Benjamin Fishbourn

On August 3, 1789, President George Washington nominated Fishbourn as a naval officer in Savannah as a member of the federal customs service (along with all of Washington's other nominations).^[10][11] On August 5, 1789, the United States Senate rejected Fishbourn's appointment, becoming the first ever rejection of a presidential nominee and has been deemed the first instance of Senatorial courtesy,^[12] which is when senators defer to their fellow senators that object to an individual nominated to serve in their own state.^[13]

This instance was the first-ever incident where one of President Washington's nominations was rejected.^[14] Upon learning of the rejection, Washington went to the Senate Chamber in Federal Hall to inquire about the rejection and express his dismay.^[15] Senator James Gunn (Georgia politician) took responsibility for the rejection. Gunn was able to convince his other senators to go along with his rejection and they agreed as a courtesy, which "senatorial courtesy" is still in practice today.^[16]

Gunn told Washington that he did not owe an explanation for the Senate's rejection. Washington accepted the rejected and instead nominated Lachlan McIntosh.^[17][18] In accepting the decision without fighting it, Washington reasoned, “for as the president has a right to nominate without assigning his reasons, so has the Senate a right to dissent without giving theirs.”^[19]

While he did accept the Senate's decision, Washington still expressed his advocacy for Fishbourn. He noted Fisbourn's good demeanor while serving in the army with Washington; that he had been elected to the Georgia legislature; and that he must have been well-liked by his fellow soldiers to have attained his rank in the army.^[17][20]

The Senate adopted a new Resolution, stating "advice, and consent to the appointment of Officers should be given in the presence of the President."^[7][21] It then appointed a three-person committee to confer with Washington regarding the mode of communication between the Senate and President regarding the President's formation of treaties and appointment of officers.^[7]

General Wayne defended his former subordinate and on August 30, 1789, he sent a letter to President Washington, signed by several prominent people from Savannah, expressing support for Fishbourn and expressing that Gunn's rejection was without merit.^[22]

On 25, September 1789, Fishbourn sent his own letter to President Washington in support of himself.^[23] President Washington sent a reply through his secretary, Major William Jackson, stating that President Washington “does not consider himself competent to give any opinion on the subject."^[24]

The exact reason for Fishbourn's rejection is not certain, but it may be due to a bad relationship between Senator Gunn and Fishbourn.^[25] In 1785, four years prior to the nomination, Fishbourn apparently gave his support to Nathanael Greene in a failed duel between Greene and Senator Gunn.^[25] Senator Gunn, while an army captain believed that Major General Nathanael Greene had disparaged him and challenged Greene to a duel, which Greene refused.^[13] Gunn was still mad and stated he was going to attack Greene anyway and started carrying dueling pistols with him in case he ran into Greene.^[13] Greene was not concerned and even had President Washington's support that his honor was good after refusing the duel. Fishbourn also apparently took Greene's side, which Senator Gunn never forgot.^[13]

The reason for the disagreement between Greene and Gunn dates back to the war.^[13] Greene was a Major General in the army and Gunn was a Captain in the Continental army.^[26] Gunn had used a valuable horse he had received during the war and traded in for two other horses and a slave. Greene demanded a military court to investigate the incident.^[26] The military court ruled for Gunn, but Greene still required Gunn to return the horse and submitted the matter to the Continental Congress.^[13] The Continental Congress agreed with Greene and ordered Gunn to replace the original horse with an equally valuable one. They both moved to the Savannah, Georgia area after the war, which is when Gunn challenged Greene to a duel.^[27]

General Wayne did not believe that Senator Gunn had issues with Fishbourn himself for the duel, but was rejecting Fishbourn as a way to slight Wayne.^[27] He called it a "false, Malignant, and invidious" attack on himself.^[27] Senator Gunn and Fishbourn both served under Wayne during the war.

A letter published in The Georgia Gazette revealed that Senator Robert Morris had supported Fishbourn's nomination and requested that Gunn specify his exact reasons for the rejection. Gunn replied that it was nothing personal, except "personal invective and abuse."^[25]

Another theory promulgated is that Senator Gunn simply had another candidate in mind that he preferred.^[28]

Whatever the reason, the Senate's rejection of Fishbourn left a lasting precedent. Senatorial courtesy is still in practice today.^[29]

Fishbourne was married on December 10, 1783 to Annie Wereat, in Georgia.^[1] Annie was the daughter of Georgia Governor, John Wereat.^[30] They had 3 children who all died young (although one may have lived to later adulthood).

Fishbourn's brother-in-law was Thomas Wharton Jr., the first President of the Pennsylvania Supreme Executive Council.^[1] Wharton was married to Benjamin Fishbourn's sister, Elizabeth (Fishbourn) Wharton.

He was in the Society of the Cincinnati^[31] and was an original member in the Pennsylvania Society of Cincinnati^[32] and Georgia Society of Cincinnati.^[33]

Fishbourne died on November 8, 1790 in Mount Hope, Georgia.^[1] Mount Hope was the Columbia County, Georgia plantation of his father-in-law John Wereat, the de facto governor of Georgia during the American Revolution.