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To James Madison from Edmund Randolph, 30 June 1789

From Edmund Randolph

Wmsburg June 30. 1789.

My dear friend

I thank you sincerely for several letters, which my vagrant life between this place and Richmond upon business has prevented me from acknowledging in due season.

The amendments, proposed by you, are much approved by the strong fœderalists here and at the Metropolis; being considered as an anodyne to the discontented. Some others, equally affectionate to the union, but less sanguine, expect to hear at the next session of assembly, that a real melioration of the constitution was not so much intended, as a soporific draught to the restless. I believe indeed, that nothing, nay not even the abolishment of direct taxation would satisfy those, who are most clamorous. But I confess, I am still in hopes to see reported from your mouth some review of the various amendments proposed, and reasons against the fitness of such, as appeared improper for adoption.

I am now well-persuaded, that there is danger of the executive being a feebler member of the government, than I once supposed. I therefore much approve of the power of removal for which you have lately contended. But the temper of those, who boast of being democrates, does not relish the fabrication of one great man, and throw out of view, when they manifest their intemperance on this subject, the probable wickedness of faction.

At this distance from the center of deliberation, it would be rashness in the extreme to charge the arrangement of the fœderal courts with impropriety. I myself in particular, who know the discordancy of the states in judiciary matters, and the difficulty of obtaining concessions from lawyers, and especially from lawyers of different usages, cannot be hasty in dealing out censure. But you will excuse me for the following sentiments, formed without premeditation.1

1. I pass by the title; tho’ judiciary courts might perhaps be converted into an expression, indicative of more accuracy and attention.

2. The number of supreme judges is too small, to make head against eleven state-judiciaries, always disposed to warfare. Nine or perhaps eleven would not transgress the limits of œconomy too far, and would give an opportunity of gratifying each state with a supreme as well as a district judge.

3. In general I see nothing improper in an even number of judges in the dernier resort. In the present case a question decided by a bare majority in a circuit court, one of which shall be the district judge, but affirmed in the supreme court, merely because the voices there are equal on each side, will excite murmur.

4. The jurisdiction is inartificially, untechnically and confusedly worded. Would it not have been sufficient to have left this point upon the constitution itself? Will the courts be bound by any definition of authority, which the constitution does not in their opinion warrant?

5. I cannot discover, what disadvantage the system would have sustained by dividing the courts into separate laws. The equitable jurisdiction at least, which has crept in, seemingly uninvited and half forgotten, would have come forth with more lustre, than it does, crammed into a corner.

6. No man is to be sued but in his own district, or where the writ shall be served. What limitation is this?

7. The minute detail ought to be consigned to the judges. Every attempt towards it must be imperfect, and being so may become a topic of ridicule to technical men. I wish this idea had been thought worthy of attention; thus the bill would have been less criticized. I wish even now, that the judges of the supreme court were first to be called upon, before a definitive step shall be taken. A temporary provision, until their report can be had, surely is not impossible.

I can speak in generals only; but I beseech you and my friend A. White, to whom I should have written but for the heat of the day, and a hope, that you will shew him this letter—not to suffer the bill to be sealed as a law in its present dress. Yrs. mo. sincerely & afftely

E. R.

RC (DLC). Docketed by JM.

1Randolph’s comments were on the original judiciary bill, presented to the Senate on 12 June (JM to Randolph, 17 June 1789 and n. 1).

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