ng to the requisitions of the sixth article in the amendment to
the Constitution, having been suggested to my father 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." Mr. Sumner adduces this "distinct statement that the necessity of
trial by jury was not before the court;" and adds, "So that, in the
estimation of the judge himself, it was still an open question."

In the case here referred to--Prigg _v._ The Commonwealth of
Pennsylvania, reported in XVI. Peters--it is true that the question of
trial by jury was not argued by counsel nor considered by the court. But
if the greater includes the less, then this question was embraced in the
decision; for, in that case, Prigg had seized the fugitive slave without
process, and carried her away without any certificate from magistrate or
judge in the State of Pennsylvania. The court declared that he had a
right to do so under and by virtue of the Constitution of the United
States. Most assuredly, if he had a constitutional right to such
proceeding, then, in such cases, the Constitution dispenses with the
necessity of trial by jury.

It was urged by counsel that such summary method of reclaiming fugitive
slaves was unconstitutional; but the court decided otherwise. It was
insisted by Mr. Hambly, just as it is now insisted by Mr. Sumner and
others, that such arrest was unconstitutional, because it was made by
the mere will of the party, and not, as the Constitution requires, "by
due process of law." Thus the point was presented by the record, argued
by the counsel, and overruled by the court.

In overruling this argument the court says: "The owner must, therefore,
have the right to seize and repossess the slave which the local laws of
his own State confer upon him as property; and we all know that this
right of seizure and recaption is universally acknowledged in all the
slaveholding States. Indeed, this is no more than a mere affirmance of
the principles of the common law applicable to this very subject." Then,
after a quotation from Blackstone, the court adds: "Upon this ground, we
have not the slightest hesitation in holding that, under and in virtue
of the Constitution, the owner of a slave is clothed with entire
authority in every State in the Union to seize and recapture his slave
whenever he can do it without any breach of the peace or any illegal
violence