most distinctive characteristic of Anglo-Saxon law, and 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.101 Where there is a trial by jury all the facts in the case must go to the jury.102 This provision for a jury does not apply to the Court of claims,103 nor has it any reference to trials in state courts.104 The parties to a suit may by stipulation waive a trial by jury.105 The provision as to the re-examination of cases has no application in those cases where the first judgment has been vacated, the first verdict set aside, and a new trial granted.106 It does not apply to a cause tried by a jury in a state court.107 SECTION 92. EXCESSIVE BAIL AND FINES AND CRUEL AND UNUSUAL PUNISHMENTS. The eighth amendment provides that: "Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted." This amendment is copied from the following provision in the English Bill of Rights. "That excessive baile ought not to be required nor excessive 101 Thompson vs. Utah, 170 U. S., 349; Maxwell vs. Dow, 176 U. S., 586. 102 Hodges vs. Easton, 106 U. S., 408. 104 Livingston vs. Moore, 7 Peters, fines imposed; nor cruel and unusual punishments inflicted." Death by shooting is not a cruel or unusual punishment; 108 nor is the increase of punishment because of a prior conviction.109 Punishments are cruel when they involve torture or a lingering death, but punishment of death is not cruel.110 The provision against excessive fines finds its forerunner in the provision in Magna Charta that "no freemen shall be amerced for a small offence 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.' SECTION 93. THE LAST THREE AMENDMENTS. The three last amendments to the United States Constitution, were adopted for the protection of the colored race and must be construed in accordance with this object," although their protection is not entirely confined to members of the colored race. Before treating of these amendments it is necessary to speak briefly of the legal history of slavery in the United States. SECTION 94. SLAVERY. Neither the word, "Slave" or "Slavery," is to be found in the Constitution. To avoid the use of these words various expedients were resorted to. The three-fifths representation of the slaves was provided for by the provisions for counting "three-fifths of all other persons;" the continuance of the slave trade for 108 Wilkerson vs. Utah, 99 U. S., 135. 109 Moore vs. Missouri, 159 U. S., 677. 110 In re Kemmler, 136 U. S., 179. 11 The Slaughter House Cases, 16 Wallace, 36. twenty years was secured by allowing, "the migration or importation of such persons as any of the States now existing shall think proper to admit;" while in the fourth article of the Constitution a slave was referred to as "a person held to service or labor in one state, under the laws thereof." The early cases involving the slavery question which came before the Supreme Court, were mainly relative to the recapture of fugitive slaves. The Fugitive Slave Laws of 1795 and 1850 were both repeatedly held to be Constitutional, by the Supreme Court.112 The rights of the slave owners were strongly upheld in the case of Prigg vs. Pennsylvania,113 where it was decided that under, and in virtue of, the Constitution of the United States, the owner of a slave was clothed with entire authority, in every state of the Union, to seize and recapture his slave, whenever he could do so without violence or a breach of the peace; and that a state law which interrupted, impeded, limited, embarrassed, delayed, or postponed the right of the owner to the immediate possession of the slave, and the immediate command of his services, was void. SECTION 95. THE "DRED SCOTT DECISION." It was not until nearly three-quarters of a century after the adoption of the United States Constitution, and until the slavery question had been for many years the leading political question of the country, that the general status of slavery was passed upon by the Supreme Court. Of all the decisions ever rendered by the Supreme Court of the United States the one which probably That of 1793 in Prigg vs. Penn., 16 Peters, 539, and in Moore vs. Illinois, 14 Howard, 13. That of 1850 in Norris vs. Crocker, 13 Howard, 429; and in Ableman vs. Booth, 21 Howard, 506. 113 16 Peters, 539. occasioned the most discussion, aroused the greatest opposition in certain sections of the country and is most familiar to the average American citizen, is the case of Dred Scott, plaintiff in error, vs. John F. A. Sandford," decided in 1857, and commonly known as the "Dred Scott Decision." This case, in spite of the fact that questions of the highest importance were passed upon in its decision, was in its nature a simple action of tort for assault and battery. In 1834, Dr. Emerson, a surgeon in the United States army moved from Missouri to Illinois, where slavery was prohibited by statute, taking with him his negro slave, Dred Scott. Thence in 1836, they removed to Fort Snelling in the territory of Upper Louisiana, north of latitude 36° 30' and therefore within the territory from which slavery had been excluded by the Missouri compromise. In 1838, Dred Scott was taken back to Missouri. In 1847 he brought suit in a Missouri Circuit Court to recover his freedom on the ground that residence in free territory conferred freedom; a decision in his favor in the lower courts was reversed by the Supreme Court of the State. Shortly afterwards Dred Scott was sold to one Sandford, a citizen of the State of New York, against whom he brought an action for assault and battery in the United States Circuit Court sitting in Missouri. The only ground for jurisdiction of this case, which the United States courts could have, being the diverse citizenship of the parties, Sandford pleaded to the juridiction of the court that this could not be a suit between citizens of different states because Scott was not a citizen of Missouri, but a "negro of pure African descent; his ancestors were of pure African blood and brought into this 114 19 Howard, 393. country and sold as Negro slaves." To this Scott demurred and the demurrer was sustained. The defendant then pleaded in bar that the plaintiff was his negro slave, and that he had only gently laid hands on him to restrain him, as he had a right to do. The judge instructed the jury that, "upon the facts in the case, the law is with the defendant.' The plaintiff excepted to this instruction, and upon his exceptions the case was taken to the Supreme Court of the United States where it was twice argued, first at the December term, 1855, and the second time at the December term, 1856. A judgment was rendered on March 5, 1857 in which the Supreme Court went much farther than the lower court in their decision. Chief Justice Taney in delivering the decision of the Court said in part: "There are two leading questions presented by the record: 1. Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? and: 2. If it had jurisdiction, is the judgment it has given erroneous or not? * * * Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement. "That plea denied the right of the plaintiff to sue in a Court of the United States for the reasons therein stated. It is suggested, however, that this plea is not before us. * ** We think they are before us and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a Court of the United States.' The decision then went on to hold that the Constitution of the United States did not consider the negroes as citizens of the United States, but as an inferior order |