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By the papers, which I have now the honor of returning to you, a "wish seems to be expressed that the President should recommend to Congress a digest of federal law, the appointment of one person only to such a service, and the selection of the author of those papers for that work.
Whether, at a future day, when Congress shall appear to have neglected or slumbered over the subject, it may be expedient to rekindle their attention by a special recommendation, I pretend not to foresee. But, at present, it may be affirmed, that the House of Representatives possess, in the four last paragraphs of the notes to the Report on the Judicial System, an unequivocal suggestion of this very point. I therefore take the liberty of referring you to them.
The suggestion, indeed, having come from a quarter which affects no title to the deference of that body, would undoubtedly be enforced by the solicitude of the Executive. But I have greatly erred, if I do not discover one characteristic of its conduct to be, not to throw any weight of personal or official character into measures, when no crisis demands it. If, then, the judicial system shall ever be revised, a federal code will stand prominent to view. If the judicial system shall not be revised, the federal code itself, as speaking more feebly to the particular interests and feelings of the House, can hardly expect to be more kindly treated. In the midst of the agitations, which have been or will be produced by deliberations on the war, the excise, the fisheries, the manufactures, the trade with Great Britain, the regulations of a mint, the militia, and many other topics of an animating cast, it will probably be asked, what peculiar and immediate urgency has the President remarked for inviting Congress to this abstract inquiry? Is there any danger of the two branches of the Legislature forgetting it, if it be important ? Especially as it is their direct duty to originate proposals for establishing or amending any system of laws.
If, with a recommendation to this effect, another should be united, that a single person should execute the work, some uncommon sensations of surprise may be created. To qualify that single person, he ought to be accurately versed in the legislation and jurisprudence of every State. Nay, I am not certain that he ought not to know the very prejudices of each State. For it will not be enough to draw a line of partition between the Federal and State Governments, without having some regard to the temper of the latter. The necessary information can be contributed only by a number of able men, differently situated in the United States. These men can be found, and perhaps their reluctance may be overcome, and they may be induced to divide the Herculean task among them. But, even with a division of the responsibility, they ought to be diffident.
Should it, however, be thought advisable, that the project should be now favored by a special communication from the President, and that a single person should be preferred, I certainly shall add nothing concerning any gentleman who may be so happy as to enjoy the highly-valuable endowments requisite for the fulfilment of the trust. But may it not be seriously apprehended, that the employment of a Judge in such a business, will excite a jealousy among those of his associates, who will not acknowledge their inferiority? Will it not warp him in all his decisions to those interpretations which he may have given of the Constitution? May he not rather lean in his judgments more to what he recollects to have been his intention in drawing a law, than obey the settled rules of construction? And who can say, let him be a Judge or Tvliat he will, that the glossary or comment, which he alone shall furnish, may not, insensibly, and contrary to his own honest mind, be tinctured with party views?
Upon the whole, although I believe that the digest, will sooner or later be attempted, yet am I sure that the Legislature will not cordially patronize it, until its necessity shall be more obvious. I intended to have waited on you personally with this letter j but having been detained in Court during the whole week, I was unable to do so.
I have the honor to be. Sir, with a sincere, and affectionate attachment and respect, &c.,
- Edmund Randolph
- Correspondence of the American Revolution; Being Letters of Eminent Men to George Washington, from the Time of His Taking Command of the Army to the End of His Presidency, Volume IV., Jared Sparks, 1853