In a decision bearing directly on the right to a trial by jury, the supreme court has defined the phrase “suits at common law,” in special reference to its meaning in the seventh amendment to the constitution, where the right to such trial, “in suits at common law,” is secured. These are their words:—
“It is well known that in civil causes, in courts of equity and admiralty, juries do not intervene; and that courts of equity use the trial by jury only in extraordinary cases, to inform the conscience of the court. When, therefore, we find that the [seventh] amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment. By common law they meant, what the constitution denominated in the third article, ‘law;’ not merely suits, which the common law recognized among its old and settled proceedings; but suits, in which legal rights were to be ascertained and determined, in contradistinction to those in which equitable rights alone were recognized, and equitable remedies were administered, or in which, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. Probably there were few, if any states in the Union, in which some new legal remedies, differing from the old common law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations, in other respects, were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited, as examples, variously adopted and modified. In a just sense, the amendment, then, may well he construed to embrace all suits, which are not of equity or admiralty jurisdiction, WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.”—Parsons vs. Bedford, 3 Peters’s Rep. 456-57.
Here the court say, that the term “common law,” in the seventh amendment, meant what the constitution denominated in the third article, “law.” The word “law” which is here referred to, as contained in the third article, occurs in the following sentence: “The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States,” &c. And the court declare that the constitutional right to a jury trial embraces “not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined,” in contradistinction from equity and admiralty cases.
And in the last sentence of the decision quoted, the court expressly say, that the seventh amendment embraces “all suits which are not of equity or admiralty jurisdiction, WHATEVER MAY BE THE PECULIAR FORM WHICH THEY MAY ASSUME TO SETTLE LEGAL RIGHTS.” The court say “ALL.” After excepting cases of equity and admiralty jurisdiction, they declare that the phrase, “suits at common law,” embraces all the rest. They recognize no hybrid class, not included under one or another of these heads.
Now it has been proved above, that a warrant for the arrest of an alleged fugitive, together with the allegations and proofs under it, constitute a “suit.” And can any thing be more clear, than that a proceeding which decides the issue, whether a man “owes” or does not “owe;” which decides the issue, whether a man has “escaped,” or has not “escaped;” and which, as the legal consequence of these decisions, delivers one man into the custody of another as his slave, or enlarges one man from the custody of another because he is not his slave, is, “whatever peculiar form it may assume,” a proceeding “to settle a legal right,”—one of the highest and most important legal rights that appertain to a man? It is not, in legal language, a right “of equity or admiralty jurisdiction,” but exclusively and purely a legal right, and nothing else.
The court declare this to be so, whatever peculiar form the process may assume. But what gives peculiar pertinency and stringency to this decision of the court is, that at common law there was an original writ, called the writ de homine replegiando,—the writ of personal replevin, or for replevying a man, by which the question of property in a man might be determined. It was a 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 supersede. In the very language of the supreme court, it was a writ recognized by the common law, and is to be found “among its old and settled proceedings.” The form of it is contained in that great arsenal of common law writs, the Registrum Brevium.
“A man,” says Comyn, “may have a homine replegiando for a negro, or for an Indian brought by him into England and detained from him; or it may be brought by an infant against his testamentary guardian; or by a villein against his lord.”—(Dig., title Imprisonment, L. 4.)
If this writ could be brought “for a negro,” or “for an Indian,” by a man who had introduced him into England, and from whom he had been detained; and if, on the other hand, it could be brought by the negro, or by the Indian to gain his freedom, as was clearly the case, then it follows that the question of a right to a man, as well as that of human freedom, was a question familiar to the ancient common law, and for the trial of which a well-known process existed “among its old and settled proceedings.” But this ancient writ, de homine replegiando, carries with it, as every body knows, the trial by jury, as much as an action of assault and battery, or of assumpsit on a promissory note.
I have always understood, that before the revolution, and before the framing of our constitution, Comyn’s Digest, from which the above citation is made, was a work of the highest authority. It must have been well known to all the lawyers in the convention. Could they have intended that the mere fact of claiming a man as a slave,—which claim might be made against a freeman as well as against a slave,—should be sufficient to deprive him of this ancient muniment of the subject’s liberty? It seems impossible!
But we are not left to the broad and general assertion, contained in the case of Parsons vs. Bedford, that the seventh article of amendment embraces “all suits” not of equity or admiralty jurisdiction, whatever the peculiar form which they may assume to settle legal rights. Authority exists still more pointed and direct. In Baker vs. Riddle, Mr. Justice Baldwin, one of the judges of the supreme court of the United States, held that it was not in the power of Congress to take away the right of trial by jury, as secured by the seventh amendment; neither,—