Cambridge July 31. 1789
I did not receive your very obliging favour of the 10th. inst: till yesterday, when I returned from the eastern Circuit. I have heard that the Judicial bill has been passed in the Senate without any alterations respecting the general plan of the judicial system. But you seem to think changes may be made in it in the house of Representatives—that the district Judges may be annihilated altogether, and the number of Supreme Judges as well as the number of Circuits doubled. It appears to me indispensably necessary to have district Judges who shall have jurisdiction of all—Admiralty matters, and whatever may in any way concern the Revenue. This I mean as to the beginning of things; and that all causes at Common Law, whether between the Citizens of different states, or foreigners and Citizens, shou’d originate in the Supreme Common Law Courts of the respective States, whereever the Justices thereof are appointed during good behavior, and have fixed permanent salaries annexed to their offices; but that where this is not the case, that all such Causes may be originated in the federal district Court, or if your please shall be so originated, with the right of appeal to the Circuit Court, upon either plan, When judgment shall be given against the foreigner or the Citizen of another State, but no appeal from the judgment of the Supreme Common Law Courts when the judgment shall be in their favour: it appearing reasonable to me that every Citizen ought to sit down quiet under the judgments of their own Supreme Courts. Aprovision of this nature wou’d probably have the happy effect of bringing on a speedy establishment of the Sup: Com: Law Courts upon their only proper ground, in every State where they are now differently constituted. It has been my opinion from the first, that an augmentation of the Judges of the Supreme Federal Court wou’d be found necessary, say to nine; but I do by no means think so as to the number of Circuits. The Circuit Courts are to be holden twice a year in each State which will be sufficient, at least for some years to come. I understand an idea is gaining ground in the House of Representatives, of annihilating the district Judges, and throwing all the Admiralty & Revenue Causes originally into the State Sup: Judicial Courts. This wou’d in my opinion, be exceedingly impolite, as it wou’d not only be difficult to withdraw such Causes from their jurisdiction when it should be found inconvenient to continue them under it, but wou’d also infallibly have a strong tendency to render those Courts, if they shou’d discharge their duty in Revenue Causes, very unpopular, since to lesson that opinion of their impartiality, which <
th> ought ever to be kept up among the people at large, to weaken their authority, and of course the respect for the Laws, and for Government itself; These appear to me but a part of the fatal consequences, which wou’d ensue from such a temporizing system. Tho’ œconomy is held up as the ostensible ground of such a system, yet it seems to be in reality nothing less than an unpardonable thirst for popularity—I have seen a letter from a Representative, in which he says, that when Salaries are under Consideration (alluding to the judicial system) nothing less than 2, or 3000 Dollrs: comports with the ideas of some Gentlemen; because they say no man of Respectability in the Law wou’d accept any office under such a salary. What may be the case of certain Law characters I do not know: but I should think 1500 wou’d not be rejected by any one in this State who shou’d be appointed district judge, and considerably lesser sum might do in the smaller States—
I agree with you touching the characters you have named as Candidates for the Judicial Departments, except the gentleman whose condemnations, you say, have immortalized his name. He is a friend of mine, a good Federal character: but, between us, not fit for such an appointment. He is not a Lawyer.
Whether in the case you mention, <
that by these> the Governor cou’d be persuaded to appoint Mr: L., I am much at a loss. I fear he wou’d rather nominate Sullivan or Hitchbourn, if he thought his Council wou’d advise to their appointment—
I was sincere when I told you that I did not wish for an appointment upon the Supreme Federal Bench. Our Chief Justice or Lowell would be worthy Members of that Court. Yet I doubt whether the former would accept a seat there, on account of their distant employment at certain times. His abilities are equal to that station. Jay wou’d give universal satisfaction, but I have thought he wou’d rather prefer his present office. The Gentn: you mention for the District of Maine is not only the fittest Man, but the only fit one within that District: But our present Sup: Jud: Court must not be entirely changed: for to tell you a truth, I know not where their places can be equally well filled. I shou’d dread the appointment of some persons under the present Administration, as the greatest curse that could fall on this Commonwealth. You know whom I allude to.
I feel myself infinitely obliged to you for the favourable sentiments you have been pleased to express of me. It is my highest ambition to merit in some degree the good opinion of all good men.
We beg you and your Lady’s acceptance of our most sincere regards, and we shall be ever happy in keeping up that friendly connection which has been formed between us.
I am, Dear Sir, with much respect & esteem / your obliged friend & humble Servant
F M Dana
MHi: Adams Papers.