David Campbell to Thomas Jefferson, February 25, 1792
Thomas Jefferson Papers, Library of Congress
David Campbell writes to Thomas Jefferson, outlining the difficulties in establishing federal authority in the newly organized Southwest Territory. Significantly, Campbell argues for the supremacy of the Constitution over North Carolina state law in the region and asserts that the land and property of Native groups should be left unmolested.
Territory of the united States South of the river Ohio Feby 25th 1792
A question has arose where the Ordinance for the Government of this territory and the Laws of North Carolina, which by the Cession Act are in force here, are contradictory, which is to take place.
I have sent you inclosed my observations on that matter. You will greatly oblige me on that matter if you will let me know by the Bearer whether you consider my opinion well founded. if not state to me your own, which will lay me under obligations.
You will not consider this application as an intrustion, as the object of it is public utility.
I have the honor to be with the purest Sentiments of Esteem & Regard Your Obt Sevt David Campbell
[docketed page] Campbell, David rec'd Mar 25
Gentlemen of the grand Jury Permit me to call your Attention to the organization and first Principles of the Government of this Territory and which perhaps is not fully understood by many of the Citizens of the Country.
As long as we remained under the Authority of North Carolina we were not only subject to its Laws, but those Laws were administerd by officers appointed by that State; But since the organization of the present Territorial Government, the same Laws, as far as they apply to our particular Circumstances, are enforced by Officers appointed mediately or immediately by the President of the Untied States of America by and with the advice of the Senate.
The Ordinance which is adopted for the Govern-
ment of this Territory may be properly stiled our Consti-
tution operating on the Principles of the Statutes of North
Carolina not changing the substance but regulating the
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mode of administering those Laws and describing the manner of appointing the Officers of Government: So that those Laws which are the Rule of our Decisions derive all their force from the Authority of the Federal Government, emanating from the common agreement and original Compact of the State of North Carolina, when she ceded this Country to the United States of which its now an appendage.
Questions have arisen upon the legal mode of appointing some of the subordinate officers in this Territory: It is also a matter of Doubt with Some, when the Ordinance and the Laws of North Carolina are repugnant, which is to take place.
I suppose it will be acknowledged by all, that the Ordinance is in reality our Constitution: no Law then, which is conradictory to it can be of any force or Validity in this Territory.
This Country was ceded to Congress on the express condition that it should be governed in a similar manner to that of the Territory North of the Ohio Maps: Joshua Fry-Peter Jefferson (1751) John Mitchell (1755) Antoine-Simon Le Page du Pratz (1763) Thomas Hutchins (1778) Lewis Evans (1755) : That is governed by an Ordinance framed for the particular purpose, which Ordinance must limit and modify all the Descriptions of Law which apply under it. They can have no being in any other State of Things.
Laws then which are conformable to the Principles of the Ordinance must be the Rule of Conduct for the Citizens of this Territory.
When we are seeking Truth we eagerly wish to find it united to the Sentiments which form our happiness and the principles which are the foundation of Order; But was Order ever known to exist for any length of Time amongst a restless and aspiring People unless their Conduct was regulated and controlled by a Constitution and a well defined System of Laws: This Constitution, I repeat it, we are to look for in the Ordinance which was framed for the Government of the Territory NorthWest of the Ohio; our System of Laws is the Statutes of North Carolina as far as they apply to our particular Circumstances; the mode of administering those Laws must be conformable to the Ordinance.
The Reservations and particular Conditions required by the Act of Cession may be stiled our Bill of Rights and the Ordinance properly our Constitution.
A Governor Secretary and Judges have been appointed for the Territory by the Authority of the United States of America. All other subordinate Officers have been regularly, constitutionally and legally appointed by the Governor of the Territory.
The only Question now remaining is whether Officers
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appointed by a very different Authority, are invested with the Powers that Officers of the same name exercise in North Carolina. I answer they might as well be said to be vested with the same Powers and Authority that officers of the Same name in England exercise, for we have adopted the Common Law and many of the Statutes of that Kingdom. The Judicial Officers in this Territory are only Authorized by their Commissions to exercise the authority of Justices any other Powers they may be invested with must flow from the Constitution which is the Ordinance.
The appointment of Clerks of Courts, Sheriffs, and such other officers does not of right and ex officio belong to the Judiciary Department if they exercise such power it must be delegated to them by the Legislative Authority of the particular Government.
The mode of appointing such officers is not the same throughout the States at this day: In Virginia before the Revolution it was the Rule that a number of Young men wrote in the Secretary's Office till they qualified themselves as Clerks then he who had written longest was appointed Clerk of the first new County, I believe by the Governor.
No officer can be vested with any authority but what
regularly flows from the Source from which they derived their Power.
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In one Section of the Constitution of the United States, it is declared the Congress may by Laws vest the appointment of such Inferior Officers as they think proper, in the President alone in the Courts of law or in the Heads of Department.
By a Clause in the same Constitution it is declared that engagements entered into before the adoption of that Constitution shall be as valid under the same as under the Confederation.
The Ordinance framed under the Confederation authorized the Governor to appoint all Officers civil and military: Congress have recognized the Ordinance in its utmost latitude.
The Governor clearly and indisputably has power to appoint all Officers both civil and military except General Officers in the Military and the Secretary and Judges in the Civil.
By another clause in the Ordinance or Constitution of
this Territory the Governor is authorized ot appoint such majistrates and other civil Officers in each County as he shall
find necessary. The latter part of the same Clause after declar-
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ing that the Powers and Duties of Majistrates and other civil Officers shall be regulated and defined by the General Assembly after it is organized, that there might be no possibility of doubting the Governor's Power repeated again that all Majistrates and other civil Officers not herein otherwise directed shall during the Continuance of this Temporary Government, be appointed by the Governor: From whence it is plain the appointments of Subordinate Officers is not left with the heads of Departments but rests solely with the Governor not only until there is an Assembly but during the Continuance of the temporary Government. I dwell on this Subject because it is of importance to understand the Constitution and first Principles of our Government.
It is certain that the eight Clause in the Act of Cession
declares that the Laws in force and use in the State of North
Caorlina at the time of passing the Act of Cession shall be and
continue in full force within the ceded Territory until the
same shall be repealed or otherwise altered by the Legislative Authority of the Said Territory. now this clause
means two things that Congress is the legislative Authority
alluded to which is not improbable, as we are immediately
under the Jurisdiction of Congress and that only such Laws
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of North Carolina as are applicable to our particular Circumcumstances and not repugnant to the princples of the Ordinance are to be in force and use.
It would be preposterous to say the Laws of North Carolina are to be adopted in toto. If it was so to be understood why were these three Judges appointed, when by the Laws of North Carolina there were only two for this Territory.
It is evident that the Laws of North Carolina were intended only to be partially adopted in the place of those laws that the Governor and Judges were authorized to Select from the Laws of the different States and that those Laws are to be administered by Officers appointed agreeably to the Ordinance: In no other way could it be a Government similar to that NorthWest of the Ohio.
In the NorthWest of the Ohio the Governor and Judges or a majority of them are to adopt and publish in the District such Laws of the Original States as may be necessary and the best suited to the Circumstances of the District: the State of North Carolina, when she ceded this Territory to Congress, anticipated the necessity of such proceedings in the Government South of the Ohio Maps: Joshua Fry-Peter Jefferson (1751) John Mitchell (1755) Antoine-Simon Le Page du Pratz (1763) Thomas Hutchins (1778) Lewis Evans (1755) , mak- ing it one of the Conditions of the Cession that the Laws of North Carolina that were then inforce and use should be adopted; this could never apply to all the laws of North Carolina, but such only as suited our Circumstances as required by the Ordinance.
The fourth Condition in the Cession Act declares
that the Territory so ceded shall be laid out and formed
into a State or States containing a sutiable extent of
Territory, the inhabitants of which shall enjoy all
the Privileges benefits and Advantages set forth
in the Ordinance of the late Congress for the Government of the Western Territory of the United States, that
is to say, whenever the Congress of the United States shall
cause to be officially transmitted to the Executive
authority of this State an authenticated Copy of the
Act to be passed by the Congress of the United States accepting the Cession of Territory made by Virtue of this act
under the express Conditions hereby specifyed, the said
Congress shall at the same time assume the government
of the said ceded Territory which they shall execute in a
manner similar to that which they support in the North
West of the Ohio; shall protect the Inhabitants
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against Enemeies, and shall never bar or deprive them of any privileges which the People in the NorthWest of the Ohio enjoy.
Congress did accept the Cession, promulgate
the acceptance and did assume the Government
which is clearly and irrefutably demonstrated by
their appointing a Governor Secretary and Judges
for this Territory: the moment of the notification
to the Executive of North Carolina of the acceptance
of the Cession by Congress and the promulgation of
the Acceptance that instant was the Government
and Authority of North Carolina over this Territory
dissolved: This opinion is fully supported by the
last Clause of the Act of Cession which enacts that
the Sovereignty and Jurisdiction of the State of North
Carolina in and over the Terriotry aforesaid and
all and every the Inhabitants thereof shall be and
remain the same in all respects, until the Congress
of the United States shall accept the Cession to be made
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by Virtue of this Act. The Conclusion naturally and regularly to be drawn from that Clause is that after the acceptance by Congress and Notification thereof the Government of North Carolina over the ceded Territory stood dissolved.
I hear of no objections offered against the
Governors power in appointing Milita Officers.
The same comprehensive words are used with respect
to his appointing civil Officers. In the military line
the Ordinance declares that the Governor shall
appoint all below the rank of General Officers. In
the Civil department, the very same words are used
to wit, The Governor shall appoint such Majistrates
and other civil Officers in each County or Township
as he shall find necessary for the preservation of
the peace and good order in the same: So that it is
not even optional in the Governor, to appoint the
officers or leave the appointments with the heads
of Departments, for he is bound by the positive
Expression he shall appoint
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By another Clause in the Ordinance it is declared to be the Governors perogative to lay out the parts of the District where the Indian Titles are extinguish- ed into Counties and Townships, and w[h]en there is a legislative Assembly, no bill nor legislative act whatever will be of any force without the Governor's assent nor must any law be repug- nant to the principles and Articles in the Ordinance established and declared.
I think it necessary to declare to you Gentlemen
that it is not because I have a personal Friendship
for Mr. William Blount that I dwell on this
subject; it is the powers with the Governor of
the Territory South of the Ohio Maps:
Joshua Fry-Peter Jefferson (1751)
John Mitchell (1755)
Antoine-Simon Le Page du Pratz (1763)
Thomas Hutchins (1778)
Lewis Evans (1755)
is invested with that
I am delineating and to give Information to the
Citizens at large that they may know what Authority and what laws to obey, you need not be
alarmed at this very extensive Power confered on
the Governor. The Liberties of the Citizens
are completely secured because all transactions
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respect to their Government are subject to the Control of Congress and further to secure our Liberties, it is declared another article of the Ordinance that the Inhabitants of said Territory shall always be entitled to the Benefits of the Writ of Habeas Corpus, of Tryal by Jury and of Judicial proceedings according to the Course of the Common Law.
You may observe Gentlemen from the Presidents speech at the Commencement of the late Congress, how anxious he is for the happiness and prosperity of the Western Frontiers: you may rest assured he never is unmindful of your Interests: the answer of Congress to the Presidents speech manifests that they cooperate with him in his good Intentions toward us.
I conceive also the Exertions of the Governor of
this Territory in procuring you a peace with the
Indians, which bids fair to be lasting, deserves
the grateful acknowledgements of the People. I can
assert to you in the Language of Truth, his conduct
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in his official capacity, is highly approved by the President and reflects honor on all our Citizens. if ever a people lived under a desirable Government it may truly be said to be the people of the Teritory of the United States of America South of the River Ohio Maps: Joshua Fry-Peter Jefferson (1751) John Mitchell (1755) Antoine-Simon Le Page du Pratz (1763) Thomas Hutchins (1778) Lewis Evans (1755) . We indeed sit under our own Vines and under our own fruit Trees and enjoy in the Ampled manner the reward of our Labour: We experience all the advantages of Government without feeling any of its burdens.
The fifth Condition of the Act of Cession is, that
the Inhabitants of the said ceded Territory shall be
liable to pay such sums of Money, as may, from
taking their Census, be their just proportion of the
Debt of the United States and the Arrears of the
Requisition of Congress on their State. The Debt of the
United State is likely to be discharged by the money
arising from Imports and duties on distilled Sprits
and other Revenue Laws; and should it be found necessary to lay a direct Tax whilst you are under
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this Temporary Government it is probable you will pay nothing towards the support of the general Government.
It is declared by the federal Constitution that the Laws of the United States which shall be made in pursuance of the Constitution and all Treaties made or which shall be made under the Authority of the United States shall be the supreme Law of the Land and the Judges in every State shall be bound thereby, any thing in the Constition or Laws of any State ot the Contrary notwithstanding.
Both by the Ordinance and the late Treaty of Holston the Utmost good faith is required to be observed towards the Indians and the President of the United States by his Proclamation of the Eleventh of November on thousand seven hundred and ninety one injoins and requires all Officers of the United States civil and military and all other Citizens and inhabitants thereof to govern themselves according to the said Treaty as they will answer the contrary at their Peril.
The Lands and Property of the Indians are never
to be taken from them wihtout their Consent and in
their property rights and Liberty they are never to be
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invaded or disturbed unless in just and lawful Wars authorized by Congress.
If any person violates injures or transgresses against the lives or properties of the friendly Indians they are equally culpable as if they were to transgress against a Citizen of the United States. In vain will it be to make treaties or even live in Society unless officers of Government will enforce the observance of those Treaties and of the Law in general.
Indeed every Citizen who hath rational Powers would do well diligently to cultivate and improve them by carefully investigating and strictly observing the Laws of his Country.
I request you Gentlemen to circulate this Declaration amongst all the Citizens of this Territory, tell them to beware of transgressing the Laws lest they render themselves obnoxious to its penalties.
You are therefore to make enquiries concerning
such crimes and offences as may have been committed
against the Constitution or Laws of the United States
or of this Territory and are cognizable by this
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Superior Court held for the District of Washington. I have to remind you that it is necessary that twelve of your body agree in the finding of any bill.
I shall conclude after recapitulating to you that only such Laws of North Carolina as are applicable to the particular circumstances of this Territory were adopted and not the local and personal Acts. It cannot be supposed that by the adoption of the Laws of North Carolina it was intended that the Ordinance should be abrogated, they were only intended to supply its deficiencies and so to make a more complete and perfect System of Laws.