To the United States Senate
September 24th 1789
Gentlemen of the Senate,
I nominate for the Supreme-Court of the United States
|John Jay of New York, Chief-Justice|
|John Rutledge, of South Carolina,|
|James Wilson, of Pennsylvania,||Associate
|William Cushing, of Massachusetts,|
|Robert H. Harrison, of Maryland,|
|John Blair, of Virginia,|
LS, DNA: RG 46, President’s Messages—Executive Nominations; LB, DLC:GW. Except for two first names inserted by Tobias Lear, the body of this document is in the writing of William Jackson.
GW’s letter and its enclosed nominations were delivered to the Senate by Tobias Lear on 24 September. On 26 Sept. the Senate confirmed all of the nominations (DHFC description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends , 2:43–48).
Appointments to the Judiciary were among the most sensitive of GW’s problems in staffing the new government’s civil service. The provisions of the Constitution providing for the federal Judiciary had evoked considerable criticism from the beginning. As Joseph Jones wrote Madison in the fall of 1787, there would have been less “repugnance” to the Constitution in Virginia “had the judiciary been less exceptionable” and warned of the variety of objections “which are and may be raised agt. the Judiciary arrangement and the undefined powers of that department. . . . The legislature may and will probably make proper and wise regulations in the Judiciary. . . . But the reflection that there exists in the constitution a power that may oppress makes the mind uneasy and that oppression may and will result from the appelate power of unsetling facts does to me appear beyond a doubt” (Jones to Madison, 22 Nov. 1787, 29 Oct. 1787, in Rutland, Madison Papers, description begins William T. Hutchinson et al., eds. The Papers of James Madison, Congressional Series. 17 vols. Chicago and Charlottesville, Va., 1962–91. description ends 10:255–57, 227–29).
On 7 April 1789 Congress appointed a committee for the organization of the federal Judiciary, consisting of Oliver Ellsworth, Richard Henry Lee, Caleb Strong, William Maclay, William Paterson, William Few, Richard Bassett, and Paine Wingate, and on 13 April Charles Carroll and Ralph Izard were added, insuring that each state would be represented (DHFC description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends , 1:11, 14). The committee, led by Ellsworth, Paterson, and Strong, labored for the next two months, attempting to reconcile the differences among the committee members. They quietly buried such antifederalist proposals as designating the state courts to act as inferior federal courts. Following a suggestion made by Hamilton in Federalist 81, they tried to quiet the fears of those who maintained the federal court system would cancel that of the states by arranging a system that largely followed the geographical boundaries of the states. Much of the debate centered on the establishment of the federal district courts which were thought by many to offer a direct threat to the state court system. The committee had sought opinions and advice from many of the new nation’s leading lawyers and jurists, and by the time the committee finally brought in a bill on 12 June, most of its provisions were already well known. See Goebel, History of the Supreme Court, description begins Julius Goebel, Jr. Antecedents and Beginnings to 1801. History of the Supreme Court of the United States, vol. 1. New York, 1971. description ends 479, n.59, 490–94. As Edmund Pendleton warned: “This department is the Sore part of the Constitution & requires the lenient touch of Congress. To quiet the fears of the Citizens of being drag’d large distances from home, to defend a suit for a small sum, which they had better pay however unjust, than defend with success, is as worthy of attention, as to provide for the speedy Admon. of Justice to honest Creditors” (Pendleton to Madison, 3 July 1789, in Rutland, Madison Papers, description begins William T. Hutchinson et al., eds. The Papers of James Madison, Congressional Series. 17 vols. Chicago and Charlottesville, Va., 1962–91. description ends 17:537–39). After considerable and often acrimonious debate for much of the summer, the bill finally went to GW for his signature in September. For a detailed account of the bill’s legal implications and its thorny path through both houses, see Goebel, History of the Supreme Court, description begins Julius Goebel, Jr. Antecedents and Beginnings to 1801. History of the Supreme Court of the United States, vol. 1. New York, 1971. description ends 457–508; Warren, “History of the Federal Judiciary Act of 1789.” description begins Charles Warren. “New Light on the History of the Federal Judiciary Act of 1789.” Harvard Law Review 37 (1923–24): 49–132. description ends
The passage of the Judiciary Act did little to quell the controversy. Sen. William Grayson spoke for many opponents when he stated that the act “wears so monstrous an appearance that I think it will be felo-de-se in the execution. . . . Whenever the Federal judiciary comes into operation, I think the pride of the States will take the alarm, which, added to the difficulty of attendance, from the extent of the district in many cases, the ridiculous situation of the venue and a thousand other circumstances, will in the end procure its destruction. The salaries, I think, are rather high for the temper or circumstances of the Union, and furnish another cause of discontent to those who are dissatisfied with the government” (Grayson to Patrick Henry, 29 Sept. 1789, in Tyler, Letters and Times of the Tylers, description begins Lyon G. Tyler. The Letters and Times of the Tylers. 2 vols. Richmond, Va., 1884–85. description ends 1:169–71).
“An Act to establish the Judicial Courts of the United States,” divided the country into thirteen districts, each presided over by a district judge, and holding four annual sessions. The act also provided for the districts to be divided into three circuits, with two courts to be held annually in each circuit, presided over by two justices of the Supreme Court, riding circuit, and one of the district judges. The district courts were given original jurisdiction in “all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas” where the punishment was limited and the fine did not exceed $100, and in maritime and seizure cases. The circuit courts had original jurisdiction in cases where the matter in dispute exceeded $500, and “the United States are plaintiffs, or petitioners; or an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.” Exclusive jurisdiction belonged to the courts in all crimes cognizable under the laws of the United States. The circuit courts were also given appellate jurisdiction in cases from the district courts. The Supreme Court had exclusive jurisdiction in “all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.” Article 27 of the Judiciary Act provided for the appointment of a marshal for each district for a term of four years, removable at pleasure, to attend the circuit and district courts, and carry out all orders directed to him. A United States attorney was to be appointed for each of the districts “whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the supreme court in the district in which that court shall be be holden.” The act further provided for a person “learned in the law” to act as attorney of the United States, who would prosecute all cases brought before the Supreme Court in which the United States was involved, “and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments” (Stat. description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends [24 Sept. 1789] 1:73–93). A supplementary statute, “An Act to regulate Processes in the Courts of the United States,” (Stat. description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends , 1:93–94), was passed on 29 September.
The nominations for the Supreme Court justices and for most of the district court judges and marshals were delivered to the Senate on 24 Sept. by Tobias Lear, and on 25 Sept. Lear brought it the remaining court appointments—those for New York and New Jersey. See GW to the U.S. Senate, 25 Sept. 1789. By 26 Sept. the Senate had confirmed all of the nominations (DHFC description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends , 2:43–50). GW indicated in his diary on 5 Oct. that he “dispatched the Commissions to all the Judges of the Supreme and District Courts; & to the Marshalls and Attorneys and accompanied them with all the Acts respecting the Judiciary Department” (Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 5:452). The commissions for the appointees under the Judiciary Act were similar to Jay’s commission for chief justice: “Know Ye, That reposing special Trust and Confidence in the Wisdom, Uprightness, and Learning of John Jay of New York, Esquire, I have nominated, and by and with the Advice and Consent of the Senate, do appoint him Chief Justice of the Supreme Court of the United States, and do authorize and empower him to execute and fulfil the Duties of that Office according to the Constitution and Laws of the said United States; and to have and to hold the said Office, with all the Powers Privileges, and Emoluments to the same of Right appertaining, unto him the said John Jay during his good Behaviour.
“In Testimony whereof I have caused these Letters to be made Patent, and the Seal of the United States to be hereunto affixed.
“Given under my Hand the twenty sixth Day of September, in the Year of our Lord one thousand seven hundred and Eighty nine. George Washington” (copy, DNA: RG 59, Miscellaneous Letters).
Among the appointments for staffing the civil service of the new government, GW considered those of the Judiciary—“that department which must be considered as the Key-Stone of our political fabric”—the most important (GW to John Jay, 5 Oct. 1789). As he informed the new judicial appointees, he regarded “the Judicial System as the chief-Pillar upon which our national Government must rest, I have thought it my duty to nominate, for the high Offices in that Department, such men as I conceived would give dignity and lustre to our national character” (GW to William Cushing, 30 Sept. 1789). In making his judicial appointments it was necessary for him “to consider the necessity of giving a tone to the system in its’ out-set, by placing the administration of the laws with the best and wisest of our Citizens” (GW to Pendleton, 28 Sept. 1789). Further, “in appointing persons to office, & more especially in the Judicial Department, my views have been much guided to those Characters who have been conspicuous in their Country; not only from an impression of their services, but upon a consideration that they had been tried, & that a readier confidence would be placed in them by the public than in others, perhaps of equal merit, who had never been proved” (GW to William Fitzhugh, 24 Dec. 1789). Support for the Constitution and the new government was clearly a factor in GW’s judicial appointments, as were geographical considerations. Edmund Randolph was his first choice for attorney general and Randolph accepted, though not without considerable vacillation (GW to Madison, 23 Sept. 1789; Randolph to Madison, 19 July 1789 in Rutland, Madison Papers, description begins William T. Hutchinson et al., eds. The Papers of James Madison, Congressional Series. 17 vols. Chicago and Charlottesville, Va., 1962–91. description ends 12:298–300). A number of names were put forward for chief justice, among them John Rutledge of South Carolina, Robert R. Livingston of New York, and Robert Hanson Harrison of Maryland. James Wilson of Pennsylvania applied for the post (see Wilson to GW, 21 April 1789), and Arthur Lee asked to be nominated an associate justice (Lee to GW, 21 May 1789, and GW to Madison, c.8 Sept. 1789). That there was apprehension in some quarters that Alexander Hamilton might be offered the post of chief justice is indicated by a letter from Civis to GW, 1 Sept. 1789, mentioning rumors “that the Chief will not be a native of america.” John Jay may well have had his choice of the State Department or the post of chief justice, for GW wrote Madison on 9 Aug. that he “had some conversation with Mr Jay respecting his views to Office, which I will communicate to you at our first interview.” One observer indeed wrote that the “Keeper of the Tower is waiting to see which Salary is best, that of Lord Chief Justice or Secretary of State” (Samuel A. Otis to John Langdon, September 1789, in Letters to John Langdon, description begins Letters by Washington, Adams, Jefferson, and Others, Written during and after the Revolution, to John Langdon, New Hampshire. Philadelphia, 1880. description ends 92–94). Probably GW’s final choice lay among Jay, Rutledge, and Wilson, but Jay had the geographical advantage of coming from a state not widely represented at the top of the administration hierarchy. GW evidently made extensive inquiries about the candidates for posts in the judicial system. See, for example, Conversation with Samuel Griffin, 9 July 1789, and GW to John Rutledge, 29 Sept. 1789). What he apparently failed to ascertain in advance was whether or not individual appointees would accept the post, although he did ask Samuel Griffin to pursue the matter with candidates in Virginia (see Conversation with Samuel Griffin, 9 July 1789). His earlier experience with federal appointments in the revenue service had not prepared him for the number of declinations that he would receive among his appointees to the Judiciary. After considerable vacillation, Robert Hanson Harrison declined his appointment as associate justice on the Supreme Court (see GW to Harrison, 28 Sept. 1789 and note 1) and there were a number of men who refused to accept appointment to the posts of district judge and marshal for various reasons besides political opposition to the new legal system. Thomas Pinckney refused the post of federal judge for the district of South Carolina on the grounds that he had a “numerous family & that my affairs are so situated as to require my own immediate & unremitted exertions” (Pinckney to GW, 22 Oct. 1789). Harrison declined because of poor health. Thomas Johnson turned down the post of district judge in Maryland, but he accepted an appointment to the Supreme Court in 1791. Edmund Pendleton was not willing to serve as district judge in Virginia. John Marshall refused the appointment of federal attorney for Virginia because he could not reconcile the duties of the office with his practice in the Virginia superior courts (see Marshall to GW, 14 Oct. 1789). Nathaniel Ramsay, in accepting the post of marshal for the district of Maryland, expressed his fears that in Maryland at least, the duties of the district judge and the locations at which he must hold courts would prevent the post being “accepted by any lawyer of abilities and reputation” (Ramsay to GW, 12 Nov. 1789). Even Edmund Randolph had hesitated accepting the attorney generalship until his reservations about the Judiciary might be resolved (Randolph to Madison, 19 July 1789, in Rutland, Madison Papers, description begins William T. Hutchinson et al., eds. The Papers of James Madison, Congressional Series. 17 vols. Chicago and Charlottesville, Va., 1962–91. description ends 12:298–300). The requirement for Supreme Court justices to ride circuit was a principal deterrent to acceptance of a seat on the court. It also was probably GW’s reason for not appointing the elderly Edmund Pendleton, one of Virginia’s leading jurists, to the court in 1789 (GW to Madison, 23 Sept. 1789), and the prospect of riding circuit made Thomas Johnson hesitate about accepting a post on the court in 1791 (GW to Johnson, 28 Sept. 1789 and notes). By the end of 1789 GW became increasingly reluctant to make judicial appointments “until I can have an assurance—or at least a strong presumption, that the person appointed will accept; for it is to me an unpleasant thing, to have Commissions of such high importance returned, and it will in fact, have a tendency to bring the Government into discredit” (GW to James McHenry, 30 Nov. 1789). In the case of the appointments of Marylanders, GW, after two rejections, requested McHenry to inquire of Alexander Contee Hanson whether he would accept the appointment if it were made. Hanson, already ensconced in the post of chancellor under the state government “did not like the office so well as that of Chancellor, as it would oblige him to attend courts in different parts of the State which would lessen the net income, and as it was in his opinion of less dignity. In short he gave a decided preference to his present station” (McHenry to GW, 10 Dec. 1789).
Other candidates viewed the possibility of appointment to the judicial system with considerably more enthusiasm. Joseph Jones, applying for the post of district judge in Virginia, frankly admitted that the attraction of the post was its salary which would enable him to discharge personal obligations (Jones to GW, c.15 Nov. 1789). Some of John Rutledge’s friends had suggested that he might not take a seat on the Supreme Court, but Rutledge accepted with enthusiasm although, as he informed GW, “the future plan of Life which I had formed was that of Ease & Retirement” (GW to Rutledge, 29 Sept. 1789 and note 2). Although criticism of the judicial system continued there appears to have been general satisfaction with the quality of GW’s appointments.