Robert R. Livingston and Gouverneur Morris to John Jay, 26 April 1777
[Kingston. 26 April 1777.]
D r Sir–
We were much surprized at your Letter to M r . Hobart as we could not perceive the Danger which would result from permitting the several Courts to appoint their own Clerks while on the other Hand great Inconveniences must arise from suffering them to be independent of such Courts and of Consequence frequently ignorant always inattentive. Neither had we the most distant Idea that a Clause of this Sort could meet with your Disapprobation since you was so fully of Opinion to appoint by Judges of the Supreme Court not only Clerks but all other civil officers in the Government.
As to what you mention about the Licensing of Attornies these might perhaps be a Propriety in permitting one Court to do this Drudgery for the Rest if we could agree upon the proper Court but as the Gentlemen who preside in each may think themselves qualified to determine as well upon the Abilities of the several Advocates as upon the Merits of the Causes advocated it will not be quite easy to perswade them that they have not an equal Right with others to say who shall and who shall not be entitled to practise 1
The Division of the State into Districts was in your own Opinion as you wi[ll w]ell remember improper as a Part of the Constitution and only to be taken up by the Legislature If this Opinion was well founded, there can be no great Evil in the Omission. Neither had you any Ground to suppose that we would go into the Connecticut Plan of holding up which we have declared to be in our Opinion inconvenient and by Reason of the rotatory Mode of electing entirely useless. 2
But if we had been so fortunate as to agree in all or any of your Ideas yet as the Government was not only agreed to but solemnly published it would have been highly improper to attempt any Reconsideration. Besides this the Difficulties we were obliged to wade thro in Order to get any Government at all meerly by Reason of Reconsiderations were so great and by us so highly reprobated that no Persons could have stood in a more awkward Situation to propose them.
Judge then our Amazement at reading a Letter from M r M c Kesson to his Fellow Secretary 3 in which your Sentiments ag t . the Power vested in the Courts are blazoned in glowing Colours and consider how far your Reputation may or may not contribute to make this Constitution a living Law or a dead Letter according to the Scale in which you shall choose to place it.
For many Reasons we could have wished that upon perusing this Clause you had written to us upon the Subject without sporting your Sentiments to the Secretary. They are now public and may perhaps produce no very agreable Consequences and such as certainly cannot be pleasing to you should you be convinced as we are and expect you will be that the Clause complained of stands right.
We wish you could get here soon as many Matters of considerable Importance are on the Carpet. 4 We are yours etc
Rob t R Livingston Gouvr Morris