5. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that when any government shall be found inadequate or contrary to these purposes, a majority of the community hath 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.

"Inalienable" in this section as it now stands was substituted by the framers of the present Constitution for "unalienable," which appears from the Code of 1819, the Supplement to that Code, the Code of 1849, and the Acts of 1852, and the Code of 1860 to have been the original form.

6. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge to be hereditary.

This section was intended to provide against heredity in office, and has no application to the private relations of citizens, nor to the power of the legislature to pass laws regulating the domestic affairs of the people, or any portion of them. Charters of incorporation, vesting the incorporators with special privileges, which are not conferred on the mass of citizens, are not in conflict with it. Smoot v. Building Association, 95 Va. 686.

7. That the legislative, executive, and judicial powers should be separate and distinct; and that the members thereof may be restrained from oppression, by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all or any part of the former members to be again eligible or ineligible, as the laws shall direct.

In its original form the first part of this section was as follows: "That the legislative and executive powers of the state should be separate and distinct from the judiciary; that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people," &c., as above. The change was made at the revision of 1851, when all life tenures of office were abolished and fixed terms prescribed for the offices in all the departments. The judges had previously held office "during good behavior," or for life.

As to the separation of powers, see Art. II. and note.

8. That all elections ought to be free, and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses, without their own consent, or that of their representatives so elected, nor bound by any law to which they have not in like manner assented, for the public good.

There has been no change in this section except in the first clause, which was originally as follows: "That elections of members to serve as representatives of the people, in assembly, ought to be free." The present form was adopted at the revision of 1851, when the election of all officers, with but few exceptions, was committed to the people.

General Purpose. The general purpose of this section was to secure freedom of elections; to give the principle of the right of suffrage; and to protect those having that right against taxation by laws to which they do not assent by themselves or their representatives. County Levy Case, 5 Call, 139.

Freedom of Elections.-The provision for free elections relates primarily to elections by the people. As it originally stood it was limited to elections of members of the Assembly, but, as no other officers were then elected by the people, it was, in effect, as comprehensive as it is at present, and applied then, as it does now, to all popular elections. In Pearson v. Supervisors, 91 Va. 322, it was held that this provision was not violated by the election law of March 6, 1894, establishing the booth system of voting.

Taxation and Representation.—For local purposes the power of

taxation may be delegated by the legislature to local agencies not elected by the persons against whom the taxes are levied, the taxes in such case being in a legal sense imposed by their representatives in the legislature. In Langhorne & Scott v. Robinson, 20 Gratt. 661, an act authorizing the common council of Lynchburg, elected by voters within the city limits, to tax persons and property not only within, but for half a mile around and outside of, those limits was held not to be unconstitutional. So, also, the power of taxation was lawfully exercised by the old county courts in making county levies, though the justices of those courts were

not elected by the people. County Levy Case, 5 Call, 139; Harrison Justices v. Holland, 3 Gratt. 247.

9. That all power of suspending laws, or the execution of laws by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

10. That in all criminal or capital prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with his accusers and witnesses, to call for evidence in his favor and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; but the general assembly may, by law, provide for the trial otherwise than by a jury of a man accused of a criminal offence not punishable by death or confinement in the penitentiary; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.

Amendment adopted in 1894. See Acts 1893-94, p. 249. At the revision of 1851 the words "of twelve men were inserted after "jury," and as thus amended this section was readopted at the revision of 1864. The framers of the present constitution restored the original form. By the amendment, adopting the present form, the words "capital" and "criminal' were transposed, "his" was substituted for "the" before "accusers and witnesses"; and after the word "guilty" were inserted the words "but the general assembly may, by law, provide for the trial otherwise than by a jury of a man accused of a criminal offence not punishable by death or confinement in the penitentiary." See Judge Burks's criticism of this amendment quoted in note to this section on "Trial by Jury."

General Purpose.-The rights enumerated in this section "all stand upon an equal footing; they are all necessary to the complete enjoyment of that personal liberty which is our birthright, and which it is the duty not only of the courts, but of every citizen, to jealously guard. They are all designed, the one not more than the other, to safeguard the accused in all criminal prosecutions, so that no man may be deprived of his liberty except by the law of the land or the judgment of his peers;'" Keith, P., in Brown v. Epps, 91 Va. 726.

Law of the Land. This phrase is equivalent to "due process of law," the guaranty of which, uuder Amendment XIV., U. S.

Const., extends not only to life and liberty, but to property rights as well. Violett v. Alexandria, 92 Va. 561; Heth v. Radford, 96 Va. 272.

The provision that no man shall be deprived of his liberty except by the law of the land, or the judgment of his peers,' does not apply against the State so as to prevent the collection of taxes by means of summary arrest and imprisonment. Commonwealth v. Byrne, 20 Gratt. 165.

Trial by Jury. The right of trial by jury secured by this section is the right as it existed when the constitution was adopted, and, notwithstanding the broad language of the provision, there are many petty offenses against statutes and municipal ordinances, such as Sabbath-breaking, drunkenness, vagrancy, and a vast variety of others, which are triable without a jury. Ex parte Marx, 86 Va. 40. Keeping a bawdy-house is not one of this class of offences. Mary Miller's Case, 88 Va. 618.

In the case last cited it was held that the guaranty of a trial by jury is not satisfied by a trial without a jury, though with a peremptory right of appeal and a trial de novo by a jury in the appellate court; but in the subsequent case of Brown v. Epps, 91 Va. 322, it was held that, though the accused be tried in the first instance without a jury, yet if, on appeal of right, a new trial by jury be secured to him the constitutional guaranty is not violated.

In a note on the latter case, 1 Va. Law Register, p. 24, Judge Burks says: "There is room for difference of opinion as to which of the two decisions expounds the Constitution correctly. The Miller Case was decided by a full bench (five judges), and one of the judges dissented. The Brown Case was decided by a full bench also, without any dissent. Of course, the last decision must prevail, unless and until overruled, as the first has been." It may be observed, however, that the law declared invalid in the Miller Case was amended so as to provide for a trial without jury only when the accused elected to be so tried, and it was the law as amended which was before the court in the Brown Case.

Of the constitutional amendment adopted in consequence of the decision in the Miller Case, Judge Burks, in the same note, speaks

as follows: "That amendment, in disregard of the principles of Magna Charta embodied in our Bill of Rights, drawn by the illustrious George Mason more than a century ago, invests the legislature with the power to dispense with jury trials in all criminal offences not punishable by death or confinement in the penitentiary.' The late constitutional amendment is a step backwards. It was not discussed by the public speakers in the canvass, so far as we ever heard, and the people did not take in its scope and bearing. If they had done so, it is believed, they would have rejected it with something approaching unanimity. The only argument we ever heard in favor of the amendment was, that, by dispensing with jury trials in the cases covered by the amendment, the State would be relieved of great expense. If the matter of dollars and cents is to remand personal security to the rear, then, God save the Commonwealth! The great burden on the State of 'criminal expenses,' of which we hear such hue and cry, is not chargeable in any objectionable degree to the law, but mainly to its administration. Correct the administration and the alleged evil will, for the most part, disappear.'

The right to a trial by jury is a privilege which may be waived. The presence of a jury, where the right to a jury trial exists, is not a jurisdictional fact, without which a court is not duly organized for trial in a criminal case. Brown v. Epps, supra.

A change of venue, or the summoning of a jury from a distance, in certain cases as prescribed by statute, does not violate the provision for a jury from the vicinage of the accused. The vicinage of a convict in the penitentiary, if he can be said to have any vicinage, is within the walls of the penitentiary, which, if not literally and actually, yet in the eye of the law surround him wherever he may go until he is lawfully discharged. The provisions of the Bill of Rights, however, were made for freemen, and not for convicted felons, who are subject to such laws and regulations as the State may choose to prescribe. Ruffin's Case, 21 Gratt. 790. In this case a convict, while in Bath county with other convicts, under a contract to work on a railroad, in attempting to escape, killed a guard, and it was held that he was lawfully tried and convicted in the Circuit Court of Richmond.