should be supposed capable of deciding upon common
sense and plain language, for such is the treaty/*^
The Judges of the Supreme Court, however, con-
fronted with a new and fundamental problem, took time
to consider whether they should comply with this re-
quest from the Executive. Finally, on August 8, 179S,
they replied, declining to give their opinion on these
questions of law, and stating with great firmness, though
with due deference : ^
We have considered the previous question stated in a
letter written by your direction to us by the Secretary of
State, on the 18th of last month regarding the lines of sep-
aration, drawn by the Constitution between the three
departments of the government. These being in certain
respects checks upon each other, and our being Judges of
a Court in the last resort, are considerations which afford
strong arguments against the propriety of our extra-judi-
1 NatUmal GwtetU, July 27, 1798, letter signed " Juba."
The ConneetietU Courant, Aug. 15, 1795, quoted a New York dispatch referring to a report that the President had called the Supreme Court in special session to advise with him : "The Senate is the Council of the Executive, as far as respecta our negotiations with foreign nations. The President may ask the opinions of the Judges on points of law, but it does not appear that any special summons has been issued for convening them at this time."
The Trustees of the National Sinking Fund, comprising the Vice-President, the Secretary of State, the Secretary of the Treasury, the Attorney-General and the Chief Justice, asked from Chief Justice Jay an opinion as to the construction of the law, and Jay rendered a written opinion, March 31, 1792. New York Daily Advertuer, March 9, 1793.
Jay, III, 480; see also Muskrat v. United StaUa (1911), 219 U. S. 354. Before sending their final reply. Jay and his Associate Judges addressed a preliminary letter to President Washington, July 20, as follows: "The question 'whether the public may, with propriety, be availed of the advice of the Judges on the question alluded to' appears to us to be of much difficulty as well as importance. As it a£fects the Judicial Department; we feel a reluctance to decide it without the ad- vice and participation of our absent brethren. The occasion which induced our being convened is doubtless urgent ; of the degree of that urgency we cannot judge, and consequently cannot propose that the answer to this question be postponed until the sitting of the Supreme Court. We are not only disposed, but desirous, to promote the welfare of our country in every way that may consist with our official duties. We are pleased, sir, with every opportunity of manifesting our respect for you, and are solicitous to do whatever may be in our power to render your administration as easy and agreeable to yourself as it is to our country. If circumstances should forbid further delay, we will immediately resume the consideration of the question and decide it."
