THE DECLARATION OF THERIGHTS OF MAN AND OFCITIZENS

_A Contribution to Modern ConstitutionalHistory_

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, ithas apparently come to the attention of only a few specialists, andthose almost exclusively in modern European history. It deservesconsideration by all students of history, and it is of specialimportance to those who are interested in the early constitutionalhistory of the United States, for it traces the origin of the enactmentof bills of rights. In the hope that it will be brought before a largernumber of students who realize the significance of this question and whoappreciate 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 SOURCEOF THIS DECLARATION 8

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

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

V. COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS 27

VI. THE CONTRAST BETWEEN THE AMERICAN AND ENGLISHDECLARATIONS OF RIGHTS 43

VII. RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIESTHE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSALRIGHT OF MAN 59

VIII. THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OFCITIZENS 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 ITSSIGNIFICANCE. 

The declaration of "the rights of man and of citizens" by the FrenchConstituent Assembly on August 26, 1789, is one of the most significantevents of the French Revolution. It has been criticised from differentpoints of view with directly opposing results. The political scientistand the historian, thoroughly appreciating its importance, haverepeatedly come to the conclusion that the Declaration had no small partin the anarchy with which France was visited soon after the storming ofthe Bastille. They point to its abstract phrases as ambiguous andtherefore dangerous, and as void of all political reality and practicalstatesmanship. Its empty pathos, they say, confused the mind, disturbedcalm judgment, aroused passions, and stifled the sense of duty, --for ofduty there is not a word. [1] Others, on the contrary, and especiallyFrenchmen, have exalted it as a revelation in the world's history, as acatechism of the "principles of 1789" which form the eternal foundationof the state's structure, and they have glorified it as the mostprecious gift that France has given to mankind. 

Less regarded than its historical and political significance is theimportance of this document in the history of law, an importance whichcontinues even to the present day. Whatever may be the value orworthlessness of its general phrases, it is under the influence of thisdocument that the conception of the public rights of the individual hasdeveloped in the positive law of the states of the European continent. Until it appeared public law literature recognized the rights of headsof states, the privileges of class, and the privileges of individuals orspecial corporations, but the general rights of subjects were to befound essentially only in the form of duties on the part of the state, not in the form of definite legal claims of the individual. TheDeclaration of the Rights of Man for the first time originated in allits vigor in positive law the conception, which until then had beenknown only to natural law, of the personal rights of the members of thestate over against the state as a whole. This was next seen in the firstFrench constitution of September 3, 1791, which set forth, upon thebasis of a preceding declaration of rights, a list of _droits naturelset civils_ as rights that were guaranteed by the constitution. [2]Together with the right of suffrage, the "_droits garantis par laconstitution_", which were enumerated for the last time in theconstitution of November 4, 1848, [3] form to-day the basis of Frenchtheory and practice respecting the personal public rights of theindividual. [4] And under the influence of the French declaration therehave been introduced into almost all of the constitutions of the otherContinental states similar enumerations of rights, whose separatephrases and formulas, however, are more or less adapted to theparticular conditions of their respective states, and thereforefrequently exhibit wide differences in content. 

In Germany most of the constitutions of the period prior to 1848contained a section upon the rights of subjects, and in the year 1848the National Constitutional Convention at Frankfort adopted "thefundamental rights of the German people", which were published onDecember 27, 1848, as Federal law. In spite of a resolution of the_Bund_ of August 23, 1851, declaring these rights null and void, theyare of lasting importance, because many of their specifications areto-day incorporated almost word for word in the existing Federal law. [5]These enumerations of rights appear in greater numbers in the Europeanconstitutions of the period after 1848. Thus, first of all, in thePrussian constitution of January 31, 1850, and in Austria's "FundamentalLaw of the State" of December 21, 1867, on the general rights of thestate's citizens. And more recently they have been incorporated in theconstitutions of the new states in the Balkan peninsula. 

A noteworthy exception to this are the constitutions of the North GermanConfederation of July 26, 1867, and of the German Empire of April 16, 1871, which lack entirely any paragraph on fundamental rights. Theconstitution of the Empire, however, could the better dispense with sucha declaration as it was already contained in most of the constitutionsof the individual states, and, as above stated, a series of Federal lawshas enacted the most important principles of the Frankfort fundamentalrights. Besides, with the provisions of the Federal constitution as toamendments, it was not necessary to make any special place for them inthat instrument, as the Reichstag, to whose especial care theguardianship of the fundamental rights must be entrusted, has nodifficult forms to observe in amending the constitution. [6] As a matterof fact the public rights of the individual are much greater in theGerman Empire than in most of the states where the fundamental rightsare specifically set forth in the constitution. This may be seen, forexample, by a glance at the legislation and the judicial andadministrative practice in Austria. 

But whatever may be one's opinion to-day upon the formulation ofabstract principles, which only become vitalized through the process ofdetailed legislation, as affecting the legal position of the individualin the state, the fact that the recognition of such principles ishistorically bound up with that first declaration of rights makes it animportant task of constitutional history to ascertain the origin of theFrench Declaration of Rights of 1789. The achievement of this task is ofgreat importance both in explaining the development of the modern stateand in understanding the position which this state assures to theindividual. Thus far in the works on public law various precursors ofthe declaration of the Constituent Assembly, from Magna Charta to theAmerican Declaration of Independence, have been enumerated and arrangedin regular sequence, yet any thorough investigation of the sources fromwhich 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 theDeclaration of Independence of the thirteen United States of NorthAmerica. Let us first of all inquire into the correctness of theseassumptions. 

FOOTNOTES:

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

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

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

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

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

[Footnote 6: When considering the constitution, the Reichstag rejectedall 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 ofthat kind which France possesses--Paul Janet, after a thoroughpresentation of the _Contrat Social_, discusses the influence which thiswork of Rousseau's exercised upon the Revolution. The idea of thedeclaration of rights is to be traced back to Rousseau's teachings. Whatelse is the declaration itself than the formulation of the statecontract according to Rousseau's ideas? And what are the several rightsbut 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 completetransference to the community of all the individual's rights. [8] Theindividual does not retain one particle of his rights from the moment heenters the state. [9] Everything that he receives of the nature of righthe gets from the _volonté générale_, which is the sole judge of its ownlimits, and ought not to be, and cannot be, restricted by the law of anypower. Even property belongs to the individual only by virtue of stateconcession. The social contract makes the state the master of the goodsof its members, [10] and the latter remain in possession only as thetrustees of public property. [11] Civil liberty consists simply of whatis left to the individual after taking his duties as a citizen intoaccount. [12] These duties can only be imposed by law, and according tothe social contract the laws must be the same for all citizens. This isthe only restriction upon the sovereign power, [13] but it is arestriction which follows from the very nature of that power, and itcarries in itself its own guarantees. [14]

The conception of an original right, which man brings with him intosociety and which appears as a restriction upon the rights of thesovereign, is specifically rejected by Rousseau. There is no fundamentallaw which can be binding upon the whole people, not even the socialcontract itself. [15]

The Declaration of Rights, however, would draw dividing lines betweenthe state and the individual, which the lawmaker should ever keep beforehis eyes as the limits that have been set him once and for all by "thenatural, inalienable and sacred rights of man. "[16]

The principles of the _Contrat Social_ are accordingly at enmity withevery declaration of rights. For from these principles there ensues notthe right of the individual, but the omnipotence of the common will, unrestricted by law. Taine comprehended better than Janet theconsequences 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, acertain influence upon the style of some clauses of the Declaration, butthe conception of the Declaration itself must have come from some othersource. 

FOOTNOTES:

[Footnote 7: "Est-il nécessaire de prouver, qu'un tel acte ne vientpoint de Montesquieu, mais de J. -J. Rousseau?. . . Mais l'acte même de ladéclaration est-il autre chose que le contrat passé entre tous lesmembres de la communauté, selon les idées de Rousseau? N'est ce pasl'énonciation des clauses et des conditions de ce contrat?"--_Histoirede la science politique, 3me éd. _, pp. 457, 458. ]

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

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

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

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

[Footnote 12: "On convient que tout ce que chacun aliène, par le pactesocial, de sa puissance, de ses biens, de sa liberté, c'est seulement lapartie de tout cela dont l'usage importe à la communauté; mais il fautconvenir 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 oufavorise également tous les citoyens. " II, 4. ]

[Footnote 14: "La puissance souverain n'a nul besoin de garant enversles sujets. " I, 7. ]

[Footnote 15: "Il est contre la nature du corps politique que lesouverain s'impose une loi qu'il ne puisse enfreindre . . . Il n'y a ni nepeut y avoir nulle espèce de loi fundamentale obligatoire pour le corpsdu peuple, pas même le contrat social. " I, 7. ]

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

[Footnote 17: _Cf. _ Taine, _loc. Cit. _: _L'ancien régime_, pp. 321 _etseq. _]

CHAPTER III. 

THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES OF THE NORTH AMERICAN UNIONWERE ITS MODELS. 

The conception of a declaration of rights had found expression in Franceeven before the assembling of the States General. It had alreadyappeared in a number of _cahiers_. The _cahier_ of the _Bailliage_ ofNemours is well worth noting, as it contained a chapter entitled "On theNecessity of a Declaration of the Rights of Man and of Citizens", [18]and sketched a plan of such a declaration with thirty articles. Amongother plans that in the _cahier des tiers état_ of the city of Paris hassome 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 connectionwith the constitution, and he therewith laid before the assembly a planof such a declaration. [20]

It is the prevailing opinion that Lafayette was inspired to make thismotion by the North American Declaration of Independence. [21] And thisinstrument is further declared to have been the model that theConstituent Assembly had in mind in framing its declaration. The sharp, pointed style and the practical character of the American document arecited by many as in praiseworthy contrast to the confusing verbosity anddogmatic theory of the French Declaration. [22] Others bring forward, asa more fitting object of comparison, the first amendments to theconstitution of the United States, [23] and even imagine that the latterexerted some influence upon the French Declaration, in spite of the factthat they did not come into existence until after August 26, 1789. Thiserror has arisen from the French Declaration of 1789 having beenembodied word for word in the Constitution of September 3, 1791, and soto one not familiar with French constitutional history, and before whomonly the texts of the constitutions themselves are lying, it seems tobear a later date. 

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

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

"We hold these truths to be self-evident, that all men are createdequal, that they are endowed by their Creator with certain unalienableRights, 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; Thatwhenever any Form of Government becomes destructive of these ends, it isthe Right of the People to alter or to abolish it, and to institute newGovernment, laying its foundation on such principles and organizing itspowers in such form, as to them shall seem most likely to effect theirSafety and Happiness. "

This sentence is so general in its content that it is difficult to readinto 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 FrenchDeclaration. 

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 motionin the Constituent Assembly. [25] He very pertinently points out that theCongress of the newly formed Confederation of North American free stateswas then in no position to set up, for the separate colonies, which hadalready become sovereign states, rules of right which would have bindingforce. He brings out the fact that in the Declaration of Independencethere are asserted only the principles of the sovereignty of the peopleand the right to change the form of government. Other rights areincluded solely by implication from the enumeration of the violations ofright, which justified the separation from the mother country. 

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

The declarations of Virginia and of the other individual American stateswere the sources of Lafayette's proposition. They influenced not onlyLafayette, 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 atthat time in France. As early as 1778 a French translation of them, dedicated to Franklin, had appeared in Switzerland. [27] Another waspublished in 1783 at Benjamin Franklin's own instigation. [28] Theirinfluence upon the constitutional legislation of the French Revolutionis by no means sufficiently recognized. In Europe until quite recentlyonly the Federal constitution was known, not the constitutions of theindividual states, which are assuming a very prominent place in modernconstitutional history. This must be evident from the fact, which iseven yet unrecognized by some distinguished historians and teachers ofpublic law, that the individual American states had the first writtenconstitutions. In England and France the importance of the Americanstate constitutions has begun to be appreciated, [29] but in Germany theyhave remained as yet almost unnoticed. For a long time, to be sure, thetext of the older constitutions in their entirety were only withdifficulty accessible in Europe. But through the edition, prepared byorder of the United States Senate, [30] containing all the Americanconstitutions since the very earliest period, one is now in a positionto become acquainted with these exceptionally important documents. 

The French Declaration of Rights is for the most part copied from theAmerican declarations or "bills of rights". [31] All drafts of the FrenchDeclaration, from those of the _cahiers_ to the twenty-one proposalsbefore the National Assembly, vary more or less from the original, either in conciseness or in breadth, in cleverness or in awkwardness ofexpression. But so far as substantial additions are concerned theypresent only doctrinaire statements of a purely theoretical nature orelaborations, which belong to the realm of political metaphysics. Toenter upon them here is unnecessary. Let us confine ourselves to thecompleted work, the Declaration as it was finally determined after longdebate in the sessions from the twentieth to the twenty-sixth ofAugust. [32]

FOOTNOTES:

[Footnote 18: "De la nécessité d'établir quels sont les droits del'homme et des citoyens, et d'en faire une déclaration qu'ils puissentopposer 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 Revolutionszeitvon 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. _: _Larévolution_, I, p. 274: "Ici rien de semblable aux déclarations précisesde la Constitution américaine. " In addition, note 1: _cf. La Déclarationd'indépendance du 4 juillet 1776_. ]

[Footnote 23: Stahl, _loc. Cit. _, p. 524; Taine, _loc. Cit. _ The factthat Jefferson's proposal to enact a declaration of rights was rejectedis expressly emphasized in a note. ]

[Footnote 24: Stahl, _loc. Cit. _, p. 523, does mention, in addition, thedeclarations of the separate states, but he does not specify when theyoriginated, 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 thestate declarations in order to show the originality of the French, andhe even makes the mistaken attempt to prove French influence upon theAmerican (p. Xxxv). The more detailed history of the Americandeclarations he is quite ignorant of. ]

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

[Footnote 26: "Mais les constitutions que se donnèrent successivementles treize états, furent précedées de déclarations des droits, dont lesprincipes devaient servir de règles aux représentans du peuple, soit auxconventions, soit dans les autres exercises de leur pouvoirs. LaVirginie fut la première à produire une déclaration des droitsproprement 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 desconstitutions en Amérique et en Europe_, Paris, 1893, p. 27. ]

[Footnote 29: Especially the exceptional work of James Bryce, _TheAmerican Commonwealth_, Vol I, Part II. , The State Governments; Boutmy, _Études de droit constitutionnel, 2me éd. _, Paris, 1895, pp. 83 _etseq. _; 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: PerleyPoore. Two vols. , Washington, 1877. Only the most important documents ofthe colonial period are included. ]

[Footnote 31: This is not quite clear even to the best French authorityon American history, Laboulaye, as is evident from his treatment of thesubject, _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 uponseparation from the mother country, while sitting in Philadelphia issuedon May 15, 1776, an appeal to its constituents to give themselvesconstitutions. Of the thirteen states that originally made up the Union, eleven had responded to this appeal before the outbreak of the FrenchRevolution. Two retained the colonial charters that had been grantedthem by the English crown, and invested these documents with thecharacter of constitutions, namely, Connecticut the charter of 1662, andRhode Island that of 1663, so that these charters are the oldest writtenconstitutions in the modern sense. [33]

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

Express declarations of rights had been formulated after Virginia'sbefore 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 andGeorgia special bills of rights are wanting, although they contain manyprovisions which belong in that category. [38] The French translation ofthe American Constitutions of 1778 includes a _déclaration expositivedes droits_ by Delaware that is lacking in Poore's collection. [39]

In the following section the separate articles of the French Declarationare placed in comparison with the corresponding articles from theAmerican declarations. Among the latter, however, I have sought out onlythose that most nearly approach the form of expression in the Frenchtext. But it must be once more strongly emphasized that the fundamentalideas of the American declarations generally duplicate each other, sothat the same stipulation reappears in different form in the greaternumber of the bills of rights. 

We shall leave out the introduction with which the Constituent Assemblyprefaced its declaration, and begin at once with the enumeration of therights themselves. But even the introduction, in which the NationalAssembly "_en présence et sous les auspices de l'Être supréme_" solemnlyproclaims the recognition and declaration of the rights of man and ofcitizens, and also sets forth the significance of the same, is inspiredby the declaration of Congress and by those of many of the individualstates with which the Americans sought to justify their separation fromthe mother country. 

FOOTNOTES:

[Footnote 33: Connecticut in 1818, and Rhode Island first in 1842, putnew 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 theright of emigration, which was first enacted in Article XV ofPennsylvania's; the rights of assembling and petition are also lacking, which were first found in the Pennsylvania bill of rights (ArticleXVI). ]

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

[Footnote 38: Religious liberty is recognized by New York in anespecially 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 Billof Rights of 1776". )]

CHAPTER V. 

COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS. 

ART. 1. _Les hommes naissent et demeurent libres et égaux en droits. Lesdistinctions sociales ne peuvent être fondées que sur l'utilitécommune. _

2. _Le but de toute association politique est la conservation des droitsnaturels et imprescriptibles de l'homme. Ces droits sont la liberté, lapropriété, 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 stateof society, they cannot, by any compact, deprive or divest theirposterity; namely, the enjoyment of life and liberty, with the means ofacquiring and possessing property, and pursuing and obtaining happinessand safety. 

VIRGINIA, IV. That no man, or set of men, are entitled to exclusive orseparate emoluments or privileges from the community, but inconsideration of public services. 

MASSACHUSETTS, Preamble to the Constitution. The end of the institution, maintenance, and administration of government is to secure the existenceof the body-politic, to protect it, and to furnish the individuals whocompose it with the power of enjoying, in safety and tranquillity, theirnatural rights and the blessings of life. 

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

3. _Le principe de toute souveraineté réside essentiellement dans lanation. Nul corps, nul individu ne peut exercer d'autorité qui n'enémane expréssement. _

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

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

MASSACHUSETTS, Preamble. The body-politic is formed by a voluntaryassociation of individuals; it is a social compact by which the wholepeople covenants with each citizen and each citizen with the wholepeople that all shall be governed by certain laws for the common good. 

MASSACHUSETTS, X. Each individual of the society has a right to beprotected 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 lasociété. Tout ce qui n'est pas défendu par la loi ne peut être empêchéet nul ne peut être contraint à faire ce qu'elle n'ordonne pas. _

MASSACHUSETTS, XI. Every subject of the commonwealth ought to find acertain remedy, by having recourse to the laws, for all injuries orwrongs which he may receive in his person, property, or character. 

NORTH CAROLINA, XIII. That every freeman, restrained of his liberty, isentitled to a remedy, to inquire into the lawfulness thereof, and toremove the same, if unlawful; and that such remedy ought not to bedenied or delayed. 

VIRGINIA, VII. That all power of suspending laws, or the execution oflaws, by any authority, without consent of the representatives of thepeople, is injurious to their rights, and ought not to be exercised. [40]

6. _La loi est l'expression de la volonté générale. Tous les citoyensont le droit de concourir personnellement ou par leurs représentants àsa formation. Elle doit être la même pour tous, soit qu'elle protège, soit qu'elle punisse. Tous les citoyens étant égaux à ses yeux, sontégalement admissibles à toutes dignités, places et emplois publics, selon leur capacité, et sans autre distinction que celle de leurs vertuset leurs talents. _

MARYLAND, V. That the right in the people to participate in theLegislature, is the best security of liberty, and the foundation of allfree government. 

MASSACHUSETTS, IX. All elections ought to be free;[41] and all theinhabitants of this commonwealth, having such qualifications as theyshall establish by their frame of government, have an equal right toelect officers, and to be elected, for public employments. 

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

7. _Nul homme ne peut être accusé, arrêté, ni détenu que dans les casdéterminés par la loi et selon les formes qu'elle a prescrites. Ceux quisollicitent, expédient, exécutent ou font exécuter des ordresarbitraires, doivent être punis; mais tout citoyen appelé ou saisi envertu de la loi doit obéir à l'instant; il se rend coupable par sarésistance. _

MASSACHUSETTS, XII. No subject shall be held to answer for any crimesor no offence until the same is fully and plainly, substantially andformally, described to him; or be compelled to accuse, or furnishevidence against himself; and every subject shall have a right toproduce all proofs that may be favorable to him; to meet the witnessesagainst him face to face, and to be fully heard in his defence byhimself, or his counsel at his election. And no subject shall bearrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiledor deprived of his life, liberty, or estate, but by the judgment of hispeers, or the law of the land. [42]

VIRGINIA, X. That general warrants, whereby an officer or messenger maybe commanded to search suspected places without evidence of a factcommitted, or to seize any person or persons not named, or whose offenceis not particularly described and supported by evidence, are grievousand oppressive, and ought not to be granted. 

8. _La loi ne doit établir que des peines strictement nécessaires et nulne peut être puni qu'en vertu d'une loi établie et promulguéeantérieurement au délit et légalement appliquée. _

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

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

MARYLAND, XV. That retrospective laws, punishing facts committed beforethe existence of such laws, and by them only declared criminal, areoppressive, unjust, and incompatible with liberty; wherefore no _ex postfacto_ law ought to be made. 

9. _Tout homme étant présumé innocent jusqu' à ce qu'il ait été déclarécoupable, s'il est jugé indispensable de l'arrêter, toute rigueur qui neserait pas nécessaire pour s'assurer de sa personne doit être sévèrementréprimée par la loi. _

_Cf. _ above, MASSACHUSETTS, XII; further

MASSACHUSETTS, XIV. Every subject has a right to be secure from allunreasonable searches and seizures of his person, his houses, hispapers, and all his possessions. 

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

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

NEW HAMPSHIRE, V. Every individual has a natural and unalienable rightto worship GOD according to the dictates of his own conscience, andreason; and no subject shall be hurt, molested or restrained in hisperson, liberty or estate for worshipping GOD, in the manner and seasonmost agreeable to the dictates of his own conscience, or for hisreligious profession, sentiments or persuasion; provided he doth notdisturb the public peace, or disturb others, in their religious worship. 

11. _La libre communication des pensées et des opinions est un desdroits les plus précieux de l'homme; tout citoyen peut donc parler, écrire, imprimer librement sauf à répondre de l'abus de cette libertédans les cas determinés par la loi. _

VIRGINIA, XII. That the freedom of the press is one of the greatbulwarks of liberty, and can never be restrained but by despoticgovernments. 

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 forcepublique. Cette force est donc instituée pour l'avantage de tous, et nonpour l'utilité particulière de ceux auxquels elle est confiée. _

PENNSYLVANIA, V. That government is, or ought to be, instituted for thecommon benefit, protection and security of the people, nation orcommunity; and not for the particular emolument or advantage of anysingle man, family, or sett of men, who are a part only of thatcommunity. 

13. _Pour l'entretien de la force publique et pour les dépensesd'administration, une contribution commune est indispensable; elle doitêtre également répartie entre tous les citoyens en raison de leursfacultés. _

MASSACHUSETTS, X. Each individual of the society has a right to beprotected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contributehis share to the expense of this protection; to give his personalservice, or an equivalent, when necessary. 

14. _Tous les citoyens ont le droit de constater, par eux mêmes ou parleur représentants, la nécessité de la contribution publique, de laconsentir librement, d'en suivre l'emploi, et d'en déterminer laqualité, l'assiette, le recouvrement et la durée. _

MASSACHUSETTS, XXIII. No subsidy, charge, tax, impost, or duties, oughtto be established, fixed, laid or levied, under any pretext whatsoever, without the consent of the people, or their representatives in thelegislature. 

15. _La société a le droit de demander compte à tout agent public de sonadministration. _

See above, VIRGINIA, II; further

MASSACHUSETTS V. All power residing originally in the people, and beingderived from them, the several magistrates and officers of governmentvested with authority, whether legislative, executive, or judicial, arethe substitutes and agents, and are at all times accountable to them. 

16. _Toute société, dans laquelle la garantie des droits n'est pasassurée, ni la séparation des pouvoirs déterminée, n'a point deconstitution. _

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

MASSACHUSETTS, XXX. In the government of this commonwealth, thelegislative department shall never exercise the executive and judicialpowers, or either of them; the executive shall never exercise thelegislative and judicial powers, or either of them; the judicial shallnever 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 enêtre privé, si ce n'est lors que la nécessité publique, légalementconstatée, l'exige évidemment, et sous la condition d'une juste etpréalable 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 hisown consent, or that of the representative body of the people. . . . Andwhenever the public exigencies require that the property of anyindividual should be appropriated to public uses, he shall receive areasonable compensation therefor. 

VERMONT, II. That private property ought to be subservient to publicuses, when necessity requires it; nevertheless, whenever any particularman's property is taken for the use of the public, the owner ought toreceive 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 oncethat 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 formthey received on the other side of the ocean. But in contrast to thediffuseness of the Americans the French are distinguished by a brevitycharacteristic of their language. Articles 4-6 of the Declaration havethe most specific French additions in the superfluous and meaninglessdefinitions of liberty[46] and law. Further, in Articles 4, 6 and 13 ofthe French text special stress is laid upon equality before the law, while to the Americans, because of their social conditions anddemocratic institutions, this seemed self-evident and so by them is onlybrought out incidentally. In the French articles the influence of the_Contrat Social_ will have been recognized; but yet it brought outnothing essentially new, or unknown to the American stipulations. 

The result that has been won is not without significance for the studentof history in passing judgment upon the effects of the FrenchDeclaration. The American states have developed with their bills ofrights into orderly commonwealths in which there has never been anycomplaint that these propositions brought consequences disintegrating tothe state. The disorders which arose in France after the Declaration ofthe Rights of Man cannot therefore have been brought about by itsformulas alone. Much rather do they show what dangers may lie in the toohasty adoption of foreign institutions. That is, the Americans in 1776went on building upon foundations that were with them long-standing. TheFrench, on the other hand, tore up all the foundations of their state'sstructure. What was in the one case a factor in the process ofconsolidation served in the other as a cause of further disturbance. This was even recognized at the time by sharp-sighted men, such asLally-Tollendal[47] and, above all, Mirabeau. [48]

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

To the superficial observer the answer seems simple. The very namepoints to English sources. The Bill of Rights of 1689, the Habeas CorpusAct of 1679, the Petition of Right of 1628, and finally the _MagnaCharta libertatum_ appear to be unquestionably the predecessors of theVirginia bill of rights. 

Assuredly the remembrance of these celebrated English enactments, whichthe Americans regarded as an inherent part of the law of their land, hada substantial share in the declarations of rights after 1776. Manystipulations from Magna Charta and the English Bill of Rights weredirectly embodied by the Americans in their lists. 

And yet a deep cleft separates the American declarations from theEnglish enactments that have been mentioned. The historian of theAmerican Revolution says of the Virginia declaration that it protestedagainst all tyranny in the name of the eternal laws of man's being: "TheEnglish petition of right in 1688 was historic and retrospective; theVirginia declaration came directly out of the heart of nature andannounced governing principles for all peoples in all future times. "[49]

The English laws that establish the rights of subjects are collectivelyand individually confirmations, arising out of special conditions, orinterpretations of existing law. Even Magna Charta contains no newright, as Sir Edward Coke, the great authority on English law, perceivedas early as the beginning of the seventeenth century. [50] The Englishstatutes are far removed from any purpose to recognize general rights ofman, and they have neither the power nor the intention to restrict thelegislative agents or to establish principles for future legislation. According to English law Parliament is omnipotent and all statutesenacted or confirmed by it are of equal value. 

The American declarations, on the other hand, contain precepts whichstand higher than the ordinary lawmaker. In the Union, as well as in theindividual states, there are separate organs for ordinary and forconstitutional legislation, and the judge watches over the observance ofthe constitutional limitations by the ordinary legislative power. If inhis judgment a law infringes on the fundamental rights, he must forbidits enforcement. The declarations of rights even at the present day areinterpreted by the Americans as practical protections of theminority. [51] This distinguishes them from the "guaranteed rights" ofthe European states. The American declarations are not laws of a higherkind in name only, they are the creations of a higher lawmaker. InEurope, it is true, the constitutions place formal difficulties in theway of changing their specifications, but almost everywhere it is thelawmaker himself who decides upon the change. Even in the SwissConfederacy judicial control over the observance of these forms isnowhere to be found, although there, as in the United States, theconstitutional laws proceed from other organs than those of the ordinarystatutes. 

The American bills of rights do not attempt merely to set forth certainprinciples for the state's organization, but they seek above all to drawthe boundary line between state and individual. According to them theindividual is not the possessor of rights through the state, but by hisown nature he has inalienable and indefeasible rights. The English lawsknow nothing of this. They do not wish to recognize an eternal, naturalright, but one inherited from their fathers, "the old, undoubted rightsof the English people. "

The English conception of the rights of the subject is very clear uponthis point. When one looks through the Bill of Rights carefully, onefinds but slight mention there of individual rights. That laws shouldnot be suspended, that there should be no dispensation from them, thatspecial courts should not be erected, that cruel punishments should notbe inflicted, that jurors ought to be duly impanelled and returned, thattaxes should not be levied without a law, nor a standing army keptwithout consent of Parliament, that parliamentary elections should befree, and Parliament be held frequently--all these are not rights of theindividual, but duties of the government. Of the thirteen articles ofthe Bill of Rights only two contain stipulations that are expressed inthe form of rights of the subject, [52] while one refers to freedom ofspeech in Parliament. When nevertheless all the stipulations of the Billof Rights are therein designated as rights and liberties of the Englishpeople, [53] it is through the belief that restriction of the crown isat the same time right of the people. 

This view grew directly out of the mediæval conception of the Teutonicstate. While the ancient state appears at the beginning of its historyas [Greek: polis] or _civitas_, as an undivided community of citizens, the monarchical Teutonic state is from the beginning dualistic inform, --prince and people form no integral unity, but stand opposed toeach other as independent factors. And so the state in the conception ofthe time is substantially a relation of contract between the two. TheRoman and Canonical theory of law under the influence of ancienttraditions even as early as the eleventh century attempts to unite thetwo elements in that, upon the basis of a contract, it either makes thepeople part with their rights to the prince, and accordingly makes thegovernment the state, or it considers the prince simply as theauthorized agent of the people and so makes the latter and the stateidentical. The prevailing opinion in public law, however, especiallysince the rise of the state of estates, sees in the state a doublecondition of contract between prince and people. The laws form thecontent of this compact. They established, therefore, for the prince aright of demanding lawful obedience, and for the people of demandingadherence to the limitations placed by the laws. The people accordinglyhave a right to the fulfilment of the law by the prince. Thus all lawscreate personal rights of the people, and the term people is thought ofin a confused way as referring to the individuals as well as to thewhole--_singuli et universi_. [54] From this point of view it is a rightof the people that Parliament should be frequently summoned, that thejudge should inflict no cruel punishments, and however else thedeclarations of the English charters may read. 

This conception of law as two-sided, establishing rights for bothelements of the state, runs through all the earlier English history. Theright which is conferred by law passes from generation to generation, itbecomes hereditary and therefore acquirable by birth as one of thepeople. Under Henry VI. It is declared of the law: "La ley est le plushaute inheritance que le roy ad; car par la ley il même et toutes sessujets sont rulés, et si la ley ne fuit, nul roy et nul inheritancesera. "[55] And in the Petition of Right Parliament makes the appeal thatthe subjects have inherited their freedom through the laws. [56] Thelaws, as the Act of Settlement expresses it, are the "birthright of thepeople". [57]

And so we find only ancient "rights and liberties" mentioned in theEnglish laws of the seventeenth century. Parliament is always demandingsimply the confirmation of the "laws and statutes of this realm", thatis, the strengthening of the existing relations between king and people. Of the creation of new rights there is not a word in all thesedocuments. Consequently there is no reference whatever to the importantfundamental rights of religious liberty, of assembling, of liberty ofthe press, or of free movement. And down to the present day the theoryof English law does not recognize rights of this kind, but considersthese lines of individual liberty as protected by the general principleof law, that any restraint of the person can only come about throughlegal authorization. [58] According to the present English idea therights of liberty rest simply upon the supremacy of the law, --they arelaw, not personal rights. [59] The theory, founded in Germany by Gerber, and defended by Laband and others, according to which the rights ofliberty are nothing but duties of the government, sprang up in England, without any connection with the German teaching, from the existingconditions after the conception of the public rights of the individualas natural rights, which was based on Locke and Blackstone, had lost itspower. 

But with Locke even this conception stands in close connection with theold English ideas. When Locke considers property--in which are includedlife and liberty--as an original right of the individual existingprevious to the state, and when he conceives of the state as a societyfounded to protect this right, which is thus transformed from a naturalto a civil right, he by no means ascribes definite fundamental rights tothe man living in the state, but rather places such positiverestrictions upon the legislative power as follow from the purposes ofthe state. [60] When closely examined, however, these restrictions arenothing 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 absoluterights of persons upon the idea of the personal rights of theindividual. Security, liberty, and property are the absolute rights ofevery Englishman, which from their character are nothing else than thenatural liberty that remains to the individual after deducting the legalrestraints demanded by the common interest. [62] Laws appear likewise asprotectors of these rights, --the whole constitution of Parliament, thelimitation of the royal prerogative, and along with these the protectionof the law courts, the right of petition, and the right to carry armsare treated, exactly in the manner of the Bill of Rights, as rights ofEnglishmen, and indeed as subordinate rights to assist in guarding thethree principal rights. [63] But in spite of his fundamental conceptionof a natural right, the individual with rights was for Blackstone notman simply, but the English subject. [64]

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

It is not from the English law. There is then nothing else from which toderive it than the conceptions of natural rights of that time. But therehave been theories of natural rights ever since the time of the Greeks, and they never led to the formulation of fundamental rights. The theoryof natural rights for a long time had no hesitation in setting forth thecontradiction between natural law and positive law without demandingthe realization of the former through the latter. A passage from Ulpianis drawn upon in the _Digests_, which declares all men to be equalaccording to the law of nature, but slavery to be an institution of thecivil law. [65] The Romans, however, in spite of all mitigation of slavelaws, never thought of such a thing as the abolition of slavery. Thenatural freedom of man was set forth by many writers during theeighteenth century as compatible with lawful servitude. Even Locke, forwhom liberty forms the very essence of man, in his constitution forNorth Carolina sanctioned slavery and servitude. 

Literature alone never produces anything, unless it finds in thehistorical and social conditions ground ready for its working. When oneshows the literary origin of an idea, one has by no means therewithdiscovered the record of its practical significance. The history ofpolitical science to-day is entirely too much a history of theliterature and too little a history of the institutions themselves. Thenumber of new political ideas is very small; the most, at least inembryo, were known to the ancient theories of the state. But theinstitutions are found in constant change and must be seized in theirown peculiar historical forms. 

FOOTNOTES:

[Footnote 46: It harks back finally to the old definition of FlorentinusL. 4 D. 1, 5: "Libertas est naturalis facultas eius, quod cuique facerelibet, 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, _ConstitutionalLimitations_, 6th edition, Boston, 1890, Chap. VII. Even if thestipulation contained in the bills of rights that one can be deprived ofhis property only "by the law of the land" should not be embodied in theconstitution by a state, a law transgressing it would be void by virtueof 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 theright of Protestant subjects to carry arms for their own defensesuitable to their condition (7). ]

[Footnote 53: "And they do claim, demand, and insist upon all andsingular 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 andliberties" of the subjects, but they are also characterized as "the lawsand 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 thegood laws and statutes of this realm, your subjects have inherited thisfreedom. " Gardiner, _The Constitutional Documents of the PuritanRevolution_, 1889, pp. 1, 2. ]

[Footnote 57: "And whereas the laws of England are the birthright of thepeople thereof. " Act of Settlement IV, Stubbs, _Select Charters_, 7thed. , 1890, p. 531. Birthright = right by birth, the rights, privilegesor possessions to which one is entitled by birth; inheritance, patrimony(specifically used of the special rights of the first-born). Murray, _ANew English Dictionary on Historical Principles_, _s. H. V. _]

[Footnote 58: _Cf. _ the instructive work of Dicey, _Introduction to theStudy 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 wholedoctrine of the rights of liberty in the section "The Rule of Law. "Individual liberty according to him is in England simply the correlativeof only permitting the restriction of the individual through laws. ]

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

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

[Footnote 62: Political liberty is no other than national liberty so farrestrained by human laws (and no farther) as is necessary and expedientfor 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 theStoics earlier in Greece had not the least legal success. ]

CHAPTER VII. 

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

The democratic idea, upon which the constitution of the Reformed Churchis based, was carried to its logical conclusion in England toward theend of the sixteenth century, and first of all by Robert Browne and hisfollowers. They declared the Church, which was identical with theparish, to be a community of believers who had placed themselves underobedience to Christ by a compact with God, and they steadfastlyrecognized as authoritative only the will of the community at the timebeing, that is, the will of the majority. [66] Persecuted in EnglandBrownism transformed itself on Dutch soil, especially through theagency of John Robinson, into Congregationalism, in which the earliestform of the Independent movement made its appearance. The principles ofCongregationalism are first complete separation of Church and State andthen the autonomy of each separate parish, --as a petition addressed toJames I. In 1616 expresses it: the right is exercised "of spiritualadministration and government in itself and over itself by the commonand free consent of the people, independently and immediately underChrist. "[67]

This sovereign individualism in the religious sphere led to practicalconsequences of extraordinary importance. From its principles therefinally resulted the demand for, and the recognition of, full andunrestricted liberty of conscience, and then the asserting of thisliberty to be a right not granted by any earthly power and therefore byno earthly power to be restrained. 

But the Independent movement could not confine itself to ecclesiasticalmatters, it was forced by logical necessity to carry its fundamentaldoctrines into the political sphere. As the Church, so it consideredthe state and every political association as the result of a compactbetween its original sovereign members. [68] This compact was made indeedin pursuance of divine commandment, but it remained always the ultimatelegal basis of the community. It was concluded by virtue of theindividual's original right and had not only to insure security andadvance the general welfare, but above all to recognize and protect theinnate and inalienable rights of conscience. And it is the entire peoplethat specifically man for man concluded this compact, for by it alonecould every one be bound to respect the self-created authority and theself-created law. 

The first indications of these religious-political ideas can be tracedfar back, for they were not created by the Reformation. But thepractice which developed on the basis of these ideas was somethingunique. For the first time in history social compacts, by which statesare founded, were not merely demanded, they were actually concluded. What had until then slumbered in the dust-covered manuscripts of thescholar became a powerful, life-determining movement. The men of thattime believed that the state rested upon a contract, and they put theirbelief into practice. More recent theory of public law with only animperfect knowledge of these events frequently employed them as examplesof the possibility of founding a state by contract, without suspectingthat these contracts were only the realization of an abstract theory. 

On October 28, 1647, there was laid before the assembled Council ofCromwell's army a draft, worked out by the Levellers, of a newconstitution for England, [69] which later, greatly enlarged andmodified, [70] was delivered to Parliament with the request that it belaid before the entire English people for signature. [71] In thisremarkable document the power of Parliament was set forth as limited ina manner similar to that later adopted by the Americans, and particularswere enumerated which in future should not lie within the legislativepower of the people's representatives. The first thing named was mattersof religion, which were to be committed exclusively to the command ofconscience. [72] They were reckoned among the inherent rights, the"native rights", which the people were firmly resolved to maintain withtheir utmost strength against all attacks. [73]

Here for the first and last time in England was an inherent right ofreligious liberty asserted in a proposed law. This right is recognizedto-day in England in legal practice, but not in any expressly formulatedprinciple. [74]

The religious conditions in England's North American colonies developeddifferently. 

The compact is celebrated which the persecuted and exiled PilgrimFathers concluded on board the Mayflower, November 11, 1620, before thefounding of New Plymouth. Forty-one men on that occasion signed an actin which, for the glory of God, the advancement of the Christian faith, and the honor of their king and country, they declare their purpose tofound a colony. They thereupon mutually promised one another to unitethemselves into a civil body politic, and, for the maintenance of goodorder and accomplishment of their proposed object, to make laws, toappoint officers, and to subject themselves to these. [75]

Therewith began the series of "Plantation Covenants" which the Englishsettlers, according to their ecclesiastical and political ideas, believed it necessary to make on founding a new colony. Here they areonly to be considered in their connection with religious liberty. 

In 1629 Salem, the second colony in Massachusetts, was founded byPuritans. Unmindful of the persecutions they themselves had suffered intheir native land, they turned impatiently against such as did not agreewith them in their religious ideas. Roger Williams, a young Independent, landed in Massachusetts in 1631 and was at once chosen by the communityin Salem to be its minister. But he preached complete separation ofChurch and State, and demanded absolute religious liberty, not only forall Christians but also for Jews, Turks, and heathen. They should havein the state equal civil and political rights with believers. A man'sconscience belongs exclusively to him, and not to the state. [76] Exiledand 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 arefuge. In the original compact the seceders promised obedience to lawsdetermined by a majority of themselves, but "only in civilthings"--religion was to be in no way a subject of legislation. [77] Herefor the first time was recognized the most unrestricted liberty ofreligious conviction, and that by a man who was himself glowing withreligious feeling. 

Nineteen settlers from Providence in 1638 founded Aquedneck, the secondcolony in the present state of Rhode Island, after having concluded amost remarkable compact: "We whose names are underwritten do heresolemnly, in the presence of Jehovah, incorporate ourselves into a BodiePolitik, and as he shall help, will submit our persons, lives andestates 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 holyword of truth, to be guided and judged hereby. --Exod. Xxiv, 3, 4; 2Chron. Xi, 3; 2 Kings xi, 17. "[78]

But such as did not go so far as Roger Williams in the recognition ofliberty of conscience were yet dominated by the idea of the necessity ofa social compact in founding a new colony. In the Fundamental Orders ofConnecticut, a colony founded by Puritans who also had emigrated fromMassachusetts, the settlers in 1638 declared that they united themselvesin a body politic in pursuance of the word of God in order to guard theliberty of the Gospel and the church discipline to which they wereaccustomed, and in order also in civil affairs to be ruled according tothe laws. [79] In the opposition in which they stood to the religiousconditions in England, the Puritans, although themselves little inclinedto toleration, proceeded invariably upon the idea that their state hadfirst of all to realize religious liberty, which was for them the freeexercise of their own religious convictions. 

The idea that state and government rested upon a compact--so significantfor the development of the American conceptions of individualliberty--was strengthened by the force of historical circumstances. Ahandful of men went forth to found new communities. They began theirwork of civilization scattered over wide stretches in the loneliness ofthe primeval forest. [80] And so they believed that it was possible tolive outside of the state, in a condition of nature, and that when theystepped out of that condition of nature they did it of their own freewill and were not constrained by any earthly power. With their smallnumbers, representation was at first unnecessary, and the decisions werereached in the town meetings of all belonging to the community, --theform of a direct democracy grew naturally out of the given conditionsand strengthened the conviction, which does not correspond to the oldEnglish conception, that the sovereignty of the people is the basis oflegislation and of government. To a generation that could point to suchbeginnings for their state, the political ideas which later animatedthe 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 RogerWilliams had striven so earnestly, found also in the seventeenth centuryits official recognition in law, first in the laws of 1647 of RhodeIsland, and then in the charter which Charles II. Granted the colony ofRhode Island and Providence Plantations in 1663. [81] It was thereinordered in fulfilment of the colonists' request, in a manner evermemorable, that in future in the said colony no person should bemolested, punished or called in question for any differences of opinionin matters of religion; but that all persons at all times should havefull liberty of conscience, so long as they behaved themselves peaceablyand did not misuse this liberty in licentiousness or profaneness, norto the injury or disturbance of others. [82] Thus a colony was grantedthat which in the mother-country at the time was contested to theutmost. Similar principles are found for the first time in Europe in thePractice of Frederick the Great in Prussia. But the principles ofreligious liberty were recognized to a greater or less extent in othercolonies also. Catholic Maryland in 1649 granted freedom in the exerciseof religion to every one who acknowledged Jesus Christ. [83] Also thatremarkable constitution which Locke prepared for North Carolina and thatwent into force there in 1669, and which agrees so little with thetenets of his _Two Treatises on Government_, is based upon the principlenot, it is true, of full equality of rights, but of toleration ofDissenters, and also of Jews and heathen. [84] It was permitted everyseven persons of any religion to form a church or communion offaith. [85] No compulsion in matters of religion was exercised, exceptthat every inhabitant when seventeen years of age had to declare towhich communion he belonged and to be registered in some church, otherwise he stood outside of the protection of the law. [86] Allviolence toward any religious assembly was strictly prohibited. [87] Itwas 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 factthat in his treatise _On Civil Government_ there is not a word upon theright of conscience, which he had so energetically defended in hiscelebrated _Letters on Toleration_, the constitution of North Carolinashows that in his practical plans it held the first place. And so withLocke also liberty of conscience was brought forward as the first andmost sacred right, overshadowing all others. This philosopher, who heldfreedom to be man's inalienable gift from nature, established servitudeand slavery under the government he organized without hesitation, butreligious toleration he carried through with great energy in this newfeudal state. 

Of the other colonies New Jersey had proclaimed extensive toleration in1664, and New York in 1665. [88] In the latter, which had alreadydeclared under Dutch rule in favor of liberal principles in religiousmatters, it was ordered in 1683 that no one who believed on Jesus Christshould on any pretext whatever be molested because of difference ofopinion. In the same year William Penn conferred a constitution withdemocratic basis upon the colony granted to him by the Crown and whichhe had named after his father Pennsylvania, in which it was declaredthat no one who believed on God should in any way be forced to take partin any religious worship or be otherwise molested, [89] and in theconstitution, which Penn later (1701) established and which remained inforce until 1776, he emphasized above all that even when a people wereendowed with the greatest civil liberties they could not be truly happy, unless liberty of conscience were recognized, [90] and at the close hesolemnly promised for himself and his heirs that the recognition of thisliberty, which he had declared, should remain forever inviolable andthat the wording of the article should not be changed in anyparticular. [91] The constitutional principle was thus given at once theforce 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 wasgranted to all Christians except Catholics;[92] and Georgia was given asimilar law in 1732 by George II. [93]

Thus the principles of religious liberty to a greater or less extentacquired constitutional recognition in America. In the closestconnection with the great religious political movement out of which theAmerican democracy was born, there arose the conviction that thereexists a right not conferred upon the citizen but inherent in man, thatacts of conscience and expressions of religious conviction standinviolable over against the state as the exercise of a higher right. This right so long suppressed is no "inheritance", is nothing handeddown from their fathers, as the rights and liberties of Magna Charta andof the other English enactments, --not the State but the Gospelproclaimed it. 

What in Europe at that time and even much later had received officialexpression only in scanty rudiments, [94] and aside from that was onlyasserted in the literature of the great intellectual movement whichbegan in the seventeenth century and reached its height in theclearing-up epoch of the century following, was in Rhode Island andother colonies a recognized principle of the state by the middle of theseventeenth century. The right of the liberty of conscience wasproclaimed, and with it came the conception of a universal right ofman. In 1776 this right was designated by all the bills of rights, mostly in emphatic form and with precedence over all others, as anatural and inherent right. [95]

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

The idea of legally establishing inalienable, inherent and sacred rightsof the individual is not of political but religious origin. What hasbeen held to be a work of the Revolution was in reality a fruit of theReformation and its struggles. Its first apostle was not Lafayette butRoger Williams, who, driven by powerful and deep religious enthusiasm, went into the wilderness in order to found a government of religiousliberty, and his name is uttered by Americans even to-day with thedeepest 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 thestate-compact with the Puritan idea of church covenants is brought outby Borgeaud, p. 9. Weingarten (p. 288) remarks forcibly of theIndependents, "The right of every separate religious community freelyand alone to decide and conduct their affairs was the foundation of thedoctrine of the sovereignty of the people, which they introduced intothe political consciousness of the modern world. "]

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

[Footnote 70: The final text in Gardiner, _Constitutional Documents ofthe 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 worshipare 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 lawsare mentioned restricting the liberty of expressing religious opinionwhich are, however, obsolete, though they have never been formallyrepealed. ]

[Footnote 75: The complete text in Poore, I, p. 931. That it was farfrom the intentions of the settlers to found an independent state isevident from the entire document, in which they characterize themselvesas "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 tounconditional freedom of faith is thoroughly discussed by Weingarten, pp. 110 _et seq. _]

[Footnote 77: Samuel Greene Arnold, _History of the State of RhodeIsland_, 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 in1640 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 themother-country did not make this liberty appear dangerous though it wasin such contradiction to the conditions in England. Charles II. Soughtfurther, in his aversion to the Puritans, to favor as much as possiblethe colonies that had separated from Massachusetts. ]

[Footnote 82: "Our royall will and pleasure is, that noe person withinthe sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences inopinione in matters of religion, and doe not actually disturb the civillpeace of our sayd colony; but that all and everye person and personsmay, from tyme to tyme, and at all tymes hereafter, freelye and fullyehave and enjoye his and their owne judgments and consciences, in mattersof religious concernments, throughout the tract of lande hereaftermentioned; they behaving themselves peaceablie and quietlie, and notuseing this libertie to lycentiousnesse and profanenesse, nor to thecivill injurye or outward disturbeance of others; any lawe, statute orclause, therein contayned, or to bee contayned, usage or custome of thisrealme, 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 inthe Maryland Colony_. Inaugural-Dissertation. Heidelberg, 1894, p. 26_et seq_. ]

[Footnote 84: Carolina had already had religious toleration in theCharter of 1665. Poore, II, p. 1397. Locke himself wished to grant fullreligious 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 theUnited 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 asthe 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 andState in New England_ in _Johns Hopkins University Studies, 10thSeries_, 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 underAnne and restored under George I. Since George II. They have beenadmitted to all offices. As is well known, however, the restrictionsupon the Catholics and Jews have been done away with only in ourcentury. In Germany after the scanty concessions of the Peace ofOsnabrück, a state of affairs similar to that earlier in America wasfirst created by the Toleration Patent of Joseph II. Of 1781, the Edictof Frederick William II. Of July 9, 1788, that which codified theprinciples 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 thedirection of full political equality to the members of all confessions, differed in the different states. New York was the first state afterRhode Island that brought about the separation of church and state. Virginia followed next in 1785. For some time after in many statesProtestant or at least Christian belief was necessary to obtain office. And even to-day some states require belief in God, in immortality, andin a future state of rewards and punishments. Massachusetts declared inher bill of rights not only the right but the duty of worship, and aslate as 1799 punished neglect of church attendance. In the course of thenineteenth century these and other restrictions have fallen away exceptfor a very small part. For the Union the exercise of political rights ismade entirely independent of religious belief by Art. VI of theConstitution, and also by the famous First Amendment the establishmentof any religion or prohibiting the free exercise thereof is forbidden. On the present condition in the separate states, _cf. _ the thoroughdiscussion by Cooley, Chap. XIII, pp. 541-586; further Rüttiman, _Kircheund Staat in Nordamerika_ (1871). ]

[Footnote 96: "Among the natural rights, some are in their very natureunalienable, because no equivalent can be given or received for them. Ofthis 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 THEAMERICAN REVOLUTION. 

The seventeenth century was a time of religious struggles. In thefollowing century political and economic interests pressed into theforeground of historical movement. The democratic institutions of thecolonies were repeatedly in opposition to those of the mother-country, and the ties that bound them to her lost more and more of theirsignificance. The great antagonism of their economic interests began tomake itself widely felt. The economic prosperity of the coloniesdemanded the least possible restriction upon free movement. Finally theyfelt that they were ruled not by their old home but by a foreigncountry. 

Then the old Puritan and Independent conceptions became effective in anew direction. The theory of the social compact which played soimportant a rôle in the founding of the colonies, and had helped toestablish religious liberty, now supported in the most significant waythe reconstruction of existing institutions. Not that it changed theseinstitutions, it simply gave them a new basis. 

The colonists had brought over the ocean with them their liberties andrights as English-born subjects. In a series of charters from theEnglish kings it was specifically stated that the colonists and theirdescendants should enjoy all the rights which belonged to Englishmen intheir native land. [97] Even before the English Bill of Rights the mostof the colonies had enacted laws in which the ancient English libertieswere gathered together. [98] There occurred, however, in the second halfof the eighteenth century a great transformation in these old rights. The inherited rights and liberties, as well as the privileges oforganization, which had been granted the colonists by the English kingsor had been sanctioned by the colonial lords, do not indeed change inword, but they become rights which spring not from man but from God andNature. 

To these ancient rights new ones were added. With the conviction thatthere existed a right of conscience independent of the State was foundthe starting-point for the determination of the inalienable rights ofthe individual. The theory of a Law of Nature recognized generally butone natural right of the individual--liberty or property. In theconceptions of the Americans, however, in the eighteenth century thereappears a whole series of such rights. 

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

In 1764 there appeared in Boston the celebrated pamphlet of James Otisupon _The Rights of the British Colonies_. In it was brought forward theidea that the political and civil rights of the English colonists in noway rested upon a grant from the crown; even Magna Charta, old as itmight be, was not the beginning of all things. "A time may come whenParliament shall declare every American charter void; but the natural, inherent, and inseparable rights of the colonists as men and as citizenswould remain, and, whatever became of charters, can never be abolishedtill the general conflagration. "[100]

In this pamphlet definite limitations of the legislative power "whichhave been established by God and by Nature" are already enumerated inthe form of the later bills of rights. As the center of the whole stoodthe principal occasion of strife between the colonies and themother-country, the right of taxation. That the levying of taxes orduties without the consent of the people or of representatives of thecolonies was not indeed contrary to the laws of the country, butcontrary to the eternal laws of liberty. [101] But these limitations werenone other than those enumerated by Locke, which "the law of God and ofNature has set for every legislative power in every state and in everyform of government". 

But these propositions of Locke's are here found in a very radicaltransformation. They are changing namely from law to personal right. While Locke, similar to Rousseau later, places the individuals insubjection to the will of the majority of the community, upon which, however, restrictions are placed by the objects of the state, now theindividual establishes the conditions under which he will enter thecommunity, and in the state holds fast to these conditions as rights. Hehas accordingly rights in the state and claims upon the state which donot spring from the state. In opposition to England's attempt torestrict these rights, the idea formally to declare them and to defendthem grew all the stronger. 

This formulation was influenced by a work that was published anonymouslyat Oxford in 1754, in which for the first time "absolute rights" of theEnglish are mentioned. [102] It originated from no less a person thanBlackstone. [103] These rights of the individual were voiced inBlackstone'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 andcitizens was adopted by all the assembled citizens of Boston. It wastherein declared, with an appeal to Locke, that men enter into the stateby voluntary agreement, and they have the right beforehand in anequitable compact to establish conditions and limitations for the stateand to see to it that these are carried out. Thereupon the colonistsdemanded as men the right of liberty and of property, as Christiansfreedom of religion, and as citizens the rights of Magna Charta and ofthe Bill of Rights of 1689. [105]

Finally, on October 14, 1774, the Congress, representing twelvecolonies, assembled in Philadelphia adopted a declaration of rights, according to which the inhabitants of the North American Colonies haverights which belong to them by the unchangeable law of nature, by theprinciples of the constitution of England and by their ownconstitutions. [106]

From that to the declaration of rights by Virginia is apparently only astep, and yet there is a world-wide difference between the twodocuments. The declaration of Philadelphia is a protest, that ofVirginia a law. The appeal to England's law has disappeared. The stateof Virginia solemnly recognizes rights pertaining to the present andfuture generations as the basis and foundation of government. [107]

In this and the following declarations of rights by the now sovereignstates of North America, by the side of the rights of liberty that hadbeen thus far asserted, --liberty of person, of property and ofconscience, --stand new ones, corresponding to the infringements mostrecently suffered at England's hands of other lines of individualliberty: the right of assembly, the freedom of the press and freemovement. But these rights of liberty were not the only ones thereinasserted, there were the right of petition, the demand for theprotection of law and the forms to be observed in insuring that, aspecial demand for trial by an independent jury, and in the same waywith regard to other acts of the state; and the foundations of thecitizen's political rights were also declared. They thus containedaccording to the intentions of their authors the distinctive features ofthe entire public right of the individual. Besides these were includedthe principle of the division of powers, of rotation of office, ofaccountability of office-holders, of forbidding hereditary titles, andthere were further contained certain limitations on the legislature andexecutive, such as forbidding the keeping of a standing army or creatingan established church, --all of which do not engender personal rights ofthe individual at all, or do so only indirectly. The whole is based uponthe principle of the sovereignty of the people, and culminates in theconception of the entire constitution being an agreement of allconcerned. In this particular one sees clearly the old Puritan-Independentidea of the covenant in its lasting influence, of which new power was tobe significantly displayed later. When to-day in the separate states ofthe Union changes in the constitution are enacted either by the peoplethemselves, or through a constitutional convention, there still lives inthis democratic institution the same idea that once animated the settlersof 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 andunrestricted individual, was first established, and then the right ofthat which the individuals created, namely, the community. 

In spite of the general accord of these fundamental principles, when itcame to carrying them out in practical legislation great differencesarose in the various states, and though these differences were afterwardgreatly lessened they have not entirely disappeared even to-day. Thus, as mentioned above, religious liberty, in spite of its universalrecognition in the constitutions, was not everywhere nor at once carriedout in all of its consequences. In spite of the assertion that all menare by nature free and equal the abolition of slavery was not thenaccomplished. 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 onlylater that the qualification of citizenship of the United States wasrequired in most of the states for the exercise of political rights. 

We have thus seen by what a remarkable course of development there aroseout of the English law, old and new, that was practised in thecolonies, the conception of a sphere of rights of the individual, whichwas independent of the state, and by the latter was simply to berecognized. In reality, however, the declarations of rights did nothingelse than express the existing condition of rights in definite universalformulas. 

That which the Americans already enjoyed they wished to proclaim as aperpetual possession for themselves and for every free people. Incontrast to them the French wished to give that which they did not yethave, namely, institutions to correspond to their universal principles. Therein lies the most significant difference between the American andFrench declarations of rights, that in the one case the institutionspreceded the recognition of rights of the individual, in the other theyfollowed after. Therein lay also the fatal mistake of the GermanNational Assembly at Frankfort which wished to determine first therights of the individual and then establish the state. The German statewas not yet founded, but it was already settled what this state not yetexisting dare not do and what it had to concede. The Americans couldcalmly precede their plan of government with a bill of rights, becausethat government and the controlling laws had already long existed. 

One thing, however, has resulted from this investigation withirrefutable certainty. The principles of 1789 are in reality theprinciples 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 declarationsof 1776 and those after. ]

[Footnote 99: Borgeaud, p. 27, cites a treatise by John Wyse as havinghad great influence in the democratizing of ideas in Massachusetts. Thisman, whose name was John Wise, has done nothing else than takePufendorf's theories as the basis of his work, as he himselfspecifically declares. _Cf. _ J. Wise, _A Vindication on the Governmentof 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 assertedand proved_, 1764, reprinted London, p. 106. ]

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

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

[Footnote 107: The heading of the bill of rights reads: "A declarationof rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to themand 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 thatthe doctrine of an original right of the individual and of a statecompact, arising as far back as the time of the Sophists in the ancientworld, further developed in the mediæval theory of Natural Law, andcarried on by the currents of the Reformation, --why is it that thisdoctrine advanced to epoch-making importance for the first time inEngland and her colonies? And in general, in a thoroughly monarchicalstate, all of whose institutions are inwardly bound up with royalty andonly through royalty can be fully comprehended, how could republicanideas press in and change the structure of the state so completely?

The immediate cause thereof lies clearly before us. The antagonismbetween the dynasty of the Stuarts, who came from a foreign land andrelied upon their divine right, and the English national conceptions ofright, and also the religious wars with royalty in England and Scotland, seem to have sufficiently favored the spreading of doctrines which wereable to arouse an energetic opposition. Yet similar conditions existedin many a Continental state from the end of the sixteenth to the middleof the seventeenth century. There, too, arose a strong opposition of theestates to royalty which was striving more and more towards absolutism, fearful religious wars broke out and an extensive literature sought withgreat energy to establish rights of the people and of the individualover against the rulers. The revolutionary ideas on the continent led itis true in France to regicide, but there was nowhere an attempt made ata reconstruction of the whole state system. Locke's doctrines of a Lawof Nature appear to have had no influence at all outside of England. TheContinental doctrines of natural law played their important part for thefirst time at the end of the eighteenth century in the great socialtransformation of the French Revolution. 

It was not without result that England in distinction from the Continenthad withstood the influence of the Roman Law. The English legalconceptions have by no means remained untouched by the Roman, but theyhave 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 withthe later Roman conceptions of the state's omnipotence. 

The Teutonic state, however, in distinction from the ancient, so far asthe latter is historically known to us, rose from weak beginnings toincreasing power. The competence of the Teutonic state was in thebeginning very narrow, the individual was greatly restricted by hisfamily and clan, but not by the state. The political life of the MiddleAges found expression rather in associations than in a state whichexhibited at first only rudimentary forms. 

At the beginning of modern times the power of the state became more andmore concentrated. This could happen in England all the easier becausethe Norman kings had already strongly centralized the administration. As early as the end of the sixteenth century Sir Thomas Smith couldspeak of the unrestricted power of the English Parliament, [108] whichCoke a little later declared to be "absolute and transcendent". [109]

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

Magna Charta declares that the liberties and rights conceded by it aregranted "_in perpetuum_". [110] In the Bill of Rights it was ordainedthat everything therein contained should "remain the law of this realmforever". [111] In spite of the nominal omnipotence of the state a limitwhich it shall not over-step is specifically demanded and recognized inthe most important fundamental laws. 

In these nominally legal but perfectly meaningless stipulations, the oldTeutonic legal conception of the state's limited sphere of activityfinds expression. 

The movement of the Reformation was also based on the idea of therestriction of the state. Here, however, there entered the conception ofa second restriction which was conditioned by the entire historicaldevelopment. The mediæval state found restrictions not only in thestrength of its members, but also in the sphere of the church. Thequestion as to how far the state's right extended in spiritual matterscould only be fully raised after the Reformation, because through theReformation those limits which had been fixed in the Middle Ages againbecame disputable. The new defining of the religious sphere and thewithdrawal of the state from that sphere were also on the lines ofnecessary historical development. 

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

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

An insight into these historical facts is of the greatest importance fora correct legal comprehension of the relation of the state and theindividual. There are here two possibilities, both of which can belogically carried out. According to the one the entire sphere of rightof the individual is the product of state concession and permission. According to the other the state not only engenders rights of theindividual, but it also leaves the individual that measure of libertywhich it does not itself require in the interest of the whole. Thisliberty, however, it does not create but only recognizes. 

The first conception is based upon the idea of the state's omnipotenceas it was most sharply defined in the absolutist doctrines of thesixteenth and seventeenth centuries. Its extreme consequence has beendrawn 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 conceptionof right corresponding to the historical facts of the gradualdevelopment of the state's power. If natural right is identical withnon-historical right, then the first doctrine is for the modern statethat of natural right, the second that of historical right. However muchthe boundaries of that recognized liberty have changed in the course oftime, the consciousness that such boundaries existed was neverextinguished in the Teutonic peoples even at the time of the absolutestate. [113]

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

At first glance the question does not seem to be of great practicalsignificance, whether an act of the individual is one directly permittedby the state or one only indirectly recognized. But it is not the taskof the science of law merely to train the judge and the administrativeofficer and teach them to decide difficult cases. To recognize the trueboundaries between the individual and the community is the highestproblem that thoughtful consideration of human society has to solve. 

FOOTNOTES:

[Footnote 108: "The most high and absolute power of the realm of Englandconsisteth in the Parliament . . . All that ever the people of Rome mightdo, either in _centuriatis comitiis_ or _tributis_, the same may be doneby the Parliament of England, which representeth and hath the power ofthe whole realm, both the head and the body. " _The Commonwealth ofEngland_, 1589, Book II, reprinted in Prothero, _Select Statutes andDocuments 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 theproduct 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 ofnatural right. The decision of such important questions can only beaccomplished by careful historical analysis, which will show differentresults for different epochs, --that, for example, the legal nature ofliberty is entirely different in the ancient state and in the modern. Legal dialectics can easily deduce the given condition with equallylogical acuteness from principles directly opposed to one another. Thetrue principle is taught not by jurisprudence but by history. ]

[Footnote 114: _Cf. _ more explicitly on this, Jellinek, _loc. Cit. _, pp. 43, 89 _et seq. _]

_SECOND IMPRESSION. _

FORD'S THE FEDERALIST. 

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