michigan, it is declared "That there shall be established in the said Territory a Goverment in all respects similar to that provided by the Ordinance of Congress passed on the 13th. day of July 1787 for the goverment &c," and by an act passed on the 7th. day of August 1789 intitled "an Act &c." By this section alone, the above mentioned ordinance, and act of Congress, would form the exclusive code, on which the Goverment of the Territory of Michigan would rest, & consequently the provisions of the act of the 8th. of May 1792 would not apply. But the 3. §. of this act extends the powers of the Govrment of Michigan & declares, "that the Officers of the said territory, shall respectively exercise the same powers, perform the same duties, and receive for their services the same compensations, as by the ordinance aforesaid, and the laws of the U. States have been provided & established for similar officers in the Indiana territory." This section being transcribed from the 3 §. of the act constituting the Indiana territory (5 vol. 140), and that section investing the officers of Indiana with all the powers possessed by the officers of the territory North west of the River Ohio, consequently so much of the act of the 8. May 1792 as prescribes duties or confers powers on the Officers of the territory north west of the River Ohio, is in force in the territory of Michigan. But these powers & duties have express reference to the officers of the Territory. The only enquiry then is, what are the duties enjoined on, & powers confided to, the officers of the Territory north west of the River Ohio, by the act of the 8. May 1792? The 1. & 5. sections of this act, neither enjoin duties on, nor confide powers to, an officer, even of the territory north west of the river Ohio. The duties enjoined by them are principally on the secretary of State, and their provisions cannot I conceive be extended by implication or intendment to any other territories than those expressed. Some provision of a similar kind is certainly necessary for Michigan; and would no doubt have been made, had it occurred to Congress at the passage of the act: But the words of the 2. & 3. sections of the act constituting the territory of Michigan appear to me to be so clear & explicit, as not to admit a construction which would embrace these two sections of the act of 1792.

But the 2. 3. & 4. sections do extend to the territory of Michigan; because they prescribe duties & confer powers on the officers of a territory; which powers & duties are expressly recognized by the 3. § of the act establishing the territory of Michigan. There can be no doubt but that the term "officer" includes the Governor, Judges & Secretary. Judge Woodwards letter is returned & I have the honor to be very respectfully your Obt. Sert.

John Breckinridge

DNA: RG 94--Letters Received by the Office of the Adjutant General.

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