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action of Congress, is to make the law of status of the State from which the slave escapes operative in the State into which he goes, thus continuing all his liabilities and all correlative rights of his owner under sanction of the Constitution operating as private law. This doctrine has already been examined. But if it were correct, the question occurs-how is one to be known to be thus affected by the law of some State other than that which is the forum of jurisdiction? The argument proves too much; if good for anything, the conclusion is, that any man may be seized as a fugitive slave and removed, and that the State has no power to protect any of its citizens against such seizure.'

938. 4. The fourth argument, which is that principally relied on, is the same as the fourth in the series, already noticed, of arguments against the objection that the commissioners exercise judicial power. The observations already made in answer to that argument' will apply here also. The argument that in the constitutional provision a case of extradition is contemplated, as distinguished from a suit at common law, will be considered in the sections immediately following, wherein the proper extent of these terms is examined.

Besides, if the judge's or commissioner's decision were, by the law of Congress, made preliminary to ulterior proceedings in the State from which the person claimed is said to have escaped, the question arises-what is a trial by jury, in view of the Constitution of the United States? Without minute discussion it may be affirmed to mean jury trial as known in the colonies and States in the generality of cases, and to the selection and impanneling of juries in ordinary suits at common law. But it is evident that trial by jury may have a very

1 The judgment of the Supreme Court of the United States, in Prigg's case, reversed the judgment of the Pennsylvania State Court against him, on the ground that he had a legal right to do what the State court held he might be punished under the State law for doing. But in the same judgment the Supreme Court declared that State law, which applied equally to cases where there was no such right to remove a person, to be unconstitutional and void. (Ante, p. 479.) This was, actually, the doctrine maintained by Judge Story in this case,-the States have no power to punish the forcible removal or kidnapping of persons within their jurisdictions, whether the persons so removed or kidnapped are or are not fugitive slaves. The same thing is asserted by Judge Crawford in Booth's case, in the extract given ante, p. 715, note.

2 Ante, § 908.

different meaning in the jurisprudence of the different States; and it will appear, from a cursory examination of the statute law of the slave States, that a trial of the issue of freedom or slavery by jury in some of those States must be a very different thing from jury trial of the issue under the national authority with the ancient common-law sanctions.

5. The argument, from a supposed necessity, being equally applicable against other objections taken against the law of Congress, will be considered hereinafter, with those objections.

§ 939. Admitting the weight of judicial authority to be affirmative of the validity of the law of Congress, though not providing for a trial by jury, it may yet, in accordance with the method herein pursued, be inquired how the question is to be regarded in the light of general principles applied to the construction and interpretation of these clauses of the Constitution.

If that view of the nature and operation of the provision be the correct one, according to which it acts as private law, creating cases falling within the judicial power of the United States, and if, on the grounds hereinbefore presented, the right of the claimant is not one which he may himself make perfect by seizing and removing the slave or bondman,' then, in being a demand against a legal person, whose status is presumptively determined by the local law of the State in which he is claimed for a debt of personal service, such claim may properly be called a suit. For a suit, in ordinary specch, is equivalent to a legal claim or demand of one or more private persons against one or more other private persons, to be decided by some instrument of the judicial function of sovereign power. Such claim of a master seems to be within the description of a suit which is given by Marshall, Ch. J., in Cohens v. Virginia (1821), in reference to the use of the word in the eleventh Article of the Amendments.'

Ante, pp. 569-580.

26 Wheaton, 407, Marshall, C. J., delivering the opinion of the court: "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

If it is said that this view of the operation of the provision itself is not supported by the leading authorities, and that, under the received construction, there can be no case within the judicial power, and consequently no suit, until a mode of pursuing the claim has been established by legislation, yet it is obvious that the effect of the legislation of Congress has been to produce a law acting on private persons in the same manner as the provision itself under the fourth construction; that, under this legislation, a case does arise in which the claimant and the person claimed are the parties, and that neither the State nor the national Government appears as party owing the obligation, and the latter appears only as the administrator of the law, which cannot be enforced without suit.'

Supposing, then, that the claim of the owner, made either under the provision itself, operating as private law, or under some Act of Congress giving it like operation on private persons, may be called a suit, it is then farther necessary to determine whether, under the particular class of suits here designated suits at common law, this claim or suit may be comprehended.

2

§ 940. If common law be here taken to mean a rule derived from precedents and custom, from the judicial application of natural reason, in distinction from a rule resting on positive legislation, the only remedial forms which could be called suits at common law would be those which judicial tribunals might themselves adopt on the authority of precedent or custom; and, since there was not, before the formation of the

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. Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing 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 suit is, according to the common acceptation of language, to continue that demand."

1 See the same reasoning applied in the parallel inquiry, ante, p. 690. From the words, "shall be delivered up on claim of the party to whom such labor or service is due," Mr. Wolcott, 9 Oh., 164, argues very forcibly that a common-law trial is contemplated. But application of the argument depends upon the construction which may be adopted. The same remark applies to Judge Smith's reasoning, 3 Wisc., 37-39, ante, p. 668. In these passages the judge and attorney general give the provision the fourth construction, while their denial of the power of Congress is based on the first construction,

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Constitution of the United States, any customary or common law of the United States regarded as a single forum or jurisdiction, it might be questioned whether any forms of judicial proceeding which might be adopted by the tribunals holding the judicial power of the United States, either on their own authority or by the sanction of legislation, could be called common-law suits in this sense. Or, if any forms so used under the authority of the United States or in applying the judicial power of the United States may be denominated suits at common law, in this sense, it can only be such as may have formerly prevailed by force of precedent or custom in the particular State or several jurisdiction within which that judicial power is applied.' So that the judicial power of the United States, if applied in any of these forms, might be said to be employed in a suit at common law.

A common law, thus distinguished from positive legislation, must necessarily be recognized in every system of jurisprudence.' But, remembering the principle that the particular use of words by the authors or promulgators of the Constitution must be the key in interpretation,' it is to be noticed that while, in English and American jurisprudence, common law was thus distinguished from statute law, or positive legislation, yet it had another and peculiar limitation, when employed in discriminating judicial methods of enforcing rights and obligations and remedying wrongs, in which it is contrasted, not with statute law, but with the Roman or civil law, or with the remedial forms employed in its administration. When remedial proceedings and judicial formalities are referred to as "suits at common law," the presumption is that they are contrasted with suits which, though also conducted according to precedent and customary law, yet have not, in England and America, ever been so called, i. e., suits following the course of the Roman or civil law courts as it had customarily been understood in English and American equity practice and in courts of admiralty and maritime jurisdiction.

Now, in suits at common law, when so distinguished, a trial of questions of fact by a jury is the principal circumstance disAnte, §§ 605, 606.

'Curtis' Comm., § 19.

2 Ante, § 85.

tinguishing them from suits following the civil-law forms of judicial proceeding. If, then, "suits at common law " are so designated with reference to the formal character of the proceeding, the Amendment is only equivalent to saying that the trial by jury shall continue to be used in those forms of proceeding which are characterized by a trial by jury. Under this construction, it would altogether depend upon the choice of the courts, or, at the farthest, upon the will of the national legislature, whether this Amendment should have any force in reference to the judicial determination of any particular right or obligation of private persons. In other words, it would depend upon the historical character of the form of proceeding which should be adopted for the judicial determination of any "case" or "controversy," whether it should be known as a "suit at common law or not; and it would appear to be always within the power of Congress, under the power to invest and regulate the powers of the judicial department of the Government of the United States, to determine whether any particular right and obligation-any subject of remedy-should constitute the subject matter of a "suit at common law." By prescribing a method of proceeding unknown to the common law of England and of the several States, which thus distinguish between suits at common law and suits following the civil or Roman law, Congress might do away with the force of this Amendment in all cases, or in any particular class of cases or controversies falling within the judicial power of the United States.'

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1 This would seem to be Mr. Justice McLean's understanding of this guarantee, from his language in Parsons v. Bedford, 3 Peters, 450, 454, where, dissenting from the majority of the court, he held that the case, coming from the District Court sitting in Louisiana, was not a suit at common law, such as is intended in this Amendment, because the judicial power had been applied according to the forms of the civil law, or, rather, according to that peculiar form of remedy anteriorly used in Louisiana, partly derived from statute and partly from the law of France. On page 456 of the same report, Judge McLean notices the objection that, by this construction, it would be in the power of Congress to do away with the jury trial in any case, and answers it by saying that it is not to be supposed that Congress will disregard any injunction of the Constitution. But, it is evident that here the question is what is it that Congress is bound not to disregard? what restraint does this Amendment impose upon the Government of the United States? But, adopting this interpretation of the guarantee, the answer would be, that the Constitution did not impose any such restraint; or, at least, not upon the legislative power of Congress. In Baker v. Biddle, Baldwin's C. C. R., p. 404, it is said:

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