section 2.: Denial of a Trial by Jury.*

Neither the Act of 1793, nor that of 1850, allows the alleged slave a trial by jury. So far as I am aware, the only argument, worthy of notice, that has ever been offered against the right of an alleged fugitive slave to a trial by jury, is that given by Mr. Webster, in his letter to certain citizens of Newburyport, dated May 15, 1850, as follows:—

“Nothing is more false than that such jury trial is demanded, in cases of this kind, by the constitution, either in its letter or in its spirit. The constitution declares that in all criminal prosecutions, there shall be a trial by jury; the reclaiming of a fugitive slave is not a criminal prosecution.

“The constitution also declares that in suits at common law, the trial by jury shall be preserved; the reclaiming of a fugitive slave is not a suit at the common law; and there is no other clause or sentence in the constitution having the least bearing on the subject.”

In saying that “the reclaiming of a fugitive slave is not a criminal prosecution,” Mr. Webster is, of course, correct. But in saying that “the reclaiming of a fugitive slave is not a suit at the common law,” within the meaning of the constitutional amendment, that secures a jury trial “in suits at common law,” he raises a question, which it will require something more than his simple assertion to settle.

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To determine whether the reclaiming of a fugitive slave is a “suit at common law,” within the meaning of the above amendment to the constitution, it is only necessary to define the terms “suit” and “common law,” as used in the amendment, and the term “claim,” as used in that clause of the constitution, which provides that fugitives from service and labor “shall be delivered up on claim of the person to whom such service or labor may be due.”

All these terms have been defined by the Supreme Court of the United States. Their definitions are as follows:

In the case of Prigg vs. Pennsylvania, the court say—

“He (the slave) shall be delivered up on claim of the party to whom such service or labor may be due. * * * A claim is to be made. What is a claim? It is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do, or to forbear to do, some act or thing as a matter of duty. A more limited, but at the same time an equally expressive definition was given by Lord Dyer, as cited in Stowell vs. Zouch, Plowden 359; and it is equally applicable to the present case; that ‘a claim is a challenge by a man of the propriety or ownership of a thing which he has not in his possession, but which is wrongfully detained from him.’ The slave is to be delivered up on the claim.”—16 Peters 614-15.

In Cohens vs. Virginia, the court say:

“What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. ‘The remedy for every species of wrong is,’ says Judge Blackstone, ‘the being put in possession of that right whereof the party injured is deprived.’ The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be ‘the lawful demand of one’s right;’ or, as Bracton and Fleta express it, in the words of Justinian, ‘jus prosequendi in judicio quod alicui debetur,’—(the form of prosecuting in trial, or judgment, what is due to any one.) Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party sueing claims to obtain something to which he has a right.

“To commence a suit, is to demand something by the institution of process in a court of justice; and to prosecute the Edition: current; Page: [8] suit, is, according to the common acceptation of language, to continue that demand.”—6 Wheaton 407-8.

In the case of Parsons vs. Bedford et. al., the court define the term “common law,” with special reference to its meaning in the amendment to the constitution, which secures the right of trial by jury “in suits at common law.” The court say:

“The phrase ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The constitution had declared in the third article, ‘that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority, &c., and to all cases of admiralty and maritime jurisprudence. 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 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 where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit.” * * * *

“In a just sense, the amendment, then, may be construed to embrace all suits which are not of equity and admiralty jurisprudence, whatever may be the peculiar form which they may assume to settle legal rights.”—3 Peters, 446.

Such are the definitions given by the Supreme Court of the United States, of the terms “claim,” “suit,” and “common law,” as used in the constitution and amendment. If these definitions are correct, they cover the case of fugitive slaves. If they are not correct, it becomes Mr. Webster to give some reason against them besides his naked assertion, that “the reclaiming of a fugitive slave is not a suit at the common law.”

Mr. Webster is habitually well satisfied with the opinions of Edition: current; Page: [9] the Supreme Court, when they make for slavery. Will he favor the world with his objections to them, when they make for liberty?

Perhaps Mr. Webster will say that, in the case of a fugitive slave, the matter “in controversy,” is not “value”—to be measured by “dollars,” but freedom. But it certainly does not lie in the mouth of the slaveholder, (however it might in the mouth of the slave,) to make this objection—because the slaveholder claims the slave as property—as “value” belonging to himself.