The first question that naturally suggests itself in studying the
Declaration of the Rights of Man is, whence did the French derive the
idea of such an instrument? It has been asserted, and an attempt has
been made to prove, that both the notion of such a Declaration and its
content were borrowed from the early American State Constitutions.[1]
This question, however, really resolves itself into a double inquiry,
_i. e._, whence did the French receive their notion of the guaranty of
individual rights against governmental intrusion, and how far did the
ideas contained in the Declaration of the Rights of Man represent the
political traditions and current thought of France? Only a study of the
abuses and of the political theories of pre-revolutionary France and of
the facts relative to this document, as they are revealed in the writings
of contemporaries and in the records of the Constituent Assembly, can at
all satisfactorily answer these inquiries.
The sympathetic relation between France and the colonies during and
after the American Revolution, the interest in America of some of the
more radical French political theorists, such as Mably and Condorcet,
and the community of ideas existing between the two countries, shown by
the Jeffersonian school in America, and by the publication of American
writings in France, are facts well known. Hence it may be inferred that,
when a few of the cahiers asked for a Declaration, their framers were
acquainted with and influenced by the American Bills of Rights.[2] But
not until the States General had assumed the rôle of a Constitutional
Convention were the proposals of Declarations numerous. Then it was that
the Frenchmen gave abundant proof of their fondness for formulating
political documents.
On July 9, 1789, M. Mounier, who had been charged by the Constituent
Assembly with the preparation of a scheme for a constitution, presented
a report in behalf of the committee, the first article of which reads:
“Tout gouvernement doit avoir pour unique but le maintien des droits des
hommes; d’où il suit que pour rappeller constamment le gouvernement au
but proposé, la constitution doit commencer par la déclaration des droits
naturels et imprescriptibles de l’homme.”[3] July 11, Lafayette proposed
the form of a Declaration of Rights, containing twelve articles, and
pointed out the advantages of such an instrument.[4] M. Lally Tollendal
approved this project, but argued that it was dangerous to adopt any
such articles separate from the Constitution; he at the same time called
the attention of the Assembly to the great difference between a new-born
colonial people, who were breaking with a distant government, and an old
nation extending over an immense territory, one of the first nations of
the world, which for eight centuries had obeyed the same dynasty and
had cherished the royal power when it had been tempered by custom. This
nation, he said, will idolize this power when it shall be regulated by
laws.[5] M. Lally Tollendal certainly believed that they were following
the American example.
July 14, Lafayette’s motion was discussed. Some thought the Declaration
should be put at the head of the Constitution, in order permanently to
secure the rights of man before establishing those of society; others
thought it should be placed after the Constitution. It was decided at
this session that the Constitution should contain a Declaration, but its
position was left for later decision.[6] Siéyès read his exposition of
the Rights of Man, on July 10, to the Constitutional Committee, and on
July 21, to the Assembly.[7] On July 17, M. Target presented a scheme of
thirty-one articles for a Declaration, and M. Mounier one of sixteen
articles.[8] On July 31, M. D. Servan, advocate to the Parlement of
Grenoble, presented a project of thirteen articles. August 1, a long
debate occurred upon the position to be given to the Declaration in the
Constitution. M. Thouret also offered a scheme for a Declaration. The
debate continued. On August 4, M. Camus proposed that the Assembly make
a declaration of the rights and duties of man and of a citizen; but this
motion was defeated by a vote of 570 to 433.[9] However, at the same
session, it was decided almost unanimously that the Constitution should
be preceded by the Declaration. On August 12, Abbé Siéyès offered a
project of a Declaration of forty-two articles.[9]
During discussion in the Assembly, August 1, M. Champion de Cicé, Bishop
of Auxerre, opposed a declaration as useless at that time, and said that
the example of North America was not conclusive, as that country only
contains proprietors, cultivators, and citizens all on the same social
footing. M. De la Luzerne, Bishop of Langres, also asserted that the
Constitution of an empire did not need a Declaration. M. Malouet, in
making strong protest against their placing the Declaration at the head
of the Constitution, portrayed the contrast between the situation of
France and that of America.[10] M. Delandine spoke in agreement with M.
Malouet.
On August 12, two projects for a Declaration of Rights were offered to
the Assembly: one of seventy-one articles, by Gonges-Carton of Quercy,
and one of twenty-four articles, by the Sixth Bureau of the Assembly.
On August 13, a committee of five, consisting of Desmeuniers, Bishop of
Langres, M. Tronchet, Count Mirabeau and M. Rhédon, was chosen to receive
the drafts of a Constitution and to recast these into one form.[11]
August 14, Mirabeau, on behalf of the committee, reported a scheme of a
Declaration containing nineteen articles. In speaking of the aim of the
committee, he said, that from the score of plans offered them, they had
sought, like the Americans, to construct a Declaration not of abstract
and scientific principles, but one of political truths that would readily
be comprehended by the popular mind.[12] In the debate of August 18 upon
the Declaration, M. Rabaud de Saint Étienne said that the Declaration of
Rights had been adopted because the _cahiers_ had asked it, and that the
_cahiers_ had asked it because the Americans had set the example, but
that this was no reason why the Declarations should be similar, for the
circumstances of the two nations were different.[13]
August 19, the Assembly decided to discuss first the Declaration of the
Sixth Bureau.[14] On August 21, after some debate, the Assembly adopted
the preamble of the plan, somewhat modified, presented by the committee
of five. M. Mounier then proposed three articles, which were adopted.
August 21, on the proposal of M. Alexander de Lameth, articles four,
five, and six, after discussion, were adopted.
August 21, M. de Boislander proposed a plan of seventy-four articles.
August 22, after divers proposals had been made and discussed, articles
seven, eight, and nine were adopted.[15] August 23, after many proposals
and lengthy debate, article ten was agreed upon. August 24, a liberal
discussion of the phraseology resulted in the adoption of articles
eleven, twelve, and thirteen.[16] August 26, after some discussion,
articles fourteen and fifteen were accepted; later in the same day,
articles sixteen and seventeen were agreed upon.[17] Then the Assembly
resolved that the consideration of further articles should be postponed
until the Constitution should be completed.[18] October 2, the articles
previously adopted were presented to the Assembly, with article four
changed from “La liberté consiste à faire tout ce qui ne nuit pas à
autrui,” to “La liberté consiste à pouvoir faire tout” etc. The change
was accepted. The whole Constitution was presented to the king September
13, 1791, and accepted by him. In the Assembly, September 14, the king
swore to obey the constitution.[19]
These are the facts of historical data relating to the formation of the
Declaration of the Rights of Man purposely set forth in detail and in
chronological order. What conclusions may we draw from them? The frequent
reference to the American Bill of Rights, the number of Declarations
proposed in _cahiers_ and before the Assembly, differing in form and in
length, but agreeing in fundamental principles, the discussions, the
selections and the modifications to which this raw material was subjected
in the process of constructing the Declaration finally adopted, warrant
these two inferences: (1) the notion of a Declaration of Rights, separate
from the Constitution proper, was suggested to the French by the American
State Constitutions; (2) the contents of the articles and the language in
which they were couched were original.
A study of the separate articles of the Declaration in the light of
contemporary conditions gives additional reason for thinking that the
ideas therein contained were not foreign to France. For convenience of
consideration in the present study, the articles of the Declaration may
be divided into two classes: the first class consists of those articles
that were in the main reactive against certain abuses under which the
French suffered; the second class comprises those articles which
contained principles more especially theoretical. Less proof, perhaps, is
necessary for deciding upon the originality of the former class than upon
that of the latter. We shall treat these classes in the order named.
“Art. 7. No person shall be accused, arrested or imprisoned except in the
cases and according to the forms prescribed by law. Any one soliciting,
transmitting, executing, or causing to be executed any arbitrary order
shall be punished. But any citizen summoned or arrested in virtue of the
law shall submit without delay, as resistance constitutes an offense.
“Art. 8. The law shall provide for such punishments only as are strictly
and obviously necessary, and no one shall suffer punishment except it be
legally inflicted in virtue of a law, passed and promulgated before the
commission of the offence.
“Art. 9. As all persons are held innocent until they shall have been
declared guilty, if arrest shall be deemed indispensable, all severity
not essential to the securing of the prisoner’s person shall be severely
repressed by law.”
That these three articles were aimed at no imaginary or very distant
wrongs is evident from a cursory survey of the administration of the laws
of France, and from the protests of French authors. _Lettres de cachet_,
arbitrary imprisonments, retroactive laws, and cruelly exaggerated
penalties were not uncommon. Mirabeau and Voltaire had both suffered
under arbitrary laws and had painted the injustice of such laws in lurid
colors. Mirabeau’s _Lettres de cachet_ and his _Essai sur le despotisme_
bristle with protests against the abuses of the old _régime_. The
following gruesome picture is a suggestive statement of the way in which
justice was administered in France in the eighteenth century:
“The disproportion of crimes and of penalties was flagrant. A house thief
was hung in 1733; an ecclesiastic, guilty of having found fault with the
expulsion of the Jesuits, was also hung in 1762. The procedure was unjust
and inhuman. The accused, assumed to be guilty in advance, ignorant of
the crime with which he was charged, without counsellor or advocate,
interrogated _à huis clos_, submitted to the preparatory question, was
judged secretly. Once condemned, he was tortured before undergoing his
punishment. And what punishment! For imprisonment, transportation or
hanging was in vogue. The burning at the stake had fallen into desuetude,
but the lash, branding with red-hot iron, the galleys, quartering, the
rack, still did their savage work.”[20]
Protests against these enormities were raised by the philosophers, and
later by enlightened magistrates, such as Montesquieu, Servan, Linguet,
and Malesherbes. In 1780, the “preparatory question” was abolished.[21]
Mirabeau, in denouncing retroactive laws, says: “Nulle puissance humaine,
ni surhumaine ne peut justifier l’effet rétroactif d’aucune loi.”[22]
“Art. 10. No one shall be disquieted on account of his opinions,
including his religious views, provided their manifestation does not
disturb the public order established by law.”
Since the sixteenth century, France had been wrestling with the problem
of how to adjust two hostile faiths to each other. Farther to complicate
the matter, a schism occurred in the seventeenth century within the
Catholic Church, which aroused between Jesuits and the Jansenists a
feeling of intolerance, well-nigh as violent and determined as that
which already existed between the Catholics and the Huguenots. Even in
the eighteenth century intolerance, held in partial abeyance, frequently
broke out in overt acts, which displayed the vindictiveness of the
hostile parties. The philosophers, more interested in humanity than
in the prejudices of any faction, championed in the name of tolerance
the party persecuted. The new spirit gained support. The writings of
the latter half of the eighteenth century abound with denunciations of
intolerance and with pleas for tolerance.[23] By and by the movement was
fruitful, and on January 19, 1788, the _Parlement_ of Paris registered a
decree giving civil rights to Protestants.[24]
“Art. 11. The free communication of ideas and opinions is one of the most
precious of the rights of man. Every citizen may, accordingly, speak,
write, and print with freedom, but shall be responsible for the abuse of
this freedom as shall be defined by law.”
Here too is an attempt to secure permanently that for which a long
struggle had taken place. Two powers, the Church and Royalty, had
labored, now singly and now together, to regulate the expression of
ideas. The writing and the writer had been equally the object of royal
inclemency—the one being consigned to the flames, the other to prison.
But in spite of royal decrees, public sentiment gravitated towards
liberty of expression. In 1776, Malesherbes secured the opening of the
prisons of Vincennes and the Bastille for the release of prisoners held
under _Lettres de cachet_.[25] Again, in 1784, in response to Mirabeau’s
“_Lettres de cachet_,” the dungeons of Vincennes were opened.[26]
“Art. 12. The security of the rights of man and of the citizen requires
a public _force_. This _force_ is, therefore, established for the good
of all and not for the personal advantage of those to whom it shall be
entrusted.”
This twelfth article was at the same time the expression of a political
theory and reactionary against past practices. It was the theory of the
framers of the Declaration of the Rights of Man that the nation was
supreme, the monarch only an hereditary administrative agent. To maintain
this status, the power of military force must be employed only for the
advantage of the nation. d’Argenson, in 1754, had complained that “Le
roi n’emploie plus ses forces que contre ses sujets.”[27] In 1771, when
the obstinate _parlement_ had been replaced by the _Grand Conseil_,
troops were used to guard this substitute which was designated “Maupeou’s
parlement,” and the people considered the whole procedure as contrary to
the French Constitution.[28] Mirabeau had also denounced the royal army
in these plain words: “Je dis que les troupes réglées sont l’instrument
du despotisme, comme leur institution en fut le signal. L’exemple de
nos voisins n’est pas une preuve contradictoire; et ne voit on pas en
effet que toute constitution en Europe est dégénérée en arbitraire et
s’accélère vers le despotisme; Les troupes réglées ont été et seront
toujours le fléau de la liberté; mais ce fléau est intolérable quand il
devient le rempart des déprédations.”[29]
The people in several of the _cahiers_ manifested fear lest the
monarch might endanger, by the use of an army, the national rights,
and consequently asked for the dismissal of foreign troops, for a new
constitution for the army, and for the destruction of internal forts.[30]
“Art. 13. A common contribution is essential for the maintenance of
the public forces and for the cost of administration. This should be
equitably distributed among all the citizens in proportion to their
means.”
The inequality of taxes was, in France, an abuse recognized and condemned
for centuries. Bodin, in his _République_, written in the sixteenth
century, criticised the exemption of the clergy and of the nobility.[31]
Already under Louis XIII., throughout two-thirds of France, where the
_taille_ was a personal tax, 2,000,000 of richer persons were exempt
from the _taille_, while 8,000,000 were taxable. D’Avenel says that the
workmen paid under Louis XIII. four and a half times as much as to-day,
though they earned much less.[32] The grievous exemptions continued
so that the Third Estate during the eighteenth century supported the
chief burden of royal taxes and was subjected to onerous feudal dues
besides.[33]
The Physiocrats advocated as a remedy for this injustice a system which
should make the taxes proportionate to each one’s productive riches.
Turgot, taking the first step towards the realization of this idea, said,
in defense of his proposal for the abolition of _corvées_, February,
1776: “The expenses of government having for their object the interest
of all, all should contribute to them; and the more one enjoys the
advantages of society, the more one should regard himself honored in
sharing the expenses.[34] But his efforts were vain; for the privileged
classes esteemed their exemptions too highly to submit tamely to a
burdensome reform; hence they stubbornly persisted in their resistance to
innovations in the customary methods of collecting taxes. Nevertheless
there was a growing sentiment in favor of reform;[35] so that when the
_cahiers_ of 1789 were prepared, the majority of those of the higher
orders acceded to an equal partition in the burdens of the fisc.[36]
“Art. 14. All the citizens have a right to decide, either personally or
by their representatives, upon the necessity of the public contribution;
to grant this freely; to know to what uses it is put, and to fix the
proportion, the mode of assessment and of collection, and the duration of
the taxes.”
The French monarch, as in other European countries, from the time that
the royal domains were found insufficient to meet the governmental
expenses, was engaged in a continual struggle with the nation over the
right to grant subsidies. The nation asserted only sporadically and
incoherently its right to vote these supplies. For the French did not
manifest that persistent and determined resistance to appropriations,
unrequited by redress of political grievances, which their English
neighbors exhibited so often and in such a marked degree. Nevertheless,
during a minority or under a weak monarch, when able popular leaders
flourished, the cause of the people was more stubbornly maintained. The
States General claimed this guardianship in earlier days; but in the two
centuries previous to the Revolution it was the _Parlement_ of Paris
that contended with increasing vigor and obstinacy against the arbitrary
exactions of the king. As a final resort, it asserted, July 30, 1787,
that “le principe constitutionnel de la monarchie française était que les
impôts fussent consentis par ceux qui devraient les supporter.”[37] The
continued and inextricable confusion of finances was the immediate cause
of the calling of the Notables, and later of the States General. So far
had the public sentiment reacted against the actual fiscal mismanagement,
that the _cashier_ were well-nigh unanimous in seeking for the nation the
right to grant subsidies.[38]
“Art. 15. Society has a right to require of every public agent an account
of his administration.”
Article 15 was both theoretical and reactionary against actual abuses. If
the nation was to be supreme over all of its agents, it could only hope
effectually to maintain that superiority by holding all its functionaries
strictly accountable. Practical experience under the monarchy in the
collection and the expenditure of finances had impressed an effective
lesson upon the French people of the abuses incident to irresponsible
officers. The _Cour des Aides_, in its noteworthy remonstrance of 1775,
reviewed the status of the financial administration. The injustice of
the _ferme_, the arbitrariness of the bureaucracy, the complexity of the
system, the failure of popular petitions to reach the throne, and the
need of thorough reform, were clearly set forth.[39] Then, too, Necker,
by the publication of his _Compte rendu_ (1781) and _L’Administration des
finances_ (1785), had afforded the nation a glimpse of public finances
imperfect, yet in the highest degree stimulating to its curiosity.[40] As
an illustration of the status of public opinion, the Notables in 1787
demanded that some report of receipts and expenses should be published
annually, and that capable men, foreign to the administration, should be
called to the _conseil des finances_ for reviewing the work.[41] Here,
too, the _cahiers_ were practically a unit in their demands.
“Art. 17. Since property is an inviolable and sacred right, no one shall
be deprived thereof except where public necessity, legally determined,
shall clearly demand it, and then only on condition that the owner shall
have been previously and equitably indemnified.”
Private property under the _ancien régime_ was not sacred. De
Tocqueville cites the following, which may serve us for illustration
of the condition: “A royal declaration was made, suspending in time of
war repayment of all loans contracted by towns, villages, colleges,
communities, hospitals, charitable houses, trade corporations and others,
repayable out of town dues by us conceded, though the instrument securing
the said loans stipulates for the payment of interest in the case of
non-payment at the stipulated time. Thus not only is the obligation of
repayment at the stipulated terms suspended, but the security itself
is impaired.”[42] This article, seventeenth, was also reactive against
the grievous and burdensome _corvées_, military convoys, and forced
transportation of convicts.[43]
The remaining seven articles are more theoretical, covering the
doctrines of liberty, equality, natural and inalienable rights, national
sovereignty, the social contract and the separation of powers. The views
expressed were, in the main, accepted at least in theory in the American
States. France was not, however, indebted to the colonies for them;
although their germinal ideas had been introduced from the teachings of
foreign writers, notably from the English, they had grown up in France
largely as a home product.
The doctrine of national or popular sovereignty was no new conception for
the French nation. It had been appealed to by the Church to check the
secular power, and by the Empire to check ecclesiastical encroachments.
Thomas Aquinas, the oracle of the Church, had recognized the popular will
as a limitation upon the royal power, and had commended the elective form
of monarchy.[44] Marsilio of Padua, in his _Defensor Pacis_, was even
more pronounced in favor of popular sovereignty. “The sovereignty of the
State,” he said, “rests with the people; by it properly are the laws made
and to it they owe their validity. From the nation itself proceeds all
rights and powers, it is the authoritative lawgiver among men.”[45] In
the sixteenth century the Calvinists and the League alternately made use
of the theory of popular sovereignty.[46] This theory was revived in the
eighteenth century and popularized by Rousseau and his disciples.
The doctrine of natural rights has not so remote an origin for France. De
Tocqueville rightly pointed out the distinction between liberty, regarded
as “the enjoyment of a privilege” and liberty considered as “the exercise
of a universal right”; he also showed that the Romans and the feudal
aristocracy figured their liberties to themselves under the former type;
and that it was not till the eighteenth century that the French nation
began to conceive of liberty as a natural right.[47]
This transformation of the theory of liberty from a privilege to a
natural right was chiefly accomplished after 1734. Boulainvilliers, in
_L’Histoire de l’ancien gouvernement de la France_, published (1727)
in Holland after his death, asserted as its fundamental thought: “Le
gouvernement féodal est le chef d’oeuvre de l’ésprit humain.” To the
author, all progress of royal, civil, or municipal authority is an
usurpation of the rights of the nobility, who were the only heirs of the
early Franks, conquerors of the Gauls.[48] This champion of the feudal
aristocracy was not answered in the name of democracy, but of privileged
rights. Abbé Dubois, the secretary of the French Academy, replied in
“the name of Roman Gaul, semi-municipal and semi-monarchical.” This
reply, entitled, “_Histoire critique de l’établissement de la monarchie
française_” (1734), denied the Frankish conquest and asserted that
the French monarchy had succeeded in a peaceable way to the rights of
the Roman Empire over the Gauls, and that the feudal system had been
established by usurpation several centuries later. Public opinion and the
judgment of the _savants_, says Martin, pronounced in favor of Dubois.[49]
Saint Pierre, d’Argenson, and Montesquieu contributed to the political
literature of the century, but did not formulate a new theory of rights.
The Physiocrats applied the natural law to economic problems, but not
specifically to political questions; this was reserved for Rousseau. In
the Genevan philosopher’s writings, natural rights and kindred democratic
ideas were treated in such a popular style that they were able to
revolutionize the French political theories in a generation.
A critical student cannot attribute complete originality to Rousseau; the
similarity of his views to those of Locke is too striking. He borrowed
from his English predecessor psychological, philosophical and political
conceptions.[50] The _Contrat Social_ (1762), however, according with
the nascent political _Zeit-Geist_ of France, found conditions favorable
to the ready acceptance of its ideas. The philosophers had shaken
the authority of dogma, humanitarian views were gaining prominence,
men were tired of arbitrary imprisonments and of useless privileges,
moreover, the long struggle between the monarch and the _parlements_
was still unsettled, the theory of the right of _parlement_ to refuse
to record decrees was found to need a firmer basis than custom. The
sympathies of even the nobles were awakened in behalf of the peasants
and the curates. The Physiocrats hoped for tax reform, to be effected
by a strong sovereign, though, when attempted by Turgot, it had
failed. Amid such conditions the _Contrat Social_ was being read. Its
striking, stimulating apothegms furnished apt quotations. Its effect was
revolutionary. Even philosophers and magistrates were not insensible to
its stimulus.[51] When the nation was called to speak, on the eve of the
Estates General, in pamphlets and in _cahiers_, the influence of Rousseau
was patent. The speeches made in the National Assembly were constantly
interlarded with quotations and ideas from _Contrat Social_.[52]
After this general introduction to the political theories of the
Revolution, we are ready to examine the remaining articles of the
Declaration of the Rights of Man. We shall place in parallel with these
some quotations from the _Contrat Social_ that will serve to indicate the
similarity of their ideas.
“1. Men are born and remain | “It is agreed that anything of
free and equal in rights. Social | power or property or liberty
distinctions may only be founded | which is alienated by the social
upon the general good.” | compact, is only a part of all
| the use of which is of importance
| to the community.”[53]
|
“2. The aim of all political | “To find a form of association
associations is the preservation | which shall defend and protect
of the national and imprescriptible | with the public force the person
rights of man. These rights are | and property of each associate,
liberty, property, security, and | and by means of which each,
resistance of oppression.” | uniting with all, shall obey
| however only himself, and remain
| as free as before; such is the
| fundamental problem of which the
| _Social Contract_ gives the
| solution.”[54]
|
“3. The principle [principe] of all | “I say then that the sovereignty,
sovereignty resides essentially in | being only the exercise of the
the nation. No body nor individual | general will, can never alienate
may exercise any authority which | itself, and that the sovereign,
does not proceed directly from the | who is not a collective being,
nation.” | can be represented only by
| himself; power can transmit
| itself, but not will.”[55]
|
“4. Liberty consists in being able | “Any service that a citizen can
to do everything which injures no | render the State is due from him
one else; hence the exercise of the | whenever the sovereign demands it;
natural rights of each man has no | but the sovereign, for his part,
limits except those which assure to | cannot place any burden upon his
the other member of the society the | subjects which will not be useful
enjoyment of the same rights. These | to the community; he can not even
limits can only be determined by | desire to do so, for, under the
law.” | law of reason as under the law of
| nature, there is nothing done
| without a purpose.”[56]
|
“5. Law can only prohibit such | “When I say that the object of
actions as are hurtful to society. | laws is always general, I mean
Nothing may be prevented which is | that the law considers subjects
not forbidden by law, and no one | in a body, and actions as
may be forced to do anything not | abstract; a man is never
provided for by law.” | considered as an individual
| nor an action as an individual
| action.”[57]
|
“6. Law is the expression of the | “By whatever path we return to
general will. Every citizen has a | the principle, we always reach
right to participate personally | the same conclusion; that the
or through his representatives in | social compact establishes
its formation. It must be the same | among citizens such an equality
for all, whether it protects or | that they all engage under the
punishes. All citizens, being | same conditions, and should
equal in the eyes of the law, are | enjoy the same rights. Thus by
equally eligible to all dignities | the nature of the agreement,
and to all public positions and | an act of sovereignty, that is,
occupations, according to their | any authentic act of the general
abilities and without distinction | will, obliges or favors equally
except that of their virtues and | all citizens; so that the
talents.” | sovereign knows only the body of
| the nation and distinguishes no
| one of those composing it.”[58]
The Physiocrats also had, in a measure, advocated these principles. Both
Quesnay and Turgot expressed themselves unequivocally for the protection
of private property.[59] Let it be asserted with the strongest emphasis
that these six articles were not merely the expression of theories. They
had an intensely practical genesis, for they were the slowly-matured
product of a reaction against a long-felt vexatious regime. That regime
had interfered with private property and with individual action in such
ways as to be grievous, yes, intensely grievous to the people.
“Art. 16. A society in which the observance of the law is not assured,
nor the separation of powers defined, has no constitution at all.”
The theory of the separation of powers was one idea taught by
Montesquieu[60] that had been gradually accepted by his countrymen. He
was studied by the would-be-publicists of the Revolutionary era, and
much stress was put upon this constitutional principle. The Constitution
which they formed is the best example of the thorough application of this
impracticable doctrine.[61]
In this discussion we have shown that while the suggestion of a
Declaration of Rights came from the early American State Constitutions,
its content was French. Its internal resemblance to the American
instruments is attributable to the fact that the abuses to be feared
and the recognized political theories were the same in both countries.
In truth, France had greater reason to apprehend the return of the
long-endured abuses, from which she was even then endeavoring to
extricate herself, than had America. Likewise the fact that each country
had derived its democratic views from a common source—the teachings
of the English Puritans—largely explains the identity of the existing
political theories.