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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 af 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,
when this fair country is to be desolated by a civil
Do not say, 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, Kentucky 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 the extraordinary nature of the proposition itself, would justify a latitude and severity of remark, which, however, I am not disposed to indulge upon this occasion. I know that I address myself to a very respectable portion of the collected wisdom and patriotism of my country: I will, therefore, leave the honorable members from Pennsylvania and Delaware, (Mr. Ross and Mr. White,) in the undisturbed possession of their inflammatory appeals and declamatory effusions, and will manifest a becoming respect for the high authority to which I have the honor to speak, by moving on the ground of argument and of fact. To prevent losing myself in so spacious a field, I will consider the subject under three distinct heads : first, the injuries alleged to have been committed on the part of Spain: second, the nature, character and tendency of the remedy proposed: third, its justice and policy.
The importance of a free navigation of the Mississippi has been duly appreciated by the government ; and a constant eye has been kept upon it, in our negociations with foreign powers. An attempt was, indeed, made, under the old confederation, to barter it away for twenty-five years, which, however, was efficiently controlled by the good sense and patriotism of the government. By the treaty of peace with Great Britain, in 1783, by the treaty of amity, commerce and navigation with her, in 1794, and by the treaty of friendship, limits and navigation with Spain, in 1795, the right of a free navigation of the Mississippi is recognized, and declared to exist, from its source to the ocean, in the citizens of the United States. By the
the expiration of the three years, if, during that time, it was found not to be prejudicial to the interests of Spain. And it was further stipulated, that if it should not be continued there, an equivalent establishment should be assigned at some other place upon the bank of the Mississippi.
In October, 1802, the Intendant of New Orleans issued a proclamation, prohibiting the citizens of the United States from depositing their merchandize, &c. at New Orleans, without assigning any other equivalent establishment according to the provisions of the treaty. VOL. II.
twenty-second article of the treaty with Spain, it is declared, that " in consequence of the stipulations contained in the fourth article, his Catholic majesty will permit the citizens of the United States, for the space of three years from this time, to deposit their merchandize and effects in the port of New Orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores. And his majesty promises either to continue this permission, if he finds, during that time, that it is not prejudicial to the interests of Spain, or if he should not agree to continue it there, he will assign to them, on another part of the banks of the Mississippi, an equivalent establishment.” The twenty-second article, granting the right of deposit, is, therefore, founded upon the fourth article recognizing the right of free navigation, and is intended to give full and complete efficacy to it. By a proclamation of the Intendant of the province of Louisiana, dated the 16th of October last, the right of deposit is prohibited. The reason assigned for this daring interdiction is, that the three years, for which it was granted, having expired, it cannot be continued without an express order from the king of Spain. And, at the same time, no equivalent establishment is assigned according to the stipulations of the treaty:
There can be no doubt but that the suspension of the right of deposit at New Orleans, and the assignment of another place equally convenient, ought to have been contemporaneous and concurrent; that the conduct of the Intendant is an atrocious infraction of the treaty, and that it aims a deadly blow at the prosperity of the western states; but it is extremely questionable whether it was authorized by the government of Spain or not. On this subject I am free to declare, that I entertain great doubts, which can only be cleared up by the course of events, or perhaps it will ever be enveloped in darkness. On the one hand, the terms of the proclamation, indicating a misunderstanding of the treaty, the remonstrances of the governor of the