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ated that it would be beneath the dignity of a President of the United States occasionally to transact business with a foreign Minister. But in what light the public might view the establishment of a precedent for negotiating the business of a Department, without any agency of the Head of the Department who was appointed for that very purpose, I do not at present pretend to determine: Nor whether a similar practice, in that case, must not of right be extended hereafter to all Diplomatic characters of the same rank. . . . And I hope you will consider this Confidential letter as an evidence of the extreme regret which I should feel, in being obliged to decline any propositions, as to the mode of doing business, from a person who has so many titles to my esteem as the Count de Moustiers. I will only add, that, under my present impressions, I cannot persuade myself, that I should be justifiable in deviating essentially from established forms.116

DIRECT ACTION

THE VERY Valuable solution of the federal problem which was reached by the principle of the supreme law of the land, as described in the "Story of the Constitution," involved coercive power operating directly upon the people. What the Congress of the nation constitutionally authorized it was the duty of the national executive to enforce, for he was to "take Care that the Laws be faithfully executed," 117 and he possessed the right to use as required both the civil and military arms of his power. It fell to Washington to establish this in the public mind, through the events of the Whiskey Insurrection; to prove that the nation would not countenance armed disobedience to its laws, and in the ultimate would put down with righteous force what subversive force had caused to rise. To some of the Federalist leaders the opportunity to show the fitness and might of the new government was probably not unwelcome; whether or not Washington shared in that gratification, he was prompt in the measures he deemed necessary to secure a return of popular obedience. What concerned the nation it was the nation's duty to secure directly and not through the instrumentality of the states; and "by firm exertions to maintain the Constitution and the laws." 118 The lesson was invaluable, its influence upon unionism important, and the wise example set by Washington in this respect, as in many others, became an element of national progress.

JUDGES AND EXECUTIVE AFFAIRS

THERE is nothing in the Constitution that refers to any relationship between the judiciary and the other two departments. The legislative sphere includes the regulation of the courts and the executive makes the appointments to them, and the judges are subject to legislative trial through impeachment though the executive can not

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remove them, while to review the acts of both is a province of the judges; but no common action is indicated, such as the presidential share in legislation or the Senate's participation in executive functions. The sole example to the contrary is the presiding of the chief justice at the impeachment trial of the President.

There was, however, British, colonial, and state precedent for the right of the legislature and executive to require opinions from the judges on matters submitted to them; that is, for a general preliminary judgment on the problem at hand, rather than a later decision when the law or executive action was involved in some particular case. Jay as secretary for foreign affairs had been one of Washington's chief advisers, and even after he became chief justice his private aid was sought. When Hamilton in November 1790 asked whether the judiciary should not combine with the other branches of the government to check official state opposition to the assumption of state debts, Jay advised against any action, although he did not make at that time a dictum against judicial participation in such an affair. That same month Jay wrote to Hamilton from Boston suggestions as to the coast-trade act and a revenue officer on the Canadian border, and to Washington on March 13, 1791, respecting a candidate for the marshalship in the District of New York; even though on February 27, 1790, he had in reply to an office-seeker who asked his influence said: "As to offices in the gift of other departments, I think it my duty not to interfere, nor to ask favours, it being improper for a judge to put himself under such obligations." 119 Iredell, too, declared in 1794 that since he had sat on the bench he had rigidly refrained from seeking to influence appointments.120 On September 8, 1792, Jay, in reply to a request, made suggestions to Hamilton about the handling of the earlier excise disturbances, and on April 11, 1793, sent the secretary a draft for the proclamation on neutrality.

When the justices started out on circuit, Washington wrote them a letter on April 3, 1790, saying: "As you are about to commence your first Circuit, and many things may occur in such an unexplored field, which it would be useful should be known; I think it proper to acquaint you, that it will be agreeable to me to receive such Information and Remarks on this Subject, as you shall from time to time judge expedient to communicate." 121 Iredell wrote on January 23, 1792, about judicial procedure, premising that because of the President's letter of April 3, 1790, he was taking "the liberty to state some circumstances of great moment that occurred in the last Southern Circuit,. . . . I have been thus particular in stating this interesting

subject, because it appears to me of the highest moment, although I believe it would be difficult to devise an unexceptionable remedy. But the discussion of questions wherein are involved the most sacred and awful principles of public justice, under a system, without precedent in the history of mankind, necessarily must occasion many embarrassments which can be more readily suggested than removed." 122

Washington also wrote Jay on November 19, 1790, apropos the annual message: "If any thing in the Judiciary line, if any thing of a more general nature, proper for me to communicate to that Body at the opening of the session, has occured to you, you would oblige me by submitting them with the freedom and frankness of friendship. "123 Jay's suggestions to Hamilton from Boston were indirect responses to this desire. Such things were considered as the private actions of men interested in public affairs and with the knowledge and ability that made their suggestions valuable, and whose ermine was not considered as depriving them of the rights of citizenship. Jay also set the precedent of employing judges on other affairs, when in 1794 he accepted the special mission to Great Britain, retaining his seat on the bench while on this alien service. The criticism of it was inspired by political factionalism.

REFUSAL OF JUDICIAL OPINION

THUS the judges in those earlier days, even as now, continued to have interest in public affairs as citizens, but the limitation upon their actions as judges was sharply defined by the justices themselves in Washington's first administration. The event that established the custom of the national courts' avoidance of any expression of judicial opinion, except in cases before them in due judicial course, came in 1793 during the controversary over the violation of American neutrality by the French. And what is meant by due judicial course, or judicial power, was described by Justice Miller as the "power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision." 123 a

At a Cabinet meeting on July 12 it was agreed that "letters be addressed to the Judges of the Supreme court of the U. S. requesting their attendance at this place on Thursday the 18th. instant to give their advice on certain matters of public concern which will be referred to them by the President." 124 On July 18 a series of twentynine questions to be submitted to the Justices was drawn up by Hamilton. These were sent to the justices by Jefferson with a letter in which he said: "These questions depend for their solution

JUDICIARY AND OTHER DEPARTMENTS

429 on the construction of our treaties, on the laws of nature & nations, and on the law of the land, and are often presented under circumstances which do not give a cognizance of them to the tribunals of the country. Yet their decision is so little analogous to the ordinary functions of the Executive, as to occasion much embarrasment and difficulty to them. The President would therefore be much relieved if he found himself free to refer questions of this description to the opinions of the Judges of the supreme court of the US., whose knolege of the subject would secure us against errors dangerous to the peace of the US., and their authority ensure the respect of all parties."

" 125

The justices then in Philadelphia, Jay, Wilson, Iredell, and Paterson, replied on July 20, 1793, to Washington: "The question whether the public may, with propriety, be availed of the advice of the Judges on the questions alluded to, appears to us to be of much difficulty as well as importance. As it affects the judicial department, we feel a reluctance to decide it without the advice and participation of our absent brethren." 126 Washington on July 23 politely renewed the question of consideration: "The circumstances which had induced me to ask your counsel on certain legal questions interesting to the public, exist now as they did then; but I by no means press a decision whereon you wish the advice and participation of your absent brethren. Whenever, therefore, their presence shall enable you to give it with more satisfaction to yourselves, I shall accept it with pleasure.' On August 8 the justices, presumably reinforced by Cushing and Blair, made their definite refusal: "We have considered the previous question... [regarding] the lines of separation drawn by the Constitution between the three departments of government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong argument against the propriety of our extra-judically deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments." 128

" 127

REFUSAL OF NONJUDICIAL DUTIES

AT ABOUT this same time the judges first placed on record their decision that just as they could not respond to requests beyond their "judicial power," so also they could not be compelled by law to exercise nonjudicial functions. The attempt by Congress to assign to circuit courts duties under a pension law in 1792 led to the Hayburn,

Chandler, and Yale Todd cases, which challenged the constitutionality of the law. At that time Jay, Cushing, and Duane, sitting in circuit court in New York in April 1792, declared: "That neither the Legislature nor the executive branches, can constitutionally assign to the judicial any duties but such as are properly judicial, and to be performed in a judicial manner." 129 The decision then reached has been repeatedly reaffirmed. No objection seems to have been made to the employment of the district marshals in taking the first census, for which work extra compensation was granted; and the judges have always been available for outside services performed as citizens and not officially, such as Jay's mission and Justice Harlan's share in the Bering Sea arbitration.

The judges did not, however, find it necessary to stand aloof respecting their own organization. A letter dated February 18, 1794, to Washington enclosed a representation to Congress signed by the justices, which the President sent on to Congress on February 19, saying that it pointed out "certain defects in the judiciary system." 130

CHARGES TO GRAND JURIES

THE COURTS had their not unimportant share of influence upon the popular adjustments made necessary by the new government. The justices traveled on circuit and, changing from one circuit to another, had an excellent opportunity of studying conditions throughout the land at first hand. That they kept their eyes open is evident from Jay's correspondence, and more especially from Iredell's. The repeated journeys of such prominent men from other sections must be placed with Washington's tours as formative events, influences promotive of unionism; indeed, they were probably more influential upon the attitude of the regions than were his swift visits of enthusiasm. The give and take of the legal and social intercourse of the justices was important, but even more so was the advice, instruction, and constitutional principles expounded in the semi-annual charges delivered by them in the circuit courts. These were often printed in full in the local papers, and copied elsewhere. Iredell's charge to the grand jury at Boston on October 12, 1792, he and Wilson coming up from North Carolina and Pennsylvania to hold the court, contained the following:

Perhaps in no country in the world have been within so few years exemplified such awful and important lessons. We have been taught, not only the value of Liberty, but what it was much more difficult to learn, that liberty itself, in order to be truly enjoyed, must submit to reasonable and considerate restraints. . . . The peculiar object of the government of the United States is to

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