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CHAPTER VIII.: THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF CITIZENS DURING THE AMERICAN REVOLUTION. - Georg Jellinek, The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History 
The Declaration of the Rights of Man and of Citizens: A Contribution to Modern Constitutional History, by Georg Jellinek. Authorized translation from the German by Max Farrand, revised by the Author (New York: Henry Holt and Co., 1901).
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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.1 Even before the English Bill of Rights the most of the colonies had enacted laws in which the ancient English liberties were gathered together.2 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 Pufendorf3 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.”4
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.5 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.6 It originated from no less a person than Blackstone.7 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.8 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 1689.9
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.10
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.11
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.
[1.]Kent, Commentaries on American Law, 10th ed., I, p. 611.
[2.]Cf. Kent, I, pp. 612 et seq.; Stevens, loc. cil., 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.
[3.]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.
[4.]Bancroft, IV, pp. 145, 146.
[5.]Cf. John Adams, Works, X, Boston, 1856, p. 293.
[6.]Analysis of the Laws of England, Chap. 4.
[7.]It formed the basis of Blackstone’s later Commentaries.
[8.]Cf. Otis, The Rights of the British Colonies asserted and proved, 1764, reprinted London, p. 106.
[9.]Cf. Wells, The Life and Public Services of Samuel Adams, I, Boston, 1865, pp. 502–507; Laboulaye, II, p. 171.
[10.]The entire text reproduced in Story, Commentaries on the Constitution of the United States, 3d ed., I, pp. 134 et seq.
[11.]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.”