According to the supreme court, then, a suit is the prosecution of some claim, demand, or request. Now, the proceedings for a fugitive slave, according to the very letter of the constitution, are instituted to prosecute a claim. The person held to service or labor is to be delivered up, “on claim of the party to whom such service or labor may be due.”
Still further, in a decision bearing directly on the right to a trial by jury, the supreme court have defined the term “common law” in special reference to its meaning in the amendment to the constitution, which secures this right “in suits at common law.” 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 [7th] 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 be 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, 7.
The last sentence I have underscored. In this sentence, the supreme court plainly say, that, if the subject matter of the litigation, or the object of the proceeding, be to determine a “legal right” which was formerly determined by a “suit at common law,” then such proceeding is embraced in the seventh amendment, and either party in interest has a right to the trial by jury. Now, is it not clear that any proceeding which determines whether a man owns himself, or is owned by another man, and which delivers one man into the custody of another, as his slave, or refuses so to deliver him, is, “whatever peculiar form it may assume,” a proceeding “to settle a legal right,”—the highest legal right? It is not a right in equity, in admiralty, or under the maritime law; but strictly and exclusively a legal right, and nothing else. According to the doctrine of the supreme court, then, in the above-cited case, the parties to such a proceeding have a right, under the seventh amendment, to a trial by jury. At least, is not such the “spirit” of the amendment?
But there is another well-known fact, which gives pertinence and stringency to the above view. At common law, the writ de homine replegiando,—the writ of personal replevin, or for replevying a man,—was an original writ; 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. It was, according to the very language of our supreme court, recognized by the common law “among its old and settled proceedings.” The form of it is found 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 it could be brought by a villein against his lord, then it was the very writ for an alleged slave against an alleging owner. It was the mode provided by the common law for the determination of the legal right asserted in a human being. I have always understood that, before the revolution, and before the framing of our constitution, Comyn’s Digest was a work of the highest authority. It must have been well known to all the lawyers in the convention. Did they expect, then, that when an alleged slave, or a known freeman, should be seized, that he should be hurried into bondage without any right to this ancient muniment of the subject’s liberties?
But “the reclaiming of a fugitive slave,” says Mr. Webster, “is not a suit at the common law.” The proceedings provided for by the statute of 1793, to which he “sees no objection,” have no analogy to the writ de homine replegiando. But can you destroy the right to a jury trial by changing the process? A sand-hiller from Georgia or North Carolina cannot come to Massachusetts and eject Mr. Webster from his Marshfield farm without being compelled to submit the question of title to a jury. But suppose Congress should say, in effect, that any one of the seventeen thousand postmasters in the United States might be brought into Massachusetts, (and, among so numerous a body, it is no libel to say there are some reckless men,) and that the said sand-hiller might go before the said imported postmaster, and after proof “to his satisfaction,” “either by oral testimony or by affidavit,”—an affidavit, be it remembered, taken any where in the United States,—then the claimant shall be put into immediate possession of the said farm, with a right to recover costs; and suppose Mr. Webster should spurn the authority of this illegitimate court, and demand an observance of the ancient forms of law, and a trial by jury under the seventh amendment; then the claimant has only to borrow Mr. Webster’s own words, and say, “This is not a suit at the common law:”—suppose all this, I say, and I would then ask if such a proceeding would be satisfactory to the last-named gentleman? The common sense of mankind is authority good enough to answer such a question; but we have high legal authority in addition.
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, secured by the seventh amendment, either,—“1. By an organization of the courts in such a manner as not to secure it to suitors;” or,—“2. By authorizing the courts to exercise, or their assumption of, equity or admiralty jurisdiction over cases at law.” “This amendment,” says he, “preserves the right of jury trial against any infringement by any department of the government.”—Baldwin’s Rep. 404.
Now, what was Mr. Butler’s bill but “a new organization of the courts,” or, rather, a new creation of some twenty thousand courts, “in such a manner as not to secure [the right of trial by jury] to suitors?” It was, indeed, a violation of both of the principles laid down by Judge Baldwin. It was the creation of tribunals unknown to the common law, and authorizing those tribunals to decide upon rights not belonging to either “equity or admiralty jurisdiction.”
In this connection, I will refer to the case of Lee VS. Lee, 8 Peters’s Rep. 44.