are greatly respected, but I still think that General
Marshall ought to be preferred. Of the three envoys,
the conduct of Marshall alone has been entirely satis-
factory and ought to be marked by the most decided
approbation of the public. He has raised the American
people in their own esteem. And if the influence of
Truth and Justice, Reason and Argument is not lost
in Europe, he has raised the consideration of the United
States in that quarter of the world. . . • He is older
at the Bar than Mr. Washington, and I know by experi-
ence that seniority at the Bar is nearly as much regarded
as in the army." Accordingly, the appointment was
tendered to Marshall but was declined by him, and
Pickering in forwarding the letter of refusal to the
President wrote: **I transmit the letter, as well that
his own grateful sense of the oflFer might be seen, as for
the strong expression of the opinion of so good a judge
on the fitness of conferring the oflSce on Mr. Washington
whose talents and character are so perfectly well known
to him.'* Thereupon, President Adams directed that
the vacancy be filled by the appointment of Bushrod
Washington, and the commission was sent to him,
October 6, 1798 (a recommission being made on Decem-
ber 20, after the Senate convened).^
At each of the two Terms in 1799 but four cases were
decided, no one of which was of marked interest, though
New York v. Connecticut y 4 Dallas, 1, may be noted as the
first instance of a suit by one State against another.*
» Pickering Papers MSS, XXXVII. 888, letter of Timothy Pickering to John Adams, Oct. 5, 1798, letter of Pickering to B. Washington, Oct. 6, 1798, stating that '*the President of the United States being desirous of availing the public of your services as one of the Associate Justices."
- See ConnecHeut-New York Boundary Line^ by Simeon E. Baldwin, New Haven Colony Eiel, 8oe. Proc, (1882), HE. See resolution introduced into Congress by Livingston of New York, Feb. 15, 1798, "that provision ought to be made by law allowing the trial of all cases, in which one or more States may be interested in such suit or suits. 5th Cong., IH Sess., 1035, 1267. The method of beginning suit against a State had been established as early as 1796 in Qtayeon v. Virginia, 8
