Justices of the Supreme Court to George Washington, 8 August 1793
Justices of the Supreme Court to George Washington
Philadelphia 8 Augt. 1793
Sir
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
John Jay
James Wilson
John Blair
Ja. Iredell
Wm Paterson
LS, in JJ’s writing, DNA: RG 59, Miscellaneous Letters Received. Endorsed: “From / The Chief Justice & Judges / of the Sup. Court of the U.S. / declining to give an opinion / on the questions submitted to / them. / 8th Augt. 1793”. Dft, NNC (EJ: 08444).
1. See TJ’s initial communications to JJ and the Justices of the Supreme Court, 12 and 18 July, and the Questions Proposed to be Submitted to the Supreme Court Justices, 18 July; and the Justices of the Supreme Court to GW, 20 July, in which they voiced concern about the request, all above.
2. See Article II, section 2 of the Constitution, which specifically allows the president to require written opinions from the head of each of the executive offices. For debate as to whether the judiciary should be empowered to give advisory opinions to the executive, and the defeat of James Wilson’s motion for “joining the Judiciary” to the Executive “in the Revision of laws,” see Farrand, RFC, 2: 73–80; and the editorial note, “The Referral of Neutrality Questions to the Supreme Court,” , 26, 524–26. For JJ’s response to previous requests from GW and AH for his opinions, see GW to JJ and the Heads of Departments, 27 Aug. 1790, above.
In a letter to JM of 11 Aug. 1793, TJ remarked, after reporting the justices’ refusal to consult, that, in England such questions regarding the law of nations were regularly referred to the judge of Admiralty. He then mentioned that he had asked ER if they could propose legislation to establish a board or other advisory body for the president on such questions. To TJ’s displeasure, ER indicated that he would recommend that it be annexed to his office. This, TJ remarked, would make him “the sole arbiter of the line of conduct for the US. towards foreign nations.” See , 15: 58.