James Madison Papers

To James Madison from Daniel Burnet, 27 August 1808

Mississippi Territory Claiborne County 27th. August 1808


A doubt has arisen in this Territory on the intention of the Disolution of the General Asembly by the Governor. By some it is contended that the seats of the Legislative Council are vacated when he disolves the General Assembly. Others hold a contrary Opinion, And as I have been a member of the Council that was disolved by the Governor the first of March last, I have taken the liberty of Stating to you Sir some reasons why I think the Seats of the Council are not vacated by the Disolution, and pray your Opinion on the Subject.

The words convene, Prorouge and Disolve which are used in the Ordinance are evidently borrowed from the Constitution of the British Parliment. From hence it is contended that as the seats of the Members of the House of Commons become vacant when the King disolves the Parliment So does the Seats of the Council when the Genl. Assembly is disolved by the Governor. But before a conclusion be drawn from a comparison of the two Governments it would be necessary to enquire how far they agree as to the time for which they are Elected, or appointed. In Great Britain the Commons are not Elected for any definitive length of time But to serve in the next Ensuing Parliment, and as soon as that Parliment is concluded, either by the demise of the Reigning Sovereign, By his Act of Disolution or the time having expired, beyond which it could not continue agreeably to the Statute, In either case the Term for which they were Elected is at an end, and their Seats become vacant agreeably to the Common Law or ancient Constitution of that Country. The members of the House of Commons being Elected as they still are to serve in the next Parliment, and in that only they would hold their Seats, during the life of the Reigning Monarch if he did not think proper sooner to disolve the Parliment for which they were Elected.

At Present it is restricted by Statute to Seven years, beyound which time it cannot continue, tho still the members are Elected for the next Parliment as hereto fore.

As to the Council of the Territory it is different. They are appointed for Five years, and not for any Particular Assembly. Consequently there is no analogy between the House of Commons in England and the Council of the Territory, in this respect the one being Elected for a certain Parliment, the other for a particular length of time. But compare this branch of our Legislature with the House of Lords in England, of which it has a strong resemblance in many respects. The Lords are created by the Kings Letters Patant to hold their Seats for life. The Council are appointed by the President to hold their Seats for five years. The King hath the Power to disolve the parliment of which the House of Lords are a branch. Their seats are not thereby vacated, and for this reason which may apply equally strong to our Council, that by the very terms of their creation, their continuance did not depend upon any particular Parliment. Should a distinction be attempted to be drawn between the House of Lords and the Council, on account of the difference of time for which they are originally appointed, I would only observe in answer that a person who holds an office or an Estate for a term of years has as confirmed a title to that office or Estate, for that number of years for which it was granted him, as he who holds a similar office or Estate for life or in Fee, and his Title can be as easily distroyed in the one case as the other.

To consider the question on the ordinance itself without refference to any other form of Government or Laws, What are we to understand from the General import of the word disolve, when applyed to a number of men convened and acting together. Would it not be thought merely to opperate as a seperation of them, or would it also distroy their powers, either natural or acquired, of meeting again for similar purposes. I think not. It would opperate upon them in their collective, not in their individual capasities. The ordinance provides that as soon as Representatives shall be Elected the Governor shall appoint a time and place for them to meet together, and nominate a certain number of Persons, out of which the Council shall be appointed. This provision is intended only for the meeting of the first House of Representatives, before there could be a council in existance for in a subsequent clause it goes on to declare that every Five years Four Months at least before the expiration of the Time of servis, of the members of the Council the House shall nominate ten persons out of which the succeeding Council shall be appointed. So guarded does the Framers of the Ordinance appear to have been, that the Territory should at no time be without a council, after the first was appointed, that they required their successors to be nominated at least four Months before the time of the old Council’s expiration.

If there be no Council in existance I would enquire how the Representatives are to be legally convened to nominate Persons for that Station. The Governor we see has only the Power to appoint the time and place of the meeting of the first House of Representatives for that purpose. It is true the Governor can convene the Genl. Assemble, but it does not follow, in my opinion, that he can convene any particular Branch without the whole.

From this view of the subject it appears to me that it was the opinion of the Framers of the Ordinance that the Council when appointed would continue for five years unless sooner removed by the President, and that the Disolution of the Genl. Assembly Amounts to the same thing, as an adjournment without day which requires the Concurance of each branch and Differs from a prorogation in this, that when Prorouged a day is fixed for the next meeting, whereas after a Disolution, the Members cannot meet untill a day fixed by Law or convened by the Governor. How far this opinion is correct, I do not pretend to be competent to Judge, and my doubt on the question, is my reason for soliciting you Sir for yours.

I believe there is very few instances of Governors Exercising that Power and there is no doubt with me, but that if he has it, It is improperly placed in a Republican form of Government and manifestly dangerous to the Interest of its Citizens.

The Annual meeting of the Legislature will be on the First Monday in November next, Before which time I should be highly gratified to receive your Opinion, and that of the President if Practacable. Sir I have the Honor to be with considerations of respect your Obt. & Hmble Sert.

Danl. Burnet

Printed Source--Clarence Edwin Carter et al., eds. The Territorial Papers of the United States. 27 vols. (Washington, D.C., 1934-69).: Volume V: The Territory of Mississippi, 1798-1817.

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