When I had the honour of Meeting You and Mr. Blair at New York, in order to deliberate on the ensuing Circuits, I was entirely unapprized that any general question was to be put, whether there should be a rotation at all until the moment when it was proposed, and I confess it was so unexpected by me, and I saw it lead to such distressing consequences to myself, that I had it not in my power to state such reasons on the subject as occurred to me afterwards. I hope therefore to be now permitted to state them.

The first allotment of Circuits was made, not only when I was not present, but before I knew of the great honour which had been done me in my being appointed one of the Judges. The reason assigned in a letter of the Chief Justice to Mr. Rutledge, an Extract of which he was pleased to enclose to me, was a temporary one, viz. that the Judges could with most propriety determine on the applications for the admission of lawyers in the Districts wherein they respectively lived.

If afterwards a permanent establishment was in contemplation, in my opinion all the Judges ought to have had notice that they might all have had an opportunity of voting when so important a question was to be put. At the time of the above decision Mr. Rutledge was in New York, and though confined with the Gout was in general as capable of conversing about business as he ever was in his life. He had no notice that such a question was to be put at all till after it was decided. To my knowledge he only considered we were to meet on a temporary appointment, as he desired me to request that he might for that time be placed on the Southern Circuit. I have reason to believe, had he been present, the Judges would have been equally divided.

If however notwithstanding this circumstance, it was right to take that general question at that time, I submit to you, Gentlemen, that some more equitable rule in the allotment of Circuits so unequal in point of duty ought to take place, than that they should be forever fixed in the same manner in which they were for a temporary reason at first. A fixed duty is not annexed to any of the Judges by the law. I was not, I am persuaded, contemplated by the President, for originally one Judge only (Mr. Rutledge) was appointed who lived in the Southern Circuit. The Gentleman whom I had the honour to succeed lived in the middle Circuit, where I now do. Had I continued to live to the Southward, and constantly attended the Circuit, I must have travelled the same distance in a year, as my duty requires me to be twice in a year at the seat of Government.

These reasons, I apprehend, are entitled to some consideration, as to the propriety of fixing the Circuits in the manner and at the time it was done. I now with great deference submit to you an Answer to the only argument that I recollect was offered against a rotation. That was, that two Judges might hear a case, and take time to consider of it, and if they did not go again to decide it, it might occasion an inconvenient delay. This is indeed an argument of some weight against the system as it now stands, but I cannot think it is of sufficient weight, ^for the purpose to which it was applied,^ opposed to considerations on the other side. I will venture to say no Judge can conscientiously undertake to ride the Southern Circuit constantly, and perform the other parts of his duty. Besides the danger his health must be exposed to, it is not conceivable that accidents will not often happen to occasion a disappointment of attendance at the Courts. I rode upon the last Circuit 1900 miles: the distance from here and back again is 1800. Can any Man have a probable chance of going that distance twice a year, and attending at particular places punctually on particular days? Surely delays from this cause are much more to be apprehended than from the other. This, that I know of (if the Circuit is constantly fixed) admits of no remedy, from the nature of the thing. The other does. If two Judges hear a case argued, they of course take down the case, the substance of the arguments and authorities on both sides, and such being given to the two succeeding Judges, they will be, I believe, at least 19 times out of 20, as well instructed and prepared to hear another Argument, if necessary, and finally decide on that case as the Judges who first heard it. In regard to an Appeal, if that should be objected, the two first Judges having heard but not decided, their opinions are not committed. They cannot surely be disqualified as Judges of Appeals merely from having a knowledge of the case, as it was impartially heard on both sides. This I admit is not in general so desirable a way, as that of the same Judges hearing a case throughout. But I should consider, that besides that cases of this kind will not probably happen very often, this single Inconvenience cannot be alone sufficient for imposing upon two Judges, equally possessed of every power and privilege with the rest, so much greater a proportion of duty (if it can be executed at all) than the others will have to perform, besides a considerable additional expence which must unavoidably take place.

There are however to be sure strong reasons in itself in favour of a Rotation, since some Countries not only permit, but absolutely require it. I am told that is the case in Virginia, where within two or three years they have had Circuit Courts erected. It has been lately so regulated in North Carolina. And I believe the decision at New York is the first instance of a contrary rule being established in the case of Circuits with no particular allotment of duty. The instances in Virginia and in North Carolina apply to the very case, if I am not mistaken in supposing that in Virginia, as in North Carolina, the Circuit Courts have complete authority extending to Judgment and Execution, and are not merely established for the Purpose of trying Issues, which I admit is the case of the Courts of Nisi Prius in England, and therefore the example in that Country, where a rotation also takes place, is not so immediately in point as the examples I have above stated. In that Country however, so far from confining a Judge constantly to the Circuit wherein he happens to reside, it is expressly directed “that no Man shall be a Judge of issue in the Country wherein he was born, or wherein he is resident.” And this Blackstone calls a prudent Jealousy; I presume therefore there is some reason for doubting the propriety of a fixed establishment on contrary principles to any of these.

In addition to all these reasons of a general nature, I now beg leave to state to you one, why I apprehend it would be peculiarly improper that I should for some time go the Southern Circuit. A Writ of Certiorari issued from the Circuit Court of North Carolina, by the direction of Mr. Wilson, Mr. Blair, and Mr. Rutledge, directed to the Judges of the Court of Equity in North Carolina, for bringing up a Cause in which (as an Executor) I am one of the Defendants. The State Judges have refused obedience to the Writ, expressly denying its authority in that instance. This is a case which will require the fullest consideration that can be bestowed upon it, and I presume if ever a full Court is to be wished for in any instance it must be on an occasion like this. There ought however to be some decision upon it, and I leave you to imagine the consequences if by any accident occasioning the failure of attendance of either of two Judges (if they only should be relied upon) so that no decision at all could take place, the delay should put it in the power of the State Court to give a Decree and proceed in consequence of it in such a manner as to defeat the object of the Certiorari altogether.

I hope you will excuse, Gentlemen, the liberty I take in this representation. My situation is a very hard one. I had no reason to suppose any thing but a rotation would take place, and accordingly when I had the honour to be appointed one of the Judges of the Supreme Court I resolved to remove my Family to the seat of Government, in order that I might be enabled to perform the duty of my office more faithfully than I thought I could possibly do in so remote a situation. I submitted to your decision at New York hoping it would be the last sacrifice necessary, under circumstances of private inconvenience and distress almost too much for me to bear. It is not possible for me to undertake to perform the same tour of duty constantly. I am persuaded it is impracticable for any Man. It is absolutely incumbent upon me therefore to state the case as it really is, lest the public Interest should suffer by my presumption in undertaking what I could not execute. This representation I thought it proper for me to make in the first instance to you, Gentlemen, hoping that I might by that means obtain the relief which I think I am entitled to, and wishing in every part of my conduct to demonstrate the sincere respect my heart constantly feels for you. But I must take the liberty to add, that if contrary to my wishes & expectations you should still continue to be of opinion that as the law stands at present it must receive the construction you gave it at New York, and ^therefore^ that decision is to remain unaltered, I shall be under the painful necessity of trying in some manner whether an alteration of the law in that particular cannot be obtained, so as to leave me at least a practicable share of duty, and the Public unexposed to the danger of suffering by their business being unavoidably undone. I have the honour to be with very great respect, Gentlemen, Your most obedient and most humble Servant,