MVB Senate remarks on the judiciary, 4 January 1828
Friday, January 4, 1828.
Mr. VAN BUREN said, that the proposition of the Senator from South Carolina was of a very grave character, and would not he hoped find favor with the Senate. It was nothing less than an attempt to change the administration of justice in the Federal courts, in one of its features that was essential, and had existed from the commencement of the government. A measure of that description could not be too well considered, and he was quite certain that the attention which was due to it would be given by the Senate. By the constitution of the United States, the States composing the confederacy had yielded to the Federal authority jurisdiction of certain enumerated subjects of litigation, in some cases exclusive, in others concurrent and appellate only. Such a power was essential to the salutary action of the Federal government. Without it the high duties imposed upon it by the constitution, could not be performed. It was to be executed through the agency of the Federal judiciary, acting under rules prescribed by the Federal legislation. At the organization of the government, the regulation of this branch of the Federal power, was found the most difficult, not as to the institution of courts, and the appointment of its judges, but in prescribing rules for their proceedings. That difficulty arose from the peculiar nature and complicated character of the scheme of government, under which we had hitherto happily lived, and greatly flourished. The natural course would have been to have prescribed the forms of process, and mode of proceedings in the Federal courts by a general law. But the fact that, in many respects, the jurisdictions of the Federal State courts were concurrent, and the obvious inconvenience of having the rights of parties tested in the same State by different rules, presented objections to that course. In addition to those objections, was the consideration that the modes of proceedings in the different States were so various, had existed so long, and had become so intimately connected with the habits and feelings of the people, as to render an attempt to establish a general rule, that would work well in all the States, entirely hopeless. To meet the case in the best practical way, the wise men who framed the judiciary act of 1789, by a separate act, provided that form of process, and mode of proceedings in the Federal courts, in the different states, should be similar in each State respectively, to those then allowed in the Supreme courts of the same. This provision was for one year only. It was annually revived until 1792, when a permanent law was passed, adopting the forms of process, and modes of proceedings, then allowed in Supreme courts of the respective States; subject to such alterations and additions, as the Federal courts respectively, should, in their discretion, deem expedient, or to such regulation as the Supreme court of the United States might from time to time prescribe to the Federal district and circuit court upon the subject. In that state the matter had remained to the present day. The proposition of the worthy Senator from South Carolina, said Mr. V.B., now is to cut off this right of supervision by the Federal judiciary, and to subject the proceedings in the courts of the United States, for the time being, to the absolute dominion of the State authorities. Would sound policy justify that course? Would it be right in itself? He though not. He was satisfied that he would not be suspected of an undue bias in favor of the Federal power-whether judicial, executive, or legislative; or of the least inclination to enlarge them at the expense of the State authorities. His inclinations were certainly not that way. But he was persuaded that the surest way to secure respect and immunity for the rights of the States, was to respect and protect all the just rights of the Federal Government. We are, said he, by our situation, made umpires between their not unfrequently rival and conflicting powers; and policy as well as justice require at our hands the strictest impartiality.- The actual control of the rules of decision and modes of proceeding in the federal courts, by the federal government, was of vital necessity. Upon the subjects which confessedly belong to them, it was right that they should exercise it. The Senator from South Carolina had felt to some, but not the whole extent, the difficulties that might result from the success of his motion, and expressed his willingness to except suits brought by the United States. The same reason would induce an exception of suits brought by and against officers of the federal government, and other suits by their authority, &c. &c. He might enumerate a variety of other cases in which the proposed rule would be objectionable, but he would not detain the Senate by doing so. He could not believe that in this collateral way so great an inroad would be made upon the present system as that proposed. It was true, as stated by the Senator from Illinois, that a bill had been reported by the Judiciary Committee touching the subject, and applicable to the States admitted into the Union since 1789; but he was mistaken in supposing that the provisions of that bill were similar to the measure under consideration. It proposed nothing more than to place the new States upon the same footing as the old, leaving the rule applicable to both, as it had stood since 1792. The matter had, he said, been frequently, although always incidentally, referred to by his friend from Kentucky. It had been said that this was a delegation by Congress, of legislative power to the Judiciary. This allegation was certainly not destitute of foundation, nor was the existing provision free from great and serious objection. He was free to admit that the necessity of adopting it was a misfortune, but still he could not gainsay the necessity. He would lend his feeble aid to any feasible and efficient plan which would remove the evil complained of without surrendering the principle. He had not been able to devise one; and from the examination which, on a former occasion, it had been made his duty to give to the laws of the several States, he was persuaded that those who looked deeply and considerately into the matter, would find that it was not for slight causes that the first Congress passed over the subject in the manner they did. You must leave this power, said he, where it is, or Congress must, from time to time, pass laws conflicting with, and modifying the laws of the States. If no necessity exists for alteration, it is fair to presume that none will be made. If it does, the mode in force has at least the sanction of time, and would, he was inclined to think, be better received than the alternative. In every view of the subject, therefore, he though the proposition under consideration ought not to succeed. He believed the bill before the Senate to be a good one. He had been its constant friend, and stood ready, in case of necessity, to lend it a helping hand. He wished it to succeed, as well on account of its intrinsic merits, as because he was very solicitous that the untiring exertion of the worthy Senator from Kentucky, in the great cause of truth and philanthropy, might at last be crowned with success; but if the great object he had in view could not be reached any other way than that proposed by the resolution under consideration, he for one must abandon it, at least for the present.