James Madison Papers

To James Madison from James Fenner, 3 December 1810

From James Fenner

Providence Decemr. 3rd. 1810

I take the liberty of addressing your Excellency on a subject of some importance to the Citizens of this State, as well as to others, and on which some diversity of opinion seems to exist.

A few, very few, of the Republicans here, have recommended Mr. Robbins, of Newport, in this State, as Successor to the late Judge Cushing of the Supreme Court of the United States. I am told that he is spoken of in the recommendations as a republican and a friend to the present Administration. Of this fact, however, I do not speak with confidence, as the recommendations which have been transmitted in his behalf, were studiously concealed from me. This was done, I presume, under an impression, that I could not join in so gross an imposition on you, as to say, that he is either a republican or a friend to the present Administration. In this Idea his friends were correct. The fact is, if I know any thing of his predilections on governmental systems, that he is in principle a Monarchist, and is friendly to federalism in proportion to its tendency to Monarchy. I can readily account for the exertions of the few republicans here, to place Mr. Robbins on the Bench. He is Brother in Law to Mr. Ellery, the present Loan Officer in this District; and has contributed more, perhaps, than any other individual, to promote the schismatical projects of that Gentleman in this State. Mr. Robbins could do this without endangering a cause which he was desirous to support; for if those projects succeeded, what the Republicans should loose the federalists would gain. These movements, to be sure, did not correspond with the professions of Mr. Ellery, and perhaps on some future occasion I may explain to you the real motives which governed him. As, however, the services were rendered, Mr. E. in gratitude for them, and from his fraternal feelings, has shewn a willingness to have them compensated by an honourable and lucrative appointment. The few adherents of Mr. E. in this Town were induced to join him in recommending his Brother, some, from the same motives which actuate Mr. E. himself, and some from a belief that Mr. Robbins has really become a convert to republicanism. But since the discovery that a part, if not the whole, of the Supreme Bench in Massachusetts, with a principal part of the Bar in Boston, and the whole in this State, have united in nominating him for the appointment, the faith in his political principles has been much shaken. Indeed, it appears to me incredible that he should receive such support under a belief that he is friendly to the present Administration. I can say with confidence, of the Bar in this State, that with two or three exceptions, a phalanx more zealous & malignant against the present order of things and its friends here, does not exist. Of the Court & Bar in Massachusetts I know nothing but by reputation—and from that I infer that their feelings are the same.

My object, thus far, has been to prevent an imposition (if any has been attempted) in regard to the political sentiments of Mr. Robbins. I consider him, then, as a federalist, propounded for an appointment.

I should have been much pleased had David Howell Esq consented to be nominated as Successor to Judge Cushing, as he is unquestionably the most profound Lawyer in this State; but he positively declines that nomination. He is willing, however, to accept the Office of District Judge, if Mr. Barnes shall succeed to the seat of Judge Cushing. Mr. Barnes is equal in federalism, and in all other respects, to Mr. Robbins; but as I hear of no other Candidate in this Circuit excepting those Gentlemen, I consider them as equal federal competitors for republican favour; and on the supposition that one of them will receive the appointment, it is of consequence to the Administration and its friends here to whom the preference shall be given. If Mr. Barnes is promoted to the Supreme Bench, and Mr. Howell supplies his place, a mischief will be removed from the District, and a great gain afforded to the republican interest. If Mr. Robbins receives the appointment, Mr. Barnes will remain where he is, and we shall be doomed to receive as salutary medicine, a compound of Monarchical and federal notions.

I am of opinion also, that a friend to the Administration on the District Bench, would have it much in his power to restrain and curb the insolence of the Bar; and in his charges to the Jury, to give to the Administration and our republican Institutions at least fair play. This is a point of immense consequence in my estimation.

I therefore wish that Mr. Barnes may be raised to the Supreme Bench, and that Mr. Howell may be appointed District Judge.1 In this event there will be a vacancy in the Office of District Attorney, to fill which, I take the liberty to nominate John Pitman Jun Esq,2 a young Gentleman of unblemished reputation and very promising abilities, and who has uniformly exerted himself in support of the republican Administration.

You will pardon me, I hope, for this trespass on your patience. I had determined in the first instance to say no more than might be necessary to prevent an imposition; but on further reflection, verily believing that the arrangement which I have suggested would greatly promote the republican Interest, I felt it to be my duty to propose it. I have the honour to be, with the greatest respect, Your Excellency’s friend & Obt. Servt.

J. Fenner.

FC (RHi: Fenner Papers).

1The knowledge that Fenner had made such a recommendation to JM apparently provoked other local Republicans to address the president on the subject. Sometime in December 1810, Seth and Henry Wheaton, Henry Smith, Thomas Coles, and Christopher Ellery wrote to JM (DLC; 4 pp.), criticizing Fenner for his support of David Leonard Barnes, whom they described as a man of only “secondary” legal talents and “decidedly hostile” to the administration. The five signatories to this letter traced the origins of the political disputes in Rhode Island to the lingering influence of the “remnant of the antient anti-federal or paper money party.” In a postscript, they warned JM against Fenner’s purposes, namely that if Barnes were appointed to the Supreme Court, David Howell would become district judge, and “Mr. Dexter, Howell’s son in law, being Marshal, every thing will conspire to favour Mr. Fenner’s interests, at the expense of propriety and of justice.”

2John Pitman, Jr. (1785–1864), had graduated from Brown University in 1799. After briefly residing in Kentucky in 1807–8, he returned to his native state and in 1811 was elected a member of the Rhode Island General Assembly. He held legal appointments in other New England states before becoming U.S. attorney for Rhode Island in 1820. In 1824 he was appointed U.S. district judge for Rhode Island, a position he held until his death (Historical Catalogue of Brown University, 1764–1904 [Providence, 1905], p. 88).

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