FOOTNOTES:

FOOTNOTES:[33]Connecticut in 1818, and Rhode Island first in 1842, put new constitutions in the place of the old Colonial Charters.[34]Poore, II, pp. 1908, 1909.[35]On the origin of Virginia's bill of rights,cf.Bancroft,History of the United States, London, 1861, VII, chap. 64.[36]Virginia's declaration has 16, that of Massachusetts 30, and Maryland's 42 articles. Virginia's declaration does not include the right of emigration, which was first enacted in Article XV of Pennsylvania's; the rights of assembling and petition are also lacking, which were first found in the Pennsylvania bill of rights (Article XVI).[37]Vermont's statehood was contested until 1790, and it was first recognized February 18, 1791, as an independent member of the United States.[38]Religious liberty is recognized by New York in an especially emphatic manner, Constitution of April 20, 1777, Art. XXXVIII. Poore, II, p. 1338.[39]Pp. 151et seq.(The translator has reprinted this declaration in an article in theAmerican Historical Review, of July, 1898, entitled "The Delaware Bill of Rights of 1776".)

[33]Connecticut in 1818, and Rhode Island first in 1842, put new constitutions in the place of the old Colonial Charters.

[34]Poore, II, pp. 1908, 1909.

[35]On the origin of Virginia's bill of rights,cf.Bancroft,History of the United States, London, 1861, VII, chap. 64.

[36]Virginia's declaration has 16, that of Massachusetts 30, and Maryland's 42 articles. Virginia's declaration does not include the right of emigration, which was first enacted in Article XV of Pennsylvania's; the rights of assembling and petition are also lacking, which were first found in the Pennsylvania bill of rights (Article XVI).

[37]Vermont's statehood was contested until 1790, and it was first recognized February 18, 1791, as an independent member of the United States.

[38]Religious liberty is recognized by New York in an especially emphatic manner, Constitution of April 20, 1777, Art. XXXVIII. Poore, II, p. 1338.

[39]Pp. 151et seq.(The translator has reprinted this declaration in an article in theAmerican Historical Review, of July, 1898, entitled "The Delaware Bill of Rights of 1776".)

[39]Pp. 151et seq.

(The translator has reprinted this declaration in an article in theAmerican Historical Review, of July, 1898, entitled "The Delaware Bill of Rights of 1776".)

COMPARISON OF THE FRENCH AND AMERICAN DECLARATIONS.

FOOTNOTES:[40]Cf.English Bill of Rights, 1.[41]English Bill of Rights, 8.[42]Magna Charta, 39.[43]Magna Charta, 20.[44]English Bill of Rights, 10.[45]English Bill of Rights, 10.

[40]Cf.English Bill of Rights, 1.

[41]English Bill of Rights, 8.

[42]Magna Charta, 39.

[43]Magna Charta, 20.

[44]English Bill of Rights, 10.

[45]English Bill of Rights, 10.

THE CONTRAST BETWEEN THE AMERICAN AND ENGLISH DECLARATIONS OF RIGHTS.

The comparison of the American and French declarations shows at once that the setting forth of principles abstract, and therefore ambiguous, is common to both, as is also the pathos with which they are recited. The French have not only adopted the American ideas, but even the form they received on the other side of the ocean. But in contrast to the diffuseness of the Americans the French are distinguished by a brevity characteristic of their language. Articles 4-6 of the Declaration have the most specific French additions in the superfluous and meaningless definitions ofliberty[46]and law. Further, in Articles 4, 6 and 13 of the French text special stress is laid upon equality before the law, while to the Americans, because of their social conditions and democratic institutions, this seemed self-evident and so by them is only brought out incidentally. In the French articles the influence of theContrat Socialwill have been recognized; but yet it brought out nothing essentially new, or unknown to the American stipulations.

The result that has been won is not without significance for the student of history in passing judgment upon the effects of the French Declaration. The American states have developed with their bills of rights into orderly commonwealths in which there has never been any complaint that these propositions brought consequences disintegrating to the state. The disorders which arose in France after the Declaration of the Rights of Man cannot therefore have been brought about by its formulas alone. Much rather do they show what dangers may lie in the too hasty adoption of foreign institutions. That is, the Americans in 1776 went on building upon foundations that were with them long-standing. The French, on theother hand, tore up all the foundations of their state's structure. What was in the one case a factor in the process of consolidation served in the other as a cause of further disturbance. This was even recognized at the time by sharp-sighted men, such as Lally-Tollendal[47]and, above all, Mirabeau.[48]

But from the consideration of the American bills of rights there arises a new problem for the historian of law: How did Americans come to make legislative declarations of this sort?

To the superficial observer the answer seems simple. The very name points to English sources. The Bill of Rights of 1689, the Habeas Corpus Act of 1679, the Petition of Right of 1628, and finally theMagna Charta libertatumappear to be unquestionably the predecessors of the Virginia bill of rights.

Assuredly the remembrance of these celebrated English enactments, which the Americans regarded as an inherent part of the law of their land, had a substantial share in the declarations of rights after 1776. Many stipulations from Magna Charta and the EnglishBill of Rights were directly embodied by the Americans in their lists.

And yet a deep cleft separates the American declarations from the English enactments that have been mentioned. The historian of the American Revolution says of the Virginia declaration that it protested against all tyranny in the name of the eternal laws of man's being: "The English petition of right in 1688 was historic and retrospective; the Virginia declaration came directly out of the heart of nature and announced governing principles for all peoples in all future times."[49]

The English laws that establish the rights of subjects are collectively and individually confirmations, arising out of special conditions, or interpretations of existing law. Even Magna Charta contains no new right, as Sir Edward Coke, the great authority on English law, perceived as early as the beginning of the seventeenth century.[50]The English statutes are far removed from any purpose to recognize general rights of man, and they have neither the power nor the intention to restrict the legislative agents or to establish principles for future legislation. According to English law Parliament is omnipotent and all statutes enacted or confirmed by it are of equal value.

The American declarations, on the other hand, contain precepts which stand higher than the ordinary lawmaker. In the Union, as well as in the individual states, there are separate organs for ordinary and for constitutional legislation, and the judge watches over the observance of the constitutional limitations by the ordinary legislative power. If in his judgment a law infringes on the fundamental rights, he must forbid its enforcement. The declarations of rights even at the present day are interpreted by the Americans as practical protections of the minority.[51]This distinguishes them from the "guaranteed rights" of the European states.The American declarations are not laws of a higher kind in name only, they are the creations of a higher lawmaker. In Europe, it is true, the constitutions place formal difficulties in the way of changing their specifications, but almost everywhere it is the lawmaker himself who decides upon the change. Even in the Swiss Confederacy judicial control over the observance of these forms is nowhere to be found, although there, as in the United States, the constitutional laws proceed from other organs than those of the ordinary statutes.

The American bills of rights do not attempt merely to set forth certain principles for the state's organization, but they seek above all to draw the boundary line between state and individual. According to them the individual is not the possessor of rights through the state, but by his own nature he has inalienable and indefeasible rights. The English laws know nothing of this. They do not wish to recognize an eternal, natural right, but one inherited from their fathers, "the old, undoubted rights of the English people."

The English conception of the rights of the subject is very clear upon this point.When one looks through the Bill of Rights carefully, one finds but slight mention there of individual rights. That laws should not be suspended, that there should be no dispensation from them, that special courts should not be erected, that cruel punishments should not be inflicted, that jurors ought to be duly impanelled and returned, that taxes should not be levied without a law, nor a standing army kept without consent of Parliament, that parliamentary elections should be free, and Parliament be held frequently—all these are not rights of the individual, but duties of the government. Of the thirteen articles of the Bill of Rights only two contain stipulations that are expressed in the form of rights of the subject,[52]while one refers to freedom of speech in Parliament. When nevertheless all the stipulations of the Bill of Rights are therein designated as rights and liberties of the English people,[53]it isthrough the belief that restriction of the crown is at the same time right of the people.

This view grew directly out of the mediæval conception of the Teutonic state. While the ancient state appears at the beginning of its history as πολις orcivitas, as an undivided community of citizens, the monarchical Teutonic state is from the beginning dualistic in form,—prince and people form no integral unity, but stand opposed to each other as independent factors. And so the state in the conception of the time is substantially a relation of contract between the two. The Roman and Canonical theory of law under the influence of ancient traditions even as early as the eleventh century attempts to unite the two elements in that, upon the basis of a contract, it either makes the people part with their rights to the prince, and accordingly makes the government the state, or it considers the prince simply as the authorized agent of the people and so makes the latter and the state identical. The prevailing opinion in public law, however, especially since the rise of the state of estates, sees in the state a double condition of contract between prince and people. The laws form the content of this compact. Theyestablished, therefore, for the prince a right of demanding lawful obedience, and for the people of demanding adherence to the limitations placed by the laws. The people accordingly have a right to the fulfilment of the law by the prince. Thus all laws create personal rights of the people, and the term people is thought of in a confused way as referring to the individuals as well as to the whole—singuli et universi.[54]From this point of view it is a right of the people that Parliament should be frequently summoned, that the judge should inflict no cruel punishments, and however else the declarations of the English charters may read.

This conception of law as two-sided, establishing rights for both elements of the state, runs through all the earlier English history. The right which is conferred by law passes from generation to generation, it becomes hereditary and therefore acquirable by birthas one of the people. Under Henry VI. it is declared of the law: "La ley est le plus haute inheritance que le roy ad; car par la ley il même et toutes ses sujets sont rulés, et si la ley ne fuit, nul roy et nul inheritance sera."[55]And in the Petition of Right Parliament makes the appeal that the subjects have inherited their freedom through the laws.[56]The laws, as the Act of Settlement expresses it, are the "birthright of the people".[57]

And so we find only ancient "rights and liberties" mentioned in the English laws ofthe seventeenth century. Parliament is always demanding simply the confirmation of the "laws and statutes of this realm", that is, the strengthening of the existing relations between king and people. Of the creation of new rights there is not a word in all these documents. Consequently there is no reference whatever to the important fundamental rights of religious liberty, of assembling, of liberty of the press, or of free movement. And down to the present day the theory of English law does not recognize rights of this kind, but considers these lines of individual liberty as protected by the general principle of law, that any restraint of the person can only come about through legal authorization.[58]According to the present English idea the rights of liberty rest simply upon the supremacy of the law,—they are law, not personal rights.[59]The theory,founded in Germany by Gerber, and defended by Laband and others, according to which the rights of liberty are nothing but duties of the government, sprang up in England, without any connection with the German teaching, from the existing conditions after the conception of the public rights of the individual as natural rights, which was based on Locke and Blackstone, had lost its power.

But with Locke even this conception stands in close connection with the old English ideas. When Locke considers property—in which are included life and liberty—as an original right of the individual existing previous to the state, and when he conceives of the state as a society founded to protect this right, which is thus transformed from a natural to a civil right, he by no means ascribes definite fundamental rights to the man living in the state, but rather places such positive restrictions upon the legislative power as follow from the purposes of the state.[60]When closely examined,however, these restrictions are nothing else than the most important stipulations of the Bill of Rights, which was enacted the year before theTwo Treatises on Governmentappeared.[61]

Blackstone was the first (1765) to found his doctrine of the absolute rights of persons upon the idea of the personal rights of the individual. Security, liberty, and property are the absolute rights of every Englishman, which from their character are nothing else than the natural liberty that remains to the individual after deducting the legal restraints demanded by the common interest.[62]Laws appear likewise as protectors of these rights,—the whole constitution of Parliament, the limitation of the royal prerogative, and along with these the protection of the law courts, the right of petition, and the right to carry arms are treated, exactly in the manner ofthe Bill of Rights, as rights of Englishmen, and indeed as subordinate rights to assist in guarding the three principal rights.[63]But in spite of his fundamental conception of a natural right, the individual with rights was for Blackstone not man simply, but the English subject.[64]

The American declarations of rights, on the other hand, begin with the statement that all men are born free and equal, and these declarations speak of rights that belong to "every individual", "all mankind" or "every member of society". They enumerate a much larger number of rights than the English declarations, and look upon these rights as innate and inalienable. Whence comes this conception in American law?

It is not from the English law. There is then nothing else from which to derive it than the conceptions of natural rights of that time. But there have been theories of natural rights ever since the time of the Greeks, and they never led to the formulation of fundamental rights. The theory of natural rights for a long time had no hesitation in setting forth the contradiction between natural law and positive law without demanding the realization of the former through the latter. A passage from Ulpian is drawn upon in theDigests, which declares all men to be equal according to the law of nature, but slavery to be an institution of the civil law.[65]The Romans, however, in spite of all mitigation of slave laws, never thought of such a thing as the abolition of slavery. The natural freedom of man was set forth by many writers during the eighteenth century as compatible with lawful servitude. Even Locke, for whom liberty forms the very essence of man, in his constitution for North Carolina sanctioned slavery and servitude.

Literature alone never produces anything, unless it finds in the historical and social conditions ground ready for its working. When one shows the literary origin of an idea, one has by no means therewith discovered the record of its practical significance. The history of political science to-day is entirely too much a history of the literature and too little a history of the institutions themselves. The number of new politicalideas is very small; the most, at least in embryo, were known to the ancient theories of the state. But the institutions are found in constant change and must be seized in their own peculiar historical forms.

FOOTNOTES:[46]It harks back finally to the old definition of Florentinus L. 4 D. 1, 5: "Libertas est naturalis facultas eius, quod cuique facere libet, nisi si quid vi aut jure prohibetur."[47]Arch. parl.VIII, p. 222.[48]Ibid., pp. 438 and 453.[49]Bancroft, VII, p. 243.[50]Cf.Blackstone,Commentaries on the Laws of England, I, 1, p. 127. (Edited by Kerr, London, 1887, I, p. 115.)[51]Upon this point,cf.Cooley,Constitutional Limitations, 6th edition, Boston, 1890, Chap. VII. Even if the stipulation contained in the bills of rights that one can be deprived of his property only "by the law of the land" should not be embodied in the constitution by a state, a law transgressing it would be void by virtue of the fundamental limitations upon the competence of the legislatures.Loc. cit., p. 208.[52]The right to address petitions to the king (5), and the right of Protestant subjects to carry arms for their own defense suitable to their condition (7).[53]"And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties."[54]The old English charters put forward as possessors of the "jura et libertates" now the "homines in regno nostro", now theregnumitself. The Petition of Right speaks of the "rights and liberties" of the subjects, but they are also characterized as "the laws and free customs of this realm".[55]Year Books XIX, Gneist,Englische Verfassungsgeschichte, p. 450.[56]"By which the statutes before-mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom." Gardiner,The Constitutional Documents of the Puritan Revolution, 1889, pp. 1, 2.[57]"And whereas the laws of England are the birthright of the people thereof." Act of Settlement IV, Stubbs,Select Charters, 7th ed., 1890, p. 531. Birthright = right by birth, the rights, privileges or possessions to which one is entitled by birth; inheritance, patrimony (specifically used of the special rights of the first-born). Murray,A New English Dictionary on Historical Principles,s. h. v.[58]Cf.the instructive work of Dicey,Introduction to the Study of the Law of the Constitution, 3d ed., 1889, pp. 171et seq.[59]"Sie sind objectives, nicht subjectives Recht." Dicey, pp. 184et seq., 193et seq., 223et seq., etc. Dicey treats the whole doctrine of the rights of liberty in the section "The Rule of Law." Individual liberty according to him is in England simply the correlative of only permitting the restriction of the individual through laws.[60]This is treated in the chapter "Of the Extent of the Legislative Power,"On Civil Government, XI.[61]Cf.On Civil Government, XI, § 142.[62]Political liberty is no other than national liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.Loc. cit., p. 125 (113).[63]Loc. cit., pp. 141et seq.(127et seq.).[64]Cf.loc. cit., pp. 127 (114), 144 (130).[65]L. 32 D. de R.J. Exactly so the kindred doctrines of the Stoics earlier in Greece had not the least legal success.

[46]It harks back finally to the old definition of Florentinus L. 4 D. 1, 5: "Libertas est naturalis facultas eius, quod cuique facere libet, nisi si quid vi aut jure prohibetur."

[47]Arch. parl.VIII, p. 222.

[48]Ibid., pp. 438 and 453.

[49]Bancroft, VII, p. 243.

[50]Cf.Blackstone,Commentaries on the Laws of England, I, 1, p. 127. (Edited by Kerr, London, 1887, I, p. 115.)

[51]Upon this point,cf.Cooley,Constitutional Limitations, 6th edition, Boston, 1890, Chap. VII. Even if the stipulation contained in the bills of rights that one can be deprived of his property only "by the law of the land" should not be embodied in the constitution by a state, a law transgressing it would be void by virtue of the fundamental limitations upon the competence of the legislatures.Loc. cit., p. 208.

[52]The right to address petitions to the king (5), and the right of Protestant subjects to carry arms for their own defense suitable to their condition (7).

[53]"And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties."

[54]The old English charters put forward as possessors of the "jura et libertates" now the "homines in regno nostro", now theregnumitself. The Petition of Right speaks of the "rights and liberties" of the subjects, but they are also characterized as "the laws and free customs of this realm".

[55]Year Books XIX, Gneist,Englische Verfassungsgeschichte, p. 450.

[56]"By which the statutes before-mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom." Gardiner,The Constitutional Documents of the Puritan Revolution, 1889, pp. 1, 2.

[57]"And whereas the laws of England are the birthright of the people thereof." Act of Settlement IV, Stubbs,Select Charters, 7th ed., 1890, p. 531. Birthright = right by birth, the rights, privileges or possessions to which one is entitled by birth; inheritance, patrimony (specifically used of the special rights of the first-born). Murray,A New English Dictionary on Historical Principles,s. h. v.

[58]Cf.the instructive work of Dicey,Introduction to the Study of the Law of the Constitution, 3d ed., 1889, pp. 171et seq.

[59]"Sie sind objectives, nicht subjectives Recht." Dicey, pp. 184et seq., 193et seq., 223et seq., etc. Dicey treats the whole doctrine of the rights of liberty in the section "The Rule of Law." Individual liberty according to him is in England simply the correlative of only permitting the restriction of the individual through laws.

[60]This is treated in the chapter "Of the Extent of the Legislative Power,"On Civil Government, XI.

[61]Cf.On Civil Government, XI, § 142.

[62]Political liberty is no other than national liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.Loc. cit., p. 125 (113).

[63]Loc. cit., pp. 141et seq.(127et seq.).

[64]Cf.loc. cit., pp. 127 (114), 144 (130).

[65]L. 32 D. de R.J. Exactly so the kindred doctrines of the Stoics earlier in Greece had not the least legal success.

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

The democratic idea, upon which the constitution of the Reformed Church is based, was carried to its logical conclusion in England toward the end of the sixteenth century, and first of all by Robert Browne and his followers. They declared the Church, which was identical with the parish, to be a community of believers who had placed themselves under obedience to Christ by a compact with God, and they steadfastly recognized as authoritative only the will of the community at the time being, that is, the will of the majority.[66]Persecuted in England Brownism transformed itself on Dutch soil,especially through the agency of John Robinson, into Congregationalism, in which the earliest form of the Independent movement made its appearance. The principles of Congregationalism are first complete separation of Church and State and then the autonomy of each separate parish,—as a petition addressed to James I. in 1616 expresses it: the right is exercised "of spiritual administration and government in itself and over itself by the common and free consent of the people, independently and immediately under Christ."[67]

This sovereign individualism in the religious sphere led to practical consequences of extraordinary importance. From its principles there finally resulted the demand for, and the recognition of, full and unrestricted liberty of conscience, and then the asserting of this liberty to be a right not granted by any earthly power and therefore by no earthly power to be restrained.

But the Independent movement could not confine itself to ecclesiastical matters, it was forced by logical necessity to carry its fundamental doctrines into the political sphere.As the Church, so it considered the state and every political association as the result of a compact between its original sovereign members.[68]This compact was made indeed in pursuance of divine commandment, but it remained always the ultimate legal basis of the community. It was concluded by virtue of the individual's original right and had not only to insure security and advance the general welfare, but above all to recognize and protect the innate and inalienable rights of conscience. And it is the entire people that specifically man for man concluded this compact, for by it alone could every one be bound to respect the self-created authority and the self-created law.

The first indications of these religious-political ideas can be traced far back, for theywere not created by the Reformation. But the practice which developed on the basis of these ideas was something unique. For the first time in history social compacts, by which states are founded, were not merely demanded, they were actually concluded. What had until then slumbered in the dust-covered manuscripts of the scholar became a powerful, life-determining movement. The men of that time believed that the state rested upon a contract, and they put their belief into practice. More recent theory of public law with only an imperfect knowledge of these events frequently employed them as examples of the possibility of founding a state by contract, without suspecting that these contracts were only the realization of an abstract theory.

On October 28, 1647, there was laid before the assembled Council of Cromwell's army a draft, worked out by the Levellers, of a new constitution for England,[69]which later, greatly enlarged and modified,[70]wasdelivered to Parliament with the request that it be laid before the entire English people for signature.[71]In this remarkable document the power of Parliament was set forth as limited in a manner similar to that later adopted by the Americans, and particulars were enumerated which in future should not lie within the legislative power of the people's representatives. The first thing named was matters of religion, which were to be committed exclusively to the command of conscience.[72]They were reckoned among the inherent rights, the "native rights", which the people were firmly resolved to maintain with their utmost strength against all attacks.[73]

Here for the first and last time in England was an inherent right of religious liberty asserted in a proposed law. This right is recognized to-day in England in legal practice, but not in any expressly formulated principle.[74]

The religious conditions in England's North American colonies developed differently.

The compact is celebrated which the persecuted and exiled Pilgrim Fathers concluded on board the Mayflower, November 11, 1620, before the founding of New Plymouth. Forty-one men on that occasion signed an act in which, for the glory of God, the advancement of the Christian faith, and the honor of their king and country, they declare their purpose to found a colony. They thereupon mutually promised one another to unite themselves into a civil body politic, and, for the maintenance of good order and accomplishment of their proposed object, to make laws, to appoint officers, and to subject themselves to these.[75]

Therewith began the series of "PlantationCovenants" which the English settlers, according to their ecclesiastical and political ideas, believed it necessary to make on founding a new colony. Here they are only to be considered in their connection with religious liberty.

In 1629 Salem, the second colony in Massachusetts, was founded by Puritans. Unmindful of the persecutions they themselves had suffered in their native land, they turned impatiently against such as did not agree with them in their religious ideas. Roger Williams, a young Independent, landed in Massachusetts in 1631 and was at once chosen by the community in Salem to be its minister. But he preached complete separation of Church and State, and demanded absolute religious liberty, not only for all Christians but also for Jews, Turks, and heathen. They should have in the state equal civil and political rights with believers. A man's conscience belongs exclusively to him, and not to the state.[76]Exiled and indanger, Williams forsook Salem and with a faithful few founded, 1636, the city of Providence in the country of the Narragansett Indians, where all who were persecuted on account of their religion should find a refuge. In the original compact the seceders promised obedience to laws determined by a majority of themselves, but "only in civil things"—religion was to be in no way a subject of legislation.[77]Here for the first time was recognized the most unrestricted liberty of religious conviction, and that by a man who was himself glowing with religious feeling.

Nineteen settlers from Providence in 1638 founded Aquedneck, the second colony in the present state of Rhode Island, after having concluded a most remarkable compact: "We whose names are underwritten do here solemnly, in the presence of Jehovah, incorporate ourselves into a Bodie Politik, and as he shall help, will submit our persons, lives and estates unto our Lord Jesus Christ, the King of Kings and Lord of Lords, and to all those perfect and absolute laws of his given us in his holy word of truth, to beguided and judged hereby.—Exod. xxiv, 3, 4; 2 Chron. xi, 3; 2 Kings xi, 17."[78]

But such as did not go so far as Roger Williams in the recognition of liberty of conscience were yet dominated by the idea of the necessity of a social compact in founding a new colony. In the Fundamental Orders of Connecticut, a colony founded by Puritans who also had emigrated from Massachusetts, the settlers in 1638 declared that they united themselves in a body politic in pursuance of the word of God in order to guard the liberty of the Gospel and the church discipline to which they were accustomed, and in order also in civil affairs to be ruled according to the laws.[79]In the opposition in which they stood to the religious conditions in England, the Puritans, although themselves little inclined to toleration, proceeded invariably upon the idea that their state had first of all to realize religious liberty, which was for them the free exercise of their own religious convictions.

The idea that state and government rested upon a compact—so significant for thedevelopment of the American conceptions of individual liberty—was strengthened by the force of historical circumstances. A handful of men went forth to found new communities. They began their work of civilization scattered over wide stretches in the loneliness of the primeval forest.[80]And so they believed that it was possible to live outside of the state, in a condition of nature, and that when they stepped out of that condition of nature they did it of their own free will and were not constrained by any earthly power. With their small numbers, representation was at first unnecessary, and the decisions were reached in the town meetings of all belonging to the community,—the form of a direct democracy grew naturally out of the given conditions and strengthened the conviction, which does not correspond to the old English conception, that the sovereignty of the people is the basis of legislation and of government. To a generation that could point to such beginnings for their state, the political ideaswhich later animated the men of 1776 seemed to bear their surety in themselves: they were "self-evident", as it reads in the Declaration of Independence.

The inherent fundamental right of religious liberty, for which Roger Williams had striven so earnestly, found also in the seventeenth century its official recognition in law, first in the laws of 1647 of Rhode Island, and then in the charter which Charles II. granted the colony of Rhode Island and Providence Plantations in 1663.[81]It was therein ordered in fulfilment of the colonists' request, in a manner ever memorable, that in future in the said colony no person should be molested, punished or called in question for any differences of opinion in matters of religion; but that all persons at all times should have full liberty of conscience, so long as they behaved themselves peaceably and did not misuse this liberty in licentiousness or profaneness, norto the injury or disturbance of others.[82]Thus a colony was granted that which in the mother-country at the time was contested to the utmost. Similar principles are found for the first time in Europe in the Practice of Frederick the Great in Prussia. But the principles of religious liberty were recognized to a greater or less extent in other colonies also. Catholic Maryland in 1649 granted freedom in the exercise of religionto every one who acknowledged Jesus Christ.[83]Also that remarkable constitution which Locke prepared for North Carolina and that went into force there in 1669, and which agrees so little with the tenets of hisTwo Treatises on Government, is based upon the principle not, it is true, of full equality of rights, but of toleration of Dissenters, and also of Jews and heathen.[84]It was permitted every seven persons of any religion to form a church or communion of faith.[85]No compulsion in matters of religion was exercised, except that every inhabitant when seventeen years of age had to declare to which communion he belonged and to be registered in some church, otherwise he stood outside of the protection of the law.[86]All violence toward any religious assembly was strictly prohibited.[87]It was not the principle ofpolitical liberty that lay on Locke's heart, but the opening of a way to full religious liberty. In spite of the fact that in his treatiseOn Civil Governmentthere is not a word upon the right of conscience, which he had so energetically defended in his celebratedLetters on Toleration, the constitution of North Carolina shows that in his practical plans it held the first place. And so with Locke also liberty of conscience was brought forward as the first and most sacred right, overshadowing all others. This philosopher, who held freedom to be man's inalienable gift from nature, established servitude and slavery under the government he organized without hesitation, but religious toleration he carried through with great energy in this new feudal state.

Of the other colonies New Jersey had proclaimed extensive toleration in 1664, and New York in 1665.[88]In the latter, which had already declared under Dutch rule in favor of liberal principles in religious matters, it was ordered in 1683 that no one who believed on Jesus Christ should on any pretext whatever be molested because of difference of opinion. In the same year William Penn conferred a constitution with democratic basis upon the colony granted to him by the Crown and which he had named after his father Pennsylvania, in which it was declared that no one who believed on God should in any way be forced to take part in any religious worship or be otherwise molested,[89]and in the constitution, which Penn later (1701) established and which remained in force until 1776, he emphasized above all that even when a people were endowed with the greatest civil liberties they could not be truly happy, unless liberty of conscience were recognized,[90]and at the close he solemnly promised for himself and his heirs that the recognition of this liberty, which he had declared, should remain forever inviolable and that the wording of the article should not be changed in any particular.[91]The constitutional principle was thus givenat once the force of alex in perpetuum valitura.

In 1692 Massachusetts received a charter from William III. in which, following the example of the Toleration Act of 1689, full liberty was granted to all Christians except Catholics;[92]and Georgia was given a similar law in 1732 by George II.[93]

Thus the principles of religious liberty to a greater or less extent acquired constitutional recognition in America. In the closest connection with the great religious political movement out of which the American democracy was born, there arose the conviction that there exists a right not conferred upon the citizen but inherent in man, that acts of conscience and expressions of religious conviction stand inviolable over against the state as the exercise of a higher right. This right so long suppressed is no "inheritance", is nothing handed down from their fathers, as the rights and liberties of Magna Charta and of the other English enactments,—not the State but the Gospel proclaimed it.

What in Europe at that time and even much later had received official expression only in scanty rudiments,[94]and aside from that was only asserted in the literature of the great intellectual movement which began in the seventeenth century and reached its height in the clearing-up epoch of the century following, was in Rhode Island and other colonies a recognized principle of the state by the middle of the seventeenth century. The right of the liberty of conscience was proclaimed, and with it came the conception of a universal right of man. In 1776 this right was designated by all the bills of rights, mostly in emphatic form and with precedence over all others, as a natural and inherent right.[95]

The character of this right is emphasized by the bill of rights of New Hampshire, which declares that among the natural rights some are inalienable because no one can offer an equivalent for them. Such are the rights of conscience.[96]

The idea of legally establishing inalienable, inherent and sacred rights of the individual is not of political but religious origin. What has been held to be a work of the Revolution was in reality a fruit of the Reformation and its struggles. Its first apostle was not Lafayette but Roger Williams, who, driven by powerful and deep religious enthusiasm, went into the wilderness in order to found a government of religious liberty, and his name is uttered by Americans even to-day with the deepest respect.

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