Unconstitutionality of the Fugitive Act/1

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Unconstitutionality of the Fugitive Act by Byron Paine
May 29, 1854 – Morning

May it please the Court:

In arising to commence the investigation of this case, I do so with those feelings of strong embarrassment which must naturally result from knowing that I undertake to deal with a question more important than any that could be presented to a judicial tribunal. It is a question in which, according to my judgement, are involved, not the liberties of Mr. Booth alone, but the liberties of the whole people. I am also not unaware that it might involve a conflict between the judicial powers of the State and Federal Government. Because the validity of a law of the United States will be called in question here. A law in relation to a subject that has lowered like a dark and gloomy cloud above our political horizon, from which have blown those winds that have tossed the public mind and heart in wild commotion, as the ocean is tossed by the storms of heaven. A law in relation to a subject that stood like a stumbling block in the way of the formation of our Government, a subject that has cursed us in the past, curses us in the present, and looms up as our evil genius in the future, waiting to attend us to destruction. I need not add that we are to call in question the validity of a law in relation to American Slavery. And, Sir, we shall question its validity, for the reason that Congress, in passing it, transcended its constitutional power and encroached upon a right that belongs solely to the States. — And this is another reason that makes the question pregnant with importance. For under our system, composed of many independent sovereignties, joined in one whole under a general government which has certain delegated powers; any question involving a conflict between the poewrs of the whole and of each sovereign part, must be of vital interest. It should be approached with solemnity with anxious care, with moderation and forbearance. — But, Sir, in my judgment it should be approached unshrinkingly! I am not one of those who believe that the possibility of such conflicts should be avoided, by servile submission from the States. I am not one of those who believe that a State should forbear to assert its rights, for fear that they may be questioned elsewhere! I do not belong to that school, of late increasing among us, which seems to teach that the States are to look up to the Departments of the Federal Government, with all the submissive deference with which a serf is to listen to the commands of his master. On the contrary, I belong to that other, and as I believe, that true school, which has best studied the theory of our institutions, and which holds that the true interests and harmony and perpetuity of this Union are to be best promoted and preserved by confining the general government strictly to the exercise of those powers delegated to it by the Constitution, and steadfastly resisting all encroachments upon the rights of the States. We plant ourselves upon the doctrine of the sovereignty of the States, over all matters except those which they have delegated to the general government power to control. This doctrine is not denied in theory by any one. — It has been asserted by the Supreme Court of the United States. In the case of McCulloch vs. the State of Maryland, in which the constitutionality of the U. S. Bank was affirmed, the Court says, "In America the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." This doctrine is so universally admitted that I will take no time to establish it by further authorities. But the great point of the controversy upon this subject is whether the Federal Government is the exclusive judge of the extent of its own powers, or whether the States have not also the right to judge upon that matter, whenever the general Government attempts to usurp powers which they claim belong exclusively to then? And upon this point I ask leave to read one of the Virginia Resolutions drawn by Mr. Madison, and one of the Kentucky Resolutions drawn by Mr. Jefferson, in 1798, and a portion of Mr. Madison's report. If it be thought by any that it is improper to introduce these resolutions here, I can only say that in so doing, I travel in the path of precedent, and follow the Supreme Court itself, which in the Prigg case, which I shall hereafter have occasion to examine, sought to sustain itself by quoting the opinion of Mr. Madison.

Among the Virginia Resolutions of 1798, which I read from the 4th of Elliot's debates, we find the following:

"That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable and dangerous exercise of other powers not granted by said compact, the States, who are the parties thereto, have the right and are in duty bond, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. That the General Assembly doth also express its deep regret that a spirit has, in sundry instances, been manifested by the Federal Government to enlarge its powers by force constructions of the constitutional charter which defines them."

The following is the first of the Kentucky Resolutions referred to:

"Resolved, That the several states composing the United States of America are not united on the principle of unlimited submission to their General Government; but that by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force; that to this compact each state acceded as a state, and is an integral party; — that this Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself as well of infractions, as of the mode and measure of redress."

I now read from Mr. Madison's Report on the Virginia Resolutions, found in the same work:

"The Resolution supposes that dangerous powers not delegated may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the constitution; and consequently that the ultimate right of the parties to the Constitution to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another, — by the Judiciary, as well as by the Executive or the Legislature.

"However true, therefore, it may be that the Judicial Department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government, not in relation to the rights of the parties to the Constitutional Compact, from which the Judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the reach of any rightful remedy, the very Constitution which all were instituted to preserve."

It will be seen from this that those men saw the difficulties in which this question is involved; that they examined it with a rigid scrutiny, and that having done so, they met it boldly and asserted the justrights and sovereignty of the States. They did not deny that the General Government is supreme within its limits, but asserted that the States are also supreme within their limits, and as a necessary consequence of that supremacy, that they must have the power to judge when their sovereign rights are encroached upon, and to adopt measures for their defense. While this doctrine has had many powerful advocates, it has also had many powerful opponents. And the most powerful of all was Daniel Webster, who assailed it in the Sent of the United States in 1830, with the whole force of his gigantic intellect. He demonstrated beyond all question that difficulties and conflicts might result from it. That cannot be denied. But the answer is that the opposite doctrine may also lead to difficulties. — If the doctrine of State Rights may lead to conflicts, the other may lead to destruction! And conflicts are, after all, not the most fatal things that may happen in human affairs. Storm is not so fatal as stagnation. It is by conflicts that Liberty has always been maintained; it is for the want of them that it has always been lost. The position taken by Mr. Webster in his great argument upon this question, i, that there is no medium ground between absolute submission to the laws of Congress that are sustained by the Federal Courts, and a direct exercise of the right of revolution by the people, which right he admits they have. This position leads by a short road to the consolidation of the powers of the nation in the hands of the Federal Government, and to the annihilation of the powers of the States. Because, whenever the General Government usurps their rights, and the usurpation is sustained by its Judiciary, according to this theory, those rights cease to exist, and the State is without redress. They may therefore all be swallowed up one after another; and if there be any one of those rights dearer and more important than another, the State has no assurance that it will not be first seized upon. It has not even the poor promise that Polyphemus gave Ulysses, while breakfasting every day upon one of his companions, that he should be the last one to be devoured. If this theory is true, the General Government is supreme, not only in its limits, but out of them; it is sovereign over everything, and the States are sovereign over nothing. For can we conceive of a sovereign power that may be stripped of its sovereignty, without any right of resistance or defense? Such a sovereignty woudl be a shadow without a substance — a mere name without the thing itself. And what are the States, that their influence should be thus undervalued and their rights overlooked? Do they alone perform so insignificant functions in our system, as to make them the only parts to which the doctrine of passive obedience is to be applied? On the contrary they are sovereign and independent nations, in all things except those which have been delegated to the General Government. They have written constitutions, establishing organized governments with executive, legislative, and judicial departments, and have all the various and complicated machinery of those governments in constant and successful operation. They have control over life and death, over the liberties and property, over the hopes and happiness of the people. All the great mass of ordinary legislation belongs to them. To them the people look for the enactment of such laws and the adoption of such a policy, as shall protect their rights and promote their welfare and happiness. And they are to such an extent complete and perfect governments, that if by any political change any one State should be separated from the General Government and from all the others, it could go on performing all the functions of government without re-organization and without confusion or delay. Can it be then that States, possessing such vast powers upon subjects over which it is admitted that they are sovereign — clothed to such an extent with all the attributes of independent governments, may be deprived of them all, without the power or right to do one act in their own defense? Such a doctrine never can be admitted with safety. It is a right inherent in sovereignty to defend itself. It is a reserved right of the States which they hold, not under the constitution, but as a matter of necessity, to defened themselves from destruction. And why should they not have it? Is it not justified by analogies found in all constitutional governments? In a simple government the powers are divided among various departments upon a system of checks and balances, so that each department may protect itself from invasion, and may operate to restrain the others. — The legislature makes the laws, the judiciary keeps them in their proper limits by construction, the executive executes them, but is clothed with the veto power by which he may protect his prerogatives from encroachment.

These analogies justify the position that under a system of compound government like ours, the States sho'd have the right to judge in the last resort when their sovereignties are encroached upon, and to take measures for their protection. It is further justified by the right of revolution which is admitted to exist in the people. This right is asserted in the Declaration of Independence; it is expressly admitted by Mr. Webster in his argument against State Rights, and it is probably not denied by anybody in this country. They people, although they have established a government, with appropriate tribunals to judge of the extent of its powers, yet retain the right to defend themselves against a perversion of those powers by the violence of a revolution. And the right for which we contend in the States, is similar in its character to the right of revolution in the people. It is true that in a single, simple government where there is no power between it and the people, there is no medium ground between absolute submission to its acts and a direct revolution. But it by no means follows that under our peculiar system, where between the General Government and the people we have other completely organized governments, there is no halting place between absolute submission and revolution. — On the contrary I hold that it should rather be regarded as a peculiarly happy feature of our institutions that there is such a medium ground, and that when the evil spirits of usurpation and oppression enter into and possess the Federal Power, the States may interpose with such powers as they have, to arrest the progress of the evil, and to avert, if possible, the necessity of the last resort to the terrible ordeal of revolution. The same reasoning that proves the right of the people to that last resort, proves still more strongly their right to avail themselves in the first place, of every means of protection within their reach. And that the State Governments furnish such means can not be questioned by any one.

This is a subject upon which there are, perhaps, not many authorities directly sustaining the position for which I contend. Indeed it is a position that would not be likely to be sustained by the Federal courts, because it calls in question the conclusiveness of their decisions. — But the Supreme Court of the United States has itself asserted the general principle, as applicable to another portion of the reserved rights of the States. That court might, perhaps deny its application here, but it seems to me to be far more applicable to the right of the State to defend the liberties of its people, than to its right to take their property for public use. I read from the 6th of Howard's Reports, on page 531, where the court says:

"No State it is declared shall pass a law impairing the obligation of contracts; yet with this concession constantly yielded, it cannot be justly disputed that in every political sovereign community, there inheres "necessarily the right and duty of guarding its own existence, and of protecting and promoting the interests and welfare of the community at large. This power and this duty are to be exerted not only in the highest acts of sovereignty and in the external relations of government; they reach and comprehend likewise the interior polity and relations of social life, which should be regulated with reference to the advantage of the whole society. This power, denominated the eminent domain of the State, is, as its name imports, paramount to all private rights vested under the Government, and these last are by necessary implication, held in subordination to this power, and must yield in every instance to its proper exercise. The Constitution of the United States, although adopted by the sovereign States of this Union, and proclaimed in its own language to be the supreme law for their government, can by no rational interpretation, be brought to conflict with this attribute in the States; there is no express delegation of it by the constitution; and it would imply an incredible fatuity in the States, to ascribe to them the intention to relinquish the power of self-government and self-preservation."

We stand, therefore, here to-day upon the doctrine of State Rights, though we do not attempt to deny that it is a doctrine surrounded by difficulties — difficulties on both sides. As to how these difficulties are to be avoided, different men give different answers. Those whose minds incline them toward consolidation, will answer that they are to be avoided by absolute submission on the part of the States. Those on the other hand, who look with jealousy upon the Federal power, will say that they are to be avoided by each carefully and scrupulously abstaining from encroachment upon the rights of the other. They might say with Judge Story, that "the part of true wisdom would seem to be to leave in every practicable direction, a wide if not an unmeasured distance between the actual exercise of the sovereignty of each." Or they might, perhaps, rather answer as one of the great political parties of the country, which has adopted the doctrines of the Virginia and Kentucky Resolutions which I have read, has answered, and say that they are to be avoided by a strict construction of the constitution by all the agents and departments of the General Government, and that it "is inexpedient and dangerous for Congress to exercise doubtful and constitutional powers."

And now, Sir, I come to the application of the doctrines I have contended for to this case. And that is that whatever objections might be urged against the actual exercise of the right of resistance by the legislative or executive departments of the State, cannot be urged with equal force against the action of its Judiciary. But that this department may, to the extent that its mode of action allows it to go, interpose its power in behalf of the rights and liberties of the people, without much danger of producing a serious or forcible collision between the two systems of government. And we hold that it follows as a necessary consequence of State sovereignty that upon all questions touching that sovereignty, the Judiciary, as one of the great departments of the State, is to decide independently of all other tribunals upon earth. And that whenever it is alleged that a citizen is imprisoned under an unconstitutional act of congress, upon a subject, the entire control of which, within its own limits, belongs to this State, it is the high prerogative and solemn duty of our Judiciary, untrammelled by anything save the constitutions and its oath, to examine into the truth of that allegation; not in a captious or defiant spirit, but carefully and solemnly; and if it is satisfied of its truth, to extend its protecting power around that citizen, trusting the consequences, whatever they may be, to the impartial judgment of the country and the world.

This is a question that could only arise in an extreme case, and, therefore, is one upon which judicial authorities in point are not likely to be abundant. But since commencing this argument, a New York Tribune has come to my hands, containing an article in which it is said that in the case of "Rittenhouse's Executrices, growing out of the celebrated Olmstead affair," the following doctrines were laid down by Chief Justice Tilghman of Pennsylvania:

"The United States have no power, legislative or judicial, except what is derived from the Constitution. When these powers are clearly exceeded, the independence of the States and the peace of the Union demands that the State Courts should, in cases properly brought before them, give redress. There is no law that forbids it: their oath of office exacts it; and if they do not, what course is to be taken? We must be reduced to the miserable necessity of opposing force to force, and arraying citizen against citizen; for it is in vain to expect that States will submit to manifest and flagrant usurpations of power by the United States, if (which God forbid!) they should ever attempt them."

I have never examined the case referred to, but presume from the character of the Tribune for accuracy, that the quotation is correct; and if so, that celebrated Judge fully sustains the position for which I contend.

In the case of Martin vs. Hunter's Lessee, 1st Wheaton's Reports 304, it appears that the court of Appeals of the State of Virginia refused to obey the mandate of the Supreme Court of the United States, and that, because it placed a different construction upon the Constitution. — The course of that court seems to be also an authority in my favor. But even if we have no judicial precedents in favor of the right of the States to protect their people against tyrrany and usurpation, it is time such a precedent should be made.

The relator, Sherman M. Booth, was complained of under the 7th section of the late act of Congress, commonly called the Fugitive Slave Law, for aiding in the escape of one Joshua Glover, from the custody of Deputy Marshal Cotton, Glover having been arrested as a fugitive from labor. He was examined and held to bail. He was afterwards surrendered, and sued out this writ to be released from imprisonment, chiefly for the alleged reason that the act of congress is unconstitutional and void.

In appearing here, we feel that we have crossed the threshhold of our last refuge. We believe that the State courts may protect us if they will. That by a wise and firm interposition of their powers in behalf of the liberties of the people, they may present a barrier between those liberties and that spirit of oppression that is abroad in the land. That they may perform for us the kind office of the guardian shaft, that, reared above our dwellings, points fearlessly to the clouds, and receives upon itself unscathed, the rattling thunders, that otherwise had dashed us to pieces! And our hope in this respect is justified in a degree, by the fact that we stand here at all this day, and that the United States officers are here to give account to this court concerning our imprisonment. Because it has lately been declared here by those officers, that they would not condescend to render such account at all, and that whenever they seized upon a citizen, it was little better than an impertinent interference on the part of the Stat tribunals to enquire of them, "Why do ye so?" — These doctrines fell upon the public mind like strange and unheard of signs in heaven, filling it with horror and alarm. And it is doubtless to the prompt and decided manifestation of that horror and alarm by the people, and to the resistance of our State Judiciary, that we are indebted for the fact that the U. S. officers have receded from their position, and have appeared here to render a reason to this court why they imprison us. And we believe that the power of the court does not stop here, but that if satisfied that the reason is insufficient, it may discharge from custody the citizen whose liberty has been unjustly invaded, and thus afford a peaceful and bloodless remedy for the dangers that impend over us. But if we fail here, we can go no farther. Here is our "butt and very seamark of our utmost sail!" If the people are driven unprotected from their State courts, the cloud that will settle down upon them can be lifted only by the dread ordeal of revolution, when falling back upon their reserved rights, amid scenes of violence and blood, they alter or abolish those governments that have failed to answer the great ends for which all governments are established. — Since, therefore, the stake is so great, we beseech this court, as we believe it has every inclination to do, to listen with attention to the reasons we may present, and with patience towards the imperfect and perhaps tedious manner in which we may present them, in order that, if possible, the last hope of liberty and the people may not fail.

I shall urge the unconstitutionality of the Fugitive Slave Act upon three grounds:

First, that congress had no power to legislate upon the subject at all.

Second, admitting such a power, the Act is unconstitutional in providing that any person claimed as a fugitive, may be reduced to a State of Slavery without a Trial by Jury.

Third, that it is unconstitutional because it vests the judicial power of the United States in Court Commissioners contrary to the provisions of the constitution.

There are doubtless other good grounds of objection to this act, but I shall confine what I have to say to these three, believing that if we fail upon these, there would be no hope of succeeding upon any.

And let my purpose be understood at the outset. I do not stand here to oppose that law because it is a monstrous moral deformity — detestable in its purpose and detestable in its details, sinking to the depths of depravity to punish mercy as a crime, and sinking below the depths of contempt to offer a paltry bribe against freedom, to the petty tribunals it creates. I do not stand here to oppose it because it is in violation of the "higher law!" That law needs no enforcement for its own sake, at the hands of earthly tribunals. Like its Author, it is eternal and unchangeable. It is beyond all human power to impair its force or to interrupt its operation. The penalty for its violation follows the violations itself as a natural consequence, as inevitably as the night follows the day. And this is true as well of nations as of individuals. The giant oak that has been girdled by the woodman's axe, so that the vital current is forever withdrawn from its trunk, is not more sure to wither and decay, to be eaten by the worms, and at some time either when storms break upon it, or in profound calm, to fall thundering to the earth in a thousand fragments, that shall moulder to dust and be scattered by the winds of heaven, than is the nation that forgets God, that attempts to legislate evil into good and good into evil, sure at some time to be smitten from abroad by the hand of destruction, or to fall to pieces from its own internal corruption and decay. I say therefore that I stand not here to oppose this act, for the reason that it violates a law "higher than the constitution," but only for the reason that it violates the constitution itself.

The last objection I have mentioned is one that I first saw in the opinion of Chief Justice Shaw, of Massachusetts, in the Simms case, which was lately published in the Sentinel. And I there first discovered the true strength and force of the objections, from the manner in which it was attempted to be answered, or evaded. As my argument on this point will be briefer than upon either of the others, I propose to present it first.

The objection is that the Fugitive Act vests the judicial power of the United States in court commissioners, contrary to the provisions of the constitution. Let us see if this objection is not true.

The Fugitive Act requires the United States Court Commissioners to perform all the duties imposed by it, and in order that they may do so, vests in them "concurrent jurisdiction with the circuit courts." But the first section of the third article of the constitution is as follows:

"The Judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The Judges, both of the Supreme and inferior courts shall hold their offices during good behavior; and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office."

Now, it is admitted on all hands that the U. S. Court Commissioners are not judges either of the Supreme or of the inferior courts spoken of in this section. In order to constitute the courts required here, they should "hold their offices during good behavior," and receive for their services at stated times, a fixed compensation. Whereas in fact, they are removable at the pleasure of the court that appoints them, and receive a compensation, not fixed, but proportionate to the amount of services rendered.

(The Court here called the attention of Mr. Paine to the 2d clause of the 2d section of the 2d article, which provides that "Congress may, by law, vest the appointment of such inferior officers as they may think proper, in the President alone, in the courts of law, or in the heads of departments;" — and asked if that would have any bearing upon the objection?)

I think, your Honor, that clause does not vary it, or diminish its force. There is no doubt that congress may vest the appointment of such inferior officers either in the President, the courts, or the heads of departments. But I think there is considerable doubt whether the judges of the "inferior courts" spoken of in the 3d article, ought to be regarded as "inferior officers," in the sense in which those words are used here. In article 3d they are styled "inferior courts," but I think only relatively so, as compared with the Supreme court, spoken of in the same section. Those "inferior courts" are, some of them, in fact, very important courts, and their judges are officers possessing very great and extensive powers. But even admitting them to be such "inferior officers," that congress might vest their appointment in the President, or in the courts of law, still that leaves the objection untouched. — The objection goes, not to the manner of appointment, but to the character of the officer after he is appointed. — No matter what power appoints, the judges of the "inferior courts" in which the judicial power of the United States is to be vested, must, after their appointment, "hold their offices during good behavior," and receive a fixed compensation, and it is not pretended that commissioners are officers of this kind. Now, how is this plain violation of the requirements of the constitution by the Fugitive Act, to be sustained? Let us see how the Supreme court of Massachusetts attempts to dispose of it.

(Mr. Paine here read at some length from the opinion of Chief Justice Shaw in the Sims case, in which in answer to this objection, it was pretended that the powers exercised by the Commissioners under this act, might not be judicial. After alluding to the fact that the law of '93 gave similar powers to the magistrate, the Court said: —  It is very manifest, therefore, that their powers were not deemed judicial by the Congress of 1793, in the sense in which it is now insisted that the Commissioner, before whom the petitioner has been brought, is in the exercise of judicial powers, not warranted by the constitution, because not commissioned as a judge and holding his office during good behavior. Indeed, it is difficult, by general terms, to draw a precise line of distinction between judicial powers and those not judicial. It is easy to designate the broad line, but not easy to mark the minute shades of difference between them."

He read still further from the opinion where the Court referred to a number of officers, whose powers were deemed partly judicial and partly ministerial, and claimed that U. S. Court Commissioners are "commonly appointed from among counsellers at law, and of some standing, and well reputed for professional skill and experience.")

It will be seen from what I have read, that Chief Justice Shaw attempted to dispose of this objection, by an intimation — for he did not venture upon a positive assertion — that the powers exercised by Commissioners in executing the fugitive act are not judicial powers. The manner in which this is attempted to be got at is a little remarkable. The Court does not say that the power is not judicial, but says, "it is difficult to draw the precise line of distinction between judicial powers and those not judicial;" and after giving some illustrations of this proposition, leaves it to be inferred from that difficulty, that this power may, after all, not be a judicial one. Now, sir, I apprehend, however difficult it may be to draw the line between judicial powers and powers not judicial, it will be still more difficult, after it is drawn, to show that the power exercised by a Commissioner in determining a fugitive slave case, is not plainly and palpably on the judicial side of that line. Mark how easily this can be shown. — Among all the arguments by which, the constitutional power of Congress to legislate upon this subject at all, has been attempted to be sustained, there is only one which in my judgment, is worthy of consideration, or attempts to come within the settled rules of construction. — That argument is, that the case of a fugitive "is a case at law arising under the constitution" — that consequently the "judicial power" of the United States extends to it, and Congress may legislate upon it in order to vest the judicial power. In the Prigg case, in the 16th of Peters' Reports, I find on page 568, in the argument of Mr. Meredith, who contended for the power of Congress, the following language: "The constitution declares that slaves escaping from service shall be delivered up, on claim, to the person to whom such service shall be due. What is the meaning of these words on claim? They look to a proceeding of a judicial character; to an assertion of a right of property, to be made before a tribunal competent to judge and decide; and to execute that decision by a delivery of property if the claim be established. Is not this then a part of the judicial power, which extends to all cases at law and in equity, arising under the constitution, laws and treaties of the United States?"

This was the argument of counsel, but the court took the same position. On page 616 the court says: — "It is plain, then, that where a claim is made by the owner out of possession for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property, capable of being recognized and asserted by proceedings before a court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties and a case arising under the constitution of the United States, within the express delegation of judicial power given by that instrument."

We find, therefore, that the counsel, in contending for the power of congress to legislate upon this subject, and the court in upholding it, placed it upon the express ground that the decision of a fugitive case, is an exercise of judicial power. What, then, becomes of the answer which Chief Justice Shaw sets up, by inference, against this objection? It falls completely, and leaves not a shadow of an answer. It leaves it clear, plain and palpable to the common understanding of everybody, that the Fugitive Act vests "judicial powers" in court commissioners, and that in doing so, it violates the constitution of the United States. And that Chief Justice Shaw was fully aware of this, is apparent from his opinion. After that part which I have read, he makes the following admission to which I invite the especial attention of the court. He says:

"At the same time it may be proper to say, that if this argument, drawn from the constitution of the United States, were now first applied to the law of 1793, deriving no sanction from contemporaneous construction, judicial precedent, and the acquiesence of the general and State Governments, the argument from the limitation of judicial power would be entitled to very grave consideration!"

Sir, I would have been glad if the learned Judge had referred us to the "judicial precedents" he speaks of. I know of none such. I believe this point never was raised in any case till it was raised by Mr. Rantoul before that court, which, after substantially admitting that the objection was good, over-ruled it, in obedience to "judicial precedents" that do not exist.

"The Chief Justice speaks of "acquiesence," but there has been no such acquiesence. Until this law of 1850, this power was never vested in court commissioners. It is true, the law of '93 vested similar power in State magistrates, but that was in violation of a principle settled by the U. S. Supreme Court in the case of Martin vs. Hunter's Lessee, 1st Wheaton 304, where it was held that no part of the judicial powers of the United States could be vested in State courts. The State magistrates were not called on to act under that law often enough to constitute an acquiesence. And the State of Pennsylvania, by positive law, forbade its magistrates to act under it. And there is, in my judgment, a vast difference between vesting this power in State officers, responsible to the people of the State, and under their legislative control, and vesting it in U. S. Court Commissioners, dependent on the court that appoints them, and responsible to it alone. Be it remembered, also, that this act of 1850 requires these commissioners to be numerously appointed, for the purpose "of affording reasonable facilities" for the recapture of fugitives. Sir, this power, in these dependent, irresponsible officers, appointed to furnish "reasonable facilities" for the destruction of Liberty, is pregnant with danger to the people of these States. It has existed only four years, and has been met with louder condemnation than any other act that was ever passed. But even if it had been acquiesced in since the beginning of the Government, still that would not entitle it to overturn the constitution. I answer in the language of Chiefe Justice Marshall, in the Bank case: "That a bold and daring usurpation might be resisted after an acquiesence still longer and more complete than this."