ciple of rotation in office. The exclusion of the judicial branch from this last principle is equally striking and counter to prevailing tendencies to-day. The more abstract provisions of American constitutional documents supposed at the time to embody new political principles have so far hardly resulted in more than the sounding phrases in which they are couched, while generally principles embodying the idea that governments are formed for the people and by the people, that all officers are but the servants of the people, and that, when the government fails of its effect in protecting natural rights, the people may and should alter or abolish it, — have hardly more practical result in constitutional law than the possibly moral justification of a future revolution.3

4

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The last important addition made by American Constitutions is perhaps that of religious rights and in State Constitutions, education. The former is not completely yet a constitutional principle in England, for there is still an established Church, and its expression originated with the Virginia Bill of Rights, though there are foreshadowings of religious freedom even in the Massachusetts Body of Liberties. The inclusion of education as a natural right by our State Constitutions may have interesting consequences, but the Federal Constitution does not recognize it. The former principle prevents any discrimination against any person on account of his religion as well as any sectarian appropriation or established church, but it does not justify, under the guise of religious belief, crime or practices inconsistent with the safety or well being of the State.

The last significant innovation, and not the least important, made by American Constitutions, is the prohibition of general warrants, the exercise by the government of the power to search places or seize persons with no specific charge and without a sworn warrant specifying an offence, the persons to be seized, and the objects of seizure. This principle, originating in Massachusetts ten years before the Revolution, became later (1765) indeed a constitutional principle in England, but is not of course expressed in any of the

1 See Book II, Virginia Bill of Rights § 5.

2 See Book III, §§ 5, 185.

3 See Book II, Constitutional Documents, Chapter III, Clause c., Theory of Government; and Chapter VIII below.

4 See Book III, Art. 4. * See Book III, Art. 5.

See Book III, §§ 50, 190, note 9.

7 See Book III, § 71, note 10. But see Petition of Right, Clause 2, complaining of commissions directed to commissioners to raise moneys for the king, who administered an oath not warrantable by the laws or statutes of the realm.

so-called constitutional documents, which are usually considered as terminating with the Act of Settlement. It is most strongly expressed, however, both in the Virginia and Massachusetts Bills of Rights and in the United States Constitution, Fourth Amendment. It is, of course, closely connected with the right of a person not to b compelled to give self-criminating evidence, but it has a far broader historical connection with the general objection of the Englishman to inquisitions, visitatorial expeditions by king or Crown officer, going straight back, indeed, to the great clause of Magna Carta. A man's private affairs cannot be looked into nor his papers searched except in judicial proceedings or upon the charge of some definite offence; while even then he may refuse either to testify or furnish documentary evidence if it may reveal him guilty of a criminal offence, unless under a law guarantying him immunity not only for the offence charged, but for all offences that may be revealed by the process directly or indirectly, either in that court or in any other court of the same sovereign. The immunity does not, however, have to be extended to courts of another State or country, or even, in the Federal courts, to those of any State, and vice versa; nor, it appears, is the privilege one which may be claimed by corporations. On the other hand, the privilege undoubtedly relates only to the danger of a criminal prosecution, and can hardly be extended to cover a general right to privacy, either of person or possessions, however much that is to be desired.

CHAPTER VIII

RIGHTS OF GOVERNMENT

2

In England, if there be a sovereign, it was the king in Parliament and is now practically the House of Commons. In either case, not the people, though they elect their representatives; for Parliament can change either law or form of government. In America, by definition of our Constitution, it is the people; though refiners in substance may trace it back to a majority of an assemblage of three-fourths of the States, by which alone the Constitution can be amended.' This, however, seems rather like casuistry; while the people provided that their written Constitution could only be amended regularly in that way, it equally remains true that the people themselves might at any time amend it by a successful constituent assembly; it hardly needs the assurances of the Declaration of Independence and other constitutional documents to assure that principle. We may therefore lay down the proposition that all political power is inherent in the people, that governments derive their just powers from the consent of the governed, except, indeed, when we exercise territorial jurisdiction, and that the people may alter the government when it fails of its design or ceases to be Republican in form.3 The Declaration of Independence is not part of the American Constitution, although printed at the beginning of the Revised Statutes of the United States, before the Constitution itself, and although certain of the Acts of Congress admitting territories provide that they shall adopt Constitutions in accordance with its principles. However, therefore, it may be questionable in abstract theory, at least for States of the Union, it is true that the people are sovereign.

Representative government was a medieval in the forms it has most successfully developed, an English - invention. It did away

1 See James B. Thayer, "Legal Essays," pp. 200-204.

2 See Book III, § 181.

See Book III, §§ 181, 182, 183.

with the pure democracy to which "legislation by the people initiative and referendum 1 would seem to return. Therefore they found it necessary to provide particularly for the great Council of the Realm, later Parliament, later the representative House of Commons; and for its frequent meeting. As early as 1330 we find a statute requiring annual sessions of Parliament; in 1362 the principle is repeated. Triennial Acts follow, in 1641 and 1694; and in 1716 the duration of Parliament is extended to seven years. With us the Virginia Bill of Rights expresses the doctrine that all magistrates or officers of government are but the trustees or servants of the people, and the Federal Constitution as well as the Bill of Rights of Massachusetts requires that legislative bodies should meet annually.

It follows that elections must be free and that Parliament must sit without dictation of the executive branch,2 the efforts of the kings to resist this having proved futile.3 The long attempt of the Executive to make laws by orders in Council or by proclamation, or indirectly by suspending laws already existing, may be traced through the history of the middle centuries until they ended in the Bill of Rights. It is now an established constitutional principle that the Executive can neither suspend a law nor suspend a penalty nor even pardon an offence in anticipation of trial.

The history of suffrage may be summed up in the statement that originally all free men had the vote; that is to say, when there was a vote. In early times of course only the peers of the realm, the barons or tenants in chief, came to Parliament. Beginning with the time of Magna Carta we may trace the practice of summoning representative commoners by general writ; then for two centuries we find indirect general suffrage through the County Courts; but in 1429 we find a disfranchizing act, restricting the voting qualifications to forty shillings a year freeholders, which, in England, has never been entirely abolished since. In the United States we have, since the Fourteenth Amendment, and under State laws, manhood suffrage without distinction of race; although property, educational, or other distinctions are allowed, subject only to the consequent

See infra, Chapter IX; Book III, 309. The early system was of course the primary assembly or folk-mote, etc. Early European prototypes disappeared; only the English Parliament endured.

2 See "Historical Digest," Annis 1275, 1407, 1485, 1707.

Ibid., Annis 1539, 1609.

Ibid., Annis 1407, 1414, 1485, 1539, 1609. Stimson "The American Constitution," p. 102.

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diminution of representation in the Federal Congress.' The effort to control elections and candidates was, indeed, made in England, especially by James I, but was early abandoned, and the principle exists there as here that only the legislative body itself can judge of the qualifications returns of its members unless, indeed, it choose to delegate that power to the courts. Legislative sessions must (except executive sessions of Senate), with us, be open; not necessarily so in England; but in both countries the legislative body has power to protect itself against contempt; and of this it may not be deprived. It may expel a member and it may punish a person not a member, but probably in America only by fine or imprisonment, the latter not to last beyond the duration of the session. Speech in the Legislature is free in both countries, and the members themselves are privileged from arrest except for felony or, in England, on civil process, which privilege early extended to their servants and members of the household; not, however, to attachment for contempt of habeas corpus.3 The principle of freedom of elections was reiterated in the English Bill of Rights and is preserved in American constitutional documents, and our State Constitutions usually require vote by ballot and secrecy of the ballot, though by recent amendments voting machines may be used.

Officers of the government are, as has been said, the trustees or servants of the people. They may not hold place in more than one of the three departments or, with us, usually, in both State and Federal preferment. They are sworn to support the Constitution of the United States and must give attention to the duties of their office and not farm it out to others. This principle, dating from the petition of thirty-one articles to Henry IV in 1406, is copied in some modern State Constitutions. They may be impeached by the lower house for crime or mere maladministration, which impeachment is tried by the upper house; and no pardon is available but they are still liable to trial at the common law."

The right of assembly has been already discussed." By an Act of 1549 unlawful assemblies of twelve to alter laws or abate prices were made unlawful, which apparently gave rise both to the modern riot acts and to the notion that strikes were criminal. This, how

1 See Book III, §§ 23, 240, 245, 246. 2 See Book III, § 270.

3 See Book III, § 273.

4 See Book III, § 237. See Book III, § 215.

See "Historical Digest," Annis 1485, 1512, 1581; Act of Settlement, Clause 8.

7 See Chapter VII.