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THE DECLARATION OF THE
RIGHTS OF MAN AND OF
CITIZENS
_A Contribution to Modern Constitutional
History_
BY
GEORG JELLINEK, DR. PHIL. ET JUR.
_Professor of Law in the University of Heidelberg
AUTHORIZED TRANSLATION FROM THE GERMAN_
BY
MAX FARRAND, PH.D.
_Professor of History in Wesleyan University_
_REVISED BY THE AUTHOR_
[Illustration]
NEW YORK
HENRY HOLT AND COMPANY
1901
Copyright, 1901.
BY
HENRY HOLT & CO.
ROBERT DRUMMOND, PRINTER, NEW YORK.
TRANSLATOR'S PREFACE.
Although several years have elapsed since this essay was published, it
has apparently come to the attention of only a few specialists, and
those almost exclusively in modern European history. It deserves
consideration by all students of history, and it is of special
importance to those who are interested in the early constitutional
history of the United States, for it traces the origin of the enactment
of bills of rights. In the hope that it will be brought before a larger
number of students who realize the significance of this question and who
appreciate genuine scholarly work, this essay is now translated.
M.F.
WESLEYAN UNIVERSITY,
MIDDLETOWN, CT., _March 1, 1901_.
TABLE OF CONTENTS.
CHAPTER PAGE
I. THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26,
1789, AND ITS SIGNIFICANCE 1
II. ROUSSEAU'S "CONTRAT SOCIAL" WAS NOT THE SOURCE
OF THIS DECLARATION 8
III. THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES
OF THE NORTH AMERICAN UNION WERE ITS MODELS 13
IV. VIRGINIA'S BILL OF RIGHTS AND THOSE OF THE
OTHER NORTH AMERICAN STATES 22
V. COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS 27
VI. THE CONTRAST BETWEEN THE AMERICAN AND ENGLISH
DECLARATIONS OF RIGHTS 43
VII. RELIGIOUS LIBERTY IN THE ANGLO-AMERICAN COLONIES
THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL
RIGHT OF MAN 59
VIII. THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF
CITIZENS DURING THE AMERICAN REVOLUTION 78
IX. THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT 90
THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS.
CHAPTER I.
THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26, 1789, AND ITS
SIGNIFICANCE.
The declaration of "the rights of man and of citizens" by the French
Constituent Assembly on August 26, 1789, is one of the most significant
events of the French Revolution. It has been criticised from different
points of view with directly opposing results. The political scientist
and the historian, thoroughly appreciating its importance, have
repeatedly come to the conclusion that the Declaration had no small part
in the anarchy with which France was visited soon after the storming of
the Bastille. They point to its abstract phrases as ambiguous and
therefore dangerous, and as void of all political reality and practical
statesmanship. Its empty pathos, they say, confused the mind, disturbed
calm judgment, aroused passions, and stifled the sense of duty,--for of
duty there is not a word.[1] Others, on the contrary, and especially
Frenchmen, have exalted it as a revelation in the world's history, as a
catechism of the "principles of 1789" which form the eternal foundation
of the state's structure, and they have glorified it as the most
precious gift that France has given to mankind.
Less regarded than its historical and political significance is the
importance of this document in the history of law, an importance which
continues even to the present day. Whatever may be the value or
worthlessness of its general phrases, it is under the influence of this
document that the conception of the public rights of the individual has
developed in the positive law of the states of the European continent.
Until it appeared public law literature recognized the rights of heads
of states, the privileges of class, and the privileges of individuals or
special corporations, but the general rights of subjects were to be
found essentially only in the form of duties on the part of the state,
not in the form of definite legal claims of the individual. The
Declaration of the Rights of Man for the first time originated in all
its vigor in positive law the conception, which until then had been
known only to natural law, of the personal rights of the members of the
state over against the state as a whole. This was next seen in the first
French constitution of September 3, 1791, which set forth, upon the
basis of a preceding declaration of rights, a list of _droits naturels
et civils_ as rights that were guaranteed by the constitution.[2]
Together with the right of suffrage, the "_droits garantis par la
constitution_", which were enumerated for the last time in the
constitution of November 4, 1848,[3] form to-day the basis of French
theory and practice respecting the personal public rights of the
individual.[4] And under the influence of the French declaration there
have been introduced into almost all of the constitutions of the other
Continental states similar enumerations of rights, whose separate
phrases and formulas, however, are more or less adapted to the
particular conditions of their respective states, and therefore
frequently exhibit wide differences in content.
In Germany most of the constitutions of the period prior to 1848
contained a section upon the rights of subjects, and in the year 1848
the National Constitutional Convention at Frankfort adopted "the
fundamental rights of the German people", which were published on
December 27, 1848, as Federal law. In spite of a resolution of the
_Bund_ of August 23, 1851, declaring these rights null and void, they
are of lasting importance, because many of their specifications are
to-day incorporated almost word for word in the existing Federal law.[5]
These enumerations of rights appear in greater numbers in the European
constitutions of the period after 1848. Thus, first of all, in the
Prussian constitution of January 31, 1850, and in Austria's "Fundamental
Law of the State" of December 21, 1867, on the general rights of the
state's citizens. And more recently they have been incorporated in the
constitutions of the new states in the Balkan peninsula.
A noteworthy exception to this are the constitutions of the North German
Confederation of July 26, 1867, and of the German Empire of April 16,
1871, which lack entirely any paragraph on fundamental rights. The
constitution of the Empire, however, could the better dispense with such
a declaration as it was already contained in most of the constitutions
of the individual states, and, as above stated, a series of Federal laws
has enacted the most important principles of the Frankfort fundamental
rights. Besides, with the provisions of the Federal constitution as to
amendments, it was not necessary to make any special place for them in
that instrument, as the Reichstag, to whose especial care the
guardianship of the fundamental rights must be entrusted, has no
difficult forms to observe in amending the constitution.[6] As a matter
of fact the public rights of the individual are much greater in the
German Empire than in most of the states where the fundamental rights
are specifically set forth in the constitution. This may be seen, for
example, by a glance at the legislation and the judicial and
administrative practice in Austria.
But whatever may be one's opinion to-day upon the formulation of
abstract principles, which only become vitalized through the process of
detailed legislation, as affecting the legal position of the individual
in the state, the fact that the recognition of such principles is
historically bound up with that first declaration of rights makes it an
important task of constitutional history to ascertain the origin of the
French Declaration of Rights of 1789. The achievement of this task is of
great importance both in explaining the development of the modern state
and in understanding the position which this state assures to the
individual. Thus far in the works on public law various precursors of
the declaration of the Constituent Assembly, from Magna Charta to the
American Declaration of Independence, have been enumerated and arranged
in regular sequence, yet any thorough investigation of the sources from
which the French drew is not to be found.
It is the prevailing opinion that the teachings of the _Contrat Social_
gave the impulse to the Declaration, and that its prototype was the
Declaration of Independence of the thirteen United States of North
America. Let us first of all inquire into the correctness of these
assumptions.
FOOTNOTES:
[Footnote 1: First of all, as is well known, Burke and Bentham, and
later Taine, _Les origines de la France contemporaine: La revolution_,
I, pp. 273 _et seq._; Oncken, _Das Zeitalter der Revolution, des
Kaiserreiches und der Befreiungskriege_, I, pp. 229 _et seq._; and
Weiss, _Geschichte der franzoesischen Revolution_, 1888, I, p. 263.]
[Footnote 2: Titre premier: "Dispositions fondamentales garanties par la
constitution."]
[Footnote 3: Helie, _Les constitutions de la France_, pp. 1103 _et
seq._]
[Footnote 4: _Cf._ Jellinek, _System der subjektiven oeffentlichen
Rechte_, p. 3, n. 1.]
[Footnote 5: Binding, _Der Versuch der Reichsgruendung 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.]