under this provision is, as here supposed, the subject of a suit, it will be a suit at common law within the intendment of the 7th Amendment, though resting entirely upon this provision regarded as a statute or treaty having the force of private law.'

§ 942. The Amendment declares that in suits at common law the trial by jury "shall be preserved." If the word "preserved" is taken to indicate that a suit at common law is one involving a subject matter which had formerly been triable by jury, it would seem that the argument from anterior usage requires the preservation of jury trial in these cases.

The person claimed is, under the provision, as has been shown, a legal person owing service or labor, and in that respect precisely like a person claimed as a villein under the ancient English common law, who, if he denied the claimant's right to his service, might have the issue tried by a jury. It is indisputable that the issue of liber or non liber,

'The latter clause of this Amendment is: "And no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." The rules here spoken of must undoubtedly be those obtaining in the ancient customary law of remedy, known as common law in English and American jurisprudence. To suppose that any rule would be a rule of common law, if only not applied by a court of equity, admiralty, or maritime jurisdiction, would be to nullify the whole force of the Amendment. Any new mode of re-examining facts tried by a jury might, by statute, be made a part of that law of remedy which is called legal, as contrasted with equitable. See Story in Parsons v. Bedford, 3 Peters, 446, after the passage last cited.

2 Rawle, on the Const., p. 137, speaking of the effect of this Amendment:"The trial by jury is forever secured on its ancient basis, and cannot be multiplied beyond it."

It appears that the lord might seize his fugitive villein; but the person seized might, in that case, maintain his right to freedom before a jury by the writ de homine replegiando. Fitzh. Nat. Br. 66; Mr. Hargrave's note, 20 Howell's State Tr., 38. Only when the person claimed confessed himself to be the villein could the sheriff, under the writ nativo habendo, seize and deliver him up to the lord. If he denied the villenage, the lord was in any case obliged to remove the cause from the sheriff's court to the common pleas, or before the king's justices in eyre; after which, it would appear he might arrest the supposed fugitive, though before the issue had been heard. The same effect was produced if the person claimed sued out the writ de libertate probanda; except that then, by common law, the person who had sued it could not be arrested, as he became the nominal plaintiff; but, in either case, the lord was required, as the actual plaintiff, to count upon the nativo habendo, the burden of proof being, in any case, upon him, and the issue on the plea of frank condition was heard, as directed in the writ de libertate probanda, at the assizes, which indicates trial by jury. The 25 Edw., 3, Stat. 5, c. 18, altering the common law, gave the lord power to seize the supposed fugitive, notwithstanding this writ; after which it fell into disuse; the pleading, trial, and burden of proof being the same where it had not issued. See Comyns' Dig. Villenage, c. 1, 2, 3. 1 Fitzherbert Natura Brevium, 77, where the forms of these writs are given, and the proceedings described. Also, Mr. Hargrave's note of the law on the subject from these sources, 20 Howell St. Tr., 38.

free or slave, has almost universally been triable by jury in the States wherein slavery has existed under the internal law.

These were instances in which the condition of the person claimed was to be determined by the internal law of the forum of jurisdiction-the law applying to the respective parties as domiciled subjects. It may be urged that an alien claims and receives another person as his bondman, in virtue of a right which, if it exists at all, is given by the international law of the forum, and that, for this reason, there is no parallel between the methods used in determining his claim and the methods of determining legal relations in the above instances. The same argument is implied in giving the name extradition to the delivery upon such a claim. It is equivalent to saying that the law determining such delivery is public international law, in distinction from private international law.

It has already been shown that, whether the delivery of a fugitive from service to his alien claimant was made under private international law derived from precedent or custom, or under international compacts for the rendition of fugitive serv ants or slaves, it was considered matter of legal controversy, a case at law, as much so as any other matter of judicial cognizance. Being thus regarded, it was determined in a suit arising under common law, as contrasted with matters determined by courts of equity jurisdiction and of admiralty and maritime cognizance.

But the true character of the provision itself, as well as of the Act of Congress, as being private law, has already been exhibited.

If, in one of the States or colonies allowing slavery under its local (internal) law, an alien master had claimed a negro as his slave, or a white person as his indented servant, it seems probable that, if the alleged bondman had denied his slavery or apprenticeship, the issue was decided by the same judicial methods which were employed when a question of the same character arose under the internal law of the forum of jurisdiction, that is, when it arose between persons domiciled in that

forum, and when there was no immediate prospect that the person claimed would be taken out of the forum of jurisdiction.

A negro claimed as a slave or bondman in England, before Somerset's case, was as fully entitled to a writ of homine replegiando' as any one claimed as a villein under the ancient law; and equally so, whether the claimant proposed to detain him in servitude in England, or to carry him back to the Plantations.

It has never been shown that, where the claim of the alien master was supported by some written intercolonial or interState compact, or was supported under private international law, the proceedings were summary, without jury trial, when the person claimed denied being the bondman of the claimant. The only colonial compacts relating to such claims were those in the eighth article of the New England Confederacy of 1643, in the seventh of that of 1672, and in the treaty between the New Netherlands and the New England Colonies of 1650. Although the nature of the proof to be required is, by these compacts, limited to specified documentary evidence, it does not appear but that the issue was to be decided by the same judicial methods in which it would have been determined if it had arisen between domiciled persons. There is no evidence that the question of fact was to be decided otherwise than by jury.

§ 943. The guarantee of a jury trial is further limited in the Amendment by the amount of value in controversy. The matter in controversy being that of the liberty of a natural person, it will be in accordance with all analogies of the law to regard it as a matter of greater value than the sum named in the Amendment, since it is treated as beyond all valuation to that person; and it may be safely assumed that, whatever may be the value of the right of liberty to the alleged slave,

4 Comyns' Dig., 481.

There may be a strong presumption, from the general history of the times, that these questions were generally decided by the magistrates with very little ceremony. But at that time these were all slaveholding jurisdictions. Besides, the observations in the note, ante, p. 682, apply here against deriving any argument on this question from these compacts.

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the antagonistic right of any one claiming him as such will be beyond the specified amount of twenty dollars.'

§ 944. It would seem that the objection to these Acts of Congress for allowing the person claimed to be delivered up without jury trial must be based more on the seventh article of the Amendments, which guarantees it in cases at common law, than on the fifth, which declares that no person shall be deprived of life, liberty, or property, without due process of law. It seems to be very commonly held that the latter limits the juridical action of the national Government only in the exercise of punitive authority, or the power to punish violations of some law (public wrongs), and not in the judicial establishment of rights and obligations existing in relations between private persons. There may be no direct judicial authority to that effect, but the clause seems to have been noticed by the leading commentators only in connection with criminal jurisprudence.'

In Lee v. Lee, 8 Peters, 47, a claim for freedom in the District of Columbia, Mr. Justice Thompson, delivering the Opinion of the Court, said:-"On the part of the defendant in error, a preliminary objection has been made to the jurisdiction of this court, growing out of the Act of Congress of the 2d of April, 1816 (Davis' Col. 305), which declares that no cause shall be removed from the Circuit Court for the District of Columbia, to the Supreme Court, by appeal or writ of error, unless the matter in dispute shall be of the value of one thousand dollars or upwards. The matter in dispute in this case is the freedom of the petitioners. The judgment of the court below is against the claims to freedom. The matter in dispute is, therefore, to the plaintiff in error, the value of their freedom, and this is not susceptible of pecuniary valuation. Had the judgment been in favor of the petitioners, and the writ of error brought by the party claiming to be the owner, the value of the slaves as property would have been the matter in dispute, and affidavits might be admitted to ascertain such value. But affidavits estimating the value of freedom are entirely inadmissible, and we entertain no doubt of the jurisdiction of the court." This authority was cited by Mr. O'Conor, counsel in Jack v. Martin, 14 Wend. 521. But in Barry v. Mercein, 5 How. R. 103, it was held that the Supreme Court of the United States has no jurisdiction when the circuit court refuses the writ of habeas corpus, because the value of the dispute is, in its nature, incapable of being estimated in money, and the rule of jurisdiction cannot be ap plied. See also in matter of Metzger, 5 How. R. 176. (1 Kent, p. 324, 7th ed., n Story, Comm. § 1788, says of this clause:-"This also is an affirmance of a common-law privilege. But it is of inestimable value." Then, after some observations on extorted evidence, he says, in § 1789:-“The other part of the clause is but an enlargement of the language of Magna Charta Nec super,' etc. "Neither will we pass upon him,' &c. Lord Coke says that these latter words, per legem terra (by the law of the land), mean by due process of law; that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law. So that this clause, in effect, affirms the right of trial according to the process and proceeding of the common law." (Citing 2 Inst. 50, 51; 2 Kent, Lec. 24; Cave's Eng. Liberties, 19; 1 Tuck. Bl. Comm. App. 304, 305; Barrington on St. 17, 867.) Kent, 2 Comm., p. 13, speaks of the phrases in connec

2

If it be asked-by what process of reasoning the delivery, by public authority, of a person, presumptively free, to the custody and control of another private person, as the bondman of the latter, is not to be called depriving one of his liberty?the distinction may perhaps be founded on the meaning of the word deprived construed in connection with the modes in which legal rights and obligations are recognized when legal relations are to be maintained as the effects of positive law. It might not, perhaps, be a too-finely-spun distinction to say, that the judicial determination of the fact, whether a disability or obligation, incompatible with some individual or absolute right, has a legal existence, and the enforcement or establishment of the right correlative to that disability or obligation are very different from juridical action in punitive jurisprudence when a person who has violated some law is debarred of the enjoyment of an individual or absolute right which he possessed before. It might be said that the last, only, can be called the deprivation of a right; that the first is the judicial establishment of the fact that a certain right was not the right of the person to whom it is thereby judicially denied, or that it did not legally exist. It might, perhaps, be said that the presumptive attribution of liberty, in cases of claim to personal service, is only a rule of evidence; that it is not such a confession of an existing right to the enjoyment of personal liberty as is made in every case wherein question is made of the liability of a person to a punitive law decreeing imprisonment. It is only a presumption throwing the burden of proof on the other side; it being still supposed that the right may not in fact belong to the person to whom it is so attributed, and the inquiry is, whether the right exists or not.'

tion with criminal jurisprudence only, and says:-"The words, law of the land, used in Magna Charta, in reference to this subject, are understood to mean due process of law; that is, by indictment and presentment of good and lawful men. And this, says Coke, is the true sense and exposition of the words." But Kent adds: -"The better and larger definition of due process of law is, that it means law in its regular course of administration through courts of justice,”—meaning, apparently, that jury trial is not intended to be guaranteed. See also A. S. Johnson, J., in 3 Kernan, N. Y. 425. Judge Ruffin, in Hoke v. Henderson, 4 Devereux, 15, held the guarantee to apply in reference to "divesting of the rights of property," as well as to the infliction of punishments."

1 Such a distinction may seem to have been illustrated in two cases in New York, where statutes transferring private property from one person to another