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(2.) And now of the denial of Trial by Jury. Admitting, for the moment, that Congress is entrusted with power over this subject, which truth disowns, still the Act is again radically unconstitutional from its denial of Trial by Jury in a question of Personal Liberty and a suit at common law. Since on the one side there is a claim of property, and on the other of liberty, both property and liberty are involved in the issue. To this claim on either side is attached Trial by Jury.

To me, sir, regarding this matter in the light of the common law and in the blaze of free institutions, it has always seemed impossible to arrive at any other conclusion. If the language of the Constitution were open to doubt, which it is not, still all the presumptions of law, all the leanings for Freedom, all the suggestions of justice, plead angel-tongued for this right. Nobody doubts that Congress, if it legislates on this matter, may allow a Trial by Jury. But if it may, so overwhelming is the claim of justice, it must. Beyond this, however, the question is determined by the precise letter of the Constitution. [145]

Several expressions in the provision for the surrender of fugitives from service, show the essential character of the proceedings. In the first place, the person must be, not merely charged, as in the case of fugitives from justice, but actually held to service in the State from which he escaped. In the second place, he must be ‘delivered up on claim of the party to whom such labor is due.’ These two facts, that he was held to service, and that his service was due to his claimant, are directly placed in issue, and must be proved. Two necessary incidents of the delivery may also be observed. First, it must be made in the State where the fugitive is found; and, secondly, it restores to the claimant his complete control over the person of the fugitive. From these circumstances it is evident that the proceedings cannot be regarded, in any just sense, as preliminary, or ancillary to some future formal trial, but as complete in themselves, final and conclusive.

And these proceedings determine on the one side the question of property, and on the other the sacred question of Personal Liberty in its most transcendent form; not merely Liberty for a day or a year, but for life, and the Liberty of generations that shall come after, so long as Slavery endures. To these questions, the Constitution, by two specific provisions, attaches the Trial by Jury. One of these is the familiar clause, already adduced: ‘No person shall be deprived of life, liberty or property, without due process of law;’ that is, without due proceedings at law, with Trial by Jury. Not stopping to dwell on this, I press at once to the other provision, which is still more express: ‘In suits at common law, where the value in controversy shall exceed twenty dollars, the right of Trial by Jury shall be preserved.’ This clause, which was not in the original Constitution when first adopted, was suggested by the very spirit of Freedom. At the close of the National Convention, Elbridge Gerry refused to sign the Constitution, because, among other things, it established a ‘tribunal without juries, a Star Chamber as to civil cases.’ Many united in his opposition, and on the recommendation of the First Congress this additional safeguard was adopted as an amendment.

Now, regarding the question as one of property, or of Personal Liberty, in either alternative the Trial by Jury is secured. For this position authority is ample. In the debate on the Fugitive Slave Bill of 1817– 18, a Senator from South Carolina, Mr. Smith, anxious for the asserted right of property, objected, on this very floor, to a reference of the question, under the writ of Habeas Corpus, to a judge without a jury. Speaking solely for property, these were his words: [146]

‘This would give the Judge the sole power of deciding the right of property the master claims in his slaves, instead of trying that right by a jury, as prescribed by the Constitution. He would be judge of matters of law and matters of fact; clothed with all the powers of a court. Such a principle is unknown in your system of jurisprudence. Your Constitution has forbid it. It preserves the right of Trial by Jury in all cases where the value in controversy exceeds twenty dollars.’—(Debates in National Intelligencer, June 15, 1818.)

But this provision has been repeatedly discussed by the Supreme Court, so that its meaning is not open to doubt. Three conditions are necessary. First, the proceedings must be ‘a suit;’ secondly, ‘at common law;’ and thirdly, ‘where the value in controversy exceeds twenty dollars.’ In every such case ‘the right of Trial by Jury shall be preserved.’ The decisions of the Supreme Court expressly touch each of these points.

First. In the case of Cohens v. Virginia (6 Wheaton, 407), the Court say: ‘What is a suit? We understand it to be the prosecution of some claim, demand or request.’ Of course, then, the ‘claim’ for a fugitive must be ‘a suit.’

Secondly. In the case of Parsons v. Bedford (3 Peters, 456), while considering this very clause, the Court say: By common law is meant not merely suits which the common law recognized among its old and settled proceeding, but suits in which legal rights were to be ascertained and determined. In a just sense, the Amendment may well be construed to embrace all suits, which are not of Equity or Admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights. Now, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are called legal rights, it must, of course, be ‘a suit at common law.’ Thirdly. In the case of Lee v. Lee (8 Peters, 44), on a question whether ‘the value in controversy’ was ‘one thousand dollars and upwards,’ it was objected that the appellants, who were petitioners for Freedom, were not of the value of one thousand dollars. But the Court said: ‘The matter in dispute is the Freedom of the petitioners. This is not susceptible of pecuniary valuation. No doubt is entertained of the jurisdiction of the Court.’ Of course, then, since liberty is above price, the claim to any fugitive always and necessarily presumes that ‘the value in controversy exceeds twenty dollars.’ By these successive steps, sustained by decisions of the highest tribunal, it appears, as in a diagram, that the right of Trial by Jury is secured to the fugitive from service. [147]

This conclusion needs no further authority; but it may receive curious illustration from the ancient records of the common law, so familiar and dear to the framers of the Constitution. It is said by Mr. Burke, in his magnificent speech on Conciliation with America, that ‘nearly as many of Blackstone's Commentaries were sold in America as in England,’ carrying thither the knowledge of those vital principles of Freedom, which were the boast of the British Constitution. Imbued by these, the earliest Continental Congress, in 1774, declared, ‘That the respective Colonies are entitled to the common law of England, and especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law.’ Thus, amidst the troubles which heralded the Revolution, the common law was claimed by our fathers as a birthright.

Now, on principle and authority, a claim for the delivery of a fugitive slave is a suit at common law, and is embraced naturally and necessarily in this class of judicial proceedings. This proposition can be placed beyond question. And here, especially, let me ask the attention of all learned in the law. On this point, as on every other in this argument, I challenge inquiry and answer.

History painfully records, that during the early days of the common law, and down even to a late period, a system of slavery existed in England, known under the name of villanage. The slave was generally called a villain, though in the original Latin forms of judicial proceedings, he was termed nativus, implying slavery by birth. The incidents of this condition have been minutely described, and also the mutual remedies of master and slave, all of which were regulated by the common law. Slaves sometimes then, as now, escaped from their masters. The claim for them after such escape was prosecuted by a ‘a suit at common law,’ to which, as to every suit at common law, the Trial by Jury was necessarily attached. Blackstone, in his Commentaries (Vol. II. p. 93), in words which must have been known to all the lawyers of the Convention, said of villains: ‘They could not leave their lord without his permission, but if they ran away, or were purloined from him, might be claimed and recovered by action, like beasts or other cattle.’ This very word ‘action’ of itself implies ‘a suit at common law,’ with Trial by Jury.

By these various proceedings, all ending in Trial by Jury, Personal Liberty was guarded, even in the early, unrefined, and barbarous days of the common law. Any person claimed as a fugitive slave night invoke this Trial as a sacred right. Whether the master proceeded by [148] seizure, as he might, or by legal process, the Trial by Jury in a suit at common law, before one of the high courts of the realm, was equally secured. In the case of seizure, the fugitive, reserving the proceedings, might institute process against his master and appeal to a court and jury. In the case of process by the master, the watchful law secured to the fugitive the same protection. By no urgency of force, by no device of process, could any person claimed as a slave be defrauded of this Trial. Such was the common law. If its early boast, that there could be no slaves in England, fails to be true, this at least may be its price, that, according to its indisputable principles, the Liberty of every man was placed under the guard of Trial by Jury.

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