of the framers of the amendment. By common law they meant what the Constitution denominated in the third article law;' not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law and of maritime law and equity were 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 causes of the common law. Proceedings in cases of partition and of foreign and domestic attachment, might be cited as examples various adopted and modified. In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights."198

Congress cannot deprive a litigant of his rights to a jury trial by giving equity or admiralty courts jurisdiction over matters which are properly common-law questions.199

The right of trial by jury herein provided for is the most distinctive characteristic of Anglo-Saxon law, and it is now the universal heritage of the Anglo-Saxon race. It is not, however, indigenous to England, having in the first place grown out of the old Frankish inquest. The provision here for a jury means the old common law jury of twelve men.200 Where there is a trial by jury all the facts in the case must go to the jury.201 This provision for a jury does not apply to the Court of Claims,2 ,202 nor has it any reference to trials in State courts."

203

The parties to a suit may by stipulation waive a trial by jury.204 Appellate Federal courts can only examine errors of law appearing upon the record; they cannot re-examine questions of fact.205 This rule against the re-examination of questions of fact has no application to those cases where the first judgment has been vacated, the first verdict set aside and a new trial granted.206 It does not apply to a cause tried by a jury in a state court.207

§ 251. Excessive bail and fines, and cruel and unusual punishments. The eighth amendment to the United States Constitution is copied from the English Bill of Rights which provides: "That excessive bail ought not to be required nor excessive fines imposed; nor cruel and unusual punishments in

The provision against excessive fines finds its forerunner in the provision in Magna Charta that no freeman shall be amerced for a small offense save in a small sum, and for a greater one in proportion, also saving to the freeman his "contentment," to the merchant his merchandise, and to the villein his "wainage."

Punishments are cruel when they involve torture,208 or a lingering death, but punishment by death is not prohibited by this amendment.209 Whipping is not necessarily a cruel and unusual punishment,21 nor is death by shooting,211 nor is the

210

469; Fox v. Ohio, 5 Howard, 410, 434; Justices v. Murray, 9 Wallace, 274; Edwards v. Elliott, 21 Wall. 532; Walker v. Sauvinet, 92 U. S. 92.

204 United States v. One Hundred Barrels Distilled Spirits, 14 Wall. 44; Bamberger v. Terry, 103 U. S. 40; Wayne v. Kennicott, 103 U. S. 554; Dunlop v. Zunts, 11 Wall. 416; Kearney v. Case, 12 Wall. 275; Richmond v. Smith, 15 Wall. 429; Rev. Stats., Sec. 649. Such a waiver sufficiently appears if the record declares that the cause was called for trial by the court, "the jury having been waived in writ

increase of punishment because of a prior conviction.212 Undue leniency in one case does not transform a reasonable punishment in another case to a cruel one.213

§ 252. The last three amendments.-The thirteenth, fourteenth and fifteenth amendments, which constitute part of the Bill of Rights, are more conveniently treated in Chapter XIII.

212 Moore v. Missouri, 159 U. S. 677.

213 Howard v. Fleming, 191 U. S.

136.

CHAPTER XII.

THE REGULATION OF COMMERCE.

§ 253. The commerce clause of the Federal Constitution.— Clause 3 (Congress shall have power) "To regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

The regulation of commerce with foreign relations is intrusted to the central government in the United States by the Constitution. The absence of this power in the central government under the Articles of Confederation constituted one of the chief sources of weakness of that instrument. Scarcely less essential to the harmony and existence of the United States was the placing in the hands of the new central government of the power of regulating commerce between the several States.1 The absolute necessity of such control had been shown by the controversies between the different States during the period from 1783 to 1787. The power of the United States over commerce (except that confined within the limits of a single State) was made complete by the Constitution giving to it the regulation of commerce with the Indian tribes.

The importance of this power of Congress over commerce, and more particularly over interstate commerce, has greatly increased since the early days of the Constitution.

"The commerce clause of the federal Constitution presents the remarkable instance of a national power which was comparatively unimportant for eighty years, and which in the last thirty years has been so developed that it is now, in its nationalizing tendency, perhaps the most important and conspicuous power possessed by the Federal Government.

"The fact is more remarkable because the deficiency in the 'See Chapter V.

Articles of Confederation most felt was the lack of this very power, and because the Convention which framed the Federal Constitution was immediately brought about by the recognized necessity of an uniform system in the commercial regulations of the several States."2

Before the year 1840 the construction of this clause had been involved in but five cases submitted to the Supreme Court of the United States. In 1860 the number of cases in that court involving its construction had increased to twenty; in 1870 the number was thirty; by 1880 the number had increased to seventyseven; in 1890 it was one hundred and forty-eight; while at the present time it is over two hundred. An equally rapid increase is to be seen in the number of cases of this character in the Supreme Courts of the States and in the United States Circuit and District Courts. Up to the year 1840 this clause had been involved in these courts in forty-eight cases, by 1860 in one hundred and sixty-four, by 1890 in eight hundred, and by the close of the nineteenth century in nearly fifteen hundred; while the number of cases on some phrase or other of this subject is yearly increasing.3

Congress having the power to regulate commerce, has the power entirely to prohibit it. Congress once undertook to prohibit foreign commerce. This was in 1807, when the Embargo Act was passed prohibiting commerce with all foreign countries; the Non-Intercourse Act of 1809 modified this so that it only applied to commerce with France and England. These acts were attacked as unconstitutional on the ground that their object was to destroy commerce, not to regulate it. Their constitutionality was upheld, however, in a District Court of the United States, and the question was never brought before the Supreme Court. That Congress has such power can hardly be doubted. The power to regulate is unlimited, and the prohibition of commerce is but one kind of regulation. It has been held that Congress can prohibit trade with the Indians unless

2Commerce Clause of the Constitution," Prentice and Egan, p. 1.

3 Id., pp. 14-15.

United States v. The William, American Law Journal, 255.