The Judicial Appointment of Joseph Anderson
Editorial Note

Joseph Inslee Anderson’s first appointment to civil office initiated a long career on the bench, in the Senate, and in the federal administration.1 But it brought anxiety and embarrassment to the candidate, disturbed his political sponsors, and, for the first time, obliged the President to confront the question whether he should withhold a commission even after the Senate had confirmed his nominee. The candidacy of Anderson began in the summer of 1790 and culminated in the hectic closing hours of the first Congress. At the last moment the President passed the prickly nettle to the Secretary of State, placing in his view only a part of the information that had been gathered over a tortuous course during the preceding eight months. Under the circumstances, Jefferson’s brief and hasty opinion was perhaps the only one permissible and it may stand justified in the event. But it brought injury to another Revolutionary officer whose record was quite as worthy as that of the candidate and whose appeals for rectification were coldly ignored by the President. The bungled episode casts some light on the manner in which Washington handled matters of patronage and on his relations with Jefferson in dispensing it.

Two weeks after the Act creating a government for the Southwest Territory was passed, Joseph Anderson announced to the President his wish to be appointed as one of the judges in that jurisdiction. He had previously held no state or federal office, but had risen to a captaincy in the Third New Jersey Regiment and had been breveted major. On leaving the army he had studied law in New Jersey. In his letter of application he asserted that he was licensed to practice “in several of the Supreme Courts of the United States.” He also stated that he was obliged to seek office because he had “sustain’d great Losses from ill reposed Confidence,” but he did not elaborate. He submitted written testimonials supporting his good character and in addition referred the President to Senators William Paterson of New Jersey and George Read of Delaware. Washington was impressed enough to confer with both men.2 Paterson, who knew Anderson only as a military officer, questioned the adequacy of his legal preparation. On learning of this the candidate explained to the President that, after preparing himself for the law in New Jersey, he had gone to Delaware to settle the affairs of his father who had died there intestate. Though licensed to practice in that state, he had not done so. He had instead applied himself to intensive study in order to be admitted to the Pennsylvania bar, whose “rules of admission … were more strict than those of any other state in the Union.” He had been licensed in 1787 to practice in Pennsylvania, but, being determined to move to the western part of the state, he had not deemed it prudent to begin practice for so temporary a stay. He was prepared, he stated, to take any sort of examination to test his fitness for the post. Doubts raised by so able a lawyer as Paterson must have carried some weight, yet Washington sent word to the Senator that he was satisfied with Anderson’s testimonials.3

The very next day, however, Paterson interposed an even more effective barrier between the candidate and the realization of his ambition. It now appeared that Anderson’s account with the United States as paymaster of the Third New Jersey Regiment had never been settled. Whether the officer had been previously aware of this fact or not, he was given the information shortly before soliciting appointment but did not disclose it. On learning, however, that the delayed settlement might operate to bar him from “any Public appointment … for ever,” as he interpreted the President’s position, he reacted to the severe blow with a long and earnest attempt at justification. He explained that, shortly before the dissolution of the army, he had been granted leave of absence until commanded to return. Since he was absent at the time the army was dissolved, the commanding officer of the First New Jersey Regiment (with which his own had been merged) had ordered its paymaster to take Anderson’s books and “make a Settlement of the whole accounts.” Anderson said he had assumed that such a settlement had been made because the paymaster “detained at that time the Particular sum of one hundred and eighty dollars and fifty seven nintieths … due from me to the Public on Settlement of my Accounts.” He was confirmed in this assumption, he added, because the Paymaster General after first deducting this amount had issued certificates of the balance due him and these certificates revealed on their face “that on the final Settlement of Accounts between the United States and Joseph I. Anderson there remains due to him so many hundred Dollars.” Anderson stated that he took this acknowledgment to supersede all claims of the United States against himself even though “no entry of Settlement appears on the face of the books.” He added that he had always considered the accounts as having been “fully and finally settled,” but that, if the President would postpone the nomination for two or three weeks, he would go in search of his books. He was not even aware whether these had ever been returned to him, but he thought it would be “a very hard case” if his misfortunes should have the effect of crimes merely because of “the Omission or Carelessness of Clerks.” But Washington had already directed his secretary to inform Senator Paterson that Anderson, as “Circumstanced at present,” could not be given the nomination even though his testimonials were fully satisfactory. Paterson informed the candidate, and the disappointed office-seeker immediately asked for a personal interview with the President. This was not granted. Anderson dispatched further letters to Washington in an effort to justify himself, but without effect. He thereupon embarked upon a search for his paymaster’s records so that he might exculpate himself from the charge of “Voluntary delinquency.”4

It was unfortunate that these records were not available at the time Anderson attempted to justify himself. For the fact is that his assumption concerning “the Particular sum” of $180 57/90 and his inference drawn from the statement on the face of his certificates of pay were both erroneous. That amount was not, in fact, owed by Anderson to the public but just the reverse. It represented his subsistence allowance as an officer and it had been withheld specifically as a condition and perhaps as a means of compelling settlement of his account. It is puzzling that this fact should have escaped Anderson’s recollection. He must have been informed of the reason for retaining the amount owed by the public at the time his certificates for back pay were issued to him. Further, if he was able to ascertain shortly before applying for office that “no entry of Settlement” appeared on the face of the books, it seems likely that he would have learned at the same time the nature and contingency of the balance due him. Yet, puzzling as it seems, he forgot or was unaware of the actual state of the balance until, at the time of renewing his application for the judgeship early in 1791, he came across the following entry at the foot of the summary statement of his account as paymaster of the Third New Jersey Regiment: “By subsistence retained till he settles his Public Accounts—180 57/[90].”5 When he did make the discovery, he did not trouble to correct his earlier opinion that fixed responsibility on “the Omission or Carelessness of Clerks.” It was not the last time that Anderson placed the blame elsewhere.

While Washington had not granted the request for a postponement of the appointment for two or three weeks to permit the applicant to search for his books, he waited longer than that before making an overt move to find a substitute candidate. Evidently committed to the idea of selecting someone from Delaware for the judicial post, he eventually turned for suggestions to the other Federalist Senator from that state, Richard Bassett. Bassett recommended William Peery, one of his constituents. Washington promptly sent his name to the Senate and confirmation followed the next day.6 But Peery ultimately declined the office on account of age and personal concerns, entrusting delivery of his letter of declination to Delaware’s single member of the House of Representatives, John Vining.7 The fact that Peery had allowed four and a half months to elapse before rejecting the commission, during which time Anderson was busily engaged in an attempt to straighten out his army account, suggests at least the possibility that the eventual result may have been designedly anticipated in order to indulge the candidate with the time for searching and settlement that had been denied him. Certainly there was ample opportunity between Anderson’s rejection and the proposal of Peery’s name for the Delaware Senator to have discovered whether his nominee wished to be considered as a candidate. Other candidates may also have been advanced in the summer of 1790, as was certainly the case later when Peery’s resignation created a vacancy.8 But whether he learned of it from Vining or someone else, Anderson was among the first to know that a vacancy existed. Within two weeks after the resignation was sent in he renewed his application for the office.

Immediately after writing the last of his explanatory letters to the President in the summer of 1790, Anderson had set out to find his records and effect a settlement. He found the books but discovered that one of them “(by some fatality) had receipts torn out of it, to the amount of near fifty thousand Dollars,” thus making a settlement “impracticable.” In view of this misfortune, he had been obliged to petition Congress on the matter. His petition is not known to exist, but in addition to other explanations for the delayed settlement, it may have contained that now advanced by the candidate in a letter to the President:

By what remains of my receipt books, it appears that I have receiv’d from the General Pay Office (and paid to the Regiment) upwards of twenty thousand dollars, more than I am charg’d with.—To this circumstance I apprehend it may be owing that my accounts … remain open, Mr. Pearce9 probably not being able to satisfy himself respecting it, or to account to the Public, for so great a difference, between the sums charg’d to me as Pay Master, and the sums for which, I then had receipts, which I apprehend Mr. Pearce must have noticed when going over my Pay Books, with the Pay Master [of the First New Jersey Regiment] whom I supposed had finally settled my Accounts.

This “mistake of twenty thousand Dollars” Anderson explained by saying that he had commanded a company of light infantry under Lafayette in 1780 and that the nature of the campaign had precluded the filing of abstracts of pay, forcing him to draw the money for the Regiment on account and sometimes through other officers. The sum in which the mistake was made was drawn by Colonel Francis Barber on a warrant from Washington himself under date of 28 August 1780, but not charged to Anderson as paymaster or accounted for by Barber’s agent on the settlement of his account with the United States. Anderson offered this explanation as “the most probable … Cause” of his having been made to appear a delinquent and concluded with a renewed solicitation of the President’s favor:10

it has been suggested to me, that the office … which I formerly solicited … is at present vacant by the Resignation of Mr. Perry. If it shou’d remain so, until the Settlement of my Public account is Effected, I hope your Excellency will not think me presumptuous, if I again solicit you for that appointment.—My fortune at present is Humble, my real friends are Consequently few; and I have never yet mov’d in the sunshine of favour.

But apparently there were some real friends who stood ready to lead him into the sunshine. Three days earlier Congress had referred his petition to the Secretary of War.11 Whether or not Anderson was aware that another candidate for the office he was seeking had just been recommended to the Secretary of State, he was understandably concerned at any delay on his own petition.12 He therefore lost no time in pressing his cause at the War Office. He was so insistent or possessed such influential political support that he was able to induce the Secretary of War to make his anticipated recommendation in the case known to the President even before his report to Congress had been drafted. This Knox did for the specific purpose of aiding Anderson in his candidacy:13

Major Anderson [he wrote to Washington’s secretary, Tobias Lear] has petitioned Congress that he may be allowed to settle his accounts as pay master in the late army, notwithstanding certain resolves of limiting settlements combined with claims against the United States. His petition has been referred to me, and it has been investigated so far as that a satisfactory judgment is made on his case.—Although he cannot receive anything which may be due him, and there does appear a small balance in his favor, yet I shall report, that his accounts be closed; and I presume on such principles as will be adopted. I mention this circumstance to you as the Major informs me he has some application for an appointment before the President, with which, his not having settled his accounts, would perhaps militate.

The fact that Anderson pressed for and obtained this advance summary of Knox’ report and that he immediately forwarded it to the President suggests that he regarded it as conclusive. The House of Representatives, however, had forwarded the petition to the Secretary of War with instructions to examine and report upon it. Knox’ letter to Lear shows that he understood this requirement. Yet, in the three weeks that elapsed before he drafted his report, something transpired to alter its nature so as to make its effect depend not on such principles as Knox presumed would be adopted but on his own determination. In the report as finally drawn Knox recited the facts presented in Anderson’s memorial, which were substantially the same as those previously set forth in the candidate’s letters to Washington, and gave it as his opinion that, as Anderson had relinquished the balance due him and as his only object was “to obtain the settlement of his account, and not any allowance or payment, it would seem reasonable that it should be granted, as much as if it appeared on the public books, that he was a debtor for any Sum, and being compelled to make a payment, the account should then be ballanced.” This was indeed a plausible premise. But Knox’ conclusion that the “Account of the Memorialist will therefore be settled by the Commissioner of Army Accounts, and any Act of Congress thereon will be unnecessary” was an administrative decision that conflicted both with the intent of the resolution of the House of Representatives and with his own earlier indication to Lear that he would defer the ultimate decision to that body.14 Nevertheless, this was the controlling determination. On the very day that Congress received and tabled Knox’ report, Joseph Howell, Acting Commissioner of Army Accounts, gave effect to the decision. Two days later Anderson assured the President that he had “with some trouble Obtain’d a final settlement.” He submitted various papers to support this statement, including Knox’ report and Howell’s certificate. Assuming that he had at last been cleared, he renewed his application for office:15

Permit me therefore Sir, Once more to Solicit … the Office of Judge now vacant by Mr. Perry’s resignation.—When I first presum’d to address Your Excellency upon this Subject I presented several Certificates which Your Excellency may possibly recollect. But least through the excess of business, their support shou’d now be forgotten, I again beg leave, to offer the Certificates of my Military Character, and a Certificate of my Admission, as a Councellor at Law, in the Supreme Court of the United States, which I had not before the Honor of presenting to Your Excellency.—The foregoing Testimonials I with great Deference Submit to Your Excellencys Consideration. And if Sir, they can give a Sanction to my request and Your Excellency shou’d think proper to Honor me with the appointment, I shall Study to deserve the Honor, and Confidence thereby Confered.

But once again, just as the eagerly sought prize seemed within grasp, another formidable obstacle arose. Tobias Lear, acting on Washington’s instructions, informed Anderson that a report to his disadvantage had come to the President. The exact nature of Lear’s information remains in doubt and the manner in which the report came to Washington was as unknown to the candidate as it is to history. But it is clear that the rumor involved a transaction between Anderson and Peter Jaquett of Wilmington, a fellow officer and member of the Society of the Cincinnati.16 John Vining was familiar with the history of the transaction, but at this time he was friendly to Anderson’s candidacy, as were the two Senators from Delaware. Jaquett himself is not likely to have originated such a report since, as subsequent developments proved, his own interest was involved in the appointment. Whatever the source or nature of the report, Anderson rallied as quickly as before and pressed forward. No doubt it appeared natural to seek out his partner in the transaction and obtain from him the explanation required, and so he made a swift journey to Wilmington to consult him. Within two or three days he was back in Philadelphia, bearing with him a certificate signed by Jaquett and witnessed by George Bush, Collector of the Port of Wilmington. This certificate is not known to exist. But there is no doubt that Jaquett obliged Anderson by placing the transaction in a favorable light. The candidate promptly transmitted this document to the President.17 Two days later Washington nominated him for the vacant judgeship. The Senate confirmed the nomination the next day.18 At last the Revolutionary veteran seemed to be warmed by the sunshine of favor. Nothing remained but for the commission to be passed under the Great Seal.

Even at this late moment, however, there arose another report so ominous and so serious as to give the President pause and to bring agony to the candidate. It was now rumored that something more had transpired during Anderson’s journey to Wilmington than had been revealed. This time the report originated with Jaquett himself. For some reason—perhaps because Vining, as a friend of long standing, was familiar with the history of the transaction—Jaquett informed the Congressman by letter about Anderson’s mission to Wilmington and commented upon the certificate that he had signed at the request of the candidate. He later claimed that the letter was “intended for his [Vining’s] Eye alone.”19 But Vining revealed it to the two Senators from Delaware just a day or so after Anderson’s nomination had been confirmed. Read, perhaps Bassett also, was sufficiently disturbed by its contents to advise that it be made known to the President. This Vining did by showing the letter to William Jackson, who informed Washington that in it Jaquett had “Observ’d that he had told the truth, in the Certificate, but not the whole truth.”20 Washington at once disclosed the information to Anderson in what, surprisingly enough, was their first meeting in person. The candidate later declared that in this interview the President had assured him the commission would issue notwithstanding Jaquett’s letter to Vining. Improbable as such an assurance seems under the circumstances, Anderson nevertheless appealed to Vining for a copy of the letter. The Congressman, perhaps having had doubts of his own by this time, replied that it had been inadvertently destroyed but gave his remembered impression of its principal fact and of the more favorable interpretation given to that fact by the witness to the certificate, George Bush.21 Anderson also obtained another testimonial from a Philadelphian and added to this a certificate from Colonel Francis Barber, an officer whom Washington had greatly admired. All of these he submitted to the President in a final letter which, in addition to his own reiterated interpretations of statements made in Vining’s letter, rested his candidacy ultimately on a plea for compassion. Rejection in the full light of public knowledge of his nomination and confirmation by the Senate, Anderson declared, would cause him to “grow old in wretchedness, perhaps in poverty and what is worse even Contempt.”22

Washington himself was obviously uncomfortable in what the candidate had aptly described as a “very delicate and peculiar Situation.” To withdraw or cancel a public action would possibly call for public explanation. To deliver a commission to one about whom serious doubts had been raised might bring on subsequent embarrassment. To with-hold it after confirmation might be an injustice to one whose record of service in the Revolution had been meritorious. These patent difficulties were compounded by the fact that the appointment concerned the judiciary in a new and experimental form of territorial government. The incumbent would hold office during good behavior. He would have common law jurisdiction. He would be obliged to confront a maze of conflicting land titles that complicated law, politics, and the whole social fabric. He would exercise his judicial prerogatives in a region of mounting tensions between East and West, where at any moment—as both the President and the Secretary of State would acknowledge in a few days23—an explosive situation of unpredictable consequences for the nation might develop. Civil and military appointments of easterners in the Northwest Territory had already caused discontent in the region south of the Ohio, and Anderson had no known connection with the West or its problems. Faced with such a dilemma, the President turned to the Secretary of State. Jefferson, unapprised of all that had taken place in the preceding months, concluded at once that the overwhelming weight of testimony was favorable to the candidate and that that of a contradictory nature originating with Jaquett was to be considered as nothing.24 Washington, on an admittedly more “complete view of the circumstances,” concurred immediately and no doubt with a sense of relief.25 The commission was delivered to the anxious candidate the same day, just as the first Congress expired.26 The issue was thus quickly resolved on a note of untroubled confidence that was belied by the President’s prior hesitation and unwarranted by the known and discernible facts.

For even a hasty and partial review of the evidence should have exposed substantial grounds for doubt about the fitness of the candidate for judicial office. First of all, Anderson’s effort to dispel skepticism about his legal qualifications raised more questions than it answered. Exactly a decade had elapsed since the candidate had left the army. In this same period many other veterans of the Revolution had prepared themselves for the legal profession and had even risen to places of distinction at the bar, as the careers of John Marshall and others proved. Yet Anderson had never tried a case. Moreover, his explanation seriously qualified, if it did not contradict, his original statement to Washington that he had been authorized to practice in “several” states. In fact he had been admitted to the bar only in Delaware and Pennsylvania. His explanation for not having followed his profession in either state-that he was determined to remove to the West and deemed it inexpedient to engage in practice for so temporary a stay—should have raised some question in view of the fact that more than three years had elapsed since he had been admitted to practice in Pennsylvania.27

As for the matter of his army account, all that the candidate had obtained from the various quarters of his solicitation was an administrative decision to consider the matter as closed.28 But this very fact raised a more serious question. As he had previously explained to the President, Anderson could not effect a settlement without appealing to Congress. This, as he and others in his situation well knew, was because settlements of claims involving military service had been precluded by the Continental Congress after 1 August 1786. Yet, even while his petition was pending, he had pressed for and obtained a closing of his account without any action by Congress.29 The obstacle that had required such an appeal had not been removed. Its existence was in fact explicitly acknowledged by Knox both in his letter to Lear and in his final report. But between the drafting of these two statements something induced the Secretary of War to adopt a different position with respect to the basic principle. His first opinion showed, clearly and properly, due deference to the House of Representatives in deciding a matter that had been placed before them as of necessity. But his final report merely announced to that body the reasons for an administrative decision that had been taken. Thus, in abandoning his earlier position of deference to the legislative branch, the Secretary of War in effect had suspended a legislative regulation in existence since 1786 and had assumed the right to decide whether legislative revocation or suspension of the rule in this and presumably in all similar cases was or was not necessary. Some of this contradiction between the words which acknowledged the existence of the legislative obstacle and the decision which in effect disavowed it may perhaps be attributed to simple confusion over principles of administration. But it is difficult to escape the conclusion that the persistent candidate and his political supporters in Congress also had some influence in bringing about this shift of position on the part of the Secretary of War. In the attempt to remove his paymaster’s account for the Third New Jersey Regiment as an obstacle to his appointment, Anderson himself had obviously been one of the most aggressive proponents of a solution that, leaving nothing to legislative chance or delay, denied the premise on which his memorial to the House of Representatives had been based. The principal fact that emerged from his persistent appeals to various quarters was that, in the beginning, this legally trained candidate had been mistaken in the nature of the unsettled balance in his public account as well as in the inferences he drew from it and that, in the end, both his words and his actions betrayed his confusion respecting the proper boundaries of legislative and administrative authority.

Similarly, the matter of the transaction between Jaquett and Anderson vanished as an obstacle without being resolved, though in its implications it posed the most serious questions that had yet been raised about the fitness of the candidate for judicial office. In the assessment of this problem by the President and the Secretary of State the crucial evidence was missing. But this very fact should have aroused probing questions at the outset. Why, in attempting to dispel the doubts that had been raised, did not Anderson produce at least a copy of the original instrument in the transaction? Why was it necessary to rely instead on a certificate to explain its nature? The questions gain force by the fact that Anderson, who later asserted that the certificate merely recited the facts contained in the original record, nevertheless felt obliged to explain to Washington an otherwise obscure allusion in the certificate. Clearly, explanatory testimony that required elucidation could not have had equal evidential value with the actual terms of the original instrument. Not until later did the candidate see fit to inform Washington that the original was “at too great a distance to Obtain speedily.”30 But this explanation, too, begged the question. Even if Anderson himself had not retained a copy of the original in which his property rights were committed, the other party to the agreement must have done so as proof and protection of his own rights. If so, why had not he provided a copy of the document too distant to be obtained speedily? Failure to provide even a text of that agreement was thus compounded by failure to explain why the candidate chose to rely upon an affidavit of secondary authority—a fact and a proceeding that should immediately have raised questions about Anderson’s fitness for a judicial post. The doubts and ambiguities had not been dispelled. Washington, without even a personal knowledge of the candidate, had merely accepted the certificate that Anderson had produced and had sent his name forthwith to the Senate.

But after the Senate had acted, there arose other and graver questions about the manner in which the candidate had endeavored to clear the path to his nomination. What actually had transpired between Anderson and Jaquett when the former made his swift journey to Wilmington? The answer to this troublesome question came only in the form of conflicting rumors, explanations, and denials. Here again the President and the Secretary of State did not have access to the original and crucial document—Jaquett’s letter to Vining—but were obliged to rely on Vining’s summary of its contents and on reiterated interpretations of its meaning by Anderson. Even so, several important and incontrovertible facts should have been discernible through the fog of assertion and contradiction. First, the original agreement between Anderson and Jaquett had been renewed at the time the certificate that purported to explain its nature had been drafted, thus making the text of the renewal available. Second, this renewed or “additional Contract” was, with one exception, identical with the first. Third, it was in the nature of an agreement or bond of indebtedness with Anderson as debtor and Jaquett as creditor. Fourth, the one exception or addition to the original agreement provided for a diminution of Anderson’s obligation through payments to Jaquett from the anticipated salary as judge. These facts went to the heart of the matter and provided the key to an impartial assessment of the evidence. They allowed the inference that this understanding, contingent upon the appointment of Anderson, gave to each perhaps unequal but definite motives of interest in the nomination and in the drafting of the certificate designed to promote it. The statements of both men respecting that document were, therefore, presumably entitled to equal consideration.

But Anderson, by his reiterated emphasis upon the supposed conflict between Jaquett’s certificate and his “repugnant letter” to Vining, obviously sought to divert attention from the real issue by the simple device of impugning the credibility of the man to whom he had so recently appealed for assistance. He labeled as contradiction what, according to his own statement, Washington’s aide and perhaps Washington himself had regarded merely as partial disclosure—as being “the truth … but not the whole truth.”31 Indeed, he succeeded at the end in shifting the issue to a simple contest of veracity between the author of the certificate and the witness to it.32 In doing so he did not deny that a contingent understanding had taken place but asserted, in ambiguous language and on the basis of the reported testimony of George Bush, that this was “a Consequence rather than a Condition” of his appointment. This distinction had only a technical relevance to the real issue, but it did enable Anderson to swear “upon the Honor of a Soldier” that he had never empowered Jaquett to receive part of his compensation if appointed. Jaquett himself might have taken the same irrelevant oath: what Anderson was careful to avoid denying was that he had arranged by the renewed agreement to have Jaquett receive payments on the debt out of his anticipated salary.

This diversionary effort, an exercise in special pleading that left the substantive question unanswered, met with success. The obvious contradictions and partial disclosures in the arguments Anderson advanced to support charges of such defects in the testimony of Jaquett were seemingly disregarded. So also, apparently, the “principal Fact” in Jaquett’s explanation of the drafting of the certificate was overlooked. But that fact, even as filtered through the imperfect screen of Vining’s brief summary, emerged with crystal clarity. Jaquett had obliged Anderson to enter into a renewal of the contract and to add to it a new stipulation. He had been able to compel this as a condition precedent to his compliance with the request for a certificate explanatory of the nature of their original understanding. He had, in brief, simply seized the opportunity presented by the candidate’s eagerness to obtain the appointment in order to bind him to a stipulated mode of payment on the indebtedness if and when he was placed on the bench. In other words, Anderson himself had knowingly participated in the partial disclosures of the certificate that told “the truth … but not the whole truth.”

The instrument for revealing the full extent of this bargaining transaction at Wilmington was at hand but was not employed. Anderson himself had unwittingly revealed its existence in his effort to destroy the credibility of Jaquett. If his object had been to present the facts with candor, all that was necessary for him to do was to exhibit to the President a copy of the renewal of the original bond that had just been signed. By so doing he would have avoided the self-impeachment of his own credibility in the assertion that he could not supply the text of that original agreement because it lay at too great a distance to be obtained speedily. For he himself had assured the President that the renewed bond was the same as the original, with one exception—the exception that was central to the question of his fitness for office.33 He could have gone further. Instead of relying on the memory of John Vining and the secondhand testimony of George Bush, he could have appealed again to Peter Jaquett. That interesting individual, as the President and the Secretary of State might also have discovered, was still eager and willing to testify at length and in support of Anderson’s candidacy. He, too, had a personal interest in the outcome.

Peter Jaquett belonged to a well-known Huguenot family that had settled on the lower Delaware even before the beginning of English rule.34 His record in the Revolution and his devotion to republican principles were so exemplary as to lead John T. Scharf to characterize him as “one of the ideal patriots of the great struggle for independence.”35 Like Anderson, Jaquett entered the army as an ensign at the beginning of the war, rose to a captaincy, and was breveted major. From the beginning of 1776 to the end of 1781 he fought with the much-eulogized Delaware Continentals in almost every major engagement from New York to Charleston, being twice wounded.36 At the close of the war, broken in health, he returned to his patrimonial estate at the confluence of the Christiana and the Delaware and found it in ruins. Successive floods over a period of years after the war broke through the dikes, inundated his lands, and baffled his efforts to reestablish the family farm of Long Hook. Early in 1789 he applied to Washington for some civil or military employment in the new government.37 He had been “narrowed in his private circumstances … not by indolence, extravagance or waste, but from inevitable misfortune,” wrote Dr. James Tilton, who testified that there was “not a disinterested whig or revolutionist in Delaware, but would rejoice at any benefit which Captain Jaquett might derive from government.”38 John Dickinson supported Jaquett’s candidacy by pronouncing his “conduct as an officer … unquestionably very meritorious” and by condemning as altogether inadequate the provision “made by the publick for the comfortable and reasonable accommodation of such men, after their dangers, sufferings and services in the cause of their Country.”39 The judges of the Supreme Court of Delaware and of the courts of Newcastle county, “from a long acquaintance with the Major’s Abilities, integrity, and activity, as a Soldier, from the commencement to the Close of our Glorious Struggle for the Liberties of our Country, and since as a peaceful and useful member of Civil Society,” declared that his appointment “would give Great Pleasure to the Virtuous Citizens” of the county.40 Charles Pope and other officers who had served with Jaquett stated that his “distinguished services in the Army … greatly endeared him to his Countrymen, and particularly to his brother officers and soldiers.”41 This was impressive support, and the testimonials carried an unmistakable tone of sincerity and esteem not always discernible in such declarations. Jaquett nevertheless failed to obtain either a civil or military appointment.

He waited two years and then, early in 1791 and still in the same difficult circumstances, he renewed his application in the hope of obtaining one of the additional offices called for under the Excise Act. In doing so he referred the President to the various letters of recommendation that had accompanied his previous appeal, “signed by the Gentlemen of the Legislature of this State, the Judges of the different Courts, the Justices of the Peace, together with all the officers of the late Delaware Regiment and a number of private Gentlemen.”42 The letter came to the President’s attention only a few weeks before Jaquett was called upon by Anderson for the certificate about their transaction. Thus, perhaps in part at least because Jaquett’s effort to aid Anderson’s candidacy had branded him in the eyes of the President as a person of dubious veracity, his own considerable claims to civil or military office went unrecognized. Indeed, the supervisorship of the excise for Delaware went to Dr. Henry Latimer on the very day that Anderson’s accusation against Jaquett for having invalidated his own testimony was officially endorsed.43

Somehow, in the next few weeks, Jaquett learned that the Secretary of State had written a report that disparaged his testimony. This can only have happened through the instrumentality of someone close to the President who had access to his files. It is plausible to suppose that Lear was the one who disclosed the nature of Jefferson’s report and that it was to Jaquett’s friend Vining that he made the communication. But, whatever the source or channel through which Jaquett obtained the information, two facts are beyond doubt. First, sole responsibility for the disparagement was placed upon the Secretary of State. The fact that his opinion had received the emphatic concurrence of the President was not revealed. Second, Jaquett experienced such a sense of injury that he immediately appealed to the President—not by urging his own claim to an appointment and not by impeaching the veracity of Anderson, but in order to redeem himself in the eyes of the Commander-in-Chief whom he had followed so loyally during the Revolution.

“I feel myself much hurt by the unfair manner in which I have been represented in Major Anderson’s affair,” he began, “and exceedingly mortified that it should leave an unfavorable impression of me in the mind of your Excellency.” He believed that an interview of a few moments would enable him to convince the President that he had “certified nothing but truth concerning Major Anderson” and that he could reconcile the “apparent contradiction” between the certificate and the letter to Vining. He then proceeded to give the explanation that, had they desired it, either the President or the Secretary of State might have elicited earlier:44

I had been long in habits of friendship with Mr. Vining and he was well acquainted with all the circumstances concerning the affair between M. Anderson and myself and I had some reasons to believe that Mr. Vining had interested himself with your Excellency in favor of the Major’s appointment; but I never knew that Mr. Vining or Mr. [Gunning] Bedford had represented the Major’s affair in a disadvantageous point of view to your Excellency, untill five days after I had wrote the letter to Mr. Vining which was intended for his Eye alone.

From the opinion which I always entertained of M. Andersons honor and entegrity I was convinced that he would discharge the debt as soon as he was in a situation to do it. I therefore felt myself obliged to Mr. Vining (who I knew entertained a favorable opinion of M. Andersons abilities and understanding) for the aid which I imagined he had given in recommending him to your Excellency, as I knew it would put the Major in a situation to do what he heartily wished namely to discharge a debt of honor due to me. I call it a debt of honor, because I lent it to him upon his word of honour to return it to me in three months and took no written obligation for that purpose. At the same time the Major told me that he had attatched a large sum of money in the hands of the treasurer of the United States the property of Nathaniel Twining for whom he had been security to a large amount and to his very great injury,45 that he expected to receive this money in less than three months when he would repay me. For some reasons unknown to me I believe the Major received but about one eighth part of the money he expected, which disappointment put it out of his power to comply with his engagement to me.

I am convinced that the Major was severely mortified at the idea of being unable to pay me, especially as he knew that my situation was by no means a comfortable one. But as he was unable to pay me, he in some measure avoided me, for more than a year, during which time I scarce saw or heard from him.

After the debt had been due upwards of four years, upon my hearing that he was about going to Kentucke,46 I directed my attorney to institute a suit against him in hopes that his Brother in Law, would become security for part of my demand; giving my Attorney my directions at the same time, to use no rigor and informing him that the Major had certain Land Warrants in his possession which I would take at 3/9 per Acre as a security to his bond which I directed him to take. Major Anderson being in Maryland my order was executed with more rigor than I wished or expected and he was sent to Gaol his bond taken and the Lands as security.

When the Major came to me for the certificate which he obtained, I told him I was very ready to certify anything to his advantage consistent with truth, that I had always viewed the affair as his misfortune not his fault. He then assured me that he would give me any instrument of writing which I should chuse, to convince me that he did not want inclination but ability to pay me. We then called Major Bush the Collector (who was witness to all our transactions) to our assistance, and in his presence I gave him the certificate, when he renewed his bond and gave me an article of agreement approved of and witnessed by Major Bush, by which he bound himself to give me immediately on his appointment a power of attorney to draw from the treasury of the United States such part of his salary as I should demand. I did not think it necessary to state all those circumstances in the certificate, because that I believed that Your Excellency having had some hint of the debt due me (from whom I knew not) unfavorable to the Major, only wished to know from me whether he had acted honorable with me or not in respect to that debt, and I firmly believe that he has done, and would at any time do every thing in his power to comply with his engagements.

But my mentioning some circumstances in my private letter to Mr. Vining which were not in the certificate (and which Mr. Vining well knew before if his memory has not deceived him) have been apprisd as contradictory to the certificate, and I believe it will appear upon a review of the Letter that I have not stated that Mr. Anderson had given me a power of attorney but that he had agreed to give me one to draw a certain part of his Salary.

I must therefore request your Excellency to believe that when I mentioned in my letter to Mr. Vining, that I had not certified all the truth (tho’ an unhappy expression) I only intended to convey the Idea that I had not certified all the particulars mentioned in this letter, (which particulars Mr. Vining well knew) because I thought them unnecessary. I am indeed sorry that my letter to Mr. Vining was shewn to the Senators of this State as I did not wish to give persons who were not my friends an opportunity of saying anything more to my disadvantage.

I hope therefore that what I have now said will reconcile this apparent contradiction of which so much has been said and shew that I wrote nothing with a view of deceiving your Excellency, or of injuring an individual.

I should have been much hurt by hearing myself accused by my Equals of a crime of which I hold myself incapable. Your Excellency may then judge of my uneasiness when I found a report from the Secretary of State, certifying that I had contradicted myself. I hope it will be viewed by you Sir in a different light and that Major Andersons virtue will highly justify all that I have said or believed of him as well as your Excellencys confidence in him.

I have now to request if after reading this Letter there should remain in Your Excellency’s breast a doubt to my disadvantage, that I may be honored with an interview.—Your Goodness Sir I am convinced will forgive me the trouble I have given you in reading this letter in which I have endeavored to acquit myself of the duplicity of which I have been accused and of which I hope I stand acquitted by Your Excellency.

There was no answer and no interview. Seven months later Jaquett went to Philadelphia and again appealed for an opportunity to justify himself. The answer that Tobias Lear gave in Washington’s name was cold and final:47

I am commanded by the President to inform you, that he has neither time nor inclination to enter into an investigation of the affair between Major Anderson and yourself. And the President observes, that if your conduct in the matter has been such as was satisfactory to yourself, he has no cause to be dissatisfied with it and further, if the President was inclined to go into the particulars of the affair, his having returned all the papers &c. which were laid before him respecting it, has put it out of his power to form a precise opinion upon it.

How much of the language and tenor of this communication should be attributed to the secretary and how much to the President cannot be known. But, quite aside from its tone of cold finality, the note was both imperceptive and inaccurate. The issue, first of all, was not between Anderson and Jaquett but between Jaquett and his government. The question was whether the plea of a citizen for rectification of an injury should be heard by the Chief Executive who, if an injury had been committed, was ultimately responsible for it. What Jaquett had asked was an opportunity to defend himself against a charge that—with far better grounds than he could have known—he believed and unequivocally declared to be unjust. His sole complaint was that of a citizen who believed that his character had been traduced by a high officer of government. In the second place, as Lear should have known, all of the documents relevant to Jaquett’s grievance had not been returned. The documents Anderson had received back were letters of testimony and certificates recommending him for office. These had nothing to do with the immediate issue. All of the evidence on which the adverse opinion had been founded was still available for placing in juxtaposition the statements of accuser and accused. Finally, though the President now chose to stand aloof and to insist that it was “out of his power to form a precise opinion” on the question, the simple fact is that both he and the Secretary of State had already committed themselves to an opinion. That opinion, being altogether ex parte, had given the official stamp of approval to Anderson’s impugning of Jaquett’s veracity. It was that opinion that had committed the government and thus exposed it to the legitimate request of a citizen to be accorded a hearing. All that this officer with an exemplary record in defense of the nation professed to seek by way of indemnification was that, in the eyes of his former Commander-in-Chief, he be permitted to stand acquitted of the charge of duplicity. This, under the circumstances, was not much to ask. But Jaquett was obliged to return to his ancestral farm and live out the days of a long life without ever knowing that the President had fully agreed with the Secretary of State in estimating the nature of his testimony as contradictory and its value as nothing. This was precisely what the successful candidate had sought to achieve, using means that—on the face of the evidence available to both officials—should have been sufficient to raise in their minds grave questions about his fitness for judicial appointment. For, whatever other qualifications Anderson may have possessed, his own letters in seeking the office reveal beyond question that candor, impartiality, and a sense of justice were, in this instance at least, conspicuously absent.

It is understandable that Washington should not have wished to reopen the troublesome issue even to rectify a palpable injury. But the manner of rejecting the plea of an old soldier seemed to reflect a growing sensitiveness to criticism that was to become one of the dominant characteristics of his administration. Political considerations, too, were evidently involved. The two Delaware Senators who had supported Anderson were strong Federalists, and one of the most revealing statements in Jaquett’s letter is that George Read and Richard Bassett were not among his friends. His own ardent support of the whiggish doctrines of the Revolution was well known. As an officer of the Delaware Society of the Cincinnati, he doubtless had an influence in causing even that body—unlike its counterpart in most other states—to be “full of Republican spirit.”48 The fact and the manner of Washington’s rejection of his appeal can scarcely have diminished the natural tendency of Jaquett to gravitate toward the Jeffersonians. There is no evidence that he ever placed responsibility upon anyone except the Secretary of State for the report that seemed to him so unfair. But, exactly a decade later, it was to Jefferson as President that he appealed because of his “known attach[ment] to the principles of [the] Revolution and to those men who were the firm and active supporters of it.” Once again, unsuccessfully, he sought office under the national government. He gave as his references John Dickinson and Joseph Anderson, now Senator from Tennessee. The latter, he stated, had known him “in the respective Characters of Citizen and Soldier.”49 A month earlier, immediately after Jefferson’s inauguration, Anderson had in fact written to the President recommending Jaquett for the vacancy caused by the resignation of Allen McLane as Collector of the Port of Wilmington. “He served as an officer in the Delaware Regiment through the whole revolutionary War,” wrote Anderson, “supported a fair Character, and has never appostatized from his former Principles.”50

One of the significant facts of a case marked by indecisive administrative action from beginning to end is that the President, on a judicial appointment of some consequence, did not see fit to turn to the Secretary of State for advice until the last moment. In addition to the motives influencing Washington, Jefferson thus had others for not wishing to reopen the issue. Because of his unfamiliarity with the history of the case and under the extraordinary pressures then existing—including preparation for the reconvening of the Senate called to meet on the 4th of March—the mere task of reading and analyzing the partially disclosed evidence was a formidable one. The preponderance of testimony favorable to Anderson coming from political sources that commanded respect, to say nothing of the difficulty of finding another candidate of suitable qualifications at a moment’s notice, could have caused Jefferson to seize the only option that seemed to be open and to recommend that the commission be delivered. A contrary course would also perhaps have brought on unprecedented questions with respect to a candidate already confirmed. All of these factors, however, leave unexplained in any satisfactory manner why, in consummating an appointment against which so many warning flags had been raised over so long a time, it was necessary for the President and the Secretary of State to accept Anderson’s indictment of Jaquett’s testimony when the interested accuser was so patently guilty in equal measure of the same charge.

Whatever the answer and despite the tone of confident assurance in the opinion submitted by Jefferson, it is nevertheless certain that he at least had penetrated the screen Anderson had erected to obscure the deficiencies in his own testimony. It is equally certain that he had arrived at his recommendation to the President only after experiencing genuine doubt and hesitation about the course to adopt. Two entries in his brief but invaluable register of public letters, opinions, and reports as Secretary of State reveal the existence and the stages of his doubt even if they do not disclose the reasons for it. As shown by interlinear alterations, the first of these entries marked off two separate advances in his deliberations and the second indicated his final conclusion. As originally phrased, the first entry read: “on revocation of a nomination approved by Senate in the case of M[ajor? Anderson].” As altered by interlineation, it read: “draught of a message on revocation of a nomination approved by Senate,” &c. This first entry was not canceled but beneath it Jefferson inserted the second and definitive one: “Opinion Th: J. in favor of Anderson.” No document has been found to correspond to any save this final stage of Jefferson’s wrestling with the dilemma.51 But these brief and highly significant entries in the register prove that Jefferson originally drafted a report to the President on the case. Its recommendation was almost certainly negative on the question whether to deliver the commission to Anderson and very likely it discussed the alternative courses open to the President. This inference is supported by the conclusive meaning of the first entry as revised, for the revision shows that Jefferson, abandoning the idea of a simple communication of advice, had advanced to the stage of drafting a message for Washington to send to the Senate. This message, of course, could have had no other object than that of announcing the “revocation of a nomination” already approved. It must, therefore, have stated the reasons for such action. It must also have suggested that the Senate concur by revoking its confirmation. These inferences as to procedure are rendered plausible not merely by the fact that the message was drafted and registered but also by Jefferson’s known deference to the legislative branch in matters involving its constitutional prerogative.

But this marked the ultimate point in his progress toward an official act of annulment. Having arrived there, Jefferson then backed away—perhaps at the same time destroying his original report to the President and the draft of the message to the Senate. Several foreseeable consequences, actual or potential, may have induced this retreat. Possibly, on reading the testimonials favorable to Anderson, he came to doubt the validity of a conclusion based on obviously incomplete information. Perhaps influential support for the candidate from Delaware, New Jersey, and Pennsylvania caused him to give due weight to the political consequences. But these factors appear relatively minor by comparison with another specter that must have disclosed its shadowy outlines in the distance. Suppose the Senate, already sensitive about its right to advise and consent, should refuse to revoke its confirmation even when the President sought to recall his nomination? Suppose that Anderson, urged on by offended political sponsors, should resort to litigation to claim an office for which all constitutional requirements had been met by the two branches of government authorized to participate in the appointment? Suppose, abandoning his plea for compassion, he should support such a legal claim on the not implausible theory that the sealing and delivery of a commission after confirmation was a mere administrative act on the part of the Secretary of State which he could be compelled to perform by a writ of mandamus?

Thus, along the path of his thinking marked out by these brief fragments in his register of state papers, there loomed at least the possibility of a truly formidable conflict over the constitutional powers of all three branches of government. It is, of course, scarcely conceivable that the Supreme Court under Jay could have engaged in such an epic contest with the Presidency under Washington as emerged a dozen years later when this doctrine of compelling by mandamus the issuance of a signed commission found its obiter expression in Marbury v. Madison.52 Even if judicial construction of the constitutional grants of power to the President in nominating and to the Senate in confirming appointments were not involved, a rancorous debate on the exercise of these powers was still within the realm of possibility, with no assurance that the discussion could be confined to the closed sessions of the Senate. The mere threat of a collision on questions of such moment, coming so soon after the bitter confrontation on the constitutionality of the national bank bill, evoked far graver considerations than any likely to be involved in the consummation of a dubious appointment to office.

In the face of such actual and potential dangers, the Secretary of State retreated from his advanced position. Locking his doubts in his own bosom, he assumed an air of assurance and dispatched the seemingly confident report to the President. But two conclusions emerge inescapably from this clearly delineated route of advance and retreat. First of all, whatever the substance and phraseology of the proposed message to the Senate, it could only indicate Jefferson’s belief that Anderson had revealed himself as unfit for judicial office. The mere act of drafting such a message testifies to the strength of his conviction, even though it was formed upon a hasty reading of only a portion of the one-sided evidence. Second, the Secretary of State had displaced this conclusion with one of a contrary tenor without disclosing the fact to the President. It is impossible to say how far this putative opinion influenced Washington. What we do know is that he received it as being merely corroborative of a verdict he himself had already “formed upon a complete view of the circumstances.”53 This supposed opinion that concurred with his own ran also with “the whole current of evidence … produced in favour of Mr. Anderson.”54 But it was flatly contradicted by the concealed opinion that had been formed on a more penetrating analysis of the testimony. The Secretary of State, choosing his words with meticulous care, had confined his report solely to a descriptive summary of the tendency of the evidence, avoiding by the slightest hint any disclosure of his own view of the merits of the case. In this very uncharacteristic action he had submitted a report but not an opinion, the truth but not the whole truth.

Perhaps, therefore, the real significance of the episode lies in the light it casts on the manner in which the President had sought the advice of the Secretary of State. The distant and reserved posture that Washington had adopted seems characteristic and in this instance it undoubtedly caused Jefferson to be confronted with such a belated and admittedly incomplete view of the circumstances as to foreclose all other alternatives. Jefferson had not been in office more than a few months before he learned that to press an argument too far with the President was to nullify its effect, particularly in matters of appointment to office.55 In this respect and in others involving relationships with Cabinet officers, Jefferson may have benefited during his own Presidency from such a mismanaged case as Joseph Anderson’s eager search for office. Perhaps experience thus fortified inclination in prompting the adoption of a contrary style of administration and a less distant relationship with Cabinet advisers.