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 etat_ 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 necessite d'etablir quels sont les droits de
l'homme et des citoyens, et d'en faire une declaration qu'ils puissent
opposer a toutes les especes d'injustice."--_Archives parlementaires I.
Serie_, 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._ Haeusser, _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
revolution_, I, p. 274: "Ici rien de semblable aux declarations precises
de la Constitution americaine." In addition, note 1: _cf. la Declaration
d'independance 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: _Memoires, correspondances et manuscripts du general
Lafayette, publies par sa famille_, II, p. 46.]
[Footnote 26: "Mais les constitutions que se donnerent successivement
les treize etats, furent precedees de declarations des droits, dont les
principes devaient servir de regles aux representans du peuple, soit aux
conventions, soit dans les autres exercises de leur pouvoirs. La
Virginie fut la premiere a produire une declaration des droits
proprement dite."--_Ibid._, p. 47.]
[Footnote 27: _Recueil des loix constitutives des colonies anglaises,
confederees sous la denomination d'Etats-Unis de l'Amerique-Septentrionale.
Dedie a M. le Docteur Franklin. En suisse, chez les libraires associes._]
[Footnote 28: _Cf._ Ch. Borgeaud, _Etablissement et revision des
constitutions en Amerique 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,
_Etudes de droit constitutionnel, 2me ed._, 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 Etats-Unis_, II, p. 11.]
[Footnote 32: _Cf. Arch. Parl._, VIII, pp. 461-489.]