The Declaration of the Rights of Man and of Citizens Part 4

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[Footnote 52: The right to address pet.i.tions to the king (5), and the right of Protestant subjects to carry arms for their own defense suitable to their condition (7).]

[Footnote 53: “And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties.”]

[Footnote 54: The old English charters put forward as possessors of the “_jura et libertates_” now the “_homines in regno nostro_”, now the _regnum_ itself. The Pet.i.tion of Right speaks of the “rights and liberties” of the subjects, but they are also characterized as “the laws and free customs of this realm”.]

[Footnote 55: Year Books XIX, Gneist, _Englische Verfa.s.sungsgeschichte_, p. 450.]

[Footnote 56: “By which the statutes before-mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom.” Gardiner, _The Const.i.tutional Doc.u.ments of the Puritan Revolution_, 1889, pp. 1, 2.]

[Footnote 57: “And whereas the laws of England are the birthright of the people thereof.” Act of Settlement IV, Stubbs, _Select Charters_, 7th ed., 1890, p. 531. Birthright = right by birth, the rights, privileges or possessions to which one is ent.i.tled by birth; inheritance, patrimony (specifically used of the special rights of the first-born). Murray, _A New English Dictionary on Historical Principles_, _s. h. v._]

[Footnote 58: _Cf._ the instructive work of Dicey, _Introduction to the Study of the Law of the Const.i.tution_, 3d ed., 1889, pp. 171 _et seq._]

[Footnote 59: “Sie sind objectives, nicht subjectives Recht.” Dicey, pp.

184 _et seq._, 193 _et seq._, 223 _et seq._, etc. Dicey treats the whole doctrine of the rights of liberty in the section “The Rule of Law.”

Individual liberty according to him is in England simply the correlative of only permitting the restriction of the individual through laws.]

[Footnote 60: This is treated in the chapter “Of the Extent of the Legislative Power,” _On Civil Government_, XI.]

[Footnote 61: _Cf._ _On Civil Government_, XI, — 142.]

[Footnote 62: Political liberty is no other than national liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public. _Loc. cit._, p. 125 (113).]

[Footnote 63: _Loc. cit._, pp. 141 _et seq._ (127 _et seq._).]

[Footnote 64: _Cf._ _loc. cit._, pp. 127 (114), 144 (130).]

[Footnote 65: L. 32 D. de R.J. Exactly so the kindred doctrines of the Stoics earlier in Greece had not the least legal success.]

CHAPTER VII.

RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIES THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL RIGHT OF MAN.

The democratic idea, upon which the const.i.tution of the Reformed Church is based, was carried to its logical conclusion in England toward the end of the sixteenth century, and first of all by Robert Browne and his followers. They declared the Church, which was identical with the parish, to be a community of believers who had placed themselves under obedience to Christ by a compact with G.o.d, and they steadfastly recognized as authoritative only the will of the community at the time being, that is, the will of the majority.[66] Persecuted in England Brownism transformed itself on Dutch soil, especially through the agency of John Robinson, into Congregationalism, in which the earliest form of the Independent movement made its appearance. The principles of Congregationalism are first complete separation of Church and State and then the autonomy of each separate parish,–as a pet.i.tion addressed to James I. in 1616 expresses it: the right is exercised “of spiritual administration and government in itself and over itself by the common and free consent of the people, independently and immediately under Christ.”[67]

This sovereign individualism in the religious sphere led to practical consequences of extraordinary importance. From its principles there finally resulted the demand for, and the recognition of, full and unrestricted liberty of conscience, and then the a.s.serting of this liberty to be a right not granted by any earthly power and therefore by no earthly power to be restrained.

But the Independent movement could not confine itself to ecclesiastical matters, it was forced by logical necessity to carry its fundamental doctrines into the political sphere. As the Church, so it considered the state and every political a.s.sociation as the result of a compact between its original sovereign members.[68] This compact was made indeed in pursuance of divine commandment, but it remained always the ultimate legal basis of the community. It was concluded by virtue of the individual’s original right and had not only to insure security and advance the general welfare, but above all to recognize and protect the innate and inalienable rights of conscience. And it is the entire people that specifically man for man concluded this compact, for by it alone could every one be bound to respect the self-created authority and the self-created law.

The first indications of these religious-political ideas can be traced far back, for they were not created by the Reformation. But the practice which developed on the basis of these ideas was something unique. For the first time in history social compacts, by which states are founded, were not merely demanded, they were actually concluded.

What had until then slumbered in the dust-covered ma.n.u.scripts of the scholar became a powerful, life-determining movement. The men of that time believed that the state rested upon a contract, and they put their belief into practice. More recent theory of public law with only an imperfect knowledge of these events frequently employed them as examples of the possibility of founding a state by contract, without suspecting that these contracts were only the realization of an abstract theory.

On October 28, 1647, there was laid before the a.s.sembled Council of Cromwell’s army a draft, worked out by the Levellers, of a new const.i.tution for England,[69] which later, greatly enlarged and modified,[70] was delivered to Parliament with the request that it be laid before the entire English people for signature.[71] In this remarkable doc.u.ment the power of Parliament was set forth as limited in a manner similar to that later adopted by the Americans, and particulars were enumerated which in future should not lie within the legislative power of the people’s representatives. The first thing named was matters of religion, which were to be committed exclusively to the command of conscience.[72] They were reckoned among the inherent rights, the “native rights”, which the people were firmly resolved to maintain with their utmost strength against all attacks.[73]

Here for the first and last time in England was an inherent right of religious liberty a.s.serted in a proposed law. This right is recognized to-day in England in legal practice, but not in any expressly formulated principle.[74]

The religious conditions in England’s North American colonies developed differently.

The compact is celebrated which the persecuted and exiled Pilgrim Fathers concluded on board the Mayflower, November 11, 1620, before the founding of New Plymouth. Forty-one men on that occasion signed an act in which, for the glory of G.o.d, the advancement of the Christian faith, and the honor of their king and country, they declare their purpose to found a colony. They thereupon mutually promised one another to unite themselves into a civil body politic, and, for the maintenance of good order and accomplishment of their proposed object, to make laws, to appoint officers, and to subject themselves to these.[75]

Therewith began the series of “Plantation Covenants” which the English settlers, according to their ecclesiastical and political ideas, believed it necessary to make on founding a new colony. Here they are only to be considered in their connection with religious liberty.

In 1629 Salem, the second colony in Ma.s.sachusetts, was founded by Puritans. Unmindful of the persecutions they themselves had suffered in their native land, they turned impatiently against such as did not agree with them in their religious ideas. Roger Williams, a young Independent, landed in Ma.s.sachusetts in 1631 and was at once chosen by the community in Salem to be its minister. But he preached complete separation of Church and State, and demanded absolute religious liberty, not only for all Christians but also for Jews, Turks, and heathen. They should have in the state equal civil and political rights with believers. A man’s conscience belongs exclusively to him, and not to the state.[76] Exiled and in danger, Williams forsook Salem and with a faithful few founded, 1636, the city of Providence in the country of the Narragansett Indians, where all who were persecuted on account of their religion should find a refuge. In the original compact the seceders promised obedience to laws determined by a majority of themselves, but “only in civil things”–religion was to be in no way a subject of legislation.[77] Here for the first time was recognized the most unrestricted liberty of religious conviction, and that by a man who was himself glowing with religious feeling.

Nineteen settlers from Providence in 1638 founded Aquedneck, the second colony in the present state of Rhode Island, after having concluded a most remarkable compact: “We whose names are underwritten do here solemnly, in the presence of Jehovah, incorporate ourselves into a Bodie Politik, and as he shall help, will submit our persons, lives and estates unto our Lord Jesus Christ, the King of Kings and Lord of Lords, and to all those perfect and absolute laws of his given us in his holy word of truth, to be guided and judged hereby.–Exod. xxiv, 3, 4; 2 Chron. xi, 3; 2 Kings xi, 17.”[78]

But such as did not go so far as Roger Williams in the recognition of liberty of conscience were yet dominated by the idea of the necessity of a social compact in founding a new colony. In the Fundamental Orders of Connecticut, a colony founded by Puritans who also had emigrated from Ma.s.sachusetts, the settlers in 1638 declared that they united themselves in a body politic in pursuance of the word of G.o.d in order to guard the liberty of the Gospel and the church discipline to which they were accustomed, and in order also in civil affairs to be ruled according to the laws.[79] In the opposition in which they stood to the religious conditions in England, the Puritans, although themselves little inclined to toleration, proceeded invariably upon the idea that their state had first of all to realize religious liberty, which was for them the free exercise of their own religious convictions.

The idea that state and government rested upon a compact–so significant for the development of the American conceptions of individual liberty–was strengthened by the force of historical circ.u.mstances. A handful of men went forth to found new communities. They began their work of civilization scattered over wide stretches in the loneliness of the primeval forest.[80] And so they believed that it was possible to live outside of the state, in a condition of nature, and that when they stepped out of that condition of nature they did it of their own free will and were not constrained by any earthly power. With their small numbers, representation was at first unnecessary, and the decisions were reached in the town meetings of all belonging to the community,–the form of a direct democracy grew naturally out of the given conditions and strengthened the conviction, which does not correspond to the old English conception, that the sovereignty of the people is the basis of legislation and of government. To a generation that could point to such beginnings for their state, the political ideas which later animated the men of 1776 seemed to bear their surety in themselves: they were “self-evident”, as it reads in the Declaration of Independence.

The inherent fundamental right of religious liberty, for which Roger Williams had striven so earnestly, found also in the seventeenth century its official recognition in law, first in the laws of 1647 of Rhode Island, and then in the charter which Charles II. granted the colony of Rhode Island and Providence Plantations in 1663.[81] It was therein ordered in fulfilment of the colonists’ request, in a manner ever memorable, that in future in the said colony no person should be molested, punished or called in question for any differences of opinion in matters of religion; but that all persons at all times should have full liberty of conscience, so long as they behaved themselves peaceably and did not misuse this liberty in licentiousness or profaneness, nor to the injury or disturbance of others.[82] Thus a colony was granted that which in the mother-country at the time was contested to the utmost. Similar principles are found for the first time in Europe in the Practice of Frederick the Great in Prussia. But the principles of religious liberty were recognized to a greater or less extent in other colonies also. Catholic Maryland in 1649 granted freedom in the exercise of religion to every one who acknowledged Jesus Christ.[83] Also that remarkable const.i.tution which Locke prepared for North Carolina and that went into force there in 1669, and which agrees so little with the tenets of his _Two Treatises on Government_, is based upon the principle not, it is true, of full equality of rights, but of toleration of Dissenters, and also of Jews and heathen.[84] It was permitted every seven persons of any religion to form a church or communion of faith.[85] No compulsion in matters of religion was exercised, except that every inhabitant when seventeen years of age had to declare to which communion he belonged and to be registered in some church, otherwise he stood outside of the protection of the law.[86] All violence toward any religious a.s.sembly was strictly prohibited.[87] It was not the principle of political liberty that lay on Locke’s heart, but the opening of a way to full religious liberty. In spite of the fact that in his treatise _On Civil Government_ there is not a word upon the right of conscience, which he had so energetically defended in his celebrated _Letters on Toleration_, the const.i.tution of North Carolina shows that in his practical plans it held the first place. And so with Locke also liberty of conscience was brought forward as the first and most sacred right, overshadowing all others. This philosopher, who held freedom to be man’s inalienable gift from nature, established servitude and slavery under the government he organized without hesitation, but religious toleration he carried through with great energy in this new feudal state.

Of the other colonies New Jersey had proclaimed extensive toleration in 1664, and New York in 1665.[88] In the latter, which had already declared under Dutch rule in favor of liberal principles in religious matters, it was ordered in 1683 that no one who believed on Jesus Christ should on any pretext whatever be molested because of difference of opinion. In the same year William Penn conferred a const.i.tution with democratic basis upon the colony granted to him by the Crown and which he had named after his father Pennsylvania, in which it was declared that no one who believed on G.o.d should in any way be forced to take part in any religious worship or be otherwise molested,[89] and in the const.i.tution, which Penn later (1701) established and which remained in force until 1776, he emphasized above all that even when a people were endowed with the greatest civil liberties they could not be truly happy, unless liberty of conscience were recognized,[90] and at the close he solemnly promised for himself and his heirs that the recognition of this liberty, which he had declared, should remain forever inviolable and that the wording of the article should not be changed in any particular.[91] The const.i.tutional principle was thus given at once the force of a _lex in perpetuum valitura_.

In 1692 Ma.s.sachusetts received a charter from William III. in which, following the example of the Toleration Act of 1689, full liberty was granted to all Christians except Catholics;[92] and Georgia was given a similar law in 1732 by George II.[93]

Thus the principles of religious liberty to a greater or less extent acquired const.i.tutional recognition in America. In the closest connection with the great religious political movement out of which the American democracy was born, there arose the conviction that there exists a right not conferred upon the citizen but inherent in man, that acts of conscience and expressions of religious conviction stand inviolable over against the state as the exercise of a higher right.

This right so long suppressed is no “inheritance”, is nothing handed down from their fathers, as the rights and liberties of Magna Charta and of the other English enactments,–not the State but the Gospel proclaimed it.

What in Europe at that time and even much later had received official expression only in scanty rudiments,[94] and aside from that was only a.s.serted in the literature of the great intellectual movement which began in the seventeenth century and reached its height in the clearing-up epoch of the century following, was in Rhode Island and other colonies a recognized principle of the state by the middle of the seventeenth century. The right of the liberty of conscience was proclaimed, and with it came the conception of a universal right of man. In 1776 this right was designated by all the bills of rights, mostly in emphatic form and with precedence over all others, as a natural and inherent right.[95]

The character of this right is emphasized by the bill of rights of New Hampshire, which declares that among the natural rights some are inalienable because no one can offer an equivalent for them. Such are the rights of conscience.[96]

The idea of legally establishing inalienable, inherent and sacred rights of the individual is not of political but religious origin. What has been held to be a work of the Revolution was in reality a fruit of the Reformation and its struggles. Its first apostle was not Lafayette but Roger Williams, who, driven by powerful and deep religious enthusiasm, went into the wilderness in order to found a government of religious liberty, and his name is uttered by Americans even to-day with the deepest respect.

FOOTNOTES:

[Footnote 66: Weingarten, _Die Revolutionskirchen Englands_, p. 21.]

[Footnote 67: _Ibid._, p. 25.]

[Footnote 68: The connection of the Puritan-Independent doctrine of the state-compact with the Puritan idea of church covenants is brought out by Borgeaud, p. 9. Weingarten (p. 288) remarks forcibly of the Independents, “The right of every separate religious community freely and alone to decide and conduct their affairs was the foundation of the doctrine of the sovereignty of the people, which they introduced into the political consciousness of the modern world.”]

[Footnote 69: First reproduced in Gardiner, _History of the Great Civil War_, III, London, 1891, pp. 607-609.]

[Footnote 70: The final text in Gardiner, _Const.i.tutional Doc.u.ments of the Puritan Revolution_, Oxford, 1889, pp. 270-282.]

[Footnote 71: Gardiner, _History_, III, p. 568.]

[Footnote 72: “That matters of religion and the ways of G.o.d’s worship are not at all entrusted by us to any human power.” Gardiner, _History_, p. 608.]

[Footnote 73: _Cf._ the text in Gardiner, _History_, p. 609.]

[Footnote 74: _Cf._ Dicey, _loc. cit._, pp. 229, 230, where several laws are mentioned restricting the liberty of expressing religious opinion which are, however, obsolete, though they have never been formally repealed.]

The Declaration of the Rights of Man and of Citizens Part 2

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CHAPTER V.

COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS.

ART. 1. _Les hommes naissent et demeurent libres et egaux en droits. Les distinctions sociales ne peuvent etre fondees que sur l’utilite commune._

2. _Le but de toute a.s.sociation politique est la conservation des droits naturels et imprescriptibles de l’homme. Ces droits sont la liberte, la propriete, la surete et la resistance a l’oppression._

VIRGINIA, I. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

VIRGINIA, IV. That no man, or set of men, are ent.i.tled to exclusive or separate emoluments or privileges from the community, but in consideration of public services.

Ma.s.sACHUSETTS, Preamble to the Const.i.tution. The end of the inst.i.tution, maintenance, and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life.

MARYLAND, IV. The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish and destructive of the good and happiness of mankind.

3. _Le principe de toute souverainete reside essentiellement dans la nation. Nul corps, nul individu ne peut exercer d’autorite qui n’en emane express.e.m.e.nt._

VIRGINIA, II. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

4. _La liberte consiste a pouvoir faire tout ce qui ne nuit pas a autrui; aussi l’exercise des droits naturels de chaque homme n’a de bornes que celles qui a.s.surent aux autres membres de la societe la jouissance de ces memes droits. Ces bornes ne peuvent etre determinees que par la loi._

Ma.s.sACHUSETTS, Preamble. The body-politic is formed by a voluntary a.s.sociation of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.

Ma.s.sACHUSETTS, X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws.

5. _La loi n’a le droit de defendre que les actions nuisibles a la societe. Tout ce qui n’est pas defendu par la loi ne peut etre empeche et nul ne peut etre contraint a faire ce qu’elle n’ordonne pas._

Ma.s.sACHUSETTS, XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character.

NORTH CAROLINA, XIII. That every freeman, restrained of his liberty, is ent.i.tled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful; and that such remedy ought not to be denied or delayed.

VIRGINIA, VII. 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.[40]

6. _La loi est l’expression de la volonte generale. Tous les citoyens ont le droit de concourir personnellement ou par leurs representants a sa formation. Elle doit etre la meme pour tous, soit qu’elle protege, soit qu’elle punisse. Tous les citoyens etant egaux a ses yeux, sont egalement admissibles a toutes dignites, places et emplois publics, selon leur capacite, et sans autre distinction que celle de leurs vertus et leurs talents._

MARYLAND, V. That the right in the people to partic.i.p.ate in the Legislature, is the best security of liberty, and the foundation of all free government.

Ma.s.sACHUSETTS, IX. All elections ought to be free;[41] and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.

NEW HAMPSHIRE, XII. Nor are the inhabitants of this State controllable by any other laws than those to which they or their representative body have given their consent.

7. _Nul homme ne peut etre accuse, arrete, ni detenu que dans les cas determines par la loi et selon les formes qu’elle a prescrites. Ceux qui sollicitent, expedient, executent ou font executer des ordres arbitraires, doivent etre punis; mais tout citoyen appele ou saisi en vertu de la loi doit obeir a l’instant; il se rend coupable par sa resistance._

Ma.s.sACHUSETTS, XII. No subject shall be held to answer for any crimes or no offence until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself; and every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.[42]

VIRGINIA, X. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

8. _La loi ne doit etablir que des peines strictement necessaires et nul ne peut etre puni qu’en vertu d’une loi etablie et promulguee anterieurement au delit et legalement appliquee._

NEW HAMPSHIRE, XVIII. All penalties ought to be proportioned to the nature of the offence.[43]

MARYLAND, XIV. That sanguinary laws ought to be avoided, as far as is consistent with the safety of the State; and no law, to inflict cruel and unusual pains and penalties, ought to be made in any case, or at any time hereafter.[44]

MARYLAND, XV. That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no _ex post facto_ law ought to be made.

9. _Tout homme etant presume innocent jusqu’ a ce qu’il ait ete declare coupable, s’il est juge indispensable de l’arreter, toute rigueur qui ne serait pas necessaire pour s’a.s.surer de sa personne doit etre severement reprimee par la loi._

_Cf._ above, Ma.s.sACHUSETTS, XII; further

Ma.s.sACHUSETTS, XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.

Ma.s.sACHUSETTS, XXVI. No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines[45] …

10. _Nul doit etre inquiete pour ses opinions, meme religieuses, pourvu que leur manifestation ne trouble pas l’ordre public etabli par la loi._

NEW HAMPSHIRE, V. Every individual has a natural and unalienable right to worship G.o.d according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested or restrained in his person, liberty or estate for worshipping G.o.d, in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments or persuasion; provided he doth not disturb the public peace, or disturb others, in their religious worship.

11. _La libre communication des pensees et des opinions est un des droits les plus precieux de l’homme; tout citoyen peut donc parler, ecrire, imprimer librement sauf a repondre de l’abus de cette liberte dans les cas determines par la loi._

VIRGINIA, XII. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.

PENNSYLVANIA, XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments.

12. _La garantie des droits de l’homme et du citoyen necessite une force publique. Cette force est donc inst.i.tuee pour l’avantage de tous, et non pour l’utilite particuliere de ceux auxquels elle est confiee._

PENNSYLVANIA, V. That government is, or ought to be, inst.i.tuted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or sett of men, who are a part only of that community.

13. _Pour l’entretien de la force publique et pour les depenses d’administration, une contribution commune est indispensable; elle doit etre egalement repartie entre tous les citoyens en raison de leurs facultes._

Ma.s.sACHUSETTS, X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary.

14. _Tous les citoyens ont le droit de constater, par eux memes ou par leur representants, la necessite de la contribution publique, de la consentir librement, d’en suivre l’emploi, et d’en determiner la qualite, l’a.s.siette, le recouvrement et la duree._

The Declaration of the Rights of Man and of Citizens Part 6

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[Footnote 98: _Cf._ Kent, I, pp. 612 _et seq._; Stevens, _loc. cit._, pp. 208 _et seq._ They are universally designated to-day in America as “bills of rights”. Their example undoubtedly influenced the declarations of 1776 and those after.]

[Footnote 99: Borgeaud, p. 27, cites a treatise by John Wyse as having had great influence in the democratizing of ideas in Ma.s.sachusetts. This man, whose name was John Wise, has done nothing else than take Pufendorf’s theories as the basis of his work, as he himself specifically declares. _Cf._ J. Wise, _A Vindication on the Government of New England Churches_, Boston, 1772, p. 22.]

[Footnote 100: Bancroft, IV, pp. 145, 146.]

[Footnote 101: _Cf._ John Adams, _Works_, X, Boston, 1856, p. 293.]

[Footnote 102: _a.n.a.lysis of the Laws of England_, Chap. 4.]

[Footnote 103: It formed the basis of Blackstone’s later _Commentaries_.]

[Footnote 104: _Cf._ Otis, _The Rights of the British Colonies a.s.serted and proved_, 1764, reprinted London, p. 106.]

[Footnote 105: _Cf._ Wells, _The Life and Public Services of Samuel Adams_, I, Boston, 1865, pp. 502-507; Laboulaye, II, p. 171.]

[Footnote 106: The entire text reproduced in Story, _Commentaries on the Const.i.tution of the United States_, 3d ed., I, pp. 134 _et seq._]

[Footnote 107: The heading of the bill of rights reads: “A declaration of rights made by the representatives of the good people of Virginia, a.s.sembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government.”]

CHAPTER IX.

THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT.

In conclusion there remains still one question to answer. Why is it that the doctrine of an original right of the individual and of a state compact, arising as far back as the time of the Sophists in the ancient world, further developed in the mediaeval theory of Natural Law, and carried on by the currents of the Reformation,–why is it that this doctrine advanced to epoch-making importance for the first time in England and her colonies? And in general, in a thoroughly monarchical state, all of whose inst.i.tutions are inwardly bound up with royalty and only through royalty can be fully comprehended, how could republican ideas press in and change the structure of the state so completely?

The immediate cause thereof lies clearly before us. The antagonism between the dynasty of the Stuarts, who came from a foreign land and relied upon their divine right, and the English national conceptions of right, and also the religious wars with royalty in England and Scotland, seem to have sufficiently favored the spreading of doctrines which were able to arouse an energetic opposition. Yet similar conditions existed in many a Continental state from the end of the sixteenth to the middle of the seventeenth century. There, too, arose a strong opposition of the estates to royalty which was striving more and more towards absolutism, fearful religious wars broke out and an extensive literature sought with great energy to establish rights of the people and of the individual over against the rulers. The revolutionary ideas on the continent led it is true in France to regicide, but there was nowhere an attempt made at a reconstruction of the whole state system. Locke’s doctrines of a Law of Nature appear to have had no influence at all outside of England. The Continental doctrines of natural law played their important part for the first time at the end of the eighteenth century in the great social transformation of the French Revolution.

It was not without result that England in distinction from the Continent had withstood the influence of the Roman Law. The English legal conceptions have by no means remained untouched by the Roman, but they have not been nearly so deeply influenced by them as the Continental.

The public law especially developed upon an essentially Teutonic basis, and the original Teutonic ideas of right have never been overgrown with the later Roman conceptions of the state’s omnipotence.

The Teutonic state, however, in distinction from the ancient, so far as the latter is historically known to us, rose from weak beginnings to increasing power. The competence of the Teutonic state was in the beginning very narrow, the individual was greatly restricted by his family and clan, but not by the state. The political life of the Middle Ages found expression rather in a.s.sociations than in a state which exhibited at first only rudimentary forms.

At the beginning of modern times the power of the state became more and more concentrated. This could happen in England all the easier because the Norman kings had already strongly centralized the administration.

As early as the end of the sixteenth century Sir Thomas Smith could speak of the unrestricted power of the English Parliament,[108] which c.o.ke a little later declared to be “absolute and transcendent”.[109]

But this power was thought of by Englishmen as unlimited only in a nominal legal sense. That the state, and therefore Parliament and the King have very real restrictions placed upon them has been at all times in England a live conviction of the people.

Magna Charta declares that the liberties and rights conceded by it are granted “_in perpetuum_”.[110] In the Bill of Rights it was ordained that everything therein contained should “remain the law of this realm forever”.[111] In spite of the nominal omnipotence of the state a limit which it shall not over-step is specifically demanded and recognized in the most important fundamental laws.

In these nominally legal but perfectly meaningless stipulations, the old Teutonic legal conception of the state’s limited sphere of activity finds expression.

The movement of the Reformation was also based on the idea of the restriction of the state. Here, however, there entered the conception of a second restriction which was conditioned by the entire historical development. The mediaeval state found restrictions not only in the strength of its members, but also in the sphere of the church. The question as to how far the state’s right extended in spiritual matters could only be fully raised after the Reformation, because through the Reformation those limits which had been fixed in the Middle Ages again became disputable. The new defining of the religious sphere and the withdrawal of the state from that sphere were also on the lines of necessary historical development.

So the conception of the superiority of the individual over against the state found its support in the entire historical condition of England in the seventeenth century. The doctrines of a natural law attached themselves to the old conceptions of right, which had never died, and brought them out in new form.

The same is true of the theories that arose on the Continent. Since the predominance of the historical school, one is accustomed to look upon the doctrines of a natural law as impossible dreaming. But an important fact is thereby overlooked, that no theory, no matter how abstract it may seem, which wins influence upon its time can do so entirely outside of the field of historical reality.

An insight into these historical facts is of the greatest importance for a correct legal comprehension of the relation of the state and the individual. There are here two possibilities, both of which can be logically carried out. According to the one the entire sphere of right of the individual is the product of state concession and permission.

According to the other the state not only engenders rights of the individual, but it also leaves the individual that measure of liberty which it does not itself require in the interest of the whole. This liberty, however, it does not create but only recognizes.

The first conception is based upon the idea of the state’s omnipotence as it was most sharply defined in the absolutist doctrines of the sixteenth and seventeenth centuries. Its extreme consequence has been drawn by the poet in his question of law:

“Jahrelang schon bedien’ ich mich meiner Nase zum Riechen; Hab’ ich denn wirklich an sie auch ein erweisliches Recht?”[112]

The second theory on the other hand is that of the Teutonic conception of right corresponding to the historical facts of the gradual development of the state’s power. If natural right is identical with non-historical right, then the first doctrine is for the modern state that of natural right, the second that of historical right. However much the boundaries of that recognized liberty have changed in the course of time, the consciousness that such boundaries existed was never extinguished in the Teutonic peoples even at the time of the absolute state.[113]

This liberty accordingly was not created but recognized, and recognized in the self-limitation of the state and in thus defining the intervening s.p.a.ces which must necessarily remain between those rules with which the state surrounds the individual. What thus remains is not so much a right as it is a condition. The great error in the theory of a natural right lay in conceiving of the actual condition of liberty as a right and ascribing to this right a higher power which creates and restricts the state.[114]

At first glance the question does not seem to be of great practical significance, whether an act of the individual is one directly permitted by the state or one only indirectly recognized. But it is not the task of the science of law merely to train the judge and the administrative officer and teach them to decide difficult cases. To recognize the true boundaries between the individual and the community is the highest problem that thoughtful consideration of human society has to solve.

FOOTNOTES:

[Footnote 108: “The most high and absolute power of the realm of England consisteth in the Parliament … all that ever the people of Rome might do, either in _centuriatis comitiis_ or _tributis_, the same may be done by the Parliament of England, which representeth and hath the power of the whole realm, both the head and the body.” _The Commonwealth of England_, 1589, Book II, reprinted in Prothero, _Select Statutes and Doc.u.ments of Elizabeth and James I._, Oxford, 1894, p. 178.]

[Footnote 109: 4 _Inst._ p. 36.]

[Footnote 110: Art. 63. Stubbs, p. 306.]

[Footnote 111: Art. 11. Stubbs, p. 527.]

[Footnote 112:

For years I have used my nose to smell with, Have I then really a provable right to it?]

[Footnote 113: The idea of all individual rights of liberty being the product of state concession has been recently advocated by Tezner, _Grunhuts Zeitschrift fur Privat-und offentliches Recht_, XXI, pp. 136 _et seq._, who seeks to banish the opposing conception to the realm of natural right. The decision of such important questions can only be accomplished by careful historical a.n.a.lysis, which will show different results for different epochs,–that, for example, the legal nature of liberty is entirely different in the ancient state and in the modern.

Legal dialectics can easily deduce the given condition with equally logical acuteness from principles directly opposed to one another. The true principle is taught not by jurisprudence but by history.]

[Footnote 114: _Cf._ more explicitly on this, Jellinek, _loc. cit._, pp.

43, 89 _et seq._]

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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.

1526.]

[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, t.i.tel 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.]

CHAPTER VIII.

THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF CITIZENS DURING THE AMERICAN REVOLUTION.

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 princ.i.p.al 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.

FOOTNOTES:

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

611.]

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The Declaration of the Rights of Man and of Citizens.

by Georg Jellinek.

CHAPTER I.

THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26, 1789, AND ITS SIGNIFICANCE.

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.

FOOTNOTES:

[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.]

CHAPTER II.

ROUSSEAU’S _CONTRAT SOCIAL_ WAS NOT THE SOURCE OF THIS DECLARATION.

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.

FOOTNOTES:

[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 pa.s.se 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._]

CHAPTER III.

THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES OF THE NORTH AMERICAN UNION WERE ITS MODELS.

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.

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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.

FOOTNOTES:

[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.]

CHAPTER VI.

THE CONTRAST BETWEEN THE AMERICAN AND ENGLISH DECLARATIONS OF RIGHTS.

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 c.o.ke, 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 pa.s.ses 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 princ.i.p.al 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.

FOOTNOTES:

[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.]