admiralty, juries do not intervene; and that courts of equity use the
trial by jury only in extraordinary cases, to inform the conscience
of the court. When, therefore, we find that the [seventh] amendment
requires that the right of trial by jury shall be preserved in suits
at common law, the natural conclusion is, that this distinction was
present to the minds of the framers of the amendment. By _common law_
they meant, what the constitution denominated in the third article,
‘law;’ not merely suits, which the _common_ law recognized among its
old and settled proceedings; but suits, in which _legal_ rights were
to be ascertained and determined, in contradistinction to those in
which equitable rights alone were recognized, and equitable remedies
were administered, or in which, as in the admiralty, a mixture of
public law, and of maritime law and equity, was often found in the
same suit. Probably there were few, if any states in the Union, in
which some new legal remedies, differing from the old common law
forms, were not in use; but in which, however, the trial by jury
intervened, and the general regulations, in other respects, were
according to the course of the common law. Proceedings in cases of
partition, and of foreign and domestic attachment, might be cited,
as examples, variously adopted and modified. _In a just sense, the
amendment, then, may well he 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.”--_Parsons_ vs.
_Bedford_, 3 Peters’s Rep. 456-57.
Here the court say, that the term “common law,” in the seventh
amendment, meant what the constitution denominated in the third
article, “law.” The word “law” which is here referred to, as contained
in the third article, occurs in the following sentence: “The judicial
power shall extend to all cases, in _law_ and equity, arising under
this constitution, the laws of the United States,” &c. And the court
declare that the constitutional right to a jury trial embraces “not
merely suits, which the _common_ law recognized among its old and
settled proceedings, but suits in which _legal_ rights were to be
ascertained and determined,” in contradistinction from equity and
admiralty cases.
And in the last sentence of the decision quoted, the court expressly
say, that the seventh amendment embraces “_all suits which are not of
equity or admiralty jurisdiction_, WHATEVER MAY BE THE PECULIAR FORM
WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.” The court say “ALL.”
After excepting cases of equity and admiralty jurisdiction, they
declare that the phrase, “suits at common law,” embraces _all_ the
rest. They recognize no hybrid class, not included under one or another
of these heads.
Now it has been proved above, that a warrant for the arrest of an
alleged fugitive, together with the allegations and proofs under it,
constitute a “suit.” And can any thing be more clear, than that a
proceeding which decides the issue, whether a man “owes” or does not
“owe;” which decides the issue, whether a man has “escaped,” or has
not “escaped;” and which, as the legal consequence of these decisions,
delivers one man into the custody of another as his slave, or enlarges
one man from the custody of another because he is not his slave, is,
“whatever peculiar form it may assume,” a proceeding “to settle a
legal right,”--one of the highest and most important legal rights that
appertain to a man? It is not, in legal language, a right “of equity or
admiralty jurisdiction,” but exclusively and purely a _legal right_,
and nothing else.
The court declare this to be so, _whatever peculiar form the process
may assume_. But what gives peculiar pertinency and stringency to this
decision of the court is, that at common law there was an original
writ, called the writ _de homine replegiando_,--the writ of personal
replevin, or for replevying a man, by which the question of property
in a man might be determined. It was a writ which the party could sue
out of right; one to be granted on motion, without showing cause, and
which the court of chancery could not supersede. In the very language
of the supreme court, it was a writ recognized by the common law, and
is to be found “among its old and settled proceedings.” The form of it
is contained in that great arsenal of common law writs, the _Registrum
Brevium_.
“A man,” says Comyn, “may have a _homine replegiando_ for a negro, or
for an Indian brought by him into England and detained from him; or it
may be brought by an infant against his testamentary guardian; or _by a
villein against his lord_.”--(Dig., title Imprisonment, L. 4.)
If this writ could be brought “for a negro,” or “for an Indian,” by
a man who had introduced him into England, and from whom he had been
detained; and if, on the other hand, it could be brought by the negro,
or by the Indian to gain his freedom, as was clearly the case, then it
follows that the question of a right to a man, as well as that of human
freedom, was a question familiar to the ancient common law, and for the
trial of which a well-known process existed “among its old and settled
proceedings.” But this ancient writ, _de homine replegiando_, carries
with it, as every body knows, the trial by jury, as much as an action
of assault and battery, or of assumpsit on a promissory note.
I have always understood, that before the revolution, and before the
framing of our constitution, Comyn’s Digest, from which the above
citation is made, was a work of the highest authority. It must have
been well known to all the lawyers in the convention. Could they have
intended that the mere fact of claiming a man as a slave,--which claim
might be made against a freeman as well as against a slave,--should be
sufficient to deprive him of this ancient muniment of the subject’s
liberty? It seems impossible!
But we are not left to the broad and general assertion, contained
in the case of _Parsons_ vs. _Bedford_, that the seventh article of
amendment embraces “all suits” not of equity or admiralty jurisdiction,
whatever the peculiar form which they may assume to settle legal
rights. Authority exists still more pointed and direct. In _Baker_ vs.
_Riddle_, Mr. Justice Baldwin, one of the judges of the supreme court
of the United States, held that it was not in the power of Congress
to take away the right of trial by jury, as secured by the seventh
amendment; neither,--
“1. By an organization of the courts in such a manner as not to secure
it to suitors; nor,
“2. By authorizing the courts to exercise, or their assumption of,
equity or admiralty jurisdiction over cases at law.”
“This amendment,” says he, “preserves the right of jury trial against
any infringement by any department of the government.”--_Baldwin’s
Rep._ 404.
Now, what are the tribunals created by the Fugitive Slave law but a new
“organization of the courts”? or rather, the creation of new courts,
“in such a manner as not to secure, [the right of trial by jury,] to
suitors?” By it, Congress creates tribunals unknown to the common law,
and purports to give them power over common law rights.
Having now proved, from the nature of the claim in
controversy,--namely, the claim of one man to the personal services and
the liberty of another man, and the counter claim of personal liberty
and of self-ownership,--that the right in dispute between the claimant
of an alleged fugitive, and the person claimed, is a common law right;
and that _any_ legal process to determine this right, “whatever form
it may assume,” is a “suit at common law,” it only remains, under this
head, to establish my _third_ point, namely;
A claim to _any_ person, as one “held to service or labor,” always and
necessarily presumes that “the value in controversy exceeds twenty
dollars.”
On this point, direct authority may be found in the case of _Lee_ vs.
_Lee_, 8 Peters’s Rep. 44. This was an appealed case, where by law
no appeal could be taken unless “the value in controversy” should
be “one thousand dollars or upwards.” It was objected that the
appellants,--the petitioners for freedom,--were not worth a thousand
dollars. But the court said,--
“The matter in dispute, in this case, is the freedom of the
petitioners. The judgment of the court below is against their claim
to freedom; the matter in dispute is, therefore, to the plaintiffs
in error, the value of their freedom, _and this is not susceptible
of a pecuniary valuation_. Had the judgment been in favor of the
petitioners, and the writ of error brought by the party claiming to be
the owner, the value of the slaves as _property_ would have been the
matter in dispute, and affidavits might be admitted to ascertain such
value. But affidavits estimating the value of freedom are entirely
inadmissible, and no doubt is entertained of the jurisdiction of the
court.”
Suppose there are two claimants for the same alleged fugitive? If his
market value exceeds twenty dollars, both of them have a clear right
to the trial by jury. And can it be that a man’s right to his own
_freedom_ cannot be tried by a jury, when, if two men dispute about his
_value_, each may claim the jury trial, and cannot be denied?
On the three points, then, 1. What constitutes a common law or “legal
right;” 2. What constitutes “a suit at common law,” and 3. What
constitutes “a value which exceeds twenty dollars,”--namely; the
personal liberty of any human being, though he be an infant just born,
or a drivelling idiot, or he be stretched upon his death bed with only
another hour to breathe,--I trust I have made out a case which entitles
a party to trial by jury under the constitution of the United States.
I might here rest the argument, feeling that, from authority and from
reason, from the old and time-honored principles of the common law,
as well as from those interpretations of the constitution which have
been given by the supreme court, my conclusions are impregnable. But I
proceed to notice some of the points taken on the other side; and if I
shall occasionally advert to positions that are obviously too shallow
and fallacious for discussion, it is only because I wish to omit
nothing which any one may think of importance.
* * * * *
It is alleged that the whole force of the above argument, otherwise
conclusive, is annulled, because a slave is no party to the
constitution, is not under its protecting shield any more than a horse
or an ox, and therefore, any provisions, however strong, securing the
jury trial, are inapplicable to him. A slave, it is said, is not one
of the “people” by whom and for whom the constitution was formed. He
is an outlaw, and an outcast. He has no inherent or inalienable rights
_as a man_. What he has, he has _ex gratia_, by the good will of those
who own him, body and soul, and who are graciously pleased to forego
some of their legal rights from generosity in themselves, and not from
justice to him.
Now, as it seems to me, a most obvious principle confutes this
argument utterly. By the laws of the free states, we know no such
being as a slave. Our courts, in their functions as state courts,
do not understand the meaning of the word _slave_. To talk to them
in that capacity about a slave or slavery, is talking to them in an
unknown tongue. In the eye of the legislators of the free states, and
in the eye of the courts of the free states, so far as their domestic
polity is concerned, there can be no such creature as a slave. The
constitution of every free state in this Union must be first altered,
before any such being as a slave, or any such condition as slavery, can
be recognized under them, as state authorities.
So the constitution of the United States creates no slaves, and can
create none. Nor has it power to establish the condition of slavery
any where. And I hold further, that if the government of the United
States, by escheat, by purchase, by execution against a debtor, or in
any other way, should become possessed of a slave, that moment he would
be free. The government of the United States can neither hold a slave,
nor make valid title to a slave by sale. It is a government whose
powers consist of the grants that have been made to it; and nowhere, by
no competent party, has any such grant ever been made.
The relation of the government of the United States to slavery consists
in this, and in this alone: that when this government was created,
slavery existed in a portion of the states; and by certain provisions
in the constitution, the existence of this slavery was recognized,
and certain rights and duties in relation to it were respectively
acknowledged and assumed. But the government of the United States has
no more power to turn a freemen in a free state into a slave than it
has to turn a slave in a slave state into a freeman.
The officers of the state government being sworn to support the
constitution of the United States, the governments of the free states
are implicated indirectly in the matter of slavery, as the government
of the United States is directly, and not otherwise.
Both by the constitution of the United States, then, and by the
constitutions of all the free states, every man found within the limits
of a free state is _prima facie_ FREE. No matter what complexion he
may wear, or what language he may speak, he is a free man UNTIL some
other civil condition is proved upon him, or until he forfeits his
freedom by crime. Every man, therefore, in any one of the free states
of this Union, has a right to stand upon this legal presumption, and
to claim all the privileges and immunities that grow out of it _until_
his presumed freedom is wrested from him by legal proof. It is the
most cruel of sophisms to say, that because a man is _claimed_ as a
slave, he is not under the protection of the constitution, and then
_to prescribe a base mode of trial for him, by which he can be proved
the thing he is claimed for_. On the subject of freedom or slavery, we
of the free states know of but one class of men living among us. That
class is free. There is no such class as slaves known to our laws.
Nor is there any intermediate class, who may be presumed to be slaves
on account of their color, or who may be proved to be slaves by less
evidence, or by an inferior kind of evidence, because of color.
No axiom is more universal or indisputable, than that the right to
freedom in a free state, and the right to be held and treated by
the courts as a freeman, has no relation to complexion. If, then,
these rights have no relation to complexion, _all_ white men may be
arbitrarily presumed to be slaves, and be deprived of the form of
trial, secured to them by the constitution, just as well as any colored
man can be. The former may just as well be proved to be slaves, on
dangerous, or on inferior, or on insufficient evidence, as the latter.
No; the liberty to which every man, of whatever color, in a free state,
is _prima facie_ entitled, invests him with its protection, and this
investiture cannot be stripped from him but by the judgment of his
peers or the law of the land,--which, as we have before seen, means
trial by jury.
Any other interpretation assumes this as a postulate, namely, that
there is a higher or surer kind of trial applicable to freemen, and
a lower or inferior mode of proceeding applicable to slaves. And the
inhuman inference from this assumption is, that any man against whom a
ten-dollar commissioner may issue a warrant as a possible slave, shall
forthwith be subjected to the slave’s mode of trial, and be utterly
deprived of the freeman’s mode of trial; or, at the best, that he
shall be sent away a thousand miles, into another jurisdiction, there
only to have the slave’s mode of trial. According to this form of
proceeding, the first thing which the commissioner says to his victim
is, “Being a slave, you must be tried in a summary manner.” “But I am
not a slave,” asseverates the respondent, “and I claim to be tried by
my peers under the guaranties of the constitution.” “You are no party
to the constitution,” rejoins the commissioner, “and, therefore, not
entitled to its shelter. The constitution was made by the people, and
for the people, and you are not of them.” Then says the victim, “If I
could have the trial due to a freeman, I could prove myself a freeman;
but under the form of trial awarded to a slave, I may be adjudged a
slave; so that my fate is made to depend not upon my rights, but upon
your form of proceeding.” “Even if so,” retorts the mercenary minister
of the law, “it is but an imperfection incident to human institutions.
Is not one man’s property sometimes taken to pay another man’s debts?
and is not one man sometimes executed for another man’s murder? Why,
then, should the courts of justice be arraigned, if a freeman, instead
of a slave, is sometimes consigned to bondage?”
Sir, the unmistakable distinction lies here; that if there be any
difference between the kind or degree of proof applicable to a freeman
and that applicable to a slave, then, in a free state, you must first
prove a man to be a slave by freeman’s proof. If cast on such proof,
then, and not till then, does he become the subject of slave proof.
Any thing else under the form of justice is a mockery of justice. No
man will say that the “claim” imposes any disability upon the person
claimed, or takes away from him any rights. A man who has a presumptive
right to his liberty, has a perfect right to all the means to prove it.
The “claim” imposes no obligation to deliver up, but the proof under
the claim; and this proof in a case of “life, liberty, or property,”
is to be judged of by a jury. The real question is, _who_ is to be
delivered up, a slave or a freeman? If the person arrested is prejudged
to be a slave, then there is no need of a trial at all. If he is _prima
facie_ a freeman, then he is entitled to the most perfect mode of trial.
By the theory, I believe, of all the slave states but one, every person
of maternal African descent is presumed to be a slave. As such, his
civil condition is fixed, special tribunals are constituted to try him,
and he is subjected to rules of evidence unknown to the common law and
never applied to freemen. Now it would be but the same kind of legal
absurdity and preposterousness, for the presumptive slave in a slave
state, to demand the form of trial, the tribunal, and the evidence,
which there appertain to a freeman, as it is to subject the presumptive
freeman in a free state, to the form of trial, the tribunal, and the
evidence, which appertain to a slave.
The iniquity of the law is, that it enables a perjured or fictitious
slave owner, on proofs most easily fabricated, to seize any individual
in a free state, and to _prejudge_ him to be a slave, by the very
form of trial which this law authorizes. On the contrary, nothing can
be more clear, than that the civil condition or _status_ of every
man found in a free state is that of a free man. His living under a
free constitution, without any thing more, invests him _prima facie_
with this character. Until divested of this character, he continues
presumptively a free man. While such, he is entitled to every security
which the constitution gives to a free man. How then can he be
subjected to a trial which reverses the whole law of presumption in
favor of freedom, and which presumes that he is a slave to begin with?
This is not only anticipating the judgment at the commencement of the
proceedings, but it is anticipating the worst judgment that can be
passed; and, by anticipating, procuring it; as prophecies often procure
their own fulfilment.
I put this case, and I challenge an answer that shall refute or admit
my conclusion: If any one man in a free state can be seized and
suddenly transported into bondage under this law, _then every other man
also can be; and there is not a single person left in any free state
who has a right to a trial by jury to save him from slavery_. I am
not now speaking of the special danger to each particular individual,
but of the principle that embraces us all. Under the most oppressive
of tyrannies there are persons who are not in danger. But under such
a law as this, who can tell what may happen to men arrested away from
home, to unprotected women, and to helpless children? Do you say that a
public sentiment and a public watchfulness exist, which would protect
the whites, the female, and the child? I reply, that we possess our
right to protection under the constitution and laws, and are not to
be turned over to public sentiment or public watchfulness in order to
enjoy it.
Suppose an analogous law to be passed respecting debtor and creditor.
Suppose a law to provide some new mode of proceeding by which the
indebtedness of a defendant should be so far presumed as to subject
him to an inferior kind of defence, or to transfer his case to another
kind of tribunal, as from jurors to arbitrators, to be selected by the
plaintiff himself. Who is there, though through all his life he had
fulfilled the apostolic injunction to “owe no man any thing,” that
might not be cast in an action that would strip him of all his fortune?
The law punishes murder by death. Could it know with omniscient
certainty, beforehand, _who is a murderer_, it might take from him the
trial by jury without offence to the eternal principles of justice. It
is because the law cannot know with infallible certainty, beforehand,
who is a murderer, that it provides the trial by jury to determine the
question. Just so, because human tribunals cannot know with certainty
who is a slave and who is free, the constitution gives the trial by
jury, before any man in a free state shall be deprived of his freedom.
And the argument, that if a man be wrongfully consigned to bondage
he may be afterwards restored to freedom, is as audacious and as
tyrannical as to say that an innocent man may be hanged and sent into
another world as a felon, because sometimes the dead have been restored
to life.
It is no answer to this view of the case, to say that all processes,
whether civil or criminal, are initiated on the supposition that a
pecuniary liability exists, or that a wrong has been done. Every body
knows that no presumption of this kind follows the plaintiff, or the
government, into court. When there, in the presence of the law, the
plaintiff must establish his claim affirmatively. The possible debtor
is no longer a debtor. So the government must prove the guilt of the
man it has arraigned. The possible criminal is no longer a criminal. In
the eye of the law, he is as innocent as the unborn child. When they
claim the trial by jury, neither plaintiff nor prosecutor can say, You
are not entitled to this form of trial, because you _are_ presumptively
a debtor, or presumptively an offender. Yet this is precisely, and _in
totidem verbis_, what the pro-slavery argument says to the respondent
when he is brought before the commissioner and put in peril of his
freedom. In both the cases supposed, such a doctrine would take away a
man’s rights in the most odious manner, by taking away the legitimate
and constitutional means of defending them.
For the purpose of determining by suit or by prosecution whether a man
is a debtor or is an offender, a suit or a prosecution may be commenced
against him, but never for the purpose of raising a presumption that he
is either the one or the other, or to deprive him of any evidence to
which an unindebted or an innocent man is entitled, or to change the
tribunal which is to try the question of indebtedness or of guilt. If
attachment on mesne process, if even indictment by the grand inquest
for the county, does not deprive a man of his right to a trial by jury,
how can so great a natural wrong be constitutionally inflicted by the
warrant of a commissioner?
The presumption that a colored man is a free man in the free states,
is just as strong as that a man of pure, unmixed, Anglo-Saxon blood is
a free man in the slave states; and would they tolerate the doctrine
for a moment that any perfectly pure-blooded white person could be
transformed into a slave, and as such sent from his own state into
another, under this law? Nay more; would any slave claimant at the
south be allowed to go _into a slave state_, and seize upon a pretended
fugitive whom another man might claim to own, under such a process
as is now sufficient, _in a free state_, to authorize the taking and
carrying away of the same individual?