MVB Senate remarks on the judiciary, 30 January 1828
Wednesday, January 30, 1828.
Mr. VAN BUREN, who said that the question ought now to be disposed of. Six States were not waiting the result of the legislation on this subject. This was the second year which this subject had been before Congress, and he was very desirous that its decision should be no longer delayed; and it was quite certain that the bill could be disposed of at once.
Mr. V. B. then made some remarks in a very low voice, the whole of which were not heard by the reporter. He was understood to express regret at being forced into collision with the opinions of a gentleman for whom he had the highest estimation. The motion offered by the gentleman from Tennessee, had proposed to give the legislatures of the States the power of prescribing rules, still preserving the supervision of the Federal Courts. That proposition had been withdrawn, leaving the bill as it originally stood, proposing to put the new States on the same footing with the older branches of the Union.
Now, sir, said Mr. V. B., I sincerely regret that an attempt should have been made to change the system by a new proposition, the operation of which will be to place the new States on an entirely different footing. And I shall oppose such a measure with as much zeal as is shewn by the gentlemen from Kentucky, in its advocacy. I have heretofore spoken of the difficulties experienced by those who first regulated the judiciary of the country. They were obliged to observe the various powers of the States—and they had therefore to avoid any measure which should change or infringe the then existing laws of each member of the Union. They could not do away the State laws, and it would be recollected that many of the then existing laws threw important obstacles in the way of the Federal Courts growing out of the English laws from which they had been adopted. They therefore took the laws of the States as they found them, and upon that multifarious basis, built up the Federal judiciary of the country. In one, two, or perhaps three instances only, had any difficulty occurred between the State powers and Federal Courts. In Kentucky the ferment that at one time existed, had happily been quieted. The only difficulty in that State had been that the rules of court originated with the Federal Court, instead of emanating, as they should have done, from the State legislature, subject to the supervision of the Federal Judges. But, said Mr. V. B., I think my friend from Kentucky is in the wrong. It appears to me that it was the duty of the State legislature to have adopted rules; and if they did not establish them, it was their own fault. The Courts, in the performance of their duties, finding none, were forced to make rules to govern their process. The gentleman from Kentucky has adopted a mistaken idea in supposing that legislature could be exercised in matters pointed out by the constitution as coming peculiarly under the province of the Supreme Court. That Court adopted the State laws as far as was practicable; and they could go on farther.
It was admitted, that in the formation of the Federal Courts, the best system that the nature of things would allow, had been adopted; they could not have framed a better plan. It could not be done now. He was very desirous that the bill should pass as it came from the committee; as he thought no State had reason to complain of the law as it now stands.