Present Concepts of American Institutions

will of the people, the system has been tried with success, has never departed from the principles on which it was founded, and has strengthened the conservatism which ever underlies American politics.

One commenting on government in America to-day would not be likely to call attention to, much less to emphasize, the system of checks and balances. He would attribute the virtue of our institutions to economic and sociological causes. He would dwell on the people, not on the system. He would analyze political parties, public opinion, and our social institutions. He would not be likely even to use the term checks and balances. In the eighteenth century government was conceived as a device; in our times it is thought of rather as an organism. It is the content, not the language, of the Constitution that has changed. The supreme law, as time goes on, is given more and more an economic interpretation. If adapted to the wants of the country, such interpretation becomes a party doctrine, and if adopted by the majority, it becomes an administrative measure. If it is believed to involve essential rights, it may become a part of a revised constitution. Thus, at last, the constitutions become the depository of settled politics and the register of the growth of the State.

The basis for legal defence of the Revolution was the claim by the Americans that King George had violated the compact to which he and the colonies were parties. It was first broached in 1774

in the Suffolk Convention,* and was quickly recognized by Adams and Otis as the place of beginning in establishing legal boundaries for the Revolution. It in great measure explains why American constitutions began with this definition of the state as a social compact. Coupled with the doctrine of natural rights, the social-compact theory proved administrable. On these two ideas government in America, both State and national, rests. When the transition from colony to commonwealth was effected, two years later, and the first constitutions were made, these two ideas became the nucleus of government. In this way the Americans succeeded, at least to their own satisfaction, in putting the King in the wrong. They declared that he had violated the compact, and therefore all political connection with Great Britain was dissolved. The colonies claimed that, thus left in a state of nature, they were free to organize governments to suit themselves. If not sovereign, they were free and independent. New Jersey, the first to adopt a constitution, and South Carolina, made provision that if Great Britain adjusted colonial differences, their constitutions should be of no effect. With these two exceptions, the colonies entered upon the organization of State governments. The permanent features

* Journals, Provincial Congress, Massachusetts, p. 601; and, specially, of the Hampshire Convention, p. 619. For definition of the "social compact" see Constitutions, Massachusetts, 1780; Maryland, 1776; Kentucky, 1792, 1799.

+ New Jersey, South Carolina, New Hampshire, 1776; all conditional constitutions.

All Authority Emanates from the People

of these constitutions were their declarations of rights and the threefold division of government. In the aggregate, the declarations comprise about one hundred provisions, all of which are not found in any one constitution. The typical declaration is that of Virginia of 1776, which, by repeated adoption, has long since become common, civil property.* It consists of sixteen articles, all of which rest for authority on the doctrine of natural rights proclaimed in the opening clause. Men cannot be deprived of their rights, nor can they deprive their posterity of them; all power is vested in the people, and is derived from them. Consequently, their representatives are their trustees and servants, and at all times. amenable to them. As government is instituted for the common benefit, it must be organized in the form that is best "capable of producing the greatest degree of happiness and safety, and is most effectually secured against the dangers of maladministration." It follows that, if the form of the government does not subserve this end, the "majority of the community have an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal." No man can be conceived to be "entitled to exclusive or separate emoluments or privileges from the community

*See Grigsby's Virginia Convention, 1776; Richmond, 1855: also Joint Resolution of Virginia Legislature accepting manuscript of this Declaration of Rights in Mason's handwriting, and depositing it in State archives, February 15, 1844.

but in consideration of public service." The same doctrine also compels the conclusion that official emoluments and privileges are not descendible, and that the office of magistrate, legislator, or judge cannot be hereditary.

The doctrine of natural rights applied in administration compels the separation of legislative, executive, and judicial powers. Elections must be frequent that the sovereign people may the more perfectly express their will in the choice of public servants. There must be rotation in office. In order to secure equity in the administration of the government, elections must be free and the electorate accurately defined; but the Virginia declaration went no further than to include in it all men having sufficient evidence of permanent, common interest with the community, and attachment to it: by which was meant a property qualification. These are entitled to the right of suffrage. No man can be taxed or deprived of his property for public uses without his own consent or that of his chosen representatives. The doctrine of the right of revolution was carried further than to-day-that none are "bound by any law to which they have not in like manner assented for the public good." A relic of the revolt from executive tyranny in colonial times was preserved in the clause that all power of suspending laws or their execution by any authority without the consent of the representatives of the people, is injurious to popular rights. Yet it is somewhat difficult to conceive how any authority in a democracy founded on

The Struggle for Trial by Jury

the doctrine of natural rights could thus injure the rights of the people, for by this doctrine the executive, the legislative, and the judiciary are of equal rank. The long struggle for the right of trial by jury culminated in the insertion in each of the constitutions of a provision for the trial according to the law of the land of a person accused of capital or criminal offence, giving him the right to demand the cause and nature of his accusation, and to be confronted by his accusers and their witnesses, empowering him to call for evidence in his own favor, and entitling him to a speedy trial by a competent jury of the vicinage. No eighteenth-century constitutions permitted any other than the unanimous verdict of a jury of twelve men-a requirement from which later constitutions have freely departed.

Among the complaints of the American people formally set forth by Jefferson in the Declaration of Independence, is that of unwarrantable searches and seizures made by British officers. So palpable a violation of feelings and rights was the immediate origin of clauses in the bills of rights declaring such searches and seizures under general warrant unconstitutional.

It would be expected that a people who based their political fabric upon the doctrine of natural rights, and who were accustomed freely to express their individual opinions on all subjects, would declare freedom of the press to be one of the bulwarks of liberty and a constitutional right.

Among complaints of long standing in Amer