Byron Paine

“ What would be thought if Congress should declare it a penitentiary offence, for any executive of a State to refuse to surrender a fugitive from justice? What State would submit to see its chief magistrate dragged before the federal tribunals, on charge of infraction of such a law, or what Federal court sume to compel his obedience by mandamus? And yet the assumption of power to legislate at all upon the subject, is assuming supreme and unlimited power over the whole matter. There is no middle ground. ”

“ I will, so help me God! so long as I have a tongue to speak, never fail to assert the right of every man, woman and child, in the State of Wisconsin, without regard to color, rank or condition in life, to a right of trial by jury in all questions touching liberty or life. If this be treason, make the most of it,—if it be any crime less than treason—make the most of it! ”

“ Sir, I do not regard this decision as an authority. I believe with Judge McLean that it was extra-judicial, and with Judge Catron that it was "a dictum uncalled for."—The only effect it should have, in my judgment, is to convince the people of the Northwest Territory, that their rights, though of the most important character, though guaranteed by the most solemn compacts, are not safe in the supreme court of the United States, whenever they come in conflict with the interests of slavery. Yes, that court will even go farther than is necessary, to construe those rights away! ”

“ 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. ”

“ I recognize most fully the right of every citizen to try every enactment of the legislature, every decree or judgment of a court, and every proceeding of the executive or ministerial department, by the written fundamental law of the land. This must be done in a proper and legal manner, in conformity with the rules prescribed by that same law, or in accordance with its provisions; but no law is so sacred, no officer so high, no power so vast, that the line and the plummet of the constitution may not be applied to it. ”

“ Its baleful influence has not been confined to its own limits. It has spread abroad through the whole land like a moral pestilence and contagion. There have been none so high and none so low, that they have escaped its influence. It has expurgated the literature of the nation. It has shackled the press. The blood of a martyr to the freedom of the press, cries to Heaven from the soil of a neighboring State, for vengeance against this power. ”

“ Why congress could legislate on these subjects in a manner directly in violation of those principles which govern its legislation on all others? Why did he not do this, except it be that no such reason existed? He asks:—"But do not the clauses in the constitution in regard to fugitives from labor and from justice give congress a power over State officers on these subjects?" No! They do not! If you assert they do, show it! You have been compelled to go out of the constitution in order to raise a pretence that they give congress any power at all! ”

“ 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 would be a shadow without a substance—a mere name without the thing itself. ”

“ And now, in view of all these safeguards, by which our fathers evidently supposed they had fenced round the liberties of the people with adamantine walls, that wo'd bid defiance to the fiercest storms of tyranny, let us look at the practical operation of this Fugitive Act. A person is found in our State in the possession of liberty. He enjoys actual freedom, and our law presumes him to be free. All the people here stand on the same footing in this respect. A man comes from another State, and claims him as a slave. ”

“ 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"! ”

“ And if I could have faith that any prayers of mine, could furnish me other aid, I would ask for the tongues of angels,—I would invoke the genius of liberty to inspire my lips,—when I attempt to speak in behalf of this great birth-right and best privilege of all who have lived within the protecting influence of the English common law! The trial by jury, whenever and wherever it originated, sprung from the people. ”

“ The abrogation of State, sovereignty is not a dissolution of the Union, but an absorption of its elements. He is the true man, the faithful officer, who is ready to assert and guard every jot of power rightfully belonging to each, and to resist. the slightest encroachment or assumption of power on the part of either.
The Constitution of the United States is a peculiar instrument, and it has brought into existence and operation a peculiar system of government. But little, if any, aid is furnished in its construction by analogy. It is not merely a grant of powers. ”

“ That the traffickers in the blood and bones of immortal man, shall be driven from its sacred precints; and that with a broad continent for its broad foundation, and the blue heaven that bends above us for its arch, it shall be inhabited by one great band of brothers, with no spot where the darkness of bondage shall remain,—but that all over, from ocean to ocean, and from the eternal ice mountains of the north, to the burning zone, it shall be illumined by the light of liberty, as the Celestial City, is lighted by the glory of God! ”

“ But the time has now come when it concerns the liberties of us all, white as well as black, that these boundary lines should be re-examined, and the respective rights of the Federal and State powers in this matter should be placed on their true basis. For the people are overshadowed with clouds of prosecutions, swarming with pains and penalties as numerous as the locusts which swarmed over Egypt; and it has become of vital interest to them to know whether the power for these things is really found in the Constitution, or be nothing better than a barefaced usurpation. ”

“ 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." ”

“ There is not the slightest historical evidence, that at the time the constitution was adopted, any one supposed that it imposed a duty on the people of the Free States, to become active in seizing upon and transporting back fugitive slaves.—Or that they designed to furnish slaveholders with any protection against any of the numerous dangers to which that peculiar species of property is always exposed, other than the one specifically named, that is, the discharge from service or labor by the law of the State, or a legal hindrance to his taking the slave away. ”

“ It may be a discharge of a free man from the custody of one who has no right to hold him. But it is because he is a free man, and does not owe service, and consequently does not come within the constitutional requirement. And to pretend that such a discharge, under a State law, on the ground that the man was a freeman, and not a slave, was the thing designed to be prevented by the constitution, is a monstrous absurdity. Such discharges may take place, and have taken place, under the laws of congress. ”

“ I have said this power adopted the policy of extending and perpetuating slavery. Adopting the vices of a past age as its virtue—saying like the fallen archangel—"evil! be thou my good!"—it has pursued this policy with a tenacity equalled only by the fell nature of the purpose itself. Eagle-eyed, sagacious, vigilant, unscrupulous and bold, neither the laws of God, nor the hopes and happiness of man have stood in its way. ”

“ 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. ”

“ The fugitive from justice has no trial by jury where he is seized, because he has no trial at all, and his right to liberty is not decided upon. The fugitive from labor is entitled to a trial by jury, because he must have a trial of some kind; his libery is passed upon, and the effect of the proceedings in the State where he is seized, is to reduce him from a state of liberty to one of slavery. And if making a man a slave is not "depriving him of liberty" then I am unable to know what is. ”

“ They are marshaling their hosts for the coming conflict, between the two great antagonistical elements, liberty and slavery, that is to settle which shall finally fall before the other.—The trampling of the gathering hosts is already heard,—the murmuring of the rising storm is wafted upon every gale. the North is snapping asunder the bands that have bound it in subjection to the slave power, as Sampson broke the withs of tow! ”

“ I do not urge before this court, that it is not proper in any case, to go into an investigation of the objects of a clause in order to construe it. This may be done where its meaning is doubtful. It may be done in construing the constitution as well as other instruments. Where a power is given, the extent of which is doubtful, the objections of it may be enquired into, in order to give it a just construction. Neither do I contend that when a power is given, it should receive a narrow and illiberal construction, that might defeat its purpose. ”

“ I believe this was the only delivery ever contemplated. No case at law arises under the constitution in the proceedings of the owner. It is like the owner of a horse running at large. . He may seize the animal wherever he finds it. But he cannot sue it. He cannot begin a "case at law" by which this horse is to be caught. Let it not be supposed that by this comparison I intend to sanction the idea that a man can be the subject of property like a horse. God forbid! I only wish to argue it on the footing on which the slave laws place it. ”

“ 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. ”

“ It is not resistance to the Marshal in the execution of his duty; it is not the breaking open the jail; it is not a rescue as known to the common law, but it is intended to be the aiding of a fugitive slave to escape from the service to which he is held. It is a penal statute and must be construed strictly. It is in restraint of freedom and, therefore, every presumption arising under it must be in favor of liberty. It creates a new offence, and adds new and severe penalities, and, therefore, all process and prosecution under it, must be in substantial conformity with its requirements. ”

“ They should say this not from mere motives of gratitude for a past protection which they need no more, but because the trial by jury still is and ever will be, the best safeguards for all their dearest rights. Because it is a tree, that if preserved from the spoiler, will flourish in immortal vigor, so that their posterity may repose in peace and safety beneath its branches, when a thousand generations shall have passed away! ”