oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.24

In Guthrie National Bank v. Guthrie,25 it was held: "A territorial act which created a special commission or

24 Capital Traction Co. v. Hof, 174 U. S., 13; United States v. Reading Railroad Co., 123 U. S., 113, 114; Thompson v. Utah, 170 U. S., 343. 25173 U. S., 528, 535.

Mr. Hamilton contributed to the Federalist a defense of the Convention for omitting to provide for jury trials in civil cases, which Judge Story called a "monument of admirable reasoning and exalted patriotism." Story on the Constitution, 541, 5th Edition.

In view of the great ability with which Mr. Hamilton presented his views and the importance of the subject, I quote from him with liberality, though the whole of his article is not inserted:

"The objection to the plan of the Convention, which has met with most success in this State, is relative to the want of a constitutional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated, has been repeatedly adverted to and exposed; but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to civil causes, is represented as an abolition of the trial by jury; and the declamations to which it has afforded a pretext, are artfully calculated to induce a persuasion that this pretended abolition is complete and universal; extending not only to every species of civil, but even to criminal causes. To argue with respect to the latter, would be as vain and fruitless, as to attempt to demonstrate any of those propositions which, by their own internal evidence, force conviction when expressed in language adapted to convey their meaning.

"With regard to civil causes, subtleties almost too contemptible for refutation, having been employed to countenance the surmise, that a thing which is only not provided for, is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.

"The maxims on which they rely are of this nature, ‘a specification of particulars, is an exclusion of generals;' or, 'the expression of one thing, is the exclusion of another.' Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury, in regard to the latter.

tribunal to hear and pass upon claims against a town or city, which have no legal obligation, but which in

"The rules of legal interpretation, are rules of common sense, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them, is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common sense to suppose that a provision obliging the Legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing, is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it can not be rational to maintain, that an injunction of the trial by jury, in certain cases, is an interdiction of it in others.

"A power to constitute courts, is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the Legislature would be at liberty either to adopt that institution, or to let it alone. This discretion, in regard to criminal causes, is abridged by an express injuction; but it is left at large in relation to civil causes, for the very reason that there is a total silence on the subject. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation of employing the same mode in civil causes, but does not abridge the power of the Legislature to appoint that mode, if it should be thought proper. The pretence, therefore, that the National Legislature would not be at liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretence destitute of all foundation.

"From these observations, this conclusion results, that the trial by jury in civil cases would not be abolished, and that the use attempted to be made of the maxims which have been quoted, is contrary to reason, and therefore inadmissible. Even if these maxims had a precise technical sense, corresponding with the ideas of those who employ them on the present occasion, which however is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction.

"From what has been said, it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution; and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the situation in which it is placed by the State Constitutions. The foundation of this assertion is, that the National Judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State Constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the Articles of the Union, by acts of the State Legislatures,

equity should be inquired into and if the claims are found to be just to so declare, which, however, does not pre

will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction are determinable under our own Government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, can not possibly be affected, to any great extent, by the proposed alteration in our system of government.

"The friends and adversaries of the plan of the Convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury. Or if there is any difference between them, it consists in this; the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative public, or how much more merit it may be entitled to, as a defence against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge, that I can not readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offences, arbitrary punishments upon arbitrary convictions, have ever appeared to me the great engines of judicial despotism; and all these have relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. And both of these are provided for in the most ample manner, in the plan of the Convention.

"My convictions are equally strong, that great advantages result from the separation of the equity from the law jurisdiction; and that the causes which belong to the former, would be improperly committed to juries. The great and primary use of a court of equity, is to give relief in extraordinary cases, which are exceptions to general rules. To unite the jurisdiction of such cases, with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination: while a separation between the jurisdictions has the contrary effect, of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity, are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long and critical investigation, as would be impracticable to men called occasionally from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require, that the matter to be decided should be reduced to some single and obvious

tend to establish a practice or precedent for the courts, does not infringe the Seventh Amendment as to jury trials."

point; while the litigations usual in chancery, frequently comprehend a long train of minute and independent particulars.

"It is true, that the separation of the equity from the legal jurisdiction, is peculiar to the English system of jurisprudence; the model which has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every instance in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law, but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity, will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.

"I can not but persuade myself on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing, in candid minds, the apprehensions they may have entertained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the Convention; that even in far the greatest proportion of civil cases, those in which the great body of the community is interested, that mode of trial will remain in full force, as established in the State Constitutions, untouched and unaffected by the plan of the Convention; that it is in no case abolished by that plan; and that there are great, if not insurmountable, difficulties in the way of making any precise and proper provision for it, in a Constitution for the United States.

"The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit, that the changes which are continually happening in the affairs of society, may render a different mode of determining questions of property, preferable in many cases, in which that mode of trial now prevails. For my own part, I acknowledge myself to be convinced that, even in this State, it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men, that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as in Great Britain, afford a strong presumption that its former extent has been found inconvenient; and give room to suppose, that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing, to fix the salutary point at which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the Legislature." The Federalist, No. 83.

CHAPTER LVI.

EIGHTH AMENDMENT.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This Amendment consists of three important prohibitions; first, it prohibits the requirement of excessive bail; second, it prohibits the imposition of excessive fines; third, it prohibits the infliction of cruel or unusual punishments. It is strictly of English origin.

The wrongs committed under authority of the Stuarts were so grievous, and the punishments inflicted so severe, that when James II, the last of the Stuart dynasty, abdicated the throne in 1688, and the Prince and Princess of Orange were invited to become King and Queen of England, a Declaration of Rights-which was like a second Magna Charta-was read to them setting forth the wrongs which had been inflicted on the people and praying for release from such persecutions in the future. Among the grants demanded in the Declaration and acceded to by the sovereigns was the following: "Excessive Bail ought not to be required, nor Excessive Fines imposed, nor cruel and unusual Punishments inflicted."" This is the

1 Cobbett's Parliamentary History, vol. 5, 110.

The grant of the Declaration of Rights was so great an epoch in the civil and political history of Europe, and from it date such momentous interests to the people, that the following account of the opening of the proceedings when the Declaration was read to the King is given.

"February 13, 1688.

"The Declaration of Rights.

"This day, about ten o'clock, Mr. Speaker, attended with the mace, and the House of Commons following him in a body, went in their coaches to Whitehall; where the Right Hon. the Marquis of Halifax, speaker of the House of Lords, being placed on the right side of the door, within the Banquetting-House, and the Right Hon. Henry Powle, esq., speaker of the House of Commons, with the Commons on the