To the United States Senate
United States [Philadelphia],
February 28th 1793.
Gentlemen of the Senate,
I was led, by a consideration of the qualifications of William Paterson, of New Jersey, to nominate him an Associate Justice of the Supreme Court of the United States. It has since occurred that he was a Member of the Senate when the law creating that Office was passed, and that the time for which he was elected is not yet expired. I think it my duty therefore to declare, that I deem the nomination to have been null by the Constitution.1
LS, DNA: RG 46, Second Congress, 1791–1793, Senate Records of Executive Proceedings, President’s Messages—Executive Nominations; Df (letterpress copy), in Thomas Jefferson’s writing, DLC: Jefferson Papers; LB, DLC:GW.
1. The current federal court system was created by “An Act to establish the Judicial Courts of the United States” that GW had approved on 24 Sept. 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 73–93). Although Paterson had resigned from the Senate on 13 Nov. 1790 to become governor of New Jersey, his original term of service did not end until 3 Mar. 1793. For the constitutional problem posed by this fact, see Article I, section 6 of the Constitution. On the morning of 28 Feb., Tobias Lear had written to Jefferson: “The President requests the Secretary of State to call upon him this morning as he goes to the War-Office so as to give him about 10 or 15 min[u]t[e]s conversation.” Jefferson wrote at the bottom of this document that “this was to consult about the premature nomin[atio]n of Judge Patterson” of 27 Feb. (DLC: Jefferson Papers). At the bottom of the letterpress draft, there is a letterpress copy of a short note that Jefferson sent to GW later this day: “Th: Jefferson will immediately have letters of summons proposed to convoke the Senate on Monday according to the form used on a former occasion.” For the subsequent summonses, see GW’s circular letter to U.S. senators of 1 March. GW resubmitted Paterson’s nomination to the Senate on 4 Mar., and at a special session held that same day, the Senate approved the nomination (Executive Journal, description begins Journal of the Executive Proceedings of the Senate of the United States of America: From the commencement of the First, to the termination of the Nineteenth Congress. Vol. 1. Washington, D.C., 1828. description ends 138).