From Harry Innes
Kentucky Feby. 10th. 1801
It is with extreme reluctance that I request one moment of your attention to the reading of this letter, yet the information this moment received from a friend in Lexington, relative to the probable change in the Judiciary of the U. States, which would create an additional Judge in this State & if so, that Wm. McClung would certainly be nominated to that office, compels me to write.
From a long acquaintance with Mr. McClung & a decided opportunity of becoming well acquainted with his abilities as a Lawyer I do not hesitate to declare that he is not qualified to fill that office & that there are 20 or more Attornies in Kentucky capable of filling the office with more propriety in every respect. Add to this, he is a mere creature to party & faction—as a Lawyer he was void of candour & was not able to make his way good either in the late Supreme Court for Kentucky whilst a part of Virginia, nor since in the Qr. Session Courts of this State. In case of a change, whither he took precedence of me or not I could have no confidence in him.
My situation would be extremely painful in another point of view—H. Marshall & myself are not on speaking terms—that family have imbibed all his dislikes & are my avowed enemies & have been for several years spies on my conduct, & altho’ there never has been any thing personal between Mr. McClung & myself yet I fear if he meets with the appointment he will be governed by the family influence as he is married to a Sister of Genl. Marshall’s & of Mrs. H.M.
My decissions on questions respecting the Excise have not been favorable to the views of the Government—as to their propriety, the candid are to determine; however, conscious of my rectitude I have furnished the Supervisor with copies of my opinions—yet no reversal has been attempted & the late Secy. of that department has considered me as hostile to the views of that party—from some circumstances I have reason to suspect the candour of the Secy. of State.
Was I asked to recommend upon the occasion Buckner Thruston one of the State Dist. Judges & son of Colo. Thruston of Frederick would meet my preference.
Pardon me for this intrusion, my wish to see the public good promoted is my appology—. Wishing you every happiness I am with sentiments of respect & esteem Dr Sir your friend & servt.
The appointment of H.M. would not be more unpopular
RC (DLC); at foot of text: “Thomas Jefferson Esqr.”; endorsed by TJ as received 6 Mch. and so recorded in SJL.
The Judiciary Act of 13 Feb. 1801 grouped the judicial district of Kentucky with the districts of East Tennessee, West Tennessee, and Ohio to form a sixth circuit. On 24 Feb. the Senate approved John Adams’s nomination, made the day before, of William Mcclung to be the circuit judge. McClung, a native of Rockbridge County, Virginia, lost that position in 1802 following the repeal of the Judiciary Act (JEP description begins Journal of the Executive Proceedings of the Senate of the United States … to the Termination of the Nineteenth Congress, Washington, D.C., 1828, 3 vols. description ends , 1:383, 385; U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , 2:89–91; Biographical Directory of the Federal Judiciary, 1789–2000 [Lanham, Md., 2001], 648).
Sister of Genl. Marshall’s & of Mrs. H.M.: Humphrey Marshall’s wife was his first cousin, Anna Maria (Mary) Marshall. She was John Marshall’s sister, and McClung had married their sibling, Susan Tarleton Marshall, in 1793. Beginning in 1791 Thomas Marshall, the father of John, Anna Maria, and Susan, had been U.S. revenue inspector for Kentucky, responsible for collection of the liquor excise, and from late 1794 to mid-1797 he was also a supervisor of the revenue. McClung had been named U.S. attorney for the Kentucky district in 1794, but that position, tied to enforcement of the whiskey tax, was so unpopular that McClung, like some other attorneys at the time, declined the commission. Late secy. of the department: Alexander Hamilton. Secy. of state: John Marshall, who by the time Innes wrote the letter above was chief justice (Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends , 1:132n, 3:45n; Syrett, Hamilton description begins Harold C. Syrett and others, eds., The Papers of Alexander Hamilton, New York, 1961–87, 27 vols. description ends , 9:35, 17:418, 461; Mary K. Bonsteel Tachau, Federal Courts in the Early Republic: Kentucky, 1789–1816 [Princeton, 1978], 35–6, 69–72, 98–107; JEP description begins Journal of the Executive Proceedings of the Senate of the United States … to the Termination of the Nineteenth Congress, Washington, D.C., 1828, 3 vols. description ends , 1:160; DAB description begins Allen Johnson and Dumas Malone, eds., Dictionary of American Biography, New York, 1928–36, 20 vols. description ends ).