From Supreme Court Justices
Philadelphia 8 Augt 1793
We have considered the previous Question stated in a Letter written to us by your Direction, by the Secretary of State, on the 18th of last month.1
The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.2
we exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your Judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the united States. We have the Honor to be, with perfect Respect, Sir, your most obedient and most h’ble servants
DS, in John Jay’s writing, DNA: RG 59, Miscellaneous Letters; Df, in Jay’s writing, NNC: Jay Papers.
1. On Thomas Jefferson’s letter to the Supreme Court Justices of 18 July, in which he wrote that GW wanted to submit questions concerning U.S. neutrality to them, see Jefferson to GW, 19 July 1793, and note 1. For the questions proposed for submission to the justices, see the enclosed list in Jefferson to GW, 18 July 1793.
2. Article II, section 2 of the U.S. Constitution states that the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the duties of their respective Offices.”
3. Associate Justice William Cushing did not attend the summer session of the Supreme Court (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 , 1:217–19).