LETTER II.

To the Editors of the Boston Atlas;

Gentlemen; Your semi-weekly of the 1st instant contains a letter of the Hon. Daniel Webster, to certain citizens of Newburyport, in which he has been pleased to refer to me, and particularly to a passage in the letter which I addressed to a portion of my constituents, on the 3d of May last, [the preceding Letter.] His reference to me is of so extraordinary a character, both as to manner and matter, that I wish to reply. To prevent all chance of mistake, I quote the following passages:—

“But, at the same time, 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 claiming 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.“I have seen a publication by Mr. Horace Mann, a member of Congress from Massachusetts, in which I find this sentence. Speaking of the bill before the Senate, he says: ‘This bill derides the trial by jury secured by the constitution. A man may not lose his horse without a right to this trial, but he may lose his freedom. Mr. Webster speaks for the south and for slavery, not for the north and for freedom, when he abandons this right.’ This personal vituperation does notannoy me, but I lament to see a public man of Massachusetts so crude and confused in his legal apprehensions, and so little acquainted with the constitution of his country, as these opinions evince Mr. Mann to be. His citation of a supposed case, as in point, if it have any analogy to the matter, would prove that, if Mr. Mann’s horse stray into his neighbor’s field,he cannot lead him back without a previous trial by jury to ascertain the right. Truly, if what Mr. Mann says of the provisions of the constitution in this publication be a test of his accuracy in the understanding of that instrument, he would do well not to seek to protect his peculiar notions under its sanction, but to appeal at once, as others do, to that higher authority which sits enthroned above the constitution and above the law.”

“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.

“I have seen a publication by Mr. Horace Mann, a member of Congress from Massachusetts, in which I find this sentence. Speaking of the bill before the Senate, he says: ‘This bill derides the trial by jury secured by the constitution. A man may not lose his horse without a right to this trial, but he may lose his freedom. Mr. Webster speaks for the south and for slavery, not for the north and for freedom, when he abandons this right.’ This personal vituperation does notannoy me, but I lament to see a public man of Massachusetts so crude and confused in his legal apprehensions, and so little acquainted with the constitution of his country, as these opinions evince Mr. Mann to be. His citation of a supposed case, as in point, if it have any analogy to the matter, would prove that, if Mr. Mann’s horse stray into his neighbor’s field,he cannot lead him back without a previous trial by jury to ascertain the right. Truly, if what Mr. Mann says of the provisions of the constitution in this publication be a test of his accuracy in the understanding of that instrument, he would do well not to seek to protect his peculiar notions under its sanction, but to appeal at once, as others do, to that higher authority which sits enthroned above the constitution and above the law.”

I must deny this charge of “personal vituperation;” nothing was further from my thoughts; and I regret that Mr. Webster, while disclaiming “annoyance” at what I said, should betray it. I believe every part of my “Letter” to be within the bounds of courteous and respectful discussion. There is nothing in it which might not pass between gentlemen, without interrupting relations of civility or friendship. Though full of regret at his novel position, and of dissent from his unwonted doctrines, yet it abounds in proofs of deference to himself. I must now, however, be permitted to add that the highest eminence becomes unenviable when it breeds intolerance of dissent, or bars out the humblest man from a free expression of opinion.

Mr. Webster “laments to see a public man of Massachusetts so crude and confused in his legal apprehensions, and so little acquainted with the constitution of his country, as these opinions evince Mr. Mann to be.” Yet he points out no error of opinion. He specifies nothing as unsound. Judgment and condemnation alone appear. He seems to have taken it for granted that he had only to say I was guilty, and then proceed to punish. I protest against and impugn this method of proceeding,by any man, however high, against any man, however humble.

When Mr. Webster penned his “lamentations” over my crudeness, confusion, and ignorance, he doubtless meant to deal me a mortal blow. The blow was certainly heavy: but the question still remains,whether it hit. Polyphemus struck hard blows, but his blindness left the objects of his passions unharmed.

But wherein do those erroneous “opinions” consist, which Mr. Webster does not deign to specify, but assumes to condemn? Fortunately, in writing the sentence which he quotes for animadversion, I followed the precise meaning of Judge Story, as laid down in his Commentaries; and in regard to the only point which is open to a question,I took the exact wordsof that great jurist. He speaks of “the right of a trial by jury, in civil cases,” as an existing rightbeforethe seventh article of amendment to the constitution, whichpreserves this right“in suits at common law,” had been adopted. (3 Comm., 628.) Instead of transcribing Judge Story’s words, “in civil cases,” which present no distinct image to common minds, I supposed the every-day case of litigation respecting a horse, which is a “civil case;” and this difference of form is the only difference between my language and that of the learned judge. I can wish Mr. Webster no more fitting retribution, after reposing from this ill-tempered attack upon me, than to awake and find that it was Judge Story whom he had been maligning.

Does not the authority of Judge Blackstone also support my position? He says,—

“Recapture or reprisal is another species of remedy, by the mere act of the party injured.... But as the public peace is a superior consideration to any one man’s private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, andevery man would revert to a state of nature; for these reasons, it is provided that this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable,or entering on the grounds of a third person, to take him, should he be feloniously stolen;but must have recourse to an action at law.”—Comm.4, 5.

But the opinion expressed by me on this point does not need the authority of any name to support it; and the illustration which I gave is not only intelligible to every sensible man, but is also apposite. I said “a man may not lose his horse, [i. e. his property in a horse,] without a right to this trial.” Mr. Webster’s comment is, that this case, “if it have any analogy to the matter,” means, that if a man’s horse “strayinto his neighbor’s field,he cannot lead him back without a previous trial by jury to ascertain the right.” Was ever the plain meaning of a sentence more exactly changed about, end for end? Mr. Webster may pitch somersets with his own doctrines, but he has no right to pitch them with mine. I said a man may notlosehis horse, or his property in a horse, without a right to the trial by jury. He says I said, a man cannotfindorretakea lost horse, without a previous trial!Dulce est desipere in loco.Or, it is pleasant to see a grave senator play upon words;—though there should be some wit to redeem it from puerility.

But the childishness of this criticism is not its worst feature. What is the greattruthwhich Mr. Webster and his apologists attempt here to ridicule? It is this: While every man amongst us, in regard to any piece of property worth more than twenty dollars, of which violence or fraud may attempt to despoil him, has a right to a trial by jury; yet a man’s freedom,and that of his posterity forever, may be wrested from him, as our law now stands, without such a trial. Does not this hold a man’s freedom to be of less value than twenty dollars? If two adverse claimants contest title to an alleged slave, whose market value is more than this sum, each is entitled to a jury to try the fact of ownership. But if the alleged slave declares, here, in Massachusetts, that he owns himself, he is debarred from this right. And this truth, or a common illustration of it, Mr. Webster and his apologists think a suitable topic for sneers or pleasantry! A French proverb says, that for a man to kill his motheris not in good taste. I trust the moral and religious people of Massachusetts have too muchgood tasteto relish jokes on such a theme.

Again; I said that Mr. Butler’s bill “derides” the trial by jury. By that bill every commissioner and clerk of a United States court, every marshal and collector of the customs, and the seventeen thousand postmasters of the United States, are severally invested with jurisdiction and authority in all parts of the United States, to deliver any man, woman, or child in the United States, into custody, as a slave, on the strength of anex parteaffidavit, made any where in the United States. This affidavit may have been made a thousand miles off, by no one knows whom, and certified to by a person who never saw or heard of the individual named in it. A forged affidavit, or a fictitious affidavit, would often answer the purpose as well; for how difficult, and in many cases, how impossible, to prove its spuriousness. Did oppression ever before conceive such a tribunal, so countless in numbers, so ample in jurisdiction, so terrible in power? Had a bill similar to this been proposed in the British Parliament, from 1763 to 1776, what would our fathers have said of it? Yet this bill, with some kindred amendments, heightening its features of atrocity, Mr. Websterpromised “to support, with all its provisions, to the fullest extent.”

What aggravates the wrong, is, that the cruelties of the measure will fall upon the poor, the helpless, the ignorant, the unfriended. The bill would have been far less disgraceful, had its provisions borne upon the men who should pass it; because, in such case, there would have been a touch of equality. Now, if this bill does not “deride” all guaranties for the protection of human liberty, it is only because my word of reprobation is too weak. It is only because one needs “to tear a leaf from the curse-book of Pandemonium” in order to describe it by fitting epithets.

Another remarkable feature of Mr. Butler’s bill is, that it provides no penalty whatever for any one who shall abuse, or fraudulently use, the dangerous authority which it gives. It furnishes endless temptations and facilities for committing wrong; it imposes no restraints; it warns by no threats of retribution.

Mr. Webster calls me to account for some unspecified erroneous “opinion,” expressed in relation to this bill. Can any opinion be so false to the constitution, as this bill to humanity? I deprecate error of all sorts; but hold it to be more venial to err in judgment than in heart.

I said that in promising to support Mr. Butler’s bill, “with all its provisions, to the fullest extent,” Mr. Webster “abandoned” the right to a trial by jury. I spoke of him as a senator, as one who, with his co-legislators, was bound, in fulfilment of his constitutional duty, to secure this form of trial to the alleged slave, or to a known freeman seized as a slave. Mr. Seward’s bill, providing for the trial by jury, in such cases, was before him. He took no notice of it. He passed by “on the other side,” while he bestowed his best encomium on Mr. Butler’s bill, by promising to support it. Was not this an “abandonment,” under any of the synonyms given in the dictionary?

Mr. Webster advises me, in a certain contingency, “to appeal to that higher authority which sits enthroned above the constitution and above the law.” I take no exception to this counsel, because of its officiousness, but would thank him for it. My ideas of duty require me to seek anxiously for the true interpretation of the constitution, and then to abide by it, unswayed by hopes or fears. If the constitution requires me to do any thing which my sense of duty forbids, I shall save my conscience by resigning my office. I am free, however, to say, that if, in the discharge of my political duties, I should transfer my allegiance to any other power, I should adopt Mr. Webster’s ironical advice, and go to the power “which sits enthroned above,” rather than descend to that opposite realm, whence the bill he so cordially promised to support must have emerged.

I wish, however, to remark, that though I acknowledge the constitution to be my guide while under oath to support it, yet I do not relish this fling either at the powers above us, or at those who reverence them. I hold it to be not only proper, but proof of sound moral and religious feeling, to look to the perfect law of God for light to enable us more justly to interpret the imperfect laws of man. Especially, when we are proposing to make or amend a law, ought we to take our gauge of purpose and of action from the highest standard.

Noy, that Solomon of the law, thought it not improper to say, “The inferior law must give place to the superior; man’s laws to God’s laws.”—Maxims, pp. 6, 7.

“The law of Nature,” says Blackstone, “being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding all over the globe; in all countries, at all times. No human laws have any validity, if contrary to this;and such of them as are valid, derive all their force and all their authority, mediately or immediately, from this original.”—1Com.41.

Fortescue, the Chancellor of Henry VI., in hisDe Laudibus Legum Angliæ, cap. 42, has the following passage, the consideration of which, in requital for Mr. Webster’s advice to me, I respectfully commend to him:—

“That must necessarily be adjudged a cruel law, which augments slavery, and diminishes liberty. For human nature implores, without ceasing, for liberty. Slavery is introduced by man, and through his vice. But liberty is the gift of God to man. Wherefore, when torn from a man, it ever yearns to return; and it is the same with every thing when deprived of its natural liberty. On this account, that man is to be adjudged cruel, who does not favor liberty. By these considerations the laws of England, in every case, give favor to liberty.”

Having defended my own propositions, I shall now take the liberty to examine some of Mr. Webster’s; and, in so doing, I shall examine the constitutional provisions for trial by jury, and fortify my opinion by historical references. I shall consider,

I.Where Congress has power to provide for such trial.

II.Where it is the duty of Congress to do so.

Mr. Webster says “the constitution declares, that in all criminal prosecutions, there shall be a trial by jury;” and that “in suits at common law the trial by jury shall be preserved.” He then adds, “There is no other clause or sentence in the constitution having the least bearing upon the subject.” Mark his words: “There is no other clause or sentence in the constitution,having the least bearing on the subject.” This I deny.

Here Mr. Webster virtually declares that, but for the above-named two provisions, the right of the trial byjury would not have been secured to us by the constitutionin any case. Of course, in the absence of these provisions, Congress would have been under no obligation, nor would it, indeed, have had any power, to provide by law for such trials.

Were I to say that this assertion borders on the incredible, one might well ask, Which side of the line does it lie?

The provision for a trial by jury,in criminal prosecutions, is in the third clause of the second section of the third article, and is repeated, and somewhat enlarged, in the fifth and sixth articles of amendment.

But the provision for trial by jury,in suits at common law, is in the seventh article of amendment; and neither this provision, nor any semblance of it, is to be found, in express words, in any part of the constitution as it came from the hands of its framers, and was adopted by the states.

According to Mr. Webster, then, Congress was under no obligation, and had no power, to make a law providing for trial by jury,except in criminal prosecutions, untilafterthe seventh article of amendment had been ratified; for if they had any such power, or were under any such obligation, it must be by virtue of some clause or sentence in the constitution,having a “bearing upon the subject.”

Now, the first session of Congress commenced March 4th, 1789, but this seventh article of amendment was not ratified, and did not become a part of the constitution, according to Hickey, (Hickey’s Const. p. 36,) until December 15, 1791.

Until this time, therefore, according to Mr. Webster, the constitution had secured no right to a trial by jury, except in the case ofcriminal prosecutions; because, until this time, there was no clause or sentence in it “having the least bearing on the subject” of jury trials in any but criminal cases.

Yet, on the 24th of September, 1789,and more than two years previous to the adoption of the seventh amendment, (by which alone, according to Mr. Webster, they had any power to act in the premises,) Congress did pass the judiciary act; by the ninth, twelfth, and thirteenth sections of which it is provided, that the trial of issues in fact, in the district courts, in the circuit courts, and in the supreme court, shall, with certain exceptions, be by jury.

The act also empowers the courts to grant new trials “for reasons for which new trials have usually been granted in the courts of law.” In what courts of law? Did it not mean the courts in Westminster Hall, and those in this country formed after that ancestral model? And does not this show beyond question or cavil, that the principle of the jury trial,in civil cases, was incorporated into the constitution of the United States, originally; and that it was universally understood to be so by its framers, and by their contemporaries, the members of the first Congress?

From the constitution alone, then, and not from any power above it, or outside of it, did Congress derive its power, on the 24th of September, 1789, and more than two years before the seventh amendment was adopted, to pass the judiciary act, and to fill it full of the fact and the doctrine of jury trials in civil cases. And if Congress, at that time, had legislated on the subject of fugitive slaves, would it not have had the same power to provide the trial by jury, to determine the question, slave or free, as it had to provide for this mode of trial in other cases?

All the state conventions for adopting the constitution, whose debates are preserved, and all the leading men who figured in them, held,—contrary to Mr. Webster,—that the third article in the constitution, providing for courts, carried jury trials in civil cases with it. Mr. Marshall, afterwards Chief Justice Marshall,said in the Virginia convention, “Does the wordcourt, [in the constitution,] only mean the judges? Does not the determination of a jury necessarily lead to the judgment of the court? Is there any thing which gives the judges exclusive jurisdiction of matters of fact? What is the object of a jury trial? To inform the court of the facts. When a court has cognizance of facts, does it not follow that they can make inquiry by a jury? It is impossible to be otherwise.”—3Elliott’s Debates, 506.

The third article in the Virginia bill of rights was as follows:—

“In controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.”

This article being read in the convention, Judge Marshall saidthe trial by jury was as well secured by the United States constitution, as by the Virginia bill of rights.—Ib. 524. He said this in reference to civil cases.

In the Massachusetts convention, it was said, without a doubt’s being expressed from any quarter, that “the wordcourtdoes not, either by popular or technical construction, exclude the use of a jury to try facts. When people in common language talk of a trial at the court of common pleas, or the supreme judicial court, do they not include all the branches and members of such courts, the jurors as well as the judges? They certainly do, whether they mention the jurors expressly or not. Our state legislators have construed the word court in the same way.”—2Elliott’s Debates, 127.

Such was the doctrine maintained by the leading minds of the state conventions; by Christopher Gore, in Massachusetts; by Judge Wilson, and Chief Justice McKean, in Pennsylvania; by Chief Justice Marshall,Judge Pendleton, and Mr. Madison, in Virginia; by Judge Iredell, in North Carolina, and many other distinguished names.

In the Virginia convention, objection was made to the constitution because it did notexpresslysecure to the accused the privilege of challenging or excepting to jurors in criminal cases. But Mr. Pendleton, the President of the convention, and for so many years afterwards the highest judicial officer in the state, replied: “When the constitution says that the trial shall be by jury, does it not say that every incident will go along with it?”—3Elliott’s Debates, 497.

So when the constitution provided for “courts,” and defined their jurisdiction, it clearly contemplated the trial by jury, in regard to all such rights of the citizen as had been usually, theretofore, tried by a jury. Congress, indeed, might fail to perform its duty; but in such case, no provisions of the constitution, however express and peremptory, would secure the rights of the people.

It is perfectly well known to every student of the constitution, that the only reason why that instrument did not makeexpressprovision for the trial by jury, in civil cases, was the difficulty of running the dividing line between the many cases that should be so tried, and the few that should not. All were agreed that ninety-nine per cent. of all civil cases should be tried by jury; but they could not agree upon the classes of cases from which the remaining one per cent. should be taken.

In this connection, it is worth while to notice the heading or preamble of the joint resolutions for submitting certain proposed amendments of the constitution to the states, among which was the seventh. It is as follows:—

“The conventions of a number of the states having at the time of their adopting the constitution expressed a desire,in order to prevent misconstruction or abuse of its powers, that further declaratory or restrictive clauses should be added; and as the extending the ground of public confidence in the government will best insure the beneficent ends of its institution,Resolved,” &c.

From this it appears that the first Congress only proposed to submit certain “further declaratory and restrictive clauses,” which were “to prevent misconstruction or abuse of its powers.” This heading or title, of course, does not enlarge or limit the meaning of the amendments; but it shows the view which their authors had of their scope and intendment. And what is the seventh amendment but a “declaratory and restrictive clause,” securing the trial by jury, in cases at common law, “where the value in controversy shall exceed twenty dollars,” and abandoning it where the value is less?

The phraseology of the amendment is full of significance: “The right of trial by jury shall be preserved.” Not created, but preserved. Not institutedde novo, but continued. Will Mr. Webster tell me, how a right can bepreserved, which does not alreadyexist?

In speaking of the trial by jury, in criminal cases, Judge Story uses the same word. He says it was “preserved.” In neither class of cases, civil or criminal, was it ever abandoned or lost, through the fault of the constitution. If not always enjoyed by the citizen, it has been through the dereliction of Congress in not passing the requisite laws.

The great men who submitted this seventh amendment to the states, treated the trial by jury, in civil cases, as a then subsisting constitutional right. They passed a law to put the practical enjoyment of this right into the hands of the people, well knowing that there is scarcely a right which we hold under the constitution which we can beneficially possess or use, without the intervention of some law, as its channel or medium.

Suppose this seventh amendment had never been adopted, on what ground would the trial by jury, in civil cases, have rested up to the present day? Could it have been taken from us all, in all cases except criminal ones, by any corrupt Congress?

In asserting, therefore, that, besides the references he has made, there is not another “clause or sentence in the constitution,having the least bearing on the subject” of jury trials, Mr. Webster is contradicted by the members of the general convention, by the state conventions, by the senators and representatives, who passed the judiciary act, by President Washington who signed it, and by all the judges who administered that act until the seventh amendment was adopted.

II.Where it is the duty of Congress to provide for trial by jury.

But another of Mr. Webster’s assertions is still more extraordinary. He says “nothing is more false than that such jury trial, [a trial by jury for an alleged slave, or for a freeman claimed as a slave,] is demanded by the constitution, either in its letter or in its spirit.”

I make a preliminary remark upon the grossness of the error embodied in the form of this proposition.

“Nothing is more false;” that is, if I, or any one, had affirmed that our constitution forbids trial by jury, in all cases, under penalty of death; or that it creates an hereditary despotism; or that it establishes the Catholic religion, with the accompaniment of an inquisition for each state; or that it does all these things together; it would not be more “false” to the “spirit” of the constitution, than to say that it demands the trial by jury, when a man who is seized as a slave, but who asserts that he is free, invokes its protection.

But this pertains to theformonly of his assertion, and is immaterial to the argument. I proceed to inquire whether its substance be not as indefensible as its form.

In another part of Mr. Webster’s letter, he says, that he sees “no objection to the provisions of the law” of 1793. Of course; for he sees no objection to Mr. Butler’s bill, and its amendments; but prefers them to Mr. Seward’s. And he now says, there is nothing in the letter or in the “spirit” of the constitution, which demands the jury trial for an alleged slave, or for a freeman captured and about to be carried away as a slave.

Feeble and humble as I am, great and formidable as he is, I join issue with him on this momentous question, and put myself upon the country.

Our constitution, as the present generation has always been taught, yearns towards liberty and the rights of man. The trial by jury, in the important cases of life, liberty, and property, is essential to these rights. The two, therefore, have such close affinity for each other, as to render it highly probable, if not morally certain, that the framers of the former would make provision for the latter; that they would lay hold of it, as by a law of instinct, to carry out their beneficent purposes. The trial by jury was necessary to the vitality of the constitution; and, I think, it would not be too strong an expression to say that the constitution, as it came from the hands of its founders, necessitated the trial by jury.

The object for which the constitution was framed, as set forth in its preamble,—namely, to “establish justice,” “promote the general welfare,” and “secure the blessings of liberty,” to the people,—could never be accomplished without the trial by jury. The preamble is not appealed to as a source of power; but it touches, as by the finger, the objects which it contemplated; it suggests the means by which its beneficent purposes were to be fulfilled, and it indicates the rules of interpretation by which all its provisions are to be expounded.

And not only the objects for which the constitution professes to exist, but historical facts from the time of Magna Charta, and before that time; the practice of the English and of our Colonial and Provincial courts before the revolution and during the confederacy;—in fine, all analogies and tendencies of constitutional law, and whatever belongs to ideas of freedom, conspire to force the expectation upon us, that, in a matter of such vast concernment as the life-long liberty or bondage of a man and his offspring, it hasnotleft us without the right of trial by jury.

The very first law “for the general good of the colony of New Plymouth,” (1623,) was, “that all criminal acts, and also all matters oftrespassesandDEBTS, between man and man, should be tried by the verdict of twelve honest men.”

In that fearful array of crimes which the Declaration of Independence charges home upon the king of Great Britain, that sublime instrument enumerates the following as among the most flagitious: “For depriving us, in many cases, of the benefits of trial by jury,” and “for protecting his troops,by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states.”

According to Blackstone, the right to a trial by jury had been held, “time out of mind,” to be the birthright of Englishmen. The 29th chapter of the Great Charter guarantied this right, not only in cases of liberty, life, and limb, but in cases of property, real and personal.

In England, it has become a traditional saying, and drops from the common tongue, that the great object of king, lords, and commons, is to get twelve men into the jury box.

Judge Story says, “When our more immediate ancestors removed to America, they brought this great privilege with them,as their birthright and inheritance,as a part of that admirable common law which had fenced round, and interposed barriers on every side, against the approaches of arbitrary power. It is now incorporated into all our state constitutions, as a fundamental right; and the constitution of the United States would have been justly obnoxious to the most conclusive objection, if it had not recognized and confirmed it in the most solemn terms.”—3Com.652, 3.

Is it conceivable, then, that the heroes and sages of the revolution, who rose in resistance to the most formidable power on earth; so many of whom rose against their own kindred in the mother country, because they loved liberty better than father or mother, or brother or sister, and who endured the privations and horrors of a seven years’ war;—is it conceivable, I say, that, when they had achieved their independence, and there was no longer any earthly power to control them, they should have framed a fundamental law, and should not have imbued that law with the “spirit” of the trial by jury, as its breath of life? As British subjects, they were entitled to this trial. As Americans, did they renounce it? Did they wage war for seven years in order to place themselves in a worse condition than they had been placed in by their “tyrant”? Mr. Webster says they did. He charges this infinite folly and blindness upon them, singly and collectively, one and all.

I will now fortify this historical view, by a reference to some decisions of the supreme court which explain and define the meaning of the seventh amendment.[10]

What is the true meaning of those descriptive words, “suits at common law”? Has not Mr. Webster, relying on his high reputation, disposed of this matter a little too summarily? He says, “The constitutiondeclares that in suits at common law, the trial by jury shall be preserved;” but he adds, “The reclaiming of a fugitive slave is not a suit at common law.”

But the supreme court of the United States has furnished us with an authoritative interpretation of the words of the constitution bearing on this subject. In the case ofCohensvs.Virginia, 6 Wheaton, R. 407, they define what is meant by a “suit.” These are their words:—

“What is asuit? We understand it to be the prosecution, or pursuit, of someclaim, 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 ofsuitsand 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, which is due to any one.) 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.”

“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.”

According to the supreme court, then, asuitis the prosecution of someclaim, demand, or request. Now, the proceedings for a fugitive slave, according to the very letter of the constitution, are instituted to prosecute aclaim. The person held to service or labor is to be delivered up, “onclaimof the party to whom such service or labor may be due.”

Still further, in a decision bearing directly on the right to a trial by jury, the supreme court have defined the term “common law” in special reference to itsmeaning in the amendment to the constitution, which secures this right “in suits at common law.” These are their words:—

“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 [7th] 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. Bycommon lawthey meant what the constitution denominated in the third article ‘law;’ not merely suits which thecommonlaw recognized among its old and settled proceedings; but suits in whichlegalrights were to be ascertained and determined, in contradistinction to those in which equitable rights alone were recognized, and equitable remedies were administered, or in which, as in the admiralty, a mixture of public law, and of maritime law and equity, was often found in the same suit. Probably there were few, if any, states in the Union, in which some new legal remedies, differing from the old common law forms, were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited as examples variously adopted and modified.In a just sense, the amendment, then, 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.”—Parsonsvs.Bedford, 3Peters’s Rep.456, 7.

The last sentence I have underscored. In this sentence, the supreme court plainly say, that, if the subject matter of the litigation, or the object of the proceeding, be to determine a “legal right” which was formerly determined by a “suit at common law,” then such proceeding is embraced in the seventh amendment, and either party in interest has a right to the trial by jury. Now, is it not clear that any proceedingwhich determines whether a man owns himself, or is owned by another man, and which delivers one man into the custody of another, as his slave, or refuses so to deliver him, is, “whatever peculiar form it may assume,” a proceeding “to settle a legal right,”—the highest legal right? It is not a right in equity, in admiralty, or under the maritime law; but strictly and exclusively alegal right, and nothing else. According to the doctrine of the supreme court, then, in the above-cited case, the parties to such a proceeding have a right, under the seventh amendment, to a trial by jury. At least, is not such the “spirit” of the amendment?

But there is another well-known fact, which gives pertinence and stringency to the above view. At common law, the writde homine replegiando,—the writ of personal replevin, or for replevying a man,—was an original writ; a writ which the party could sue out of right; one to be granted on motion, without showing cause, and which the court of chancery could not supersede. It was, according to the very language of our supreme court, recognized by the common law “among its old and settled proceedings.” The form of it is found in that great arsenal of common law writs, theRegistrum Brevium. A man, says Comyn, may have ahomine replegiandofor a negro; or for an Indian brought by him into England and detained from him; or it may be brought by an infant against his testamentary guardian;or by a villein against his lord. (Dig., Title Imprisonment, L. 4.)

If it could be brought by a villein against his lord, then it was the very writ for an alleged slave against an alleging owner. It was the mode provided by the common law for the determination of thelegal rightasserted in a human being. I have always understood that, before the revolution, and before the framing of our constitution, Comyn’s Digest was a work of the highest authority. It must have been well known toall the lawyers in the convention. Did they expect, then, that when an alleged slave, or a known freeman, should be seized, that he should be hurried into bondage without any right to this ancient muniment of the subject’s liberties?

But “the reclaiming of a fugitive slave,” says Mr. Webster, “is not a suit at the common law.” The proceedings provided for by the statute of 1793, to which he “sees no objection,” have no analogy to the writde homine replegiando. But can you destroy the right to a jury trial by changing the process? A sand-hiller from Georgia or North Carolina cannot come to Massachusetts and eject Mr. Webster from his Marshfield farm without being compelled to submit the question of title to a jury. But suppose Congress should say, in effect, that any one of the seventeen thousand postmasters in the United States might be brought into Massachusetts, (and, among so numerous a body, it is no libel to say there are some reckless men,) and that the said sand-hiller might go before the said imported postmaster, and after proof “to his satisfaction,” “either by oral testimony or by affidavit,”—an affidavit, be it remembered, taken any where in the United States,—then the claimant shall be put into immediate possession of the said farm, with a right to recover costs; and suppose Mr. Webster should spurn the authority of this illegitimate court, and demand an observance of the ancient forms of law, and a trial by jury under the seventh amendment; then the claimant has only to borrow Mr. Webster’s own words, and say, “This is not a suit at the common law:”—suppose all this, I say, and I would then ask if such a proceeding would be satisfactory to the last-named gentleman? The common sense of mankind is authority good enough to answer such a question; but we have high legal authority in addition.

InBakerVS.Riddle, Mr. Justice Baldwin, one ofthe judges of the supreme court of the United States, held that it was not in the power of Congress to take away the right of trial by jury, secured by the seventh amendment, either,—“1. By an organization of the courts in such a manner as not to secure it to suitors;” or,—“2. By authorizing the courts to exercise, or their assumption of, equity or admiralty jurisdiction over cases at law.” “This amendment,” says he, “preserves the right of jury trial against any infringement by any department of the government.”—Baldwin’s Rep.404.

Now, what was Mr. Butler’s bill but “a new organization of the courts,” or, rather, a new creation of some twenty thousand courts, “in such a manner as not to secure [the right of trial by jury] to suitors?” It was, indeed, a violation of both of the principles laid down by Judge Baldwin. It was the creation of tribunals unknown to the common law, and authorizing those tribunals to decide upon rights not belonging to either “equity or admiralty jurisdiction.”

In this connection, I will refer to the case ofLeeVS.Lee, 8Peters’s Rep.44.

By act of Congress of April 2, 1816, it was declared that no cause should be removed from the circuit court of 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 plaintiffs in error were claimed as slaves. Their petition for freedom in the court below had been decided against them; and from this decision they appealed. The defendant in error took the objection that they,—their bodies and souls,—were not worth one thousand dollars, and therefore that they had no right to appeal. But the court said,—

“The matter in dispute, in this case, is the freedom of the petitioners. The judgment of the court below is against their claims to freedom; the matter in dispute is, therefore, to theplaintiffs in error, the value of their freedom,and this is not susceptible of a 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 aspropertywould 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 no doubt is entertained of the jurisdiction of the court.”

Now, if the supreme court of the United States, in construing a law, felt constrained by their oaths to hold the freedom of a man,—of any man, though he might be a drivelling idiot, or stretched upon his death bed, with only another hour to breathe,—to be worth more than a thousand dollars, how can a senator of the United States say, that in passing a law, under which human liberty may be retained or lost, he is not bound at least by the “spirit” of the constitution, if not by its letter, to hold that human liberty to be of greater value than twenty dollars, and therefore to provide the trial by jury for its protection? What can prove more strikingly that Mr. Webster violates the whole “spirit” of the constitution, when the framers and ratifiers of this amendment covenanted for and decreed the trial by jury, for such a paltry sum of money; and when the judges of the supreme court held human liberty to be worth more than any nameable sum of money, while he regards it as a thing to be disposed of by any corrupt postmaster, which any corrupt administration may corruptly appoint. Yet he says, “Nothing can be more false than that a jury trial is demanded in cases of this kind by the constitution, either in its letter,or in its spirit.”

I wish I could find, or felt at liberty to coin some milder word; but for want of a better, I must say that Mr. Webster seems to me, throughout this whole matter, todogmatize. He makes strong assertions without offering even weak reasons. Of this characterwas his annunciation of the discovery of a new law,—“the law of physical geography,”—which was to suspend moral agency, and take from man his power to commit crime against his brother; as though in ascending hill-sides, freedom and slavery lie in different atmospherical strata, and are bounded by each other impassably; as though there were any mountain so “exceeding high,” to whose top even Jesus Christ could go, that Satan could not go there to tempt him. This does not strike the common mind like a true discovery;—like the law of gravitation, for instance, discovered by Newton, or the existence of the planet Neptune, by Leverrier. It is rather like that earliest pretended discovery on record, which was designed to seduce, and did seduce, the first parents of us all.Ye may eat of the forbidden tree, for ye shallNOTsurely die. So Mr. Webster says, Let slaves be driven in coffles, or carried in ships’ holds to the new territories; they cannot live there. Will not the results of the two experiments bear a lively analogy to each other, and be likely to reflect similar credit upon their authors?

So, too, when he tore some of the brightest pages from the New Testament, by proclaiming that “there is to be found no injunction against that relation [of slavery] between man and man, in the teachings of the gospel of Jesus Christ, or of any of his apostles”! Upon how many Christian hearts did this sentiment fall like an anathema against all truth. He does not say anyexpressinjunction, but “no injunction;”—none of any kind. Nopositiveinjunction against slavery in the New Testament!—a book designed to regulate our life and condition for two worlds; yet, altogether, not so large as many a congressional report; less voluminous than the ordinances of many of our city governments;—a book, therefore, which, from the necessity of the case, must deal with great and immortal principles, and could not descend intospecification and detail;—and because such a book as this contains noexpressinjunction against slavery, therefore slavery is not forbidden by it, but has the implied approval of its silence! Surely, never was there a more sinister, unsound, unchristian argument uttered by infidel or pagan. Is there anyexpressinjunction “in the teachings of the gospel of Jesus Christ, or of any of his apostles,” commanding us to declare the African slave trade piracy? Is there anyexpressinjunction “in the teachings of the gospel of Jesus Christ, or of any of his apostles,” against cannibalism? Do they any where say, “Ye shall not eat one another?” Yet what enormity and flagitiousness would it be to infer, that, therefore, men and women may turn ogres and ogresses, and eat human flesh as they do mutton and sirloin. The inference in the latter case is every whit as warrantable and as sound, as in the former. Yet I consider that this theological argument does not violate the “spirit” of the gospel, any more than his constitutional argument violates the “spirit” of the constitution. John Wesley, who had lived amid slavery, denominates it the “sum of all villanies,” and if Christ came into this world and left it, without permeating and saturating all his teachings with injunctions against the injustice, cruelty, pride, avarice, lust, love of domination, and love of adulation, which are the inseparable accompaniments of slavery, then I think the Christian world will cry out, that so far as this life is concerned, his mission was substantially fruitless.

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