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of Englishmen' are the outcome of the concrete historical development of the Constitution, and not deductions from any fundamental Rights of Man. With this tradition the proclamation of the American Bills of Rights marked a definite breach, and in theory was as foreign to English methods as was the conduct of the National Assembly in the August of 1789. The revolt of the Colonists on what seem very trivial material grounds, their readiness to put principle before immediate advantage, showed that they were prepared to give more than mere lip-service to their new theories.
But not only do the American principles reveal the same abstract character as the French, their contents are essentially identical. An examination of the Declaration of 1789 fails to reveal a single important idea which was not anticipated in the Bill of Rights of the nascent States of the West. On the contrary, the American documents guarantee a number of rights which find no place in their French counterpart. Such, for instance, are those of migration, of holding public meetings to discuss matters affecting the welfare of the commonwealth ; of petitioning the duly established authorities'; and in capital or criminal
; prosecutions of demanding trial by jury. But in the two principal objects to be attained, the sovereignty of the people and the protection of the individual against the tyranny of the State, there is striking agreement. And it must be remembered that such statement of principles no longer took the form of protests against autocratic government, but formed the fundamental laws of the land.
TH objection may be made that these eighteenthcentury legislators were attempting to combine aims that were really irreconcilable; since the claims of Democracy are ultimately bound to come into conflict with the rights of the individual. But this is precisely what was recognized
-though, perhaps, in different degrees—both in America and France, and an attempt was made to prevent the more powerful force from becoming too predominant and despotic. Yet it was also recognized that until an end was put to autocracy, and government was based on the people's will, it was futile to think of safeguarding the rights of
* These rights are not mentioned in the Declaration of 1789, but find a place in Title I. of the Constitution of 1791 under the heading, “Dispositions fondamentales guaranties par la Constitution,' where most of the Rights of Man and the Citizen are repeated.
ordinary individuals. The first necessary step was De. mocracy, the second the self-limitation of the Democratic State: it should recognize the frontiers of its legitimate authority. Thus each part of the twofold programme of the Declarations is the complement of the other.
A pronounced, even exaggerated individualism formed the starting-point of the political speculation of that time. This lies at the root of most of those social compact’ theories which were put forward to provide a basis for political obligation. An examination of these theories is not called for here. One of the principal ideas which this phraseology seemed intended to express was that government must rest on or be capable of being traced back to the consent of the governed, whether such consent be past and done with, or present and ever-continuing, whether it be express or tacit. In the second half of the eighteenth century the idea that consent once given was irrevocable, and handed generation after generation over to their ruler, bound hand and foot, no longer found favour ; it was certainly not entertained by those who framed the Declarations. It is but fitting that the States whose founders had drawn up the celebrated Mayflower Compact, should be most explicit in expounding the contractual foundation of political society. The body politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.' And, as their forefathers had done one hundred and sixty years previously, they then proceed to enter into such å compact. In the circumstances of this State the social contract theory might claim to be something more than a philosophic fiction, and the idea of the original equality and freedom of men in some measure to represent reality.
The individualism of the time is also largely responsible for the famous first article of the French Declaration : •Men are born and remain free and equal in rights. Social
1 Preamble to the Massachusetts Constitution, 1780. Cf. the Mayflower Compact, 1620 : 'We, .. the loyall subjects of our dead soveraigne Lord, King James, ... doe by these presents solemnly and mutually in the presence of God, and of one another, covenant and combine our selves togeather into a civill body politick, for our better ordering & preservation & furtherance of the ends aforesaid ; and by virtue hearof to enacte, constitute, and frame such just & equall lawes, ordinances, acts, constitutions & offices, from time to time, an shall be thought most meete and convenient for the generall good of the Colonie, unto which we promise all duo submission and obedience. ...
distinctions can have no other foundation except that of public utility.'! Few of the articles have incurred, and, perhaps deserved, such censure as this ; yet few have been so effective. That it is in many respects palpably false does not impair its efficiency. Large masses have seen in it sufficient truth to convert it into a slogan. That it is ambiguous, that it does not mean the same thing in the political agitations of the beginning of the twentieth century as it did at the end of the eighteenth, only secures that its efficiency as a slogan has not departed. Partisans might urge that it is one of those principles whose entire import is not immediately grasped, but require the experience of generations to unfold their full political, social, and economic significance.
But not only are men born 'free and equal,' they also possess certain 'natural,' 'inherent,' essential,' and ina
' lienable' rights, of which they can be deprived only by an act of tyranny. So important and sacred are they, that to protect them is one of the main reasons for the existence of the State. The State did not confer them and the State may not take them away. These are the rights to liberty, property, security, and resistance to oppression. The exercise of these rights finds a 'natural' limitation in the fact that others have similar rights and no one ought to push the exercise of his right so far as to deprive the other members of society of theirs. Restraints, consequently, there must be, but these ought to be fixed by law, not
1 Cf. the American Declarations ; Virginia I. 'All men are by nature equally free and independent ; Mass. I. 'All men are born free and equal, and ve certain natural, essential, and inalienable rights among which may be reckoned the right of enjoying and defending their lives and liberties, that of acquiring, possessing, and protecting property, in fine, that of seeking and obtaining their safety and happiness.' The second part of Article VI. of the French Declaration runs : 'All citizens being equal in the eyes of the law are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.' Cf. Virginia. Iv. : 'That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services, which not being descendable, neither ought the offices of magistrate, legislator, or judge to be hereditary. Mass. x. has a somewhat similar provision in regard to elegibility to offices.
2 M. Aulard when, in his Histoire Politique de la Révolution Francaise, p. 47, he apparently wishes to identify this proposition with Socialism, may be preaching excellent politics, but lacks historical perspective.
3 Cf. in addition to the references in note 1, supra, France II., Mass. Preamble.
4 France mentions these four ; Virginia and Massachusetts the first three ; whilst Maryland and New Hampshire are very emphatic on the fourth : 'The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of all the good and happiness of mankind.'
by the arbitrary whim of the ruler,' and must apply equally to all.
The 'Reign of Law' as one of the strongest bulwarks of the rights of the individual is, in fact, a conception permeating many of the provisions of the Declarations on both sides of the Atlantic. No restraint may be placed on the liberty of action of the individual, save such as the laws framed in the interests of the community enjoin. Similarly, it is only in accordance with the forms of the law that a citizen may be accused, arrested, or imprisoned. Any attempt at arbitrary imprisonment may be resisted and is punishable. The laws alone may prescribe punishments for offences against society, and such punitive laws must proportionate the punishment to the crimes and not be retrospective.
The question that aroused most debate in the National Assembly was that of Liberty of Conscience. Finally, to the disgust of Mirabeau, who held that liberty of conscience was so sacred a right that mere tolerance seemed an insult, the following article was adopted : 'No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law. New Hampshire had gone further and decreed :
Every individual has a natural and inalienable right to worship God according to the dictates of his own conscience and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping God, in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession, sentiments, or persuasion, provided he doth not disturb the public peace, or disturb others in their religious worship.
Similarly Virginia decreed in the last paragraph of its Declaration :
Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force and violence; and therefore all men are equally entitled to the
1 Cf. France v.: 'Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law'; and VI. : ‘Law must be the same for all whether it punishes or protects. Virginia III. condemns the power of suspending laws.' Mass. XI. and N.C. XII. insist on a legal remedy being at the disposal of those who suffer wrong or restraint in person, property, or character.
2 Cf. France VII., Mass. XII., Va. X. 8 Cf. France VIII., N.H. XVIII., Md. XIV., Mass. XXVI. + Cf. France VIII., Md. xv. * The Séances of August 22 and 23. Cf. Moniteur, i. 372-373, 374-378.
free exercise of religion, according to the dictates of conscience; and that it is the duty of all to practise Christian forbearance, love, and charity towards each other. 1
But it must be remembered that this principle was by no means universally accepted by the American States on the morrow of their revolt from England. In the majority of the thirteen States religious tests of some kind were required for eligibility to office and in South Carolina for the exercise of the franchise. In some States it was only in the course of the nineteenth century that Catholics—to say nothing of Jews and Atheists—were put on a footing of legal equality with Protestants. Even in New Hampshire it was some time before the State Church ceased ; in Connecticut it continued till 1818, and in Massachusetts till 1833. The Constitution of the last mentioned State (1780) allowed a contribution in favour of Protestant teachers of religion and morality to be levied even on those who were not members of the Church.
Finally, the 'Freedom of the Press is one of the great bulwarks of liberty and can never be restrained but by despotic governments.': This is paralleled by the eleventh article of the French Declaration : The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.'
But to guarantee the rights of the individual was only half the task of the Declarations. It was also intended
1 In connexion with the growth of religious liberty the history of Rhode Island and Maryland is of special interest. At the time of the American Revolution perhaps the most explicit statement of the right of liberty of conscience is that of Art. XXXVIII. of the New York Constitution (1777) which did 'ordain, determine, and declare the free exercise of religious profession and worship, without discrimination or preference, to all mankind.' New York had no religious test for office. North Carolina also proclaimed full liberty of religion (December, 1776).
2 The Union Constitution, first Amendment, decrees 'that Congress shall make no law respecting an establishment of religion or prohibiting the exercise thereof.' But obviously this did not limit the powers of the individual States in this respect.
3 Va. XII. ; cf. Penn. XII. It may be of interest to note that this right is also acknowledged by the first Amendment to the U.S. Constitution so far as the authority of the Union is concerned. 'Congress shall make no law . abridging freedom of speech or the right of the people peaceably to assemble, and to petition the government for the redress of grievances.'
* It may be objected that some of the rights dealt with belong rather to the rights of the citizen than to the rights of man. But there is no attempt at system. atization in any of the declarations. This will cause no surprise in the case of the Anglo-Saxons, and anyone who reads the debates in the National Assembly will be surprised that from such disorder in debate any result whatsoever issued.