MVB Senate speech on the judiciary, 3 May 1826
WEDNESDAY, MAY 3, 1826.
Mr. VAN BUREN said that he would state, in a few words, the points of difference between the two Houses. One related to the arrangement of the circuits, the other to the provision requiring the Judges to reside within their respective circuits. He had not particularly adverted to the latter when the bill was under consideration, because, at that time, he had entertained the belief that no objection would be urged against it. Its rejection, therefore, by the House of Representatives, was as unexpected as the reasons assigned for it were, in his opinion, untenable.
By the Judiciary Act of 1793, it was left to the Judges of the Supreme Court to allot themselves to the different circuits of the United States, once a year, at their discretion. By the act of 1802, it was thought proper to allot them, by law, to certain circuits, within which they were required to reside. He would not consume the time of the Senate by reading the act. It will readily be perceived, by a reference to it, that this is the effect of the provision, although somewhat ambiguous in its phraseology. The act of 1802 also provided that, in the event of a new appointment, a new allotment might take place; but, whatever might be the allotment, it still required that, in the old circuits, the Courts should be held by a resident Judge. There was but one exception. This was the circuit composed of the States of Pennsylvania and Delaware. It became necessary, either to make the exception, or to drive from his residence, at Mount Vernon, or from the bench, one of the most estimable members of the Court-an act, which no former Congress had been willing to commit, and of which, he hoped, no future Congress would be capable. In consequence of this, however, the State of Pennsylvania has been subjected to what her citizens consider a great inconvenience. That reason still exists. The State of Virginia has two Judges of the Supreme Court, and both cannot be assigned to the circuit, of which it forms a part. In 1807, when an additional circuit was established, composed of the States of Ohio and Tennessee, it was expressly enacted, that the Judge should reside within the circuit for which he was to be appointed. The amendment of the Senate, now so strongly opposed, is a mere extension of the same principle-a principle not only sanctioned by authority, but recommended by its manifest utility.
Among the objections urged against this point of the amendment of the Senate, there was one, he said, not merely fallacious, but reprehensible. It had been alleged, elsewhere, that it was the design of the amendment to place the Western States on a footing inferior to that of the old States. This objection was unsupported by facts, and was made, he had charity enough to believe, without due examination. It was, on the contrary, the object of the amendment, to place the Western States on the same footing with the old States; to secure to them the advantages enjoyed by a residence of the Judges within the Circuits and protect them from the inconveniences experienced by Pennsylvania and Delaware. Mr. VAN BUREN expressed his belief that there was great injustice in this attempt to excite sectional prejudice, without the least foundation. There was nothing in the facts to warrant the inference; and he could appeal with confidence to the Senators from those States, to sustain him in his position. They had witnessed the untiring zeal with which gentlemen, from different and remote portions of the Union, had supported the just claims of the West; and, from whatever motive misrepresentation might proceed, he had the satisfaction to believe that, in that body, the subject was well understood, and every thing belonging to it justly appreciated. Mr. VAN BUREN thought that the frequency with which appeals had been made to local prejudices, was an evil which deserved the utmost severity of reprehension. An objection, he said, had been taken to the form of the amendment, which, though plausible, was not solid. The amendment speaks of the three additional Judges, as Judges appointed for the three new circuits: and it is supposed that this gives to the offices of the additional Judges, the character of “Circuit Judges only.” Mr. VAN BUREN said that he had, in his opening observations, had occasion to remark, that he was prevented, by indisposition, from attending the Committee, the morning when the amendment was first agreed upon and reported. Its phraseology had not, on that account, attracted his particular attention. If it had, he would have preferred a different form, in expressing the object of the amendment. At the same time, the objection, he said, was only technical, and the true sense of the amendment was sufficiently expressed, to leave neither doubt nor difficulty in its execution. The first section of the bill provides that the Judges to be appointed shall, to all intents and purposes, be Judges of the Supreme Court, and the second is only descriptive of the objects for which their appointment was authorized. Even, upon the ground assumed by those, who, instead of looking at the substance, have chosen to criticise the form of the amendment, the description is accurate. The Judges of the Supreme Court are, under the law and Constitution, Circuit Judges, as well as Judges of the Supreme Court. Sitting in the Circuit Court, they have powers and duties distinct from the powers and duties of the Supreme Court, and with which, when sitting on the latter Court, they have nothing to do. But he would not detain the Senate longer on that point. If the House of Representatives were in favor of the principle of the amendment, but thought its form objectionable, why did they not amend it? It would have been in order to have done so. This, however, they have omitted, preferring to rest their oppositions upon an objection which it was in their power to have removed. Nothing but his habitual respect for the other branch of Legislature, restrained the conviction that it was the sole object of the first objection to the amendment, urged, indeed, as it was, with so much seeming earnestness, to cover the real ground of dissatisfaction-the arrangement of the circuits.
The other point of disagreement relates to the separation or connection of Ohio and Kentucky. On that subject he had only to say, that it is a question of purely local character, in which the Western States, alone, are interested. The object of the bill, itself, is to make provision for nine Western or Northwestern States. They are embraced in the three circuits provided for. Of the eighteen Senators representing these States in this body, fifteen are in favor of the amendment of the Senate. He would venture to say, that, on questions of a character so exclusively local, on which any difference of opinion has existed, there have been few, if any, instances, characterised by such uncommon unanimity. To bring the subject into a narrow compass-in the two circuits which are directly affected by the question, there are five States, and of the ten Senators by whom they are represented, seven are in favor of the amendment of the Senate. This unanimity of sentiment, among those, too, who do not usually concur in opinion on other subjects, had a strong tendency to confirm his previous impression, that they amendment was correct. If, upon subjects, had a strong tendency to confirm his previous impression, that the amendment was correct. If, upon subjects of this character, we are not to rely upon the representations and opinions of those who are most familiar with their operation, and most concerned win their results, where, and on whom, let me ask, are we to repose our confidence?
Mr. VAN BUREN said there was one view of the subject which he was anxious to impress upon the minds of gentlemen, and which ought in his opinion, to silence the opposition, at least in the quarter from whence it chiefly proceeded. Is it objected that two Judges are too many for the five States of Ohio, Kentucky, Missouri, Illinois, and Indiana? No, sir. Those who advocate the bill as it came from the House, have, throughout, contended for two additional Judges transact the business in Kentucky and Ohio? No one could doubt it. He would have to attend the term of the Supreme Court, which could not employ him more than three months, including travel; this would leave him nine months, in each year, to hold the circuits in Kentucky and Ohio, at places not more than one hundred miles apart, with excellent roads, and every other facility for travelling. It is only necessary to state the case, to show, incontrovertibly, that, whoever else may have cause to complain, Kentucky and Ohio will not-at least on the supposition that they have no other views than the administration of justice among their citizens. Why, then, do they object? Why should they complain that a Judge is also given to Missouri, Indiana, and Illinois? It is true that, by the amendment of the Senate, Kentucky and Ohio cannot each have a Judge. But, ought not the idea to be spurned, that it is the Judges, and not the Court, the administrators and not the administration of justice, which have been so earnestly and loudly called for by these patriotic States? He would not, for a moment, entertain an idea so degrading to these respectable members of our Confederacy. The Representatives from Ohio and Kentucky will recede. Their known intelligence will discern the danger of this ground. Should this bill fail, they cannot be but aware of the difficulty which would attend any subsequent effort to induce the Representatives of other States to act upon the subject, especially if an impression should exist that a scramble for office was at the bottom of all the movements which have taken place.
The just rights of Kentucky and Ohio being thus satisfied, he would say a few words as to the other States. He could not but express his surprise, that the objection that too much has been done for them, had proceeded from Ohio and Kentucky. That they had an equal right, with others, to urge this objection, there can be no doubt; but he still thought that there were some circumstances in the case which would have rendered its emanation from the old States more appropriate. He was free to admit that it was an act of liberal legislation in favor of the States of Illinois, Indiana, and Missouri. An application for an additional Judge in any other of the States, would not be listened to for a moment. If justifiable at all, it was only so in consequence of their forming three sovereign, independent States, and, if not leading, certainly prominent members of our Union. It was this view of the subject, and the consideration of their rapidly increasing population, which had induced him to yield his assent to a measure by which the administration of justice would be placed on a more perfect and permanent footing. This would be effected by the amendment proposed by the Senate in conformity with the views expressed by the representation from these States, in both branches of the Legislature, without a dissenting voice. Why should Ohio and Kentucky, having their own claims satisfied, desire to impose on these States a plan to which their Representatives are decidedly opposed? I cannot but persuade myself that, upon reflection, they will abandon a ground, which, to my judgement, appears alike ungracious and untenable.
The question arises, what will now be the decision of the Senate? Shall we insist, and ask a conference, or adhere, and thus avow, at once, frankly and explicitly, the course which we mean to pursue? On the score of respect, there could be no objection to either course. If the Senate are disposed to yield either of the points, it would be advisable to insist, and ask a conference. If, however, they have formed the deliberate conclusion not to yield, it appeared to him best to adhere; and, in order to test the sense of the Senate, he moved that they do adhere to their amendment.