THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF CITIZENS DURING THE
AMERICAN REVOLUTION.
The seventeenth century was a time of religious struggles. In the
following century political and economic interests pressed into the
foreground of historical movement. The democratic institutions of the
colonies were repeatedly in opposition to those of the mother-country,
and the ties that bound them to her lost more and more of their
significance. The great antagonism of their economic interests began to
make itself widely felt. The economic prosperity of the colonies
demanded the least possible restriction upon free movement. Finally they
felt that they were ruled not by their old home but by a foreign
country.
Then the old Puritan and Independent conceptions became effective in a
new direction. The theory of the social compact which played so
important a role in the founding of the colonies, and had helped to
establish religious liberty, now supported in the most significant way
the reconstruction of existing institutions. Not that it changed these
institutions, it simply gave them a new basis.
The colonists had brought over the ocean with them their liberties and
rights as English-born subjects. In a series of charters from the
English kings it was specifically stated that the colonists and their
descendants should enjoy all the rights which belonged to Englishmen in
their native land.[97] Even before the English Bill of Rights the most
of the colonies had enacted laws in which the ancient English liberties
were gathered together.[98] There occurred, however, in the second half
of the eighteenth century a great transformation in these old rights.
The inherited rights and liberties, as well as the privileges of
organization, which had been granted the colonists by the English kings
or had been sanctioned by the colonial lords, do not indeed change in
word, but they become rights which spring not from man but from God and
Nature.
To these ancient rights new ones were added. With the conviction that
there existed a right of conscience independent of the State was found
the starting-point for the determination of the inalienable rights of
the individual. The theory of a Law of Nature recognized generally but
one natural right of the individual--liberty or property. In the
conceptions of the Americans, however, in the eighteenth century there
appears a whole series of such rights.
The teaching of Locke, the theories of Pufendorf[99] and the ideas of
Montesquieu, all powerfully influenced the political views of the
Americans of that time. But the setting forth of a complete series of
universal rights of man and of citizens can in no way be explained
through their influence alone.
In 1764 there appeared in Boston the celebrated pamphlet of James Otis
upon _The Rights of the British Colonies_. In it was brought forward the
idea that the political and civil rights of the English colonists in no
way rested upon a grant from the crown; even Magna Charta, old as it
might be, was not the beginning of all things. "A time may come when
Parliament shall declare every American charter void; but the natural,
inherent, and inseparable rights of the colonists as men and as citizens
would remain, and, whatever became of charters, can never be abolished
till the general conflagration."[100]
In this pamphlet definite limitations of the legislative power "which
have been established by God and by Nature" are already enumerated in
the form of the later bills of rights. As the center of the whole stood
the principal occasion of strife between the colonies and the
mother-country, the right of taxation. That the levying of taxes or
duties without the consent of the people or of representatives of the
colonies was not indeed contrary to the laws of the country, but
contrary to the eternal laws of liberty.[101] But these limitations were
none other than those enumerated by Locke, which "the law of God and of
Nature has set for every legislative power in every state and in every
form of government".
But these propositions of Locke's are here found in a very radical
transformation. They are changing namely from law to personal right.
While Locke, similar to Rousseau later, places the individuals in
subjection to the will of the majority of the community, upon which,
however, restrictions are placed by the objects of the state, now the
individual establishes the conditions under which he will enter the
community, and in the state holds fast to these conditions as rights. He
has accordingly rights in the state and claims upon the state which do
not spring from the state. In opposition to England's attempt to
restrict these rights, the idea formally to declare them and to defend
them grew all the stronger.
This formulation was influenced by a work that was published anonymously
at Oxford in 1754, in which for the first time "absolute rights" of the
English are mentioned.[102] It originated from no less a person than
Blackstone.[103] These rights of the individual were voiced in
Blackstone's words for the first time in a Memorial to the legislature,
which is given in an appendix to Otis's pamphlet.[104] On November 20,
1772, upon the motion of Samuel Adams a plan, which he had worked out,
of a declaration of rights of the colonists as men, Christians and
citizens was adopted by all the assembled citizens of Boston. It was
therein declared, with an appeal to Locke, that men enter into the state
by voluntary agreement, and they have the right beforehand in an
equitable compact to establish conditions and limitations for the state
and to see to it that these are carried out. Thereupon the colonists
demanded as men the right of liberty and of property, as Christians
freedom of religion, and as citizens the rights of Magna Charta and of
the Bill of Rights of 1689.[105]
Finally, on October 14, 1774, the Congress, representing twelve
colonies, assembled in Philadelphia adopted a declaration of rights,
according to which the inhabitants of the North American Colonies have
rights which belong to them by the unchangeable law of nature, by the
principles of the constitution of England and by their own
constitutions.[106]
From that to the declaration of rights by Virginia is apparently only a
step, and yet there is a world-wide difference between the two
documents. The declaration of Philadelphia is a protest, that of
Virginia a law. The appeal to England's law has disappeared. The state
of Virginia solemnly recognizes rights pertaining to the present and
future generations as the basis and foundation of government.[107]
In this and the following declarations of rights by the now sovereign
states of North America, by the side of the rights of liberty that had
been thus far asserted,--liberty of person, of property and of
conscience,--stand new ones, corresponding to the infringements most
recently suffered at England's hands of other lines of individual
liberty: the right of assembly, the freedom of the press and free
movement. But these rights of liberty were not the only ones therein
asserted, there were the right of petition, the demand for the
protection of law and the forms to be observed in insuring that, a
special demand for trial by an independent jury, and in the same way
with regard to other acts of the state; and the foundations of the
citizen's political rights were also declared. They thus contained
according to the intentions of their authors the distinctive features of
the entire public right of the individual. Besides these were included
the principle of the division of powers, of rotation of office, of
accountability of office-holders, of forbidding hereditary titles, and
there were further contained certain limitations on the legislature and
executive, such as forbidding the keeping of a standing army or creating
an established church,--all of which do not engender personal rights of
the individual at all, or do so only indirectly. The whole is based upon
the principle of the sovereignty of the people, and culminates in the
conception of the entire constitution being an agreement of all
concerned. In this particular one sees clearly the old Puritan-Independent
idea of the covenant in its lasting influence, of which new power was to
be significantly displayed later. When to-day in the separate states of
the Union changes in the constitution are enacted either by the people
themselves, or through a constitutional convention, there still lives in
this democratic institution the same idea that once animated the settlers
of Connecticut and Rhode Island.
Everywhere the bill of rights forms the first part of the constitution,
following which as second part comes the plan or frame of government.
The right of the creator of the state, the originally free and
unrestricted individual, was first established, and then the right of
that which the individuals created, namely, the community.
In spite of the general accord of these fundamental principles, when it
came to carrying them out in practical legislation great differences
arose in the various states, and though these differences were afterward
greatly lessened they have not entirely disappeared even to-day. Thus,
as mentioned above, religious liberty, in spite of its universal
recognition in the constitutions, was not everywhere nor at once carried
out in all of its consequences. In spite of the assertion that all men
are by nature free and equal the abolition of slavery was not then
accomplished. In the slave states in place of "man" stood "freeman".
The rights thus formally declared belonged originally to all the
"inhabitants", in the slave states to all the "whites". It was only
later that the qualification of citizenship of the United States was
required in most of the states for the exercise of political rights.
We have thus seen by what a remarkable course of development there arose
out of the English law, old and new, that was practised in the
colonies, the conception of a sphere of rights of the individual, which
was independent of the state, and by the latter was simply to be
recognized. In reality, however, the declarations of rights did nothing
else than express the existing condition of rights in definite universal
formulas.
That which the Americans already enjoyed they wished to proclaim as a
perpetual possession for themselves and for every free people. In
contrast to them the French wished to give that which they did not yet
have, namely, institutions to correspond to their universal principles.
Therein lies the most significant difference between the American and
French declarations of rights, that in the one case the institutions
preceded the recognition of rights of the individual, in the other they
followed after. Therein lay also the fatal mistake of the German
National Assembly at Frankfort which wished to determine first the
rights of the individual and then establish the state. The German state
was not yet founded, but it was already settled what this state not yet
existing dare not do and what it had to concede. The Americans could
calmly precede their plan of government with a bill of rights, because
that government and the controlling laws had already long existed.
One thing, however, has resulted from this investigation with
irrefutable certainty. The principles of 1789 are in reality the
principles of 1776.
FOOTNOTES:
[Footnote 97: Kent, _Commentaries on American Law_, 10th ed., I, p.
611.]
[Footnote 98: _Cf._ Kent, I, pp. 612 _et seq._; Stevens, _loc. cit._,
pp. 208 _et seq._ They are universally designated to-day in America as
"bills of rights". Their example undoubtedly influenced the declarations
of 1776 and those after.]
[Footnote 99: Borgeaud, p. 27, cites a treatise by John Wyse as having
had great influence in the democratizing of ideas in Massachusetts. This
man, whose name was John Wise, has done nothing else than take
Pufendorf's theories as the basis of his work, as he himself
specifically declares. _Cf._ J. Wise, _A Vindication on the Government
of New England Churches_, Boston, 1772, p. 22.]
[Footnote 100: Bancroft, IV, pp. 145, 146.]
[Footnote 101: _Cf._ John Adams, _Works_, X, Boston, 1856, p. 293.]
[Footnote 102: _Analysis of the Laws of England_, Chap. 4.]
[Footnote 103: It formed the basis of Blackstone's later
_Commentaries_.]
[Footnote 104: _Cf._ Otis, _The Rights of the British Colonies asserted
and proved_, 1764, reprinted London, p. 106.]
[Footnote 105: _Cf._ Wells, _The Life and Public Services of Samuel
Adams_, I, Boston, 1865, pp. 502-507; Laboulaye, II, p. 171.]
[Footnote 106: The entire text reproduced in Story, _Commentaries on the
Constitution of the United States_, 3d ed., I, pp. 134 _et seq._]
[Footnote 107: The heading of the bill of rights reads: "A declaration
of rights made by the representatives of the good people of Virginia,
assembled in full and free convention; which rights do pertain to them
and their posterity, as the basis and foundation of government."]