In the first place, I believe the constitution not only authorizes but requires a trial by jury, in the case of alleged fugitive slaves, when claimed in free states.
The constitution declares, “The right of the people to be secure in their persons,” “against unreasonable” “seizures, shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing” “the persons or things to be seized.”—Amend., Art. IV.
It also declares, that, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”—Amend., Art. VII.
And it also says, “No person shall be deprived of life, liberty, or property, without due process of law.” Amend., Art. V. And it is most important to observe that these words, “due process of law,” are held by all the authorities to include the trial by jury.—3 Story’s Com. 661; 2 Inst. 50, 51; 2 Kent’s Com. 10; 1 Tucker’s Black. App. 304-5.
That there may be no doubt about the meaning and force of these words, I quote the following passage from Chancellor Kent:—
“It may be received as a self-evident proposition, universally understood and acknowledged throughout the country, that no person can be taken or imprisoned, or disseized from his freehold, or liberties, or estate, or exiled, or condemned, or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, ‘by the law of the land,’ as used by the Magna Charta, in reference to this subject, are understood to mean ‘due process of law.’ That is, by indictment or presentment of good and lawful men.”—2 Com. 13.
Now, in most of the cases which will arise under the Fugitive Slave law, there will be a “seizure” under a warrant; and in all the cases, the questions both of property and of liberty will necessarily be involved. In every case, the claimant will aver property in the respondent, and will seek to deprive him of his liberty. The respondent will deny the claim of property, and will seek to retain his liberty.
Now, suppose a man to have lived in Boston or New York for twenty years; to have contracted marriage; to have bought and sold; to have hired himself out to others, and to have hired others to serve him; to have pleaded and been impleaded in the courts; to have voted at elections, and to be, in all respects, as free by the constitutions of Massachusetts and New York as the governors of those states themselves; and suppose further, that this man is suddenly seized and taken before a commissioner, is adjudged the property of another man like himself, with no chance of revising the decision, or of having a new trial, is placed in duress, and then transported by force, and against his will, to a distant state, under a claim that he is a slave, and an adjudication that such claim is true,—suppose all this, I say, and then answer me this simple question, Has, or has not, such a man been “deprived of his liberty”? In other words, does such a man retain his liberty? As he is borne away by force, and against prayers, and tears, and struggles, does he remain free? Can a man be adjudged a slave; held, coerced, beaten as a slave; with all his powers and faculties of body and mind subdued and controlled as a slave’s, and yet possess or retain liberty? If such a proceeding does not deprive a man of his freedom, by what means can he be deprived of it? What more, or what other thing would you do to deprive him of it? Would binding him out to serve for life deprive him of it? This declares that he owes service for life. Would imprisonment deprive him of it? This imprisons him, and makes the man his keeper who is interested to make that imprisonment perpetual in himself, and descendible to his children, and his children’s children forever.
Is not perpetual imprisonment of the nature and substance of punishment,—of the severest punishment? The constitution has provided that “cruel and unusual punishments shall not be inflicted,” even for the perpetration of the worst of crimes; yet here is a case where the most cruel of punishments, or of privations, may be inflicted without even a charge of crime. And the argument is, that this form of punishment may constitutionally be inflicted, because it was so inconceivably atrocious and diabolical that the constitution did not prohibit it,—because the constitution only prohibited “cruel and unusual punishments” for crimes, and not for having a dark skin.
Does any one say that a victim of this law has not been “deprived” of his liberty because he may sue for it, and possibly recover it, in the courts of the state to which he is carried? I reply, that it would be just as good an answer to say, that he may possibly recover his liberty by escape, or possibly his master may emancipate him, or possibly a St. Domingo insurrection may break out, or possibly the walls of his prison-house may be shaken down by an earthquake, and he may go forth like Paul and Silas; and therefore he is not deprived of his liberty by being enslaved. Neither of these events would have the slightest legal relation to the proceedings which did enslave him. Neither of them would be retroactive, undoing or annulling the past. Enslavement and liberty being incompatible, when he suffers the first, though but for an hour, he is deprived of the last. The moment he should arrive within the limits of a slave state, that moment he would be in the same condition as three million other fellow-bondmen; and it would be just as rational to say that they have never been deprived of liberty as that he has not. When our government made war upon Algiers, ransoming American captives from their horrible bondage and restoring them to their homes, did it annihilate the preëxisting fact that they had been enslaved? Did it enable or authorize the historian to say that they had never been deprived of their liberty? Had Algiers been “reännexed” as one of the states of this Union, could she have said, “We have not broken the constitution because these men are free again”? I affirm, then, that when a man in Massachusetts, who by the constitution of Massachusetts is free, is adjudged to be a slave, is transported as a slave, and held as a slave, in a southern state, though it be but for a single day, he is deprived of his liberty. That very thing is done to him which the constitution says shall not be done but by a jury of his peers.