Papers of John Adams, volume 20

From John Adams to Francis Dana, [10 July 1789] Adams, John Dana, Francis

To Francis Dana

Dear Sir [ 10 July 1789 ]1

I have received the letter you did me the honor to write on the 26th of last month and am much obliged to you for it. The Judicial bill is still under consideration of the senate, and altho’ it has undergone many alterations and amendments it is imposible to say what farther changes may be made in the house of representatives.2 The district Judges may be annihilated altogether, and the number of supreem judges as well as the number of circuits doubled. The Attorney general is now to be appointed by the President, with consent of the Senate, in course we are upon an amendment made a 63 few days ago, if this plan continues, the Attorney Genl: will appoint persons to act for him, or the court will appoint in his appearance in the district courts. Mr Nathan Cushing, Mr Dana Mr Lowell Mr Parsons and Mr Sullivan have been mentioned here, as candidates for offices in the Judicial system. And I will say to you that another person has been mentioned for one of the judjes of the supreme court and that is chief Justice Cushing— For my own part I only wish that the best and ablest men may be brought into the public service, such as have the clearest and fairest reputations, are known to the people and have acquired weight and consequence in their estimation. Parsons I think would make an excellent attorney general, but I know not that he will be likely to be appointed. When a President has the whole continent to look through for a single officer it is imposible to guess where his choice will fix. Dana or Lowell would be the best of Judges for the district: and if Main should be a district by itself, Sewal is the fittest man. If Cushing should be a supreem judge, Dana and Sewal district Judges, could Mr H be persuaded to appoint Lowel to one of their places? Parsons I presume would be one unless he should be attorney General. If Lowell should be a supreme judge I presume Dana may district judge if he will, and vice versa. I speak only from my own conjecture however.3 The President has representations and solicitations no doubt from many quarters, but nothing can ultimately arranged till the bill is passed.— I feel some anxiety for Nathan Cushing, whose condemnation of vessels in hard times have certainly made his name immortal, Mr Sullivan, I presume, will have representations made in his favor from several points of compass. His ambition is unbounded: but I wish his moral sentiments were as delicate and his political systems as consistent, as his ~~talents are~~ Industry is examplary and his abilities respectable. If the President should consult me, I shall give him every information in my power, with the utmost impartiality. With regard to yourself, I have no scruple to say, that any places in the judicial system would be honored by your acceptance of them in my humble opinion. Reserving always however, the chief Justices office for Mr Jay. With Mrs Adams’s and my best regards to Mrs Dana I remain with & &

John Adams

LbC in CA’s hand (Adams Papers); internal address: “Honble: Francis / Dana Esqr / Cambridge.”; APM Reel 115.

The dating of this letter is based on Dana’s reply of 31 July, below.

Throughout April and May, a Senate committee labored to draft the judiciary bill, thereby implementing Art. 3 of the Constitution and establishing the federal court 64 system. The legislation’s chief architect was Oliver Ellsworth of Connecticut, a Federalist whom JA found to have “the clearest head and most dilligent hand” during his long term of public service. Ellsworth’s plan placed one chief justice and five associates on the Supreme Court; in addition, a district court judge and two Supreme Court justices would serve on each circuit court. The bill created thirteen judicial districts in the eleven states that had ratified the Constitution thus far, with Massachusetts and Virginia allotted an additional district court each for, respectively, Maine and Kentucky. It established several new offices, including U.S. and state attorneys general, and federal and deputy marshals. The bill also laid out the court procedures to be used throughout the entire U.S. judiciary. Significantly, the bill upheld the Supreme Court’s right of judicial review, which allowed justices to reexamine state court decisions when federal law was at issue. Defendants facing lawsuits from citizens in other states now had the option to remove their cases to a federal circuit court.

Richard Henry Lee of Virginia introduced the bill in the Senate on 12 June. It was printed twice so that members of Congress could solicit and incorporate their constituents’ revisions. JQA, who recalled “a transient sight of a copy,” echoed popular Federalist complaints that the Supreme Court was too small and the district judges too powerful. Others worried that the boundaries between state and federal jurisdictions were ill-defined and therefore prone to friction. Another vocal opponent, William Maclay of Pennsylvania, observed: “It certainly is a vile law system, calculated for expense and with a design to draw by degrees all law business into the Federal courts. The Constitution is meant to swallow all the State Constitutions by degrees, and thus to swallow, by degrees, all the State judiciaries.”

During eighteen days of debate, senators finely parsed the bill’s language, mindful of constitutional interpretation and the weight of precedent. Some, like Paine Wingate of New Hampshire, expressed concern about what it would cost to build the court system and to cover the great expense of judicial salaries. After several revisions, the judiciary bill passed on 17 July in a vote of 14 to 6. It then stalled for a month in the House of Representatives, where members were locked in fierce debate over the revenue system and proposed amendments to the Constitution. They began discussion of the judiciary bill on 24 Aug., focusing on questions of southern jurisprudence and the federal courts’ ability to enforce payment of prewar debts to British creditors. The House made few substantial changes, however, and passed it on 17 Sept. without a roll call vote. George Washington signed what became the Judiciary Act of 1789 into law one week later. The president, who described the U.S. judiciary to John Jay as “that department which must be considered as the Key-Stone of our political fabric,” immediately sent his list of judicial nominees to the Senate (Bickford and Bowling, Birth of the Nation , p. 45–49; AFC , 8:383; 11:205; Maclay, Journal , p. 117; U.S. Senate, Jour. , 1st Cong., 1st sess., p. 34, 42, 85; Annals of Congress , 1st Cong., 1st sess., p. 812, 928–929, 2239–2255; Washington, Papers, Presidential Series , 4:75–78, 137).

Although Dana, Nathan Cushing, and Theophilus Parsons were not among Washington’s 24 Sept. nominations to the U.S. judiciary, JA’s overall suppositions were correct. The president nominated William Cushing as an associate justice on the Supreme Court, John Lowell and David Sewall as the district judges for Massachusetts and Maine, and John Sullivan as district judge for New Hampshire; all were confirmed by the Senate on 26 Sept. (U.S. Senate, Exec. Jour. , 1st Cong., 1st sess., p. 29, 30).

Nathan Cushing (1742–1812), Harvard 1763, of Scituate, formerly an admiralty judge, was appointed to the Mass. Supreme Judicial Court in early 1790, amid criticism from JA, JQA, and others that he lacked the eloquence and experience necessary for the position. He served until his resignation in 1800 ( Sibley’s Harvard Graduates , 15:376, 378; Alden Bradford, Biographical Notices of Distinguished Men of New England: Statesmen, Patriots, Physicians, Lawyers, Clergymen, and Mechanics, Boston, 1842, p. 121).