The Declaration of the Rights of Man and of Citizens Part 5

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[Footnote 75: The complete text in Poore, I, p. 931. That it was far from the intentions of the settlers to found an independent state is evident from the entire doc.u.ment, in which they characterize themselves as “subjects of our dread Sovereign Lord King James”.]

[Footnote 76: On Williams, _cf._ Weingarten, pp. 36 _et seq._, and 293, Bancroft, I, pp. 276 _et seq._, Ma.s.son, _The Life of John Milton_, II, pp. 560 _et seq._ The advance of the Independent movement to unconditional freedom of faith is thoroughly discussed by Weingarten, pp. 110 _et seq._]

[Footnote 77: Samuel Greene Arnold, _History of the State of Rhode Island_, I, New York, 1859, p. 103.]

[Footnote 78: Arnold, p. 124.]

[Footnote 79: _Fundamental Orders of Connecticut_, Poore, I, p. 249.]

[Footnote 80: The entire number of immigrants in New England amounted in 1640 to 22,000 at the highest. Of these New Plymouth had 3000, Connecticut less than 2000 souls. Ma.s.son, _loc. cit._, pp. 548-550.]

[Footnote 81: The wide separation of the colonies from the mother-country did not make this liberty appear dangerous though it was in such contradiction to the conditions in England. Charles II. sought further, in his aversion to the Puritans, to favor as much as possible the colonies that had separated from Ma.s.sachusetts.]

[Footnote 82: “Our royall will and pleasure is, that noe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion, and doe not actually disturb the civill peace of our sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freelye and fullye have and enjoye his and their owne judgments and consciences, in matters of religious concernments, throughout the tract of lande hereafter mentioned; they behaving themselves peaceablie and quietlie, and not useing this libertie to lycentiousnesse and profanenesse, nor to the civill injurye or outward disturbeance of others; any lawe, statute or clause, therein contayned, or to bee contayned, usage or custome of this realme, to the contrary hereof, in any wise, notwithstanding.” Poore, II, pp. 1596, 1597.]

[Footnote 83: Bancroft, I, p. 193, E. Lloyd Harris, _Church and Slate in the Maryland Colony_. Inaugural-Dissertation. Heidelberg, 1894, p. 26 _et seq_.]

[Footnote 84: Carolina had already had religious toleration in the Charter of 1665. Poore, II, p. 1397. Locke himself wished to grant full religious liberty. _Cf._ Laboulaye, I, p. 397.]

[Footnote 85: Art. 97. Poore, II, pp. 1406, 1407.]

[Footnote 86: Art. 101. _Ibid._]

[Footnote 87: Arts. 102, 106. _Ibid._]

[Footnote 88: C. Ellis Stevens, _Sources of the Const.i.tution of the United States_, New York, 1894, P. 217.]

[Footnote 89: Laws agreed upon in England, Art. x.x.xV. Poore, II, p.


[Footnote 90: Charter of Privileges for Pennsylvania, Art. I. Poore, II, p. 1537. For holding office the confession of belief in Jesus Christ as the Saviour of the world was necessary, but no special creed.]

[Footnote 91: Art. VIII, section 3.]

[Footnote 92: Poore, I, p. 950. On this point _cf._ Lauer, _Church and State in New England_ in _Johns Hopkins University Studies, 10th Series_, II-III, Baltimore, 1892, pp. 35 _et seq._]

[Footnote 93: Poore, I, p. 375.]

[Footnote 94: In England the Toleration Act, I. Will. and Mary, c. 18, first granted toleration to Dissenters. This was again restricted under Anne and restored under George I. Since George II. they have been admitted to all offices. As is well known, however, the restrictions upon the Catholics and Jews have been done away with only in our century. In Germany after the scanty concessions of the Peace of Osnabruck, a state of affairs similar to that earlier in America was first created by the Toleration Patent of Joseph II. of 1781, the Edict of Frederick William II. of July 9, 1788, that which codified the principles of Frederick the Great, and above all by the Prussian _Allgemeines Landrecht_ (Teil II, 11, —- 1 _et seq._).]

[Footnote 95: To be sure the carrying out of this right, in the direction of full political equality to the members of all confessions, differed in the different states. New York was the first state after Rhode Island that brought about the separation of church and state.

Virginia followed next in 1785. For some time after in many states Protestant or at least Christian belief was necessary to obtain office.

And even to-day some states require belief in G.o.d, in immortality, and in a future state of rewards and punishments. Ma.s.sachusetts declared in her bill of rights not only the right but the duty of worship, and as late as 1799 punished neglect of church attendance. In the course of the nineteenth century these and other restrictions have fallen away except for a very small part. For the Union the exercise of political rights is made entirely independent of religious belief by Art. VI of the Const.i.tution, and also by the famous First Amendment the establishment of any religion or prohibiting the free exercise thereof is forbidden.

On the present condition in the separate states, _cf._ the thorough discussion by Cooley, Chap. XIII, pp. 541-586; further Ruttiman, _Kirche und Staat in Nordamerika_ (1871).]

[Footnote 96: “Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the RIGHTS OF CONSCIENCE.” Art. IV. Poore, II, 1280.]



The seventeenth century was a time of religious struggles. In the following century political and economic interests pressed into the foreground of historical movement. The democratic inst.i.tutions of the colonies were repeatedly in opposition to those of the mother-country, and the ties that bound them to her lost more and more of their significance. The great antagonism of their economic interests began to make itself widely felt. The economic prosperity of the colonies demanded the least possible restriction upon free movement. Finally they felt that they were ruled not by their old home but by a foreign country.

Then the old Puritan and Independent conceptions became effective in a new direction. The theory of the social compact which played so important a role in the founding of the colonies, and had helped to establish religious liberty, now supported in the most significant way the reconstruction of existing inst.i.tutions. Not that it changed these inst.i.tutions, it simply gave them a new basis.

The colonists had brought over the ocean with them their liberties and rights as English-born subjects. In a series of charters from the English kings it was specifically stated that the colonists and their descendants should enjoy all the rights which belonged to Englishmen in their native land.[97] Even before the English Bill of Rights the most of the colonies had enacted laws in which the ancient English liberties were gathered together.[98] There occurred, however, in the second half of the eighteenth century a great transformation in these old rights.

The inherited rights and liberties, as well as the privileges of organization, which had been granted the colonists by the English kings or had been sanctioned by the colonial lords, do not indeed change in word, but they become rights which spring not from man but from G.o.d and Nature.

To these ancient rights new ones were added. With the conviction that there existed a right of conscience independent of the State was found the starting-point for the determination of the inalienable rights of the individual. The theory of a Law of Nature recognized generally but one natural right of the individual–liberty or property. In the conceptions of the Americans, however, in the eighteenth century there appears a whole series of such rights.

The teaching of Locke, the theories of Pufendorf[99] and the ideas of Montesquieu, all powerfully influenced the political views of the Americans of that time. But the setting forth of a complete series of universal rights of man and of citizens can in no way be explained through their influence alone.

In 1764 there appeared in Boston the celebrated pamphlet of James Otis upon _The Rights of the British Colonies_. In it was brought forward the idea that the political and civil rights of the English colonists in no way rested upon a grant from the crown; even Magna Charta, old as it might be, was not the beginning of all things. “A time may come when Parliament shall declare every American charter void; but the natural, inherent, and inseparable rights of the colonists as men and as citizens would remain, and, whatever became of charters, can never be abolished till the general conflagration.”[100]

In this pamphlet definite limitations of the legislative power “which have been established by G.o.d and by Nature” are already enumerated in the form of the later bills of rights. As the center of the whole stood the occasion of strife between the colonies and the mother-country, the right of taxation. That the levying of taxes or duties without the consent of the people or of representatives of the colonies was not indeed contrary to the laws of the country, but contrary to the eternal laws of liberty.[101] But these limitations were none other than those enumerated by Locke, which “the law of G.o.d and of Nature has set for every legislative power in every state and in every form of government”.

But these propositions of Locke’s are here found in a very radical transformation. They are changing namely from law to personal right.

While Locke, similar to Rousseau later, places the individuals in subjection to the will of the majority of the community, upon which, however, restrictions are placed by the objects of the state, now the individual establishes the conditions under which he will enter the community, and in the state holds fast to these conditions as rights. He has accordingly rights in the state and claims upon the state which do not spring from the state. In opposition to England’s attempt to restrict these rights, the idea formally to declare them and to defend them grew all the stronger.

This formulation was influenced by a work that was published anonymously at Oxford in 1754, in which for the first time “absolute rights” of the English are mentioned.[102] It originated from no less a person than Blackstone.[103] These rights of the individual were voiced in Blackstone’s words for the first time in a Memorial to the legislature, which is given in an appendix to Otis’s pamphlet.[104] On November 20, 1772, upon the motion of Samuel Adams a plan, which he had worked out, of a declaration of rights of the colonists as men, Christians and citizens was adopted by all the a.s.sembled citizens of Boston. It was therein declared, with an appeal to Locke, that men enter into the state by voluntary agreement, and they have the right beforehand in an equitable compact to establish conditions and limitations for the state and to see to it that these are carried out. Thereupon the colonists demanded as men the right of liberty and of property, as Christians freedom of religion, and as citizens the rights of Magna Charta and of the Bill of Rights of 1689.[105]

Finally, on October 14, 1774, the Congress, representing twelve colonies, a.s.sembled in Philadelphia adopted a declaration of rights, according to which the inhabitants of the North American Colonies have rights which belong to them by the unchangeable law of nature, by the principles of the const.i.tution of England and by their own const.i.tutions.[106]

From that to the declaration of rights by Virginia is apparently only a step, and yet there is a world-wide difference between the two doc.u.ments. The declaration of Philadelphia is a protest, that of Virginia a law. The appeal to England’s law has disappeared. The state of Virginia solemnly recognizes rights pertaining to the present and future generations as the basis and foundation of government.[107]

In this and the following declarations of rights by the now sovereign states of North America, by the side of the rights of liberty that had been thus far a.s.serted,–liberty of person, of property and of conscience,–stand new ones, corresponding to the infringements most recently suffered at England’s hands of other lines of individual liberty: the right of a.s.sembly, the freedom of the press and free movement. But these rights of liberty were not the only ones therein a.s.serted, there were the right of pet.i.tion, the demand for the protection of law and the forms to be observed in insuring that, a special demand for trial by an independent jury, and in the same way with regard to other acts of the state; and the foundations of the citizen’s political rights were also declared. They thus contained according to the intentions of their authors the distinctive features of the entire public right of the individual. Besides these were included the principle of the division of powers, of rotation of office, of accountability of office-holders, of forbidding hereditary t.i.tles, and there were further contained certain limitations on the legislature and executive, such as forbidding the keeping of a standing army or creating an established church,–all of which do not engender personal rights of the individual at all, or do so only indirectly. The whole is based upon the principle of the sovereignty of the people, and culminates in the conception of the entire const.i.tution being an agreement of all concerned. In this particular one sees clearly the old Puritan-Independent idea of the covenant in its lasting influence, of which new power was to be significantly displayed later. When to-day in the separate states of the Union changes in the const.i.tution are enacted either by the people themselves, or through a const.i.tutional convention, there still lives in this democratic inst.i.tution the same idea that once animated the settlers of Connecticut and Rhode Island.

Everywhere the bill of rights forms the first part of the const.i.tution, following which as second part comes the plan or frame of government.

The right of the creator of the state, the originally free and unrestricted individual, was first established, and then the right of that which the individuals created, namely, the community.

In spite of the general accord of these fundamental principles, when it came to carrying them out in practical legislation great differences arose in the various states, and though these differences were afterward greatly lessened they have not entirely disappeared even to-day. Thus, as mentioned above, religious liberty, in spite of its universal recognition in the const.i.tutions, was not everywhere nor at once carried out in all of its consequences. In spite of the a.s.sertion that all men are by nature free and equal the abolition of slavery was not then accomplished. In the slave states in place of “man” stood “freeman”.

The rights thus formally declared belonged originally to all the “inhabitants”, in the slave states to all the “whites”. It was only later that the qualification of citizenship of the United States was required in most of the states for the exercise of political rights.

We have thus seen by what a remarkable course of development there arose out of the English law, old and new, that was practised in the colonies, the conception of a sphere of rights of the individual, which was independent of the state, and by the latter was simply to be recognized. In reality, however, the declarations of rights did nothing else than express the existing condition of rights in definite universal formulas.

That which the Americans already enjoyed they wished to proclaim as a perpetual possession for themselves and for every free people. In contrast to them the French wished to give that which they did not yet have, namely, inst.i.tutions to correspond to their universal principles.

Therein lies the most significant difference between the American and French declarations of rights, that in the one case the inst.i.tutions preceded the recognition of rights of the individual, in the other they followed after. Therein lay also the fatal mistake of the German National a.s.sembly at Frankfort which wished to determine first the rights of the individual and then establish the state. The German state was not yet founded, but it was already settled what this state not yet existing dare not do and what it had to concede. The Americans could calmly precede their plan of government with a bill of rights, because that government and the controlling laws had already long existed.

One thing, however, has resulted from this investigation with irrefutable certainty. The principles of 1789 are in reality the principles of 1776.


[Footnote 97: Kent, _Commentaries on American Law_, 10th ed., I, p.


The Declaration of the Rights of Man and of Citizens Part 1

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The Declaration of the Rights of Man and of Citizens.

by Georg Jellinek.



The declaration of “the rights of man and of citizens” by the French Const.i.tuent a.s.sembly on August 26, 1789, is one of the most significant events of the French Revolution. It has been criticised from different points of view with directly opposing results. The political scientist and the historian, thoroughly appreciating its importance, have repeatedly come to the conclusion that the Declaration had no small part in the anarchy with which France was visited soon after the storming of the Bastille. They point to its abstract phrases as ambiguous and therefore dangerous, and as void of all political reality and practical statesmanship. Its empty pathos, they say, confused the mind, disturbed calm judgment, aroused pa.s.sions, and stifled the sense of duty,–for of duty there is not a word.[1] Others, on the contrary, and especially Frenchmen, have exalted it as a revelation in the world’s history, as a catechism of the “principles of 1789” which form the eternal foundation of the state’s structure, and they have glorified it as the most precious gift that France has given to mankind.

Less regarded than its historical and political significance is the importance of this doc.u.ment in the history of law, an importance which continues even to the present day. Whatever may be the value or worthlessness of its general phrases, it is under the influence of this doc.u.ment that the conception of the public rights of the individual has developed in the positive law of the states of the European continent.

Until it appeared public law literature recognized the rights of heads of states, the privileges of cla.s.s, and the privileges of individuals or special corporations, but the general rights of subjects were to be found essentially only in the form of duties on the part of the state, not in the form of definite legal claims of the individual. The Declaration of the Rights of Man for the first time originated in all its vigor in positive law the conception, which until then had been known only to natural law, of the personal rights of the members of the state over against the state as a whole. This was next seen in the first French const.i.tution of September 3, 1791, which set forth, upon the basis of a preceding declaration of rights, a list of _droits naturels et civils_ as rights that were guaranteed by the const.i.tution.[2]

Together with the right of suffrage, the “_droits garantis par la const.i.tution_”, which were enumerated for the last time in the const.i.tution of November 4, 1848,[3] form to-day the basis of French theory and practice respecting the personal public rights of the individual.[4] And under the influence of the French declaration there have been introduced into almost all of the const.i.tutions of the other Continental states similar enumerations of rights, whose separate phrases and formulas, however, are more or less adapted to the particular conditions of their respective states, and therefore frequently exhibit wide differences in content.

In Germany most of the const.i.tutions of the period prior to 1848 contained a section upon the rights of subjects, and in the year 1848 the National Const.i.tutional Convention at Frankfort adopted “the fundamental rights of the German people”, which were published on December 27, 1848, as Federal law. In spite of a resolution of the _Bund_ of August 23, 1851, declaring these rights null and void, they are of lasting importance, because many of their specifications are to-day incorporated almost word for word in the existing Federal law.[5]

These enumerations of rights appear in greater numbers in the European const.i.tutions of the period after 1848. Thus, first of all, in the Prussian const.i.tution of January 31, 1850, and in Austria’s “Fundamental Law of the State” of December 21, 1867, on the general rights of the state’s citizens. And more recently they have been incorporated in the const.i.tutions of the new states in the Balkan peninsula.

A noteworthy exception to this are the const.i.tutions of the North German Confederation of July 26, 1867, and of the German Empire of April 16, 1871, which lack entirely any paragraph on fundamental rights. The const.i.tution of the Empire, however, could the better dispense with such a declaration as it was already contained in most of the const.i.tutions of the individual states, and, as above stated, a series of Federal laws has enacted the most important principles of the Frankfort fundamental rights. Besides, with the provisions of the Federal const.i.tution as to amendments, it was not necessary to make any special place for them in that instrument, as the Reichstag, to whose especial care the guardianship of the fundamental rights must be entrusted, has no difficult forms to observe in amending the const.i.tution.[6] As a matter of fact the public rights of the individual are much greater in the German Empire than in most of the states where the fundamental rights are specifically set forth in the const.i.tution. This may be seen, for example, by a glance at the legislation and the judicial and administrative practice in Austria.

But whatever may be one’s opinion to-day upon the formulation of abstract principles, which only become vitalized through the process of detailed legislation, as affecting the legal position of the individual in the state, the fact that the recognition of such principles is historically bound up with that first declaration of rights makes it an important task of const.i.tutional history to ascertain the origin of the French Declaration of Rights of 1789. The achievement of this task is of great importance both in explaining the development of the modern state and in understanding the position which this state a.s.sures to the individual. Thus far in the works on public law various precursors of the declaration of the Const.i.tuent a.s.sembly, from Magna Charta to the American Declaration of Independence, have been enumerated and arranged in regular sequence, yet any thorough investigation of the sources from which the French drew is not to be found.

It is the prevailing opinion that the teachings of the _Contrat Social_ gave the impulse to the Declaration, and that its prototype was the Declaration of Independence of the thirteen United States of North America. Let us first of all inquire into the correctness of these a.s.sumptions.


[Footnote 1: First of all, as is well known, Burke and Bentham, and later Taine, _Les origines de la France contemporaine: La revolution_, I, pp. 273 _et seq._; Oncken, _Das Zeitalter der Revolution, des Kaiserreiches und der Befreiungskriege_, I, pp. 229 _et seq._; and Weiss, _Geschichte der franzosischen Revolution_, 1888, I, p. 263.]

[Footnote 2: t.i.tre premier: “Dispositions fondamentales garanties par la const.i.tution.”]

[Footnote 3: Helie, _Les const.i.tutions de la France_, pp. 1103 _et seq._]

[Footnote 4: _Cf._ Jellinek, _System der subjektiven offentlichen Rechte_, p. 3, n. 1.]

[Footnote 5: Binding, _Der Versuch der Reichsgrundung durch die Paulskirche_, Leipzig, 1892, p. 23.]

[Footnote 6: When considering the const.i.tution, the Reichstag rejected all proposals which aimed to introduce fundamental rights. _Cf._ Bezold, _Materialen der deutschen Reichsverfa.s.sung_, III, pp. 896-1010.]



In his _History of Political Science_–the most comprehensive work of that kind which France possesses–Paul Janet, after a thorough presentation of the _Contrat Social_, discusses the influence which this work of Rousseau’s exercised upon the Revolution. The idea of the declaration of rights is to be traced back to Rousseau’s teachings. What else is the declaration itself than the formulation of the state contract according to Rousseau’s ideas? And what are the several rights but the stipulations and specifications of that contract?[7]

It is hard to understand how an authority upon the _Contrat Social_ could make such a statement though in accord with popular opinion.

The social contract has only one stipulation, namely, the complete transference to the community of all the individual’s rights.[8] The individual does not retain one particle of his rights from the moment he enters the state.[9] Everything that he receives of the nature of right he gets from the _volonte generale_, which is the sole judge of its own limits, and ought not to be, and cannot be, restricted by the law of any power. Even property belongs to the individual only by virtue of state concession. The social contract makes the state the master of the goods of its members,[10] and the latter remain in possession only as the trustees of public property.[11] Civil liberty consists simply of what is left to the individual after taking his duties as a citizen into account.[12] These duties can only be imposed by law, and according to the social contract the laws must be the same for all citizens. This is the only restriction upon the sovereign power,[13] but it is a restriction which follows from the very nature of that power, and it carries in itself its own guarantees.[14]

The conception of an original right, which man brings with him into society and which appears as a restriction upon the rights of the sovereign, is specifically rejected by Rousseau. There is no fundamental law which can be binding upon the whole people, not even the social contract itself.[15]

The Declaration of Rights, however, would draw dividing lines between the state and the individual, which the lawmaker should ever keep before his eyes as the limits that have been set him once and for all by “the natural, inalienable and sacred rights of man.”[16]

The principles of the _Contrat Social_ are accordingly at enmity with every declaration of rights. For from these principles there ensues not the right of the individual, but the omnipotence of the common will, unrestricted by law. Taine comprehended better than Janet the consequences of the _Contrat Social_.[17]

The Declaration of August 26, 1789, originated in opposition to the _Contrat Social_. The ideas of the latter work exercised, indeed, a certain influence upon the style of some clauses of the Declaration, but the conception of the Declaration itself must have come from some other source.


[Footnote 7: “Est-il necessaire de prouver, qu’un tel acte ne vient point de Montesquieu, mais de J.-J. Rousseau?… Mais l’acte meme de la declaration est-il autre chose que le contrat entre tous les membres de la communaute, selon les idees de Rousseau? N’est ce pas l’enonciation des clauses et des conditions de ce contrat?”–_Histoire de la science politique, 3me ed._, pp. 457, 458.]

[Footnote 8: “Ces clauses, bien entendues, se reduisent toutes a une seule: savoir l’alienation totale de chaque a.s.socie avec tous ses droits a toute la communaute.”–_Du contrat social_, I, 6.]

[Footnote 9: “De plus, l’alienation se faisant sans reserve, l’union est aussi parfaite qu’elle peut l’etre et nul a.s.socie n’a plus rien a reclamer.” I, 6.]

[Footnote 10: “Car l’etat, a l’egard de ses membres, est maitre de tous leurs biens par le contrat social.” I, 9.]

[Footnote 11: “… Les possesseurs etant consideres comme depositaires du bien public.” I, 9.]

[Footnote 12: “On convient que tout ce que chacun aliene, par le pacte social, de sa puissance, de ses biens, de sa liberte, c’est seulement la partie de tout cela dont l’usage importe a la communaute; mais il faut convenir aussi que le souverain seul est juge de cette importance.” II, 4.]

[Footnote 13: “Ainsi, par la nature du pacte, tout acte de souverainete, c’est-a-dire toute acte authentique de la volonte generale, oblige ou favorise egalement tous les citoyens.” II, 4.]

[Footnote 14: “La puissance souverain n’a nul besoin de garant envers les sujets.” I, 7.]

[Footnote 15: “Il est contre la nature du corps politique que le souverain s’impose une loi qu’il ne puisse enfreindre … il n’y a ni ne peut y avoir nulle espece de loi fundamentale obligatoire pour le corps du peuple, pas meme le contrat social.” I, 7.]

[Footnote 16: Const.i.tution du 3 septembre 1791, t.i.tre premier: “Le pouvoir legislatif ne pourra faire aucune loi qui porte atteinte et mette obstacle a l’exercise de droits naturels et civils consignes dans le present t.i.tre, et garantis par la const.i.tution.”]

[Footnote 17: _Cf._ Taine, _loc. cit._: _L’ancien regime_, pp. 321 _et seq._]



The conception of a declaration of rights had found expression in France even before the a.s.sembling of the States General. It had already appeared in a number of _cahiers_. The _cahier_ of the _Bailliage_ of Nemours is well worth noting, as it contained a chapter ent.i.tled “On the Necessity of a Declaration of the Rights of Man and of Citizens”,[18]

and sketched a plan of such a declaration with thirty articles. Among other plans that in the _cahier des tiers etat_ of the city of Paris has some interest.[19]

In the National a.s.sembly, however, it was Lafayette who on July 11, 1789, made the motion to enact a declaration of rights in connection with the const.i.tution, and he therewith laid before the a.s.sembly a plan of such a declaration.[20]

It is the prevailing opinion that Lafayette was inspired to make this motion by the North American Declaration of Independence.[21] And this instrument is further declared to have been the model that the Const.i.tuent a.s.sembly had in mind in framing its declaration. The sharp, pointed style and the practical character of the American doc.u.ment are cited by many as in praiseworthy contrast to the confusing verbosity and dogmatic theory of the French Declaration.[22] Others bring forward, as a more fitting object of comparison, the first amendments to the const.i.tution of the United States,[23] and even imagine that the latter exerted some influence upon the French Declaration, in spite of the fact that they did not come into existence until after August 26, 1789. This error has arisen from the French Declaration of 1789 having been embodied word for word in the Const.i.tution of September 3, 1791, and so to one not familiar with French const.i.tutional history, and before whom only the texts of the const.i.tutions themselves are lying, it seems to bear a later date.

The Declaration of the Rights of Man and of Citizens Part 3

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Ma.s.sACHUSETTS, XXIII. No subsidy, charge, tax, impost, or duties, ought to be established, fixed, laid or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature.

15. _La societe a le droit de demander compte a tout agent public de son administration._

See above, VIRGINIA, II; further

Ma.s.sACHUSETTS V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are the subst.i.tutes and agents, and are at all times accountable to them.

16. _Toute societe, dans laquelle la garantie des droits n’est pas a.s.suree, ni la separation des pouvoirs determinee, n’a point de const.i.tution._

NEW HAMPSHIRE, III. When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and without such an equivalent, the surrender is void.

Ma.s.sACHUSETTS, x.x.x. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.

17. _La propriete etant un droit inviolable et sacre, nul ne peut en etre prive, si ce n’est lors que la necessite publique, legalement constatee, l’exige evidemment, et sous la condition d’une juste et prealable indemnite._

Ma.s.sACHUSETTS, X. … But no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people…. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.

VERMONT, II. That private property ought to be subservient to public uses, when necessity requires it; nevertheless, whenever any particular man’s property is taken for the use of the public, the owner ought to receive an equivalent in money.


[Footnote 40: _Cf._ English Bill of Rights, 1.]

[Footnote 41: English Bill of Rights, 8.]

[Footnote 42: Magna Charta, 39.]

[Footnote 43: Magna Charta, 20.]

[Footnote 44: English Bill of Rights, 10.]

[Footnote 45: English Bill of Rights, 10.]



The comparison of the American and French declarations shows at once that the setting forth of principles abstract, and therefore ambiguous, is common to both, as is also the pathos with which they are recited.

The French have not only adopted the American ideas, but even the form they received on the other side of the ocean. But in contrast to the diffuseness of the Americans the French are distinguished by a brevity characteristic of their language. Articles 4-6 of the Declaration have the most specific French additions in the superfluous and meaningless definitions of liberty[46] and law. Further, in Articles 4, 6 and 13 of the French text special stress is laid upon equality before the law, while to the Americans, because of their social conditions and democratic inst.i.tutions, this seemed self-evident and so by them is only brought out incidentally. In the French articles the influence of the _Contrat Social_ will have been recognized; but yet it brought out nothing essentially new, or unknown to the American stipulations.

The result that has been won is not without significance for the student of history in pa.s.sing judgment upon the effects of the French Declaration. The American states have developed with their bills of rights into orderly commonwealths in which there has never been any complaint that these propositions brought consequences disintegrating to the state. The disorders which arose in France after the Declaration of the Rights of Man cannot therefore have been brought about by its formulas alone. Much rather do they show what dangers may lie in the too hasty adoption of foreign inst.i.tutions. That is, the Americans in 1776 went on building upon foundations that were with them long-standing. The French, on the other hand, tore up all the foundations of their state’s structure. What was in the one case a factor in the process of consolidation served in the other as a cause of further disturbance.

This was even recognized at the time by sharp-sighted men, such as Lally-Tollendal[47] and, above all, Mirabeau.[48]

But from the consideration of the American bills of rights there arises a new problem for the historian of law: How did Americans come to make legislative declarations of this sort?

To the superficial observer the answer seems simple. The very name points to English sources. The Bill of Rights of 1689, the Habeas Corpus Act of 1679, the Pet.i.tion of Right of 1628, and finally the _Magna Charta libertatum_ appear to be unquestionably the predecessors of the Virginia bill of rights.

a.s.suredly the remembrance of these celebrated English enactments, which the Americans regarded as an inherent part of the law of their land, had a substantial share in the declarations of rights after 1776. Many stipulations from Magna Charta and the English Bill of Rights were directly embodied by the Americans in their lists.

And yet a deep cleft separates the American declarations from the English enactments that have been mentioned. The historian of the American Revolution says of the Virginia declaration that it protested against all tyranny in the name of the eternal laws of man’s being: “The English pet.i.tion of right in 1688 was historic and retrospective; the Virginia declaration came directly out of the heart of nature and announced governing principles for all peoples in all future times.”[49]

The English laws that establish the rights of subjects are collectively and individually confirmations, arising out of special conditions, or interpretations of existing law. Even Magna Charta contains no new right, as Sir Edward, the great authority on English law, perceived as early as the beginning of the seventeenth century.[50] The English statutes are far removed from any purpose to recognize general rights of man, and they have neither the power nor the intention to restrict the legislative agents or to establish principles for future legislation.

According to English law Parliament is omnipotent and all statutes enacted or confirmed by it are of equal value.

The American declarations, on the other hand, contain precepts which stand higher than the ordinary lawmaker. In the Union, as well as in the individual states, there are separate organs for ordinary and for const.i.tutional legislation, and the judge watches over the observance of the const.i.tutional limitations by the ordinary legislative power. If in his judgment a law infringes on the fundamental rights, he must forbid its enforcement. The declarations of rights even at the present day are interpreted by the Americans as practical protections of the minority.[51] This distinguishes them from the “guaranteed rights” of the European states. The American declarations are not laws of a higher kind in name only, they are the creations of a higher lawmaker. In Europe, it is true, the const.i.tutions place formal difficulties in the way of changing their specifications, but almost everywhere it is the lawmaker himself who decides upon the change. Even in the Swiss Confederacy judicial control over the observance of these forms is nowhere to be found, although there, as in the United States, the const.i.tutional laws proceed from other organs than those of the ordinary statutes.

The American bills of rights do not attempt merely to set forth certain principles for the state’s organization, but they seek above all to draw the boundary line between state and individual. According to them the individual is not the possessor of rights through the state, but by his own nature he has inalienable and indefeasible rights. The English laws know nothing of this. They do not wish to recognize an eternal, natural right, but one inherited from their fathers, “the old, undoubted rights of the English people.”

The English conception of the rights of the subject is very clear upon this point. When one looks through the Bill of Rights carefully, one finds but slight mention there of individual rights. That laws should not be suspended, that there should be no dispensation from them, that special courts should not be erected, that cruel punishments should not be inflicted, that jurors ought to be duly impanelled and returned, that taxes should not be levied without a law, nor a standing army kept without consent of Parliament, that parliamentary elections should be free, and Parliament be held frequently–all these are not rights of the individual, but duties of the government. Of the thirteen articles of the Bill of Rights only two contain stipulations that are expressed in the form of rights of the subject,[52] while one refers to freedom of speech in Parliament. When nevertheless all the stipulations of the Bill of Rights are therein designated as rights and liberties of the English people,[53] it is through the belief that restriction of the crown is at the same time right of the people.

This view grew directly out of the mediaeval conception of the Teutonic state. While the ancient state appears at the beginning of its history as [Greek: polis] or _civitas_, as an undivided community of citizens, the monarchical Teutonic state is from the beginning dualistic in form,–prince and people form no integral unity, but stand opposed to each other as independent factors. And so the state in the conception of the time is substantially a relation of contract between the two. The Roman and Canonical theory of law under the influence of ancient traditions even as early as the eleventh century attempts to unite the two elements in that, upon the basis of a contract, it either makes the people part with their rights to the prince, and accordingly makes the government the state, or it considers the prince simply as the authorized agent of the people and so makes the latter and the state identical. The prevailing opinion in public law, however, especially since the rise of the state of estates, sees in the state a double condition of contract between prince and people. The laws form the content of this compact. They established, therefore, for the prince a right of demanding lawful obedience, and for the people of demanding adherence to the limitations placed by the laws. The people accordingly have a right to the fulfilment of the law by the prince. Thus all laws create personal rights of the people, and the term people is thought of in a confused way as referring to the individuals as well as to the whole–_singuli et universi_.[54] From this point of view it is a right of the people that Parliament should be frequently summoned, that the judge should inflict no cruel punishments, and however else the declarations of the English charters may read.

This conception of law as two-sided, establishing rights for both elements of the state, runs through all the earlier English history. The right which is conferred by law from generation to generation, it becomes hereditary and therefore acquirable by birth as one of the people. Under Henry VI. it is declared of the law: “La ley est le plus haute inheritance que le roy ad; car par la ley il meme et toutes ses sujets sont rules, et si la ley ne fuit, nul roy et nul inheritance sera.”[55] And in the Pet.i.tion of Right Parliament makes the appeal that the subjects have inherited their freedom through the laws.[56] The laws, as the Act of Settlement expresses it, are the “birthright of the people”.[57]

And so we find only ancient “rights and liberties” mentioned in the English laws of the seventeenth century. Parliament is always demanding simply the confirmation of the “laws and statutes of this realm”, that is, the strengthening of the existing relations between king and people.

Of the creation of new rights there is not a word in all these doc.u.ments. Consequently there is no reference whatever to the important fundamental rights of religious liberty, of a.s.sembling, of liberty of the press, or of free movement. And down to the present day the theory of English law does not recognize rights of this kind, but considers these lines of individual liberty as protected by the general principle of law, that any restraint of the person can only come about through legal authorization.[58] According to the present English idea the rights of liberty rest simply upon the supremacy of the law,–they are law, not personal rights.[59] The theory, founded in Germany by Gerber, and defended by Laband and others, according to which the rights of liberty are nothing but duties of the government, sprang up in England, without any connection with the German teaching, from the existing conditions after the conception of the public rights of the individual as natural rights, which was based on Locke and Blackstone, had lost its power.

But with Locke even this conception stands in close connection with the old English ideas. When Locke considers property–in which are included life and liberty–as an original right of the individual existing previous to the state, and when he conceives of the state as a society founded to protect this right, which is thus transformed from a natural to a civil right, he by no means ascribes definite fundamental rights to the man living in the state, but rather places such positive restrictions upon the legislative power as follow from the purposes of the state.[60] When closely examined, however, these restrictions are nothing else than the most important stipulations of the Bill of Rights, which was enacted the year before the _Two Treatises on Government_ appeared.[61]

Blackstone was the first (1765) to found his doctrine of the absolute rights of persons upon the idea of the personal rights of the individual. Security, liberty, and property are the absolute rights of every Englishman, which from their character are nothing else than the natural liberty that remains to the individual after deducting the legal restraints demanded by the common interest.[62] Laws appear likewise as protectors of these rights,–the whole const.i.tution of Parliament, the limitation of the royal prerogative, and along with these the protection of the law courts, the right of pet.i.tion, and the right to carry arms are treated, exactly in the manner of the Bill of Rights, as rights of Englishmen, and indeed as subordinate rights to a.s.sist in guarding the three rights.[63] But in spite of his fundamental conception of a natural right, the individual with rights was for Blackstone not man simply, but the English subject.[64]

The American declarations of rights, on the other hand, begin with the statement that all men are born free and equal, and these declarations speak of rights that belong to “every individual”, “all mankind” or “every member of society”. They enumerate a much larger number of rights than the English declarations, and look upon these rights as innate and inalienable. Whence comes this conception in American law?

It is not from the English law. There is then nothing else from which to derive it than the conceptions of natural rights of that time. But there have been theories of natural rights ever since the time of the Greeks, and they never led to the formulation of fundamental rights. The theory of natural rights for a long time had no hesitation in setting forth the contradiction between natural law and positive law without demanding the realization of the former through the latter. A pa.s.sage from Ulpian is drawn upon in the _Digests_, which declares all men to be equal according to the law of nature, but slavery to be an inst.i.tution of the civil law.[65] The Romans, however, in spite of all mitigation of slave laws, never thought of such a thing as the abolition of slavery. The natural freedom of man was set forth by many writers during the eighteenth century as compatible with lawful servitude. Even Locke, for whom liberty forms the very essence of man, in his const.i.tution for North Carolina sanctioned slavery and servitude.

Literature alone never produces anything, unless it finds in the historical and social conditions ground ready for its working. When one shows the literary origin of an idea, one has by no means therewith discovered the record of its practical significance. The history of political science to-day is entirely too much a history of the literature and too little a history of the inst.i.tutions themselves. The number of new political ideas is very small; the most, at least in embryo, were known to the ancient theories of the state. But the inst.i.tutions are found in constant change and must be seized in their own peculiar historical forms.


[Footnote 46: It harks back finally to the old definition of Florentinus L. 4 D. 1, 5: “Libertas est naturalis facultas eius, quod cuique facere libet, nisi si quid vi aut jure prohibetur.”]

[Footnote 47: _Arch. parl._ VIII, p. 222.]

[Footnote 48: _Ibid._, pp. 438 and 453.]

[Footnote 49: Bancroft, VII, p. 243.]

[Footnote 50: _Cf._ Blackstone, _Commentaries on the Laws of England_, I, 1, p. 127. (Edited by Kerr, London, 1887, I, p. 115.)]

[Footnote 51: Upon this point, _cf._ Cooley, _Const.i.tutional Limitations_, 6th edition, Boston, 1890, Chap. VII. Even if the stipulation contained in the bills of rights that one can be deprived of his property only “by the law of the land” should not be embodied in the const.i.tution by a state, a law transgressing it would be void by virtue of the fundamental limitations upon the competence of the legislatures.

_Loc. cit._, p. 208.]