James Madison Papers

To James Madison from Edmund Pendleton, 3 July 1789

From Edmund Pendleton

Virga. July 3d. 1789.

My Dear Sir

Yr. Obliging favr. of the 21st. past,1 is just come to hand. The question concerning the power of removing Officers was important, and ’twas much better to investigate it fully, tho’ at the expence of a weeks discussion, than take a wrong step in it. I concur in Sentiment with the Decision. The Argument that the Power of removal should follow that of Creation, has weight, but is abundantly overballanced by the Objection that an Executive Officer might intrench himself behind a party in the Senate, setting at defiance the Control of the President & impeachment of the House of Representatives. Permit me to add that I have pleasure in the General complexion of yr. proceedings.

I have reced. from Colo. Lee2 the Bill for arranging the Judiciary & have, as he requested, sent him a state of amendments to it, of wch. the inclosed is the rough; but have taken the liberty of givg. my Opinion, that like the fabled Cucumber, with any Seasoning, it will be best thrown away.3

This department is the Sore part of the Constitution & requires the lenient touch of Congress. To quiet the fears of the Citizens of being drag’d large distances from home, to defend a suit for a small sum, which they had better pay however unjust, than defend with success, is as worthy of attention, as to provide for the speedy Admon. of Justice to honest Creditors.

The Circuit Courts I suppose intended as an Accomodation of these inconveniences, but I think an exceptionable one. The fatigue of the Circuits & other accidents, will generally reduce the Judges to two, a number unsatisfactory to be appealed to for final acquiescence; and to the Supreme Court, they will go at last. Their division in Opinion, wch. must Often happen, will occasion delay, additional trouble & expence—& in appeals from the District Court, if that Judge be one in the Circuit, the Appellee will have a decided advantage.

The District Court will prevent Citizens from being sued out of their state but not from being drawn to great distances within it, which in large states is very injurious, & gave birth to our District Court law. A man may be called from our Monongalia or Washington Counties to Richmond, & successfully defends an unjust suit; he must then pursue his defence into the Circuit Court, & from thence to the Supreme Court; and this, not in cases rarely happening, but in those which will probably be for some time the principal business of the fœdral Courts, I mean the british debts, wch., if for £15. Virga. money, may undergo that operation. The Judgmt. of a single Judge will not be acquiesced in, & appeals will be frequent. The expence of an Additional Judge for each State, is some objection, tho’ not weighty, if utility required it.

Permit me then to ask why is this project necessary? And if it be not a Counter birth to the offspring of our late Assembly, unreasonable jealousy? Have we any Security that Judges of fœdral appointment, will possess Superior ability or Integrity, to those called into that duty by the States? If not, why may not all suits within the Appellate Jurisdiction, be Originated in the state Courts, & from their last resort allow the Appeal to the Supreme Court for large Sums? The Judges of the State Courts are equally independent, take the same Oaths in Spirit, & have the same law to direct their decisions, as the Fœdral. They have their Courts so model’d, as to render Justice Speedy to the Creditor & easy to the Dr., the trial being near his home, & the Admon. so divided as to produce dispatch. The mode will be familiar & easy, & quiet the people’s fears; and I submit it to my Representatives, whether this will not be, at least, the best experiment to make in the Infancy of our Government.

The Circuit part of the Plan suggests a thought worthy of Attention; whether the Supreme Court might not sit in each of those circuits, instead of being Stationary. I suppose one Session a year might be sufficient, and it would give great releif, even in cases of Appeals, & admit perhaps of their being allowed upon a lower scale of Value.

Pray present my Complts. to Mr. Page, & communicate these Sentiments, as I am tired, & can’t do my self the Pleasure to write to him this Post.

My concern for the Presidents illness, & joy at the prospect of his recovery, are proportioned to the Interest we all feel in his happiness.

I am in Sentiment with you that the greatest danger of encroachment is to be apprehended from your house—their being the immediate choice of the people, will, however improperly, produce assumptions of their Original undelegated powers, & Occasion liberties to be taken there, wch. other bodies will not venture on. The reasoning of Publius on their influence has shaken my Objection to the Senate’s being the Executive Council, since it may perhaps require the Union of those two branches to Ballance the Power of the other branch.4

I have reced. the Amendments from Mr. Page & see no Objection to them.5 I am under great Obligations to that Gentn. as well as you for the papers sent me. Your hand writing on the Cover of those papers, announces yr. health & gives me pleasure.

My nephew is just from Orange & left our friends there well as Usual. The Appeals & G. Court were in Session when yr. Oath appeared, we had heard it was not to be taken by two Gentn. of the latter, but all took it.6

We have a very dry season, good crops of wheat, but a bad prospect for corn & tobacco. Adieu! My Dr. Sr. Yrs.

Edmd Pendleton


Amendments proposed to the Bill “to Establish the Judicial Courts of the United States.”7

Page 1. l. 38. leave out “and shall be called a District Judge.” as unnecessary.
Pa. 2. l. 9. after discretion, insert “in cases of Admiralty & Maritime Jurisdiction, or the trial of Offences committed on the High Seas.”
Note. Occasional, unfix’d Courts in other Instances are unusual & may be inconvent.
l. 11. leave out “Alternately at Portland & Portsmouth beginning at the first” & fix it at one
15. same Amendment as to N. Jersey.
19th. same —————————— as to Virginia
22. same as to Georgia.
Note. The Division or the Removal of the Records seem evils of greater Magnitude than holding the Courts at one place; being held Alternate there is a Chance of Carrying the uppr. people to Wms.burg & the lower to Richmond.
23. leave out from “first[”] to the end of the Clause & insert “But in cases of Admiralty & Maritime Jurisdiction, or the trial of Offences committed on the high Seas, the Courts shall be held at such place in each State as the District Judge thereof shall direct.”
33. leave out “the before mentioned District” & insert “the above named United States” so they are called & divided into districts, but not mentioned as comprehending one District.
44. leave out “Districts” & insert “District” or one District Judge may sit in another.
Page 3. l. 12. &c same amendments to fix Courts at one place.
4. l. 11. The Oath is rather short; but is it not too much confined when they are to judge according to the Constitution & laws of the United States, wch. make only part of the law they are to judge by—leave out those words & insert “according to law.”
l. 22. after “Quakers” insert either “and Menonists” Or “and others who religiously scruple the taking of an Oath.”
29. from “Seas” to the word “except” in the 33d. line, is to me wholly uninteligible
46. what is meant by a Tort? Is it intended to include suits for the Recovery of debts, or on breach of Contracts, as a reference to the laws of Nations & Fœdral treaties seems to indicate; or does it only embrace Personal wrongs, according to it’s usual legal meaning, or violations of Personal or Official privilege of foreigners? In the last case it will probably be unexceptionable, in the former, very inconvenient.
The next clause seems to take in the debts & may serve to explain the former.
Pa. 5. l. 10. By mixing foreigners or Citns. of another State, with cases in wch. the United States are parties, do you not give Original Jurisdictn. to the Supreme Court in the Case of foreigners &c if the value exceed 500 Dollars, contrary to the Constitution? or does the words “as the Case may be,” exclude that Constructn.?
24. leave out “or in which he shall be found at the time of Serving the writ”—Or it will defeat the whole clause. Perhaps it may be not amiss to Add, “unless upon legal process against his person & Estate in the District of his residence, it shall be returned by the Marshall, that neither can be found to inforce an Appearance to the suit.” to reach fugitives.
44. leave out from the word also to Was in the 45th. line & insert “giving Special bail, if such” wch. Security for Appearance don’t reach
46. after surety add “& bail.”
leave out dismiss further, & insert “Certify the same together with the.”
47. after Cause add “to the Circuit Court”
Pa. 6. l. 3. leave out “still hold to respond the final Judgment” & insert “be discharged” the Special bail being substituted.
Pa. 6. l. 20. leave out all & insert “in these Cases & in all other Original.”
30. Why give the Supreme Court exclusive Jurisdn. in suits agt. Consuls & their Domestics, who may be sued in a remote state, & rather chuse to defend them selves there, than go to the Supreme Court; or he might prefer the District or Circuit Court; would it not be better to give Concurrent Jurisdns., & provide liberty to the Deft. to move it to either Court if he chose it—as in the Case of other foreigners.
38. between all & Actions insert “Original.”
Pa. 7. l. 8. After Commitment, insert “returnable either before himself on a certain day & at some fixed place within the district of Commitment; or before the next Circuit or District Court of such District” otherwise a Justice of the Supreme Court having unlimited Jurisdictn., may remove a Prisoner from Georgia to New Hampshire, or to the Seat of Congress.
14. This Power to the Courts of law to excercise a delicate branch of the Chany. Jurisdiction, upon motion, & without the cautionary forms adopted by the Chany., I am apprehensive will introduce much confusion & perhaps Oppression—however experience will best shew it.
Pa. 10. l. 4. leave out from Courts to Or in the 5th. line
8. leave out from States to Or in the 9th. line
12. leave out from States to May in the 15th. line
it is supposed to be the nature of the question & not the event of decision wch. makes the Appeal proper. If an improper Judgmt. is given in favr. of the Prefference to fœdral treaty or laws, the party injured should have the same right to Appl. as the other, in case of a Contrary Judgmt., otherwise the remedy is Partial.
Qu. should there not be some limitation of the sum
for will not the Clause embrace the Case of every British Creditor? And is it intended that they may drag every Dr. for the most triffling sum first thro’ the State Courts & then by Appeal to the seat of Congress.
Pa. 12. l. 29. leave out “De Talibus Circumstantibus[”] & insert “of the Bystanders duly qualified.”
41. leave out from District to Or in the 42d. line
If the Witness lives out of the District he seems equally unamenable by the District Court process whether he lives At the ditance of 100 miles or less; and that I suppose the ground of taking his depo.
The Courts will soon be tired of Oral testimony in Chany.
44. leave out From District, to before in the 45th. line
Page 15. l. 17. between the words any & Offence insert “Capital[”]
21. leave out Crime or & place “Capital”
as I suppose it is not intended to give a Judge of the Superior Court, or a Justice of peace a power to take up & Commit for trial, every Citizen who is suspected to have violated the penal laws of Congress, & incurred a pecuniary fine.

RC and enclosure (owned by Richard Gilder, Jr., New York, N.Y., 1990). RC docketed by JM. Extract of RC, with notes, printed in PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 12:277–78.

1PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 12:251–53.

2Senator Richard Henry Lee of Virginia was a member of the committee that wrote the judiciary bill. Lee sent Pendleton a copy of the bill as presented to the Senate for debate (DePauw et al., Documentary History of the First Federal Congress, 5:1166).

3Pendleton recalled an old English saying preserved by James Boswell: “that a cucumber should be well sliced, and dressed with pepper and vinegar, and then thrown out, as good for nothing” (Boswell, The Life of Samuel Johnson, LL.D., Including a Journal of a Tour to the Hebrides [5 vols.; London, 1831], 2:515–16).

4For JM’s argument that the House of Representatives’s “power over the purse” made it equal to “the utmost degree of firmness that can be displayed by the federal senate or president,” see The Federalist No. 58 (PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 10:530–31).

5For the amendments to the Constitution proposed by JM, see Madison at the First Session of the First Federal Congress, 8 Apr.–29 Sept. 1789 (PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 12:57–59).

6“An Act to regulate the Time and Manner of administering certain Oaths [to uphold the U.S. Constitution]” was signed into law on 1 June 1789 (U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:23–24).

7It appears that JM made little or no use of Pendleton’s suggestions for amending the judiciary bill in the House of Representatives. A comparison between the bill as printed for the House’s use and the text of the law shows no specific changes in the law’s wording that correspond to the enclosed criticisms. JM participated in the debate over the bill in the Committee of the Whole but made no recorded attempts to amend the phrasing of the bill (A Bill to Establish the Judicial Courts [New York, 1789; Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 45657]; U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:73–93; Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 1st Cong., 1st sess., 843–44, 851).

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