James Madison Papers

To James Madison from Christopher Ellery, 21 December 1809

From Christopher Ellery

Providence, R. I. December 21st. 1809.


One of the justices of the supreme court, U. S. has this day, left this town on his way to the seat of government, and, as is understood, with the intention of resigning his place on the bench.1 That such is his intention there is, indeed, no doubt; nor can it be expected that the old gentleman will be diverted from his purpose, so difficult is it to concieve of a motive by which any one could be influenced in deterring him from so wise and necessary a course of proceeding. Upon his resignation, the eye of the President may be directed to the northern district,2 embracing among other states, Rhode Island, in search of a fit character to succeed him. This state, in many respects, comparatively, unimportant, is in others entitled to consideration—for favor, at least, she may hope. Perhaps an opportunity to extend favor, consistently with public good, may offer in the appointment of a successor to Judge Cushing. On this supposition a gentleman of the bar here, qualified eminently, might be introduced to the attention of the President. There is one of this description, Asher Robbins Esquire,3 of Newport; but unauthorised to name him, either by his permission, or by my own pretensions to notice, I do not presume further than merely, and I hope respectfully, to suggest, at an early day, that Rhode Island has a man whose merits would be acknowledged in the most elevated judicial station. With sentiments of the highest respect, I have the honor to be, Sir Your most obedient servant

Christr. Ellery4

RC (DNA: RG 59, LAR, 1809–17, filed under “Robbins”).

1William Cushing, the oldest associate justice on the Supreme Court, died in office on 13 Sept. 1810.

2Cushing’s successor on the Supreme Court would have to come from New England, and Ellery’s letter was an early maneuver in what became a major campaign over the next ten months to influence JM’s choice for the nomination. In this period JM received half a dozen letters supporting Robbins’s nomination and many more on behalf of other candidates, particularly Gideon Granger. JM does not appear to have given very serious consideration to Robbins’s claims, but eventually he was to offer the nomination to four New Englanders before Joseph Story accepted and was confirmed in 1811 (Morgan D. Dowd, “Justice Joseph Story and the Politics of Appointment,” American Journal of Legal History, 9 [1965]: 265–85).

3Asher Robbins (1757–1845) graduated from Yale in 1782 and had been practicing law in Newport, Rhode Island, since 1795. In 1812 JM appointed him U.S. attorney for Rhode Island, and after 1825 he represented his state for fourteen years in the U.S. Senate (Senate Exec. Proceedings description begins Journal of the Executive Proceedings of the Senate of the United States of America (3 vols.; Washington, 1828). description ends , 2:310).

4Christopher Ellery (1768–1840) came from a prominent Rhode Island family, graduated from Yale in 1787, and practiced law in Newport, Rhode Island. Between 1801 and 1805 he served in the U.S. Senate, and in 1804 Jefferson appointed him commissioner of loans at Providence. Ellery was also Robbins’s brother-in-law, a fact he later revealed to JM (ibid., 2:7, 10; Ellery to JM, 30 Sept. 1810).

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