by local laws, with which the people of the other States are not presumed to be acquainted.'

"If a fugitive from labor, after having been liberated by a judge or commissioner, should voluntarily return to his master, southern courts would have held that his original status would attach to him; he would be held as a slave. And, of course, the decision of the judge or commissioner, having been that he did not owe service to the claimant, could not operate as a bar to the rights of the master. The claim to freedom, if made in the slave State, would be unaffected by the preliminary inquiry and decision.' That decision is, that the slave does or does not owe service to the claimant. It does not finally establish the fact, whether the fugitive is a freeman or a slave. If the decision on such an inquiry as this should finally fix the seal of slavery on the fugitive, I should hesitate long, notwithstanding the weight of precedent, without the aid of a jury, to pronounce his fate. But the inquiry is preliminary, and not final.

"It is true, it may be said, that the power of the master may be so exercised as to defeat a trial for the freedom of the fugitive. This must be admitted; but the hardship and injustice supposed arise out of the institution of slavery,' over which we have no control. Under such circumstances we cannot be held answerable.

"It may be said that the seventh Article does not apply to a case like this. The provision is 'in suits at common law.' This is not strictly a proceeding at common law. The common law is opposed to the principle of slavery. The proceeding is under constitutional and statutory provisions, under the forms specially provided, and not according to the course of common law."

8927. In Booth's case (1854), 3 Wisc. 39, Judge Smith, in

'The judge declares his ignorance of the judicial proceedings to which the commissioner's decision is supposed to be preliminary.

2 To what is the commissioner's decision against the claim preliminary? The slave's voluntary return seems to be the real preliminary to the judgment in the slave State, in the case supposed.

The judge contemplates the consequences of the institution of slavery attaching to a person whom he had before distinguished as not being declared a slave, but only a person owing service.

his first Opinion, says, immediately after the passage cited, ante, p. 670:

"It has been already said that, until the claim of the owner be interposed, the fugitive in this State is, to all intents and purposes, a free man.

"The interposition of the claim, by legal process, is the commencement of a suit. A suit is the prosecution of some claim, demand, or request.' 6 Wheat. 407. The trial of such claim is the trial of a suit. Therefore the trial thereof must

not only be had before a judicial tribunal, but whether proceedings be commenced by the fugitive to resist the claimant, or by the claimant to enforce, and establish his claim, it [40] would seem that either party would be entitled to a jury. It is no answer to this position to say that neither the States nor the general Government have provided means for such a mode of trial. The constitutional right of the party remains the same. The late organization of our county courts failed to provide a trial by a constitutional jury, yet the Supreme Court held that parties were nevertheless entitled to demand it. If provision is not made for such a trial, it is the duty of the proper authority to make it. Nor is it any answer to this position to say, that the proceeding to reclaim and repossess a fugitive from service is not a suit at common law.' This question is already settled. It has been judicially determined. that the term 'common law' was used in the Constitution in contradistinction to suits in admiralty or equity. Were it otherwise, Congress need only to change the common-law form of procedure to nullify the right of trial by jury in all cases. See Story Comm. 645, et seq.; 3 Pet. 446.

6

"Mr. Justice Story says, 'in a just sense, the amendment 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.' We have already seen that the legal right of the claimant must be settled before a fugitive from labor can be delivered up. We have already seen that a suit is held to be 'the prosecution of some claim, demand, or request.' The conclusion seems to be irresistible, therefore, that the prosecution of the claim to a

fugitive from labor, or resistance to such claim by legal proceedings on the part of the fugitive, is a suit, not in equity or admiralty, and hence at common law, within the purview [41] of the Constitution. Of course I do not pretend to say that such a proceeding is technically a suit at common law; nor is a proceeding by foreign attachment, and many other proceedings which are held to be embraced by the jury provision of the Constitution. Authorities might be multiplied on this subject, were it necessary.

Again, it is said that the Constitution evidently contemplates a summary mode of proceeding in the case of a fugitive from labor. Where is the evidence of it? Nothing of the kind is found in the history of the provision, nor in its pathway to the Constitution. Nothing of the kind is apparent from the language used; for it distinctly imports a trial of the claim, and a determination of the fact that labor or service is due to the claimant before a delivery can be made. When the evidence of such an intention is furnished, there will be time enough to trample down all forms of law, and set at naught every settled rule of construction. But, admit the fact. A provision may be made for obtaining a jury in a summary manner, as is sometimes done for the trial of the right of property seized by attachment. But I can pursue this subject no further.'

Again, the Constitution provides that no person shall be deprived of life, liberty, or property, without due process of law. This last phrase has a distinct technical meaning, viz.: regular judicial proceedings, according to the course of the common law, or by a regular suit commenced and prosecuted according to the forms of law. An essential requisite is due process to bring the party into court. It is in accordance with the first principles of natural law. Every person is entitled to his day in court,' to be legally [42] notified of the proceedings taken against him, and duly summoned to defend. The passing of judgment upon any person without his day in court,' without due process, or its equivalent, is contrary to the law of nature, and of the civilized world, and, without the express guaranty of the Constitution, it would be implied as a funda

mental condition of all civil governments. But the tenth section of the Act of 1850 expressly nullifies this provision of the Constitution. It provides that the claimant may go before any court of record, or judge, in vacation, and, without process, make proof of the escape, and the owing of service or labor; whereupon a record is made of the matters proved, and a general description of the person alleged to have escaped; a transcript of such record, made out and attested by the clerk with the seal of the court, being exhibited to the judge or commissioner, must be taken and held to be conclusive evidence of the fact of escape, and that service or labor is due to the party mentioned in the record, and may be held sufficient evidence of the identity of the person escaping.

"Here is a palpable violation of the Constitution. Can that be said to be by due process of law which is without process altogether? Here the status or condition of the person is instantly changed in his absence, without process, without notice, without opportunity to meet or examine the witnesses against him, or rebut their testimony. A record is made, which is conclusive against him in any State or Territory in which he may be found.' It is not a process to bring the person before the court in which the record is made up, but it is, to all intents and purposes, a judgment of the court or judge, which commits the person absolutely to the control and possession of the claimants, to be taken whithersoever he pleases, to be dragged from a State where the legal presumption is in favor of his freedom to any State or Territory where the legal presumption is against his freedom.

"Is not this depriving a person of liberty without due process of law? Other courts and other judges may pronounce this provision of the Act of 1850 to be in conformity with that provision of the Constitution which declares that no person shall be deprived of life, liberty, or property, without due process of law; but, while I have a mind to reason, and a conscience to dictate me, and an oath to support the Constitution of the United States resting upon my soul, I cannot so declare it, and, for the price of worlds, I will not.

66

Upon this branch of that Act I am not aware that there

has been any adjudication. Certainly there has been none that can be claimed as authority here. The same may be said in regard to the trial by jury. There are other points equally fatal to this Act when tested by the Constitution, but I have not time nor inclination now to discuss them."

§ 928. Chief Justice Whiton, delivering the opinion of the court on the certiorari, said, 3 Wisc. 62, 63, that, in the discussion of Prigg's case, "nothing was said of the right of the alleged fugitive to a trial by jury to decide the question of fact upon which his surrender depends;" and that there was nothing on the point in the other cases before the Supreme Court-Jones v. Van Zandt, 5 How., and Moore v. Illinois, 14 Howard; adding: "We are of opinion, therefore, that, whatever may be the duty of this court in relation to the question of the power of Congress to provide by law for the surrender of fugitives from labor to the persons to whom their labor is due, we are not at liberty to consider the question of the right of a person claimed as a fugitive to a trial by jury before he can be surrendered or delivered up to the claimant as already settled by the court which has the power finally to decide all questions growing out of an alleged violation of the Constitution of the United States by an Act of Congress. We must consider the question as an open one."

Then, after the extract already given (ante, pp. 670, 671), which relates to the power exercised by the commissioners, Judge Whiton says, 3 Wisc., 66: "And we think it equally clear that the Constitution is violated by withholding from the person claimed the right to a trial by jury before he can be delivered up to the claimant.

"The fifth article of Amendments to the Constitution of the United States provides, among other things, that 'no person shall be deprived of life, liberty, or property, without due process of law.' Chancellor Kent, in his Commentaries (2 Kent. Com., 3), says: 'It may be received as a self-evident proposition, universally understood and acknowledged throughout this country, that no person can be taken or imprisoned, or disseized of his freehold, or liberties or estate, or exiled, or condemned, or deprived of life, liberty, or property, unless by the