New Jersey Burlington June 7th. 1815.
I addressed a hasty line to You Yesterday, on the subject of the vacancy which has occurred in the District federal Court of this State. On reflection, it seems to me proper, that I should make a more particular communication in regard to the Candidates, and the pretentions of Joseph McIlvaine, the District Attorney. I am less scrupulous on this point, as in relation to such offices, as apart from all personal predilections, I know I perform a useful duty, in communicating information on the subject. It certainly cannot be questioned, that in regard to high judicial Offices, in particular; representations from Delegates in Congress or others, not conversant with legal qualifications, and only governed by feelings, Simply arising out of political and personal connections, afford no adequate or satisfactory information.
Mr. McIlvaine was educated in the law under my own care and served through a regular apprenticeship. For twenty Years, he has been employed in the most extensive practical pursuits of the law, and without contradiction, I can say, that no man in New-Jersey. sustains a more respectable and unspotted reputation, private and professional. His habits are most temperate and industrious, commanding confidence and ensuring fidelity and ability in whatever he engages. His family, situation in life and circle of acquaintance, are such, as correspond with his own personal merits. For eleven years past he has filled the office of District Attorney, in the federal Court of New-Jersey, in a manner, that has done equal credit to the government and himself. If any proof of this were required, the Bar and the Bench without exception, would afford it. I add to this, that if a most zealous and honorable support of the measures of the two last administrations, ought to give weight to his pretentions, there is no competitor on this ground, who has more substantial claims. I know it is a fact, that he has used his great influence and unwearied efforts, in the most honourable and effectual manner to maintain the policy that has been adopted throughout, personally and officially.
I have thus, without exageration, stated his pretentions. In point of age and health, he is in the vigour of life, uniting the knowledge of theory, with a long course of successful practice.
I am informed, he will have opponents, in two of the Judges of the Supreme Court of New-Jersey, and in the present governor of the State. On this subject, (certainly a delicate one) my duty requires of me, apart from what I wish, in regard to Mr McIlvaine, to lay before You facts, for Your consideration.
The Chief Justice Kirkpatrick, is advanced in years, upwards I presume, of Sixty. He is respectable in his character and a professional man, but of indolent habits. He is in that place now, where he can be most useful, and is in short, honorably and sufficiently provided for. His time of life and useful qualifications, will not admit, in my humble opinion, of a competition with the gentleman, I have spoken of: and certainly, if in equal circumstances the government would prefer its friends, Mr. Kirkpatrick must be postponed, for he has been uniformly and vehemently opposed to it, in all its late measures.
The other gentlemen are politically on the side of the administration; but assuredly their friends will hardly recommend them to the government for a judicial situation.
Judge Russell was raised to the Bench, merely from circumstances of local politicks. He was bred a mechanick, without a liberal education, and never was in a Lawyers Office, never was admitted to the Bar and has no other acquaintance even with legal terms, but what he obtains sitting in Courts. I am sure I need not add to this subject, as nothing I presume could be more at variance, with every dictate of propriety and dignity, than to place such men, in a court administering the laws of Nations and of the United States. He is far advanced in life and provided for.
Mr. Pennington is a man, who without much education, was bred a mechanick, and lived I believe untill near fifty in various occupations, chiefly a shopkeeper. About this time, he occasionally read in a Lawyers office, whilst pursuing his private business, and soon after, on the revolution of Politicks, proceeded from one office to another, to the One he now holds: and although he has sat on the Bench of the Supreme Court, he never was admitted to the degree of Counsellor at Law in the Supreme Court of the State. I could not wish to be more particular. There are other objections, which ought to be known to the President, whose own character and dignity stand united with his appointments. I forbear however, from the mention of them, as being perhaps, not absolute impediments, to the just exercise of judicial functions. I cannot however, but persuade myself that the Official Law Officer, of the government, such as I have stated him to be, will present to the President of the United States, claims decidedly superior to those, which mere political character afford, and even this last recommendation if it is one, is to say no more, as strong on the part of Mr. McIlvaine. This course too is not only the usual one, but relieves the Executive from the unpleasant task of selection, by putting his appoinment on that ground. I think it has always been considered, as something of course, if no objection presents, to advance the Law officer of the United States. In Rhode-Island and Connecticut and in other States, examples may be found.
I feel the embarrassment of making these representations:-it is painful to me, but I did not perceive how to avoid it, in justice to Mr. McIlvaine, the Government and Yourself. Without the least reference to Mr. McIlvaine, I should feel unhappy had you remained ignorant of circumstances, necessary to enable you to fill an office of so much importance.
I have thus plainly and truly Stated, my opinion and wishes. I am sure You will do me the justice to believe, that I am incapable of pressing a suit, the success of which, would not do credit to the administration, and reward a worthy and qualified man. The other Gentlemen it should be considered are provided for at present. I presume the President of the United States, can want no proof of the Sincerity and impartiality, with which I have always supported the honour and character, of the American Nation, and will (I repeat the persuasion) do me the justice to believe, that I would not forfeit the claim, which my services and sacrifices, give me to publick confidence, by an unjust recommendation of a Candidate for a most important Office. Had I asked this place for myself, it might not perhaps have been viewed as presumption. A life devoted, as mine has been to my Country, and to the Men, whose policy accords with its best honour, might lay a just claim to an honorable repose from so many Labours. But I feel conscious, that the only proper ground to act on, is qualification, publick good and the credit of the administration. These motives govern me in this communication. My wish is, that the Office should be filled by some gentleman of the endowments and Age I have mentioned. My time of life, is of itself, a sufficient reason, why I ought not and would not ask it: Yet, if my standing with the government can give me any consideration to its favour, I shall esteem its attention to Mr McIlvaine as bestowed on myself. It is impossible, for me to add, to the respect & esteem, with which, I have the honor to be, Most truly & Sincerely, Your devoted Humble Servt.
DLC: Papers of James Madison.