First. In the case of Cohens v. Virginia, (6 Wheaton, 407,) the Court say: "What is a suit? We understand it to be the prosecution of some claim, demand, or request." Of course, then, the "claim" for a fugitive must be "a suit.”

Secondly. In the case of Parsons v. Bedford, (3 Peters, 456,) while considering this very clause, the Court say: "By common law is meant not merely suits which the common law recognised among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined. 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." Now, since the claim for a fugitive is not a suit in Equity or Admiralty, but a suit to settle what are called legal rights, it must, of course, be "a suit at common law."

Thirdly. In the case of Lee v. Lee, (8 Peters, 44,) on a question whether "the value in controversy" was "one thousand dollars and upwards," it was objected that the appellants, who were petitioners for Freedom, were not of the value of one thousand dollars. But the Court said: "The matter in dispute is the Freedom of the petitioners. This is not susceptible of pecuniary valuation. No doubt is entertained of the jurisdiction of the Court.” Of course, then, since liberty is above price, the claim to any fugitive always and necessarily presumes that "the value in controversy exceeds twenty dollars."

By these successive steps, sustained by decisions of the highest tribunal, it appears, as in a diagram, that the right of Trial by Jury is secured to the fugitive from labor.

This conclusion needs no further authority; but it may receive curious illustration from the ancient records of the common law, so familiar and dear to the framers of the Constitution. It is said by Mr. Burke, in his magnificent speech on Conciliation with America, that "nearly as many of Blackstone's Commentaries were sold in America as in England," carrying thither the knowledge of those vital principles of Freedom, which were the boast of the British Constitution.

Inbued by these, the earliest Continental Congress, in 1774, declared, "That the respective Colonies are entitled to the common law of England, and especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law." Thus, amidst the troubles which heralded the Revolution, the common law was claimed by our fathers as a birthright.

Now although the common law may not be approached as a source of jurisdiction under the National Constitution-and on this point I do not dwell it is clear that it may be employed to determine the meaning of technical terms in the Constitution borrowed from this law. This, indeed, is expressly sanctioned by Mr. Madison, in his celebrated report of 1799, while restraining the extent to which the common law may be employed. Thus by this law we learn the nature of Trial by Jury, which, though secured, is not described by the Constitution; also of Bills of Attainder, the Writ of Habeas Corpus, and Impeachment, all technical terms of the Constitution borrowed from the common law. By this law, and its associate Chancery, we learn what are cases in law and equity to which the judicial power of the United States is extended. These instances I adduce merely by way of example. Of course also in the same way we learn what in reality are suits at common law.

Now, on principle and authority, a claim for the delivery of a fugitive slave is a suit at common law, and is embraced naturally and necessarily in this class of judicial proceedings. This proposition can be placed beyond question. And here, especially, let me ask the attention of all learned in the law. On this point, as on every other in this argument, I challenge inquiry and answer.

History painfully records, that during the early days of the common law, and down even to a late period, a system of slavery existed in England, known under the name of villainage. The slave was generally called a villain, though, in the original Latin forms of judicial proceedings, nativus, implying slavery by birth. The incidents of this condition have been minutely described, and also the mutual remedies of master

and slave, all of which were regulated by the common law. Slaves sometimes then, as now, escaped from their masters. The claim for them after such escape was prosecuted by a "suit at common law," to which, as to every suit at common law, the Trial by Jury was necessarily attached. Blackstone, in his Commentaries, (Vol. II, p. 93,) in words which must have been known to all the lawyers of the Convention, said of villains: "They could not leave their lord without his permission, but if they ran away, or were purloined from him, might be CLAIMED and recovered by ACTION, like beasts or other cattle.” This word "action" of itself implies very 66 a suit at common law," with Trial by Jury.

From other sources we learn precisely what the action was. That great expounder of the ancient law, Mr. Hargrave, says, "The Year Books and Books of Entries are full of the forms used in pleading a title to villains." Though no longer of practical value in England, they remain as monuments of jurisprudence, and as mementoes of a barbarous institution. He thus describes the remedy of the master at common law:

"The lord's remedy for a fugitive villain was, either by seizure or by suing out a writ of Nativo Habendo, or Neifty, as it is sometimes called. If the lord seized, the villain's most effectual mode of recovering liberty was by the writ of Homine Replegiando, which had great advantage over the writ of Habeas Corpus. In the Habeas Corpus the return cannot be contested by pleading against the truth of it, and consequently on a Habeas Corpus the question of liberty cannot go to a jury for trial. But in the Homine Replegiando it was otherwise. The plaintiff, on the defendant's pleading villainage, had the same opportunity of contesting it, as when impleaded by the lord in a Nativo Habendo. If the lord sued out a Nativo Habendo, and the villainage was denied, in which case the sheriff could not seize the villain, the lord was then to enter his plaint in the county court, and as the sheriff was not allowed to try the question of villainage in his court, the lord could not have any 'benefit from the writ, without removing the cause by the writ of Pone into the King's Bench or Common Pleas."- (20 Howell's State Trials, 38 note.)

The authority of Mr. Hargrave is sufficient. But I desire to place this matter beyond all cavil. From the Digest of Lord Chief Baron Comyns, which, at the adoption of the Constitution, was one of the classics of our jurisprudence, I derive another description of the remedy of the master:

"If the lord claims an inheritance in his villain, who flies from his lord against his will, and lives in a place out of the manor, to which he is regardant, the lord shall have a Nativo Habendo. And upon such writ, directed to the sheriff, he may seize him who does not deny himself to be a villain. But if the defendant say that he is a Free Man, the sheriff cannot seize him, but the lord must remove the writ by Pone before the Justices in Eire, or in C. B., where he must count upon it." — (Comyns' Digest — Villainage, C. 1.)

An early writer of peculiar authority, Fitzherbert, in his Natura Brevium, on the writs of the common law, thus describes these proceedings:

"The writ de Nativo Habendo lieth for the lord who claimeth inheritance in any villain, when his villain is run from him, and is remaining within any place out of the manor unto which he is regardant, or when he departeth from his lord against the lord's will; and the writ shall be directed to the sheriff. And the sheriff may seize the villain, and deliver him unto his lord, if the villain confess unto the sheriff that he is his villain; but if the villain say to the sheriff that he is frank, then it seemeth that the sheriff ought not to seize him; as it is in a replevin, if the defendant claim property, the sheriff cannot replevy the cattle, but the party ought to sue a writ de Proprietate Probanda; and so if the villain say that he is a free man, &c., then the sheriff ought not to seize him, but then the lord ought to sue a Pone to remove the plea before the justices of the Common Pleas, or before the justices in eyre. But if the villain purchase a writ de Libertate Probanda before the lord hath sued the Pone to remove the plea before the justices, then that writ of Libertate Probanda is a Supersedeas unto the lord, that he proceed not upon the writ Nativo Habendo till the eyre of the justices, and that the lord ought not to seize the villain in the mean time."—(Vol. I, p. 76.)

These authorities are not merely applicable to the general question of freedom; but they distinctly contemplate the case of fugitive slaves, and the "suits at common law” for their rendition. Blackstone speaks of villains who " ran away;" Hargrave of "fugitive villains;" Comyns of a villain "who flies from his lord against his will ;" and Fitzherbert of the proceedings of the lord "when his villain is run from him." The forms, writs, counts, pleadings, and judgments, in these suits, are all preserved among the precedents of the common law. The writs are known as original writs which the party on either side, at the proper stage, could sue out of right without showing cause. The writ of Libertate Probanda for a fugitive slave was in this form:

"Libertate Probanda.

"The king to the sheriff, &c. A. and B. her sister, have showed unto us, that whereas they are free women, and ready to prove their liberty, F. claiming them to be his niefs unjustly, vexes them; and therefore we command you, that if the aforesaid A. and B. shall make you secure touching the proving of their liberty, then put that plea before our justices at the first assizes, when they shall come into those parts, because proof of this kind belongeth not to you to take; and in the mean time cause the said A. and B. to have peace thereupon, and tell the aforesaid F. that he may be there, if he will, to prosecute his plea thereof against the aforesaid A. and B. And have there this writ. Witness, &c."-(Fitzherbert, Vol. I, p. 77.)

By these various proceedings, all ending in Trial by Jury, Personal Liberty was guarded, even in the early, unrefined, and barbarous days of the common law. Any person claimed as a fugitive slave might invoke this Trial as a sacred right. Whether the master proceeded by seizure, as he might, or by legal process, the Trial by Jury is a suit at common law, before one of the high courts of the realm, was equally secured. In the case of seizure, the fugitive, reserving the proceedings, might institute process against his master and appeal to a court and jury. In the case of process by the master, the watchful law secured to the fugitive the same protection. By no urgency of force, by no device of process, could any person claimed as a slave be defrauded of this Trial. Such was the common law. If its early boast, that there could be no slaves in England, fails to be true, this at least may be its pride, that, according to its indisputable principles, the Liberty of every man was placed under the guard of Trial by Jury.

These things may seem new to us; but they must have been known to the members of the Convention, particularly to those from South Carolina, through whose influence the provision on this subject was adopted. Charles Cotesworth Pinckney and Mr. Rutledge had studied law at the Temple, one of the English Inns of Court. It would be a discredit to them, and also to other learned lawyers, members of the Convention, to suppose that they were not conversant with the principles and precedents directly applicable to this subject, all of which are set down in works of acknowledged weight, and at that time of constant professional study. Only a short time