Foremost among these objections it is proper to put the denial of
trial by jury to the fugitive whose liberty is in question. It is well
known that Judge Story, who pronounced the opinion of the Supreme
Court affirming the constitutionality of the early Fugitive Slave Act,
declared that the necessity of a trial by jury had not been argued
before the Court, and that in his opinion this was still “an open
question.”[359] It has never been argued since; but it is difficult
to say that it is still “an open question.” The battles of Freedom are
never lost, and the longer this right is denied the more its justice
has become apparent, until at last it shines resplendent beyond all
contradiction. Even if there were doubt of the obligation of Congress,
there can be no doubt of the power. Nobody denies that Congress, if it
legislates on this matter, _may_ allow trial by jury. But here again,
if it _may_, so overwhelming is the claim of justice, it MUST.
The text of the Constitution leaves the case beyond question. And here,
on the threshold, two necessary incidents of the delivery are observed:
first, it must be made in the State where the fugitive is found;
and, secondly, it restores to the claimant complete control over the
person, so that the victim may be conveyed to any part of the country
where it is possible to hold a slave, or he may be sold on the way.
The proceedings, therefore, cannot be regarded, in any just sense, as
preliminary or auxiliary to some future formal trial, as in the case
of a fugitive from justice, but as complete in themselves, final and
conclusive.
It is because of the contempt with which, under the teachings of
Slavery, to the shame of our country, men have thus far regarded the
rights of colored persons, that courts have been willing for a moment
to recognize the constitutional right to hurl a human being into
bondage without trial by jury. Had the victims been white, it is easy
to see that the rule would have been different. But it is obvious,
that, under the Constitution, the rule must be the same for all,
whether black or white.
On the one side is a question of property; on the other side is the
vital question of Human Freedom in its most transcendent form,--not
merely Freedom for a day or a year, but for life, and the freedom of
generations that shall succeed so long as Slavery endures. Whether
viewed as a question of property or a question of Human Freedom, the
requirement of the Constitution is equally explicit, and it becomes
more explicit as we examine its history. It is well known, that,
at the close of the National Convention, Elbridge Gerry refused to
sign the Constitution, because, among other things, it sanctioned
the establishment of “a tribunal _without juries_,--a Star-Chamber
as to civil cases.”[360] Many united in this opposition, and on the
recommendation of the First Congress an additional safeguard was added
in the following words: “In _suits at Common Law_, where the value in
controversy shall exceed twenty dollars, _the right of trial by jury
shall be preserved_.” Words cannot be more positive.
Three conditions, according to this Amendment, are necessary. _First_,
there must be “a suit.” But the Supreme Court, in the case of _Cohens_
v. _Virginia_, have defined a suit to be “the prosecution, or pursuit,
of some _claim_, demand, or request,”[361]--thus affirming that the
“claim” for a fugitive is “a suit.” _Secondly_, there must be a
suit “at Common Law.” But here again the Supreme Court, in the case
of _Parsons_ v. _Bedford_, while considering this very clause, has
declared that “in a just sense the Amendment may well be construed to
embrace all suits which are not of Equity and Admiralty jurisdiction,
_whatever may be the peculiar form which they may assume to settle
legal rights_”;[362] and clearly, since the claim for a fugitive is
not a suit in Equity or Admiralty, but a suit to settle what are
culled “legal rights,” it must, of course, be “a suit at Common Law.”
_Thirdly_, the value in controversy must “exceed twenty dollars.” But
here again the Supreme Court, in the case of _Lee_ v. _Lee_, on a
question as to jurisdiction, founded on “the value in controversy,” has
declared that the freedom of the petitioners, which was the matter in
dispute, was “not susceptible of a pecuniary valuation,”[363]--showing,
that, since Liberty is above price, the claim to a fugitive always
necessarily presumes that “the value in controversy exceeds twenty
dollars.”
Thus, by a series of separate decisions of the Supreme Court on the
three points involved in the interpretation of this clause, it is
clear beyond question that the claim to a fugitive is, first, “a
suit,”--secondly, “at Common Law,”--thirdly, “where the value in
controversy exceeds twenty dollars”: so that trial by jury is expressly
secured.
Even if the Supreme Court had been silent on this question, the
argument from the old books of the Common Law would be unanswerable.
We are told that there is nothing new under the sun. Certainly, long
before our Constitution, the claim for a fugitive slave was known to
the Common Law. In early history, and down even to a late period, the
slave in England was generally called _villein_, though in the original
Latin judicial forms _nativus_, implying slavery by birth. Of course,
then as now, he sometimes ventured to _escape_ from his master; but the
Common Law supplied the appropriate remedy. The claim was prosecuted
by “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, in words which must have been known to all the lawyers of
the Convention, said of _villeins_: “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
chattels_.”[364] But this word “action” of itself implies “a suit at
Common Law,” with trial by jury.
The forms of proceeding in such cases are carefully preserved in those
books which constitute the authoritative precedents of the Common Law.
There are writs, counts, pleadings, and judgments, all ending in trial
by jury. They will be found in Fitzherbert’s “Natura Brevium.”[365]
The Year Books and Books of Entries are full of them. Clearly and
indisputably, in England, where the Common Law has its origin, a claim
for a fugitive slave was “a suit at Common Law,” recognized as such
among its old and settled proceedings, as much as a writ of replevin
for a horse or a writ of right for land. It follows, then, that the
requirement of the Constitution, read in the illumination of the Common
Law, naturally and necessarily embraces proceedings for the recovery of
fugitive slaves, _so far as any such are instituted or allowed under
the Constitution_.
And this irresistible conclusion had the support of a Senator from
South Carolina in an earlier period of our history, before passion had
obscured reason and conspiracy against the Union had blotted out all
loyalty to truth. In reply to a proposition, in 1818, to refer the
claim of the master to a judge without a jury, Mr. Smith, speaking
solely in the interests of property, thus expressed himself:--
“This would give a judge the sole power of deciding _the right
of property the master claims in his slave, 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 jury, as well as 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.”[366]
Thus, in those days, a partisan of Slavery, while asserting its divine
origin, and vindicating the rendition of fugitive slaves, recognized
the claim of the master as “a suit at Common Law,” to be tried by a
jury; and this he _insisted_ was prescribed by the Constitution. But
if this Senator could claim trial by jury for the protection of his
pretended property, with much greater reason might the fugitive claim
trial by jury for the protection of his liberty. Surely, now, when
Liberty is regaining her lost foothold, this protection will not be
denied.