Article 4, Section 3, Clause 2
Levi Lincoln, Governor of the Northwest Territory2 Feb. 18021 Ops. Atty. Gen. 102
Sir: After the utmost attention which I have been able to pay to the questions respecting the Northwestern Territory, which you did me the honor of submitting to my consideration, there is a difficulty in giving a decisive answer. I can find no grounds or principles for a very confident decision in, or out of, the ordinance for the establishment of that government. Nothing can be collected to aid the inquiry from the acts by which similar governments in other territories have been established, or from the journals of the proceedings of the Assembly and the governor of this Territory, although some of these very questions have been the subjects of zealous debate.
The Territory is as yet considered to be under what is called its temporary government, by the ordinance. That expressly provides that all magistrates and other civil officers shall, during the continuance of the temporary government, be appointed by the governor, unless otherwise therein directed. It also ordained that there should be a court appointed, to consist of three judges, who shall have a common-law jurisdiction, and reside in the district; and expressly that Congress should appoint the governor, the secretary, and all military general officers. In the twelfth paragraph of the ordinance, it is said the governor, judges, legislative council, secretary, and such other officers as Congress shall appoint in the district, shall take an oath, &c. In this direction for taking the oath of office, there is a strong implication of the right of Congress, or rather of the President, to appoint these three judges; and I am informed this has been the practice. Independent of this practice, upon the mere construction of the ordinance, I should have hesitated in deciding against the right of the governor to have made even these appointments. The authority of making appointments is expressly given to the governor in all cases in which it is not otherwise directed, and express positive provisions are not usually abridged by implications. As this implication does not necessarily extend beyond the three judges before named, I am inclined to think the governor is justified by the ordinance in his appointment of all other judges and officers.
It is provided by the seventh paragraph of the ordinance, that the governor, previous to the organization of the General Assembly, shall appoint such magistrates, and other civil officers, in each county and township, as he shall find necessary for the preservation of the peace and good order in the same; and that, after the General Assembly shall be organized, the powers and duties of magistrates, and other civil officers, shall be regulated and defined by the Assembly. After the formation of the General Assembly, they are to determine what powers and duties are necessary to be exercised in existing counties and townships, and to define and regulate the same, for the preservation of peace and good order: this seems to involve the necessity of their determining what description of magistrates and officers should possess these powers and discharge those duties. They having done this, the governor is to make the appointments. The provision in this paragraph appears to me to amount to this: that, before the General Assembly was organized, the governor was to appoint such officers as he might judge to be necessary; afterwards, such as the legislature should judge to be necessary.
The eighth paragraph of the ordinance provides, that, for the prevention of crimes, the laws to be adopted or made shall have force in all parts of the district; and, for the execution of processes, civil and criminal, that the governor should make proper divisions, and from time to time, as circumstances should require, lay out such parts of the district, in which the Indian title shall have been extinguished, into counties and townships; subject, however, to such alterations as may thereafter be made by the legislature. The authority which the ordinance gives to the legislature is, in general terms, to make laws in all cases for the good government of the district, not repugnant to the principles and articles of the ordinance.
The laying out of counties and towns are usually considered as legislative acts, and, in the present instances, must be considered as appertaining to the legislature, unless, by a proper construction of the ordinance, it is secured to the governor. It being once confessedly vested in him, and, by general terms, implying no limitation in point of time, the authority must be considered as still remaining in him, unless it is taken away expressly, or by some unforeseen change of the subject-matter upon which, or of the circumstances under which, the power is exercised. The civil and criminal processes, the execution of which was to be the means of preventing crimes and injuries, and which was to be effected by a division of the described parts of the district into counties and townships, are recognised by the ninth paragraph of the ordinance to be such as should originate under made as well as under adopted laws; and if so, it implies a power in the governor to lay out counties and towns, after the General Assembly were sufficiently organized for the making of laws. This construction of the eighth paragraph is in some degree confirmed by the express limitations of the governor's power contained in the fifth and seventh, as there was the same reason for being explicit in the first as in the two last, if the same thing was intended. It to my mind appears to be further confirmed by an express power being given to the legislature to alter such townships and counties as shall have been laid out. On the idea of the authority to lay out counties being vested in the governor, after the formation of a legislature, this was necessary; otherwise, not.
The ordinance provides, that, in case of the death or removal from office of a representative, the governor shall issue a writ to the county or township for which he was a member, to elect another in his stead. I perceive no question on the governor's transactions respecting the election of representatives, as returned by the secretary, excepting in reference to Meigs, who is said to have left the Territory. If he had not resigned previous to the issuing of the writ for the election of a representative in his stead, I conceive the writ must be considered as issuing illegally. Knowing that some very respectble gentlemen are decidedly of the opinion that the governor has no right to lay out counties under the ordinance, I have slept many nights on my first impression on the subject; and am still inclined to the opinion I have above expressed, notwithstanding anything I have been able to learn respecting the matter.
The Founders' Constitution
Volume 4, Article 4, Section 3, Clause 2, Document 2
The University of Chicago Press
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