Produced by Bryan Ness, Graeme Mackreth and the Online Distributed Proofreading Team at https://www.pgdp.net (This book was produced from scanned images of public domain material from the Google Print project.) THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS _A Contribution to Modern Constitutional History_ BY GEORG JELLINEK, DR. PHIL. ET JUR. _Professor of Law in the University of Heidelberg AUTHORIZED TRANSLATION FROM THE GERMAN_ BY MAX FARRAND, PH.D. _Professor of History in Wesleyan University_ _REVISED BY THE AUTHOR_ [Illustration] NEW YORK HENRY HOLT AND COMPANY 1901 Copyright, 1901. BY HENRY HOLT & CO. ROBERT DRUMMOND, PRINTER, NEW YORK. TRANSLATOR'S PREFACE. Although several years have elapsed since this essay was published, it has apparently come to the attention of only a few specialists, and those almost exclusively in modern European history. It deserves consideration by all students of history, and it is of special importance to those who are interested in the early constitutional history of the United States, for it traces the origin of the enactment of bills of rights. In the hope that it will be brought before a larger number of students who realize the significance of this question and who appreciate genuine scholarly work, this essay is now translated. M.F. WESLEYAN UNIVERSITY, MIDDLETOWN, CT., _March 1, 1901_. TABLE OF CONTENTS. CHAPTER PAGE I. THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26, 1789, AND ITS SIGNIFICANCE 1 II. ROUSSEAU'S "CONTRAT SOCIAL" WAS NOT THE SOURCE OF THIS DECLARATION 8 III. THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES OF THE NORTH AMERICAN UNION WERE ITS MODELS 13 IV. VIRGINIA'S BILL OF RIGHTS AND THOSE OF THE OTHER NORTH AMERICAN STATES 22 V. COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS 27 VI. THE CONTRAST BETWEEN THE AMERICAN AND ENGLISH DECLARATIONS OF RIGHTS 43 VII. RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIES THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL RIGHT OF MAN 59 VIII. THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF CITIZENS DURING THE AMERICAN REVOLUTION 78 IX. THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT 90 THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS. CHAPTER I. THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26, 1789, AND ITS SIGNIFICANCE. The declaration of "the rights of man and of citizens" by the French Constituent Assembly on August 26, 1789, is one of the most significant events of the French Revolution. It has been criticised from different points of view with directly opposing results. The political scientist and the historian, thoroughly appreciating its importance, have repeatedly come to the conclusion that the Declaration had no small part in the anarchy with which France was visited soon after the storming of the Bastille. They point to its abstract phrases as ambiguous and therefore dangerous, and as void of all political reality and practical statesmanship. Its empty pathos, they say, confused the mind, disturbed calm judgment, aroused passions, and stifled the sense of duty,--for of duty there is not a word.[1] Others, on the contrary, and especially Frenchmen, have exalted it as a revelation in the world's history, as a catechism of the "principles of 1789" which form the eternal foundation of the state's structure, and they have glorified it as the most precious gift that France has given to mankind. Less regarded than its historical and political significance is the importance of this document in the history of law, an importance which continues even to the present day. Whatever may be the value or worthlessness of its general phrases, it is under the influence of this document that the conception of the public rights of the individual has developed in the positive law of the states of the European continent. Until it appeared public law literature recognized the rights of heads of states, the privileges of class, and the privileges of individuals or special corporations, but the general rights of subjects were to be found essentially only in the form of duties on the part of the state, not in the form of definite legal claims of the individual. The Declaration of the Rights of Man for the first time originated in all its vigor in positive law the conception, which until then had been known only to natural law, of the personal rights of the members of the state over against the state as a whole. This was next seen in the first French constitution of September 3, 1791, which set forth, upon the basis of a preceding declaration of rights, a list of _droits naturels et civils_ as rights that were guaranteed by the constitution.[2] Together with the right of suffrage, the "_droits garantis par la constitution_", which were enumerated for the last time in the constitution of November 4, 1848,[3] form to-day the basis of French theory and practice respecting the personal public rights of the individual.[4] And under the influence of the French declaration there have been introduced into almost all of the constitutions of the other Continental states similar enumerations of rights, whose separate phrases and formulas, however, are more or less adapted to the particular conditions of their respective states, and therefore frequently exhibit wide differences in content. In Germany most of the constitutions of the period prior to 1848 contained a section upon the rights of subjects, and in the year 1848 the National Constitutional Convention at Frankfort adopted "the fundamental rights of the German people", which were published on December 27, 1848, as Federal law. In spite of a resolution of the _Bund_ of August 23, 1851, declaring these rights null and void, they are of lasting importance, because many of their specifications are to-day incorporated almost word for word in the existing Federal law.[5] These enumerations of rights appear in greater numbers in the European constitutions of the period after 1848. Thus, first of all, in the Prussian constitution of January 31, 1850, and in Austria's "Fundamental Law of the State" of December 21, 1867, on the general rights of the state's citizens. And more recently they have been incorporated in the constitutions of the new states in the Balkan peninsula. A noteworthy exception to this are the constitutions of the North German Confederation of July 26, 1867, and of the German Empire of April 16, 1871, which lack entirely any paragraph on fundamental rights. The constitution of the Empire, however, could the better dispense with such a declaration as it was already contained in most of the constitutions of the individual states, and, as above stated, a series of Federal laws has enacted the most important principles of the Frankfort fundamental rights. Besides, with the provisions of the Federal constitution as to amendments, it was not necessary to make any special place for them in that instrument, as the Reichstag, to whose especial care the guardianship of the fundamental rights must be entrusted, has no difficult forms to observe in amending the constitution.[6] As a matter of fact the public rights of the individual are much greater in the German Empire than in most of the states where the fundamental rights are specifically set forth in the constitution. This may be seen, for example, by a glance at the legislation and the judicial and administrative practice in Austria. But whatever may be one's opinion to-day upon the formulation of abstract principles, which only become vitalized through the process of detailed legislation, as affecting the legal position of the individual in the state, the fact that the recognition of such principles is historically bound up with that first declaration of rights makes it an important task of constitutional history to ascertain the origin of the French Declaration of Rights of 1789. The achievement of this task is of great importance both in explaining the development of the modern state and in understanding the position which this state assures to the individual. Thus far in the works on public law various precursors of the declaration of the Constituent Assembly, from Magna Charta to the American Declaration of Independence, have been enumerated and arranged in regular sequence, yet any thorough investigation of the sources from which the French drew is not to be found. It is the prevailing opinion that the teachings of the _Contrat Social_ gave the impulse to the Declaration, and that its prototype was the Declaration of Independence of the thirteen United States of North America. Let us first of all inquire into the correctness of these assumptions. FOOTNOTES: [Footnote 1: First of all, as is well known, Burke and Bentham, and later Taine, _Les origines de la France contemporaine: La révolution_, I, pp. 273 _et seq._; Oncken, _Das Zeitalter der Revolution, des Kaiserreiches und der Befreiungskriege_, I, pp. 229 _et seq._; and Weiss, _Geschichte der französischen Revolution_, 1888, I, p. 263.] [Footnote 2: Titre premier: "Dispositions fondamentales garanties par la constitution."] [Footnote 3: Hélie, _Les constitutions de la France_, pp. 1103 _et seq._] [Footnote 4: _Cf._ Jellinek, _System der subjektiven öffentlichen Rechte_, p. 3, n. 1.] [Footnote 5: Binding, _Der Versuch der Reichsgründung durch die Paulskirche_, Leipzig, 1892, p. 23.] [Footnote 6: When considering the constitution, the Reichstag rejected all proposals which aimed to introduce fundamental rights. _Cf._ Bezold, _Materialen der deutschen Reichsverfassung_, III, pp. 896-1010.] CHAPTER II. ROUSSEAU'S _CONTRAT SOCIAL_ WAS NOT THE SOURCE OF THIS DECLARATION. In his _History of Political Science_--the most comprehensive work of that kind which France possesses--Paul Janet, after a thorough presentation of the _Contrat Social_, discusses the influence which this work of Rousseau's exercised upon the Revolution. The idea of the declaration of rights is to be traced back to Rousseau's teachings. What else is the declaration itself than the formulation of the state contract according to Rousseau's ideas? And what are the several rights but the stipulations and specifications of that contract?[7] It is hard to understand how an authority upon the _Contrat Social_ could make such a statement though in accord with popular opinion. The social contract has only one stipulation, namely, the complete transference to the community of all the individual's rights.[8] The individual does not retain one particle of his rights from the moment he enters the state.[9] Everything that he receives of the nature of right he gets from the _volonté générale_, which is the sole judge of its own limits, and ought not to be, and cannot be, restricted by the law of any power. Even property belongs to the individual only by virtue of state concession. The social contract makes the state the master of the goods of its members,[10] and the latter remain in possession only as the trustees of public property.[11] Civil liberty consists simply of what is left to the individual after taking his duties as a citizen into account.[12] These duties can only be imposed by law, and according to the social contract the laws must be the same for all citizens. This is the only restriction upon the sovereign power,[13] but it is a restriction which follows from the very nature of that power, and it carries in itself its own guarantees.[14] The conception of an original right, which man brings with him into society and which appears as a restriction upon the rights of the sovereign, is specifically rejected by Rousseau. There is no fundamental law which can be binding upon the whole people, not even the social contract itself.[15] The Declaration of Rights, however, would draw dividing lines between the state and the individual, which the lawmaker should ever keep before his eyes as the limits that have been set him once and for all by "the natural, inalienable and sacred rights of man."[16] The principles of the _Contrat Social_ are accordingly at enmity with every declaration of rights. For from these principles there ensues not the right of the individual, but the omnipotence of the common will, unrestricted by law. Taine comprehended better than Janet the consequences of the _Contrat Social_.[17] The Declaration of August 26, 1789, originated in opposition to the _Contrat Social_. The ideas of the latter work exercised, indeed, a certain influence upon the style of some clauses of the Declaration, but the conception of the Declaration itself must have come from some other source. FOOTNOTES: [Footnote 7: "Est-il nécessaire de prouver, qu'un tel acte ne vient point de Montesquieu, mais de J.-J. Rousseau?... Mais l'acte même de la déclaration est-il autre chose que le contrat passé entre tous les membres de la communauté, selon les idées de Rousseau? N'est ce pas l'énonciation des clauses et des conditions de ce contrat?"--_Histoire de la science politique, 3me éd._, pp. 457, 458.] [Footnote 8: "Ces clauses, bien entendues, se réduisent toutes à une seule: savoir l'aliénation totale de chaque associé avec tous ses droits à toute la communauté."--_Du contrat social_, I, 6.] [Footnote 9: "De plus, l'aliénation se faisant sans réserve, l'union est aussi parfaite qu'elle peut l'être et nul associé n'a plus rien à réclamer." I, 6.] [Footnote 10: "Car l'État, à l'égard de ses membres, est maître de tous leurs biens par le contrat social." I, 9.] [Footnote 11: "... Les possesseurs étant considérés comme dépositaires du bien public." I, 9.] [Footnote 12: "On convient que tout ce que chacun aliène, par le pacte social, de sa puissance, de ses biens, de sa liberté, c'est seulement la partie de tout cela dont l'usage importe à la communauté; mais il faut convenir aussi que le souverain seul est juge de cette importance." II, 4.] [Footnote 13: "Ainsi, par la nature du pacte, tout acte de souveraineté, c'est-à-dire toute acte authentique de la volonté générale, oblige ou favorise également tous les citoyens." II, 4.] [Footnote 14: "La puissance souverain n'a nul besoin de garant envers les sujets." I, 7.] [Footnote 15: "Il est contre la nature du corps politique que le souverain s'impose une loi qu'il ne puisse enfreindre ... il n'y a ni ne peut y avoir nulle espèce de loi fundamentale obligatoire pour le corps du peuple, pas même le contrat social." I, 7.] [Footnote 16: Constitution du 3 septembre 1791, titre premier: "Le pouvoir législatif ne pourra faire aucune loi qui porte atteinte et mette obstacle à l'exercise de droits naturels et civils consignés dans le présent titre, et garantis par la constitution."] [Footnote 17: _Cf._ Taine, _loc. cit._: _L'ancien régime_, pp. 321 _et seq._] CHAPTER III. THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES OF THE NORTH AMERICAN UNION WERE ITS MODELS. The conception of a declaration of rights had found expression in France even before the assembling of the States General. It had already appeared in a number of _cahiers_. The _cahier_ of the _Bailliage_ of Nemours is well worth noting, as it contained a chapter entitled "On the Necessity of a Declaration of the Rights of Man and of Citizens",[18] and sketched a plan of such a declaration with thirty articles. Among other plans that in the _cahier des tiers état_ of the city of Paris has some interest.[19] In the National Assembly, however, it was Lafayette who on July 11, 1789, made the motion to enact a declaration of rights in connection with the constitution, and he therewith laid before the assembly a plan of such a declaration.[20] It is the prevailing opinion that Lafayette was inspired to make this motion by the North American Declaration of Independence.[21] And this instrument is further declared to have been the model that the Constituent Assembly had in mind in framing its declaration. The sharp, pointed style and the practical character of the American document are cited by many as in praiseworthy contrast to the confusing verbosity and dogmatic theory of the French Declaration.[22] Others bring forward, as a more fitting object of comparison, the first amendments to the constitution of the United States,[23] and even imagine that the latter exerted some influence upon the French Declaration, in spite of the fact that they did not come into existence until after August 26, 1789. This error has arisen from the French Declaration of 1789 having been embodied word for word in the Constitution of September 3, 1791, and so to one not familiar with French constitutional history, and before whom only the texts of the constitutions themselves are lying, it seems to bear a later date. By practically all those, however, who look further back than the French Declaration it is asserted that the Declaration of Independence of the United States on July 4, 1776, contains the first exposition of a series of rights of man.[24] Yet the American Declaration of Independence contains only a single paragraph that resembles a declaration of rights. It reads as follows: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness; That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed; That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." This sentence is so general in its content that it is difficult to read into it, or deduct from it, a whole system of rights. It is therefore, at the very start, improbable that it served as the model for the French Declaration. This conjecture becomes a certainty through Lafayette's own statement. In a place in his _Memoirs_, that has as yet been completely overlooked, Lafayette mentions the model that he had in mind when making his motion in the Constituent Assembly.[25] He very pertinently points out that the Congress of the newly formed Confederation of North American free states was then in no position to set up, for the separate colonies, which had already become sovereign states, rules of right which would have binding force. He brings out the fact that in the Declaration of Independence there are asserted only the principles of the sovereignty of the people and the right to change the form of government. Other rights are included solely by implication from the enumeration of the violations of right, which justified the separation from the mother country. The constitutions of the separate states, however, were preceded by declarations of rights, which were binding upon the people's representatives. _The first state to set forth a declaration of rights properly so called was Virginia._[26] The declarations of Virginia and of the other individual American states were the sources of Lafayette's proposition. They influenced not only Lafayette, but all who sought to bring about a declaration of rights. Even the above-mentioned _cahiers_ were affected by them. The new constitutions of the separate American states were well known at that time in France. As early as 1778 a French translation of them, dedicated to Franklin, had appeared in Switzerland.[27] Another was published in 1783 at Benjamin Franklin's own instigation.[28] Their influence upon the constitutional legislation of the French Revolution is by no means sufficiently recognized. In Europe until quite recently only the Federal constitution was known, not the constitutions of the individual states, which are assuming a very prominent place in modern constitutional history. This must be evident from the fact, which is even yet unrecognized by some distinguished historians and teachers of public law, that the individual American states had the first written constitutions. In England and France the importance of the American state constitutions has begun to be appreciated,[29] but in Germany they have remained as yet almost unnoticed. For a long time, to be sure, the text of the older constitutions in their entirety were only with difficulty accessible in Europe. But through the edition, prepared by order of the United States Senate,[30] containing all the American constitutions since the very earliest period, one is now in a position to become acquainted with these exceptionally important documents. The French Declaration of Rights is for the most part copied from the American declarations or "bills of rights".[31] All drafts of the French Declaration, from those of the _cahiers_ to the twenty-one proposals before the National Assembly, vary more or less from the original, either in conciseness or in breadth, in cleverness or in awkwardness of expression. But so far as substantial additions are concerned they present only doctrinaire statements of a purely theoretical nature or elaborations, which belong to the realm of political metaphysics. To enter upon them here is unnecessary. Let us confine ourselves to the completed work, the Declaration as it was finally determined after long debate in the sessions from the twentieth to the twenty-sixth of August.[32] FOOTNOTES: [Footnote 18: "De la nécessité d'établir quels sont les droits de l'homme et des citoyens, et d'en faire une déclaration qu'ils puissent opposer à toutes les espèces d'injustice."--_Archives parlementaires I. Série_, IV, pp. 161 _et seq._] [Footnote 19: _Archives parl._, V, pp. 281 _et seq._] [Footnote 20: _Arch. parl._, VIII, pp. 221, 222.] [Footnote 21: _Cf. e.g._ H. v. Sybel, _Geschichte der Revolutionszeit von 1789 bis 1800, 4. Aufl._, I, p. 73.] [Footnote 22: _Cf._ Häusser, _Geschichte der franz. Revolution, 3. Aufl._, p. 169; H. Schulze, _Lehrbuch des deutschen Staatsrechts_, I, p. 368; Stahl, _Staatslehre, 4. Aufl._, p. 523; Taine, _loc. cit._: _La révolution_, I, p. 274: "Ici rien de semblable aux déclarations précises de la Constitution américaine." In addition, note 1: _cf. la Déclaration d'indépendance du 4 juillet 1776_.] [Footnote 23: Stahl, _loc. cit._, p. 524; Taine, _loc. cit._ The fact that Jefferson's proposal to enact a declaration of rights was rejected is expressly emphasized in a note.] [Footnote 24: Stahl, _loc. cit._, p. 523, does mention, in addition, the declarations of the separate states, but he does not specify when they originated, nor in what relation they stand to the French Declaration, and his comments show that he is not at all familiar with them. Janet, _loc. cit._, I, p. v _et seq._, enters at length into the subject of the state declarations in order to show the originality of the French, and he even makes the mistaken attempt to prove French influence upon the American (p. xxxv). The more detailed history of the American declarations he is quite ignorant of.] [Footnote 25: _Mémoires, correspondances et manuscripts du général Lafayette, publiés par sa famille_, II, p. 46.] [Footnote 26: "Mais les constitutions que se donnèrent successivement les treize états, furent précedées de déclarations des droits, dont les principes devaient servir de règles aux représentans du peuple, soit aux conventions, soit dans les autres exercises de leur pouvoirs. La Virginie fut la première à produire une déclaration des droits proprement dite."--_Ibid._, p. 47.] [Footnote 27: _Recueil des loix constitutives des colonies anglaises, confédérées sous la dénomination d'États-Unis de l'Amérique-Septentrionale. Dédié à M. le Docteur Franklin. En suisse, chez les libraires associés._] [Footnote 28: _Cf._ Ch. Borgeaud, _Établissement et revision des constitutions en Amérique et en Europe_, Paris, 1893, p. 27.] [Footnote 29: Especially the exceptional work of James Bryce, _The American Commonwealth_, Vol I, Part II., The State Governments; Boutmy, _Études de droit constitutionnel, 2me éd._, Paris, 1895, pp. 83 _et seq._; and Borgeaud, _loc. cit._, pp. 28 _et seq._] [Footnote 30: _The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States._ Compiled by Ben: Perley Poore. Two vols., Washington, 1877. Only the most important documents of the colonial period are included.] [Footnote 31: This is not quite clear even to the best French authority on American history, Laboulaye, as is evident from his treatment of the subject, _Histoire des États-Unis_, II, p. 11.] [Footnote 32: _Cf. Arch. Parl._, VIII, pp. 461-489.] CHAPTER IV. VIRGINIA'S BILL OF RIGHTS AND THOSE OF THE OTHER NORTH AMERICAN STATES. The Congress of the colonies, which were already resolved upon separation from the mother country, while sitting in Philadelphia issued on May 15, 1776, an appeal to its constituents to give themselves constitutions. Of the thirteen states that originally made up the Union, eleven had responded to this appeal before the outbreak of the French Revolution. Two retained the colonial charters that had been granted them by the English crown, and invested these documents with the character of constitutions, namely, Connecticut the charter of 1662, and Rhode Island that of 1663, so that these charters are the oldest written constitutions in the modern sense.[33] Of the other states Virginia was the first to enact a constitution in the convention which met at Williamsburg from May 6 to June 29, 1776. It was prefaced with a formal "bill of rights",[34] which had been adopted by the convention on the twelfth of June. The author of this document was George Mason, although Madison exercised a decided influence upon the form that was finally adopted.[35] This declaration of Virginia's served as a pattern for all the others, even for that of the Congress of the United States, which was issued three weeks later, and, as is well known, was drawn up by Jefferson, a citizen of Virginia. In the other declarations there were many stipulations formulated somewhat differently, and also many new particulars were added.[36] Express declarations of rights had been formulated after Virginia's before 1789 in the constitutions of Pennsylvania of September 28, 1776, Maryland of November 11, 1776, North Carolina of December 18, 1776, Vermont of July 8, 1777,[37] Massachusetts of March 2, 1780, New Hampshire of October 31, 1783, (in force June 2, 1784.) In the oldest constitutions of New Jersey, South Carolina, New York and Georgia special bills of rights are wanting, although they contain many provisions which belong in that category.[38] The French translation of the American Constitutions of 1778 includes a _déclaration expositive des droits_ by Delaware that is lacking in Poore's collection.[39] In the following section the separate articles of the French Declaration are placed in comparison with the corresponding articles from the American declarations. Among the latter, however, I have sought out only those that most nearly approach the form of expression in the French text. But it must be once more strongly emphasized that the fundamental ideas of the American declarations generally duplicate each other, so that the same stipulation reappears in different form in the greater number of the bills of rights. We shall leave out the introduction with which the Constituent Assembly prefaced its declaration, and begin at once with the enumeration of the rights themselves. But even the introduction, in which the National Assembly "_en présence et sous les auspices de l'Être supréme_" solemnly proclaims the recognition and declaration of the rights of man and of citizens, and also sets forth the significance of the same, is inspired by the declaration of Congress and by those of many of the individual states with which the Americans sought to justify their separation from the mother country. FOOTNOTES: [Footnote 33: Connecticut in 1818, and Rhode Island first in 1842, put new constitutions in the place of the old Colonial Charters.] [Footnote 34: Poore, II, pp. 1908, 1909.] [Footnote 35: On the origin of Virginia's bill of rights, _cf._ Bancroft, _History of the United States_, London, 1861, VII, chap. 64.] [Footnote 36: Virginia's declaration has 16, that of Massachusetts 30, and Maryland's 42 articles. Virginia's declaration does not include the right of emigration, which was first enacted in Article XV of Pennsylvania's; the rights of assembling and petition are also lacking, which were first found in the Pennsylvania bill of rights (Article XVI).] [Footnote 37: Vermont's statehood was contested until 1790, and it was first recognized February 18, 1791, as an independent member of the United States.] [Footnote 38: Religious liberty is recognized by New York in an especially emphatic manner, Constitution of April 20, 1777, Art. XXXVIII. Poore, II, p. 1338.] [Footnote 39: Pp. 151 _et seq._ (The translator has reprinted this declaration in an article in the _American Historical Review_, of July, 1898, entitled "The Delaware Bill of Rights of 1776".)] CHAPTER V. COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS. ART. 1. _Les hommes naissent et demeurent libres et égaux en droits. Les distinctions sociales ne peuvent être fondées que sur l'utilité commune._ 2. _Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l'homme. Ces droits sont la liberté, la propriété, la sûreté et la résistance à l'oppression._ VIRGINIA, I. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. VIRGINIA, IV. That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services. MASSACHUSETTS, Preamble to the Constitution. The end of the institution, maintenance, and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life. MARYLAND, IV. The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish and destructive of the good and happiness of mankind. 3. _Le principe de toute souveraineté réside essentiellement dans la nation. Nul corps, nul individu ne peut exercer d'autorité qui n'en émane expréssement._ VIRGINIA, II. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them. 4. _La liberté consiste à pouvoir faire tout ce qui ne nuit pas à autrui; aussi l'exercise des droits naturels de chaque homme n'a de bornes que celles qui assurent aux autres membres de la société la jouissance de ces mêmes droits. Ces bornes ne peuvent être déterminées que par la loi._ MASSACHUSETTS, Preamble. The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good. MASSACHUSETTS, X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. 5. _La loi n'a le droit de défendre que les actions nuisibles à la société. Tout ce qui n'est pas défendu par la loi ne peut être empêché et nul ne peut être contraint à faire ce qu'elle n'ordonne pas._ MASSACHUSETTS, XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. NORTH CAROLINA, XIII. That every freeman, restrained of his liberty, is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful; and that such remedy ought not to be denied or delayed. VIRGINIA, VII. That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.[40] 6. _La loi est l'expression de la volonté générale. Tous les citoyens ont le droit de concourir personnellement ou par leurs représentants à sa formation. Elle doit être la même pour tous, soit qu'elle protège, soit qu'elle punisse. Tous les citoyens étant égaux à ses yeux, sont également admissibles à toutes dignités, places et emplois publics, selon leur capacité, et sans autre distinction que celle de leurs vertus et leurs talents._ MARYLAND, V. That the right in the people to participate in the Legislature, is the best security of liberty, and the foundation of all free government. MASSACHUSETTS, IX. All elections ought to be free;[41] and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments. NEW HAMPSHIRE, XII. Nor are the inhabitants of this State controllable by any other laws than those to which they or their representative body have given their consent. 7. _Nul homme ne peut être accusé, arrêté, ni détenu que dans les cas déterminés par la loi et selon les formes qu'elle a prescrites. Ceux qui sollicitent, expédient, exécutent ou font exécuter des ordres arbitraires, doivent être punis; mais tout citoyen appelé ou saisi en vertu de la loi doit obéir à l'instant; il se rend coupable par sa résistance._ MASSACHUSETTS, XII. No subject shall be held to answer for any crimes or no offence until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself; and every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.[42] VIRGINIA, X. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted. 8. _La loi ne doit établir que des peines strictement nécessaires et nul ne peut être puni qu'en vertu d'une loi établie et promulguée antérieurement au délit et légalement appliquée._ NEW HAMPSHIRE, XVIII. All penalties ought to be proportioned to the nature of the offence.[43] MARYLAND, XIV. That sanguinary laws ought to be avoided, as far as is consistent with the safety of the State; and no law, to inflict cruel and unusual pains and penalties, ought to be made in any case, or at any time hereafter.[44] MARYLAND, XV. That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no _ex post facto_ law ought to be made. 9. _Tout homme étant présumé innocent jusqu' à ce qu'il ait été déclaré coupable, s'il est jugé indispensable de l'arrêter, toute rigueur qui ne serait pas nécessaire pour s'assurer de sa personne doit être sévèrement réprimée par la loi._ _Cf._ above, MASSACHUSETTS, XII; further MASSACHUSETTS, XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. MASSACHUSETTS, XXVI. No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines[45] ... 10. _Nul doit être inquiété pour ses opinions, même religieuses, pourvu que leur manifestation ne trouble pas l'ordre public établi par la loi._ NEW HAMPSHIRE, V. Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments or persuasion; provided he doth not disturb the public peace, or disturb others, in their religious worship. 11. _La libre communication des pensées et des opinions est un des droits les plus précieux de l'homme; tout citoyen peut donc parler, écrire, imprimer librement sauf à répondre de l'abus de cette liberté dans les cas determinés par la loi._ VIRGINIA, XII. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments. PENNSYLVANIA, XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments. 12. _La garantie des droits de l'homme et du citoyen nécessité une force publique. Cette force est donc instituée pour l'avantage de tous, et non pour l'utilité particulière de ceux auxquels elle est confiée._ PENNSYLVANIA, V. That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or sett of men, who are a part only of that community. 13. _Pour l'entretien de la force publique et pour les dépenses d'administration, une contribution commune est indispensable; elle doit être également répartie entre tous les citoyens en raison de leurs facultés._ MASSACHUSETTS, X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary. 14. _Tous les citoyens ont le droit de constater, par eux mêmes ou par leur représentants, la nécessité de la contribution publique, de la consentir librement, d'en suivre l'emploi, et d'en déterminer la qualité, l'assiette, le recouvrement et la durée._ MASSACHUSETTS, XXIII. No subsidy, charge, tax, impost, or duties, ought to be established, fixed, laid or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature. 15. _La société a le droit de demander compte à tout agent public de son administration._ See above, VIRGINIA, II; further MASSACHUSETTS V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government vested with authority, whether legislative, executive, or judicial, are the substitutes and agents, and are at all times accountable to them. 16. _Toute société, dans laquelle la garantie des droits n'est pas assurée, ni la séparation des pouvoirs déterminée, n'a point de constitution._ NEW HAMPSHIRE, III. When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and without such an equivalent, the surrender is void. MASSACHUSETTS, XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men. 17. _La propriété étant un droit inviolable et sacré, nul ne peut en être privé, si ce n'est lors que la nécessité publique, légalement constatée, l'exige évidemment, et sous la condition d'une juste et préalable indemnité._ MASSACHUSETTS, X. ... But no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people.... And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. VERMONT, II. That private property ought to be subservient to public uses, when necessity requires it; nevertheless, whenever any particular man's property is taken for the use of the public, the owner ought to receive an equivalent in money. FOOTNOTES: [Footnote 40: _Cf._ English Bill of Rights, 1.] [Footnote 41: English Bill of Rights, 8.] [Footnote 42: Magna Charta, 39.] [Footnote 43: Magna Charta, 20.] [Footnote 44: English Bill of Rights, 10.] [Footnote 45: English Bill of Rights, 10.] CHAPTER VI. THE CONTRAST BETWEEN THE AMERICAN AND ENGLISH DECLARATIONS OF RIGHTS. The comparison of the American and French declarations shows at once that the setting forth of principles abstract, and therefore ambiguous, is common to both, as is also the pathos with which they are recited. The French have not only adopted the American ideas, but even the form they received on the other side of the ocean. But in contrast to the diffuseness of the Americans the French are distinguished by a brevity characteristic of their language. Articles 4-6 of the Declaration have the most specific French additions in the superfluous and meaningless definitions of liberty[46] and law. Further, in Articles 4, 6 and 13 of the French text special stress is laid upon equality before the law, while to the Americans, because of their social conditions and democratic institutions, this seemed self-evident and so by them is only brought out incidentally. In the French articles the influence of the _Contrat Social_ will have been recognized; but yet it brought out nothing essentially new, or unknown to the American stipulations. The result that has been won is not without significance for the student of history in passing judgment upon the effects of the French Declaration. The American states have developed with their bills of rights into orderly commonwealths in which there has never been any complaint that these propositions brought consequences disintegrating to the state. The disorders which arose in France after the Declaration of the Rights of Man cannot therefore have been brought about by its formulas alone. Much rather do they show what dangers may lie in the too hasty adoption of foreign institutions. That is, the Americans in 1776 went on building upon foundations that were with them long-standing. The French, on the other hand, tore up all the foundations of their state's structure. What was in the one case a factor in the process of consolidation served in the other as a cause of further disturbance. This was even recognized at the time by sharp-sighted men, such as Lally-Tollendal[47] and, above all, Mirabeau.[48] But from the consideration of the American bills of rights there arises a new problem for the historian of law: How did Americans come to make legislative declarations of this sort? To the superficial observer the answer seems simple. The very name points to English sources. The Bill of Rights of 1689, the Habeas Corpus Act of 1679, the Petition of Right of 1628, and finally the _Magna Charta libertatum_ appear to be unquestionably the predecessors of the Virginia bill of rights. Assuredly the remembrance of these celebrated English enactments, which the Americans regarded as an inherent part of the law of their land, had a substantial share in the declarations of rights after 1776. Many stipulations from Magna Charta and the English Bill of Rights were directly embodied by the Americans in their lists. And yet a deep cleft separates the American declarations from the English enactments that have been mentioned. The historian of the American Revolution says of the Virginia declaration that it protested against all tyranny in the name of the eternal laws of man's being: "The English petition of right in 1688 was historic and retrospective; the Virginia declaration came directly out of the heart of nature and announced governing principles for all peoples in all future times."[49] The English laws that establish the rights of subjects are collectively and individually confirmations, arising out of special conditions, or interpretations of existing law. Even Magna Charta contains no new right, as Sir Edward Coke, the great authority on English law, perceived as early as the beginning of the seventeenth century.[50] The English statutes are far removed from any purpose to recognize general rights of man, and they have neither the power nor the intention to restrict the legislative agents or to establish principles for future legislation. According to English law Parliament is omnipotent and all statutes enacted or confirmed by it are of equal value. The American declarations, on the other hand, contain precepts which stand higher than the ordinary lawmaker. In the Union, as well as in the individual states, there are separate organs for ordinary and for constitutional legislation, and the judge watches over the observance of the constitutional limitations by the ordinary legislative power. If in his judgment a law infringes on the fundamental rights, he must forbid its enforcement. The declarations of rights even at the present day are interpreted by the Americans as practical protections of the minority.[51] This distinguishes them from the "guaranteed rights" of the European states. The American declarations are not laws of a higher kind in name only, they are the creations of a higher lawmaker. In Europe, it is true, the constitutions place formal difficulties in the way of changing their specifications, but almost everywhere it is the lawmaker himself who decides upon the change. Even in the Swiss Confederacy judicial control over the observance of these forms is nowhere to be found, although there, as in the United States, the constitutional laws proceed from other organs than those of the ordinary statutes. The American bills of rights do not attempt merely to set forth certain principles for the state's organization, but they seek above all to draw the boundary line between state and individual. According to them the individual is not the possessor of rights through the state, but by his own nature he has inalienable and indefeasible rights. The English laws know nothing of this. They do not wish to recognize an eternal, natural right, but one inherited from their fathers, "the old, undoubted rights of the English people." The English conception of the rights of the subject is very clear upon this point. When one looks through the Bill of Rights carefully, one finds but slight mention there of individual rights. That laws should not be suspended, that there should be no dispensation from them, that special courts should not be erected, that cruel punishments should not be inflicted, that jurors ought to be duly impanelled and returned, that taxes should not be levied without a law, nor a standing army kept without consent of Parliament, that parliamentary elections should be free, and Parliament be held frequently--all these are not rights of the individual, but duties of the government. Of the thirteen articles of the Bill of Rights only two contain stipulations that are expressed in the form of rights of the subject,[52] while one refers to freedom of speech in Parliament. When nevertheless all the stipulations of the Bill of Rights are therein designated as rights and liberties of the English people,[53] it is through the belief that restriction of the crown is at the same time right of the people. This view grew directly out of the mediæval conception of the Teutonic state. While the ancient state appears at the beginning of its history as [Greek: polis] or _civitas_, as an undivided community of citizens, the monarchical Teutonic state is from the beginning dualistic in form,--prince and people form no integral unity, but stand opposed to each other as independent factors. And so the state in the conception of the time is substantially a relation of contract between the two. The Roman and Canonical theory of law under the influence of ancient traditions even as early as the eleventh century attempts to unite the two elements in that, upon the basis of a contract, it either makes the people part with their rights to the prince, and accordingly makes the government the state, or it considers the prince simply as the authorized agent of the people and so makes the latter and the state identical. The prevailing opinion in public law, however, especially since the rise of the state of estates, sees in the state a double condition of contract between prince and people. The laws form the content of this compact. They established, therefore, for the prince a right of demanding lawful obedience, and for the people of demanding adherence to the limitations placed by the laws. The people accordingly have a right to the fulfilment of the law by the prince. Thus all laws create personal rights of the people, and the term people is thought of in a confused way as referring to the individuals as well as to the whole--_singuli et universi_.[54] From this point of view it is a right of the people that Parliament should be frequently summoned, that the judge should inflict no cruel punishments, and however else the declarations of the English charters may read. This conception of law as two-sided, establishing rights for both elements of the state, runs through all the earlier English history. The right which is conferred by law passes from generation to generation, it becomes hereditary and therefore acquirable by birth as one of the people. Under Henry VI. it is declared of the law: "La ley est le plus haute inheritance que le roy ad; car par la ley il même et toutes ses sujets sont rulés, et si la ley ne fuit, nul roy et nul inheritance sera."[55] And in the Petition of Right Parliament makes the appeal that the subjects have inherited their freedom through the laws.[56] The laws, as the Act of Settlement expresses it, are the "birthright of the people".[57] And so we find only ancient "rights and liberties" mentioned
{'title': 'The Declaration of the Rights of Man and of Citizens by Georg Jellinek', 'source': 'Project Gutenberg', 'lang': 'en'}