Article 3, Section 1

Document 16

John Jay et al., Letters on Reorganization of the Supreme Court

1792Annals 3:1317--22

Gentlemen of the Senate, and of the House of Representatives:

I lay before you a copy of a Letter and representation from the Chief Justice and Associate Judges of the Supreme Court of the United States, stating the difficulties and inconveniences which attend the discharge of their duties, according to the present Judiciary system.

A copy of a Letter from the Judges attending the Circuit Court of the United States for the North Carolina district, in June last, containing their observations on an act passed during the last session of Congress, entitled "An act to provide for the settlement of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions."

Geo. Washington.

United States, Nov. 7, 1792.


Philadelphia, Aug. 9, 1792.

Sir: Your official connexion with the Legislature, and the consideration that applications from us to them cannot be made in any manner so respectful to Government as through the President, induce us to request your attention to the enclosed representation, and that you will be pleased to lay it before the Congress.

We really, sir, find the burdens laid upon us so excessive that we cannot forbear representing them in strong and explicit terms.

On extraordinary occasions we shall always be ready, as good citizens, to make extraordinary exertions; but while our country enjoys prosperity, and nothing occurs to require or justify such severities, we cannot reconcile ourselves to the idea of existing in exile from our families, and of being subjected to a kind of life on which we cannot reflect without experiencing sensations and emotions more easy to conceive than proper for us to express.

With the most perfect respect, esteem, and attachment, we have the honor to be, sir, your most obedient and most humble servants,

John Jay, William Cushing, James Wilson, John Blair, James Iredell, Thomas Johnson.

The President of the United States.


The Chief Justice and the Associate Judges of the Supreme Court respectfully represent to the Congress of the United States:

That when the present judicial arrangements took place, it appeared to be a general and well-founded opinion, that the act then passed was to be considered rather as introducing a temporary expedient than a permanent system, and that it would be revised as soon as a period of greater leisure should arrive. The subject was new, and was rendered intricate and embarrassing by local as well as other difficulties; and there was reason to presume that others, not at that time apparent, would be discovered by experience. The ensuing sessions of Congress were so occupied by other affairs of great and pressing importance, that the Judges thought it improper to interrupt the attention of Congress by any application on the subject. That, as it would not become them to suggest what alterations or system ought in their opinion to be formed and adopted, they omit making any remarks on that head; but they feel most sensibly the necessity which presses them to represent--

That the task of holding twenty-seven Circuit Courts a year, in the different States, from New Hampshire to Georgia, besides two sessions of the Supreme Court at Philadelphia, in the two most severe seasons of the year, is a task which, considering the extent of the United States, and the small number of Judges, is too burdensome. That to require of the Judges to pass the greater part of their days on the road, and at inns, and a distance from their families, is a requisition which, in their opinion, should not be made unless in cases of necessity. That some of the present Judges do not enjoy health and strength of body sufficient to enable them to undergo the toilsome journeys through different climates and seasons, which they are called upon to undertake; nor is it probable that any set of Judges, however robust, would be able to support, and punctually execute, such severe duties for any length of time. That the distinction made between the Supreme Court and its Judges, and appointing the same men finally to correct in one capacity the errors which they themselves may have committed in another, is a distinction unfriendly to impartial justice, and to that confidence in the Supreme Court which it is so essential to the public interest should be reposed in it. The Judges decline minute details, and purposely omit many considerations, which they are persuaded will occur whenever the subject is attentively discussed and considered. They most earnestly request that it may meet with early attention, and that the system may be so modified as that they may be relieved from their present painful and improper situation.

John Jay, William Cushing, James Wilson, John Blair, James Iredell, Thomas Johnson.


Newbern, North Carolina, June 8, 1792.

Sir: We, the Judges now attending at the Circuit Court of the United States for the district of North Carolina, conceive it our duty to lay before you some important observations which have occurred to us in the consideration of an act of Congress lately passed, entitled "An act to provide for the settlement of claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions."

We beg leave to premise, that it is as much an inclination as it is our duty to receive with all possible respect every act of the Legislature, and that we never can find ourselves in a more painful situation than to be obliged to object to the execution of any, more especially to the execution of one founded on the purest principles of humanity and justice, which the act in question undoubtedly is. But, however lamentable a difference in opinion really may be, or with whatever difficulty we may have formed an opinion, we are under the indispensable necessity of acting according to the best dictates of our own judgment, after duly weighing every consideration that can occur to us, which we have done on the present occasion. The extreme importance of the case, and our desire of being explicit beyond the danger of being misunderstood, will, we hope, justify us in stating our observations in a systematic manner. We, therefore, sir, submit to you the following:

1. That the Legislative, Executive, and Judicial Departments are each formed in a separate and independent manner, and that the ultimate basis of each is the Constitution only, within the limits of which each Department can alone justify any act of authority.

2. That the Legislature, among other important powers, unquestionably possess that of establishing Courts in such a manner as to their wisdom shall appear best, limited by the terms of the Constitution only; and to whatever extent that power may be exercised, or however severe the duty they may think proper to require, the Judges, when appointed in virtue of any such establishment, owe implicit and unreserved obedience to it.

3. That, at the same time, such Courts cannot be warranted, as we conceive, by virtue of that part of the Constitution delegating Judicial power for the exercise of which any act of the Legislature is provided, in exercising (even under the authority of another act) any power not in its nature Judicial, or, if Judicial, not provided for upon the terms the Constitution requires.

4. That whatever doubt may be suggested, whether the power in question is properly of a Judicial nature, yet inasmuch as the decision of the Court is not made final, but may be at least suspended in its operation by the Secretary of War, if he shall have cause to suspect imposition or mistake, this subjects the decision of the Court to a mode of revision which we consider to be unwarranted by the Constitution; for, though Congress may certainly establish, in instances not yet provided for, Courts of appellate jurisdiction, yet such Courts must consist of Judges appointed in the manner the Constitution requires, and holding their offices by no other tenure than that of their good behaviour, by which tenure the office of Secretary of War is not held; and we beg leave to add, with all due deference, that no decision of any Court of the United States can, under any circumstances, in our opinion, agreeably to the Constitution, be liable to a reversion, or even suspension, by the Legislature itself, in whom no Judicial power of any kind appears to be vested but the important one relative to impeachments.

These, sir, are our reasons for being of opinion, as we are at present, that this Circuit Court cannot be justified in the execution of that part of the act which requires it to examine, and report an opinion on the unfortunate cases of officers and soldiers disabled in the service of the United States. The part of the act requiring the Court to sit five days for the purpose of receiving applications from such persons, we shall deem it our duty to comply with; for, whether in our opinion such purpose can or cannot be answered, it is, as we conceive, our indispensable duty to keep open any Court of which we have the honor to be Judges, as long as Congress shall direct.

The high respect we entertain for the Legislature, our feelings as men for persons whose situation requires the earliest as well as the most effectual relief, and our sincere desire to promote, whether officially or otherwise, the just and benevolent views of Congress so conspicuous on the present as well as on many other occasions, have induced us to reflect whether we could be justified in acting under this act personally in the character of Commissioners during the session of a Court; and could we be satisfied that we had authority to do so, we would cheerfully devote such part of our time as might be necessary for the performance of the service. But we confess we have great doubts on this head. The power appears to be given to the Court only, and not to the Judges of it; and as the Secretary of War has not a discretion in all instances, but only in those where he has cause to suspect imposition or mistake, to withhold a person recommended by the Court from being named on the pension list, it would be necessary for us to be well persuaded we possessed such an authority before we exercised a power which might be a means of drawing money out of the public Treasury, as effectually as an express appropriation by law. We do not mean, however, to preclude ourselves from a very deliberate consideration whether we can be warranted in executing the purposes of the act in that manner, in case an application should be made.

No application has yet been made to the Court, or to ourselves individually, and, therefore, we have had some doubts as to the propriety of giving an opinion in a case which has not yet come regularly and judicially before us. None can be more sensible than we are of the necessity of Judges being, in general, extremely cautious in not intimating an opinion in any case extra-judicially, because we well know how liable the best minds are, notwithstanding their utmost care, to a bias which may arise from a preconceived opinion, even unguardedly, much more deliberately given. But in the present instance, as many unfortunate and meritorious individuals, whom Congress have justly thought proper objects of immediate relief, may suffer very great distress even by a short delay, and may be utterly ruined by a long one, we determined at all events to make our sentiments known as early as possible, considering this as a case which must be deemed an exception to the general rule upon every principle of humanity and justice; resolving, however, that so far as we are concerned individually, in case an application should be made, we will most attentively hear it; and if we can be convinced this opinion is a wrong one, we shall not hesitate to act accordingly, being as far from the weakness of supposing that there is any reproach in having committed an error, to which the greatest and best men are sometimes liable, as we should be from so low a sense of duty as to think it would not be the highest and most deserved reproach that could be bestowed on any men (much more on Judges) that they were capable, from any motive, of persevering against conviction in apparently maintaining an opinion which they really thought to be erroneous.

We take the liberty to request, sir, that you will be pleased to lay this Letter before the Legislature of the United States at their next session, and have the honor to be, with the highest respect, sir, your most obedient and most faithful servants,

James Iredell,

One of the Associate Justices of the  Supreme Court of the United States.

Jno. Sitgreaves,

Judge of the United States   for the North Carolina District.

The President of the United States.

The Founders' Constitution
Volume 4, Article 3, Section 1, Document 16
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.

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