Read Ebook: The Declaration of the Rights of Man and of Citizens by Jellinek Georg Farrand Max Translator

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first and most sacred right, overshadowing all others. This philosopher, who held freedom to be man's inalienable gift from nature, established servitude and slavery under the government he organized without hesitation, but religious toleration he carried through with great energy in this new feudal state.

Thus the principles of religious liberty to a greater or less extent acquired constitutional recognition in America. In the closest connection with the great religious political movement out of which the American democracy was born, there arose the conviction that there exists a right not conferred upon the citizen but inherent in man, that acts of conscience and expressions of religious conviction stand inviolable over against the state as the exercise of a higher right. This right so long suppressed is no "inheritance", is nothing handed down from their fathers, as the rights and liberties of Magna Charta and of the other English enactments,--not the State but the Gospel proclaimed it.

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

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

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

FOOTNOTES:

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

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

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

The colonists had brought over the ocean with them their liberties and rights as English-born subjects. In a series of charters from the English kings it was specifically stated that the colonists and their descendants should enjoy all the rights which belonged to Englishmen in their native land. Even before the English Bill of Rights the most of the colonies had enacted laws in which the ancient English liberties were gathered together. There occurred, however, in the second half of the eighteenth century a great transformation in these old rights. The inherited rights and liberties, as well as the privileges of organization, which had been granted the colonists by the English kings or had been sanctioned by the colonial lords, do not indeed change in word, but they become rights which spring not from man but from God and Nature.

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

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

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

But these propositions of Locke's are here found in a very radical transformation. They are changing namely from law to personal right. While Locke, similar to Rousseau later, places the individuals in subjection to the will of the majority of the community, upon which, however, restrictions are placed by the objects of the state, now the individual establishes the conditions under which he will enter the community, and in the state holds fast to these conditions as rights. He has accordingly rights in the state and claims upon the state which do not spring from the state. In opposition to England's attempt to restrict these rights, the idea formally to declare them and to defend them grew all the stronger.

Finally, on October 14, 1774, the Congress, representing twelve colonies, assembled in Philadelphia adopted a declaration of rights, according to which the inhabitants of the North American Colonies have rights which belong to them by the unchangeable law of nature, by the principles of the constitution of England and by their own constitutions.

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

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

Everywhere the bill of rights forms the first part of the constitution, following which as second part comes the plan or frame of government. The right of the creator of the state, the originally free and unrestricted individual, was first established, and then the right of that which the individuals created, namely, the community.

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

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

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

That which the Americans already enjoyed they wished to proclaim as a perpetual possession for themselves and for every free people. In contrast to them the French wished to give that which they did not yet have, namely, institutions to correspond to their universal principles. Therein lies the most significant difference between the American and French declarations of rights, that in the one case the institutions preceded the recognition of rights of the individual, in the other they followed after. Therein lay also the fatal mistake of the German National Assembly at Frankfort which wished to determine first the rights of the individual and then establish the state. The German state was not yet founded, but it was already settled what this state not yet existing dare not do and what it had to concede. The Americans could calmly precede their plan of government with a bill of rights, because that government and the controlling laws had already long existed.

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

FOOTNOTES:

THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT.

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

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

It was not without result that England in distinction from the Continent had withstood the influence of the Roman Law. The English legal conceptions have by no means remained untouched by the Roman, but they have not been nearly so deeply influenced by them as the Continental. The public law especially developed upon an essentially Teutonic basis, and the original Teutonic ideas of right have never been overgrown with the later Roman conceptions of the state's omnipotence.

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

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

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

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

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

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

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

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

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

"Jahrelang schon bedien' ich mich meiner Nase zum Riechen; Hab' ich denn wirklich an sie auch ein erweisliches Recht?"

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

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

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

FOOTNOTES:

FORD'S THE FEDERALIST.

HENRY HOLT & CO.,

A work intended for the thoughtful reader without much previous knowledge of the subject. To be completed in four volumes, the second of which is now in press.

LEE'S SOURCE BOOK OF ENGLISH HISTORY

Some 200 documents and selections from contemporaries from Herodotus to the last treaty with the Boers. With a full Bibliography of Sources .

HENDERSON'S SIDE LIGHTS ON ENGLISH HISTORY

Studies in the Science of Significations, as distinguished from the Science of Sounds . The style is pleasing, and the enjoyment of the book requires no previous philological training.

SWEET'S PRACTICAL STUDY OF LANGUAGES

FRANCIS A. WALKER

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