UNCONSTITUTIONAL DENIAL OF TRIAL BY JURY.
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.