The national era. [volume] (Washington [D.C.]) 1847-1860, 1852-09-02


right OF Trial by Jury shall be preserved" The
decisions of the Supreme Court expressly touch
each of these points.
First. I'm the case of CohenS VS.. PirginiG,
C Wheaton. 407, ) the Court say: What is
a s,at We understand il to be the prosecu-
ton of some claim, demand, or request" OF
course, then, the :" claim for fugitive must
be " a suit"
Secondly In the case of Parsons VS.. Bedford,
6 Peters, 1861 while considering this very
clause, the Court say : " BY common Lao is
meant not merely suits which the common law
recognised among its old and settled proceed
ings, but suits in which legal rights were 10 be
ascertained and determined. In just sense,
the Amendment may well be construed TO EN-
brace all suits, which are not OF Equity or Ad
miralty jurisdiction, ,rhateUer may be the Pecu-
liar form ,chich they may assume 10 settle legal
rights" Now, since the claim for fugitive
is not a suit in Equity or Admiralty, but suit
to settle what are called legal rights, II must, Of
course be " a suit at common law"
Thirdly. In the case of Lee VS.. Lee, g Pc
tiers, "A. } on question whether the value III
controversy was 8" one thousand dollars and
upwards, it was objectedsthat the appellants,
who were petitioners for Freedom, were not OF
the value of one thousand dollars. But the
Court said 1.-THE matter in dispute is the
Freedom of the petitioners. This is not s,aScep-
tible of pecuniary radiation. No doubt is enter
tanned Of the jurisdiction of the Court" OF
course, then, since liberty is above price, the
claim 10 any fugitive always and necessarily
presumes that g the value in controversy ex-
ceeds twenty dollars"
BY these successive steps, sustained by de-
cisions of the highest tribunal, / appears, as in
diagram, that the right of Trial by Jury is Sc
cured to the fugitive from labor
This conclusion needs no further authority /;
but ii may receive curious Illustration from the
ancient records of the common law, so familiar
and dear to the trainers OF the Constitution. 1t
is said by Mr.. Burke, in his magnificent speech
on Cancellation 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 Free
dom, which were the boast OF the British Con-
stituton. Imbued by these, the earliest Cont
mental Congress, in IVA, declared, " that the
respective Colonies are entitled TO the common
law of England, and especially to the great and
ineStmable 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 birthright.
Now although the common law may not be
approached as a source Of jurisdiction under the
National CONSTITUTIONAL on this point do
not dwel-it is clear that ii may be employed IN
determining the meaning Of technical terms IN
the Constitution borrowed from this Las. This,
indeed, is expressly sanctioned by Mr.. Madl-
- .1 Of 100 nhIia
straining the extent to which the common law
may be employed. Thus by this law we learn
the nature of Trial by Jury, which, though
secured, is not described by the Constitution
also of Bills Of aHaiader, the Urh Of Habeas
Corpus, and Impeachment, all technical terms
of the Constitution borrowed from the com
mon law BY this law. and lis associate
Chancery, we learn what are cases IN lao and
equity TO which the judicial power of the United
States is extended. These instances | adduce
merely by way OF example. Of course also in
the same way we learn what in reality are suits
at common Luc.
Now, on principle and authority, a clam for
the deiirery Of a tugitire sldre as a s,nt at COM
mon ld,c, and is embraced naturally and neces-
sarily in this class Of judicial proceedings.
This proposition can be placed beyond question.
History painfully records that during the
early days of the common law, and down even
to late period, a system of slavery existed in
England, known under the name of viliamage.
The slave was generally called a riilain, though,
in the original Latin forms Of judicial proceed
ings, ,atirus, implying slavery by birth. The
incidents of this condition have been minute
ly described, and also the mutual remedies
of master and slave, all of which were regu-
lated by the common law. Slaves sometimes
then, as now, escaped from their masters.
The claim for them after such escape was pros
ecuted by 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 law
yers of the Convention, said of pilIaiaS: "They
could not leave their lord without his permis-
sion, but y they ran array, or were purlolned
from him, might be CLAIMED and recocered by
ACTION, like beasts or other cattle" This very
word =" action" of itself implies ga suit at com
mon law " with Trial by Jury.
From other sources we learn precisely what
the action was. That great expounder oil The
ancient law. Mr. Hargrave, says, "the ear
Books and Books of Entries are full OF The
forms used in pleading title to villains"
Though no longer of practical value IN Eng
land, they remain as monuments OF Jurispru
dence, and as mementoes of barharous insii-
tuition. He thus describes the remedy OF The
master at common law:
"The lord remedy for a fugitive villain was eithor
by seizure by sueing out writ OF N"f,s" n" -
no. or Neiftv ne il is sometimes called. II the lord
seized the villain most cectua mode OF recovering
liberty was by tho writ Of Hon," hrpfeg,"s"o
which had great advantage over the writ OF haoeas
Corpus. In the HaJeas Corpus the return csnno. OF
contested by pleading against the truth OF IT, anu
on Ha6oas Co,y,asfhs question OF no
,ytv CANNOT go 10 jnyy fo, trial But in the Homihe
Replsg,audo il was otherwise. The piainhu, on tue
pleading villainage. had the same opPor
tunity of contestng H. Is when paJ ~ W,;o
U,5,udo. and the vlainsgo was denied, in which case
the sheriff could not seize the villain, me tord i"s
tL,n 10 ,,,fey his piaim ga he oonmy conyf and as
the sheriff was not allowed to try the question OF WI
in his court the lord could not have any ben
o8t from the writ without removing the cause by the
writ of poae into the Kings Bench Common
Pless."-(2O Howcll's State Trials, Ss nOte)
The authority of Mr.. Hargrave is sufficient
But | desire TO place this matter beyond all
cayil. From the Digest of Lord Chief Baron
Comyns, which, at the adoption Of the Consti
tuition, was one OF the classics Of our jurispru
dence, derive another description of the
remedy of the master
4" If the lord claims an inheritance in his villain
who 1ics from his lord against his will and lives in
a place out of the manor, to which he is regardant
the lord shall have NoilcO Habcn,io. And upon
such writ directed to the sheriff, he may seize him
who does not deny himself to be villain But il the
defendant say that he is Free Man the sheriff cannot
seize him, but the lord must remove the writ by Pops
before the Justices Eiye, or in &. b., tchcre he
mna count HIaH a.'-(Comyns' Villainagc
G. H.
An early writer of peculiar authority, Fitz-
herbert, IN hls .Na,Va Brerimn, on the writs
OF the common law, thus describes these pro-
ceedings;
The writ de Naiiro Hg6enio licth for the lord
who clameth inheritance in any villain, trL4n his
U,ifd'" +" rna from ham, and is remaining within any
a L. rhin l. L L.