Adams Papers
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From Hannah Phillips Cushing to Abigail Smith Adams, 25 June 1802

Scituate June the 25th. 1802.

My Dear Madam

I ought long before this to have acknowledged & thanked you for your excellent letter received at Midn., without the pages having been poluted by the inspection of a Demo. your letters as well as conversation are always very interesting to me; & it is a painful thought that in all probability I shall but seldom enjoy the later. If we resided within five or six miles of each other my friend would accompany me once a week, & pass two or three hours in the society of those we so highly esteem. How many pleasant days have I spent with you at the Seat of Government? (A place that now has no charms for me as such). I sometimes fear that I then intruded too much on your time. I have also passed many happy hours in the company of Mrs. Washington, & Mrs Jay, which cannot be repeated in this life, but their memories will ever be dear to me. It was my determination to have visited Quinsey, & Boston, soon after our return, but I took a severe cold at the close of the journey, which confined me some weeks, & now that pleasure must be defered till October, when Mr Cushings Official duty will call him forth. Many letters have passed between the Judges respecting the last Judiciary Law. The Chief Justice says “Mr Washington states it as his opinion that the question respecting the constitutinal right of the Judges of the supreme Court to sit as circuit judges ought to be considered as settled & should not again be moved.[] “I have no doubt myself but that policy dictates this decision to us all. Judges however are of all men those who have the least right to obey her dictates. I own I shall be privately gratified if such should be the opinion of the majority & I shall with much pleasure acquiesce in it; though if the subject has never been discussed, I should feel greatly embarased about myself. I have also received a letter from Judge Chase, whose opinion is directly opposite to that of Judge Washington, but he expresses an earnest desire, which he has requested me to communicate to every member of the bench, that we should meet in Washington, for the purpose of determining on the course of conduct to be pursued, in August next, when he is directed to hold a sort of a dem session at that place.” Judge Chase has sent Mr Cushing a copy of his letter to the C[hief] J[ustice]. It is very lengthy. I will give you a short extract. “I greatly prefer a personal conference to a communication by letter; & in that case I think it would be proper to lay the result before the President, as our predecessors did in a similar case. I feel every desire to yield my opinion to my Bretheren; but my conscience must be satisfied, although my ruin should be the certain consequence. My Office is necessary for the support of a numerous family; but I cannot hesitate one moment between a performance of my duty, & the loss of Office. If my Brethren should differ from me in opinion & I should only doubt, what conduct I shall pursue, will readily submit my judgment to theirs; which I very highly respect. Without any reserve I will give you my present thoughts; holding myself at perfect liberty to change them, on being convinced that they are erroneous—Mr C reply to Judge Chase I insert although I have not asked his permission for it.

“I received your favor with a copy of your letter to the Ch[ief] Justice on the subject of the Judiciary containing much good sense & argument. But can We, after Eleven years practical Exposition of the Laws & Constitution by all federal Judges, now say, that Congress has not power to direct a Judge of the Sup[reme] Court to act with a D[istrict] Judge in an inferiour Court, with or without a Commission, yet making one of the Sup[reme] bench to hold appellate Jurisdiction? I think we cannot.

“As to being instrumental (by taking the Circuits) in violateing the rights of the Judges & the Constitution, I do not see that it carries that inference. It is not in our power to restore to them their Salaries or them to the exercise of their Offices. Declining the Circuits will have no tendency to do either. We violate not the Constitution. We only do duties assigned us by Constitutional authority. Suppose we apply or represent or remonstrate to the President; what can he say? ‘Gent. There is the Law I cannot control Congress.’ And you & I know We—cannot control the Majority.[]

Judge Patersons answer to the Chief Justice on the subject is as follows. “On the constitutional right of the Judges of the supreme court to sit as circuit judges, my opinon coincides with Judge Washington’s. Practic has fixed construction, which it is too late to disturb. If open for discussion, it would merit serious consideration; but the practical exposition is too old and strong & obstinate to be shaken or controled. The question is at rest. If this should be the prevailing opinion, & their be nothing more in the case, our meeting would be of no use.” I might have had the manners to have inserted this before my Husbands; but we must overlook small errours in these times. I am rejoiced to hear thad Judge & Mrs Chranck have arrived. It would give us pleasure to see them here. I hope we shall not be disappointed in a visit from you & Miss Smith this summer. Pleas to present my respects to the President. I am with sincerity your / Affectionate Friend

H Cushing

MHi: Adams Papers.

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