Adams Family Correspondence, volume 15
th:January 1802
I have to acknowledge your favor of the 13th: ulto:.1 The principal subject in which you dwelt; viz:
the intention to destroy the main pillar of our political edifice, has since undergone a
very serious discussion; and you have doubtless listened with peculiar interest to the
spirited debates, which the motion of Mr: Brackenridge has
produced in the Senate of the United States.2 The speculations under the signature of “a
friend to the Constitution,” were republished in the Port Folio, and so far as I have
heard them spoken of, are much admired; but you have lived long enough to be thouroughly
aware, that a Sheriff or other ministerial office, is not to be reasoned out of an
house, against the owner of which he may have an Execution; or in other words, when
argument & interest come in competition, it is “frightful odds,” against the
former.3 The people of the South, look
upon an efficient judiciary as a permanent writ of execution against their persons and
estates; how can it be expected then that they will be open to conviction. If men will
differ on so essential & important points, as the dependence or independence of
judges, at this time of day, the dispute can be resolved into nothing but a contest for
power & an imperious call on the score of interest. There is no honesty in those who
pretend to doubt, on this subject.
I have been charmed with the energetic language, the manly
eloquence & the dignified style of Gouverneur Morris. I have seldom 165 seen a more finished specimen of parliamentary elocution. Yet what effect! He spoke
to men as callous, I might say calcined as the walls that surrounded them.4 They are in truth mere dust & clay; I mean
the majority of the majority. Our union has now no bond but the national debt; if the Genevan could pay it off in seventeen hours instead of as
many years, he would sooner lose his hand than do it. He knows better.5
A memorial has been drafted & signed by the principal members of our bar, on the subject of the projected repeal of the last judiciary law & recommending its continuance.6 I signed the first draft, but that being altered and a new one made less to my mind than the former, I did not sign the last. Other motives prevented my signing; the very name of Adams, would turn the stomach of every rascal in Congress and they would belch out their windy insolence against any thing to which that name was annexed. You see I am in no very coaxing mood. If I were a member of the State legislature of Massachusetts I would propose certain amendments to the Constitution, such as would meet the approbation, I think, of at least ten States in the Union. “The black cattle to the South, shall not be represented, after the year 1803,” should be the first amendment on my list. If Virginia is not gagged with something like this, there will be no end to her presumption & impudence.7
I should like to hear what reception our memorial meets—it will arrive too late to be laid before Senate.
I have never heard how Mr: Johnson is;
has he recovered his health?
With best regards to your wife & children / I am, dear Sir / your friend
RC (OCHP:William Cranch Papers); addressed: “William Cranch Esqr: / City of Washington”; internal address: “William Cranch
Esqr:”; endorsed: “T. B. Adams 30 Jany. 1802.”
Not found.
Thomas Jefferson and other Democratic-Republicans were bent on repeal of the Judiciary Act of 1801 from the time JA signed the legislation into law on 13 February. The effort began in earnest on 6 Jan. 1802 when Kentucky senator John Breckinridge introduced a motion to rescind the law, contending that the courts it created were “a wanton waste of the public treasure.” Breckinridge’s argument went to the core of the ideological differences between the two parties. In replacing the circuit riding of Supreme Court justices with the new U.S. Circuit Courts, Breckinridge argued that Federalists improperly expanded federal judicial oversight by absorbing cases that “could, with propriety, be left with the State courts.” Federalists responded that the added expense of the new courts was justified because the circuit duties put undue demands on Supreme Court justices. “It was a fact that three-fourths of the time of the judges had been taken up in travelling,” Jonathan Mason of Massachusetts claimed, while Simeon Olcott of New Hampshire believed the new system should be tested 166 before being considered for repeal. The Democratic-Republican majority in both chambers prevailed, framing the law as a partisan act of an outgoing Federalist president that should be discarded. “I admire the private character of Mr. Adams,” declared James Jackson of Georgia, “but I do believe the succession of his political acts tended ultimately to accumulate in, and attach all powers to, a particular person or favorite family.” On 19 Jan., a committee was appointed to draft a bill of repeal, which they did three days later. The Senate passed the bill by a single vote on 3 Feb., and the House followed on 3 March. Jefferson signed the repeal into law on 8 March.
Thirteen U.S. Circuit Court judges nominated by JA
were summarily removed from the bench, the courts over which they presided were
dissolved, and their cases were returned to the U.S. Supreme Court.
Democratic-Republicans in Congress attempted to make the reversion of duties upon the
justices more palatable by passing the Judiciary Act of 1802 on 29 April. In addition
to recodifying the old system, the act reduced the demands on the justices by
excluding Maine, Kentucky, and Tennessee from the circuit system and eliminating the
court’s summer session. The law also further reduced the reach of the federal
judiciary by stipulating that the president rather than federal district judges would
appoint bankruptcy commissioners in each state. U.S. Supreme Court chief justice John
Marshall and justice Samuel Chase both hinted that they might consider ruling that the
removal of sitting judges was unconstitutional and overturn the repeal, but the others
on the court were not inclined to do so and no action was taken (vol. 14:512–513; Jed Glickstein,
“After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801,” Yale Journal of Law and the Humanities, 24:546–554 [Jan.
2012];
Annals of
Congress
, 7th Cong., 1st sess., p. 23, 25–41, 46–74, 75–145, 146, 147,
148–150, 154–184, 982;
Biog. Dir. Cong.
; Jefferson, Papers
, 36:619,
37:2, 210;
U.S.
Statutes at Large
, 2:132, 156–167).
For Cranch’s essays as “A Friend to the Constitution” opposing attempts to restructure the judiciary, see AA to TBA, 27 Dec. 1801, and note 2, above.
On 8 and 14 Jan. 1802 Gouverneur Morris addressed the Senate,
opposing the repeal of the Judiciary Act of 1801 by arguing that repeal was
unnecessary and unconstitutional. Morris wrote in his diary that not only was his
first speech well-attended but it was also “much approv’d of by those who think with
me.” The speeches were printed in the Philadelphia
Gazette, 18, 28 Jan. 1802 (
Annals of Congress
, 7th Cong., 1st sess., p. 36–41,
76–88, 89–92; Morris, Diaries
, 2:207, 209). For AA’s
comments on the second speech, see
AA to TBA, 7 Feb., below.
On 1 Jan. 1801 the U.S. national debt stood at just over $83
million. Treasury secretary Albert Gallatin’s goal was to eliminate it within fifteen
and one-half years by reducing federal expenditures, implementing control over
appropriations, and limiting the growth of the army and navy. By 1 Jan. 1802 the debt
had been reduced to $80.7 million and the following year it stood at $77 million
(Thomas K. McCraw, The Founders and Finance: How Hamilton,
Gallatin, and Other Immigrants Forged a New Economy, Cambridge, 2012, p. 231,
233;
Amer. State
Papers, Finance
, 1:701–705; Annual Report of
the Secretary of the Treasury on the State of the Finances, Washington, D.C.,
1907, p. 73).
On 2 Feb. James Ross of Pennsylvania introduced in the Senate a
memorial signed by nearly forty Philadelphia lawyers opposing the repeal of the
Judiciary Act of 1801 owing to the “public inconvenience” that would arise if the
newly established circuit court system was abolished (
Annals of Congress
, 7th Cong.,
1st sess., p. 152–153; Philadelphia Aurora General
Advertiser, 6 Feb. 1802).
TBA was referring to northern resentment over the
1787 “three-fifths compromise” in Art. 1 of the U.S. Constitution, which called for
three of every five enslaved people to be counted in the apportionment of federal
legislators and electors. The term used by TBA was employed often by
Federalist newspapers in attributing Jefferson’s success and JA’s defeat
to the clause, and it resurfaced in the press in late 1801 as Democratic-Republicans
contemplated the repeal of the Judiciary Act of 1801, a move Federalists likewise
blamed on the three-fifths clause giving the opposition undue representation in
Congress. TBA proved prescient, as New England and other northern
congressmen threatened in March 1802 to propose a revision to the three-fifths clause
if Democratic-Republicans carried through with repealing the judiciary act (vol. 11:269–270; Philadelphia Gazette, 17 Sept. 1800; Boston Columbian Centinel, 7 Jan. 1801; Baltimore Federal Gazette, 17 Feb.; Concord 167
Courier of New Hampshire, 17 Dec.; Baltimore Republican, 2 Jan. 1802; Albert F. Simpson, “The Political
Significance of Slave Representation, 1787–1821,” Journal of
Southern History, 7:321–323 [Aug. 1941]).
TBA had also written to Cranch on 1 Dec. 1801 to
introduce Philadelphia lawyers Richard Peters Jr. and John B. Wallace (OCHP:William Cranch Papers;
Philadelphia
Directory
, 1801, p. 35, 93, Shaw-Shoemaker, No. 1347).
Politicks are forbidden fruit to me, at present, and what other Subject can I choose for a Letter? Shall I tell you what Books I read? or how many times a Week I go into the Woods? These Informations would not be interesting to you.
I Suppose I may hint at a Question of Law without giving offence to
the Powers that be, or the Powers that once were, but be
not. A great noise has been made about common Law.
But it has been a loose, misterious clamour on both Sides. One respresents it, as
Perfection and the other as destruction. The Truth lies in the middle Way. An Essay on
this Subject is much wanted. I wish you would undertake it. You will increase your own
store of Knowledge by Such an investigation as I shall propose and may do a memorable
service to your Country. The common Law was not a perfect System of Liberty. I am not
certain that a Representation of the People in the House of commons was a part of it: on
the contrary I believe it is certain that it was not. Most certain it is that the Judges
at common Law held their Commissions Durante Bene placito and the Tenure for Life or
Quamdiu se bene gesserint was introduced by Statute, first in the Petition of Right and
more fully by the Bill of Rights, but was never compleated till the Beginning of the
Reign of K. G. 3.1
Now I wish some One, and I know of none more proper than yourself, to undertake to inquire, ascertain and establish all those Points of the common Law, which are now in force in the United States and in the individual States; and on the contrary those Points, which have been altered by Statutes or by the Revolution and the Constitutions of Government which have been established in Consequence of it.
Your Brother, Sister, little nephew and Mr shaw Spent the Sunday with us, in very good health and are returned this
Morning to Boston.— Your Brother is in great request among the Scientific and litterary
Societies, is well Situated both in a House and Office, and 168 will soon be busy enough among the Courts and Lawyers—at least I hope and believe he
will.2 if not I Should advice him to
retire to Quincy or Braintree, where a Farm will afford him Business Pleasure and Study.
I hope your Business increases and is likely to increase, and that your prospects are
good. Anxiety for my Children is all the anxiety I know and indulge. When Cares for my
Country arise, as they do very often, I Silence them and divert them as well as I can,
by reflecting that I have done all in my power and can do no more. But I am not so clear
that I can do no more for my Children. One Thing is certain, that none of my Children
are Children of this World or of Fortune any more than their father.— Apollo’s Advice to
the Waggoner to put his shoulder to the Wheel encourage his Cattle and then pray to him
for help is the only Advice that is good—3 God helps those who help themselves. Mediocrity itself is not attainable without a
Renunciation of dissipation and an indefatigable application to Business and to Study:
much less is Excellence to be commanded.— If I could be of any Use or help in the
prosecution of your Studies or in any other Way, by Advice or otherwise, it would
contribute much to my consolation and be considered as a Duty by your affectionate
Father
RC (Adams
Papers); addressed by AA: “T B Adams”; internal address: “T. B.
Adams Esq”; endorsed: “John Adams Esqr: / 1st: February 1802 / 15th: Recd: / Do answd: / 1 March, 2d: letter.” Some
loss of text where the signature was removed.
Britain’s 1701 Act of Settlement mandated that judges would
retain their commissions based on good behavior (quamdiu se
bene gesserint) rather than at the kings pleasure (durante bene placito). Beginning with the accession of Queen Anne in 1702,
judges’ commissions terminated at the end of each monarch’s life. This interpretation
remained in place until soon after George III took the throne in 1760, when Parliament
ruled that judges would hold their commissions based on good behavior alone (Edward
Foss, The Judges of England, 9 vols., London, 1848–1864,
8:198–199).
In addition to his membership in the Society for the Study of Natural Philosophy, JQA was a member of the Wednesday Evening Club. Founded in 1777 as a social organization, the club’s members included clergymen, lawyers, and physicians (vol. 6:355).
Aesop’s fable “Hercules and the Carter.”