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abundant proofs, from the nature of our government, from the language of the constitution, and from legislative acknowledgment, that the judges of our courts have the power to judge and determine upon the constitutionality of our laws.
Let me now suppose, that, in our frame of government, the judges are a check upon the legislature ; that the constitution is deposited in their keeping. Will you say afterwards, that their existence depends upon the legislature? That the body whom they are to check has the power to destroy them? Will you say that the constitution may be taken out of their hands, by a power the most to be distrusted, because the power which could violate it with impunity ? Can any thing be more absurd than to admit, that the judges are a check upon the legislature, and yet to contend, that they exist at the will of the legislature ? A check must necessarily imply a power commensurate to its end. The political body, designed to check another, must be independent of it, otherwise there can be no check. What check can there be when the power, designed to be checked, can annihilate the body which is to restrain it?
I go further, Mr. Chairman, and take a stronger ground. I say, in the nature of things, the dependence of the judges upon the legislature, and their right to declare the acts of the legislature void, are repugnant, and cannot exist together. The doctrine, sir, supposes two rights—first, the right of the legislature to destroy the office of the judge, and the right of the judge to vacate the act of the legislature. You have a right to abolish, by a law, the offices of the judges of the circuit courts: they have a right to declare the law void. It unavoidably follows, in the exercise of these rights, either that you destroy their rights, or that they destroy yours. This doctrine is not a harmless absurdity, it is a most dangerous heresy. It is a doctrine which cannot be practised without producing, not discord only, but bloodshed. If you pass the
bill upon your table, the judges have a constitutional right to declare it void. I hope they will have courage. to exercise that right; and if, sir, I am called upon to take my side, standing acquitted, in my conscience and before my God, of all motives but the support of the constitution of my country, I shall not tremble at the consequences.
The constitution may have its enemies, but I know that it has also its friends. I beg gentlemen to pause, before they take this rash step. There are many, very many, who believe, if you strike this blow, you inflict a mortal wound on the constitution. There are many now willing to spill their blood to defend that constitution. Are gentlemen disposed to risk the consequences? Sir, I mean no threats; I have no expectation of appalling the stout hearts of my adversaries; but if gentlemen are regardless of themselves, let them consider their wives and children, their neighbors and their friends. Will they risk civil dissension,
will they hazard the welfare, will they jeopardize the peace of the country, to save a paltry sum of money, less than thirty thousand dollars?
Mr. Chairman, I am confident that the friends of this measure are not apprised of the nature of its operation, nor sensible of the mischievous consequences which are likely to attend it. Sir, the morals of your people, the peace of the country, the stability of the government, rest upon the maintenance of the independence of the judiciary. It is not of half the importance in England, that the judges should be independent of the crown, as is with us, that they should be independent of the legislature. Am I asked, would you render the judges superior to the legislature? I answer, no, but co-ordinate. Would you render them independent of the legislature? I answer, yes, independent of every power on earth, while they behave themselves well. The essential interests, the permanent welfare of society, require this independence: not, sir, on account of the judge; that is a small consideration, but on account of those between whom he is to decide.
You calculate on the weaknesses of human nature, and you suffer the judge to be dependent on no one, lest he should be partial to those on whom he depends. Justice does not exist where partiality prevails. A dependent judge cannot be impartial. Independence is, therefore, essential to the purity of your judicial tribunals.
Let it be remembered, that no power is so sensibly felt by society, as that of the judiciary. The life and property of every man is liable to be in the hands of the judges. Is it not our great interest to place our judges upon such high ground, that no fear can intimidate, no hope seduce them? The present measure humbles them in the dust, it prostrates them at the feet of faction, it renders them the tools of every dominant party. It is this effect which I deprecate, it is this consequence which I deeply deplore. What does reason, what does argument avail, when party spirit presides? Subject your bench to the influence of this spirit, and justice bids a final adieu to your tribunals. We are asked, sir, if the judges are to be independent of the people? The question presents a false and delusive view. We are all the people. We are, and as long as we enjoy our freedom, we shall be divided into parties. The true question is, shall the judiciary be permanent, or fluctuate with the tide of public opinion? I beg, I implore gentlemen to consider the magnitude and value of the principle which they are about to annihilate. If your judges are independent of political changes, they may have their preferences, but they will not enter into the spirit of party. But let their existence depend upon the support of the power of a certain set of men, and they cannot be impartial. Justice will be trodden under foot. Your courts will loose all public confidence and respect.
The judges will be supported by their partizans, who, in their turn, will expect impunity for the wrongs and violence they commit. The spirit of party will be inflamed to madness; and the moment is not far off,
Do not say,
when this fair country is to be desolated by a civil war.
that you render the judges dependent only on the people. You make them dependent on your President. This is his measure. The same tide of public opinion which changes a President, will change the majorities in the branches of the legislature. The legislature will be the instrument of his ambition, and he will have the courts as the instrument of his vengeance. He uses the legislature to remove the judges, that he may appoint creatures of his own. In effect, the powers of the government will be concentrated in the hands of one man, who will dare to act with more boldness, because he will be sheltered from responsibility The independence of the judiciary was the felicity of our constitution. It was this principle which was to curb the fury of party on sudden changes. The first moments of power, gained by a struggle, are the most vindictive and intemperate. Raised above the storm, it was the judiciary which was to control the fiery zeal, and to quell the fierce passions of a victorious faction.
We are standing on the brink of that revolutionary torrent, which deluged in blood one of the fairest countries of Europe.
France had her national assembly, more numerous and equally popular with our own. She had her tribunals of justice, and her juries. But the legislature and her courts were but the instruments of her destruction. Acts of proscription and sentences of banishment and death were passed in the cabinet of a tyrant. Prostrate your judges at the feet of party, and you break down the mounds which defend you from this torrent. I am done. I should have thanked my God for greater power to resist a measure so destructive to the peace and happiness of the country. My feeble efforts can avail nothing. But it was my duty to make them. The meditated blow is mortal, and from the moment it is struck, we may bid a final adieu to the constitution.
SPEECH OF DE WITT CLINTON,
DELIVERED IN THE SENATE OF THE UNITED STATES,
FEBRUARY 23, 1803,
On the following resolutions : Resolved, That the United States of
America have an indisputable right to the free navigation of the river Mississippi, and to a convenient deposit for their produce
and merchandize in the island of New Orleans : That the late infraction of such their unquestionable right is an ag
gression, hostile to their honor and interest : That it does not consist with the dignity or safety of this union to hold
a right so important by a tenure so uncertain : That it materially concerns such of the American citizens as dwell
on the western waters, and is essential to the union, strength and prosperity of these states, that they obtain complete security for
the full and peaceful enjoyment of such their absolute right: That the President be authorized to take immediate possession of
some place or places, in the said island, or the adjacent territories, fit and convenient for the purposes aforesaid, and to adopt such measures for obtaining that complete security, as to him, in
his wisdom, shall seem meet : That he be authorized to call into actual service any number of the
militia of the states of South Carolina, Georgia, Tennessee, Ken. tucky and Ohio, and the Mississippi territory, which he may think proper, not exceeding fifty thousand, and to employ them, together with the naval and military force of the union, for effecting the object abovementioned ; and that the sum of five millions of dollars be appropriated to the carrying into effect the foregoing resolutions, and that the whole or any part of that sum be paid or applied on warrants, drawn in pursuance of such directions as the President may from time to time think proper to give to the secretary of the treasury.*
MR. PRESIDENT, The extraordinary manner, in which the subject, now under consideration, has been introduced; the extraordinary manner in which it has been treated, and
* By the treaty of 1795, between the United States and Spain, the free navigation of the river Mississippi, and a privilege of deposit in the island of New Orleans, for three years, were secured to the citizens of the United States.
The treaty stipulated that this privilege should be continued after