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A Consideration of Extra-Judicial
Activities in the Pre-Marshall Era
by David Eisenberg
Legalists and laymen both have long shared misgivings
over the propriety of extra-judicial activity. Conventional
wisdom has frequently maintained that judges, particularly
Supreme Court justices, cannot satisfactorily perform
their duties as impartial adjudicators without first cloistering
themselves from the society in which they live. What has
been too often forgotten is the simple but poignant fact
that Supreme Court justices are people, too.
None have realized this better than the justices themselves.
Indeed, the roster of extra-judicially active Supreme
Court Justices spans the length of the Court's history.
John Jay, Oliver Ellsworth, David Brewer, Louis Brandeis
and William Howard Taft are but a few of the numerous
jurists whose boundless energies and talents could not
be entirely contained within courtroom walls.
Yet even some of the most active justices have acknowledged
limits to their activities. Such voluntary restraints
have entailed difficult line-drawing, especially for the
early justices who had no precedent to follow. Failure
to articulate a comprehensive set of reasons to explain
what makes some or all extra-judicial conduct improper
has made the task especially enigmatic. Yet, perhaps by
examining some of the precedents set by the first justices,
those in the pre-Marshall era, it is possible to formulate
a rational standard for reviewing nagging questions of
extra-judicial propriety.
A look at the early Court justices' attitudes towards
off-the-bench activities can hardly be all-inclusive given
the limitations of time and space. Accordingly, I have
selected what I believe are four representative examples:
Chief Justice Jay's participation on the Sinking Fund
Commission; the Justices' role in the invalid pension
cases; their response to President Washington's request
for an advisory opinion on foreign relations; and Chief
Justice Jay's diplomatic mission as envoy extraordinary
to Great Britain.
Chief Justice Jay's membership on the Sinking Fund Commission
marked one of the earliest instances of extra-judicial
conduct. Jay served on the Commission pursuant to Congressional
legislation authorizing purchases of the national debt
under the direction of the Vice President, the Chief Justice,
the Secretaries of State and Treasury, and the Attorney
General.[1] While Jay apparently saw nothing necessarily
wrong with a justice 's participation in this particular
non-judicial activity, he would not let his work on the
Commission interfere with his Court duties. Jay made this
clear when Vice President Adams requested his attendance
at an important Commission meeting.[2] Writing to Treasury
Secretary Hamilton, Jay explained that he must decline
the request, lest he miss the next session of the New
York circuit.[3]
Considering his "Duty to attend the Court as being
in point of legal Obligation primary, and to attend the
Trustees as secondary," Jay could "conceive
that the Order would be sometimes inverted if only the
Importance of the occasion was considered."[4] The
Chief Justice's firm stance induced his fellow commissioners
to accept a written opinion from the absent member.[5]
Congress' invalid pension scheme provided another opportunity
for more than one justice to flex his judicial muscles.
Under the plan, the various circuit courts were to "examine
into the nature of the wound, or other cause of disability"
of each eligible pension applicant and, if satisfied as
to the case's merit, were to recommend to the Secretary
of War a suitable compensation award.[6] The Secretary
of War would thereupon be entitled either to place the
applicant on the pension list, or to withhold the applicant's
name and notify Congress "in any case where the said
Secretary shall have cause to suspect imposition or mistake."[7]
Not all the circuit judges accepted the new du ties that
Congress thrust upon them. Sitting on the Pennsylvania
Circuit, District Judge Peters and Supreme Court Justices
Wilson and Blair submitted to President Washington a list
of reasons as to why they could not abide by the Act.
First, they observed that its scheme "forms no part
of the power vested by the constitution in the courts
of the United States." Second, the judges noted that
the legislative and executive departments' ability to
revise and control the court's decisions was "radically
inconsistent with the independence of that judicial power
which is vested in the courts, and, consequently, with
that important principle which is so strictly observed
by the constitution of the United States."[8]
Similarly, on 8 June 1792, members of the North Carolina
circuit court wrote the President to express their objections.
In their letter, Supreme Court Justice Iredell and North
Carolina District Judge Sitgreaves informed Washington
that the "courts cannot be warranted. . . in exercising.
. . any power not in its nature judicial, or, if judicial,
not provided for upon the terms the constitution requires."[9]
Like the Pennsylvania circuit judges, Iredell and Sitgreaves
criticized the Act for permitting the executive branch
to review court decisions. On this score they argued that
appellate 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 behavior,
by which tenure the office of Secretary of War is not
held." With regard to legislative review, they added
that:
no decision of any court of the United States can, under
any circumstances, in our opinion, agreeable 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.
Iredell and Sitgreaves would carry out the Act's
provision only if the statute could be construed to authorize
them to perform "personally in the character of commissioners."
However, the judges doubted the Act could be so interpreted:
"The power appears to be given to the court only, and
not to the judges of it."[10]
Sitting on the New York circuit court, New York District
Judge Duane, Associate Supreme Court Justice Cushing and
Chief Justice Jay harbored no such doubts as to the interpretation
of the Act. Agreeing to "execute this act in the capacity
of commissioners," the judges at the same time cautioned
that "by the constitution of the United States, the
Government thereof is divided into three distinct and independent
branches; and that it is the duty of each to abstain from
and to oppose encroachments on either." As commissioners,
the judges deemed themselves "at liberty to accept
or to decline that office."[11]
More problematic was the question of advisory opinions.
In some situations the Supreme Court justices seemed willing
to advise executive branch members, whereas in other instances
they expressed a reluctance, if not a downright unwillingness,
to doing so. When it came to advising the president on the'
defects of the Judiciary Act, the justices made not the
slightest hesitation: In their letter of 9 August 1792 discussing
the rigors of circuit riding, they bitterly complained 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."[12] Chief Justice Jay
hardly batted an eyelash when Treasury Secretary Hamilton
requested advice on various matters: On 8 September 1792
he wrote Hamilton to advise on how the president and other
chief figures in the national government should handle the
rebellions in western Pennsylvania;[13] and on 11 April
1793 he went even so far as to send Hamilton a drafted neutrality
proclamation for the president, as the Treasury Secretary
had requested."[14]
Yet when the North Carolina circuit judges rendered their
advisory opinion as to the constitutionality of the invalid
pension Act, they did so only reluctantly. Iredell and Sitgreaves
were willing to make an exception "in the present instance,
as many unfortunate and meritorious individuals may suffer
very great distress even by a short delay. However, they
recognized "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 . . . to a bias which may arise from a preconceived
opinion, even unguardedly, much more deliberately given."[15]
President Washington was to learn that court advisory opinions
were indeed the exception and not the rule. On 18 July 1793
Secretary of State Thomas Jefferson submitted to the justices
a list of twenty-nine questions concerning American foreign
relations in light of treaties and other laws.[16] Jefferson
explained that the President:
would 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 United States, whose knowledge
of the subject would secure us against errors dangerous
to the peace of the United States, and their authority insure
the respect of all parties.
The President, he wrote, understood that the justices
must first decide "whether the public may, with propriety,
be availed of their advice on these questions."[17]
The justices cited three reasons for declining to render
the advice sought. First, they noted that "the lines
of separation drawn by the Constitution between the three
departments of the government" were "in certain
respects checks upon each other." Second, they regarded
themselves as "judges of a court in the last resort."
Finally, they believed that the president's constitutional
power to request opinions from department heads applied
only to advice from executive departments.[18]
If the president could not always rely on the justices for
advice, then at least he could depend on them for diplomatic
service. This Washington discovered shortly after nominating
the Chief Justice to serve as envoy extraordinary to Great
Britain, on 16 April l794.[19] In deciding whether to accept
the appointment, Jay apparently gave little or no thought
to possible conflict between the new post and his judicial
office. For instance, in a letter to his wife dated 15 April
1794, while his nomination was still pending, Jay admitted
to "find[ing] myself in a dilemma between personal
considerations and public ones"[20]--though strangely
enough, not between two public ones. Similarly, the Chief
Justice wrote his wife following the nomination to tell
her that "to refuse [the appointment] would be to desert
my duty for the sake of my ease and domestic concerns and
comforts" (emphasis added).[21] And in a letter written
the following month, Jay assured his wife that the Philadelphia
Democratic Society's recent resolutions condemning such
an extra-judicial use of his services "give me no concern."[22]
Perhaps beneath Jay's nonchalant exterior lay a resetting
of priorities. It will be recalled that Jay, in declining
to attend a meeting of the Sinking Fund Commission, had
considered the possibility that his Court duties might not
always be his primary obligation. If ever another calling
could assume preeminence over judicial functions, it might
arguably be the appointment as envoy, coming as it did at
a time when many Americans thought war with Britain inevitable.
Given his prior diplomatic experience, most notably in negotiating
a peace treaty with Britain to end the American Revolution,
Jay might well have deemed himself among those best capable
of averting war with the former enemy. Whatever Jay's reasons
for accepting the post, he no doubt set a precedent for
Chief Justice Oliver Ellsworth, who under similar circumstances
accepted President Adams' appointment as envoy to France
in 1799.
What emerges from the justices' attitudes towards extra-judicial
conduct is a dizzying patchwork of ad-hoc justifications.
As historian Russell Wheeler has remarked, "It is at
bottom a question of discretion whether the judge can maintain
judicial independence while serving the nation off the bench."[23]
This observation, despite its accuracy, little explains
the seeming contradictions inherent in the justices' behavior.
Those wishing to reconcile the irreconcilable can turn to
Solomon Slonim 's well-conceived theory.[24] Slonim proceeds
to explain the justices' actions by means of a carefully
formulated "separation of powers" rationale. Distinguishing
between the "separation of institutions" and the
"separation of personnel,"[25] Slonim argues that
the constitutionally enshrined "separation of powers
doctrine was intended to require only the former.[26] Thus
he maintains that the justices acted perfectly consistently
in undertaking some extra-judicial duties as individuals
while turning down others "addressed to the judiciary,
as an institution."[27]
Slonim seeks to explain the justices' conduct, not to judge
it. He concludes as follows:
Having said all this, it could hardly be maintained that
it is a salutary practice for judges to be engaged in extra-judicial
activities. Serious questions of propriety, or even conflict
of interest, are too often present. These, however, are
matters for the statutory or ethical codes: they do not
impinge on the constitutional principle which seeks to ensure
the separation of the three functions of government, as
this principle was instituted in the Federal Constitution,
interpreted by the courts, and applied in practice.[28]
Further discussion of the "separation of powers
and related constitutional theories may be found in The
Federalist Papers.[29] In Paper Number 47, James Madison
attempts to clarify the "separation of powers"
concept in response to the critics' argument that the various
federal branches "are distributed and blended in such
manner as at once to . . . expose some of the essential
parts of the edifice to the danger of being crushed by the
disproportionate weight of other parts."[30] Citing
the philosopher Montesquieu, whom he regards as the chief
authority on the subject, Madison insists that the Frenchman:
did not mean that [the legislative and executive] departments
ought to have no partial agency in. or no control over,
the acts of each other. His meaning. . . can amount to no
more than this, that where the whole power of one department
is exercised by the same hands which possess the whole power
of another department, the fundamental principles of a free
constitution are subverted.[31]
Far from conceding to the critics, Madison maintains
that the new federal system remains ever faithful to Montesquieu
's "fundamental principles":
The magistrate in whom the whole executive power resides
cannot of himself make a law, though he can put a negative
on every law; nor administer justice in person, though he
has the appointment of those who do administer it. The judges
can exercise no executive prerogative, though they are shoots
from the executive stock; nor any legislative function,
though they may be advised with by the legislative councils.
The entire legislature can perform no judiciary act, though
by the joint act of two of its branches, the judges may
be removed from their offices, and though one of its branches
is possessed of the judicial power in the last resort. The
entire legislature, again, can exercise no executive prerogative,
though one of its branches constitutes the supreme executive
magistracy'. and another, on the impeachment of a third,
can try and condemn all the subordinate officers in the
executive department.[32]
Although confident
that his constitutional theory passes muster by Montesquieu's
standards, Madison prudently takes to explaining, in subsequent
papers, why some blending of powers is in fact necessary
to the federal scheme.
To Madison, blending is the system's safeguard, not its
undoing. In Federalist Number 48 he warns that "unless
these departments be so far connected and blended as to
give to each a constitutional control over the others,
the degree of separation which the maxim requires, as
essential to a free government can never in practice be
duly maintained."[33] Madison particularly fears
the national legislature, which "is everywhere extending
the sphere of its activity, and drawing all power into
its impetuous vortex."[34] Therefore, while the Virginian
wants none of the three branches "to possess, directly
or indirectly, an overruling influence over the others,"[35]
he believes "it is against the enterprising ambition
of [the legislature] that the people ought to indulge
all their jealousy and exhaust all their precautions."[36]
For such checks and balances to remain effective, "each
department should have a will of its own. . . ."
To achieve such independence, Madison proposes that each
branch "be so constituted that the members of each
should have as little agency as possible in the appointment
of the members of the others. In addition, "the members
of each department should be as little dependent as possible
on those of the others for the emoluments annexed to their
offices."[37] Most important, each department should
be endowed with "opposite and rival interests"
to give it the incentive "to resist encroachments
of the others."[38]
It is Hamilton, however, who addresses the problems peculiar
to the judiciary. Noting that the judiciary, unlike the
other government branches, "has no influence over
either the sword or the purse," Hamilton considers
the judicial department "the least dangerous to the
political rights of the Constitution." By the same
token, however, he admits that the court system will pose
no danger to the people's liberty only "so long as
the judiciary remains truly distinct from both the legislature
and the Executive."[39] To prevent the vulnerable
judiciary from "being overpowered, awed, or influenced
by its coordinate branches," measures must be taken
to ensure its "firmness and independence."[40]
These measures should include permanent tenure[41] and
fixed salaries[42] for the judges. Significantly, Hamilton's
proposals do not include a ban on extra-judicial service:
While Hamilton wishes the Supreme Court to be a "distinct
body" as opposed to "a branch of the legislature,"[43]
he ventures no opinion as to the propriety of an individual
judge's off-the-bench activity.
However, the delegates at the Constitutional Convention
of 1787 devoted ample time to considering the issue, albeit
in a limited context. On several occasions throughout
the spring and summer, the statesmen weighed the merits
of uniting the judiciary and executive departments in
a so-called Council of Revision. The proposed council
was to be granted a qualified veto power over legislative
bills. Although the Convention voted down judicial participation
no less than three times, numerous arguments on both sides
fueled lively debate.
Proponents of the revisionary council argued that only
through the executive and judiciary's combined efforts
could the mighty legislature's encroachments be thwarted.
Madison, Oliver Ellsworth and George Mason believed that
the judiciary 's participation on the council would imbue
the executive branch with the wisdom, firmness and confidence
it needed to challenge questionable legislation.[44] Mason
further argued that unless the judiciary could serve on
the council, the judges would, when deciding cases, have
to acquiesce in every law not plainly oppressive or pernicious.[45]
John Francis Mercer deemed it only fair that the judiciary
play a role in revising legislation in its preliminary
stages; for in his view, the judges could not void a bill
once duly passed.[46]
Opponents of the plan could cite abundant arguments of
their own. Elbridge Gerry, an especially outspoken critic,
insisted that the judiciary need not join hands with the
executive to protect itself from legislative encroachment.
Not only would the judiciary's exposition of the laws
furnish an adequate check;[47] but a combination of the
judiciary and executive would in fact overpower the legislature.[48]
Gerry even feared an ill effect on the executive, which
might succumb to "the sophistry of the Judges."[49]
Others, namely Nathaniel Gorham, Caleb Strong, John Rutledge,
Charles Pinckney and Roger Sherman, thought that the judges,
if allowed to help draft the laws, might possess an improper
bias when it came to interpreting them in court.[50] Luther
Martin argued that the Supreme Court would lose the people
's confidence if it attacked popular bill.[51] Martin,
along with Gerry and Gorham, also maintained that the
judges were ill-equipped to second-guess the legislature's
public policy choices.[52]
Records of the early Congressional debates evidence little
of the resistance which had marked the Convention's approach
to extra-judicial duties. Of course, this is not to say
that Congress always stood prepared to assign out-of-court
tasks to the Supreme Court justices. The House, in April
1790, voted down a provision which would have given the
justices power to determine the compensation to be awarded
inventors for their patents.[53] Nevertheless, the Annals
of Congress supply no evidence[54] to suggest that the
issue played any role in the debates preceding adoption
of the Sinking Fund Commission, the invalid pension scheme,
or the Mint Act of 2 April 1792.[55] However, the public
clamor surrounding Chief Justice Jay's appointment as
envoy extraordinary to Great Britain would soon demonstrate
that questions of extra-judicial propriety still remained
to be resolved.
Contemporary newspapers reflect mixed views of the Jay
mission. Supporters of the envoy appointment were quick
to point to Jay's unique personal qualifications for the
job. One writer insisted that Jay was the American best
able to "dovetail a treaty with the existing laws
and the country's present state."[56] Another described
him as "indisputably a great civilian, an able negotiator,
persuasive, though firm in his manners, irresistible in
his eloquence and finished in his personal accomplishments."[57]
Still others endorsing the appointment agreed that the
strength of Jay's talents and integrity made successful
negotiations likely.[58]
Proponents of the Jay trip gave numerous reasons to explain
why the envoyship was not incompatible with the chief
justiceship. Some supporters argued that the urgency of
a particular situation may sometimes justify an exception
to the general rule against plural officeholding.[59]
In fact, claimed another, Jay's Chief Justiceship would
bolster his credibility in Britain.[60] A persistent writer
who signed his letters "A. B ." noted that the
law did not require the chief justice's presence in Court
at all times, and that the justices had never all been
present at Supreme Court sessions anyhow.[61] Moreover,
the envoy mission would last only a short time, permitting
Jay to return to America in time for the court's February
term.[62] Even assuming a constitutional incompatibility
between the chief justiceship and a simultaneous envoyship,
there would still be no impropriety in Jay's filling the
envoy position, as he would simply no longer be regarded
as Chief Justice.[63] In any case, it was no more improper
to appoint Jay envoy extraordinary than it was to nominate
James Monroe, a United States senator, to serve as minister
to France.[64]
Like the proponents of the appointment, the critics rested
their case on a wide variety of arguments, Some based
their objections upon an antagonism towards any envoy
mission, or towards Jay's personal views, rather than
towards extra-judicial activity as such.[65] A good many
believed that employing a chief justice as a diplomat
would hurt the federal government as a whole as well as
the judiciary branch. If the nation could make do with
the chief justice's absence from the Court, asked one
individual, why not do away with the chief justiceship
altogether and save the government $4,000 a year? Or conversely,
if a justice's presence in the Court is necessary at all
sessions, then how could the Court manage during Jay's
absence?[66] Others complained that to assign multiple
offices to a single individual callously overlooked the
talents of others who held no offices at all.[67] In addition,
many invoked the separation of powers principle.
The various separation of powers arguments cited basically
acknowledged the importance of keeping the judiciary independent
from the other government branches. Some opponents of
Jay's envoy appointment, alarmed over a union of judicial
and diplomatic functions, stressed that a judge should
not make treaties that he may later have to expound and
apply in a courtroom setting.[68] Of perhaps greater concern
to critics, however, was the judiciary's susceptibility
to undue executive control. Some argued that the temptation
of lucrative offices subordinate to the executive would
rob the judiciary of its independent judgment.[69] Assigning
a chief justice to an overseas duty could seriously impede
an impeachment proceeding against the president, at which
the chief justice's presence and impartiality would both
be required.[70] One writer observed that the president's
act of sending away a justice, though not explicitly prohibited
by the constitution, nevertheless "violates a fundamental
and essential principle in every free government."[71]
This last argument raises an important point: The Constitution
may embody, by implication, concepts or propositions not
appearing expressly therein. The challenge is to determine
whether the Constitution implicitly embodies any given
principle. To meet that challenge, it is necessary to
formulate a working definition of a "constitutional
principle."
In keeping with the constitution's chief purpose, namely,
to provide an operational framework for American self-government,
a constitutional principle may be defined as any concept
which, when applied, will help enable the federal system
and its various components to function smoothly and in
a manner befitting a republican form of government. This
definition is sufficiently encompassing to permit us to
treat two great American staples, "separation of
powers" and "checks and balances," as constitutional
principles, even though they nowhere expressly appear
in the Constitution. The definition is also broad enough
to embrace virtually every argument voiced either for
or against specific examples of extra-judicial activity
during the pre-Marshall period.
But how, can two conflicting sets of concepts both be
constitutional? The answer lies in a balancing test. Two
sets of interests must be weighed against one another:
Article III interests, and those of the federal system
as a whole.
With respect to Article III, two major interests are at
stake: that of maintaining the integrity of the judiciary
as an independent branch, and that of safeguarding the
justices' credibility and effectiveness as impartial adjudicators.
There exist two means by which to satisfy the first interest,
those being the separation-of-powers principle (under
the Montesquieu-Madison-Slonim formulation) and the concept
of checks and balances. These means also do much towards
satisfying the second interest. Yet something more is
needed. Given that the Court in and of itself possesses
virtually no power to enforce its judgments, much of its
effectiveness depends upon the voluntary cooperation of
the parties arguing before it. The Court will stand little
chance of receiving this cooperation if its justices do
not behave in a manner commanding respect. Thus the Justices
often must go a step beyond technical compliance with
the "separation of powers" and "checks
and balances" principles; to satisfy the second Article
III interest, they must avoid even the appearance of impropriety.
Under the balancing test, an extra-judicial activity could
at times be justified even where Article III interests
have been violated. For by this standard, the injury which
performance of the activity will inflict upon Article
III interests must be weighed against the harm which non-performance
will send upon the rest of the federal system. This balancing
technique may have been the approach that Jay and other
justices took when assuming tasks conflicting to some
degree with Article III duties. Of course., only the least
drastic means necessary should be used to satisfy the
overriding interest--as when Jay and his colleagues on
the New York circuit court consented to comply with the
invalid pension scheme, but only as willing commissioners
and not as coerced judges.
Striking the proper balance always poses difficulties,
and we need not assume that the early justices always
made correct choices. Today, after nearly two centuries
of government under our Constitution, we may feel less
need to rely on extra-judicial activity than did the pioneer
justices and their contemporaries, who lived at a time
when the federal system was more an experiment than a
reality. Nevertheless, we should always give heed to the
competing interests we forfeit as we make each choice.
To do otherwise would be to thwart our Constitution in
spirit, if not in letter.
Endnotes
1 Acts of 12 Aug. 1790, ch. 47, Section 2, 1 Stat. 186.
2 Adams to Jay, 21 Mar. 1792, 11 H. Syrett, The Papers
of Alexander Hamilton 159-61 (1962).
3 The Judiciary Act of 24 Sept. 1789, ch. 20 Section 4,
1 Stat. 74-5, required the Supreme Court Justices to ride
circuit.
4 Jay to Hamilton, 23 Mar. 1792, 11 H. Syrett at 172-3.
5 11 H. Syrett at 193-4.
6 Act of 23 Mr. 1792, ch. 11, ¶ 2, 1 Stat. 244.
7 Id., Section 4.
8 1 American State Papers (Misc.) 50-1.
9 Id. at 52
10 Id. at 53.
11 Id. at 49-50.
12 Id. at 52.
13 3 H. Johnston at 486; 333 J. Fitzpatrick, The Writings
of George Washington from the Original Manuscript Sources
1745-1799 15-19 (1940).
14 Id. at 473-7.
15 1 American State Papers (Misc.) 53.
16 3 H. Johnson at 486; 33 J. Fitzpatrick, The Writings
of George Washington from the Original Manuscript Sources
1745-1799 15-19 (1940).
17 3 H. Johnston at 486-7.
18 Id. at 488-9.
19 33 Fitzpatrick at 332.
20 Jay to Mrs. Jay, 15 Apr. 1794, 4 H. Johnston at 3.
21 Jay to Mrs. Jay, 19 Apr. 1794, id. at 5.
22 Jay to Mrs. Jay, 12 May 1794, id. at 21.
23 Wheeler, "Extra-judicial Activities of the Early
Supreme Court," The Supreme Court Review 123, 131
(1973).
24 Slonim, "Extra-judicial Activities and the Principle
of the Separation of Powers," 49 Conn. Bar Journal
391 (197).
25 Id. at 395-6
26 Id. at 408.
27 Id. at 409.
28 Id. at 410.
29 One should note, however, that The Federalist is not
a formal treatise but a political document to be read
accordingly.
30 The Federalist No. 47, at 138-9 (J. Madison) (R. Fairfield
ed. 1966).
31 Id. at 140.
32 Id. at 140-1.
33 Id. No. 48, at 146 (J. Madison).
34 Id. at 147.
35 Id. at 146.
36 Id. at 147.
37 Id. No. 51, at 159 ( J. Madison).
38 Id. at 160.
39 Id. No. 78, at 227 (A. Hamilton).
40 Id. at 228.
41 Id. at 228.
42 Id. No. 79, at 235 (A. Hamilton).
43 Id. No. 81, at 242-4 (A. Hamilton).
44 2 M. Farrand, The Records of the Fed. Convention 74
(rev. ed. 1937).
45 Id. at 78.
46 Id. at 298.
47 1 id. at 97.
48 2 id. at 78.
49 1 id. at 139.
50 2 id. at 75, 79, 80, 298, 300.
51 Id. at 77.
52 Id. at 73, 75, 76.
53 2 Annals of Cong. 1519 (1790).
54 Incomplete records of early House, and especially Senate,
proceedings make it hazardous to draw sweeping conclusion
from what does not appear in the extant materials.
55 The Mint Act of 2 April 1792, ch. 16, Section 18, 1
Stat. 246, 250 provided for the Chief Justice's assistance
in inspecting the gold and silver used for minting coins.
56 "Philadelphia," General Advertiser (Philadelphia),
25 April 1794.
57 "United States--Halifax, (N. Caro.) May 28,"
Gazette of the United States and Evening Advertiser (Philadelphia),
6 April 1794.
58 A Friend to Peace, "For the Baltimore Daily Intelligencer,"
The Baltimore Daily Intelligencer (Baltimore), 24 April
1794: "New York, May 10," The Daily Advertiser
(New York), 10 May 1794.
59 "From the General Advertiser," Gazette of
the United States and Evening Advertiser (Philadelphia),
30 April 1794; "Philadelphia," General Advertiser
(Philadelphia), 25 April 1794.
60 "United States--Halifax, (N. Caro.) May 28,"
Gazette of the United States and Evening Advertiser (Philadelphia),
6 June 1794.
61 A. B., "Philadelphia, June 6," Gazette of
the United States and Evening Advertiser (Philadelphia),
6 June 1794; A. B., "For the Gazette of the United
States," Gazette of the United States and Evening
Advertiser (Philadelphia), 13 June 1794.
62 A. B., "For the Gazette of the United States,"
Gazette of the United States and Evening Advertiser (Philadelphia),
13 June 1794.
63 Id.; A. B., "Philadelphia; From a Correspondent,"
Gazette of the United States and Evening Advertiser (Philadelphia),
11 June 1794.
64 A. B., "Philadelphia, June 6," Gazette of
the United States and Evening Advertiser (Philadelphia),
30 May 1794; "From the General Advertiser,"
General Advertiser (Philadelphia), 3 June 1794.
65 See, e.g., "From a Correspondent," General
Advertiser (Philadelphia), 28 April 1794; The Daily Advertiser
(New York), 29 July 1794; Greenleaf's New York Journal,
& Patriotic Register (New York), 14 May 1794.
66 "From a Correspondent," General Advertiser
(Philadelphia), 28 April 1794.
67 "From a Correspondent," General Advertiser
(Philadelphia), 28 April 1794; The Daily Advertiser (New
York), 29 July 1794.
68 "From Correspondents," Independent Chronicle
and Universal Advertiser (Boston), 28 April 1794, Greenleaf's
New York Journal, & Patriotic Register (New York),
14 May 1794.
69 "Observations to C. J. Jay's appointment,"
General Advertiser (Philadelphia), 29 April 1794; Greenleaf's
New York Journal (New York), 14 May 1794.
70 Greenleaf's New York Journal (New York), 14 May 1794;
"From a Philadelphia Correspondent American National
Cockade," Greenleaf's New York Journal (New York),
10 May 1794; "Observations to C. J. Jay's appointment,"
General Advertiser (Philadelphia), 29 April 1794.
71 "For the Chronicle," Independent Chronicle
and the Universal Advertiser (Boston), 29 May 1794.
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