James Madison Papers

To James Madison from Augustus Elias Brevoort Woodward, 8 May 1806

Washington, May 8, 1806.

I have the honor to communicate ⟨to the⟩ Secretary of State the constructions ⟨which⟩ the Governor and the Judges of the ⟨Territor⟩y of Michigan have been compelled ⟨to give⟩ to their powers of legislation, in ⟨the co⟩urse of exercising them.

The operative words of the ordi⟨nance⟩ are the Governor and the judges, or ⟨a maj⟩ority of them, shall adopt and pub⟨lish s⟩uch laws of the original states, ⟨civil⟩ and criminal, as may be necessary, and ⟨best s⟩uited to the circumstances of the ⟨district.⟩

This provision has been deemed to con⟨stitute⟩ a kind of legislative board, composed ⟨of the⟩ Governor and the three judges, any three ⟨of w⟩hom form a quorum, and of which ⟨quoru⟩m the votes of any two deter⟨mine⟩ a question.

It has not been unknown that a ⟨differ⟩ent construction has obtained in other ter⟨ritories⟩; that the words, or a majority of ⟨them,⟩ have been construed to apply to the judges ⟨only⟩; and that without the presence, and ⟨concu⟩rrence of the Governor, no law can ⟨be p⟩assed. In the Territory of Michigan the ⟨cons⟩truction has been unanimous, that, in ⟨this⟩ form of government, the Governor is a component member of the legislativ⟨e board,⟩ and is entitled to be President of it; b⟨ut that⟩ the other members may act with⟨out the⟩ Governor, and that their votes ⟨carry a⟩ question against the concurrence o⟨f the⟩ Governor. On this account the law⟨s are⟩ clothed with the signature of all the ⟨members⟩ of the government, whether unanim⟨ously⟩ passed or not.

Under the term laws, all parts ⟨of laws⟩ have been deemed to be included. Hen⟨ce it has⟩ not been thought necessary to adopt the w⟨hole of⟩ a law from one state. It has been deem⟨ed suffi⟩cient that all the parts of any law ar⟨e sanc⟩tioned by the provisions of some of the ⟨States.⟩

A doubt arose whether the ⟨term⟩ original states permitted the adoption ⟨of⟩ laws from states created subsequent to ⟨the⟩ date of the ordinance.

On this point the constructi⟨on has⟩ been that the term original, as app⟨lied to⟩ the Territory of Michigan, has the same ⟨form⟩ as if used in the act constituting that ter⟨ritory.⟩ The States existing previous to the erect⟨ion of⟩ this Territory have been deemed, with ⟨respect⟩ to it, original States; and the very St⟨ates which,⟩ by their concurrence in this law, or⟨iginated⟩ this Territory. Laws have therefore bee⟨n adop⟩ted from States created subsequent t⟨o the⟩ date of the ordinance, and previo⟨us to⟩ the creation of this Territory; though it ⟨has been⟩ conceived not proper to adopt the law⟨s of⟩ any State which may be created ⟨subse⟩quent to the establishment of ⟨this⟩ Territory.

The discretion vested under the term ⟨nece⟩ssary has been construed to impart the ⟨pow⟩er of omitting any part of a law whatever; ⟨and⟩ with respect to all geographical descriptions, ⟨all⟩ expressions of time, and of number, all ⟨sum⟩s of money, all official and personal ⟨desig⟩nations, and some other points of a ⟨simi⟩lar nature, it has been construed indispensi⟨bly⟩ necessary to change the law adopted, with perfect ⟨lati⟩tude, in order to render it in any respect suited ⟨to⟩ the circumstances of the district. These ⟨ter⟩ms have therefore become a formula, ⟨whi⟩ch may in some measure apologize to the ⟨min⟩d of him, who after so many mutations ⟨is s⟩carcely able to recognize in the child adop⟨ted⟩ the lineaments of the parent which ⟨gav⟩e it birth.

An express statutory power is given to ⟨repe⟩al laws. Hence a repealing law becomes ⟨a la⟩w made, and not a law adopted; and ⟨after⟩ any part of a law has been repealed, ⟨the⟩ repealing law proceeds to render the re⟨mai⟩nder of the law consistent with it⟨self⟩.

So all legislation exercised under ⟨expr⟩ess acts of Congress ceases to be the adoption, ⟨and⟩ becomes the making of laws.

Doubts existed whether there was ⟨au⟩thority to adopt a law which had ⟨bee⟩n passed by a State, and afterwards alte⟨red⟩ or repealed; and how far the repeal of a ⟨law⟩ by a State, after its adoption by the Terri⟨tory,⟩ affected its subsequent validity; but no ⟨case⟩s occurred which rendered it necessary ⟨to d⟩ecide these questions.

In the body of the laws no⟨w passed⟩ three alone did not receive entire ⟨appro⟩bation.

So much of the law establishin⟨g the⟩ courts as vests the appointment o⟨f the⟩ clerk of the court in the judicial, a⟨nd not⟩ in the executive department of ⟨the⟩ government, met with the dissent o⟨f the⟩ governor.

The Governor apprehende⟨d that⟩ the power given by the ordi⟨nance⟩ to appoint and commission Magistr⟨ates⟩⟨ and⟩ civil officers vested this authority i⟨n the⟩ executive.

The Judges considered that pr⟨ovision⟩ as not extending to this subject, ⟨and on⟩ that account, as well as the exceptio⟨n, not herein otherwise provided, resorted ⟨to the⟩ previous regulation which conf⟨ides to⟩ the judicial department the po⟨wer⟩ given under the common law; ⟨most⟩ of the corresponding officers in th⟨e courts⟩ of King’s Bench, and of Common P⟨leas, as⟩ well as of the counties, in Englan⟨d, being⟩ by prescription, filled by the judi⟨cial,⟩ and not by the executive departm⟨ent of⟩ the government.

The associate judge di⟨ssented⟩ to the act empowering aliens to h⟨old⟩ lands in the Territory.

The presiding judge dissent⟨ed to so⟩ much of the act relative to taxes ⟨as impo⟩ses poll taxes, or taxes on particu⟨lar pr⟩ofessions of life.

All the other laws have ⟨bee⟩n passed unanimously. I have the honor to be Sir, With the greatest respect, Your obedient servant,

A. B. Woodward.

DNA: RG 59—Territorial Papers—TP, Michigan.

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