To Thomas Jefferson from David Howell, 3 June 1790
From David Howell
Providence June 3d. 1790.
Sir
Although I may not be among the foremost, I assure you, I am among the most sincere in Congratulating you, at once, on your return to your native Country, and, on your appointment to the place of Secretary of State.
Since the adoption of the Federal Constitution by this state I can inform my friends that I am alive, and make mention of the place where I live with more pleasure, than I could before. For, indeed, life would be scarcely worth having if one should be condemned to Spend it under such a Government as we have lately experienced.
After my return home from three successive Years service in Congress, for which I recieved the thanks of our Legislature, an arrearage was acknowledged [as due] to me of near Two Thousand Dollars. This they have confiscated, together with other securities, because I refused to take their paper money at par in payment.
I was also under the necessity of resigning my seat in our superior Court to avoid a more mortifying event, on account of the general concurrence of the people in the execution of their paper money system. In confidence of your friendship, of which you was pleased to give me sufficient proofs in the course of our residence at Anapolis, I have presumed to mark to your address, a Packet of pamphlets. I pray you to send them to the several Gentlemen whose names are written on them.
I send these pamphlets as well to honour the memory of my departed friend, the writer, as to furnish my acquaintance, who are yet in Life, and in power with Evidence of the part I have acted, while honoured with Judicial power, against the paper money laws of this State.
Having accidentally heard that the President of the United States did me the honour to enquire into my present political character and flattering myself that he might be prompted by other motives than mere curiosity, I have also enclosed the U. S. Chronicle of February 25. 1790 containing some of my sentiments under the signature of Solon Junior. Both the papers in this Town contain other peices under the same signature. As such peices are hastily written and seldom copied, they cannot be correct. In the Providence Gazette of May 22d. Ult. enclosed, you will also see a piece under the signature of a Farmer. I Live on a Farm, in fact, in the vicinity of this Town. In the same Gazette of April 17. Ult. you will also see two peices written by me just before our late Election. These may explain to you the reason why I was opposed as attorney General and beat by an Antifederalist of no abilities.
Although I had been honored with a seat in some of our Courts ever since the revolution and addicted myself to the study of Law I had no thoughts of descending to the practice, ‘till reduced, by the operation of eniquitous Laws, to the necessity of seeking a livelihood from it.
This Letter will be copied by my second son, in the sixteenth year of his age. His Collegiate Education is not finished: I have also three Daughters, my youngest is about the age your little daughter was when I saw her at Philadelphia. I mention these Circumstances to shew you (what I severely feel) that I am striped of my resources at a period of Life when they are most wanted for the Education of my Children.
Since I have thus far entered into documents of my principles I will indulge my vanity so far [as to] enclose you Copy of an Oration delivered by my eldest son on his Commencement in the [College] in this Town last September. You will render me a singular satisfaction by putting [this] Oration into the hands of General Washington for his perusal at some leisure moment, explaining to him such parts of this letter as you may think proper.
Our General Assembly will be in Session next week when our senators will be chose[n to] proceed to take their seats, and measures taken for the Election of our Representative. There [will] be a number of Candidates, all Decided Federalists and opposers of Paper money will proba[bly be] excluded from an Election. Our present Governor is a man of good abilities and I hope it [will be] one of his objects to moderate the heat of party. It will give you pleasure to Learn that our C[ollege] is in a flourishing Condition, and that the College funds in the hands of our Legislature are [con]fiscated private property. Beneficium magnum quod me non occidisti as Tully s[ays]. With every sentiment of esteem and friendship, I am, dear sir, Your most Obedient and very humble servant,
David Howell
P.S. I have, as yet, written thus freely to no other Gentleman. I observe that my Clerk in directing the pamphlet to Mr. Adams has stiled me his friend, as in the directions to all the other Gentlemen, to whom I have the honour to be personally known; will you please to communicate the substance of this letter to him—proof that I am his friend, he may see in the Journals of Congress.
D.H.
RC (DNA: RG 59, MLR); in the hand of Howell’s son, except for signature and first sentence of postscript; the clerk made a number of errors and omissions, some of which have been editorially remedied. Recorded in SJL as received 15 June 1790. Enclosures: (1) The oration of Jeremiah Brown Howell, delivered at the commencement exercises of Brown University on 2 Sep. 1789, has not been found. (2) The following newspapers: (Providence) United States Chronicle, 25 Feb. 1790; Providence Gazette, 17 Apr. and 22 May 1790. (3) The packet of pamphlets sent to TJ to be distributed to various friends was an account by James M. Varnum (1748–1789) of a case that has achieved fame as a presumed precursor of the doctrine of judicial review: The case, Trevett against Weeden: on information and complaint, for refusing paper bills in payment for butcher’s meat, in market, at par with specie. Tried before the Honourable Superior Court, in the county of Newport, September Term, 1786. Also, the case of the judges of the said Court, before the Honourable General Assembly, at Providence, October session, 1786, on citation for dismissing said complaint. Wherein the rights of the people to trial by jury, & c. are stated and maintained, and the legislative, judiciary and executive powers of government examined and defined (Providence, 1787). TJ’s copy bears on verso of its title-page: “His Excellency Thomas Jefferson from his friend David Howell” ( No. 2018). Actually it is more accurate to regard the case of Trevett v. Weeden as a precursor of legislative attempts to curb judicial supremacy than as an early exposition of the doctrine of judicial review, for the unanimous opinion of the five-member court was “that the information was not cognizable before them”—not that the legislative acts involved were void. Varnum, who defended John Weeden and whose plea occupies most of the pamphlet, centered his principal argument on the fundamental right of trial by jury. In developing this theme he found it necessary to “call in question the validity of the legislative act upon which the information is grounded” and to assert “that it is contrary to the fundamental law of the State, and therefore, as the civilians express it, a mere nullity, and void, ab initio” (same, p.[1], 4). Howell, when the judges were called before the legislature to “render their reasons for adjudging an act of the General Assembly unconstitutional,” did give it as his opinion, in the course of a “very learned, sensible and elaborate discourse” lasting six hours, that the act “was unconstitutional, had not the force of a law, and could not be executed.” But at the same time he was at pains to point out that the legislature “had assumed a fact, in their summons to the Judges, which was not justified … by the records. The plea of the defendant … mentions the Act of the General Assembly as ‘unconstitutional, and so void;’ but the judgment of the Court simply is ‘that the information is not cognizable before them.’ Hence it appears that the plea hath been mistaken for the judgment” (same, p. 38–9). In this argument before the legislature, in which Varnum represented three of the judges, the issue became simply that of the power of the legislature to dismiss the judges. The attorney general and various lawyers in the assembly who spoke on the question argued that no power existed by which the judges, who were appointed annually by the general assembly, could be dismissed or impeached by the legislature except by due process of law. Varnum’s argument was that every officer had “an interest, a kind of estate, inseparably annexed to his appointment,” and that this was secured to him “in as sacred a manner as the property of any individual is guarded against the encroachment of a rapacious neighbour” (same, p. 44–8, 50–3). This massing of the legal community against the assault on the judiciary was impressive: the issue, one member declared, was new, but all who spoke were agreed that “no sentence could be passed against the Judges, but by regular process, in which a specification of the charges is essentially requisite.” The arguments were persuasive and the judges were, “by a very great majority,” discharged from further attendance (same, p. 53). Thus ended the first but by no means the final legislative assault on a judiciary that found itself in opposition to what seemed to be the popular will. On the place of Trevett v. Weeden in the history of the doctrine of judicial review, see E. S. Corwin, Doctrine of Judicial Review, p. 33–4, 40, 74.
Howell, whose present letter exhibits proof enough that his own attitude on the question of paper money was not altogether governed by judicial detachment, resigned his place on the bench to avoid a more mortifying event: the legislature might not impeach a judge without due process, but no one could assert that it was under obligation to reappoint him.