From John Rutledge
Charleston [S.C.] March 5. 1791
This State having thought proper to create the Office of Cheif Justice, & offer it to me, & the peculiar Circumstances of the Appointment being such that I conceive I could not with any Propriety refuse it, I beg Leave to inclose, & resign, my Commission, of an Associate Judge, of the United States.1
Permit me to return my Thanks for the Honour confer’d on me by that Commission, & to offer my sincrest Wishes, for a long Continuance of your Health & Happiness. I have the Honour to be, with the greatest Respect; Sir yr most obedt & very hble Servt
ALS, DNA: RG 59, Miscellaneous Letters.
1. Rutledge had been appointed senior associate justice of the Supreme Court in September 1789 (see GW to the U.S. Senate, 24 Sept. 1789). In accepting the appointment Rutledge wrote that he had intended to spend the remainder of his life in “Ease & Retirement,” but that he was willing to serve in order “to promote the Stability of our political System, & Happiness of our Country” (see GW to John Rutledge, 29 Sept. 1789, n.2). Lingering disappointment at not being offered the post of chief justice of the United States, deteriorating health, and the arduousness of riding the southern circuit all probably contributed to his decision to resign, as may have the higher salary allotted to the chief justice of South Carolina. During his brief tenure Rutledge did not attend a meeting of the Supreme Court, although he did preside over the first meetings of the circuit courts for the districts of South Carolina and Georgia in May 1790; in the fall term of 1790 he presided over the circuit court for the district of South Carolina but failed to attend the circuit court in Georgia and North Carolina (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 2:66, 74, 102–3, 106). After John Jay was elected governor of New York in 1795, Rutledge wrote to GW indicating his willingness to serve as chief justice (see Rutledge to GW, 12 June 1795, DLC:GW). GW nominated him to the post, but the nomination was rejected by the Senate after Rutledge attacked Jay’s Treaty in a speech in Charleston (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 vol. 1, pt. 1, 94–100).
For applications to succeed Rutledge, see James Read to GW, 16 Feb. 1791, and Nathaniel Pendleton to GW, 5 Mar. 1791. GW also received a letter from Sen. James Gunn of Georgia dated 7 Mar. 1791 recommending John Houstoun, which reads: “Should the appointing of Mr John Rutledge Cheaf Justice of the State of South Carolina, Occasion a vacancy in the Federal Judiciary, and the President Should think it proper to fill Such vacancy with a professional character from the State of which I have the honor to be a deputy; I take the liberty to mention Mr John Houstoun as a Gentleman whose professional abilities are Inferior to but few in America, and Inferior to none in the State of Georgia; and I will add Should he be Appointed the Citizens of that State will feel themselves Obliged. It is necessary I Should Inform the President that this Communication Contemplates the Serving of the Republic and not the Individual for Mr Houstoun, and myself are not In the habits of Intimacy” (DLC:GW). John Houstoun (1744–1796), a Savannah lawyer, had served in the Continental Congress in 1775, as governor of Georgia in 1778 and 1784, chief justice of Georgia in 1786, and mayor of Savannah in 1789–90. He received no appointment from GW. Without naming a candidate Charles Pinckney urged GW to fill the seat with another South Carolinian (see Charles Pinckney to GW, 8 Mar. 1791; see also Charles Pinckney to GW, 18 Aug. 1791).
GW put off making a nomination to fill the vacancy until after his Southern Tour, during which he apparently made inquiries regarding potential nominees. While in Columbia, S.C., he wrote a joint letter on 24 May to Charles Cotesworth Pinckney and Edward Rutledge, asking whether either of them would accept the appointment; they replied jointly on 12 June that private considerations prevented either from accepting the offer. In July GW offered the seat to Thomas Johnson, who agreed to accept after being assured that he would not be required to ride the southern circuit (see GW to Johnson, 14 July 1791 and Johnson to GW, 27 July 1791), and he too ultimately resigned the post rather than do so.