James Madison Papers

To James Madison from Caesar Rodney, January 1807

January, 1807

Dear Sir,

I have read & considered the enclosed letter agreeably to your request & beg leave in answer to the enquiries therein made to submit the following remarks.

By the second section of the act creating the Michigan Territory, 7 Vol. page 241, a government is established in all respects similar to that provided by the Ordinance of Congress of the 13th. July 1787, & by the act to provide for the Government of the Territory North West of the Ohio.

The Ordinance speaking of the Secretary says, "It shall be his duty to keep & preserve the acts & laws passed by the legislature & the public records of the District & the proceedings of the Governor in his Executive department, & to transmit authentic copies of such acts & proceedings every six months to the Secretary of Congress".

In many of the States the laws are returned to the Secretary of the Governor, or of the State, & are generally published under his care. The journals of the legislature are however kept in their own possession & published by their clerk in obedience to their rules. This practice may have produced the provision on the same Subject, in the Ordinance of 1787, which I cannot consider as requiring the journals of the legislature to be delivered into the possession of the Secretary. Because this construction must produce infinite inconvenience to the legislative body, who must whilst in session perpetually want to recur to them. The expressions "acts & laws" do not include the journals, but have a limited & well understood sense & meaning, & the legal maxim that expressio unius est exclusio ulterius well applies.

The subsequent terms "public records of the District" I am inclined to think include those of a general nature, which concern equally the whole District & not any particular subdivision, county or township; & to which therefore, it was supposed access would be had more readily at the seat of Government. If however this clause were to be considered more extensive, the legislature have the right to controul the official duties of the Secretary by law This is given by the third section of the act of 1792. 2 Vol. page 126, which was previous the subsequent divisions of the territory North West of the Ohio into those of Indiana & Michigan. Laws in pari materia, or the same subject matter, are to be taken together & construed from a gener⟨al⟩ view of the whole as one law, & I am of opinion, this ⟨sec⟩tion is in force in the Michigan Territory; & of course the legislature of that Territory, have a right by law to appoint other depositaries for deeds & wills than the Secretary of the territory. Yours respectfully & sincerely,

C. A. Rodney

DNA: RG 60—General Records of the Department of Justice.

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