JULY 9, 1789, there was presented to the French Constituent Assembly the report of the committee which that body had selected to draft a constitution for France, regarding the plan according to which the constitution should be framed. It was Mounier who acted as reporter of the committee. He declared the sole end of government to be the maintenance of the rights of man. In order to keep this object constantly in view, there should be prefixed to the constitution a Declaration of the Natural and Unalienable Rights of Man.1
Three days later, Lafayette, of American fame, addressed the Assembly. As commander of the National Guard he had no right to vote in that body, but might participate in its deliberations. He now wished “to offer the tribute of his thoughts.”2
While in America Lafayette had imbibed the principles put forth during the Revolution. On his return to France he enclosed a copy of the American Declaration of Rights in a valuable frame. Beside the Declaration there was an empty column headed: Declaration of the Rights of the French people.
Lafayette regarded the American Revolution as having inaugurated a new social era. This new social order he held to be, properly speaking, the period of the Declaration of Rights.1 He said that only since the American Revolution had the idea prevailed of defining the rights which nature gives to each man and which are independent of all preexisting order, rights which are to such an extent inherent in man’s existence that not even the entire society has the right to deprive him of them.2 He believed that the opportunity had now come for France to imitate the example set by the Americans. In his address to the Assembly, Lafayette affirmed the double purpose of a Declaration of Rights as being: 1. To recall the sentiments which nature had engraved on the heart of each individual, and to facilitate their development, a task which is the more interesting because of the fact that in order that a nation love liberty, it suffices that it know what liberty is; and that in order to be free, it need only wish to be so. 2. To express the eternal truths to which all institutions ought to conform and which ought to be a guide to the representatives of the nation, leading them to the source of Natural and Social Law. He said that a Declaration of Rights should be true and precise, and should express what the whole world knows and feels. As an attempt at such a Declaration Lafayette presented a bill which contained the following stipulations: 1. Nature has made men free and equal; distinctions necessary for the social order are founded on general utility alone. 2. Every man is born with unalienable rights, such as liberty of opinion, care of honor and of life, the right of property, the entire disposition of his person, of his business, and of his faculties, the communication of his thoughts in all ways possible, the pursuit of happiness, and resistance to oppression. 3. The only limits to the exercise of Natural Rights are those which are necessary to ensure their enjoyment to other members of society. 4. No man can be subjected to any other laws than those consented to by himself or his representatives, and these laws must have been previously promulgated and must be legally applied. 5. The origin of all sovereignty is in the people. 6. No individual or corporation can have any authority which does not expressly emanate from the people. 7. All government has for its sole end the common welfare. This interest demands that the legislative, executive, and judiciary powers be distinct and defined, and that their organization assure the free representation of the citizens, the responsibility of agents, and the impartiality of judges. 8. The laws should be clear, precise, and uniform. 9. The subsidies should be freely voted and proportionally divided. 10. As the introduction of abuses and the rights of succeeding generations necessitate the revision of all human establishments, it ought to be possible for the nation to have, in certain cases, an extraordinary convocation of deputies, whose sole object be to examine and correct, if necessary, the faults of the constitution.1
It is evident that the project of Lafayette is modelled after the Virginia Bill of Rights.2 It is clear and precise, and is surely as good as many other Declarations that were subsequently submitted to the Assembly. Its adoption would have prevented much precious time from being wasted by foolish debates on the value and composition of a perfect Declaration of Rights. There were long debates as to whether the Declaration should precede the constitution, establishing the Rights of Man previous to those of society, or be placed at the end, as a result of the constitution. No agreement was reached at that time; it was only decided that the constitution should contain such a Declaration. The question having been raised on the 14th of July, but not then definitely decided, it was again raised on the 1st of August. For several days a lively discussion was carried on as to whether or not a Declaration of Rights should be drawn up, and whether it should follow or precede the constitution.
On the 27th of July Champion de Cicé, Archbishop of Bordeaux, the reporter for the committee of the constitution, said that the committee had judged it necessary “that the constitution be preceded by a Declaration of the Rights of Man and of the Citizen; not because it was necessary to impress upon these first truths a force they already derived from morals, from reason, and from nature, which had engrafted them in all hearts, but because these ineffaceable principles should be constantly before the eyes and in thought.” This Declaration, he said, “would be a constant guarantee against the fear of any disregard of its principles.” “If in the course of ages any power should attempt to impose laws upon the people that were not an emanation from these principles, this original and enduring type would instantly denounce crime or error to all citizens.” “This noble idea,” he proceeded, “conceived in another hemisphere, ought to be, because of its excellence, at once transplanted among us. We have participated in the events that gave to North America her liberty; she has shown us upon what principles the conservation of our own should rest; and it is the new world, whither we had formerly carried only weapons, which to-day teaches us to secure ourselves against the misfortune of betaking thither our persons.”1
The Bishop of Auxerre, Champion de Cicé, thought the Declaration useless, and said the example set by America was not conclusive, since that country possessed only proprietors and cultivators of land, citizens who were in fact equal. Before telling men they were free, as was done in the United States, it is necessary that the laws be passed which placed them on an equality.1
Malouet expressed inquietude and regret on account of the time consumed and the disorders that were accumulating. He thought that action rather than talk was necessary. Though believing that the Rights of Man should be held in view, and that they were not only the guide of the legislator but also the object he should aim to realize, he thought these principles ought to be presented as they are restricted by positive law. If the Americans had not taken this precaution it was because they found man in the natural state, and presented him to the universe in his primitive sovereignty. The Americans were already accustomed to equality. They were strangers to luxury as well as to indigence, free from the yoke of imposts, of prejudice, and of feudal customs. But in France a multitude of men were without property and dependent upon assured labor and constant protection, irritated also by the spectacle of luxury and opulence. The oppressed ought rather to be restored to their rights. Wise institutions should bring together the happy and the unhappy classes of society. Immoderate luxury should be attacked at its source, for it assails all Natural Rights.2
Malouet said that the domestic spirit which recalls man’s Natural Rights, and patriotism which consecrates them, should supplant the spirit of caste and the love of prerogative and of all vanities that are irreconcilable with enduring liberty and with the elevation of true patriotism. These reforms should be effected, or at least attempted, before proclaiming to suffering men who are destitute of enlightenment and of means, that they have equal rights with the most powerful and most fortunate. He showed that each natural law was modified by positive law, and that the moment a particular form of government was chosen, the natural man and his rights were restricted. He asked why a man should be taken to the top of a high mountain and shown an unlimited empire that was said to belong to him, when, on descending, he finds himself shut in at each step; why a man should be told that he has the free disposition of his person, when he must enter the army or the navy against his will; why he should be assured that he may dispose of his property as he wishes, when custom and law force him to dispose of it against his will; why it should be said to him that if he is indigent he has a right to the assistance of all, when he invokes in vain the pity of the passers-by. He said that since every man whose rights were declared was a member of society, there was therefore no reason of speaking of him as if he were separated from society.
Malouet pointed out the danger that might result from interminable metaphysical discussions, saying that under the circumstances of the time, when the government was without force and means, when authority was weakened and the courts inactive, when the people alone were in motion, when there was no public income, but rather an increase of expenditure, and all onerous obligations seemed unjust, a declaration expressing in general and absolute terms natural liberty and equality, might sever the bonds uniting the citizen and the government, and that under existing circumstances only the constitution could prevent universal anarchy.1
Delandine argued that it was not the duty of the deputies to establish principles, as Locke, Cumberland, Rousseau, and others had done, but to promulgate their results; not to lay down the preliminaries of the law, but to make the laws themselves. He said that the time had arrived to create; that the law should be simple and concise, so that even children could remember it. It was his opinion that the framers of the constitution should reserve for themselves the study of principles as bases of their labor, giving to the people only the fruits of their work. In this case the vast foundation of the palace would be hidden in the bosom of the earth, while to the eye of the citizen only the majesty of the edifice would be visible. “Let us,” concluded Delandine, “hasten to erect this edifice, and may it merit the contemplation of the wise and the regard of posterity.”2
The Abbé Grégoire believed that a Declaration of Rights would be incomplete without being at the same time a Declaration of Duties, since rights and duties were correlative, and one could not exist without the other. A man should be shown the circle within which he might move and the barriers which ought to restrain him.3
The wise views of Malouet, Delandine, and Grégoire were not regarded. On the 4th of August the excitement over the matter reached the climax.
An amendment proposed by Camus in accordance with the view of Grégoire and many of the clergy, that there be also a Declaration of Duties, was lost.
The Assembly decided almost unanimously that the Declaration be prefixed to the constitution.
In the evening of the same day took place the celebrated abolition of titles of nobility and feudal customs.
The deliberation on the Declaration of Rights was thereby suspended for several days, but it was again resumed on the 14th of August.
A splendid opportunity offered itself to the members of the Constituent Assembly to try their hands at framing a Declaration of Rights of Man, and to demonstrate how well they were versed in political philosophy. About fifty projects were presented to the Assembly. A committee of five, consisting of Mirabeau, De La Luzerne, De Desmenniers, Tronchet, and Rédon, was appointed to consider the various projects and to present their conclusions to the Assembly. The three chief ones were those of Lafayette, Slevès, and Mounier. The first two had been written before the convocation of the Constituent Assembly.1 That of Lafayette was the shortest and simplest.
The Declaration framed by Mounier differed but slightly in its nature from that of Lafayette. Some of its articles agreed almost verbatim with those of Lafayette’s draft. But Mounier added several additional clauses, to the effect that no ex post facto laws should be passed; that all individuals be entitled to the prompt succor of the law when their rights are infringed; that they be secure from arbitrary arrest or imprisonment and from arbitrary fines; that religious toleration and freedom of the press be guaranteed, and that the civil authority alone have control over the military forces for the maintenance of public tranquillity. The project enjoined but one duty upon each member of society—that each pay his proportional share toward defraying the public expenses.1
Mounier afterward regretted that he had participated in the Declaration of the Rights of Man. Later events, especially those of the 5th and 6th of October, showed him that abstract ideas on the Rights of Man might be wrongly interpreted, and lead to dangerous consequences.2
The Abbé Sieyès drew up a Declaration which was quite different in character from any other. This expert constitution-maker, who considered himself to have mastered the science of politics, presented a very elaborate project in which each metaphysical principle followed its predecessor in logical continuity. In order to facilitate the retention of the eternal truths which this pamphlet professed to embody, and to make them lucid for all classes, Sieyès likewise composed a short extract of its main principles.3
In his Declaration Sieyès considers society to have resulted from a compact between all the associated, the purpose of this compact being the greater good of all. Liberty is more extensive and secure in the social, than in the natural, state. Every man is the sole proprietor of his person and is free in the exercise of personal faculties. He may think what he pleases and publish his thoughts in any manner whatsoever. He may engage in any occupation, may go or remain anywhere he pleases, and dispose of his property as seems best.
A public force should exist to protect each individual in the enjoyment of his rights. The liberty of each should be rendered so secure by a wise constitution of government that there need be no necessity for the military force except against a foreign enemy. Each citizen is alike subject to the law. There should be an abolition of all privileges, the object of the law being the common interest. Sieyès declared that even if men are not equal in means and differ as regards wealth, intelligence, power, etc., they are equal in rights. The law should protect all without distinction, for no person possesses greater freedom than another. No one ought to be called to justice, seized, or imprisoned except according to the forms prescribed by law. Every arbitrary or illegal order is void; they who demand, sign, or execute such an order are culpable; the citizen against whom it is directed may repel violence by violence. Each citizen is declared to have a right to prompt justice. He is entitled to the common advantages which come from the state of society, and if in need, to the succor of his fellow citizens. The law is said to be the expression of the general will. Unlike Rousseau, Sieyès believed in representation.1
Sieyès distinguishes in his draft between natural and civil rights on the one hand and political rights on the other. The purpose of society is to develop and maintain the natural and civil rights of men, but society is itself produced by the political rights of the citizens; that is, while the former are passive rights, the latter are active.2
He also distinguishes between passive and active citizens. All inhabitants of a country, men, women, strangers, or children, are passive citizens, because all are entitled to the rights of citizens. Active citizens are those who contribute to public establishment. The equality of political rights is a fundamental principle. Every privilege is unjust, odious, and contradictory to the true end of society. The social order necessarily presupposes unity of purpose. Sieyès says that a political association is the work of the unanimous will of the associated. Its public establishment is the result of the will of a plurality of those associated, inasmuch as it is impossible to attain unanimity in a body of many millions. The general will is therefore the will of the plurality. He maintains that all authority comes from the people, and that all public powers, without distinction, are an emanation from the general will. Every public function is a commission, not property; a duty, not a right. All public officers except the king are responsible for their conduct. He asserts that a people has the right to revise its constitution. It is even good that at fixed periods such a revision take place if necessary.1
On the 17th of August Mirabeau, the reporter of the committee of five appointed to draft the Declaration, submitted their project to the Assembly. In his introductory speech he said that it was a difficult task to draw up a Declaration destined for an old and infirm political body, since many local considerations must be regarded; and that the difficulty was so much the greater because the constitution to which this Declaration should form the preamble was not known. What made the task still more arduous was that twenty projects had to be revised in three days.2 He said that the committee had clothed the principles in a popular form, which would recall to the people not what they had read in books, but what they themselves experienced. Accordingly, the instrument was written in the language used by the people to express their ideas rather than composed after the nature of a science to be taught them. He considered this an important matter because liberty was never the fruit of philosophical deductions, but rather of every-day experience and of the simple ideas arising from facts. Mirabeau thought a Declaration would be better understood in proportion as it expressed these popular ideas. He said that the Americans had proceeded thus, having purposely omitted science and presented political truths which could be easily apprehended by the people, for whom alone liberty is intended, and who alone can maintain it. In attempting to imitate them, continued Mirabeau, a great difficulty was encountered in distinguishing what belonged to the nature of man from the modifications his nature had undergone in a particular society, and in declaring the principles of liberty without entering into details and assuming the form of laws. It was hard to resist the temptation to denounce the abuses of despotism, and compose, not a Declaration of the Rights of Man, but a declaration of war against tyrants. Mirabeau said that an ideal declaration must be simple, evident, and fruitful of consequences. He thought circumstances and men in France were not prepared for anything but a feeble attempt at such a Declaration.1
Mirabeau then read the draft framed by the committee, which had either entirely avoided the use of metaphysical generalizations that might be put to a dangerous application, or if it did employ an abstraction, restricted it in a way that limited its scope. This was due to the foresight and carefulness of Mirabeau. Thus, while declaring all men free and equal, equality was in another article defined as meaning, not an equality of property or distinctions, but an equal submission to the law and an equal right to its protection. While asserting that the citizen had the right to employ his powers, his industry, and his property as he pleased, the right was reserved to the law of modifying this liberty if the general welfare necessitated it. Liberty of thought and expression was granted, but with the restriction that the rights of others be regarded. Every political organization was affirmed to be instituted by a social compact by which an individual put his person and property under the supreme direction of the general will. The stipulations of this project were: That all powers emanate from the nation; that the common welfare is the end of government, and that no laws are valid that were not consented to by the people or their representatives; that the law, being the expression of the general will, should be general in its object and ensure to all liberty, property, and civil equality; that the liberty of the citizen consisted in his being subject to the law alone, and to the authority established by law; that the citizen might resist unlawful oppression; that he should enjoy the right of public trial; that accusation, arrest, and imprisonment should be according to legal forms; that punishment should be legal, graduated according to the nature of the offence, and equal for all. It declared further that the citizen might travel or migrate whither he pleased, with legal reservations; that all citizens should have the right of petition, of public meeting in a legal form; that the State alone could demand a sacrifice of private property, and should exercise this right only in case of necessity, and on condition of indemnifying the owner.1
While a contribution to the public expenses, according to the amount of property, was demanded of each citizen, it was stated that every contribution was contrary to the rights of men if it discouraged industry, excited cupidity, corrupted morals, or deprived the people of their means of subsistence. Accountability of the employment of finances and economy of administration were set down as rigorous duties of the government. The army was to be under the direction and control of the civil authorities.
Mirabeau, continuing his address, predicted that the laws passed by the Constituent Assembly would, if they were worthy laws, become the laws of Europe, and that its members were laboring not only for themselves, but also for their descendants and for the whole world.2
On the following day, the 18th of August, the Declaration presented by Mirabeau was laid before the Constituent Assembly for discussion. Rabaut de Saint Etienne said that the Assembly, in occupying itself with a Declaration of Rights, obeyed the demand made in various cahiers, and that these cahiers had spoken of the matter, America having served as a model. He thought that the circumstances in France were not quite the same as in that country and therefore there need be no servile imitation of what had been done by the United States. According to his idea the draft of the committee lacked plan, development, clearness, truth, and precision. He thought the whole world should be able to grasp the principles embodied in an instrument of this kind; that it should become the alphabet of children and be taught in the schools. A patriotic education would give birth to a strong and vigorous race of men who would know how to defend their liberties and repulse despotism, which extended from the foot of the throne to the various ramifications of government.1
He thought the draft presented, by aiming to be pure and simple, had become insufficient; and therefore demanded that the principles and preservatives the Abbé Sievès had inserted in his project, which protected the citizen against the most concealed usurpations of tyranny, be embodied in the Declaration of the committee.2
Mirabeau arose to defend the work of the committee. He said that if the circumstances were calm, minds peaceable, and sentiments of accord, general maxims might be employed without fear of opposition or of dangerous consequences. But when the most obvious principles attacked a multitude of pretensions and prejudices there would arise such a violent opposition against any particular exposition of rights as would amount to an opposition against every declaration of this kind. Self-love and self-interest would lead to the composition of a mass of declarations. Difficulties would increase infinitely. A Declaration of Rights would be but the almanac of a single year.3
Inasmuch as the draft of the committee did not meet with the favor of the Assembly, Reynauld proposed that a plan be chosen, after which a consideration of the details should take place.
Mirabeau said there could be no question as to the other projects, since they had been disposed of by the committee, but that the draft of the committee alone must serve as the basis for the discussion. It might be altered or even rejected, but until judgment had been passed on it, there could be no talk of another. He dwelt on the difficulties the committee had encountered, and said that it would be still more difficult for so large a body as the Assembly to choose among so many projects as had been presented.
Another long discussion ensued. Again no conclusion was reached. Maulette then proposed that the Assembly separate into bureaux and proceed to choose a particular draft; that having the plurality of votes to be submitted for discussion, article by article.
To put an end to these interminable disputations Mirabeau at this juncture made a motion that aroused the greatest excitement.
No man in France had suffered more than Mirabeau from the evils of the old régime. His first published work had been a bitter denunciation of despotism.1 In this book he had demanded free instruction, freedom of the press, restitution of the parliaments, abolition of the lettres de cachet, of standing armies, and of the lits de justice. He had said man is born for freedom as he is for the air he breathes. He had translated and edited Milton’s Areopagitica, that famous production demanding liberty of the press. He had likewise published a book on Moses Mendelssohn, that ardent champion of religious toleration.2 He hailed with delight the American Bills of Rights. In his pamphlet Aux Bataves he had drawn up a Declaration of Rights for the Belgians. He had advocated a like Declaration for France. As the reporter of the committee of five, most of the work of drawing up a project devolved upon him.
Now he proposed that further action on the Declaration be deferred until the provisions of the constitution were known.1
We learn from Dumont, one of a number of exiled Genevese who assisted Mirabeau in his labors and often composed his speeches, that the latter entrusted his faithful friends with the task of drawing up the Declaration on behalf of the committee of five.2 Dumont says the quartet set to work to compose the draft, disputing, now adding a word, now erasing four, and wearying themselves in the attempt to write down Natural Rights which had never existed. He says that the work brought to his mind reflections which he had not made before, and that he saw the undertaking to be ridiculous and a mere puerile fiction, inasmuch as rights can only be declared after the constitution is known, since they are the result of the laws. He had come to the conclusion that the maxims to be embodied in the Declaration were not only untrue, but might become dangerous.3
Whether Mirabeau had been influenced by the opinions of his friend and had changed his views on the value of the Declaration, whether he only wished to prevent the waste of more time because more important problems were pressing, or whether he realized that such a Declaration could only be framed after the terms of the constitution were known, cannot be definitely ascertained. His motion contained nothing to indicate that he was opposed to the Declaration as such. On the contrary, he proposed anew that it form an integral and inseparable part of the constitution. He only desired to adjourn further deliberation until the provisions of the constitution had been determined. But many of the deputies believed he wished to prevent the framing of the Declaration entirely. There was a violent opposition to his motion. He was accused of using his superior talents to guide the Assembly toward contrary ends.1 His proposal was voted down. The Constituent Assembly decided not to make the draft of the committee the basis of its discussions, but to proceed independently.
Lally-Tollendal pointed to the great variety of drafts that had been presented, to the difficulty of deciding upon any one of them, and to the endless debates that had already taken place. He asked how the Assembly could hope that twenty-four millions would interpret a Declaration alike if two hundred could not agree upon the sense of its articles. He said that the English, who of all peoples best understood the science of government, had in the various acts which state their liberties, avoided metaphysical questions and general maxims susceptible of denial or dispute, and merely stated facts which no one could deny. He said it was without doubt a great and beautiful idea to expose principles in order to draw consequences from them; to take men to the source of their duties; to inspire them with the dignity of their being before assuring them of the enjoyment of their faculties; and to show them nature before giving them happiness; but he demanded that the Declaration be short and clear; that immediately after a principle was stated its true consequence be drawn, in order to prevent others from drawing false conclusions; and that after having transported man to the forests he be immediately returned to France. Of all the drafts he preferred that of Mounier. He recommended various changes, especially the addition of an article defining the relation of man to a Supreme Being, for in speaking of Nature, he said, one should also speak of its Author; and one ought not forget the first base of all duties, the bond of society, the bridle of the wicked, and the only consolation of the unhappy. Rather than spend much more time upon the Declaration, Lally-Tollendal preferred a postponement of the discussion upon these general maxims. The principles of fact the Assembly was enjoined upon to establish, he said, were independent of the principles of reason from which it was proposed to derive them. It would be better to give the people liberty and tranquillity—to have them enjoy effects, and teach them causes later.1
On the 19th of August the Constituent Assembly chose the draft of the sixth bureau for discussion. On the 20th the preamble of the Declaration and the first three articles, which were those of Mounier, were adopted.2
The preamble declares ignorance, neglect, or contempt of the Rights of Man to be the sole causes of public misfortunes and of the corruption of government. In order to keep the rights and duties of all the members of the social body constantly before their minds, the representatives of the French people have resolved to set forth the natural, unalienable, and sacred rights of man in a solemn declaration. This declaration is to serve as the standard with which the people are to compare the acts of the government. Inasmuch as these acts of the government can at any moment be compared with the end of every political institution, they will be more respected. If the claims of citizens are founded on simple and incontestable principles, they will always tend to the maintenance of the constitution and the general happiness. From the preamble it is evident that the Constituent Assembly was influenced by the noblest motives in undertaking to declare the Rights of Man. The members of that body did not believe that they had discovered truths which were now put forth for the first time. These truths were set forth to reveal corruption in the officers of the State, to remind the citizens of their rights and duties, to make them patriotic and law-abiding, to ennoble the spirit of the people. These rights received a religious sanction by being declared in the presence of the Supreme Being.
The doctrines promulgated in this Declaration are by no means metaphysical generalities or unrestricted rights, as many writers consider them to be. They are no more general or abstract than those contained in the American Bills of Rights.
Art. I. affirms that men are born and continue free and equal in respect to their rights. Civil distinctions can be founded on public utility only.1
II. The end of all political associations is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.2
III. The source of all sovereignty resides essentially in the nation; no body of men, no individual, can exercise any authority that does not emanate expressly from it.3
The next two articles were presented by Alexander Lameth, one of the young noblemen who had been in America.1
IV. Liberty consists in the power of doing whatever does not injure another.2 The exercise of the natural rights of every man has no other limits than those which are necessary to secure to every other person the free exercise of the same rights; and these limits are determinable only by the law.
V. The law ought to prohibit only such actions as are hurtful to society. What is not prohibited by law cannot be hindered, and no one can be constrained to do that which the law does not ordain.
The definition of liberty gave rise to a discussion concerning natural right and civil right. Some believed that political, not natural, liberty ought to be spoken of in this connection, for, while the previous articles had referred to man prior to his having entered society, as soon as the law is spoken of, society is already formed. In accordance with this view André proposed the following definition of liberty: “The liberty of the citizen consists in being subject to the law alone, and in being bound to obey no other authority except that established by the law; to be able to use his faculties in every respect the law does not forbid, without fear of punishment.” This definition was not adopted.3
Next the discussion turned upon the law and the privileges of the citizens.
Barrère proposed that the right to exercise public functions be neither arbitrary nor exclusive. “By like expressions,” he said, “the Americans have in their Declarations of Rights extirpated all germs of aristocracy.” Others wished the laws to be considered as compacts made by society. The article proposed by Talleyrand was accepted after being amended in several particulars. The definition of the law is that of Rousseau. The article is as follows:
VI. The law is the expression of the general will. All citizens have a right to concur, either personally, or by their representatives, in its formation. It should be the same for all, whether it protects or punishes; and all being equal in its sight, are equally eligible to all honors, places, and employments, according to their ability, without any other distinction than that of their virtues and talents.1
This article is entirely democratic in its nature. It is a manifesto against all political privilege.
The next point taken up was arbitrary punishment. Mirabeau insisted that the responsibility of each officer of the State be declared, save that of the head of the nation. He believed this to be the guarantee of liberty. The public force, he said, should be subject to the forms determined by law.2
The three articles relating to judicial affairs which were decided upon, meant a radical reform of the judicial system. They were the answer of the people to the abuses of the ancient régime—to lettres de cachet. Bastille, etc.3
VII. No man can be accused, arrested, or held in confinement except in cases determined by law, and according to the forms which the law has prescribed. All who promote, solicit, execute, or cause to be executed, arbitrary orders, ought to be punished, but every citizen called or seized by virtue of the law, ought to obey immediately, and renders himself culpable by resistance.1
VIII. The law ought to establish no other penalties but such as are absolutely and evidently necessary; and no one ought to be punished except by virtue of a law promulgated before the offence was committed and legally applied.2
IX. Inasmuch as every man is presumed innocent till he has been declared culpable, whenever his detention becomes indispensable, all rigor against him, more than is necessary to secure his person, ought to be provided against by law.
A long and interesting discussion took place in the Constituent Assembly concerning religious liberty. Some deputies did not consider religious liberty a right. Others thought the question of religion should be treated in the Constitution, not in the Declaration. Bonnal, Bishop of Clermont, considered religion the base of empires, the eternal reason watching over the order of things, and demanded that the principles of the constitution rest on religion as an eternal basis.3 Laborde pleaded for tolerance, regarding the attempt to control religious opinions as the most cruel despotism. He thought liberty of religion a sacred good belonging to every citizen, and urged that strange cults be respected. Mirabeau said that in his eyes the most unlimited liberty of religion was so sacred a right that the word toleration itself seemed to him tyrannical. This was exactly what Madison had said in the Virginia Convention. Diversity of opinions, Mirabeau continued, results from a diversity of minds, and cannot be prevented. Against those who spoke of a dominant cult, he said the word dominant was tyrannical and ought to be banished from legislation. Nothing should dominate except justice. No one should do that which might harm another.1 Rabaut de Saint Étienne made an eloquent plea for full religious toleration. He said that one-third of his constituents were Protestants, who enjoyed but imperfect toleration. He attacked those who held that liberty of opinion should be granted, provided the public order were not disturbed by the manifestation of these opinions. He declared this view extremely dangerous. He proposed “that each citizen be free in his opinions, that he have the right to profess his cult freely, and ought not be inquieted for his religion.” He said that liberty ought to belong to all Frenchmen equally and in the same manner. Liberty of thought and opinion he held to be the most sacred of rights. It escapes the rule of men, he said, and takes refuge in conscience as a sanctuary whither no mortal has a right to penetrate. It is the only right which men have not put under the laws of the common association : to constrain this right is an injustice, to attack it a sacrilege. He demanded for all non-Catholics equal liberty and equality of rights with the Catholics. He pointed to the “generous” Americans who had put universal religious liberty at the head of their civil code; to the Pennsylvanians who had declared that all who adored a Supreme Being, in what manner soever, should enjoy all the rights of citizens. The article as definitely declared, contained the restriction against which Rabaut had spoken.1 It reads thus:
X. No man ought to be molested for his opinions, not even on account of his religious opinions, provided their manifestation does not disturb the public order established by the law.2
XI. The unrestrained communication of thoughts and opinions being one of the most precious rights of man, every citizen may speak, write, and publish freely, but is responsible for the abuse of this liberty, in cases determined by the law.3
XII. A public force being necessary to give security to the Rights of Man and of the citizen, that force is instituted for the advantage of all, and not for the particular benefit of those to whom it is entrusted.4
XIII. A common contribution being necessary for the support of the public force, and for defraying the other expenses of administration, such a contribution ought to be apportioned equally among all the citizens according to their abilities.5
XIV. Every citizen has a right, either by himself or through his representative, to a free voice to determine the necessity of the public contributions, to consent to them freely, follow their employment, and determine their amount, mode of assessment, collection and duration.6
XV. The community has the right to demand of all its agents an account of their conduct.7
Lameth said that without a separation of the powers of government there would be despotism. Target shared this view. The principle was thus expressed:
XVI. Every community in which the possession of rights is not assured nor the separation of powers determined, lacks a constitution.1
XVII. The right of property being inviolable and sacred, no one can be deprived of the same, unless the public necessity, legally determined, makes this unavoidable, and then a just indemnity must previously be paid.2