Birth of the Nation: The First Federal Congress, 1789-1791 Back to the Exhibit

Rep. Abiel Foster of New Hampshire to Oliver Peabody, September 23, 1789

New York 23d. Septemr. 1789

Dear Sir.

      I find the judicial Bill now before Congress has given some uneasiness in New Hampshire: I wish those polititions who are opposed to it, will be pleased to propose a substitute; & I call, on them to suggest a plan for administring Justice, in those instances in which the general Goverment is invested with it by the Constitution, which will be less objectionable than the general principals contained in the present one. it will perhaps be said, that the State Courts might well enough have been entrusted with the matter in the first instance, and the expense of the district Courts thereby saved to the public. I with those who have adopted this Idea, to examine the Constitution in those parties of it which relate to this subject. They will there find, that the Judicial powers of the Union, are to be vested in one Supreme Court, & such other inferior Courts as Congress shall think proper—that the Judges of those Courts, are to have fixed & permanent Salaries, and to hold their places during good behavior—This you must be sensible, cannot apply to the State Courts, whose Salaries depend only on the Legislatures of the respective States, and who hold their places by the precarious tenure—The arraingment therefore contained in the Bill, is such an one, as I conceive every member of the general Goverment is bound by the Constitution to adopt who has taken an Oath to maintain the same. I would further observe that no confidence can be placed in the State Courts to decide properly, while they are not amenable to the general Goverment, but wholly dependent [last line of page illegible on copy]

where the interests of the general Goverment & a particular State may happen to interfere, to which side is it to be supposed the State judges will feel a biass? I concieve to the interest of that Government on which they are imediately dependent for their support & their places, and may not this biass take place in instances, that relate to the very existance of the general Goverment? This I believe may be expected. I should consider the general Goverment as of very little consequence without its having a judicial coextensive without with its legislative power, & of equal energy; for of what avail are the wisest & most salutary Laws, without a firm & unbiassed judicial, to carry those Laws into effect? In some of the States the Judges have no fixed tenure in their Offices, but are Elective at certain fixed periods; can those Judges, so appointed, be sufficiently permanent in their Offices to ensure an impartial administration of Justice? It will not be pretended—Why then should they be entrusted with it? I further observe, that I believe no individual State would permit Congress to appoint, pay & controul. Judges, who were to decide on the Laws of that State; and if this would endanger the rights & liberties retained to each individual State—if this would be considered as a measure distructive distructive of particular Goverments; will not the like regulation have the same effect to abolish those rights & liberties which the particular State Goverments have consented to forego for the general good? This to my apprehension is quite evident. It must prove a worm at the Shoot of the general Goverment which must soon destroy its existence. I have given my hearty concurrence to the judicial Bill, and for the reasons before Stated—I am however, very willing to be convinced that I have done [w]rong, & that a less excpetionable plan might have been hit upon, but untill this is done I must adhere to my opinion. The Salaries of those Judges are fixed much too high; this would not have taken place but from the absence of some of the eastern Senators—[lined out] It is the more unhappy, as the Saleries are not liable to future reduction. If the general Goverment acquires, by [lined out] means of these Courts, a stability which will fully secure life, liberty & property; it may be an object worth the expense; and untill it is found to have a different effect, I hope, will be acquiessed in. I am Sir your

Friend & very humble Servant                     

Abiel Foster                


(Letter courtesy of the Boston Public Library)

digitized from DHFFC transcription   
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