To John Jay from Robert R. Livingston, 21 March 1801
From Robert R. Livingston
CLERMONT, 21st March, 1801.
SIR,
THE Chief Justice having transmitted to me a copy of your letter of the 18th instant, addressed to the Chancellor, Chief Justice and Judges of the Supreme Court, on the subject of a difference of sentiments that prevails between your Excellency and the other members of the Council of Appointment,1 I regret that my distance and the state of my health does not permit me to2 consult the Judges of the Supreme Court on so interesting a subject as that proposed by your Excellency to our consideration. These circumstances compel me to state my own opinion without knowing how far it may coincide with that of the Judges.
The constitution not having formed from the Judiciary an advisory Council for the other branches of government, it must have intended that they should lend their support, to or discourage the usurpation of either, only in their judiciary capacity.3 In any other their opinions would have more weight, or be more binding upon the party asking, or opposed to it, than that any of other gentlemen of equal standing in the profession of the law.
If, in controversies between different members of the Executive, the Judges are bound to decide extrajudicially, they are equally bound to give their opinions on the requisition of the Legislature. It is obvious, Sir, that this would by degrees lead them4 into political controversies, incompatible with the duties of their offices, and convert them into mantelets to receive the shot, while the leaders of parties5 fought securely under their protection. But Sir,6 if the Judiciary may constitutionally be called upon by the Executive or Legislative branches of Government, what gives the Chancellor and Judges of the Supreme Court an exclusive right to interpose their opinions? In a constitutional sense, the Judges of one Court are no more the Judiciary than those of another: tho’ the Judges of the Courts of Common Pleas have a limited Jurisdiction, yet they form an important part of the Judiciary.7 The members of the Senate make a large majority of the Judges in the last resort:8 If the dignity of the Court and its constitutional competency is to determine the doubts of the Executive, the application should certainly be made, rather to the Court of Appeals in the last resort, than to the Chancellor, and to the Judges who are supposed capable of correcting the errors of the Supreme Court, than to the Justices of the Court. Or have the Executive or Legislative a right to select from the Judiciary the individuals by whose judgment they mean to be guided? If one branch of Government may do this, the other may also make its selection, and thus the Judges be set in array against each other.
These,9 Sir, are the general outlines of my objections to taking upon me to reply to the important questions put in your Excellency’s Letter. I must solicit your pardon for the hasty, and incorrect manner in which they are put together, while the that is to carry this is waiting.10 I remain, Sir, with the highest respect and esteem, Your Excellency’s most obedient humble servant,
ROBERT R. LIVINGSTON.
His Excellency JOHN JAY, Gov. &c. &c.
PtD and C, embedded in JJ’s Message to the New York State Assembly, 28 Mar. 1801, below. Dft, NHi: Robert R. Livingston (EJ: 00883); reprinted and embedded in JJ’s Message to the New York State Assembly: Albany Gazette, 30 Mar.; Albany Centinel (supplement), 31 Mar., DeWitt Clinton Broadside Collection, NAll; American Citizen, Commercial Advertiser, and Mercantile Advertiser (all New York), 2 Apr.; Spectator (New York) 4 Apr.; Philadelphia Gazette, 6 Apr.; Washington Federalist, (Georgetown), 10 Apr.; Hudson Gazette, 14 Apr. 1801; N.Y. Assembly Journal, 28 Mar. 1801, 24th sess. (1800–1801), 248; NYGM, 2: 481–83.
RRL’s letter is in reply to JJ to the New York State Chancellor (Robert R. Livingston), Chief Justice (John Lansing Jr.), and Associate Justices of the New York State Supreme Court (Egbert Benson, James Kent, Morgan Lewis, and Jacob Radcliff), 18 Mar. 1801, above. See also replies to JJ’s letter by John Lansing Jr., 26 Mar.; and John Lansing Jr., Egbert Benson, James Kent, and Jacob Radcliff, 26 Mar. 1801, both below.
1. JJ to the New York State Chancellor (Robert R. Livingston), Chief Justice (John Lansing Jr.), and Associate Justices of the New York State Supreme Court (Egbert Benson, James Kent, Morgan Lewis, and Jacob Radcliff), 18 Mar. 1801, above.
2. Here, in the Dft, RRL wrote “travel thro’ at this moment to Albany prevents my consulting with the Judges of the supreme court”.
3. In the Dft, RRL wrote the following for the beginning of this paragraph: “The Constitution ^not^ having provided for ^created It in^ the Judiciary the power to give an extrajudicial opinion ^an advisory Council to the execution.^ They can not I conceive be with propriety ^be^ called upon for one ^an extrajudicial opinion^”.
4. Here, in the Dft, RRL wrote “contrary to the nature of their affairs”.
5. Here, in the Dft, RRL wrote “would skirmish in safety”.
6. Here, in the Dft, RRL wrote “if a right exists in the executive to call the Judiciaryges ^extrajudiciously^ to its defence in case whenever it supposes itself attacked it will be a question necessary to enquire who are the judiciary?”
7. In the Dft, RRL placed this sentence after the following one.
8. Here, in the Dft, RRL wrote “Can [illegible] the Executive select Courts individuals by whose opinions it will be governed? if they it can another branch of government may also present its own selection & thus the Judges be set in array against each other—”.
9. Here, in the Dft, RRL wrote “For these reasons Sir Tho my private sentiments on the subject your of your letter are well known I consider myself bound ^in duty^ to give no extrajudicial opinion on the questions put by your excellency letter.”
10. For more on JJ’s longstanding dispute with the Council of Appointment, and his attempts to resolve the issue, see the editorial note “Conflict with the Council of Appointment,” above.