gress, the right of trial by jury is secured.' If it is, it is secured in every case where a fugitive from justice is demanded according to the provisions of the same Act of Congress; and, indeed, it is secured in every possible case of arrest upon a criminal charge-for the identity of the person and prima facie evidence of guilt are subjects of inquiry upon every such arrest. But another reason may be assigned why this Amendment has no bearing upon the law in question: the right of trial by jury secured by this Amendment is the trial according to the course of the common law, and is confined to matters of fact only. All questions of law arising upon suits at common. law are decided by the court; and the inquiry before the magistrate, under this Act of Congress, so far as the question of slavery is involved, is a question of law, and not a question of fact. The magistrate is to inquire whether, under the laws of the State or Territory from which the fugitive fled, he owes service or labor to the person claiming him."

In this view of the nature of the issue, Judge Thompson appears to have stood alone. No other judge has said anything to support this extraordinary position.

$924. In Prigg's case no allusion was made either by counsel or by any member of the court to this ground of objection against the constitutionality of the Act. The judgment of the court in this case bears on the present question only on the supposition that the constitutional guarantee cannot apply against a removal of the supposed fugitive under the proceedings instituted by the law of Congress any more than it would against the act of the claimant in seizing and removing such fugitive without reference to the remedy provided by Congress. The

For the defendant in error, in Jack v. Martin, 14 Wend., 521, shortly after this decision, O'Conor, counsel, in reply to the objection against the Act of Congress which is here considered, asserted that the person claimed may try his right to freedom by homine replegiando in the Circuit Court of the United States. This opinion has not been advanced in any other case under the law of 1793. It seems inconsistent with the conclusiveness of the certificate declared by sec. 6 of the Act of 1850.

On the question, whether the judgment of the court involved the inquiry into the constitutionality of the Act of Congress, see ante, p. 638, note. Mr. W. W. Story, in Life and Letters of Judge Story, vol. 2, 396, says, that when the objection to the constitutionality of the Act of Congress for excluding a jury trial was suggested to Judge Story, "on his return from Washington, he replied that this question was not argued by counsel nor considered by the court, and that he should still consider it an open one."

VOL. II.--45

court in Prigg's case affirmed the legality of such a removal by the claimants. An argument against that doctrine has already been presented. But, admitting the validity of such removal, it would still seem that, if Congress undertakes to provide a mode of determining the claim under its authority, it must respect this guarantee, which is intended to limit all powers of the national Government in reference to private persons. It seems to be admitted, by those who maintain the claimant's right to seize and remove the fugitive, that personal replevin or trespass may be brought against such claimant in the State in which the person seized is found: in which case his right to the service of the person seized will be tried by jury. But the Acts of Congress prevent any such means of contesting the claimant's right, and thus exclude even that trial which might take place consistently with the doctrine of seizure and removal.

§ 925. In Sims' case, 7 Cushing, 310, Shaw, Ch. J., says :"Since the argument in court this morning I am reminded by one of the counsel for the petitioner that the law in question ought to be regarded as unconstitutional, because it makes no provision for a trial by jury. We think that this cannot vary the result. The law of 1850 stands, in this respect, precisely upon the same ground with that of 1793, and the same grounds of argument which tend to show the unconstitutionality of one apply with equal force to the other, and the same answer may be made to them." This is the only notice of the objection in this opinion.

§ 926. In Miller v. McQuerry (1853), 5 McLean, 469, Judge McLean supported the validity of the Acts of Congress against this objection by a specimen of reasoning which would be deemed extraordinary indeed if applied to any other matter than the claim for a fugitive slave. The judge says, ib. 481: "The Act of 1850, except by repugnant provisions, did not repeal the Act of 1793. The objection, that no jury is given, does apply to both Acts. From my experience in trying numerous actions for damages against persons who obstructed an arrest of fugitives from labor, or aided their escape, I am authorized to say that the rights of the master would be safe before

a jury." The judge gives an instance where an abolitionist was of the jury.' He afterwards says: "The Act of 1793 has been in operation about sixty years. During that whole time it has been executed as occasion required, and it is not known that any court, judge, or other officer, has held the Act in this or in any other respect unconstitutional. This long course of decision on a question so exciting as to call forth the sympathies of the people and the astuteness of lawyers is no unsatisfactory evidence that the construction is correct.

"Under the Constitution and Act of Congress the inquiry is not strictly whether the fugitive be a slave or a freeman, but whether he owe service to the claimant. This would be the precise question in the case of an apprentice; in such a case the inquiry would not be whether the master had treated the apprentice so badly as to entitle him to his discharge. Such a question would more probably arise under the indenture of apprenticeship and the laws under which it is executed. And if the apprentice be remanded to the service of his master, it would in no respect affect his right to a discharge, where he is held, for the cruelty of his master or any other ground.' The same principle applies to fugitives from labor. It is true in such cases evidence is heard that he is a freeman. His freedom may be established, by acts done or suffered by his master, not necessarily within the jurisdiction where he is held as a slave. Such an inquiry may be made, as it is required by the justice of the case.' But on whatever ground the fugitive may be remanded, it cannot, legally, operate against his right to liberty. That right when presented to a court in a slave State has, generally, been acted upon with fairness and impartiality. Exceptions to this, if there be exceptions, would seem to have arisen on the claims of heirs or creditors, which are governed

1 The assurance that under either system of trial the result to him must be the same, might be very satisfactory to the person claimed, but it is a very singular mode of disposing of the legal question. There is in it as much argument for as against trial by jury.

The judge argues the question, whether the person claimed is or is not an apprentice, cannot be tried, because, assuming that he is an apprentice, a discharge of the indentures, for cruelty, &c., could be asked for only in the State in which the parties reside.

This is inconsistent with that which he had just said of an apprentice.

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."

$927. 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.

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.

"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