To James Madison from Richard Peters, 26 February 1793
From Richard Peters
26th. Feby 1793.
Dear Sir
Always attentive to your Requests I have looked over & considered the Bill1 about which you spoke to me. Time is too short to correct it. Yet I rather retract this Idea, not being in the Predicament of one of our State Circuit Judges, who wrote, a few Weeks ago, a long Letter to our Assembly, & told them “his Time was so prodigiously taken up that he had not Leisure to shorten his Letter.” I should correct the Bill by striking out two thirds of it.
All that is really necessary & now pressing is, by a short Clause, to give to your Circuit & District Courts the Power of appointing Commissioners to take Bail. This will remedy, every Inconvenience now requiring Redress & you may amuse yourselves when you have more Leisure with the other Matters & entitle them Legal Sports. The Circuit Court should have this Power, for civil Causes particularly, & the District Court for Revenue Cases, but in both it may be generally vested. It is hard that a Defendant should be brought down from a Distance merely to give Bail.
As to the Affidavit Business & Endorsement of Prosecutors it will embarrass the US in Prosecutions & Pltffs in civil Causes so as more frequently to defeat Justice in the Pursuit of fair & honest Demands, than to protect Defendants from Oppression.
The 8th. & 9th. Clauses are proper enough & some Things may be picked out of one or two other Clauses, that will not be found wholesome as they are now mixed with morbific Matter.
The 7th. Clause is now & may be productive of great Abuses & Mischiefs. It is happy that it did not pass long enough before Blanchard’s Aeronautic Voyage & Descent.2 For if our Citizen Peasants in the Pine Barrens of Jersey had had Notice of such a Law, they would have supposed the Balloon to be a federal Vehicle laden with Ca. fa’s, fi: fa’s3 & Copies of Judgments against the Bipeds & Fellow Mortals of Jersey, obtained, for ought they knew, by Default, in Georgia or New Hampshire. Blanchard would have stood no more Chance among them than would an Aristocrat or Monarchy Man in the Section of Marseilles at Paris. They would have shot him (not having the Convenience of the Lanterne) not as a Post Master, but a Post Marshall. Forever after, their Fears would be kept alive by Flights of Crows, Wild Geese or Pidgeons, which they would suppose were other aerial Mails, filled with Alias & Pluries4 Castigations. Happy Blanchard! Thy Descent from the Clouds was more fortunate to thee than if it had been from Kings! Forgive my laughing a little on a grave Subject. Hæ Nugæ ad seria ducient.5 Believe me very sincerely and affectionately Yours
Richard Peters
RC (DLC). Docketed by JM.
1. On 1 Jan. “a bill to explain an act entitled, ‘An act to establish the Judicial Courts of the United States,’ in respect to taking bail in criminal cases” was presented in the House, which passed it (as amended by the Senate) on 20 Feb. The president approved it on 2 Mar. (, 2d Cong., 2d sess., 770, 884; , I, 333–35).
2. On 9 Jan. 1793 Jean-Pierre-François Blanchard made the first balloon ascension in America, taking off from the Washington prison yard in Philadelphia and landing fifteen miles away “eastward of Woodbury” in New Jersey (Dunlap’s Am. Daily Advertiser, 10 Jan. 1793).
3. Capias extendi facias—a writ of execution in English law against debtors to the crown—commanded a sheriff “to ‘take’ or arrest the body, and ‘cause to be extended’ the lands and goods of the debtor.” A writ of fieri facias commanded a sheriff “to levy and make the amount of a judgment” from the debtor’s goods and chattels (Black’s Law Dictionary [5th ed. rev.], pp. 189, 565).
4. Writs issued when “other commands of the court have proved ineffectual” (ibid., pp. 66, 1039).
5. “Hae nugae seria ducent”: “These trifles will bring [that friend] into serious trouble,” Horace, Ars Poetica, line 451 (Horace: Satires, Epistles, and Ars Poetica, Loeb Classical Library [1970 reprint], pp. 486–87).