1. The dating of this letter is based on Dana’s reply of 31 July, below.

2. Throughout April and May, a Senate committee labored to draft the judiciary bill, thereby implementing Art. 3 of the Constitution and establishing the federal court system. The legislation’s chief architect was Oliver Ellsworth of Connecticut, a Federalist whom JA found to have “the clearest head and most dilligent hand” during his long term of public service. Ellsworth’s plan placed one chief justice and five associates on the Supreme Court; in addition, a district court judge and two Supreme Court justices would serve on each circuit court. The bill created thirteen judicial districts in the eleven states that had ratified the Constitution thus far, with Massachusetts and Virginia allotted an additional district court each for, respectively, Maine and Kentucky. It established several new offices, including U.S. and state attorneys general, and federal and deputy marshals. The bill also laid out the court procedures to be used throughout the entire U.S. judiciary. Significantly, the bill upheld the Supreme Court’s right of judicial review, which allowed justices to reexamine state court decisions when federal law was at issue. Defendants facing lawsuits from citizens in other states now had the option to remove their cases to a federal circuit court.

Richard Henry Lee of Virginia introduced the bill in the Senate on 12 June. It was printed twice so that members of Congress could solicit and incorporate their constituents’ revisions. JQA, who recalled “a transient sight of a copy,” echoed popular Federalist complaints that the Supreme Court was too small and the district judges too powerful. Others worried that the boundaries between state and federal jurisdictions were ill-defined and therefore prone to friction. Another vocal opponent, William Maclay of Pennsylvania, observed: “It certainly is a vile law system, calculated for expense and with a design to draw by degrees all law business into the Federal courts. The Constitution is meant to swallow all the State Constitutions by degrees, and thus to swallow, by degrees, all the State judiciaries.”

During eighteen days of debate, senators finely parsed the bill’s language, mindful of constitutional interpretation and the weight of precedent. Some, like Paine Wingate of New Hampshire, expressed concern about what it would cost to build the court system and to cover the great expense of judicial salaries. After several revisions, the judiciary bill passed on 17 July in a vote of 14 to 6. It then stalled for a month in the House of Representatives, where members were locked in fierce debate over the revenue system and proposed amendments to the Constitution. They began discussion of the judiciary bill on 24 Aug., focusing on questions of southern jurisprudence and the federal courts’ ability to enforce payment of prewar debts to British creditors. The House made few substantial changes, however, and passed it on 17 Sept. without a roll call vote. George Washington signed what became the Judiciary Act of 1789 into law one week later. The president, who described the U.S. judiciary to John Jay as “that department which must be considered as the Key-Stone of our political fabric,” immediately sent his list of judicial nominees to the Senate (Bickford and Bowling, Birth of the Nation description begins Charlene Bangs Bickford and Kenneth R. Bowling, Birth of the Nation: The First Federal Congress, 1789–1791, Washington, D.C., 1989. description ends , p. 45–49; AFC description begins Adams Family Correspondence, ed. L. H. Butterfield, Marc Friedlaender, Richard Alan Ryerson, Margaret A. Hogan, Sara Martin, Hobson Woodward, and others, Cambridge, 1963–. description ends , 8:383; 11:205; Maclay, Journal description begins Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791, ed. Edgar S. Maclay, New York, 1890. description ends , p. 117; U.S. Senate, Jour. description begins Journal of the Senate of the United States of America, Washington, D.C., 1789–. description ends , 1st Cong., 1st sess., p. 34, 42, 85; Annals of Congress description begins The Debates and Proceedings in the Congress of the United States [1789–1824], Washington, D.C., 1834–1856; 42 vols. description ends , 1st Cong., 1st sess., p. 812, 928–929, 2239–2255; Washington, Papers, Presidential Series description begins The Papers of George Washington: Presidential Series, ed. W. W. Abbot, Dorothy Twohig, Jack D. Warren, Mark A. Mastromarino, Robert F. Haggard, Christine S. Patrick, John C. Pinheiro, David R. Hoth, and others, Charlottesville, Va., 1987–. description ends , 4:75–78, 137).

3. Although Dana, Nathan Cushing, and Theophilus Parsons were not among Washington’s 24 Sept. nominations to the U.S. judiciary, JA’s overall suppositions were correct. The president nominated William Cushing as an associate justice on the Supreme Court, John Lowell and David Sewall as the district judges for Massachusetts and Maine, and John Sullivan as district judge for New Hampshire; all were confirmed by the Senate on 26 Sept. (U.S. Senate, Exec. Jour. description begins Journal of the Executive Proceedings of the Senate of the United States of America, Washington, D.C., 1789–. description ends , 1st Cong., 1st sess., p. 29, 30).

Nathan Cushing (1742–1812), Harvard 1763, of Scituate, formerly an admiralty judge, was appointed to the Mass. Supreme Judicial Court in early 1790, amid criticism from JA, JQA, and others that he lacked the eloquence and experience necessary for the position. He served until his resignation in 1800 (Sibley’s Harvard Graduates description begins John Langdon Sibley, Clifford K. Shipton, Conrad Edick Wright, Edward W. Hanson, and others, Biographical Sketches of Graduates of Harvard University, in Cambridge, Massachusetts, Cambridge and Boston, 1873–. description ends , 15:376, 378; Alden Bradford, Biographical Notices of Distinguished Men of New England: Statesmen, Patriots, Physicians, Lawyers, Clergymen, and Mechanics, Boston, 1842, p. 121).