From Edmund Randolph
Philadelphia January 21. 1792
By the papers, which I have now the honor of returning to you, a wish seems to be expressed, that the President should recommend to congress a digest of federal law, the appointment of one person only to such a service, and the selection of the author of those papers for that work.1
Whether at a future day, when congress shall appear to have neglected or slumbered over, the subject, it may be expedient to rekindle their attention by a special recommendation, I pretend not to foresee. But at present it may be affirmed, that the house of representatives possess, in the four last paragraphs of the notes to the report on the judicial system, an unequivocal suggestion of this very point. I therefore take the liberty of referring you to them.
The suggestion indeed, having come from a quarter, which affects no title to the deference of that body, would undoubtedly be enforced by the solicitude of the executive. But I have greatly erred, if I do not discover one characteristic of its conduct to be, not to throw any weight of personal or official character into measures, when no crisis demands it. If then the judicial system shall ever be revised, a fœderal code will stand prominent to view. If the judicial system shall not be revised, the fœderal code itself, as speaking more feebly to the particular interests and feelings of the house, can hardly expect to be more kindly treated. In the midst of the agitations, which have been or will be produced by deliverations on the war, the excise, the fisheries, manufactures, the trade with Great Britain, the regulations of a mint, the militia, and many other topics of an animating cast, it will probably be asked, what peculiar and immediate urgency has the President remarked, for inviting congress to this abstract inquiry? Is there any danger of the two branches of the legislature, forgetting it, if it be important especially as it is their direct duty to originate proposals for establishing or amending any system of laws?
If with a recommendation to this affect, another should be united, that a single person should execute the work, some uncommon sensations of surprize may be created. To qualify that single person, he ought to be accurately versed in the legislation and jurisprudence of every state. Nay I am not certain, that he ought not to know the very prejudices of each state. For it will not be enough to draw a line of partition between the fœderal and state governments, without having some regard to the temper of the latter. The necessary information can be contributed only by a number of able men, differently situated in the United States. These men can be found and perhaps their reluctance may be overcome, and they may be induced to divide the Herculean task among them. But even with a division of the responsibility they ought to be diffident.
Should it, however, be thought adviseable, that the project should be now favored by a special communication from the President and that a single person should be preferred, I certainly shall add nothing concerning any gentleman, who may be so happy, as to enjoy the highly valuable endowments, requisite for the fulfilment of the trust. But may it not be seriously apprehended, that the employment of a judge in such a business, will excite a jealousy among those of his associates, who will not acknowledge their inferiority? Will it not warp him in all his decisions to those interpretations, which he may have given of the constitution? May he not rather lean, in his judgments, more to what he recollects to have been his intention in drawing a law, than obey the settled rules of construction?
And who can say, let him be a judge, or what he will, that the glossary or comment which he alone shall furnish, may not, insensibly and contrary to his own honest mind, be tinctured with party views?
Upon the whole, altho’ I believe, that the digest will sooner or later be attempted; yet am I sure that the legislature will not cordially patronize it, until its necessity shall be more obvious.
I intended to have waited on you personally with this letter. But having been detained in court during the whole week, I was unable to do so.2 I have the honor, sir, to be with a sincere and affectionate attachment and respect yr mo. ob. serv.
ALS, DLC:GW; ADf (incomplete), DLC:GW.
2. The partial draft of this letter, in Edmund Randolph’s writing dated 20 Jan. 1792, reads: “The necessity, difficulty and delicacy, of the work, which the papers inclosed contemplate, are all equally obvious. But it is not deducible from any or the whole of those circumstances, either that it should be recommended to congress by the President, or, if so recommended, in what form it ought to be submitted. I am greatly mistaken, if I have not discovered in the measures of the present administration, the purpose of seeing the extent of a subject, before it commits itself. The proposed communication will be considered, as springing from the executive alone, or from the suggestions of some person, skilled in the immense inquiry. To justify the former, some preeminent fitness of season ought to appear Is this the best? When the war, the fisheries, the rights of navigation, manufactures, reformation of the excise, and other heavy topics have already preoccupied legislative attention? Can it be the most expedient season? When the report of the judicial system has already in the four last paragraphs of the notes officially drawn the attention of congress to this express case? In one sense indeed, the present may be the best and most expedient moment; that is, if the President shall wish to forward the work by manifesting a particular solicitude in himself. But” (DLC:GW; the manuscript ends at this point).