The Online Library of Liberty

A project of Liberty Fund, Inc.

• Translator’s Preface.
• Preface.
• The Declaration of the Rights of Man and of Citizens.
• Chapter I: The French Declaration of Rights of August 26, 1789, and Its Significance.
• Chapter II.: Rousseau’s Contrat Social Was Not the Source of This Declaration.
• Chapter III.: The Bills of Rights of the Individual States of the North American Union Were Its Models.
• Chapter IV.: Virginia’s Bill of Rights and Those of the Other North American States.
• Chapter V.: Comparison of the French and American Declarations.
• Chapter VI.: The Contrast Between the American and English Declarations of Rights.
• Chapter VII.: Religious Liberty In the Anglo-american Colonies the Source of the Idea of Establishing By Law a Universal Right of Man.
• Chapter VIII.: The Creation of a System of Rights of Man and of Citizens During the American Revolution.
• Chapter IX.: The Rights of Man and the Teutonic Conception of Right.

CHAPTER IX.

THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT.

In conclusion there remains still one question to answer. Why is it that the doctrine of an original right of the individual and of a state compact, arising as far back as the time of the Sophists in the ancient world, further developed in the mediaeval theory of Natural Law, and carried on by the currents of the Reformation,—why is it that this doctrine advanced to epoch-making importance for the first time in England and her colonies? And in general, in a thoroughly monarchical state, all of whose institutions are inwardly bound up with royalty and only through royalty can be fully comprehended, how could republican ideas press in and change the structure of the state so completely?

The immediate cause thereof lies clearly before us. The antagonism between the dynasty of the Stuarts, who came from a foreign land and relied upon their divine right, and the English national conceptions of right, and also the religious wars with royalty in England and Scotland, seem to have sufficiently favored the spreading of doctrines which were able to arouse an energetic opposition. Yet similar conditions existed in many a Continental state from the end of the sixteenth to the middle of the seventeenth century. There, too, arose a strong opposition of the estates to royalty which was striving more and more towards absolutism, fearful religious wars broke out and an extensive literature sought with great energy to establish rights of the people and of the individual over against the rulers. The revolutionary ideas on the continent led it is true in France to regicide, but there was nowhere an attempt made at a reconstruction of the whole state system. Locke’s doctrines of a Law of Nature appear to have had no influence at all outside of England. The Continental doctrines of natural law played their important part for the first time at the end of the eighteenth century in the great social transformation of the French Revolution.

It was not without result that England in distinction from the Continent had withstood the influence of the Roman Law. The English legal conceptions have by no means remained untouched by the Roman, but they have not been nearly so deeply influenced by them as the Continental. The public law especially developed upon an essentially Teutonic basis, and the original Teutonic ideas of right have never been overgrown with the later Roman conceptions of the state’s omnipotence.

The Teutonic state, however, in distinction from the ancient, so far as the latter is historically known to us, rose from weak beginnings to increasing power. The competence of the Teutonic state was in the beginning very narrow, the individual was greatly restricted by his family and clan, but not by the state. The political life of the Middle Ages found expression rather in associations than in a state which exhibited at first only rudimentary forms.

At the beginning of modern times the power of the state became more and more concentrated. This could happen in England all the easier because the Norman kings had already strongly centralized the administration. As early as the end of the sixteenth century Sir Thomas Smith could speak of the unrestricted power of the English Parliament,1 which Coke a little later declared to be “absolute and transcendent”.2

But this power was thought of by Englishmen as unlimited only in a nominal legal sense. That the state, and therefore Parliament and the King have very real restrictions placed upon them has been at all times in England a live conviction of the people.

Magna Charta declares that the liberties and rights conceded by it are granted “in perpetuum“.3 In the Bill of Rights it was ordained that everything therein contained should “remain the law of this realm forever”.4 In spite of the nominal omnipotence of the state a limit which it shall not overstep is specifically demanded and recognized in the most important fundamental laws.

In these nominally legal but perfectly meaningless stipulations, the old Teutonic legal conception of the state’s limited sphere of activity finds expression.

The movement of the Reformation was also based on the idea of the restriction of the state. Here, however, there entered the conception of a second restriction which was conditioned by the entire historical development. The mediæval state found restrictions not only in the strength of its members, but also in the sphere of the church. The question as to how far the state’s right extended in spiritual matters could only be fully raised after the Reformation, because through the Reformation those limits which had been fixed in the Middle Ages again became disputable. The new defining of the religious sphere and the withdrawal of the state from that sphere were also on the lines of necessary historical development.

So the conception of the superiority of the individual over against the state found its support in the entire historical condition of England in the seventeenth century. The doctrines of a natural law attached themselves to the old conceptions of right, which had never died, and brought them out in new form.

The same is true of the theories that arose on the Continent. Since the predominance of the historical school, one is accustomed to look upon the doctrines of a natural law as impossible dreaming. But an important fact is thereby overlooked, that no theory, no matter how abstract it may seem, which wins influence upon its time can do so entirely outside of the field of historical reality.

An insight into these historical facts is of the greatest importance for a correct legal comprehension of the relation of the state and the individual. There are here two possibilities, both of which can be logically carried out. According to the one the entire sphere of right of the individual is the product of state concession and permission. According to the other the state not only engenders rights of the individual, but it also leaves the individual that measure of liberty which it does not itself require in the interest of the whole. This liberty, however, it does not create but only recognizes.

The first conception is based upon the idea of the state’s omnipotence as it was most sharply defined in the absolutist doctrines of the sixteenth and seventeenth centuries. Its extreme consequence has been drawn by the poet in his question of law:

“Jahrelang schon bedien’ ich mich meiner Nase zum Riechen;

Hab’ ich denn wirklich an sie auch ein erweisliches Recht?”5

The second theory on the other hand is that of the Teutonic conception of right corresponding to the historical facts of the gradual development of the state’s power. If natural right is identical with non-historical right, then the first doctrine is for the modern state that of natural right, the second that of historical right. However much the boundaries of that recognized liberty have changed in the course of time, the consciousness that such boundaries existed was never extinguished in the Teutonic peoples even at the time of the absolute state.6

This liberty accordingly was not created but recognized, and recognized in the selflimitation of the state and in thus defining the intervening spaces which must necessarily remain between those rules with which the state surrounds the individual. What thus remains is not so much a right as it is a condition. The great error in the theory of a natural right lay in conceiving of the actual condition of liberty as a right and ascribing to this right a higher power which creates and restricts the state.7

At first glance the question does not seem to be of great practical significance, whether an act of the individual is one directly permitted by the state or one only indirectly recognized. But it is not the task of the science of law merely to train the judge and the administrative officer and teach them to decide difficult cases. To recognize the true boundaries between the individual and the community is the highest problem that thoughtful consideration of human society has to solve.

SECOND IMPRESSION.

FORD’S THE FEDERALIST.

Edited by Paul Leicester Ford, editor of the writings of Jefferson; Bibliography of the Constitution at the United States, 1787–1788; Pamphlets on the Constitution of the United States. lxxvii + 793 pp. Large 12mo. $1.75, net.

The present edition is the first in which any attempt has been made to illustrate, in foot-notes, not merely the obscure passages in the text, but also the subsequent experience of the United States and other countries where they relate to the view expressed by the authors. The most authentic text has been used; the antiquated and often absurd punctuation—largely due to incompetent early printers—has been rationalized; and an introduction, abundant cross-references, and a fullindex materially increase the value of this edition for both students and lawyers. Matter of obsolete or minor interest has been put in distinctive type. An appendix of 149 pages contains The Constitution with all the amendments, and the references to U.S. Reports, besides other documents important in constitutional development.

Roger Foster author of Commentaries on the Constitution: “The best edition of The Federalist that has been published.”

Right Hon. James Bryce: Far the best [edition] I have seen, and the most likely to be useful to students of political science.”

New York Tribune: “Mr. Ford’s editing is nothing less than perfect.... Printed handsomely and published in a convenient size, this is an invaluable edition, calculated to be of service not only to the politician and lawyer, but to every thoughtful citizen.”

Review of Reviews: “Mr. Ford has the habit of thoroughness in a very remarkable degree;... not only great ability, but rare opportunities and invaluable experience.... A soundly edited text;... an introductory essay which really puts the touch of finality upon upon questions that have been in dispute for nearly a centry.... For the purposes of critical study and precise reference Mr. Ford’s edition, it seems to us, must of necessity exclude all others. Quite apart from the extremely valuable editorial (The Federalist has never before been indexed) would entitle him to a vote of thanks by Congress.

Prof. Edward G. Bourne, of Yale : “The most useful edition for the working student.”

The Dial : “Mr. Paul Leicester Ford has many titles to the gratitude of students interested in American history, and none more clear than that which is due him for his edition of The Federalist. . . . The work is admirably done in all important respects, and should be upon the desk of every teacher of American constitutional history.”

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GORDY’S POLITICAL PARTIES IN THE UNITED STATES
Vol. I, 1783–1809. 598 pp. 12mo. $1.75, net, special.

A work intended for the thoughtful reader without much previous knowledge of the subject. To be completed in four volumes, the second of which is now in press.

Nation: “Four years ago we had an opportunity to pronounce a addition to a thorough revision.... The opening sentences (no mean criterion often) are of a nature to whet the appetite for what is to come.”

LEE’S SOURCE BOOR OF ENGLISH HISTORY
Edited by Dr. Guy Carlton Lee. 609 pp. 12mo. $2,00, net.

Some 200 documents and selections from contemporaries from Herodotus to the last treaty with the Boers. With a full Bibliography of Sources (60 pp.).

N. Y. Tribune: “The generous scope of the work would alone Commend it to the student. Every detail in the book increases his gratitude.... Mr. Lee appears to have used the best judgment choosing just such documents as the reader desires to get at. ... Altogether, this is a most serviceable publication. Mr. Lee’s little introductory notes to his various documents are judiciously brief, but always sufficient and interesting.”

HENDERSON’S SIDE LIGHTS ON ENGLISH HISTORY

With 80 full-page illustrations. 300 pp.8vo $5,00 net special. Accounts and pictures by contemporaries ingeniously arranged to give the effect of a continuous history, and dealing with such topics as the personality of Queen Elizabeth, the execution of Mary Stuart characteristic traits of Cromwell the return of Charles II., the Stuarts in exile. Queen Anne and the Marlboroughs, etc., etc., illustrated by 80 portraits, fac-similes caricatures, etc., reproduced directly from the rarest original mezzotint and line engravings.

N. Y. Tribune: “It is not unlikely that he who has dipped into this book in the early afternoon will find himself reading when night comes.... A better book to put in the hands of the lover of history, whether he be a beginner or an old student, we do not know.”

WALKER’S DISCUSSIONS IN ECONOMICS AND STATISTICS

By the late General Francis a Walker Edited by Prof Davis R. Dewey.

With portrait. 454 + 481 pp. a vols 8vo $6.00, net special, as instructive to the careful student.”

The Dial: “Clear and interesting to the general reader, as well as instructive to the careful student.”

BREAL’S SEMANTICS
lxvi + 336 pp. 12mo, $2.50, net.

Studies in the Science of Significations. as distinguished from the Science of Sounds (Phonetics) The style is pleasing, and the enjoyment of the book requires n o previous philological training.

SWEET’S PRACTICAL STUDY OF LANGUAGES

By Prof. Henry Sweet of Oxford. 12mo, $1.50, net. xii, 1900 (2)

“Clear and interesting to the general reader, as well as instructive to the careful student.”—The Dial.

an important work by the late FRANCIS A. WALKER

President of the Massachusetts Institute of Technology: Professor of Political Economy and History in Sheffield Scientific School of Yale College: late chief of the U. S. Bureau of Statistics: Superintendent of the Ninth Census: author of the Statistical Atlas of the United States etc.

DISCUSSIONS IN ECONOMICS AND STATISTICS

Edited by Professor Davis R. Dewey.

With portrait. 454 + 481 pp. 2 vols. 8vo. $6.00, net.

Vol. I. Finance and Taxation, Money and Bimetallism, Economic Theory.

Vol.. II. Statistics, National Growth, Social Economics.

The author had hoped to bring these papers together him-self.

The Dial : “Professor Dewey has performed a real service to the public as well as to the memory of his late chief.... In the present collection the editor has not included every-thing General Walker ever wrote, but has aimed, so far as possible, to avoid repetitions of thought... there are some discussions of the national finances in the period following the Civil War, which have a timely as well as historical interest at the present time.... To improve the census was General Walker’s work for many years, and his experience cannot fail to be of interest to the present generation.... Economics in the hands of this master was no dismal science, because of his broad sympathies, his healthy. conservative optimism, his belief in the efficacy of effort; and, in a more superficial sense. because of his saving sense of humor and his happy way of putting things,... he was the fortunate possessor of a very pleasing literary style,... clear and interesting to the general reader, as well as instructive to the careful student.”

The Outlook: “This book makes accessible for students the miscellaneous work of one of America’s greatest political economists.... Dr. Dewey has performed his critical work with the reverence of a disciple, and reprinted in full all the more important contributions.”

Political Science Quarterly: “The collection embraces between fifty and sixty articles, all of them characterized by the forceful reasoning and balanced judgment of the gifted author.”

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“A fitting memorial to its author.”-The Dial A NOTABLE BOOK BY THE LATE FRANCIS A. WALKER
President of the Massachusetts Institute of Technology

DISCUSSIONS IN EDUCATION

Edited by James Phinney Munroe. 8vo. $3.00, net.

The author had hoped himself to collect these papers in a volume. They are grouped under Technological Education, Manual Education, The Teaching of Arithmetic and College Problems (including College Athletics). A Valedictory appropriately closes the book.

The Outlook: “Space fails us here to transcribe some passages we had marked as maxims for the times. So long as the reforms and improvements i n our educational methods which General Walker advocated, not without some success, are but partially accomplished, will this volume of expert testimony deserve to be close at hand to those with whom is the responsibility of direction.”

The Dial: “A fitting memorial to its author... The breadth of his experience, as well as the natural range of his mind, are here reflected. The subjects dealt with are all live and practical.... He never deals with them in a narrow or so-called ‘practical’ way.”

The Boston Transcript: “Two of his conspicuous merits characterize these papers, the peculiar power he possessed of enlisting and retaining the attention for what are commonly supposed to be dry and difficult subjects, and the capacity he had for controversy, sharp and incisive, but so candid and generous that it left no festering wound.”

The Review of Reviews: “A strong presentation of the scope and dignity of technological education, and its relations to other forms of culture.”

The School Review: “The scope and power of the contents make the work a permanent contribution to the development of educational thought and principle.”

EARLIER BOOKS BY GEN. FRANCIS A. WALKER

(Circular free.) Wages. 428 pp. 12mo. $2.00.—Money. 550 pp. 12 mo . $2.00.—Money in its Relations to Trade and Industry. 339 pp. 12mo. $1.25 . — International Bimetallism 297 pp. 12mo. $1.25.—Political Economy (Advanced Course. 537 pp. 8vo. $2.00. net. — Briefer Course. 415 pp. 12mo. $1.20, net.—Elementary Course. 323 pp. 12mo. $1.00, net.)

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2d Impression of
THE FORTUNE OF WAR
By Miss ELIZABETH BARROW. 12mo. $1.25.

A vivid romance, the scene of which is laid in New York City during the British Occupation in the Revolution.

N.Y. Times Saturday Review: “The story is a good one, the historical data accurate, and the ways and manners of the period are cleverly presented.... The love plot is absorbing, and will be found by many readers even more fascinating than the faithful reproduction of the manners and customs of the time.... It is quite safe to say that this book vies in excellence with some of the historical romances which have caused more general comment, N o doubt it will gradually grow into a larger popularity.

The Outlook: “Miss Elizabeth Barrow has done her work not only well, but delightfully well.”

The Independent: “A short tale, and a very good one.... A story of the Revolutionary War, romantic to a degree and very charmingly told.”

Chicago Times-Herald: “Another tale of the time of Washington, but one that is more deserving both of popular and critical appreciation than sune of the much-vaunted financial successes.”

Springe field Republican: “It gives a good picture of New York City as it was in the eighteenth century.... The story is agreeable reading.”

Hartford Courant: “She has done good work in her romance:... it is told in a very attractive way.... The book is decidedly one that will entertain.”

Christian Register: “Miss Barrow has been successful in depicting the condition of New York City at the time the British were quartered there... It is a bright, pleasant tale.”

The Churchman: “The book furnishes an interesting side-light upon the estimation in which the Americans were held by the upper classes of the British through the greater part of the Revolutionary struggle.”

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RUSSIA

KRAUSSE’S RUSSIA IN ASIA, 1558–1899

With appendix, index, and twelve maps. 8vo. $4.00.

Boston Transcript: “The most masterly marshaling of the British arguments against Russia which has appeared in a long time.... The man who wrote the book has had an inside view of Russian methods or else he is extremely clever in collecting detailed information about them. His information is brought down to date and his passages on the Manchurian railway agreement show that he can see near things as vividly as far things. His review of the present state of Russia’s southern boundary in Asia is striking, and sums up a great deal of history.”

THOMPSON’S RUSSIAN POLITICS

By Herbert M. Thompson. An account of the relations of Russian geography, history, and politics, and of the bearings of the last on questions of world-wide Interest. With maps. 12mo. $2.00.

Outlook: “The result of careful stud compactly, clearly and effectively presented.... The author’s aim is to stir the friends of freedom throughout the world to a deeper Interest In the cause of Russian liberty. His work is vivified by the fact that his heart is in it.”

WALLACE’S RUSSIA

By D. Mackenzie Wallace M. A., Member of the Imperial Russian Geographical Society Large 12mo. $2.00.

Contents include: In the Northern Forests; Voluntary Exile; The Village Priest; A Peasant Family of tie Old Type The Mir or Village Community. Towns and Mercantile Classes; Lord Novgorod the Great; The Imperial Administration; The New Local Self-Government; Proprietors of the Modern School; The Noblesse; Social Classes; Among the Heretics; Pastoral Tribes of the Steppes: St. Petersburg and European Influence; Church and Sate; The Crimean War and Its Consequences; The Serfs; The New Law Courts; Territorial Expansion and the Eastern Question.

Nation: “Worthy of the highest praise Not a piece of clever book-making, but the result of a large amount of serious study and thorough research.... We commend his book as a very valuable account of a very interesting people.”

GAUTIER’S A WINTER IN RUSSIA

By Théophile Gautier. Translated by M. M. Ripley. 12mo $1.75.

Contents: Berlin; Hamburg; Schleswig; Lubeck; Crossing the Baltic; St. Petersburg;. Winter; The Neva; Details of Interiors; A Ball at the Winter Palace; The Theatres;The Tchoukine Dvor; Zichy; St. Isaac’s; Moscow; The Kremlin; Troltza; Byzantine Art; Return to France.

New York Tribune: “As little like an ordinary book of travel as a slender antique vase filled with the perfumed wine of Horatian banquets is like the fat comfortable tea-cup of a modern breakfast-table.”

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[1.]“The most high and absolute power of the realm of England consisteth in the Parliament . . . all that ever the people of Rome might do, either in centuriatis comitiis or tributis, the same may be done by the Parliament of England, which representeth and hath the power of the whole realm, both the head and the body.” The Commonwealth of England, 1589, Book II, reprinted in Prothero, Select Statutes and Documents of Elizabeth and James I., Oxford, 1894, p. 178.

[2.]4 Inst. p. 36.

[3.]Art. 63. Stubbs, p. 306.

[4.]Art. II. Stubbs, p. 527.

[5.]For years I have used my nose to smell with, Have I then really a provable right to it?

[6.]The idea of all individual rights of liberty being the product of state concession has been recently advocated by Tezner, Grünhuts Zeitschrift für Privat– und öffentliches Recht, XXI, pp. 136 et seq., who seeks to banish the opposing conception to the realm of natural right. The decision of such important questions can only be accomplished by careful historical analysis, which will show different results for different epochs,—that, for example, the legal nature of liberty is entirely different in the ancient state and in the modern. Legal dialectics can easily deduce the given condition with equally logical acuteness from principles directly opposed to one another. The true principle is taught not by jurisprudence but by history.

[7.]Cf. more explicitly on this, Jellinek, loc. cit., pp. 43, 89 et seq.