The Declaration of the Rights of Man and of Citizens. Georg Jellinek

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[13] "Ainsi, par la nature du pacte, tout acte de souveraineté, c'est-à-dire toute acte authentique de la volonté générale, oblige ou favorise également tous les citoyens." II, 4.

[14] "La puissance souverain n'a nul besoin de garant envers les sujets." I, 7.

[15] "Il est contre la nature du corps politique que le souverain s'impose une loi qu'il ne puisse enfreindre … il n'y a ni ne peut y avoir nulle espèce de loi fundamentale obligatoire pour le corps du peuple, pas même le contrat social." I, 7.

[16] Constitution du 3 septembre 1791, titre premier: "Le pouvoir législatif ne pourra faire aucune loi qui porte atteinte et mette obstacle à l'exercise de droits naturels et civils consignés dans le présent titre, et garantis par la constitution."

[17] Cf. Taine, loc. cit.: L'ancien régime, pp. 321 et seq.

CHAPTER III.

       Table of Contents

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

The conception of a declaration of rights had found expression in France even before the assembling of the States General. It had already appeared in a number of cahiers. The cahier of the Bailliage of Nemours is well worth noting, as it contained a chapter entitled "On the Necessity of a Declaration of the Rights of Man and of Citizens",[18] and sketched a plan of such a declaration with thirty articles. Among other plans that in the cahier des tiers état of the city of Paris has some interest.[19]

In the National Assembly, however, it was Lafayette who on July 11, 1789, made the motion to enact a declaration of rights in connection with the constitution, and he therewith laid before the assembly a plan of such a declaration.[20]

It is the prevailing opinion that Lafayette was inspired to make this motion by the North American Declaration of Independence.[21] And this instrument is further declared to have been the model that the Constituent Assembly had in mind in framing its declaration. The sharp, pointed style and the practical character of the American document are cited by many as in praiseworthy contrast to the confusing verbosity and dogmatic theory of the French Declaration.[22] Others bring forward, as a more fitting object of comparison, the first amendments to the constitution of the United States,[23] and even imagine that the latter exerted some influence upon the French Declaration, in spite of the fact that they did not come into existence until after August 26, 1789. This error has arisen from the French Declaration of 1789 having been embodied word for word in the Constitution of September 3, 1791, and so to one not familiar with French constitutional history, and before whom only the texts of the constitutions themselves are lying, it seems to bear a later date.

By practically all those, however, who look further back than the French Declaration it is asserted that the Declaration of Independence of the United States on July 4, 1776, contains the first exposition of a series of rights of man.[24]

      Yet the American Declaration of Independence contains only a single paragraph that resembles a declaration of rights. It reads as follows:

      "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness; That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed; That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

      This sentence is so general in its content that it is difficult to read into it, or deduct from it, a whole system of rights. It is therefore, at the very start, improbable that it served as the model for the French Declaration.

This conjecture becomes a certainty through Lafayette's own statement. In a place in his Memoirs, that has as yet been completely overlooked, Lafayette mentions the model that he had in mind when making his motion in the Constituent Assembly.[25] He very pertinently points out that the Congress of the newly formed Confederation of North American free states was then in no position to set up, for the separate colonies, which had already become sovereign states, rules of right which would have binding force. He brings out the fact that in the Declaration of Independence there are asserted only the principles of the sovereignty of the people and the right to change the form of government. Other rights are included solely by implication from the enumeration of the violations of right, which justified the separation from the mother country.

The constitutions of the separate states, however, were preceded by declarations of rights, which were binding upon the people's representatives. The first state to set forth a declaration of rights properly so called was Virginia.[26]

      The declarations of Virginia and of the other individual American states were the sources of Lafayette's proposition. They influenced not only Lafayette, but all who sought to bring about a declaration of rights. Even the above-mentioned cahiers were affected by them.

The new constitutions of the separate American states were well known at that time in France. As early as 1778 a French translation of them, dedicated to Franklin, had appeared in Switzerland.[27] Another was published in 1783 at Benjamin Franklin's own instigation.[28] Their influence upon the constitutional legislation of the French Revolution is by no means sufficiently recognized. In Europe until quite recently only the Federal constitution was known, not the constitutions of the individual states, which are assuming a very prominent place in modern constitutional history. This must be evident from the fact, which is even yet unrecognized by some distinguished historians and teachers of public law, that the individual American states had the first written constitutions. In England and France the importance of the American state constitutions has begun to be appreciated,[29] but in Germany they have remained as yet almost unnoticed. For a long time, to be sure, the text of the older constitutions in their entirety were only with difficulty accessible in Europe. But through the edition, prepared by order of the United States Senate,[30] containing all the American constitutions since the very earliest period, one is now in a position to become acquainted with these exceptionally important documents.

The French Declaration of Rights is for the most part copied from the American declarations or "bills of rights".[31] СКАЧАТЬ