suspecting and many of our timid citizens, it passes as
orthodox."
The rejection of Rutledge was an event of great impor- tance in American legal history, which has hitherto received cursory attention. But for his unfortimate Charleston speech he would undoubtedly have been confirmed, despite the rumor as to his mental condition. As his death did not occur until the year 1800, the Chief Justiceship, if held by him, would have become vacant at a time when it is extremely unlikely that President Adams would have appointed John Marshall as his successor. Thus upon the event of one chance speech regarding a British treaty hinged the future course of American constitutional law.
Upon the failure of his first nomination, Washington oflFered the position to Patrick Henry, but old age (and a possible feeling that he ought to have been appointed earlier) led Henry to decline. Washington then named Judge William Gushing on January 26, 1796.^ The appointment, while an appropriate one, did not meet with enthusiastic Federalist approval. "I am dis- appointed in the appointment of Gushing as Chief Justice," wrote Plumer. "He is a man I love and esteem. He once possessed abilities, firmness and other qualities requisite for that oflGice, but Time, the enemy of man, has much impaired his mental faculties. When Jay resigned, Cushing was the eldest Justice, and I fear that the promotion will form a precedent for making
1 Patrick Henry (1891), by William Wirt Henry, 11, 563, 564. See also letter of Washington to Lee as to Patrick Henry, Aug. 26, 1794, WaskingUm, X.
It is said that the first intimation Cushing received of the new honor was at a diplomatic dinner given by the President, when Washington bowed to him and, pointing to a vacant place, said : "The Chief Justice of the United States will please take the seat on my right." Lives of the Ckirf Justices (1854), by George Van Santvoord, 277. On Jan. 27, 1796, Timothy Pickering, Secretary of State, wrote to Cushing that the President desired "to avail the public of your services as Chief Justice." William Cushing, by Arthur P. Rugg, Yale Law Joum, (1920)» XXX. Cushing's nomination was confirmed by the Senate, Jan. 27, 1796,
