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 mediaeval 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 meme et toutes ses
sujets sont rules, 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 in the
English laws of the seventeenth century. Parliament is always demanding
simply the confirmation of the "laws and statutes of this realm", that
is, the strengthening of the existing relations between king and people.
Of the creation of new rights there is not a word in all these
documents. Consequently there is no reference whatever to the important
fundamental rights of religious liberty, of assembling, of liberty of
the press, or of free movement. And down to the present day the theory
of English law does not recognize rights of this kind, but considers
these lines of individual liberty as protected by the general principle
of law, that any restraint of the person can only come about through
legal authorization.[58] According to the present English idea the
rights of liberty rest simply upon the supremacy of the law,--they are
law, not personal rights.[59] The theory, founded in Germany by Gerber,
and defended by Laband and others, according to which the rights of
liberty are nothing but duties of the government, sprang up in England,
without any connection with the German teaching, from the existing
conditions after the conception of the public rights of the individual
as natural rights, which was based on Locke and Blackstone, had lost its
power.
But with Locke even this conception stands in close connection with the
old English ideas. When Locke considers property--in which are included
life and liberty--as an original right of the individual existing
previous to the state, and when he conceives of the state as a society
founded to protect this right, which is thus transformed from a natural
to a civil right, he by no means ascribes definite fundamental rights to
the man living in the state, but rather places such positive
restrictions upon the legislative power as follow from the purposes of
the state.[60] When closely examined, however, these restrictions are
nothing else than the most important stipulations of the Bill of Rights,
which was enacted the year before the _Two Treatises on Government_
appeared.[61]
Blackstone was the first (1765) to found his doctrine of the absolute
rights of persons upon the idea of the personal rights of the
individual. Security, liberty, and property are the absolute rights of
every Englishman, which from their character are nothing else than the
natural liberty that remains to the individual after deducting the legal
restraints demanded by the common interest.[62] Laws appear likewise as
protectors of these rights,--the whole constitution of Parliament, the
limitation of the royal prerogative, and along with these the protection
of the law courts, the right of petition, and the right to carry arms
are treated, exactly in the manner of the Bill of Rights, as rights of
Englishmen, and indeed as subordinate rights to assist in guarding the
three principal rights.[63] But in spite of his fundamental conception
of a natural right, the individual with rights was for Blackstone not
man simply, but the English subject.[64]
The American declarations of rights, on the other hand, begin with the
statement that all men are born free and equal, and these declarations
speak of rights that belong to "every individual", "all mankind" or
"every member of society". They enumerate a much larger number of rights
than the English declarations, and look upon these rights as innate and
inalienable. Whence comes this conception in American law?
It is not from the English law. There is then nothing else from which to
derive it than the conceptions of natural rights of that time. But there
have been theories of natural rights ever since the time of the Greeks,
and they never led to the formulation of fundamental rights. The theory
of natural rights for a long time had no hesitation in setting forth the
contradiction between natural law and positive law without demanding
the realization of the former through the latter. A passage from Ulpian
is drawn upon in the _Digests_, which declares all men to be equal
according to the law of nature, but slavery to be an institution of the
civil law.[65] The Romans, however, in spite of all mitigation of slave
laws, never thought of such a thing as the abolition of slavery. The
natural freedom of man was set forth by many writers during the
eighteenth century as compatible with lawful servitude. Even Locke, for
whom liberty forms the very essence of man, in his constitution for
North Carolina sanctioned slavery and servitude.
Literature alone never produces anything, unless it finds in the
historical and social conditions ground ready for its working. When one
shows the literary origin of an idea, one has by no means therewith
discovered the record of its practical significance. The history of
political science to-day is entirely too much a history of the
literature and too little a history of the institutions themselves. The
number of new political ideas is very small; the most, at least in
embryo, were known to the ancient theories of the state. But the
institutions are found in constant change and must be seized in their
own peculiar historical forms.
FOOTNOTES:
[Footnote 46: It harks back finally to the old definition of Florentinus
L. 4 D. 1, 5: "Libertas est naturalis facultas eius, quod cuique facere
libet, nisi si quid vi aut jure prohibetur."]
[Footnote 47: _Arch. parl._ VIII, p. 222.]
[Footnote 48: _Ibid._, pp. 438 and 453.]
[Footnote 49: Bancroft, VII, p. 243.]
[Footnote 50: _Cf._ Blackstone, _Commentaries on the Laws of England_,
I, 1, p. 127. (Edited by Kerr, London, 1887, I, p. 115.)]
[Footnote 51: Upon this point, _cf._ Cooley, _Constitutional
Limitations_, 6th edition, Boston, 1890, Chap. VII. Even if the
stipulation contained in the bills of rights that one can be deprived of
his property only "by the law of the land" should not be embodied in the
constitution by a state, a law transgressing it would be void by virtue
of the fundamental limitations upon the competence of the legislatures.
_Loc. cit._, p. 208.]
[Footnote 52: The right to address petitions to the king (5), and the
right of Protestant subjects to carry arms for their own defense
suitable to their condition (7).]
[Footnote 53: "And they do claim, demand, and insist upon all and
singular the premises, as their undoubted rights and liberties."]
[Footnote 54: The old English charters put forward as possessors of the
"_jura et libertates_" now the "_homines in regno nostro_", now the
_regnum_ itself. The Petition of Right speaks of the "rights and
liberties" of the subjects, but they are also characterized as "the laws
and free customs of this realm".]
[Footnote 55: Year Books XIX, Gneist, _Englische Verfassungsgeschichte_,
p. 450.]
[Footnote 56: "By which the statutes before-mentioned, and other the
good laws and statutes of this realm, your subjects have inherited this
freedom." Gardiner, _The Constitutional Documents of the Puritan
Revolution_, 1889, pp. 1, 2.]
[Footnote 57: "And whereas the laws of England are the birthright of the
people thereof." Act of Settlement IV, Stubbs, _Select Charters_, 7th
ed., 1890, p. 531. Birthright = right by birth, the rights, privileges
or possessions to which one is entitled by birth; inheritance, patrimony
(specifically used of the special rights of the first-born). Murray, _A
New English Dictionary on Historical Principles_, _s. h. v._]
[Footnote 58: _Cf._ the instructive work of Dicey, _Introduction to the
Study of the Law of the Constitution_, 3d ed., 1889, pp. 171 _et seq._]
[Footnote 59: "Sie sind objectives, nicht subjectives Recht." Dicey, pp.
184 _et seq._, 193 _et seq._, 223 _et seq._, etc. Dicey treats the whole
doctrine of the rights of liberty in the section "The Rule of Law."
Individual liberty according to him is in England simply the correlative
of only permitting the restriction of the individual through laws.]
[Footnote 60: This is treated in the chapter "Of the Extent of the
Legislative Power," _On Civil Government_, XI.]
[Footnote 61: _Cf._ _On Civil Government_, XI, Sec. 142.]
[Footnote 62: Political liberty is no other than national liberty so far
restrained by human laws (and no farther) as is necessary and expedient
for the general advantage of the public. _Loc. cit._, p. 125 (113).]
[Footnote 63: _Loc. cit._, pp. 141 _et seq._ (127 _et seq._).]
[Footnote 64: _Cf._ _loc. cit._, pp. 127 (114), 144 (130).]
[Footnote 65: L. 32 D. de R.J. Exactly so the kindred doctrines of the
Stoics earlier in Greece had not the least legal success.]