Title: Erklärung der Menschen- und Bürgerrechte. English - The Declaration of the Rights of Man and of Citizens
Author: Jellinek, Georg, 1851-1911
Language: English
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THE DECLARATION OF THE
RIGHTS OF MAN AND OF
CITIZENS

_A Contribution to Modern Constitutional
History_

BY

GEORG JELLINEK, DR. PHIL. ET JUR.

_Professor of Law in the University of Heidelberg

AUTHORIZED TRANSLATION FROM THE GERMAN_

BY

MAX FARRAND, PH.D.

_Professor of History in Wesleyan University_

_REVISED BY THE AUTHOR_

[Illustration]

NEW YORK

HENRY HOLT AND COMPANY

1901


Copyright, 1901.

BY

HENRY HOLT & CO.



ROBERT DRUMMOND, PRINTER, NEW YORK.



TRANSLATOR'S PREFACE.


Although several years have elapsed since this essay was published, it
has apparently come to the attention of only a few specialists, and
those almost exclusively in modern European history. It deserves
consideration by all students of history, and it is of special
importance to those who are interested in the early constitutional
history of the United States, for it traces the origin of the enactment
of bills of rights. In the hope that it will be brought before a larger
number of students who realize the significance of this question and who
appreciate genuine scholarly work, this essay is now translated.

M.F.

WESLEYAN UNIVERSITY,
MIDDLETOWN, CT., _March 1, 1901_.



TABLE OF CONTENTS.


CHAPTER                                                              PAGE

I. THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26,
1789, AND ITS SIGNIFICANCE                                             1

II. ROUSSEAU'S "CONTRAT SOCIAL" WAS NOT THE SOURCE
OF THIS DECLARATION                                                    8

III. THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES
OF THE NORTH AMERICAN UNION WERE ITS MODELS                           13

IV. VIRGINIA'S BILL OF RIGHTS AND THOSE OF THE
OTHER NORTH AMERICAN STATES                                           22

V. COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS                 27

VI. THE CONTRAST BETWEEN THE AMERICAN AND ENGLISH
DECLARATIONS OF RIGHTS                                                43

VII. RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIES
THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL
RIGHT OF MAN                                                          59

VIII. THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF
CITIZENS DURING THE AMERICAN REVOLUTION                               78

IX. THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT            90



THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS.



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
Constituent Assembly 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 passions, 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 document 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
document 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 class, 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 constitution 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 constitution.[2]
Together with the right of suffrage, the "_droits garantis par la
constitution_", which were enumerated for the last time in the
constitution 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 constitutions 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 constitutions of the period prior to 1848
contained a section upon the rights of subjects, and in the year 1848
the National Constitutional 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
constitutions of the period after 1848. Thus, first of all, in the
Prussian constitution 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
constitutions of the new states in the Balkan peninsula.

A noteworthy exception to this are the constitutions 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
constitution of the Empire, however, could the better dispense with such
a declaration as it was already contained in most of the constitutions
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 constitution 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 constitution.[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 constitution. 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 constitutional 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 assures to the
individual. Thus far in the works on public law various precursors of
the declaration of the Constituent Assembly, 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
assumptions.

FOOTNOTES:

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

[Footnote 2: Titre premier: "Dispositions fondamentales garanties par la
constitution."]

[Footnote 3: Hélie, _Les constitutions de la France_, pp. 1103 _et
seq._]

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

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

[Footnote 6: When considering the constitution, the Reichstag rejected
all proposals which aimed to introduce fundamental rights. _Cf._ Bezold,
_Materialen der deutschen Reichsverfassung_, 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 _volonté générale_, 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 nécessaire de prouver, qu'un tel acte ne vient
point de Montesquieu, mais de J.-J. Rousseau?... Mais l'acte même de la
déclaration est-il autre chose que le contrat passé entre tous les
membres de la communauté, selon les idées de Rousseau? N'est ce pas
l'énonciation des clauses et des conditions de ce contrat?"--_Histoire
de la science politique, 3me éd._, pp. 457, 458.]

[Footnote 8: "Ces clauses, bien entendues, se réduisent toutes à une
seule: savoir l'aliénation totale de chaque associé avec tous ses droits
à toute la communauté."--_Du contrat social_, I, 6.]

[Footnote 9: "De plus, l'aliénation se faisant sans réserve, l'union est
aussi parfaite qu'elle peut l'être et nul associé n'a plus rien à
réclamer." I, 6.]

[Footnote 10: "Car l'État, à l'égard de ses membres, est maître de tous
leurs biens par le contrat social." I, 9.]

[Footnote 11: "... Les possesseurs étant considérés comme dépositaires
du bien public." I, 9.]

[Footnote 12: "On convient que tout ce que chacun aliène, par le pacte
social, de sa puissance, de ses biens, de sa liberté, c'est seulement la
partie de tout cela dont l'usage importe à la communauté; 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 souveraineté,
c'est-à-dire toute acte authentique de la volonté générale, oblige ou
favorise également 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 espèce de loi fundamentale obligatoire pour le corps
du peuple, pas même le contrat social." I, 7.]

[Footnote 16: Constitution du 3 septembre 1791, titre premier: "Le
pouvoir législatif ne pourra faire aucune loi qui porte atteinte et
mette obstacle à l'exercise de droits naturels et civils consignés dans
le présent titre, et garantis par la constitution."]

[Footnote 17: _Cf._ Taine, _loc. cit._: _L'ancien régime_, 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 assembling 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 entitled "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 état_ of the city of Paris has
some interest.[19]

In the National Assembly, however, it was Lafayette who on July 11,
1789, made the motion to enact a declaration of rights in connection
with the constitution, and he therewith laid before the assembly 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
Constituent Assembly had in mind in framing its declaration. The sharp,
pointed style and the practical character of the American document 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
constitution 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 Constitution of September 3, 1791, and so
to one not familiar with French constitutional history, and before whom
only the texts of the constitutions themselves are lying, it seems to
bear a later date.

By practically all those, however, who look further back than the French
Declaration it is asserted that the Declaration of Independence of the
United States on July 4, 1776, contains the first exposition of a series
of rights of man.[24]

Yet the American Declaration of Independence contains only a single
paragraph that resembles a declaration of rights. It reads as follows:

"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of Happiness;
That to secure these rights, Governments are instituted among Men,
deriving their just powers from the consent of the governed; That
whenever any Form of Government becomes destructive of these ends, it is
the Right of the People to alter or to abolish it, and to institute new
Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to effect their
Safety and Happiness."

This sentence is so general in its content that it is difficult to read
into it, or deduct from it, a whole system of rights. It is therefore,
at the very start, improbable that it served as the model for the French
Declaration.

This conjecture becomes a certainty through Lafayette's own statement.
In a place in his _Memoirs_, that has as yet been completely overlooked,
Lafayette mentions the model that he had in mind when making his motion
in the Constituent Assembly.[25] He very pertinently points out that the
Congress of the newly formed Confederation of North American free states
was then in no position to set up, for the separate colonies, which had
already become sovereign states, rules of right which would have binding
force. He brings out the fact that in the Declaration of Independence
there are asserted only the principles of the sovereignty of the people
and the right to change the form of government. Other rights are
included solely by implication from the enumeration of the violations of
right, which justified the separation from the mother country.

The constitutions of the separate states, however, were preceded by
declarations of rights, which were binding upon the people's
representatives. _The first state to set forth a declaration of rights
properly so called was Virginia._[26]

The declarations of Virginia and of the other individual American states
were the sources of Lafayette's proposition. They influenced not only
Lafayette, but all who sought to bring about a declaration of rights.
Even the above-mentioned _cahiers_ were affected by them.

The new constitutions of the separate American states were well known at
that time in France. As early as 1778 a French translation of them,
dedicated to Franklin, had appeared in Switzerland.[27] Another was
published in 1783 at Benjamin Franklin's own instigation.[28] Their
influence upon the constitutional legislation of the French Revolution
is by no means sufficiently recognized. In Europe until quite recently
only the Federal constitution was known, not the constitutions of the
individual states, which are assuming a very prominent place in modern
constitutional history. This must be evident from the fact, which is
even yet unrecognized by some distinguished historians and teachers of
public law, that the individual American states had the first written
constitutions. In England and France the importance of the American
state constitutions has begun to be appreciated,[29] but in Germany they
have remained as yet almost unnoticed. For a long time, to be sure, the
text of the older constitutions in their entirety were only with
difficulty accessible in Europe. But through the edition, prepared by
order of the United States Senate,[30] containing all the American
constitutions since the very earliest period, one is now in a position
to become acquainted with these exceptionally important documents.

The French Declaration of Rights is for the most part copied from the
American declarations or "bills of rights".[31] All drafts of the French
Declaration, from those of the _cahiers_ to the twenty-one proposals
before the National Assembly, vary more or less from the original,
either in conciseness or in breadth, in cleverness or in awkwardness of
expression. But so far as substantial additions are concerned they
present only doctrinaire statements of a purely theoretical nature or
elaborations, which belong to the realm of political metaphysics. To
enter upon them here is unnecessary. Let us confine ourselves to the
completed work, the Declaration as it was finally determined after long
debate in the sessions from the twentieth to the twenty-sixth of
August.[32]

FOOTNOTES:

[Footnote 18: "De la nécessité d'établir quels sont les droits de
l'homme et des citoyens, et d'en faire une déclaration qu'ils puissent
opposer à toutes les espèces d'injustice."--_Archives parlementaires I.
Série_, IV, pp. 161 _et seq._]

[Footnote 19: _Archives parl._, V, pp. 281 _et seq._]

[Footnote 20: _Arch. parl._, VIII, pp. 221, 222.]

[Footnote 21: _Cf. e.g._ H. v. Sybel, _Geschichte der Revolutionszeit
von 1789 bis 1800, 4. Aufl._, I, p. 73.]

[Footnote 22: _Cf._ Häusser, _Geschichte der franz. Revolution, 3.
Aufl._, p. 169; H. Schulze, _Lehrbuch des deutschen Staatsrechts_, I, p.
368; Stahl, _Staatslehre, 4. Aufl._, p. 523; Taine, _loc. cit._: _La
révolution_, I, p. 274: "Ici rien de semblable aux déclarations précises
de la Constitution américaine." In addition, note 1: _cf. la Déclaration
d'indépendance du 4 juillet 1776_.]

[Footnote 23: Stahl, _loc. cit._, p. 524; Taine, _loc. cit._ The fact
that Jefferson's proposal to enact a declaration of rights was rejected
is expressly emphasized in a note.]

[Footnote 24: Stahl, _loc. cit._, p. 523, does mention, in addition, the
declarations of the separate states, but he does not specify when they
originated, nor in what relation they stand to the French Declaration,
and his comments show that he is not at all familiar with them. Janet,
_loc. cit._, I, p. v _et seq._, enters at length into the subject of the
state declarations in order to show the originality of the French, and
he even makes the mistaken attempt to prove French influence upon the
American (p. xxxv). The more detailed history of the American
declarations he is quite ignorant of.]

[Footnote 25: _Mémoires, correspondances et manuscripts du général
Lafayette, publiés par sa famille_, II, p. 46.]

[Footnote 26: "Mais les constitutions que se donnèrent successivement
les treize états, furent précedées de déclarations des droits, dont les
principes devaient servir de règles aux représentans du peuple, soit aux
conventions, soit dans les autres exercises de leur pouvoirs. La
Virginie fut la première à produire une déclaration des droits
proprement dite."--_Ibid._, p. 47.]

[Footnote 27: _Recueil des loix constitutives des colonies anglaises,
confédérées sous la dénomination d'États-Unis de l'Amérique-Septentrionale.
Dédié à M. le Docteur Franklin. En suisse, chez les libraires associés._]

[Footnote 28: _Cf._ Ch. Borgeaud, _Établissement et revision des
constitutions en Amérique et en Europe_, Paris, 1893, p. 27.]

[Footnote 29: Especially the exceptional work of James Bryce, _The
American Commonwealth_, Vol I, Part II., The State Governments; Boutmy,
_Études de droit constitutionnel, 2me éd._, Paris, 1895, pp. 83 _et
seq._; and Borgeaud, _loc. cit._, pp. 28 _et seq._]

[Footnote 30: _The Federal and State Constitutions, Colonial Charters,
and other Organic Laws of the United States._ Compiled by Ben: Perley
Poore. Two vols., Washington, 1877. Only the most important documents of
the colonial period are included.]

[Footnote 31: This is not quite clear even to the best French authority
on American history, Laboulaye, as is evident from his treatment of the
subject, _Histoire des États-Unis_, II, p. 11.]

[Footnote 32: _Cf. Arch. Parl._, VIII, pp. 461-489.]



CHAPTER IV.

VIRGINIA'S BILL OF RIGHTS AND THOSE OF THE OTHER NORTH AMERICAN STATES.


The Congress of the colonies, which were already resolved upon
separation from the mother country, while sitting in Philadelphia issued
on May 15, 1776, an appeal to its constituents to give themselves
constitutions. Of the thirteen states that originally made up the Union,
eleven had responded to this appeal before the outbreak of the French
Revolution. Two retained the colonial charters that had been granted
them by the English crown, and invested these documents with the
character of constitutions, namely, Connecticut the charter of 1662, and
Rhode Island that of 1663, so that these charters are the oldest written
constitutions in the modern sense.[33]

Of the other states Virginia was the first to enact a constitution in
the convention which met at Williamsburg from May 6 to June 29, 1776. It
was prefaced with a formal "bill of rights",[34] which had been adopted
by the convention on the twelfth of June. The author of this document
was George Mason, although Madison exercised a decided influence upon
the form that was finally adopted.[35] This declaration of Virginia's
served as a pattern for all the others, even for that of the Congress of
the United States, which was issued three weeks later, and, as is well
known, was drawn up by Jefferson, a citizen of Virginia. In the other
declarations there were many stipulations formulated somewhat
differently, and also many new particulars were added.[36]

Express declarations of rights had been formulated after Virginia's
before 1789 in the constitutions of

   Pennsylvania of September 28, 1776,
   Maryland of November 11, 1776,
   North Carolina of December 18, 1776,
   Vermont of July 8, 1777,[37]
   Massachusetts of March 2, 1780,
   New Hampshire of October 31, 1783, (in force June 2, 1784.)

In the oldest constitutions of New Jersey, South Carolina, New York and
Georgia special bills of rights are wanting, although they contain many
provisions which belong in that category.[38] The French translation of
the American Constitutions of 1778 includes a _déclaration expositive
des droits_ by Delaware that is lacking in Poore's collection.[39]

In the following section the separate articles of the French Declaration
are placed in comparison with the corresponding articles from the
American declarations. Among the latter, however, I have sought out only
those that most nearly approach the form of expression in the French
text. But it must be once more strongly emphasized that the fundamental
ideas of the American declarations generally duplicate each other, so
that the same stipulation reappears in different form in the greater
number of the bills of rights.

We shall leave out the introduction with which the Constituent Assembly
prefaced its declaration, and begin at once with the enumeration of the
rights themselves. But even the introduction, in which the National
Assembly "_en présence et sous les auspices de l'Être supréme_" solemnly
proclaims the recognition and declaration of the rights of man and of
citizens, and also sets forth the significance of the same, is inspired
by the declaration of Congress and by those of many of the individual
states with which the Americans sought to justify their separation from
the mother country.

FOOTNOTES:

[Footnote 33: Connecticut in 1818, and Rhode Island first in 1842, put
new constitutions in the place of the old Colonial Charters.]

[Footnote 34: Poore, II, pp. 1908, 1909.]

[Footnote 35: On the origin of Virginia's bill of rights, _cf._
Bancroft, _History of the United States_, London, 1861, VII, chap. 64.]

[Footnote 36: Virginia's declaration has 16, that of Massachusetts 30,
and Maryland's 42 articles. Virginia's declaration does not include the
right of emigration, which was first enacted in Article XV of
Pennsylvania's; the rights of assembling and petition are also lacking,
which were first found in the Pennsylvania bill of rights (Article
XVI).]

[Footnote 37: Vermont's statehood was contested until 1790, and it was
first recognized February 18, 1791, as an independent member of the
United States.]

[Footnote 38: Religious liberty is recognized by New York in an
especially emphatic manner, Constitution of April 20, 1777, Art.
XXXVIII. Poore, II, p. 1338.]

[Footnote 39: Pp. 151 _et seq._

(The translator has reprinted this declaration in an article in the
_American Historical Review_, of July, 1898, entitled "The Delaware Bill
of Rights of 1776".)]



CHAPTER V.

COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS.


ART. 1. _Les hommes naissent et demeurent libres et égaux en droits. Les
distinctions sociales ne peuvent être fondées que sur l'utilité
commune._


2. _Le but de toute association politique est la conservation des droits
naturels et imprescriptibles de l'homme. Ces droits sont la liberté, la
propriété, la sûreté et la résistance à 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 entitled to exclusive or
separate emoluments or privileges from the community, but in
consideration of public services.

MASSACHUSETTS, Preamble to the Constitution. The end of the institution,
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 souveraineté réside essentiellement dans la
nation. Nul corps, nul individu ne peut exercer d'autorité qui n'en
émane expréssement._

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 liberté consiste à pouvoir faire tout ce qui ne nuit pas à
autrui; aussi l'exercise des droits naturels de chaque homme n'a de
bornes que celles qui assurent aux autres membres de la société la
jouissance de ces mêmes droits. Ces bornes ne peuvent être déterminées
que par la loi._

MASSACHUSETTS, Preamble. The body-politic is formed by a voluntary
association 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.

MASSACHUSETTS, 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 défendre que les actions nuisibles à la
société. Tout ce qui n'est pas défendu par la loi ne peut être empêché
et nul ne peut être contraint à faire ce qu'elle n'ordonne pas._

MASSACHUSETTS, 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
entitled 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 volonté générale. Tous les citoyens
ont le droit de concourir personnellement ou par leurs représentants à
sa formation. Elle doit être la même pour tous, soit qu'elle protège,
soit qu'elle punisse. Tous les citoyens étant égaux à ses yeux, sont
également admissibles à toutes dignités, places et emplois publics,
selon leur capacité, et sans autre distinction que celle de leurs vertus
et leurs talents._

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

MASSACHUSETTS, 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 être accusé, arrêté, ni détenu que dans les cas
déterminés par la loi et selon les formes qu'elle a prescrites. Ceux qui
sollicitent, expédient, exécutent ou font exécuter des ordres
arbitraires, doivent être punis; mais tout citoyen appelé ou saisi en
vertu de la loi doit obéir à l'instant; il se rend coupable par sa
résistance._

MASSACHUSETTS, 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 établir que des peines strictement nécessaires et nul
ne peut être puni qu'en vertu d'une loi établie et promulguée
antérieurement au délit et légalement appliquée._

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 étant présumé innocent jusqu' à ce qu'il ait été déclaré
coupable, s'il est jugé indispensable de l'arrêter, toute rigueur qui ne
serait pas nécessaire pour s'assurer de sa personne doit être sévèrement
réprimée par la loi._

_Cf._ above, MASSACHUSETTS, XII; further

MASSACHUSETTS, 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.

MASSACHUSETTS, XXVI. No magistrate or court of law shall demand
excessive bail or sureties, impose excessive fines[45] ...


10. _Nul doit être inquiété pour ses opinions, même religieuses, pourvu
que leur manifestation ne trouble pas l'ordre public établi par la loi._

NEW HAMPSHIRE, V. Every individual has a natural and unalienable right
to worship GOD 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 GOD, 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 pensées et des opinions est un des
droits les plus précieux de l'homme; tout citoyen peut donc parler,
écrire, imprimer librement sauf à répondre de l'abus de cette liberté
dans les cas determinés 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 nécessité une force
publique. Cette force est donc instituée pour l'avantage de tous, et non
pour l'utilité particulière de ceux auxquels elle est confiée._

PENNSYLVANIA, V. That government is, or ought to be, instituted 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 dépenses
d'administration, une contribution commune est indispensable; elle doit
être également répartie entre tous les citoyens en raison de leurs
facultés._

MASSACHUSETTS, 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 mêmes ou par
leur représentants, la nécessité de la contribution publique, de la
consentir librement, d'en suivre l'emploi, et d'en déterminer la
qualité, l'assiette, le recouvrement et la durée._

MASSACHUSETTS, 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 société a le droit de demander compte à tout agent public de son
administration._

See above, VIRGINIA, II; further

MASSACHUSETTS 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 substitutes and agents, and are at all times accountable to them.


16. _Toute société, dans laquelle la garantie des droits n'est pas
assurée, ni la séparation des pouvoirs déterminée, n'a point de
constitution._

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.

MASSACHUSETTS, XXX. 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 propriété étant un droit inviolable et sacré, nul ne peut en
être privé, si ce n'est lors que la nécessité publique, légalement
constatée, l'exige évidemment, et sous la condition d'une juste et
préalable indemnité._

MASSACHUSETTS, 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 institutions, 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 passing 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 institutions. 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 Petition of Right of 1628, and finally the _Magna
Charta libertatum_ appear to be unquestionably the predecessors of the
Virginia bill of rights.

Assuredly 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 petition 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 Coke, 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
constitutional legislation, and the judge watches over the observance of
the constitutional 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 constitutions 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
constitutional 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 mediæval 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 passes 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 même et toutes ses
sujets sont rulés, et si la ley ne fuit, nul roy et nul inheritance
sera."[55] And in the Petition 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
documents. Consequently there is no reference whatever to the important
fundamental rights of religious liberty, of assembling, 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 constitution of Parliament, the
limitation of the royal prerogative, and along with these the protection
of the law courts, the right of petition, 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 assist in guarding the
three principal 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 passage 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 institution 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 constitution 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 institutions 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
institutions 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, _Constitutional
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
constitution 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.]

[Footnote 52: The right to address petitions 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 Petition 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 Verfassungsgeschichte_,
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 Constitutional Documents 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 entitled 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 Constitution_, 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 constitution 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 God, 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 petition 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 asserting 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 association 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 manuscripts 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 assembled Council of
Cromwell's army a draft, worked out by the Levellers, of a new
constitution 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 document 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 asserted 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 God, 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 Massachusetts, 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 Massachusetts 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
Massachusetts, the settlers in 1638 declared that they united themselves
in a body politic in pursuance of the word of God 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 circumstances. 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 constitution 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 assembly 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 constitution 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 constitution 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 God should in any way be forced to take part
in any religious worship or be otherwise molested,[89] and in the
constitution, 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 constitutional principle was thus given at once the
force of a _lex in perpetuum valitura_.

In 1692 Massachusetts 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 constitutional 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
asserted 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, _Constitutional Documents 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 God'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.]

[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 document, 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._, Masson, _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. Masson, _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 Massachusetts.]

[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 Constitution of the
United States_, New York, 1894, P. 217.]

[Footnote 89: Laws agreed upon in England, Art. XXXV. 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
Osnabrück, 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, Titel 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 God, in immortality, and
in a future state of rewards and punishments. Massachusetts 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
Constitution, 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 Rüttiman, _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 institutions 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 rôle in the founding of the colonies, and had helped to
establish religious liberty, now supported in the most significant way
the reconstruction of existing institutions. Not that it changed these
institutions, 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 God 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 God and by Nature" are already enumerated in
the form of the later bills of rights. As the center of the whole stood
the principal 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 God 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 assembled 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, assembled 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 constitution of England and by their own
constitutions.[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
documents. 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 asserted,--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 assembly, the freedom of the press and free
movement. But these rights of liberty were not the only ones therein
asserted, there were the right of petition, 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 titles, 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 constitution 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 constitution are enacted either by the people
themselves, or through a constitutional convention, there still lives in
this democratic institution the same idea that once animated the settlers
of Connecticut and Rhode Island.

Everywhere the bill of rights forms the first part of the constitution,
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 constitutions, was not everywhere nor at once carried
out in all of its consequences. In spite of the assertion 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, institutions 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 institutions
preceded the recognition of rights of the individual, in the other they
followed after. Therein lay also the fatal mistake of the German
National Assembly 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.]

[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 Massachusetts. 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: _Analysis 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 asserted
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
Constitution 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,
assembled 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 mediæval 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 institutions 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 associations 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
Coke 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 mediæval 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
spaces 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
Documents 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,
_Grünhuts Zeitschrift für Privat-und öffentliches 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 analysis, 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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