George Washington Papers

To George Washington from Thomas Jefferson, 14 December 1790

From Thomas Jefferson

Dec. 14. 1790.

The Secretary of state having had under his consideration the journal of the proceedings of the Executive in the Northwestern territory, thinks it his duty to extract therefrom, for the notice of the President of the U.S. the articles of Apr. 25. June 6. 28. & 29. some of which are hereto annexed.1

Concieving that the regulations, purported in these articles, are beyond the competence of the Executive of the said government, that they amount in fact to laws, & as such could only flow from it’s regular legislature. that it is the duty of the General government ⟨to⟩ guard it’s subordinate members from the encroachment of each other even where they are made through error or inadvertence, and to cover it’s citizens from the exercise of powers not authorized by the laws, the Secretary of state is of opinion that the said articles be laid before the Attorney General for consideration and, if he finds them to be against law, that his opinion be communicated to the Governor of the Northwestern territory for his future conduct.2

Th: Jefferson

ADS (letterpress copy), DLC: Thomas Jefferson Papers; LB, DNA: RG 59, Reports of the Secretary of State to the President and Congress; LB, DLC:GW.

1Jefferson enclosed four extracts from the executive proceedings of the Northwest Territory containing regulations promulgated by executive order and proclamation that he believed exceeded the authority vested in the territorial governor. The first regulation to which Jefferson objected, proclaimed by executive authority on 25 April 1790, forbade the inhabitants of Cahokia from entertaining “any Strangers, White, Indian or Negroe,” without informing the commanding officer of the post and ordered strangers to report to the commander on pain of imprisonment. This regulation was extended to Vincennes by a proclamation of 28 June 1790. Jefferson also objected to a proclamation of 6 June 1790 forbidding the selling of liquor to the Indians, as well as a provision in the militia orders of 29 June 1790 specifying “that no Person enrolled in the Militia shall leave the Village or Stations for a longer Absence than twenty four Hours without informing [Major Hamtramck] . . . of their Intentions” (the full texts of these regulations are in Carter, Territorial Papers, description begins Clarence Edwin Carter et al., eds. The Territorial Papers of the United States. 27 vols. Washington, D.C., 1934–69. description ends 3:301, 308, 314–15, and Jefferson Papers, description begins Julian P. Boyd et al., eds. The Papers of Thomas Jefferson. 40 vols. to date. Princeton, N.J., 1950—. description ends 18:188–90).

Jefferson’s charge that St. Clair and his deputy, Winthrop Sargent, had exceeded the executive authority vested in them by Congress constitutes the first substantive challenge to territorial administration since the establishment of the Northwest Territory. The charge was apparently prompted by a desire to uphold the principle of local autonomy in the territories and prevent the development of a system of arbitrary executive rule in the West. GW was already aware of the potential for problems in this area, having received a letter from St. Clair, dated 1 May 1790, in which the governor conceded that he had exceeded his authority in some cases, but only when “necessity of the Case” seemed to require such action.

2GW apparently directed Tobias Lear to refer this matter to Attorney General Randolph, who asked Lear to obtain further information from the files of the secretary of state. On 21 Dec. 1790 Lear wrote a note “to inform the Atty Genl of the U.S. in reply to his note of this morng that upon application to the Office of the Secy of State for a referrence to the Papers of the Western Territory to enable T. L. to Answer the Quæries of the Atty Genl he was informed that the Secy of State had taken the necessary measures to satisfy the atty Genl upon those points” (Lear to Randolph, 21 Dec. 1790, DNA: RG 59, Miscellaneous Letters). A week later Lear transmitted GW’s request for a formal opinion from the attorney general (Lear to Randolph, 28 Dec. 1790, DNA: RG 59, Miscellaneous Letters). No written opinion by Randolph on this matter has been found. GW did not transmit any such opinion to St. Clair as Jefferson recommended. Instead, GW communicated his concerns about the conduct of territorial administration to St. Clair in what he carefully described as a private letter (see GW to St. Clair, 2 Jan. 1791).

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