[Footnote 98: _Cf._ Kent, I, pp. 612 _et seq._; Stevens, _loc. cit._, pp. 208 _et seq._ They are universally designated to-day in America as "bills of rights". Their example undoubtedly influenced the declarations of 1776 and those after.]

[Footnote 99: Borgeaud, p. 27, cites a treatise by John Wyse as having had great influence in the democratizing of ideas in Ma.s.sachusetts. This man, whose name was John Wise, has done nothing else than take Pufendorf's theories as the basis of his work, as he himself specifically declares. _Cf._ J. Wise, _A Vindication on the Government of New England Churches_, Boston, 1772, p. 22.]

[Footnote 100: Bancroft, IV, pp. 145, 146.]

[Footnote 101: _Cf._ John Adams, _Works_, X, Boston, 1856, p. 293.]

[Footnote 102: _a.n.a.lysis of the Laws of England_, Chap. 4.]

[Footnote 103: It formed the basis of Blackstone's later _Commentaries_.]

[Footnote 104: _Cf._ Otis, _The Rights of the British Colonies a.s.serted and proved_, 1764, reprinted London, p. 106.]

[Footnote 105: _Cf._ Wells, _The Life and Public Services of Samuel Adams_, I, Boston, 1865, pp. 502-507; Laboulaye, II, p. 171.]

[Footnote 106: The entire text reproduced in Story, _Commentaries on the Const.i.tution of the United States_, 3d ed., I, pp. 134 _et seq._]

[Footnote 107: The heading of the bill of rights reads: "A declaration of rights made by the representatives of the good people of Virginia, a.s.sembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government."]

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 inst.i.tutions 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 a.s.sociations 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,[108] which c.o.ke a little later declared to be "absolute and transcendent".[109]

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_".[110] In the Bill of Rights it was ordained that everything therein contained should "remain the law of this realm forever".[111] In spite of the nominal omnipotence of the state a limit which it shall not over-step 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 mediaeval 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?"[112]

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.[113]

This liberty accordingly was not created but recognized, and recognized in the self-limitation of the state and in thus defining the intervening s.p.a.ces 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.[114]

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.

FOOTNOTES:

[Footnote 108: "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 Doc.u.ments of Elizabeth and James I._, Oxford, 1894, p. 178.]

[Footnote 109: 4 _Inst._ p. 36.]

[Footnote 110: Art. 63. Stubbs, p. 306.]

[Footnote 111: Art. 11. Stubbs, p. 527.]

[Footnote 112:

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

[Footnote 113: The idea of all individual rights of liberty being the product of state concession has been recently advocated by Tezner, _Grunhuts Zeitschrift fur Privat-und offentliches 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 a.n.a.lysis, 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.]

[Footnote 114: _Cf._ more explicitly on this, Jellinek, _loc. cit._, pp.

43, 89 _et seq._]