The national era. [volume] (Washington [D.C.]) 1847-1860, 1850-07-25
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murders which they should commit on the in
habitants Of these States
According to Blackstone the right TO a trial
by jury had been held, time out Of mind" to
be the birihright Of Englshmen. The Goth
chapter Of the Great Charter guaranteed this
right, not only in of liberty, life, and limb
but in cases Of property, real and personal
In England, Ii has become a traditional saying,
aud drops from the common tongue, that the great
object Of King, Lords and Commons, is to get
twelve men into jury box.
Judge Story says, when our more imme-
date ancestors removed to America, they brought
this great privilege with them, as Their birthrigh
and uutcyVGEcc, as a part Of that admirable CON-
mon law which had fenced round, and interposed
barriers on every side, against the approaches of
arbitrary power. Il is now incorporated into all
our State Constitutions, fundamental right
and the Constitution Of the United States would
have been justly obnoxious to the most conclu-
sive objection, if it had not recognised and con-
hrmed it in the most solemn termsn-3 Com, |
652-3.
Is it conceivable, then, that the heroes and |
sages of the Revolution, who rose in resistance to
the most formidable Power on earth 80 many Of
whom rose against their own kindred in the
mother country, because they loved liberty better
than father or mother or brother or sister and
who endured the privations and horrors Of a
seven years warts it conceivable, | say, that,
when they had achieved their independence, and
them. they sAo05 bove framed fundamental
law, and should not have imbued that law with
the SpTH" OF the trial by jury, as its breath Of
hfef As British Subjects they were entitled to
this trial. As Americans, did they renounce it
Did they wage war for seven years in order to
place themselves in a worse condition than they
had been placed in by their Styrant7n Mr.
Webster says they did. He charges this inf
mite folly and blindness upon them singly and
collectively, one and all
DECISIONS OF THE SUPREME COURT
But to examine more particularly the phrase
ology of the seventh amendment What is the
true meaning of those descriptive words :" suits
at common law?0 Has not MIR. Webster relying
on his high reputation, disposed Of this matter
little too summarilyl He says, +" the Consti-
tuition declares that in suits at common law the
trial by jury shall be preserved" but he adds,
Z" the retaining of fugitive slave is not a suit
at common lawD
But the Supreme Court of the United States
has furnished US with an authoritative interpre-
tation Of the words Of the Constitution bearing
this subject In the case Of COhas VS.. Pr
gina, Wheaton R. 4O7, they define what is
meant by "suit" These are their words
"vg> >'-S VNS,a dsrstand e 90 - -: -.
toD pursuit Of some CAIN demand request In law
language il is the prosecution Of demand in
OF Justice The remedy for every species Of wrong Isl
says Judge Bjokst. Sy beng pot In po-seseon Of tAl
INT he eof the party Injured is depriyed The nstru
whereby this remedy Is obtained diversity Of
actions which defined by the Mirror to be
the lawful demand Of ones right or Bracton and
teta express IT, in the words Of Justnsn jus prossque
ID i jucio gHod dic be ur(the form Of prosecuting
IN trial. judgment what is due to any one Blacklist me
then proceeds describe every species Of remedy by suit
and they all where the party suing claims to
obtain something TO which he has right
To commence suit is TO demand something by the
ttuton Of process in court Of Justice and
suit is according acceptation Of Lam
guage, TO continue that demand"
According to the Supreme Court then a szl is
the prosecution of some claim, demand, or request
But the proceedings for fugitive slave, according
to the very letter of the Constitution, are nsti-
tuted to prosecute claim The person held to
service or labor is to be delivered up, son claim
Of the party to whom such service or labor may
be duen
Still further, in a decision bearing directly on
the right TO a trial by jury, the Supreme Court
have defined the term common law in special
reference to its meaning in the amendment to the
Constitution, which secures this right in suits
at common lawn These are their words
tits known that in civil causes in courts Of equity
and admiralty ares do not intervene and that courts Of
equity the trial by jury only in extraordinary cases.
inform the cience When Therefore we
find that the l7ch amendment requires that the right
trial by jury shall be preserved in suits at law
the natural conclusion IS that this distinction was present
TO the minds Of the trainers Of the amendment BY com
Ian they meant what the Constitution dnomnaed
10 the third article sw not merely suits which the COM
Law recognised its old aud settled proceedings
but suits in which iegai rights 10 be ascertaned and
determined In contradisincOn those which equitable
rights alone recognised and equitable remedies
administered, or In which in the admiralty mixture of
public law and Of maritime law and eonItv was of,sn
found In the sut Probably were few II any
States ia the Uno in which legal remedies
but in which, the trial by jury INTERVIEWED and
the general regulations in other respects according
the Of the common law Proceedings in Of
PARTITION and OF foreign and domestic attachment might
be cited examples variously adopted aud modified IN
Just sen'e The amendment then, may ,ceH be construed
fx NJ
riS fiction, wHArRvRR MAY BIZ the PECULIAR WEIGH
THEY MAY ASSUME TO SETTLE LOCAL ISHrs"-Pdrsons
vs. Bedford, 3 PeterS's Rep 1861.
The last sentence have underscored In this
sentence the Supreme Court plainly say, that, if
the bject-matter of the litigation, or the object
of the proceeding be to determine n illegal right
which was formerly. determined by suit at
common law" then such proceeding is embraced
in the seventh amendment, and either party in
interest has a right to the trial by jury Now,
is it not clear that any proceeding which deter
mines whether man owns himself or is owned
by another man, and which delivers one man into
the custody of another, his slave, or refuses 30
to deliver him, is, "whaever peculiar form it
may assume" a proceeding to settle a legal
right, 1.-THE highest legal right IL Is not a
right in equity, in admiralty, or under the mari
time law; but strictly and exclusively a Iegql
right and nothing else. According to the doc
trine Of the Supreme Court, then, in the above
cited case, the parties to such proceeding have
right, under the seventh amendment, to a trial
by jury. At least, is not such the " sprun of the
amendment?
But there is another well-known fact, which
gives pertinence and stringency to the above
view. At common law the writ de hopiae ysDle-
gidRdo,-th writ Of personal replevn or for re-
plevying a man,-was an original writ; 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 super |
sede. 1t was according to the very language of
our Supreme Court, recognised by the common |
law "among its old and settled proceedings
The form of it is found in that great arsenal of
common law wrts, the RegiStrum BrepiVm A
man, says Comyn, may have hODuine replegiaudo
for a negro; or for an Indian brought by him
into England and detained from him or it may
be brought by IN infant against his testamentary
guardian or by UHlem against his lord. dig
Title Imprisonment, L.
If it could be brought by villen against his
lord, then il the very writ for alleged slave
against alleging owner. IL was the mode pro-
vided by the common law for the determination
Of the legal right asserted in a human being |
have always understood that before the Revolu-
ton, and before the framing of our Constitution
Comyn's Digest was work of the highest author
ity. Il must have been well known to all the
lawyers in the Convention. Did they expect,
then that when alleged slave or q known free
man, should be seized that he should be hurried
into bondage without any right to this ancient
imminent OF the subjects liberties2
But the retaining of fugitive slave" says
Mr.. Webster, +" is not a suit at the common law
The proceedings provided for by the statute of
1893 to which he sees no objection have no
analogy TO tbewrit dc hopails Yspie9 aRdo But can
Won destrov the RIGHT 10 a iury trial hy CHANGING