[Footnote 75: The complete text in Poore, I, p. 931. That it was far from the intentions of the settlers to found an independent state is evident from the entire doc.u.ment, in which they characterize themselves as "subjects of our dread Sovereign Lord King James".]

[Footnote 76: On Williams, _cf._ Weingarten, pp. 36 _et seq._, and 293, Bancroft, I, pp. 276 _et seq._, Ma.s.son, _The Life of John Milton_, II, pp. 560 _et seq._ The advance of the Independent movement to unconditional freedom of faith is thoroughly discussed by Weingarten, pp. 110 _et seq._]

[Footnote 77: Samuel Greene Arnold, _History of the State of Rhode Island_, I, New York, 1859, p. 103.]

[Footnote 78: Arnold, p. 124.]

[Footnote 79: _Fundamental Orders of Connecticut_, Poore, I, p. 249.]

[Footnote 80: The entire number of immigrants in New England amounted in 1640 to 22,000 at the highest. Of these New Plymouth had 3000, Connecticut less than 2000 souls. Ma.s.son, _loc. cit._, pp. 548-550.]

[Footnote 81: The wide separation of the colonies from the mother-country did not make this liberty appear dangerous though it was in such contradiction to the conditions in England. Charles II. sought further, in his aversion to the Puritans, to favor as much as possible the colonies that had separated from Ma.s.sachusetts.]

[Footnote 82: "Our royall will and pleasure is, that noe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion, and doe not actually disturb the civill peace of our sayd colony; but that all and everye person and persons may, from tyme to tyme, and at all tymes hereafter, freelye and fullye have and enjoye his and their owne judgments and consciences, in matters of religious concernments, throughout the tract of lande hereafter mentioned; they behaving themselves peaceablie and quietlie, and not useing this libertie to lycentiousnesse and profanenesse, nor to the civill injurye or outward disturbeance of others; any lawe, statute or clause, therein contayned, or to bee contayned, usage or custome of this realme, to the contrary hereof, in any wise, notwithstanding." Poore, II, pp. 1596, 1597.]

[Footnote 83: Bancroft, I, p. 193, E. Lloyd Harris, _Church and Slate in the Maryland Colony_. Inaugural-Dissertation. Heidelberg, 1894, p. 26 _et seq_.]

[Footnote 84: Carolina had already had religious toleration in the Charter of 1665. Poore, II, p. 1397. Locke himself wished to grant full religious liberty. _Cf._ Laboulaye, I, p. 397.]

[Footnote 85: Art. 97. Poore, II, pp. 1406, 1407.]

[Footnote 86: Art. 101. _Ibid._]

[Footnote 87: Arts. 102, 106. _Ibid._]

[Footnote 88: C. Ellis Stevens, _Sources of the Const.i.tution of the United States_, New York, 1894, P. 217.]

[Footnote 89: Laws agreed upon in England, Art. x.x.xV. Poore, II, p.

1526.]

[Footnote 90: Charter of Privileges for Pennsylvania, Art. I. Poore, II, p. 1537. For holding office the confession of belief in Jesus Christ as the Saviour of the world was necessary, but no special creed.]

[Footnote 91: Art. VIII, section 3.]

[Footnote 92: Poore, I, p. 950. On this point _cf._ Lauer, _Church and State in New England_ in _Johns Hopkins University Studies, 10th Series_, II-III, Baltimore, 1892, pp. 35 _et seq._]

[Footnote 93: Poore, I, p. 375.]

[Footnote 94: In England the Toleration Act, I. Will. and Mary, c. 18, first granted toleration to Dissenters. This was again restricted under Anne and restored under George I. Since George II. they have been admitted to all offices. As is well known, however, the restrictions upon the Catholics and Jews have been done away with only in our century. In Germany after the scanty concessions of the Peace of Osnabruck, a state of affairs similar to that earlier in America was first created by the Toleration Patent of Joseph II. of 1781, the Edict of Frederick William II. of July 9, 1788, that which codified the principles of Frederick the Great, and above all by the Prussian _Allgemeines Landrecht_ (Teil II, t.i.tel 11, ---- 1 _et seq._).]

[Footnote 95: To be sure the carrying out of this right, in the direction of full political equality to the members of all confessions, differed in the different states. New York was the first state after Rhode Island that brought about the separation of church and state.

Virginia followed next in 1785. For some time after in many states Protestant or at least Christian belief was necessary to obtain office.

And even to-day some states require belief in G.o.d, in immortality, and in a future state of rewards and punishments. Ma.s.sachusetts declared in her bill of rights not only the right but the duty of worship, and as late as 1799 punished neglect of church attendance. In the course of the nineteenth century these and other restrictions have fallen away except for a very small part. For the Union the exercise of political rights is made entirely independent of religious belief by Art. VI of the Const.i.tution, and also by the famous First Amendment the establishment of any religion or prohibiting the free exercise thereof is forbidden.

On the present condition in the separate states, _cf._ the thorough discussion by Cooley, Chap. XIII, pp. 541-586; further Ruttiman, _Kirche und Staat in Nordamerika_ (1871).]

[Footnote 96: "Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the RIGHTS OF CONSCIENCE." Art. IV. Poore, II, 1280.]

CHAPTER VIII.

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 inst.i.tutions 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 inst.i.tutions. Not that it changed these inst.i.tutions, 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.[97] Even before the English Bill of Rights the most of the colonies had enacted laws in which the ancient English liberties were gathered together.[98] 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 G.o.d 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 Pufendorf[99] 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."[100]

In this pamphlet definite limitations of the legislative power "which have been established by G.o.d and by Nature" are already enumerated in the form of the later bills of rights. As the center of the whole stood the princ.i.p.al 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.[101] But these limitations were none other than those enumerated by Locke, which "the law of G.o.d 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.[102] It originated from no less a person than Blackstone.[103] 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.[104] 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 a.s.sembled 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.[105]

Finally, on October 14, 1774, the Congress, representing twelve colonies, a.s.sembled 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 const.i.tution of England and by their own const.i.tutions.[106]

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 doc.u.ments. 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.[107]

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 a.s.serted,--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 a.s.sembly, the freedom of the press and free movement. But these rights of liberty were not the only ones therein a.s.serted, there were the right of pet.i.tion, 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 t.i.tles, 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 const.i.tution 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 const.i.tution are enacted either by the people themselves, or through a const.i.tutional convention, there still lives in this democratic inst.i.tution the same idea that once animated the settlers of Connecticut and Rhode Island.

Everywhere the bill of rights forms the first part of the const.i.tution, 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 const.i.tutions, was not everywhere nor at once carried out in all of its consequences. In spite of the a.s.sertion 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, inst.i.tutions 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 inst.i.tutions preceded the recognition of rights of the individual, in the other they followed after. Therein lay also the fatal mistake of the German National a.s.sembly 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.

FOOTNOTES:

[Footnote 97: Kent, _Commentaries on American Law_, 10th ed., I, p.

611.]