water, even though by the law of the State he owned in fee the bed of the stream, and it could do all this without making him any rec ompense, although the effect of it might be to entirely destroy the value of his property. The doctrine declared in Scranton r. Wheeler (says Mr. Donnelly) in substance is that (i) The title which the riparian owner has in the submerged land is one limited, and qualified, and subject to the public right of navigation, even though the water be not deep enough at the point in question for practical use in commerce, and that Congress may take possession of the submerged land, and dig and remove the same for the pur pose of creating a new and artificial channel. (2) That the right of access which attaches to the ownership of the upland may be wholly destroyed and the use of the upland rendered in a sense valueless. . . . In a broad general sense, the provisions of the Constitution of the United States may be grouped into two grand subdivisions:— (a) Those containing grants of power to the different departments of the Govern ment. (b) Those which might be called restric tive or protective provisions, by which the rights of persons and individuals are con served, and which operate as limitations and restrictions upon the power of the govern ment under the granting clauses. The commerce clause of the Constitution comes within the first class. It makes a dis tinct grant of power, and its absence would have left the Federal Government with no jurisdiction or control over the subject mat ter. Provisions such as the Fifth Amend ment, and those relating to personal liberty and the private rights and privileges of indi viduals, as well as those intended to preserve the social and political rights of citizens, con stitute the second class, and have for their great purpose limitations and checks upon the exercise of the powers granted by the other clauses. It should be deemed a cardi nal principle of constitutional interpretation that those grants of power, when applied to the subject of private rights, and of private property, and when in the exercise of power
thereunder, the government comes in contact with the rights of individuals and rights of property, should first be measured up with those provisions of the second class, which have for their purpose the limitation of power and the conservation and protection of priv ate rights, and, instead of a broadening and enlarging rule of interpretation being applied to the grant of power, by which many in juries are inflicted, such rule of interpreta tion ought to be applied to the protective and restrictive clauses. THE May issue of The Yale Journal contains an able article by Frederick R. Coudert, of the New York Bar, on "Judicial Constitu tional Amendment as Illustrated by the De volution of the Institution of the Jury from a Fundamental Right to a Mere Method of Procedure." After noting the interpreta tion of the Constitution by the Supreme Court which has kept it so closely in touch with modern ideas that our institutions have been gradually modified, and although they have perhaps ceased to be in accord with the ideas of the framers, they have become suited to the opinions of today," Mr. Coudert says: This general tendency by which the Con stitution is being constantly brought, as the French say en rapport with existing ideas, is no where, I believe, so well instanced as in the evolution of jury trial from a fundamental right into a mere method of procedure. This proposition which, I believe, can be established by the examination of the cases on this subject in the Supreme Court of the United States is: A right secured to the people by the Con stitution in most positive language, treated by the framers of the Constitution, by the original State Constitutions, and by the pub lic opinion of the time as a sacred and funda mental right, has in the course of a hundred years been relegated to the rank of a mere method of procedure. . . . This important change has been accom plished without any formal amendment to the Constitution, but wholly under the guise of judicial interpretation. It has not been
