THERE is a tendency on the part of some, notably English, writers, to ridicule all political theorizing. Scientific and historical, rather than philosophical studies, have most attraction for the English mind. Thinkers of that nation are inclined to regard it as a fruitless task to grapple with philosophical questions. It is not accidental that Bacon, the man who did perhaps more than any other person in developing the spirit of inductive research to which modern science owes her wonderful triumphs, was an Englishman. To collect facts, rather than build up systems, is characteristic of English intellectual activity. And in accordance with this tendency political theories have been utterly discarded in the English system of government; indeed it is doubtful whether the word system can be legitimately used in speaking of the English constitution, for this constitution is not the product of logical construction, as French constitutions have invariably been, but consists rather of devices dictated by the necessities of the moment. The British government has never recognized those ideas which form the political creed of the American and French Revolutions. Although England has since the earliest days of her history been the example of a free country to the rest of the world, the doctrine of the sovereignty of the people is not recognized. Although almost every adult male can in England acquire the right of suffrage if he desires, full manhood suffrage has not been proclaimed, but the idea of property, rather than that of equality, is still adhered to. The existence of the peerage, which still possesses great social and political privileges, further disagrees with the doctrines of equality and popular sovereignty. Neither is there any recognition of the rights of the individual as a man, although nowhere, with the possible exception of America, is the importance of personal liberty more esteemed. Though written safeguards after the American fashion are lacking, the force of custom is so strong that the rights of the citizen are nowhere more secure.
While these considerations apply to England they do not apply to other nations, especially not to the American and the French nations, among whom ideas of this sort have been a force in influencing historical development, whose importance can hardly be exaggerated. It is impossible to comprehend the French Revolution without understanding the effects of the so-called “Principles of 1789.” It may be said that these ideas form the essence of that movement. De Tocqueville, whose acute and luminous observations have so greatly broadened our views regarding the Revolution and its antecedents, distinguishes between the accidental and transitory features of this period on the one hand, and its essential and permanent characteristics on the other. The antagonism to the Church and hostility against religion he regards as subordinate, while the substance of the Revolution, the most fundamental, the most durable, the truest portion of its work, seems to him to be “the doctrines of the natural equality of man, and the consequent abolition of all caste, class, or professional privileges; popular sovereignty; the paramount authority of the social body; the uniformity of rules.”1
The most necessary and abiding reforms effected during the Revolution were but the results of applying the doctrines of the Declaration of the Rights of Man to the existing order composing the ancient régime, which was founded upon royal prerogative, social and political inequality, and submission. The consequences of this application of principles to conditions were the reform of the monarchy, of the educational system, abolition of feudal privileges, a radical change in the system of administration and in the judicial organization, as well as a reform of the civil and criminal laws—reforms demanded by the doctrines of equality, liberty, and popular sovereignty, and this work was done logically, yes, mathematically, in accordance with the tendency of the French mind.
But let us inquire what the opinions of the men were who drew up this Declaration, regarding the importance of the principles it contained.
To Bailly, the famous astronomer, member of three academies, president of the Constituent Assembly, and at one time mayor of Paris, this Declaration seemed both necessary and dangerous; dangerous because of the abuses which wicked and seditious men might commit, forgetting that rights entail duties and that liberty is not license; necessary, because the Rights of Man had been forgotten, otherwise there would have been no Revolution. The first work of the Revolution should be the Declaration of Rights. The first measure of the legislators should be their recognition and proclamation. They should form the basis of the constitution, the thread put into the hand of the legislators to guide them constantly. It was worthy of the wisdom of the Assembly, Bailly holds, not to hesitate in recognizing these rights, and to begin its work upon the constitution with this solemn act, which is the prize of possessing liberty, “an act made by us, for ourselves, but belonging to all mankind as well.”1
Condorcet regards the declaring of the Rights of Man as the only means of preventing tyranny, which is according to him, simply a violation of these rights.2
Rabaut de Saint Étienne, the Protestant minister, who is one of the most influential of the actors in the early part of the Revolution, considers the Declaration of Rights the most important achievement of the Revolution. When all other parts of the constitution have perished, this will survive; although it may be submerged it will always come to the top again,—a prediction which has come true. It has established itself easily in America, Rabaut continues, because neither kings, nor priests, nor doctors, nor nobles exist in that country to attack it; but crossing the ocean to the old continent, with its populous cities, its overnumerous cathedrals, towers, monasteries, and dungeons, it has been exposed to the bitterest insults. But he regards this as the new gospel, which will naturally be opposed because it is the good tidings of the lowly and foolishness according to the world. Its mysteries were long hidden, because they attacked the priests and the great.3
In the preamble to the Declaration, the Constituent Assembly consider ignorance, neglect, or contempt of human rights the sole causes of public misfortunes and corruptions of government. They anticipate as results of the Declaration, that the members of the social body will be kept attentive to their rights and duties; that the acts of the government will be more respected; and that the claims of the citizens will tend to the maintenance of the constitution and the general happiness.
The members of the Constituent Assembly felt certain that they were legislating for all mankind. They believed that the eyes of the entire race were upon them; that their work, especially the Declaration of the Rights of Man, would survive the vicissitudes of the ages. And indeed they were hardly mistaken in holding this view, for the effects of their work are still to be felt. The Principles of 1789 have in reality transformed the structure of European government and society. The seeds of liberty have sprung up again and again, despite all exertions to destroy them. While the conquests made by the French during this most brilliant period of their military history have been lost, and almost everything else that was attempted by the leading actors in that great drama has vanished, these ideas still survive as a living force. Despite the numerous political upheavals in France that have occurred since the close of the Revolution, the French people have always returned to these principles. Ideas which have exerted such a fascination in the past, and have been prized by some of the noblest of the race ever since the time of the Stoics, can hardly be regarded as fallacies, and are on no account to be held in derision.
It is but natural that ideas which have exerted such tremendous influence as have the Principles of 1789, should not only find enthusiastic adherents but also bitter opponents. The most famous attack, perhaps, upon the Rights of Man, as upon the influence of the French Revolution on the whole, was that of Edmund Burke, the noted English parliamentarian, in his Reflections on the Revolution in France—a dissertation full of the most striking observations expressed with an unexampled wealth of language, but one in which truth and falsehood, sound judgment and unpardonable prejudice, are strangely mixed. Though Burke’s views have been often discussed, at least a brief consideration of them must here be given because of their bearing on our subject.
Though Burke, in accordance with almost all of the political philosophers of his age, accepts the theories of Natural Law and a state of Nature, he is really a forerunner of the Historical School of politics, anticipating the notions of Savigny by a quarter of a century. The organic theory of the State could scarcely be expressed more clearly than it is in the following words of Burke’s, in which he lays bare the leading error of the Natural Rights School: “Society is, indeed, a contract. Subordinate contracts for objects of mere occasional interest may be dissolved at pleasure; but the State ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico or tobacco, or some other such low concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties. It is to be looked on with other reverence; because it is not a partnership in things subservient only to the gross animal existence of a temporary and perishable nature. It is a partnership in all science, a partnership in all art, a partnership in every virtue and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.”1 The idea of the continuity of the State is thus plainly emphasized. Burke repeatedly attacks the fallacy of supposing that the foundations of the State might be torn up at any moment and replaced by a more suitable substructure. He looks “with horror on those children of their country who are prompt rashly to hack that aged parent in pieces and put him into the kettle of magicians, in hopes that by their poisonous weeds and wild incantations they may regenerate the paternal constitution and renovate their father’s life.”2 He censures French politicians and writers for their over-confidence in their own wisdom and lack of respect for the wisdom of others; for their love of the new and hatred of the old simply because it is old; for their assumption that governments may vary like modes of dress; for their forgetfulness of the fact that they have duties to perform as well as rights to enjoy.3 Concerning the participants in the Revolution he says that they despise the ancient, permanent sense of mankind and set up a scheme of society on new principles.4
Burke maintains that if civil society is the result of a convention or contract, laws and constitutions of government framed are the creatures of this convention, and that men have abdicated their Natural Rights, such as the right of self-defence and the right of judging for oneself or asserting one’s own cause for securing the liberty of the civil state. Government is not made in virtue of Natural Rights, but is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for. But the inclinations of men must be frequently thwarted, their will controlled, and their passions brought into subjection, by a power out of themselves. “In this sense, the restraints on men, as well as their liberties, are to be reckoned among their rights. But as the liberties and the restrictions vary with times and circumstances, and admit of infinite modifications, they cannot be settled upon any abstract rule.”1
With respect to the Rights of Man Burke says that they are extreme metaphysical rights, which are morally and politically false. He considers the real rights of men to be a sort of middle, incapable of definition, but not of discernment. “The rights of men in government are their advantages; and these are often in balances between differences of good,—in compromises sometimes between good and evil, and sometimes between evil and evil.” The intricacy of man’s nature and of the objects of society, the gross and complicated mass of human passions and concerns, makes innumerable modifications of the primitive Rights of Man unavoidable.2
Burke endeavors to prove that the notions he attacks are repugnant to English tastes and have no place in the English system of government. He denies that the people of England have the right to choose their own governors, to cashier them for misconduct, or to frame a government for themselves. He asserts that England will ever preserve “an established church, an established monarchy, an established aristocracy, and an established democracy, each in the degree it exists, and no greater.”1 “We have not been drawn and trussed,” he says, “in order that we may be filled, like stuffed birds in a museum, with chaff and rags, and paltry, blurred shreds of paper about the Rights of Man.”2
The views of Burke are shared by Bentham, Austin, and Maine.
Fully as hostile as these English writers against the Rights of Man, is Taine, the brilliant French historian and philosopher.3 According to Taine the articles of the Declaration are poniards directed against human society. In the absence of a supreme court after the American fashion, or of a similar tribunal to interpret the Declaration and apply its principles, the local club in each city or village becomes the champion, the judge, the interpreter, the minister of the Rights of Man. He shows how the people might draw such conclusions from these principles as would result in the destruction of all law and order. Whenever they considered themselves oppressed they would rise up in arms and resist; they might claim the right of demanding personal account of the magistrates, of supervising the legislators; the proletariat might demand the right of suffrage; all might claim the privilege of carrying arms or of serving in the National Guard; royalty, being an hereditary office, might be declared unlawful and the king hurled from his throne; and in general the mob would try to legitimize the worst excesses, by appealing to the Declaration.
He calls the larger part of the articles “abstract dogmas, metaphysical definitions, axioms more or less literary, that is, more or less false, now vague, now contradictory, susceptible of various and opposite senses, good for a pompous harangue and not for effective use, a simple decoration, a sort of flaring standard, unuseful and heavy, which, fastened to the front of the constitutional structure and shaken daily by violent hands, cannot fail soon to fall upon the head of the passersby.”1
Taine must have been unfamiliar with the constitutions of the American States, for he says that the American constitution has nothing resembling statements of the Rights of Man. He states that Jefferson’s Declaration of Rights was refused, and that merely eleven amendments were added affirming the fundamental liberties of the citizen.
Stahl, whose Philosophy of Law still enjoys considerable popularity in Germany, is acquainted with the Bills of Rights of the American States, and rates them very highly, but is hardly fair toward the French Declaration. He says: “The French Constituent Assembly was entranced with the philosophical procedure of North America and imitated it with the greatest exaggeration. While disclaiming any intention of drawing up metaphysical, and not practical rights, hollow and erroneous deductions from Natural Law were placed at the head of the Declaration of the Rights of Man and of the Citizen.”2
A careful comparison of the French and the American Declarations will show that the nature of both classes of papers is essentially the same. It seems to me there is scarcely any warrant for calling the French Document a collection of unrestricted metaphysical principles. That instrument recognizes the fact that the exigencies and needs of civil society make a restriction of individual rights necessary. The language is quite carefully guarded. Thus, the limit to the liberty of any person consists in the equal rights of others; freedom of opinion is granted, but the public order must not be disturbed; freedom of speech and of the press is granted, but the citizen is responsible for the abuse of this liberty. There is nothing incendiary about any of these principles. While in some cases an attempt was made to palliate the crimes committed during the Revolution by appealing to the Rights of Man, it is exceedingly probable that these excesses would have occurred even if there had never been a Declaration of the Rights of Man. It is not this Declaration which caused the September massacres or the Reign of Terror, but the danger threatening the French from the invasion of the foreign foe, the opposition of a large portion of the country against the Revolution, the desire of ambitious individuals to retain their power, and other considerations of like nature. It seems to me that the wholesome effects of these principles far outweighed their evil influence. It is impossible to deny that on the whole the Rights of Man contain good doctrine, and have been productive of incalculable good. Believing that the political development of the French people had been kept back by the misrule of autocratic kings, selfish nobles, worldly churchmen, and grasping magistrates, the Constituent Assembly thought it wise to proclaim the principles they regarded as forming the basis of society, hoping that these principles would guide the legislators in framing the constitution and laws of the state; that they would remind the citizens of their rights and duties; and that they would serve as a bridle upon all magistrates, restraining them in the exercise of unlawful power. The purposes, there can be no doubt, were noble. But why did the Rights of Man fail to accomplish what was anticipated? There seem to me to be several reasons for this failure.
While the Rights of Man had been asserted by the Americans against an external foe, these same doctrines, proclaimed by the French people, became a declaration of war against the privileged classes. The conditions which the Declaration of Man presupposed did not exist in France, as they did, to a considerable extent at least, in America, and therefore liberty, equality, and popular sovereignty had first to be won. This could not happen without exciting the bitterest opposition of the interests threatened. The Rights of Man became a mass of dynamite which shattered the entire social and political fabric. A strong central government might have prevented this upheaval, but that was lacking. Too much inflammable material had been heaped up by centuries of oppression, to which fire was applied by declaring the Rights of Man.
Out of the ruins arose a new structure whose foundation was the Declaration of the Rights of Man. It is the constructive, rather than the destructive, side of the Revolution, which ought most to be considered. It cannot be denied that the Rights of Man had much to do in regard to rendering the Revolution a benefit to mankind. The wholesome influence of these ideas might have been still greater, had they been rightly understood.
The French people prized equality more highly than liberty. In trying to bring about absolute equality, which will ever remain a dream, they sacrificed liberty. They failed to see that liberty can exist where considerable inequality prevails, as has been the case in England. The French desired not only equality before the law, but also social and economic equality, which cannot be procured, and which would scarcely be beneficial if it could be obtained. Thus it happened that not only the nobles were proscribed, but the levelling propensity eventually attacked every one whose birth, wealth, or intellect distinguished him above the mob. Liberty seemed to the French to be synonymous with equality of conditions. It was not equality of rights, but equality in fact after which they chased. In the pursuit of this chimera the real Rights of Man were sacrificed. They were entirely unfamiliar with the real nature of liberty. It was to them merely an idea—something existing on paper, but something which they had never tasted and which had not entered the nature of the people.
The French did not only confuse liberty and equality, they likewise believed liberty to be identical with democracy, thus committing the same error as the Greeks and Romans. We have seen that among the ancients the State was everything, the individual nothing, and that in the city-state of antiquity individual rights were constantly overridden by the general will. It was shown that though wielding sovereign power the people may yet be slaves, providing there is nothing to limit the interference of the government with individual rights. The same development occurs in France, even though the Declaration of the Rights of Man was intended to shield the individual against tyranny, whether this tyranny be exercised by the king or by the people themselves. The liberty of the individual is safe only when the sovereignty of the State finds its limits in the rights of the citizen.
The error of the ancients again manifested itself. The views of Locke and others, who had asserted that the State must not interfere with the Natural Rights of Man, even though these views had given birth to the idea of a declaration of the rights which are reserved to the individual, were nevertheless supplanted by the notion to which Rousseau had given expression, that the power of the people is unlimited. It was the prevalence of this latter view which caused liberty to perish. The doctrine of the public welfare becomes destructive of the rights of the individual. The spirit of the Declaration is violated though its principles are on everybody’s lips.
This victory of the principle of sovereignty over the principle of liberty was not solely due to the influence of Rousseau, great as that influence was upon Robespierre, Saint Just, and other assassins of French liberty. Rousseau himself but represented a deep tendency of the French character—the tendency, namely, toward centralization, which to this day is inimical to individual liberty in France. Whatever our view regarding the origin of this inclination toward centralization may be—whether we regard it as a victory of the Roman influence over the Germanic; whether we ascribe it to the revival of Roman Law and the influence of the legists, who were constantly asserting that what the king wishes is Law; or whether we attribute it to the deliberate creation of the French kings; this tendency can be clearly traced through French history, down to the very present. It was not created by the revolutionists but was inherited from the old régime.
It is the conception of the omnipotence of the State, of the supremacy of the public welfare, which the Mountain takes up as the justification of the Terror. Robespierre says that the revolutionary government is not to be permanent. Its purpose is to establish the victory of liberty, after which it will be followed by the constitutional régime, which will concern itself principally with civil liberty. The revolutionary government is entirely legitimate, for “it is founded upon the most sacred of all laws, the public welfare, upon the most irrefragable of all titles, necessity.”1 “The government of the Republic,” Robespierre again says, “is the despotism of liberty against tyranny.”2 A famous revolutionary journal expressed the matter thus: “The welfare of the people is the supreme law. This is the grand principle before which all others incline and lower themselves. When a nation is in danger, the rights of the individual disappear, there remain only the rights of the people, and their first right, without doubt, is that of physical and political preservation. In moments of peril or of crisis, a people may and ought to do whatever it believes will conduce to its safety, without being hindered by any personal consideration, or by the fear of violating justice.”3 It was in the name of the public welfare that the excesses of the Terror were committed. The despotism of an energetic and unscrupulous minority utterly destroyed liberty. A more execrable tyranny never existed than that which was now exercised in the name of the people. Robespierre and his consorts were attempting to establish the triumph of liberty by the violation of liberty. They confounded true liberty with a false liberty, namely with the sovereignty of the people. The Rights of Man are trampled upon because the welfare of the State demands it; centralization supplants the self-direction of the individual; the tendency begun by Philip the Fair, continued by Louis XIV., is again taken up by the Mountain, only to be completed by Napoleon; paternalism encroaches more and more upon individual rights until liberty is practically destroyed. Everything is managed from one centre by the ever active and interfering bureaucracy. Everything is done for the people, in the name of the people, but nothing by the people. The people are considered children whom the government must protect and direct. It is due to the peculiar fascination of the doctrine of the sovereignty of the people, and to the confusion of democracy with liberty, that the Rights of Man were forfeited. Centralization and paternalism are the bane of the French people to this day. France presents the spectacle of a country which is democratic in principle, but which knows little of individual liberty. The celebrated Dreyfus case was a flaring confirmation of the truth of this statement. That the tendency toward centralization is responsible for many evils from which France has long been suffering and is still suffering, has been felt by many of her best men—men of the stamp of Laurent, De Tocqueville, and Laboulaye. It is only by placing the individual upon his own feet, by cultivating individual initiative and self-reliance, by refraining from an excess of legislation and administrative control, by granting to the individual a large measure of liberty and by protecting him in the enjoyment of this liberty; and finally by allowing the people to govern themselves, not only in national, but also in local affairs, that a nation can become and remain strong and great. Under these conditions only can the development of the individual citizens reach its highest stage, and this means likewise the maximum of national power and greatness. “It is in the respect of the person that one can measure the true grandeur of civilization,”1 The history of mankind is the record of the gradual enfranchisement of the individual. Experience has demonstrated the wisdom of freeing the individual from all unnecessary restraint. Freedom of thought (Lehr—und Lernfreiheit) has given the world German science. Religious freedom has not caused, but prevented, civil disturbances; has not resulted in a decline, but rather in an increase, of religious fervor, as the religious condition of the United States plainly shows. Freedom of trade has not diminished the wealth and commercial power of England. The restriction of the right of public meeting and of public speech has not diminished, but rather increased, the political power of the Social Democrats in Germany, while in the United States, where these rights are unrestricted, socialism and kindred movements are almost unknown. It is precisely those nations in which the individual enjoys the greatest freedom which are to-day in the lead. If France is lagging somewhat behind, that is due to the fact that she still clings to the paternal system. It is not Anglo-Saxon race superiority, but rather Anglo-Saxon liberty, to which the greatness of the Germanic powers is due. France can only regain her former power and glory and the station to which the wealth of her resources and the genius of her people entitle her, by forsaking her pernicious system, and returning to the spirit of the Declaration of the Rights of Man.
We have assigned two reasons for the failure of the Declaration of the Rights of Man to result in the triumph of personal liberty in France; namely, the undue emphasis put upon actual equality, and the identification of sovereignty with liberty. A third cause of this failure deserves attention. Though the Declaration contains a clause stating that every society in which a guarantee of rights and a separation of the powers of government is wanting, lacks a true constitution, yet the French people neglected to provide for such a guarantee as well as for the separation of the three departments of government. This separation is also lacking in the British constitution, and among any other people but the English, the omnipotence of Parliament might prove disastrous to personal freedom. But in England the force of custom and the respect of personal liberty are such, that they really act as restraints upon Parliament. In the American system of government it is by means of a territorial diffusion of sovereignty among the States and the national government; by means also of our system of “checks and balances”; and especially by the importance of our courts, that the sovereignty of the people is with us restrained and the individual protected in the enjoyment of his rights, not only against the infringement of these rights by other individuals, but also by the government.1 In France safeguards of this sort were, and are still, entirely lacking. Sovereignty there is concentrated; no system of courts exists to protect the individual from the government. In the administrative courts the government, not the individual, is favored. In the absence of a tribunal whose function it is to interpret and apply the doctrines of the Declaration of Rights, that function must be exercised either by the administration itself, which would result in despotism, or else the people themselves would interpret the Declaration, in which case mob rule would be the consequence. Both of these eventualities have occurred in France, both have contributed toward rendering liberty nugatory. That which still further fostered the tendency toward direct government by the mob, was the pernicious view of popular sovereignty which Rousseau inculcated. If the general will is but the sum of the individual wills; if this general will, strictly speaking, cannot be delegated, it follows that the people have a direct share in the government, that the legislators and magistrates are on the same level with the people, that the people have the right to see that their will is carried out; mob rule thus received a philosophical foundation. Hereby the respect for law and authority was still further undermined and the pernicious influence of the revolutionary spirit, which has worked such havoc in France, still further aggravated. Seeking liberty, the French people conferred sovereignty upon Napoleon, the Bourbons, Louis Philippe, Napoleon III., only to find that they had, in every case, been deluded.1 The French have yet to learn that it is not paper constitutions which form the basis of liberty, but that liberty must have its foundations in the customs of the people, and above all, in that reverence for law and order, without which liberty can never exist.
The Principles of 1789 are not yet dead in France. The influence of those ideas, which has been so wonderful in the past, is destined still to increase, not only in that country, but throughout the world. These principles are the basis of modern liberty. This liberty, the fruit of a struggle between people and their rulers which had been carried on for centuries, will not be forsaken. History shows, as Buckle points out, that there is “an intimate connexion between knowledge and liberty; between an increasing civilization and an advancing democracy.”1
Those who hold that public expediency determines the measure of individual rights, believe in a principle which no sound thinker will doubt. If the alternative were between the good of the whole State and the good of an individual, it would be foolish to deny that the good of the whole is of greater significance than that of an infinitesimally small part of the whole. But this alternative does not arise. There is at present a tendency, now that the organic conception of the State is universally accepted, to forget that the State consists of individuals and has no interest apart from theirs. Many persons who are continually speaking of public expediency forget that what we hold to be for the good of the whole may after all be only our own individual view of public expediency. It was in the interests of public expediency, falsely understood, that censorships, the inquisition, repressive measures of all sorts, were established. It was avowedly for the public good that Socrates was put to death; that the Puritans were driven from England; that the Huguenots were oppressed; that Robespierre and his consorts sent thousands to the guillotine; that the English government, during the French Revolution, adopted that wretched system of repression which brought the country to the verge of civil war. There can be no hostility between personal liberty and public expediency, rightly understood.