FOOTNOTES:

FOOTNOTES:[66]Weingarten,Die Revolutionskirchen Englands, p. 21.[67]Ibid., p. 25.[68]The connection of the Puritan-Independent doctrine of the state-compact with the Puritan idea of church covenants is brought out by Borgeaud, p. 9. Weingarten (p. 288) remarks forcibly of the Independents, "The right of every separate religious community freely and alone to decide and conduct their affairs was the foundation of the doctrine of the sovereignty of the people, which they introduced into the political consciousness of the modern world."[69]First reproduced in Gardiner,History of the Great Civil War, III, London, 1891, pp. 607-609.[70]The final text in Gardiner,Constitutional Documents of the Puritan Revolution, Oxford, 1889, pp. 270-282.[71]Gardiner,History, III, p. 568.[72]"That matters of religion and the ways of God's worship are not at all entrusted by us to any human power." Gardiner,History, p. 608.[73]Cf.the text in Gardiner,History, p. 609.[74]Cf.Dicey,loc. cit., pp. 229, 230, where several laws are mentioned restricting the liberty of expressing religious opinion which are, however, obsolete, though they have never been formally repealed.[75]The complete text in Poore, I, p. 931.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 document, in which they characterize themselves as "subjects of our dread Sovereign Lord King James".[76]On Williams,cf.Weingarten, pp. 36et seq., and 293, Bancroft, I, pp. 276et seq., Masson,The Life of John Milton, II, pp. 560et seq.The advance of the Independent movement to unconditional freedom of faith is thoroughly discussed by Weingarten, pp. 110et seq.[77]Samuel Greene Arnold,History of the State of Rhode Island, I, New York, 1859, p. 103.[78]Arnold, p. 124.[79]Fundamental Orders of Connecticut, Poore, I, p. 249.[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. Masson,loc. cit., pp. 548-550.[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 Massachusetts.[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.[83]Bancroft, I, p. 193, E. Lloyd Harris,Church and Slate in the Maryland Colony. Inaugural-Dissertation. Heidelberg, 1894, p. 26et seq.[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.[85]Art. 97. Poore, II, pp. 1406, 1407.[86]Art. 101.Ibid.[87]Arts. 102, 106.Ibid.[88]C. Ellis Stevens,Sources of the Constitution of the United States, New York, 1894, P. 217.[89]Laws agreed upon in England, Art. XXXV. Poore, II, p. 1526.[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.[91]Art. VIII, section 3.[92]Poore, I, p. 950. On this pointcf.Lauer,Church and State in New EnglandinJohns Hopkins University Studies, 10th Series, II-III, Baltimore, 1892, pp. 35et seq.[93]Poore, I, p. 375.[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 Osnabrück, 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 PrussianAllgemeines Landrecht(Teil II, Titel 11, §§ 1et seq.).[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 God, in immortality, and in a future state of rewards and punishments. Massachusetts 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 Constitution, 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 Rüttiman,Kirche und Staat in Nordamerika(1871).[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 theRights of Conscience." Art. IV. Poore, II, 1280.

[66]Weingarten,Die Revolutionskirchen Englands, p. 21.

[67]Ibid., p. 25.

[68]The connection of the Puritan-Independent doctrine of the state-compact with the Puritan idea of church covenants is brought out by Borgeaud, p. 9. Weingarten (p. 288) remarks forcibly of the Independents, "The right of every separate religious community freely and alone to decide and conduct their affairs was the foundation of the doctrine of the sovereignty of the people, which they introduced into the political consciousness of the modern world."

[69]First reproduced in Gardiner,History of the Great Civil War, III, London, 1891, pp. 607-609.

[70]The final text in Gardiner,Constitutional Documents of the Puritan Revolution, Oxford, 1889, pp. 270-282.

[71]Gardiner,History, III, p. 568.

[72]"That matters of religion and the ways of God's worship are not at all entrusted by us to any human power." Gardiner,History, p. 608.

[73]Cf.the text in Gardiner,History, p. 609.

[74]Cf.Dicey,loc. cit., pp. 229, 230, where several laws are mentioned restricting the liberty of expressing religious opinion which are, however, obsolete, though they have never been formally repealed.

[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 document, in which they characterize themselves as "subjects of our dread Sovereign Lord King James".

[76]On Williams,cf.Weingarten, pp. 36et seq., and 293, Bancroft, I, pp. 276et seq., Masson,The Life of John Milton, II, pp. 560et seq.The advance of the Independent movement to unconditional freedom of faith is thoroughly discussed by Weingarten, pp. 110et seq.

[77]Samuel Greene Arnold,History of the State of Rhode Island, I, New York, 1859, p. 103.

[78]Arnold, p. 124.

[79]Fundamental Orders of Connecticut, Poore, I, p. 249.

[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. Masson,loc. cit., pp. 548-550.

[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 Massachusetts.

[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.

[83]Bancroft, I, p. 193, E. Lloyd Harris,Church and Slate in the Maryland Colony. Inaugural-Dissertation. Heidelberg, 1894, p. 26et seq.

[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.

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

[86]Art. 101.Ibid.

[87]Arts. 102, 106.Ibid.

[88]C. Ellis Stevens,Sources of the Constitution of the United States, New York, 1894, P. 217.

[89]Laws agreed upon in England, Art. XXXV. Poore, II, p. 1526.

[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.

[91]Art. VIII, section 3.

[92]Poore, I, p. 950. On this pointcf.Lauer,Church and State in New EnglandinJohns Hopkins University Studies, 10th Series, II-III, Baltimore, 1892, pp. 35et seq.

[93]Poore, I, p. 375.

[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 Osnabrück, 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 PrussianAllgemeines Landrecht(Teil II, Titel 11, §§ 1et seq.).

[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 God, in immortality, and in a future state of rewards and punishments. Massachusetts 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 Constitution, 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 Rüttiman,Kirche und Staat in Nordamerika(1871).

[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 theRights of Conscience." Art. IV. Poore, II, 1280.

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 institutions 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 rôle in the founding of the colonies, and had helped to establish religious liberty, now supported in the most significant way the reconstruction of existing institutions. Not that it changed these institutions, 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 oldrights. 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 God 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, allpowerfully 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 uponThe 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 God and by Nature" are already enumerated in the form of the later bills of rights. As the center of the whole stood the principal occasion of strife between thecolonies 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 God 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 assembled 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 theseare 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, assembled 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 constitution of England and by their own constitutions.[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 documents. 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 presentand 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 asserted,—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 assembly, the freedom of the press and free movement. But these rights of liberty were not the only ones therein asserted, there were the right of petition, 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 publicright 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 titles, 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 constitution 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 constitution are enacted either by the people themselves, or through a constitutional convention, there still lives in this democratic institution the same idea that once animated the settlers of Connecticut and Rhode Island.

Everywhere the bill of rights forms the first part of the constitution, following which as second part comes the plan or frame ofgovernment. 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 constitutions, was not everywhere nor at once carried out in all of its consequences. In spite of the assertion 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 theEnglish 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, institutions 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 institutions preceded the recognition of rights of the individual, in the other they followed after. Therein lay also the fatal mistake of the German National Assembly 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 planof 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:[97]Kent,Commentaries on American Law, 10th ed., I, p. 611.[98]Cf.Kent, I, pp. 612et seq.; Stevens,loc. cit., pp. 208et seq.They are universally designated to-day in America as "bills of rights". Their example undoubtedly influenced the declarations of 1776 and those after.[99]Borgeaud, p. 27, cites a treatise by John Wyse as having had great influence in the democratizing of ideas in Massachusetts. 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.[100]Bancroft, IV, pp. 145, 146.[101]Cf.John Adams,Works, X, Boston, 1856, p. 293.[102]Analysis of the Laws of England, Chap. 4.[103]It formed the basis of Blackstone's laterCommentaries.[104]Cf.Otis,The Rights of the British Colonies asserted and proved, 1764, reprinted London, p. 106.[105]Cf.Wells,The Life and Public Services of Samuel Adams, I, Boston, 1865, pp. 502-507; Laboulaye, II, p. 171.[106]The entire text reproduced in Story,Commentaries on the Constitution of the United States, 3d ed., I, pp. 134et seq.[107]The heading of the bill of rights reads: "A declaration of rights made by the representatives of the good people of Virginia, assembled in full and free convention; which rights do pertain to them and their posterity, as the basis and foundation of government."

[97]Kent,Commentaries on American Law, 10th ed., I, p. 611.

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

[99]Borgeaud, p. 27, cites a treatise by John Wyse as having had great influence in the democratizing of ideas in Massachusetts. 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.

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

[101]Cf.John Adams,Works, X, Boston, 1856, p. 293.

[102]Analysis of the Laws of England, Chap. 4.

[103]It formed the basis of Blackstone's laterCommentaries.

[104]Cf.Otis,The Rights of the British Colonies asserted and proved, 1764, reprinted London, p. 106.

[105]Cf.Wells,The Life and Public Services of Samuel Adams, I, Boston, 1865, pp. 502-507; Laboulaye, II, p. 171.

[106]The entire text reproduced in Story,Commentaries on the Constitution of the United States, 3d ed., I, pp. 134et seq.

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

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 mediæval 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 institutions 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 thedynasty 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 associations 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 Coke 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 mediæval 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 theindividual 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 itdoes 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 neverextinguished 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 spaces 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 ascribingto 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:[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 incenturiatis comitiisortributis, 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 Documents of Elizabeth and James I., Oxford, 1894, p. 178.[109]4Inst.p. 36.[110]Art. 63. Stubbs, p. 306.[111]Art. 11. Stubbs, p. 527.[112]For years I have used my nose to smell with,Have I then really a provable right to it?[113]The idea of all individual rights of liberty being the product of state concession has been recently advocated by Tezner,Grünhuts Zeitschrift für Privat-und öffentliches Recht, XXI, pp. 136et 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 analysis, 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.[114]Cf.more explicitly on this, Jellinek,loc. cit., pp. 43, 89et seq.

[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 incenturiatis comitiisortributis, 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 Documents of Elizabeth and James I., Oxford, 1894, p. 178.

[109]4Inst.p. 36.

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

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

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

[112]

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

[113]The idea of all individual rights of liberty being the product of state concession has been recently advocated by Tezner,Grünhuts Zeitschrift für Privat-und öffentliches Recht, XXI, pp. 136et 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 analysis, 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.

[114]Cf.more explicitly on this, Jellinek,loc. cit., pp. 43, 89et seq.

SECOND IMPRESSION.

FORD'S THE FEDERALIST.

Edited byPaul Leicester Ford, editor of the writings of Jefferson; Bibliography of the Constitution of the United States, 1787-1788; Pamphlets on the Constitution of the United States. lxxvii + 793 pp. Large 12mo. $1.75,net.

The present edition is the first in which any attempt has been made to illustrate, in footnotes, not merely the obscure passages in the text, but also the subsequent experience of the United States and other countries where they relate to the views expressed by the authors. The most authentic text has been used; the antiquated and often absurd punctuation—largely due to incompetent early printers—has been rationalized; and an introduction, abundant cross-references, and afull indexmaterially increase the value of this edition for both students and lawyers. Matter of obsolete or minor interest has been put in distinctive type. An appendix of 149 pages contains The Constitution with all the amendments, and the references to U.S. Reports, besides other documents important to constitutional development.

Roger Foster, author of Commentaries on the Constitution: "The best edition ofThe Federalistthat has been published."

Right Hon. James Bryce: "Far the best [edition] I have seen, and the most likely to be useful to students of political science."

New York Tribune: "Mr. Ford's editing is nothing less than perfect.... Printed handsomely and published in a convenient size, this is an invaluable edition, calculated to be of service not only to the politician and lawyer, but to every thoughtful citizen."

Review of Reviews: "Mr. Ford has the habit of thoroughness in a very remarkable degree; ... not only great ability, but rare opportunities and invaluable experience.... A soundly edited text; ... an introductory essay which really puts the touch of finality upon questions that have been in dispute for nearly a century.... For the purposes of critical study and precise reference Mr. Ford's edition, it seems to us, most of necessity exclude all others. Quite apart from the extremely valuable editorial work included in the introductory part of the volume, Mr. Ford's index (The Federalisthas never before been indexed) would entitle him to a vote of thanks by Congress."

Prof. Edward G. Bourne, of Yale: "The most useful edition for the working student."

The Dial: "Mr. Paul Leicester Ford has many titles to the gratitude of students interested in American history, and none more clear than that which is due him for his edition ofThe Federalist.... The work is admirably done in all important respects, and should be upon the desk of every teacher of American constitutional history."

Prof. Carl Evans Boydof University of Chicago: "His edition leaves nothing to be desired, and will undoubtedly become the standard."

The Outlook: "A singularly illuminative introduction; ... one of the best planned and most valuable contributions ever made towards the clearer understanding of our history."

HENRY HOLT & CO.,29 West 23rd Street,New York.

GORDY'S POLITICAL PARTIES IN THE UNITED STATES Vol. I, 1783-1809. 598 pp. 12 mo. $1.75,net, special.

A work intended for the thoughtful reader without much previous knowledge of the subject. To be completed in four volumes, the second of which is now in press.

Nation: "Four years ago we had an opportunity to pronounce a favorable judgment on it.... Now there is much extension in addition to a thorough revision.... The opening sentences (no mean criterion often) are of a nature to whet the appetite for what is to come."

LEE'S SOURCE BOOK OF ENGLISH HISTORY

Edited by Dr.Guy Carlton Lee. 609 pp. 12 mo. $2.00,net.

Some 200 documents and selections from contemporaries from Herodotus to the last treaty with the Boers. With a full Bibliography of Sources (60 pp.).

N.Y. Tribune: "The generous scope of the work would alone commend it to the student.Every detail in the book increases his gratitude.... Mr. Lee appears to have used the best judgment, choosing just such documents as the reader desires to get at.... Altogether, this is a most serviceable publication. Mr. Lee's little introductory notes to his various documents are judiciously brief, but always sufficient and interesting."

HENDERSON'S SIDE LIGHTS ON ENGLISH HISTORY

With80full-page illustrations. 300 pp. 8vo. $5.00,net special.

Accounts and pictures by contemporaries ingeniously arranged to give the effect of a continuous history, and dealing with such topics as the personality of Queen Elizabeth, the execution of Mary Stuart, characteristic traits of Cromwell, the return of Charles II., the Stuarts in exile, Queen Anne and the Marlboroughs, etc., etc., illustrated by 80 portraits, fac-similes, caricatures, etc., reproduced directly from the rarest original mezzotint and line engravings.

N.Y. Tribune: "It is not unlikely that he who has dipped into this book in the early afternoon will find himself still reading when night comes....A better book to put in the hands of the lover of history, whether he be a beginner or an old student, we do not know."

WALKER'S DISCUSSIONS IN ECONOMICS AND STATISTICS By the late GeneralFrancis A. Walker. Edited by Prof.Davis R. Dewey.

With portrait. 454 + 480 pp. 2 vols. 8vo. $6.00,net special.

The Dial: "Clear and interesting to the general reader, as well as instructive to the careful student."

BREAL'S SEMANTICS lxvi + 336 pp. 12mo, $2.50,net.

Studies in the Science of Significations, as distinguished from the Science of Sounds (Phonetics). The style is pleasing, and the enjoyment of the book requires no previous philological training.

SWEET'S PRACTICAL STUDY OF LANGUAGES

By Prof.Henry Sweetof Oxford. 12mo. $1.50,net. xii, 1900

"Clear and interesting to the general reader, as well as instructive to the careful student."—The Dial.

AN IMPORTANT WORK BY THE LATE

FRANCIS A. WALKER

President of the Massachusetts Institute of Technology; Professor of Political Economy and History in Sheffield Scientific School of Yale College; late chief of the U.S. Bureau of Statistics; Superintendent of the Ninth Census; author of the Statistical Atlas of the United States, etc.

DISCUSSIONS IN ECONOMICS AND STATISTICS

Edited by ProfessorDavis R. Dewey.

With portrait.454 + 481 pp. 2 vols. 8vo. $6.00,net.

Vol. I. Finance and Taxation, Money and Bimetallism, Economic Theory.Vol. II. Statistics, National Growth, Social Economics.

The author had hoped to bring these papers together himself.

The Dial: "Professor Dewey has performed a real service to the public, as well as to the memory of his late chief.... In the present collection the editor has not included everything General Walker ever wrote, but has aimed, so far as possible, to avoid repetitions of thought ... there are some discussions of the national finances in the period following the Civil War, which have a timely as well as historical interest at the present time.... To improve the census was General Walker's work for many years, and his experience cannot fail to be of interest to the present generation.... Economics in the hands of this master was no dismal science, because of his broad sympathies, his healthy conservative optimism, his belief in the efficacy of effort; and, in a more superficial sense, because of his saving sense of humor and his happy way of putting things, ... he was the fortunate possessor of a very pleasing literary style, ... clear and interesting to the general reader, as well as instructive to the careful student."

The Outlook: "This book makes accessible for students the miscellaneous work of one of America's greatest political economists.... Dr. Dewey has performed his critical work with the reverence of a disciple, and reprinted in full all the more important contributions."

Political Science Quarterly: "The collection embraces between fifty and sixty articles, all of them characterized by the forceful reasoning and balanced judgment of the gifted author."

HENRY HOLT & CO.29 W. 23d St., NEW YORK378 Wabash Ave., CHICAGO

"A fitting memorial to its author."—The Dial

A NOTABLE BOOK BY THE LATE

FRANCIS A. WALKER

President of the Massachusetts Institute of Technology

DISCUSSIONS IN EDUCATION

Edited byJames Phinney Munroe. 8vo. $3.00,net.

The author had hoped himself to collect these papers in a volume. They are grouped underTechnological Education, Manual Education, The Teaching of Arithmetic and College Problems(includingCollege Athletics).A Valedictoryappropriately closes the book.

The Outlook: "Space fails us here to transcribe some passages we had marked as maxims for the times. So long as the reforms and improvements in our educational methods which General Walker advocated, not without some success, are but partially accomplished, will this volume of expert testimony deserve to be close at hand to those with whom is the responsibility of direction."

The Dial: "A fitting memorial to its author.... The breadth of his experience, as well as the natural range of his mind, are here reflected. The subjects dealt with are all live and practical.... He never deals with them in a narrow or so-called 'practical' way."

The Boston Transcript: "Two of his conspicuous merits characterize these papers, the peculiar power he possessed of enlisting and retaining the attention for what are commonly supposed to be dry and difficult subjects, and the capacity he had for controversy, sharp and incisive, but so candid and generous that it left no festering wound."

The Review of Reviews: "A strong presentation of the scope and dignity of technological education, and its relations to other forms of culture."

The School Review: "The scope and power of the contents make the work a permanent contribution to the development of educational thought and principle."

EARLIER BOOKS BY GEN. FRANCIS A. WALKER

(Circular free.)Wages. 428 pp. 12mo. $2.00.—Money. 550 pp. 12mo. $2.00.—Money in its Relations to Trade and Industry. 339 pp. 12mo. $1.25.—International Bimetallism. 297 pp. 12mo. $1.25.—Political Economy(Advanced Course. 537 pp. 8vo. $2.00,net.—Briefer Course. 415 pp. 12mo. $1.20,net.—Elementary Course. 323 pp. 12mo. $1.00,net.)

HENRY HOLT & CO.29 West 23rd St., NEW YORK378 Wabash Ave., CHICAGO

2d Impression of

THE FORTUNE OF WAR

By Miss ELIZABETH BARROW. 12mo. $1.25.

A vivid romance, the scene of which is laid in New York City during the British Occupation in the Revolution.

N.Y. Times Saturday Review: "The story is a good one, the historical data accurate, and the ways and manners of the period are cleverly presented.... The love plot is absorbing, and will be found by many readers even more fascinating than the faithful reproduction of the manners and customs of the time.... It is quite safe to say that this book vies in excellence with some of the historical romances which have caused more general comment. No doubt itwill gradually grow into a larger popularity".

The Outlook: "Miss Elizabeth Barrow has done her work not only well, but delightfully well."

The Independent: "A short tale, and a very good one.... A story of the Revolutionary War, romantic to a degree and very charmingly told."

Chicago Times-Herald: "Another tale of the time of Washington, but one that is more deserving both of popular and critical appreciation than some of the much-vaunted financial successes."

Springfield Republican: "It gives a good picture of New York City as it was in the eighteenth century.... The story is agreeable reading."

Hartford Courant: "She has done good work in her romance; ... it is told in a very attractive way.... The book is decidedly one that will entertain."

Christian Register: "Miss Barrow has been successful in depicting the condition of New York City at the time the British were quartered there.... It is a bright, pleasant tale."

The Churchman: "The book furnishes an interesting side-light upon the estimation in which the Americans were held by the upper classes of the British through the greater part of the Revolutionary struggle."

HENRY HOLT & CO.29 West 22d StreetNew York

RUSSIA

KRAUSSE'S RUSSIA IN ASIA, 1558-1899

With appendix, index, and twelve maps. 8vo. $4.00.

Boston Transcript: "The most masterly marshaling of the British arguments against Russia which has appeared in a long time.... The man who wrote the book has had an inside view of Russian methods, or else he is extremely clever in collecting detailed information about them. His information is brought down to date, and his passages on the Manchurian railway agreement show that he can see near things as vividly as far things. His review of the present state of Russia's southern boundary in Asia is striking, and sums up a great deal of history."

THOMPSON'S RUSSIAN POLITICS

By Herbert M. Thompson. An account of the relations of Russian geography, history, and politics, and of the bearings of the last on questions of world-wide interest. With maps. 12mo. $2.00.

Outlook: "The result of careful study, compactly, clearly, and effectively presented.... The author's aim is to stir the friends of freedom throughout the world to a deeper interest in the cause of Russian liberty. His work is vivified by the fact that his heart is in it."

WALLACE'S RUSSIA

By D. Mackenzie Wallace, M.A., Member of the Imperial Russian Geographical Society. Large 12mo. $2.00.

Contents include: In the Northern Forests; Voluntary Exile; The Village Priest; A Peasant Family of the Old Type; The Mir, or Village Community; Towns and Mercantile Classes; Lord Novgorod the Great; The Imperial Administration; The New Local Self-Government; Proprietors of the Modern School; The Noblesse; Social Classes; Among the Heretics; Pastoral Tribes of the Steppes; St. Petersburg and European Influence; Church and State; The Crimean War and Its Consequences; The Serfs; The New Law Courts; Territorial Expansion and the Eastern Question.

Nation: "Worthy of the highest praise.... Not a piece of clever book-making, but the result of a large amount of serious study and thorough research.... We commend his book as a very valuable account of a very interesting people."

GAUTIER'S A WINTER IN RUSSIA

By Théophile Gautier. Translated by M.M. Ripley. 12mo. $1.75.

Contents: Berlin; Hamburg; Schleswig; Lübeck; Crossing the Baltic; St. Petersburg; Winter; The Neva; Details of Interiors; A Ball at the Winter Palace; The Theatres; The Tchoukine Dvor; Zichy; St. Isaac's; Moscow; The Kremlin; Troitza; Byzantine Art; Return to France.

New York Tribune: "As little like an ordinary book of travel as a slender antique vase filled with the perfumed wine of Horatian banquets is like the fat comfortable tea-cup of a modern breakfast-table."

HENRY HOLT & CO.29 West 23d StreetNew York

This preservation photocopy was made at BookLab. Inc. in compliance with copyright law. The paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper)

Austin 1995

Back to Index Next