The Declaration of the Rights of Man and of Citizens   By: Georg Jellinek (1851-1911)

A Contribution to Modern Constitutional History

BY

GEORG JELLINEK, DR. PHIL. ET JUR.

Professor of Law in the University of Heidelberg

AUTHORIZED TRANSLATION FROM THE GERMAN

BY

MAX FARRAND, PH.D.

Professor of History in Wesleyan University

REVISED BY THE AUTHOR

[Illustration]

NEW YORK

HENRY HOLT AND COMPANY

1901

Copyright, 1901.

BY

HENRY HOLT & CO.

ROBERT DRUMMOND, PRINTER, NEW YORK.

TRANSLATOR'S PREFACE.

Although several years have elapsed since this essay was published, it has apparently come to the attention of only a few specialists, and those almost exclusively in modern European history. It deserves consideration by all students of history, and it is of special importance to those who are interested in the early constitutional history of the United States, for it traces the origin of the enactment of bills of rights. In the hope that it will be brought before a larger number of students who realize the significance of this question and who appreciate genuine scholarly work, this essay is now translated.

M.F.

WESLEYAN UNIVERSITY, MIDDLETOWN, CT., March 1, 1901 .

TABLE OF CONTENTS.

CHAPTER PAGE

I. THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26, 1789, AND ITS SIGNIFICANCE 1

II. ROUSSEAU'S "CONTRAT SOCIAL" WAS NOT THE SOURCE OF THIS DECLARATION 8

III. THE BILLS OF RIGHTS OF THE INDIVIDUAL STATES OF THE NORTH AMERICAN UNION WERE ITS MODELS 13

IV. VIRGINIA'S BILL OF RIGHTS AND THOSE OF THE OTHER NORTH AMERICAN STATES 22

V. COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS 27

VI. THE CONTRAST BETWEEN THE AMERICAN AND ENGLISH DECLARATIONS OF RIGHTS 43

VII. RELIGIOUS LIBERTY IN THE ANGLO AMERICAN COLONIES THE SOURCE OF THE IDEA OF ESTABLISHING BY LAW A UNIVERSAL RIGHT OF MAN 59

VIII. THE CREATION OF A SYSTEM OF RIGHTS OF MAN AND OF CITIZENS DURING THE AMERICAN REVOLUTION 78

IX. THE RIGHTS OF MAN AND THE TEUTONIC CONCEPTION OF RIGHT 90

THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS.

CHAPTER I.

THE FRENCH DECLARATION OF RIGHTS OF AUGUST 26, 1789, AND ITS SIGNIFICANCE.

The declaration of "the rights of man and of citizens" by the French Constituent Assembly on August 26, 1789, is one of the most significant events of the French Revolution. It has been criticised from different points of view with directly opposing results. The political scientist and the historian, thoroughly appreciating its importance, have repeatedly come to the conclusion that the Declaration had no small part in the anarchy with which France was visited soon after the storming of the Bastille. They point to its abstract phrases as ambiguous and therefore dangerous, and as void of all political reality and practical statesmanship. Its empty pathos, they say, confused the mind, disturbed calm judgment, aroused passions, and stifled the sense of duty, for of duty there is not a word.[1] Others, on the contrary, and especially Frenchmen, have exalted it as a revelation in the world's history, as a catechism of the "principles of 1789" which form the eternal foundation of the state's structure, and they have glorified it as the most precious gift that France has given to mankind.