The Declaration of the Rights of Man and of CitizensJellinek, Georg
History
The Declaration of the Rights of Man and of Citizens
Jellinek, Georg
Constitutional history -- France; Constitutional history -- United States; Natural law
Then the old Puritan and Independent conceptions became effective in a
new direction. The theory of the social compact which played so
important a role in the founding of the colonies, and had helped to
establish religious liberty, now supported in the most significant way
the reconstruction of existing 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 old rights.
The inherited rights and liberties, as well as the privileges of
organization, which had been granted the colonists by the English kings
or had been sanctioned by the colonial lords, do not indeed change in
word, but they become rights which spring not from man but from 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, all powerfully influenced the political views of the
Americans of that time. But the setting forth of a complete series of
universal rights of man and of citizens can in no way be explained
through their influence alone.
In 1764 there appeared in Boston the celebrated pamphlet of James Otis
upon _The Rights of the British Colonies_. In it was brought forward the
idea that the political and civil rights of the English colonists in no
way rested upon a grant from the crown; even Magna Charta, old as it
might be, was not the beginning of all things. "A time may come when
Parliament shall declare every American charter void; but the natural,
inherent, and inseparable rights of the colonists as men and as citizens
would remain, and, whatever became of charters, can never be abolished
till the general conflagration."[100]
Public-domain text, read in full here on John Shaqi.
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