Even if the Supreme Court had been silent on this question, the argument from the old books of the Common Law would be unanswerable. We are told that there is nothing new under the sun. Certainly, long before our Constitution, the claim for a fugitive slave was known to the Common Law. In early history, and down even to a late period, the slave in England was generally called _villein_, though in the original Latin judicial forms _nativus_, implying slavery by birth. Of course, then as now, he sometimes ventured to _escape_ from his master; but the Common Law supplied the appropriate remedy. The claim 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, in words which must have been known to all the lawyers of the Convention, said of _villeins_: “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 chattels_.”[364] But this word “action” of itself implies “a suit at Common Law,” with trial by jury. The forms of proceeding in such cases are carefully preserved in those books which constitute the authoritative precedents of the Common Law. There are writs, counts, pleadings, and judgments, all ending in trial by jury. They will be found in Fitzherbert’s “Natura Brevium.”[365] The Year Books and Books of Entries are full of them. Clearly and indisputably, in England, where the Common Law has its origin, a claim for a fugitive slave was “a suit at Common Law,” recognized as such among its old and settled proceedings, as much as a writ of replevin for a horse or a writ of right for land. It follows, then, that the requirement of the Constitution, read in the illumination of the Common Law, naturally and necessarily embraces proceedings for the recovery of fugitive slaves, _so far as any such are instituted or allowed under the Constitution_. And this irresistible conclusion had the support of a Senator from South Carolina in an earlier period of our history, before passion had obscured reason and conspiracy against the Union had blotted out all loyalty to truth. In reply to a proposition, in 1818, to refer the claim of the master to a judge without a jury, Mr. Smith, speaking solely in the interests of property, thus expressed himself:-- “This would give a judge the sole power of deciding _the right of property the master claims in his slave, instead of trying that right by a jury, as prescribed by the Constitution_. He would be judge of matters of law and matters of fact,--clothed with all the powers of a jury, as well as the powers of a court. Such a principle is unknown in your system of jurisprudence. _Your Constitution has forbid it._ It preserves the right of trial by jury in all cases where the value in controversy exceeds twenty dollars.”[366]