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 judi-