George Washington Papers

To George Washington from James Iredell, 23 February 1792

From James Iredell

Philadelphia February 23d 1792.


In consequence of the letter you did the Judges of the Supreme Court the honour to write to them on the 3d April 1790, I presume it is not only proper for a single Judge, but his express duty when he deems it of importance to the public service, to state any particular circumstances that occur to him in the course of his personal experience which occasion unexpected difficulties or inconveniences in the execution of a system so new and in many respects unaided by any former examples. I therefore, Sir, take the liberty to state some circumstances of great moment that occurred in the last Southern Circuit, which was attended by no other Judge of the Supreme Court but myself.

A decision extremely interesting to many Suits in the Circuit Courts, took place in the Supreme Court in the Term in August last. It was, that a Writ of Error to remove any Proceeding out of a Circuit Court to the Supreme Court must be taken out of the Clerk’s office of the latter.1 By the Act of Congress that alone concerns that subject a Writ of Error can only operate as a Supersedeas, and stay execution in cases where a Copy of it is lodged for the adverse Party in the Clerk’s office where the record remains within ten days after the Judgment complained of is given.2 The above decision therefore made it appear, that after a Judgment was given against a Defendant in a Circuit Court, if the Circuit Court was at such a distance from the Clerk’s office of the Supreme Court that it was impracticable to obtain a Writ of Error from that office, and serve a copy as directed by the Act within the time limited, which was so short that it could avail in very few instances; the Defendant, if desirous to prosecute a Writ of Error, might, without any fault of his own, be subjected to an immediate execution, though he still might prosecute such a Writ, and Judgment be eventually given in his favour. This consequence the Judges of the Supreme Court were aware of when they gave the above decision, and they were persuaded that if the mischief had been foreseen as resulting from the law in question, it would never have existed. But they conceived the principles upon which they were bound to determine rendered such a decision unavoidable, and they were unanimous in the determination that was given. The mischief however was so palpable, that there was no doubt but that the Legislature upon its being made known to them would provide an early remedy: In the mean time it became a subject of very great concern to Parties in Causes then ready for trial in the Circuit Courts. The Courts upon the Southern Circuit, which I had the honour to attend, and where the evil might have existed in every case that was tried on which a Writ of Error could be brought, felt it accordingly, and the Court in each District stated the circumstances to the Bar, hoping that some measure would be adopted by consent to prevent any Defendant from suffering by such an unforeseen consequence of a law under which it was intended both Parties might have complete relief. But though the Bar seemed generally to acquiesce in the propriety of a continuance of such causes where a Writ of Error might really be desired if Judgment went against a Defendant, yet some Gentlemen wished to make distinctions which others would not agree to, and the interposition of the Court, if such interposition was proper, became unavoidable. The Court, upon reflexion, although they were fully sensible that in general it was their duty to administer the law as it was, regardless of its policy or consequences, thought that this was so extraordinary a case, the unequal condition of the Parties was so glaring, the intention of the Legislature if it could have been expressed must have been so utterly contrary to any design of making an injurious discrimination between Citizens of the same Government is a point where no locality as to right could at all come in competition with the equal principles of impartial Justice, that as they did not entertain the smallest doubt but that the Legislature would provide an early remedy for the evil, so it was their duty, by the exercise in this instance of a discretionary power as to the time of trying causes, which they conceived to be vested in them for the purposes of public justice, to prevent any immediate injury by ordering a continuance of all such causes on which the evil I have stated could arise, unless they were brought on by consent. And the Courts accordingly did so in each of the three Southern Districts, in the fullest confidence that a remedy would be provided during the present session; after which undoubtedly no such reason for a continuance could have any effect.

Another circumstance of great importance, though perhaps not admitting of so easy a remedy, arose in the Circuit Court of Georgia. There were depending there some suits for the recovery of Debts, to which Pleas were put in by the Defendants, not denying the existence of the debts, but shewing (as they conceived) a right in the State of Georgia to recover them under certain acts of Assembly of that State passed previous to the Treaty of Peace.3 The Attorney and Solicitor General of the State were directed to interfere in the defence, but the Counsel for the Defendants refused to permit them. The Attorney and Solicitor being dissatisfied with the Pleas, applied to the Court for leave to interplead on behalf of the State. The propriety of this application, if the law had admitted of its being granted, and it could have been done with proper effect, the Court were very sensible of, because it was evident on the face of the Pleadings, from the statement of the Defendants themselves, that the State was materially interested in the most effectual defence being made that the nature of the cases would admit of; and nothing was more desirable than that in all cases, but particularly in cases of such high importance, all Parties concerned, so far as it was practicable, should have their pretensions fully examined. However, we could find no instance where an Interpleader in a Court of Law was directed, but on an application of a Defendant, much less against his consent; and therefore were under the necessity of rejecting the motion. It was also questionable, if that difficulty had not intervened, whether inasmuch as by such a Proceeding a State would become a Party, though collaterally to the principal action, it was not a case which ought to be tried in the Supreme Court. It did indeed occur, that the State perhaps had a remedy by a Bill of Interpleader in Equity—But no such Bill had been brought, nor in all probability, if such a Bill was proper, could it be brought in the Circuit Court, the reasons against this method of proceeding being competent in any but the Supreme Court operating, I apprehend, more strongly than in the other case suggested above—I have been thus particular in stating this interesting subject, because it appears to me of the highest moment, although I believe it would be difficult to devise an unexceptionable remedy. But the discussion of questions wherein are involved the most sacred and awful principles of public justice, under a system without precedent in the history of Mankind, necessarily must occasion many embarrassments which can be much more readily suggested than removed.

I should have taken the liberty to make this representation sooner, but that I thought it probable before this time a Bill which has been long in contemplation by the House of Representatives for amending the Judicial System would have been brought in, in which a provision might have been made for the peculiar cases I have mentioned, but as other important business has hitherto delayed this, and the time of the Circuits is approaching, it appeared to me that I could not justify any further delay in communicating the important information which is the subject of the present letter.4 I have the honour to be, with the greatest Respect, Sir, Your most obedient and most faithful Servant

Ja. Iredell.

ALS, DNA: RG 59, Miscellaneous Letters; ADfS, NcD: James Iredell, Sr. and Jr. Papers.

1For this case, West v. Barnes, see Marcus and Perry, Documentary History of the Supreme Court, description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends 1:193, 195, 477.

2See sec. 23 of the Judiciary Act of 1789 (1 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 85).

3James Iredell is referring to Brailsford v. Spailding and other debt cases (see Marcus and Perry, Documentary History of the Supreme Court, description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends 2:239–43).

4On 24 Feb. 1792 Tobias Lear forwarded Iredell’s letter to Edmund Randolph, writing: “The President wishes the Attorney General to inform him if he has heard whether or not Congress propose to take any measures this session which may remove these inconveniences” (DNA: RG 59, Miscellaneous Letters).

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