Before this shall reach you, your appointment as one of the Judges to hear and determine a cause of great consequence and expectation between the States of New York and Massachusetts will be notified to you in form by Congress.(1) As both parties are desirous of the attendance of all the Gentlemen in the appointment, the Subscribers Agents for the contending States have conceived it to be their duty to ask the favour of the presence of all the Judges upon the Trial. We are urged to this by an ardent desire of preserving an harmony and cultivating a good understanding between the respective States which in this matter we represent: for should a cause of this magnitude be decided by a bare quorum of the Federal Court it would not probably give that satisfaction and contentment which might otherwise be expected.
A Federal Court is the only method of deciding controversies on real property between the States, & should Gentlemen of the first rank in point of ability decline the Office this institution however useful and necessary must sink into disrepute and be rendered incapable of yeilding that advantage which the union expected from it.
Though we consider a pecuniary compensation as the least inducement to your attendance yet we do assure you that it shall be such as will give you the most intire satisfaction. The first Tuesday in June next is agreed on for holding the Court.(2) Please to direct an answer to the President of Congress.(3) We are with sentiments of esteem and respect, Your most Obedient humble Servants,
J Lowell } Agents Jas. Duane } Agents
James Sullivan} for John Jay } for
R King } Massachusetts Walter Livingston } New York
RC (NN: Monroe Papers). In a clerical hand, addressed by James Duane, and signed by John Lowell, James Sullivan, Rufus King, John Jay, Walter Livingston, and Duane. FC (NHi: Duane Papers). In a clerical hand and endorsed by Duane: "Letter from Agents of Massachusetts and New York to the gent. nominated Judges of the federal Court. Circular. 31st Decem 1784. Separate Letters signed as above addressed to the honorable Robert Hanson Harrison, John Rutledge, George Wythe, William Grayson, James Monroe, Thomas Johnson, George Reade, Isaac Smith, William Patterson."
1 For Monroe's appointment as one of the judges to hear the Massachusetts-New York western land dispute, see JCC, 27:709-10; and New York Agents' Journal, December 4-9, notes 5-7.
This letter was written under the assumption that attested copies of the December 24 congressional proceedings on the selection of judges would soon be transmitted by the president or secretary of Congress, but that expectation was disappointed when differences between the Massachusetts and New York agents broke out over the site of the trial after Williamsburg was selected on January 21. The agents probably sent copies of this letter to all nine of the judges on December 28 or 31 (see document note), but further communication became surprisingly irregular. The Massachusetts agents sent additional letters to at least five of the judges in January, and President Richard Henry Lee wrote to John Rutledge on the 24th, but Lee's failure to send official notification to the other judges while the New York protest over the Williamsburg site was pending led the Massachusetts agents to send a special courier to some of the southern nominees in a desperate effort to ensure the appearance of a quorum at the appointed time. Furthermore, the New York agents refused to cooperate in certifying to President Lee that the two parties had agreed upon the first Tuesday in June for the court to convene, although this agreement had been reached before the present letter was written. For the documents related to these developments, see Massachusetts Agents to John Rutledge et al., January 14, and to William Paterson, January 24; Richard Henry Lee to John Rutledge, January 24; Massachusetts Delegates to John Hancock, February 7; and Massachusetts and New York Agents to George Wythe, April 9, 1785.
2 For the difficulties encountered in certifying this date to Congress, see Rufus King's Certiticate, January 22, and King to John Jay, January 24, 1785.
3 For Monroe's response to President Lee signifying his acceptance, see JCC, 28:182; and Monroe to Lee, March 20, 1785. The responses of the other eight judges (in the order recorded in the journals) were as follows: Robert Hanson Harrison declined, February 15 and March 3; Thomas Johnson accepted, February 15 and 27; George Wythe accepted, February 23; William Grayson declined, March 21; Isaac Smith accepted, March 6; William Paterson accepted, March 26; George Read accepted, March 30; and John Rutledge declined, March 26. See JCC, 28:125n, 181, 181n, 182, 187n, 199, 211, 320, 351; and PCC, item 49, fols. 277-80, item 78, 10:495-98, 12:379-86, 13:321-24, 333-40, 19:479-86, 21:367-70, 24:503-6. For the appointment of judges to replace Grayson, Harrison, and Rutledge, see Charles Thomson to William Fleming, Samuel Johnston, and John Sitgreaves, June 9, 1785.