cept on the testimony of two lawful witnesses (Note 114) who should be brought in person before the accused at the time of his trial to avow and maintain what they had to say against him. Violations of this right cannot come to pass in the United States, where the Constitution is a law "the supreme law of the land" and where it is enforced by the courts like every other law.

As it was well established in law at the time the Constitution was drafted that the dying declaration (because the solemnity of the circumstances in which it is made impels belief) of a witness may be read against the accused at the trial, it has been stated by the Supreme Court (1897) that the rule is therefore contained in this clause.

But the Supreme Court held (1894), following a like decision in Massachusetts, that the protection of this Amendment was not violated by the reading on the second trial of the defendant of the testimony of a witness who had since died and who had at the first trial confronted the defendant and been thoroughly cross-examined by defendant's counsel. The Court said that the defendant had received the substance of the constitutional protection and could ask

no more.

to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.156

156 It was not until the reign of William IV (1836) that an act of the English Parliament gave to the accused the right to the assistance and protection of counsel in all cases of felony, that is, in which the offense is punishable by imprisonment or death. But in 1696 a bill was passed by Parliament allowing counsel to persons on trial for high treason, that is, offenses against the royal family or the government. In this country the man without means may have witnesses produced to testify in his behalf. The court appoints counsel to guard his legal rights, who (being an

officer of the court) must serve when directed to do so and without compensation. Two lawyers of high repute were thus appointed to see that the case against the assassin of President McKinley should be made at the trial in conformity with the settled rules of law.

ARTICLE VII.

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,157

157 Although the Constitutional Convention very carefully safeguarded the jury trial for those accused of crime (Note 110), it defeated a proposal for a jury trial in civil cases. Suits at common law do not include suits in chancery or equity, such as suits for injunction, for divorce, for enforcing a trust, for cancelling naturalization papers, for accounting, for specific enforcement of a contract, and for several other kinds of relief, in which the right to a jury does not exist. It is a rather common practice for parties to waive a jury in common law suits or actions and leave the questions of fact to the trial judge along with the questions of law. Under the Workmen's Compensation Acts which many States have passed an injured workman is not entitled to a jury to determine what he should receive. This Amendment does not limit State power. It is therefore within the police power of a State to establish a system of compensation to supersede lawsuits in courts by employees seeking from employers money damages for personal injuries suffered in the course of employment. and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.158

158 That is, these rules are (1) the granting of a new trial by the trial court and a hearing before another jury, or (2) a

new jury trial ordered by an appellate court for some error of law committed by the trial court. In brief, no judge of a trial court can substitute his opinion of the facts for that of the jury, nor can an appellate court set aside the jury's findings and make a final order on its own.

ARTICLE VIII.

Excessive bail shall not be required,159

159 Long imprisonments which had been made possible by excessive bail and the prevention of trials had so offended the English people that when William III and Mary ascended the throne they were required in the Declaration of Rights to assent to a provision substantially like this clause in our Constitution. As far back as the reign of Henry VI (1444) there was an act of Parliament requiring sheriffs and other officers to "let out of prison all manner of persons upon reasonable sureties of sufficient persons.' A reasonable bail is one large enough to prevent evasion of law by flight and still not beyond the means of the prisoner. In 1835 bail of $1,000 was fixed by a court for a man who had shot at President Andrew Jackson, but missed him. The court thought the amount sufficient because the offense did not call for imprisonment, no battery had been done, and the defendant had no property. The court said that to require a greater bail than the prisoner could give in such a case would be excessive within the meaning of the Constitution.

nor excessive fines imposed,160

160 The excessive fine under Magna Charta was the penalty or forfeiture which deprived a man of his "contenement" of his living or ability to pursue his calling or his business. In Magna Charta it was declared that “a free man shall not be amerced for a small offense, but only to the degree of the offense; and for a great delinquency, ac

cording to the magnitude of the delinquency, saving his contenement." Construing a similar provision in a State constitution, the Supreme Court held void an act of the legislature levying a penalty of not less than $100 nor more than $500 upon any druggist selling liquors contrary to law, and imprisonment of not less than ninety days nor more than one year, or both, with debarring from business for five years for a repeated offense. As the druggist would be cut off from his livelihood for five years, the punishment was excessive. The Supreme Court of the United States held void (1907) an act of the legislature of a State imposing such heavy and cumulative fines upon railway companies and their agents for failure to observe the freight rates and and passenger fares prescribed by the State that the persons convicted were by fear prevented from resorting to the courts to determine their rights or to test the validity of the law. The heavy fines imposed by the State (which could not be condemned as fines under this limitation upon National power) resulted in a denial of due process of law, which by the Fourteenth Amendment (Note 173) the State is forbidden to deny.

In 1909 the Supreme Court sustained a judgment for fines and penalties rendered under State law aggregating $1,623,500, and the cancellation of the defendant's permit to participate in commerce within the State. The company, incorporated in another State, was convicted of violating the anti-trust laws of the complaining State. Fines under one law were permitted as high as $5,000 a day for each day of violation. The Supreme Court said that the Eighth Amendment, forbidding excessive fines, is not a prohibition upon the State.

nor cruel and unusual punishments inflicted.161

He

161 As late as Blackstone's time (1758) "the punishment of high treason in general is very solemn and terrible." says that the guilty person was hanged by the neck and

then cut down alive, when he was disemboweled while yet living. His head was cut off and his body divided into four parts for disposition by the king. By an act of Parliament in 1814, a quarter of a century after our Constitution, that punishment was mitigated.

Hallam gives many instances of cutting off of the ears, of whipping, of standing in the pillory, of slitting the nose, of branding the cheek. And many of those punishments were followed by "perpetual imprisonment." But he says that punishments on the Continent were even more severe.

The protection of this clause is needed now, perhaps not so much as formerly, but it is needed. In February, 1910, the Supreme Court of Oregon held void an act of the legislature for conflict with a provision of the State's constitution similar to this of the Eighth Amendment. An officer of the

State who was unable to pay a fine of over $577,000, which was imposed upon him for misapplying State funds, was therefore sentenced under a State law to five years in the penitentiary, and the fine was to be discharged by an additional imprisonment in jail at $2 for each day. The act was upheld as to the sentence to the penitentiary, but it was declared void as to the jail sentence for "not exceeding 288,426 days", a term of nearly 800 years. In 1891 the Supreme Court of the United States held that, as the Eighth Amendment does not apply to States, it could give no relief to a man who had been sentenced to the house of correction in Vermont for 19,914 days or fifty-four years, for shipping liquor from New York into the first-named State. And as late as 1916 the flogging of a convict in North Carolina was held by the Supreme Court of that State to be illegal under the State Constitution, the Chief Justice saying that the record contained "unprintable evidence of brutality almost beyond conception."

The Bill of Rights of the Philippine Islands forbids the infliction of cruel and unusual punishment, adopting this provision from our Constitution. The Supreme Court of