Page:The Supreme Court in United States History vol 1.djvu/135

Rh United States, whose knowledge of the subject would secure us as against errors dangerous to the peace of the United States, and their authority ensure the respect of all parties. He has therefore asked the attendance of such of the Judges as could be collected in time for the occasion, to know, in the first place, their opinion, whether the public may, with propriety, be availed of their advice on these questions. And if they may, to present, for their advice, the abstract questions which have already occurred, or may soon occur, from which they will themselves strike out such as any circumstances might, in their opinion, forbid them to pro- nounce on.

Hamilton had objected to this reference to the Judges, on the ground that the matter was not within the province of the Judiciary. Washington, however, in deference to the wishes of Jeflferson, had decided to take this action, and accordingly Hamilton had framed twenty-nine questions relating to international law, neutrality and the construction of the French and British treaties, which were transmitted with Jefferson's letter for the consideration of the Judges.^ While the impression was prevalent at that period that the Presi- dent had the right to seek the opinion of the Judges on questions of law, it is interesting to note that this move on his part was the subject of adverse criticism in the pro-French newspai>ers, one of which conmiented as follows: '"It is said that the Judges of the United States have been convened to assist the understanding of our Executive on the treaty between France and the United States. It is a little strange that lawyers only

1 See Jeffersom, VII, letter of July 18, 1798; Wa$hingUm, X, letter of July i», 179S; Washington, X, 542-543. Twenty-two of these questions are printed in HamUUm (Lodge's ed.)t IV, 198, 197, note; and see AdoUory Opinions in Legal E$»ay$ (1908), by James B. Thayer. It may be noted that Hamilton had found no objection to consulting personally with Jay over such matters, for he had cor- responded with him, seeking advice as to the issue of the Neutrality Proclama- tion; see Jap, III, letters of April 9, 11, 1792; also with regard to Uie necessity ol a Presidential proclamation as to the Whiskey Insurrection. Jay, 111 ; HamU- Um, X, letter ol Sept. 8, 1798.