This conclusion needs no additional authority; but it receives curious illustration from the ancient records of the Common Law, so familiar and dear to the framers of the Constitution. It is said by Mr. Burke, in his magnificent speech on Conciliation with America, that "nearly as many of Blackstone's Commentaries were sold in America as in England,"[173] carrying thither the knowledge of those vital principles of Freedom which were the boast of the British Constitution. Thus imbued, the earliest Continental Congress, in 1774, declared, "That the respective Colonies are entitled to the Common Law of England, and more especially to the great and inestimable privilege of being tried by their Peers of the Vicinage, according to the course of that law."[174] Amidst the troubles which heralded the Revolution, the Common Law was claimed as a birthright.
Now, although the Common Law may not be approached as a source of jurisdiction under the National Constitution,—and on this interesting topic I forbear to dwell,—it is clear that it may be employed to determine the meaning of technical terms in the Constitution borrowed from this law. This, indeed, is expressly sanctioned by Mr. Madison, in his celebrated Report of 1799, while limiting 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 what are Attainder, Habeas Corpus, and Impeachment, all technical terms of the Constitution, borrowed from the Common Law. By this law, and its associate Chancery, we learn what are cases in law and equity to which the judicial power of the United States is extended. These instances I adduce merely for example. Also in the same way we learn what are suits at Common Law.
Now, on principle and authority, a claim for the delivery of a fugitive slave is a suit at Common Law, and is embraced naturally and necessarily in this class of judicial proceedings. This proposition can be placed beyond question. And here, especially, let me ask the attention of all learned in the law. On this point, as on every other in this argument, I challenge inquiry and answer.
History painfully records, that, during the early days of the Common Law, and down even to a late period, a system of Slavery existed in England, known under the name of villenage. The slave was generally called a villein, though in the original Latin forms of judicial proceedings he was termed nativus, implying slavery by birth. The incidents of this condition are minutely described, and also the mutual remedies of master and slave, all of which were regulated by the Common Law. Slaves sometimes then, as now, escaped from their masters. The claim for them, after such escape, was prosecuted by a "suit at Common Law," to which, as to every suit at Common Law, 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."[175] This very word, "action," of itself implies "a suit at Common Law" with Trial by Jury.
From other sources we learn precisely what the action was. That great expounder of the ancient law, Mr. Hargrave, says, "Our Year Books and Books of Entries are full of the forms used in pleading a title to villeins regardant."[176] Though no longer of practical value in England, they remain as monuments of jurisprudence, and as mementos of a barbarous institution. He thus describes the remedy of the master at Common Law.
"The lord's remedy for a fugitive villein was either by seizure or by suing out a writ of Nativo Habendo, or Neifty, as it is sometimes called. If the lord seized, the villein's most effectual mode of recovering liberty was by the writ of Homine Replegiando, which had great advantage over the writ of Habeas Corpus. In the Habeas Corpus the return cannot be contested by pleading against the truth of it, and consequently on a Habeas Corpus the question of liberty cannot go to a jury for trial.... But in the Homine Replegiando it was otherwise.... The plaintiff, ... on the defendant's pleading the villenage, had the same opportunity of contesting it as when impleaded by the lord in a Nativo Habendo. If the lord sued out a Nativo Habendo, and the villenage was denied, in which case the sheriff could not seize the villein, the lord was then to enter his plaint in the county court; and as the sheriff was not allowed to try the question of villenage in his court, the lord could not have any benefit from the writ, without removing the cause by the writ of Pone into the King's Bench or Common Pleas."[177]
The authority of Mr. Hargrave is sufficient. But I mean to place this matter beyond all cavil. From the Digest of Lord Chief Baron Comyns, which at the adoption of the Constitution was among the classics of our jurisprudence, I derive another description of the remedy.
"If the lord claims an inheritance in his villein, who flies from his lord against his will, and lives in a place out of the manor to which he is regardant, the lord shall have a Nativo Habendo. And upon such writ, directed to the sheriff, he may seize him who does not deny himself to be a villein. But if the defendant say that he is a freeman, the sheriff cannot seize him, but the lord must remove the writ by Pone before the Justices in Eyre, or in C.B., where he must count upon it."[178]
An early writer of peculiar authority, Fitzherbert, in his Natura Brevium, on the writs of the Common Law, thus describes these proceedings.