George Washington Papers

To George Washington from the United States Supreme Court Justices, 13 September 1790

From the United States Supreme Court Justices

[c.13 September 1790]1

Sir,

We, the Chief Justice and Associate Justices of the Supreme Court of the United States, in Pursuance of the Letter which you did us the Honor to write on the 3rd of April last, take the Liberty of submitting to your Consideration the following Remarks on the “Act to establish the Judicial Courts of the United States.”2

It would doubtless have been singular, if a System so new and untried, and which was necessarily formed more on Principles of Theory and probable Expediency, than former Experience had, in Practice, been found entirely free from Defects.

The particular and continued Attention which our official Duties called upon us to pay to this Act, has produced Reflections, which, at the Time it was made and passed, did not, probably, occur, in their full Extent either to us or others.

On comparing this Act with the Constitution, we perceive Deviations, which, in our Opinions, are important.

The 1st Sect: of the 3rd Article of the Constitution declares that “the judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts, as the Congress may from Time to Time ordain and establish.”

The 2d Sect: enumerates the Cases to which the Judicial Power shall extend. It gives to the Supreme Court original Jurisdiction in only two Cases, but, in all the others vests it with appellate Jurisdiction, and that with such Exceptions, and under such Regulations as the Congress shall make.

It has long and very universally been deemed essential to the due Administration of Justice, that some national Court or Council, should be instituted or authorized to examine the Acts of the Ordinary Tribunals, and, ultimately, to affirm or reverse their Judgments and Decrees: it being important that these Tribunals should be confined to the Limits of their respective Jurisdictions, and that they should uniformly interpret and apply the Law in the same Sense and Manner.

The appellate Jurisdiction of the Supreme Court enables it to confine Inferior Courts to their proper Limits, to correct their involuntary Errors, and, in general, to provide that Justice be administered accurately, impartially, and uniformly.

These controling Powers were unavoidably great and extensive; and of such a Nature as to render their being combined with other Judicial Powers, in the same Persons, unadvisable.

To the natural as well as legal Incompatibility of ultimate appellate Jurisdiction, with original Jurisdiction, we ascribe the Exclusion of the Supreme Court from the latter, except in two Cases.

Had it not been for this Exclusion, the unalterable ever binding Decisions of this important Court, would not have been secured against the Influences of those Predilections for individual Opinions, and of those Reluctances to relinquish Sentiments publicly, though, perhaps, too hastily given, which insensibly and not unfrequently infuse into the minds of the most upright Men, some Degree of Partiality for their Official and public Acts.

Without such Exclusion no Court, possessing the last Resort of Justice, would have acquired and preserved that public Confidence which is really necessary to render the wisest Institutions useful. A celebrated Writer justly observes that “next to doing right, the great Object in the Administration of public Justice, should be to give public Satisfaction.”

Had the Constitution permitted the Supreme Court to sit in Judgment, and finally to decide on the Acts and Errors, done and committed by it’s own Members, as Judges of inferior and subordinate Courts, much Room would have been left for men, on certain Occasions, to suspect, that an Unwillingness to be thought and found in the Wrong had produced an improper Adherence to it; or that mutual Interest had generated mutual Civilities and Tendernesses injurious to right.

If Room had been left for such Suspicions, there would have been Reason to apprehend, that the public Confidence would diminish almost in Proportion to the Number of Cases in which the Supreme Court might affirm the Acts of any of it’s Members.

Appeals are seldom made but in doubtful Cases, and in which there is, at least, much Appearance of Reason on both Sides: in such Cases, therefore, not only the losing Party, but others, not immediately interested, would, sometimes, be led to doubt whether the Affirmance was entirely owing to the mere Preponderance of Right.

These, we presume, were among the Reasons which induced the Convention to confine the Supreme Court, and, consequently it’s Judges, to appellate Jurisdiction—We say, “consequently it’s Judges,” because the Reasons for the one, apply also to the other.

We are aware of the Distinction between a Court and it’s Judges, and are far from thinking it illegal or unconstitutional, however it may be inexpedient to employ them for other Purposes, provided the latter Purposes be consistent and compatible with the former—But from this Distinction it cannot, in our Opinions, be inferred, that the Judges of the Supreme Court, may also be Judges of inferior and subordinate Courts, and be at the same Time both the Controllers and the controled.

The Application of these Remarks is obvious. The Circuit Courts established by the Act, are Courts inferior and subordinate to the Supreme Court. They are vested with original Jurisdiction in the Cases from which the Supreme Court is excluded; and, to us, it would appear very singular, if the Constitution was capable of being so construed, as to exclude the Court, but yet admit the Judges of the Court. We, for our Parts, consider the Constitution as plainly opposed to the Appointment of the same Persons to both Offices, nor have we any Doubts of their legal Incompatibility.

Bacon in his Abridgment says, that “Offices are said to be incompatible and inconsistent, so as to be executed by one Person, when from the multiplicity of Business in them, they cannot be executed with Care and Ability, Or when, their being Subordinate and interfering with each other, it induces a Presumption they cannot be executed with Impartiality and Honesty—and this my Lord Coke says is of that Importance, that if all Offices, civil, ecclesiastical &c. were only executed each by a different Person, it would be for the Good of the Commonwealth, and Advancement of Justice, and Preferment of deserving Men—If a Forester by Patent for his Life, is made Justice in Eyre of the same Forest hac vice, the Forestership is become void; for these Offices are incompatible, because the Forester is under the Correction of the Justice in Eyre, and he cannot Judge himself. Upon a mandamus to restore one to the Place of Town Clerk; it was returned, that he was elected Mayor and sworn, and therefore, they chose another Town Clerk; and the Court were strong of Opinion that the Offices were incompatible, because of the Subordination—A Coroner made a Sheriff, ceases to be a Coroner—so a Parson made a Bishop, and a Judge of the common Pleas made a Judge of the King’s Bench, &c.”3

Other Authorities on this Point might be added, but the Reasons on which they rest, seem to us to require little Elucidation or Support.

There is in the Act another Deviation from the Constitution, which we think it incumbent on us to mention.

The 2d Sect: of the 2d Art: of the Constitution, declares that the President “shall nominate and by and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court, and all other Officers of the United States whose Appointments are not therein otherwise provided for.”

The Constitution not having otherwise provided for the Appointment of the Judges of the Inferior Courts, we conceive that the Appointment of some of them, vizt of the Circuit Courts, by an Act of the Legislature, is a Departure from the Constitution, and an Exercise of Powers, which, constitutionally and exclusively belong to the President and Senate.

We should proceed, Sir, to take Notice of certain Defects in the Act relative to Expediency, which we think merit the Consideration of the Congress, but, as these are doubtless among the Objects of the late Reference made by the House of Representatives to the Attorney General, we think it most proper to forbear making any Remarks on the Subject at present.4 We have the Honor to be, most respectfully, Sir, Your most obedient, and Most humble servants.5

Df, Nc-Ar: Charles E. Johnson Collection; Df, in same hand, MHi: Cushing Papers. Only minor differences in punctuation and capitalization exist between the two.

According to section 3 of “An Act to establish the Judicial Courts of the United States,” the six justices of the U.S. Supreme Court were to hold not only two terms of the Supreme Court each year but also two annual courts in each of the thirteen districts of the eastern, middle, and southern circuits (1 Stat., description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends 73–74 [24 Sept. 1789]). These circuit court perambulations from Portsmouth, N.H., to Savannah, Ga., created a true hardship, especially for the more elderly members of the court. GW gave the justices an opportunity to state their objections when he wrote them in April 1790 (see n.2 below), and the justices consulted together on the subject on 3 Aug. 1790 before departing New York for the summer term of their circuit courts. Two days later Associate Justice John Blair sent Chief Justice John Jay his minutes of that meeting (see

GW to U.S. Senate, 24 Sept. 1789, source note, GW to U.S. Supreme Court Justices, 3 April 1790 and source note; Marcus and Perry, Documentary History of the Supreme Court, description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends 2:83–84; Goebel, History of the Supreme Court, description begins Julius Goebel, Jr. Antecedents and Beginnings to 1801. History of the Supreme Court of the United States, vol. 1. New York, 1971. description ends 554).

Only after Congress added the burden of examining the pension claims of invalid veterans to the justices’ circuit duties in March 1792 did they dispatch remonstrances to the president, and GW mentioned the necessity of revising the judicial system in his annual message to Congress of 6 Nov. 1792. The justices, however, were not relieved of their circuit duties until 13 Feb. 1801, and then only for a year, as the act that created distinct federal circuit court judges was repealed in March 1802 (Goebel, History of the Supreme Court, description begins Julius Goebel, Jr. Antecedents and Beginnings to 1801. History of the Supreme Court of the United States, vol. 1. New York, 1971. description ends 560, 565–66, 569).

1The date is assigned from Jay’s letters of 13 Sept. 1790 to justices James Iredell and William Cushing, both of which covered copies of the draft of his letter to the president: “I have the Honor of transmitting to you herewith inclosed, the Draft I have prepared of the proposed Letter from us to the President. Be pleased to return it with such Alterations & Corrections as You may think it requires.

“I shall send Copies of it to the other Judges, with the like Request; and on recieving them again, will incorporate such Additions and make such other Alterations as we may all appear to agree in” (Jay to Cushing, 13 Sept. 1790, in Marcus and Perry, Documentary History of the Supreme Court, description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends 2:88; see also 91–92n.). Cushing’s copy of the draft is printed ibid., 89–92; Iredell’s is in McRee, Life and Correspondence of Iredell, 2:293–96, with a cover letter misdated 15 Sept. 1790(292).

2On 3 April 1790 GW requested the justices of the Supreme Court as they were about to commence for the first time their duties as federal circuit court judges to report to him “such Information and Remarks on this Subject, as you shall from time to time judge expedient to communicate” (see GW to U.S. Supreme Court Justices, 3 April 1790 and source note).

3Matthew Bacon, A New Abridgment of the Law (5 vols.; 2d ed.; London, 1762), 3:736–37 (see Marcus and Perry, Documentary History of the Supreme Court description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends , 2:92, n.3).

4On 5 Aug. 1790 the House of Representatives ordered Edmund Randolph to report at the next session of Congress on “such matters relative to the administration of justice under the authority of the United States, as may require to be remedied” (DHFC, description begins Linda Grant De Pauw et al., eds. Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 20 vols. to date. Baltimore, 1972—. description ends 3:550; Goebel, History of the Supreme Court, description begins Julius Goebel, Jr. Antecedents and Beginnings to 1801. History of the Supreme Court of the United States, vol. 1. New York, 1971. description ends 541).

5Only circumstantial evidence exists indicating that GW ever received this letter from the justices. Jay had not forwarded it by the time he next wrote to the president on 13 Nov. 1790, and GW did not acknowledge receiving it in his reply of 19 Nov. 1790 but instead reiterated his desire to be informed of any judiciary matters that required the attention of Congress. GW may have at some later date received the justices’ September 1790 letter and transmitted it to Congress, for in the first session of the Seventy-fifth Congress, during the 26 Feb. 1937 debate on retirement privileges for Supreme Court justices, Sen. William Henry King (Dem., Utah) quoted from the letter and asked that it be inserted into the Record, which it was in its entirety, without date or notice of the location of the original (see Marcus and Perry, Documentary History of the Supreme Court description begins Maeva Marcus et al., eds. The Documentary History of the Supreme Court of the United States, 1789–1800. 8 vols. New York, 1985-2007. description ends , 2:92, n.1, 108, n.4, 110; Fitzpatrick, Writings of Washington, description begins John C. Fitzpatrick, ed. The Writings of George Washington from the Original Manuscript Sources, 1745–1799. 39 vols. Washington, D.C., 1931–44. description ends 31:32, n.58; Congressional Record [140 vols. to date; Washington, D.C., 1874—], 81 [pt. 2]: 1647–48; and Goebel, History of the Supreme Court, description begins Julius Goebel, Jr. Antecedents and Beginnings to 1801. History of the Supreme Court of the United States, vol. 1. New York, 1971. description ends 556).

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