hearts with a just, a generous, humane or noble feeling, comes under the pains and penalties of this act, because all this "aids," not only "indirectly" but "directly," to use the language of the act itself—in the escape of every fugitive that comes among us.
Where, then, is the warrant for the exercise of a criminal jurisdiction of so detestable a character? Echo may answer, but the constitution answers not! It gives no sanction to it. It is not among the express powers—it is not incidental to the execution of any of them.
The Fugitive Law punishes the harboring or concealing of a fugitive, or aiding in his escape from the owner. Is this an act that interferes with the execution of any express power of the general government, or hinders the functions of any of its departments? Clearly not! It no more interferes with the operations of that government than the stealing of a horse. Where is the difference?—One man steals the horse of a slaveholder who comes into our State; another aids his slave to escape from him. Where is the difference between the two acts so far as they affect the general government? There is none.—And that government has just as much jurisdiction to punish the one act as the other. It would be the same as tho' that government should claim the power to punish the stealing of a letter from the possession of the owner, after it had left the post-office, or before it was put in, as necessary to the operations of the post-office department. It will be remembered that the power for congress to legislated on this matter at all, was claimed as incidental to the vesting of the judicial power. This is the only possible ground on which any such legislation can be sustained for a moment. But is the criminal jurisdiction exercised in the act, necessary to the vesting of the judicial power? Cannot congress vest the judicial power without punishing the harboring or concealing of a slave? The question needs only to be asked, in order for every one to see that the pretence that the one power is necessary to the other, is an absurdity. The chasm is too wide between them, for any connection to exist.
If a slave-owner should come here from another State, with horses of the value of five hundred dollars, and a man should steal them from his possession, he might replevy them by a writ from the United States Court. The judicial power of the United States would extend to such a case, and congress might vest that power, and say how the case should be brought before it. But would it have the power to punish the man for the theft? No one pretends it. Yet this is just as clearly incidental to the vesting of the judicial power, as the punishment of the harboring of a fugitive. Such harboring may take place before any judicial proceeding is commenced; the aiding in the escape may take place after all judicial proceedings are over. These are acts not interfering with the functions of the judiciary, but with the rights of the owner, if he has any rights. And there is no possible reasoning which will give congress a criminal jurisdiction, as incidental to the vesting of the judicial power, to punish these acts, which will not at the same time give it jurisdiction to punish all acts in violation of any right, that may be brought in controversy before the national tribunals.—Let us see if they who were instrumental in passing this act, would be willing to submit it to the legitimate cousequences of the reasoning by which it is to be sustained. Take the first clause in the same section with the fugitive clause in the constitution. This provides that, "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Now it is a notorious fact that this clause has been systematically and outrageously violated by the South, for many years, and is to this day. No man whose sentiments are known to be opposed to slavery can go there, without being driven out by violence. The States of South Carolina and Louisiana have also passed laws, by which they seize and imprison a certain class of the citizens of Massachusetts, whenever they enter those States. And when Massachusetts sent its authorized agent to South Carolina, to test the constitutionality of those laws, he was chased out by a mob! These acts and these laws were plain violations of the constitution. But we never heard an intimation from the general government that it had any power, or even any disposition, to defend the people of the free States against these outrages! Not a word! Not a syllable!
(The court here asked Mr. Paine if he thought the general government had any power to legislate under this clause?)
I do not, Sir! I hold it to be a mere clause of compact, like the fugitive clause, conferring no power whatever on the general government. It might be said that no law could be passed to carry its provisions into effect, in the first instance. But violations of it might be punished.—And suppose congress should pass a law punishing with fine and imprisonment, any person who should "aid, abet and assist, directly or indirectly," in imprisoning any citizen of any State on account of the color of his skin, or in mobbbing any authorized agent of a state who went to another state, to test a constitution question in the federal courts! Why, sir! we should hear "a clamor such as heard till now was never," about state rights, and usurpations by the Federal Power! Our southern friends would be ready to hurl the Union into a hundred fragments, before they would submit to such dangerous encroachments. It would be an encroachment, there is no doubt about it. But it would be no more so, than the criminal legislation in this Fugitive Act. The same reasoning by which this is to be sustained, would sustain a law such as I have supposed.
I hold therefore, that in this Act, congress has usurped criminal jurisdiction, without a shadow of right or reason. And usurpations of this character are doubly dangerous, and should be watched, if possible with a double vigilance. I know that the people are too apt to acquiesce in usurpations by governments. Especially are they too apt to do this, when these usurpations are clothed with judicial sanction. That is what makes these the most dangerous.—They are wolves in sheep's clothing. They are the most dangerous, because least calculated to challenge that examination and resistance, that usurpations should always meet. Acquiescence has ever been the great error of the people. They forget that eternal vigilance is the price of liberty,[s 1] and that this vigilance is to be exercised in unmasking tyranny under the forms of law. They become absorbed in the pursuit of the shining gold and glittering silver, and do not perceive that the iron net-work of despotism is being woven gradually around them, until their liberties are undermined and destroyed. They regard as a false wizzard, him who warns them, and cry peace! peace! when there is no peace.
I have said these usurpations of criminal power are dangerous. And who can say it is an idle fear when the doctrine of "constructive treason" has already been revived, by the federal courts, and attempted to be put in execution against the people, and this under the instructions and encouragement of the government! Who can say there is no cause of alarm, when those courts speak in terms of contemptous scorn of state officers, calling them "tuppenny magistrates," and threatening them with indictments and prosecutions for daring to resort to the legal remedies furnished by the laws of a sovereign state?—Who can say that there is no danger, when those courts tell us that the slave hunter with one of their warrants in his pocket, may range at will through our state, washing his hands in the blood of our people, and wreaking upon our men, women and children, whatever crimes his passions may prompt, and that by this magic warrant the arm of State power is paralysed,—stricken down nerveless and helpless to defend its people? Who can say that we are safe, when, after a slave hunter is arrested for a crime here, the Federal courts step in and set him free, to repeat his offences with impunity. Who can accuse us of unfounded fear, when those courts at the same time they say and do all this, tells us that they "have not yet got a quarter of the power, the constitution intended they should have"! Great God! If these are the results, when they have not a quarter of their power, what may we expect when they have got it all?
Sir, this criminal jurisdiction of the United States not expressly delegated in the constitution, should be fenced around with walls of brass, and with triple bars of iron. It is a viper whose length is hidden from the sight. It may appear frozen and harmless to some, but let it be warmed into life by the acquiesence and encouragement of the States, and it will drag forth fold upon fold from the slimy obscurities of implication and construction. And at last it will rear its sparkling crest aloft, and with baleful lightnings flashing from its eyes, and its forked tongue darting nimbly in every direction, it will hiss in the scorn and insolence of power, at the murmurings of the people whom it crushes in its convolving folds.
the trial by jury.
And now I come to the last of the objections I have to urge. It is, that admitting that congress has the power to legislate, and that a fugitive case is one to which the judicial power extends, still the law is unconstitutional, because it provides that any person claimed, may be reduced to a state of slavery with a trial by jury.
When the resolutions that were adopted by the meeting on the court house square on the 10th of March, were first proposed by the committee, they were to the effect, that
- This phrase, though commonly attributed to Jefferson, appears to come from a 1790 speech by John Philpot Curran, in which he said "The condition upon which God hath given liberty to man is eternal vigilance." The familiar version that Payne uses here can also be found in Andrew Jackson's Farewell Address (1837). (Wikisource contributor note)