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The evolution of modern liberty. Scherger, George Lawrence, 1874– 
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THE
EVOLUTION OF MODERN LIBERTY

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THE EVOLUTION OF MODERN LIBERTY

BY

GEORGE L. SCHERGER, PH.D.
Professor of History, Armour Institute of Technology

LONGMANS, GREEN, AND CO.
91 AND 93 FIFTH AVENUE, NEW YORK
LONDON AND BOMBAY
1904

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Copyright, 1903,
BY
LONGMANS, GREEN, & CO.

All rights reserved

ROBERT DRUMMOND, PRINTER, NEW YORK.

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TO
Frank Wakeley Gunsaulus, D.D.,
PRESIDENT OF THE ARMOUR INSTITUTE OF TECHNOLOGY,
THIS VOLUME 1S RESPECTFULLY DEDICATED

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PREFACE

THE study of political theories seems to be attracting considerable attention at present, a number of able writers, such as Dunning, Willoughby, Merriam, Osgood, and others having recently made contributions to this branch of research. Political theories are not only of theoretical interest, but have at times greatly influenced historical development. This is true in marked degree of those ideas whose genesis is traced in the following pages. They have been put forward repeatedly as a protest against oppression and arbitrary power. Their greatest influence, however, has made itself felt since the American Revolution. They have in large measure contributed to make our American political institutions what they are to-day. They are often spoken of as American principles. Though they did not originate inr this country, they were here for the first time incorporated in the political programme of a great nation, and have been more completely realized here than in any other country.

The following dissertation was begun at the suggestion of Professor Max Lenz of the University of Berlin. It was originally my intention to limit my study to a consideration of the relation between the principles of the French Revolution as expressed in the Declaration of the Rights of Man and of the Citizen, and the principles of the American Revolution, as expressed in the

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State papers of that time, especially in the Bills of Rights of the individual States. The recent monograph of Professor Jellinek of Heidelberg, entitled Die Erklärung der Menschen- und Bürgerrechte, translated into English by Professor Farrand, does not seem to me to be entirely satisfactory. Jellinek conveys the impression that the French Declaration of the Rights of Man is a literal transcription of clauses contained in the Bills of Rights of the American States. He fails to show how the French people became acquainted with the principles contained in the American Bills of Rights. He does not consider the discussions that took place in the Constituent Assembly on the Declaration of the Rights of Man. The very fact that these discussions lasted longer than a month and that more than a score of drafts were considered, proves, it seems to me, that a literal transcription of the Bills of Rights is out of the question. In tracing the genesis of the American Bills of Rights, Jellinek overrates the influence of the struggle for religious toleration and undervalues the influence of the theory of Natural Law.

Though differing from Professor Jellinek on many points, I do not agree with the view taken by E. Boutmy of the French Institute, who fiercely attacks Jellinek in an article to be found in the Annales des Sciences Politiques of the 15th of July, 1902, in which he argues against any American influence whatever, attributing the origin of the Declaration to Rousseau's influence, and considering that document to be an exclusively French production. Though acknowledging the fact that the people of France, yes, of all the civilized countries of Europe, were well acquainted with the political principles in question before the American Revolution occurred, it seems to me that the American people first

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proclaimed them in the form of a Declaration of Rights. The idea of a Declaration of the Rights of Man is specifically American. There is no trace of such an idea in Rousseau or any other French writer. Indeed, though the political theories the Declaration of the Rights of Man announces are to be found in Rousseau's writings, the idea of drawing up a declaration of individual rights with which the State shall not interfere, is hostile to the entire course of Rousseau's reasoning. The members of the Constituent Assembly in discussing the principles of the Declaration constantly speak of American precedent and refer to the idea of such a declaration as coming from the New World. It was because the well-known theories of the liberal writers seemed to have been triumphantly carried out in America, that the influence of the American Revolution upon Europe was so great. The identical principles embodied in a political programme or declaration according to the manner of the Americans are prefixed to the first French constitution. They were now scattered broadcast throughout Europe, and have contributed more than anything else to the transformation of society and of government along the lines of democracy and individual liberty.

It has been my purpose to trace the genesis and development of the political theories embodied in the Bills of Rights and in the French Declaration of the Rights of Man, and to show that these documents are the results of a long development. I have confined myself to an historical treatment of the subject. For critical discussions I refer to Ritchie, Natural Rights; Willoughby, The Nature of the State; Lyman Abbott, The Rights of Man; Tiedemann, The Unwritten Constitution of the United States; Blum, La Déclaration des

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Droits de l'Homme et du Citoyen, and to Bertrand's book on the same subject.

Thanks are due to Professor Max Lenz of the University of Berlin; to Professors J. W. Jenks and G. L. Burr of Cornell University; to Professor H. Morse Stephens of California University; and to President F. W. Gunsaulus of the Armour Institute of Technology, for suggestions and assistance in the preparation of this monograph.

September, 1903.

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CONTENTS

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THE
EVOLUTION OF MODERN LIBERTY

INTRODUCTION

ONE of the most characteristic features of modern systems of government is the importance attached to individual liberty.

It is a fascinating as well as an important undertaking to trace the gradual evolution of modern liberty.

In the despotisms of the Orient personal liberty was entirely unknown, the life, actions, and property of the individual being completely at the mercy of the ruler.

The Greeks were familiar with the idea of liberty, they confounded liberty with popular sovereignty. They possessed political liberty, but lacked personal freeom in the modern sense. In the Greek city-republics the citizens (excluding of course the slaves, who had no legal rights of any sort) made the laws, decided upon peace or war, elected magistrates, served as judges, and performed the duties resting upon them as partakers of the sovereignty of the State. But there was no sphere of life to which the interference of the government might not be extended. The despotism of the State prevented the growth of private rights. The Greek was primarily a citizen. He existed for the

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State, not the State for him. The family life, the religion, the property, the time, yes, all actions of the individual, were under the control of the State. The Greek State ostracized Aristides and put Socrates to death.

To the Roman jurists we owe the distinction between public and private rights. " Public Right," they said, " serves the Roman State, Private Right, the interests of individuals." 1

But among the Romans as among the Greeks we notice the same despotism of the State, the same confusion of sovereignty with liberty, which left the individual at the mercy of the State. The Roman citizen could not choose his own religion, as the persecution of the Christians shows. His speech, dress, manners, and actions were regulated by the censors. 2

The feudal system of the Middle Ages obliterated the distinction between public and private rights by associating the possession of property with the exercise of sovereignty. Government was regarded, not as a public trust, but as private property. The possession of land carried with it jurisdiction over those dwelling upon the land. Each baron was lord over his domain. The State no longer existed. There were now only rights and duties between lord and vassal, which were based upon contract and were founded upon personal, not political, relations.

In modern times the distinction between private and public rights has again been emphasized. The results

1 Justinian, Institutes, I. 1, 4.

2 See Laurent, Études sur l'histoire de l'humanité, t. III (Rome), pp. 265 et seq.; Laboulaye, L'État et ses limites, pp. 7-17; Benjamin Constant, De la Liberté des anciens cornparée a celle des modernes (Cours de politique constit., t. II).

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of this separation have been beneficial to both. While public rights and duties have become more majestic and authoritative on the one hand, private rights and duties on the other have become more sharply defined, and have been more widely extended and more effectively secured.

It is of great importance that the citizens of any State have a wide degree of individual liberty and that they be secure against an infringement of their liberties, not only on the part of other individuals, but also of the government. The degree of liberty and security a people enjoy will profoundly influence their progress. While degradation has been the rule in despotisms, the strongest and most progressive States have been those in which the sphere of individual liberty was large. The progress of the State is the progress of the individuals who are its members. The State lives in its citizens. Paternalism and arbitrary infringement of private rights weaken the State, because they paralyze the initiative and self-reliance of the individual. There is no more instructive example of this truth than the collapse of the Prussian State in 1806-1807.

The desire of personal freedom which is so characteristic of modern times is the product of two factors mainly; namely, of Christianity and of the nature of the modern, as distinguished from the ancient, State. While the religions of the ancient world were State religions, Christianity is the world religion. It appeals to the individual as a man, not as the member of a particular State or people. The Christian religion has no necessary relation to the State. The God of the Christian is no national deity. From the beginning the Christian religion spread to all parts of the world and found adherents among all peoples. Furthermore, Christianity

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enjoins that God must be obeyed rather than man. This implies that in case the State should command what is contrary to the law of God, the individual must resist. We thus have the individual rising up against the State; in exercising his religion he feels himself primarily a man, not a citizen. Here a sphere exists within which interference from any external source whatever is not tolerated. History shows in many examples how the attempt to control the consciences of men brought them into conflict with governments and made them conscious of the fact that they were, first of all, men, not citizens.

Then, also, the relation of the individual to the government is necessarily entirely different in the modern State--which comprises a large territory, often with many millions of inhabitants--from what it was in the ancient city-state. In the latter a greater unity was possible and consequently the control of the community over the individual was greater. The immediate control of the State over its citizens is likely to diminish as the extent of territory increases. Since it is impossible in a large State that the people exercise their sovereign power directly in a popular assembly, as they did in the city-state of antiquity, the powers of government must be delegated to one or a few persons who represent the State. This makes the distinction between the government and the people more evident. It is easier for the citizen of a very large State, especially of a monarchy, to become aware of his individuality and set himself over against the State, than was the case in the ancient city-state where each citizen had a share in the government, and where the distinction between individual and State was less manifest. England led the way for all other countries of modern

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times in establishing and protecting the liberty of the individual. Magna Charta, the Habeas Corpus Act, and the Bill of Rights are classic examples of declarations of popular rights.

The rights enumerated in these documents are the rights to which Englishmen are entitled as English subjects. The people of the American colonies, Massachusetts and Virginia taking the lead, drew up declarations of certain rights to which they claimed to be entitled as men. These declarations were prefixed to the state constitutions under the name of Bills of Rights. While the political principles these bills contain 'were not entirely new and did not even originate on American soil, the idea of embodying them in a political programme (an idea of incalculable consequences, since it was in this form those principles exerted their greatest influence) was a distinctively American notion.

This idea was adopted by the French people during their great Revolution. The famous Declaration of the Rights of Man, drawn up by the Constituent Assembly in 1789 and prefixed to the Constitution of 1791, was in its consequences one of the most important instruments ever written. But it was written in conscious imitation of the Bills of Rights of the American States. The so-called principles of 1789 were, as it is one of the aims of this treatise to show, identical with the principles of the American Revolution.

In Germany the Parliament of Frankfort which met bin 1849 and attempted prematurely to form a united empire drew up a similar declaration of fundamental rights. The constitutions of many civilized nations how contain similar declarations.

These declarations of the Rights of Man mark a new

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era in the history of mankind. The humanitarian spirit underlies them--the conception that each individual citizen is entitled to the concern of the State; that his personality is of infinite worth and is a purpose of creation; that he should be recognized as an individual, as a man. The principles they contain became the creed of Liberalism. The nineteenth century was preeminently the century of Liberalism. Perhaps no other century witnessed greater and more numerous reforms and a greater extension of individual liberty. This century is marked by the abolition of slavery in all civilized countries, by the extension of the elective franchise, by the emancipation of woman, by the popularization of governments, and by countless other reforms.

Great as has been the influence of the declaration of the Rights of Man, this declaration must be regarded only as a factor of historical significance. The permanent value of such a declaration may be questioned. The rights known as Rights of Man are everywhere limited in actual practice and could not be carried out to their full extent without causing the subversion of the State. Thus many of the excesses of the French Revolution arose from attempts to realize an equality that will forever remain a dream. Men are not free and equal. Absolute freedom implies the absence of any restraint whatsoever and would destroy the foundation of the State and of Law. Law in its very nature implies compulsion. Equality pushed to its logical conclusion along economic lines would lead to communism. In every State there must be the distinction between the governing and the governed. The only equality among men is, that before God, which is a religious principle; an equality of the formal outlines

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of human nature, these possessing in each individual different content, which is a psycho-physiological rinciple; and equality before the law, which alone is political principle. The right to life may be forfeited by criminal action, or the State may at need demand the sacrifice of life, as in time of war. The right of property may be abridged by the State. Freedom of speech, as the Duke of Wellington said, is a good thing except on board a man-of-war. None of the so-called Rights of Man are absolute rights. Public expediency may and does demand their restriction. The good of the State must ever go before that of the individual. The State alone can determine what rights its members shall enjoy. It knows them not as men, but as citizens. It cannot allow its citizens to appeal to inalienable natural rights, for in that case the individual, not the State, would be recognized as sovereign.

The Declaration of the Rights of Man was generated by the theories of Natural Law and of the sovereignty of the people. In order to understand its genesis the development of each of these theories must be traced.

The theory of Natural Law is one of the oldest conceptions in the history of human thought. For many centuries it held almost undisputed sway over the minds of men. It has been one of the most important conceptions ever entertained. In our own time Natural Law has fallen into disregard, partly because of the predominence of the historical method of scientific research and the distrust of philosophic speculation, partly because of the exaggeration of its own claims. It was Grotius, the founder of Natural Law in its modern sense, who first committed the mistake of regarding its principles as equally binding with, if not superior

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to, the positive laws of the State. 1 Positive law it is not and cannot be. The State cannot permit its subjects to appeal to laws which it has not itself issued.

The writers on Natural Law overlooked the fact that ideal laws are very different from laws which are actually enforced by the government. There is a great difference between rights which individuals should, in their own judgment, possess, and those which they actually do possess. It was an error, also, to believe that an ideal code of laws could be framed applicable to all peoples at all times--laws founded in reason alone. To have pointed out the fallacy of this conception so predominent during the eighteenth century; is the merit of the German Historical School of Jurisprudence.

In 1814 Thibaut, a Heidelberg professor, wrote a pamphlet addressed to the governments and people of Germany, in which he urged that a general civil code be drawn up for all Germany, thereby delivering the people from a multitude of foreign, mostly Roman, laws. He thought that civil laws were, as a whole, founded in the human heart and in reason and would seldom vary with circumstances. 2

The famous Karl Fried. v. Savigny, professor at Berlin and head of the German Historical School, replied to Thibaut's pamphlet by his essay On the Vocation of Our Age for Legislation, in which he maintained that the age was not prepared for the codification of existing laws, inasmuch as jurists lacked the literary ability and the historical and systematic understanding necessary for such work. He thought

1 Stahl, Philosophie des Rechts, II. 2d ed., p. 186.

2 Thibaut, Über die Notwendigkeit eines allg. bürgerlichen Rechts für Deutschland, Heidelberg, 1814.

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there was progress in the improvement of laws observable, and that it would therefore be possible to deprive future generations of great benefits by fixing present evils. Though not pronouncing absolutely against codification, Savigny's arguments were not favorable to an undertaking of the kind. The great merit of his essay is to have shown that laws are not evolved from reason, but are a part of, and an outgrowth from, the entire life of a people and the development of its character. As the language of a people, especially in early times, is the necessary product of the spirit of that people, so the laws are evolved from the character of the people according to the daily necessities of life and the popular convictions of right. In more advanced times jurists and law-givers may develop laws, but only in accordance with the national and historical development. They may cause germs already present to grow, but they cannot arbitrarily supply new content. The present is indissolubly linked with the past, from which it develops organically. 1

Savigny established the predominence of the Historical School, which holds that there is no separate or isolated existence, but that every particular individuality is a member of a higher entity from which it develops. Though Montesquieu in many respects had anticipated Savigny, the latter took a much deeper view of the subject and secured almost general acceptance of his views. Montesquieu's influence was overshadowed by that of Rousseau. Savigny, however, put forth his views at a very favorable moment; namely, at a time when the magnificent work of Niebuhr had given new dignity to the study of history, when

1 Savigny, Beruf unserer Zeit für Gesetzgebung u. Rechtswissenschaft.

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Wolf applied historical criticism to the study of philology, at a time also when the stirring uprising against Napoleon and French domination had reawakened the self-consciousness of the European nations and had given them a new interest in the traditions of their past.

What Savigny and others accomplished in Germany was done for the English-speaking world by the Analytic School of Jurisprudence, whose chief representatives are Bentham and Austin. These jurists returned to the system of Hobbes, maintaining that sovereignty is unlimited, and bringing the theory of natural rights into discredit. Until quite recently Austin's views were scarcely questioned and his influence in England and America has been hardly short of the marvellous.

The theory of Natural Rights, which was such a potent factor in bringing about modern liberty, lost its hold upon the minds of men just at the time it had won its greatest triumphs. We are living in an age of democracy, but we are experiencing that democracy and liberty are not synonymous terms and that Demos may become a greater despot than any individual ruler. Demos seems to be rapidly becoming the Leviathan which is swallowing up all power. The liberty of the individual is being more and more restrained. Governmental interference is on the increase. The frequency with which injunctions are issued is becoming a most dangerous menace to individual liberty. The great aggregation of wealth in the hands of a few individuals has made these great capitalists masters over the destinies of millions, who are dependent upon them to a larger degree than the subjects of any despot are upon their ruler. We have discarded many of the principles which were once supposed to form the

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very corner-stone of our republic. We have violated the principle that government is based upon the consent of the governed by subjugating the Philippines. We have inflicted greater sufferings upon the Filipinos than England was inflicting upon the colonists when they threw off the hated yoke. Again, the heroic struggle of the Boers for liberty awakened far less interest among the nations than did the revolt of the American colonists or the partitions of Poland over a century ago. Power and wealth, rather than liberty, has become the ideal of the nations, the United States among the rest.

The theory of Natural Rights is an exploded theory, no longer believed in by any scholar of note. There can, however, be no doubt concerning the fact that this conception, considering the consequences it has had upon historical development, has been one of the most important notions in the history of human thought. The world would have been very different but for the influence of this idea. The following are some of the most important of its consequences:

1. Its influence upon Roman Law was very marked. The Roman jurists regarded Natural Law as a model system of perfect laws founded in Reason, to which positive laws should as far as possible be made to conform. Natural Law was thus conducive in rendering Roman Law more just, simple, and universal than it would otherwise have been, and was one of the chief reasons for the excellence of Roman Law. 1 "The historical significance of Roman Law consists above all in the fact that it developed the abstract conception of subjective law, that is, of the general and equal right of the individual in private law. Therein lies what is

1 Maine, Ancient Law, pp. 76, 77.

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called the universal character of Roman Law. This does not mean that Roman Law is the eternal and absolute law for all peoples and ages, or even that a single one of the modern nations can rest satisfied with it, but that an essential and general element of law, which must exist in every system and must in a sense form its foundation, is therein developed in a manner and perfection that it contains the theoretical and practically applicable model for all times and nations." 1

The French lawyers, too, were ardent students of Natural Law. They regarded it as the panacea for the multitudinous and conflicting laws of their own country, varying as they did with each province and municipality. 2

The doctrine of Natural Law also influenced the legislation of Frederick the Great and the formation of the Prussian Landrecht, 3 as well as that of the Austrian Civil Code. The latter authorizes judges in cases where positive laws are inapplicable, to decide according to the "natural principles of law." Likewise, the commissioners who prepared a code for India, recommend that in cases not foreseen by law the judges decide "in the manner they deem most consistent with the principles of justice, equity, and good conscience." 4

2. Natural law more than any other factor was operative in destroying the exclusive spirit which the Romans possessed and in generating the conception of a society of all human beings (societas hominum). 5 It is only after Stoic philosophy was introduced into

1 Bruns, in Holtzendorff, Encycl. d. Rechtswiss., p. 81.

2 Maine, Ancient Law.

3 Trendelenburg, Naturrecht, p. 3.

4 Holland, Jurisprudence, p. 35.

5 Voigt, Die Lehre vom Jus Naturale der Römer, I.

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Rome, and the Romans adopted the Stoic conceptions of Natural Law and the equality of men, that the i change from exclusiveness to cosmopolitanism took place--change which was of immense influence on subsequent history. This helped to enable the Romans to form that wonderful system of world-empire which was never paralleled except by the English system of our own time. Greeks and Persians regarded conquered peoples as inferior barbarians. " The importance and mission of Rome," says Jhering, "from the standpoint of universal history, expressed in a word, is the victory of the idea of universality over the principle of nationality." 1 The Roman idea of universal empire dominated the entire history of the Middle Ages in Church and State.

3. Modern international law was by its founder, Grotius, built upon the principles of Natural Law, which are founded in reason and conscience. 2

4. Natural Law has exerted great influence on private law, not only in systematizing it, but also in developing its content, because it concerned itself with the individual and the necessities of his nature. In opposition to the force of custom it ever emphasized the truths of justice, equity, and morals. 3

5. The principles of Natural Law have exerted their greatest and crowning effect since the last quarter of the eighteenth century. They have transformed the structure of society and of the State by emphasizing the importance of individual liberty. The democratic spirit, which distinguishes the present era, is in no small

1 Geist d. röm. Rechts,I. 1.

2 Franck, Réformateurs et publicistes, 17ième siècle, 320; Bryce, Studies in History and Jurisprudence, 1901, Vol. II. pp. 167-69.

3 Bryce, op. cit., I. pp. 164-67.

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degree the consequence of these principles.. The Declaration of the Rights of Man, which is their classical expression, became the gospel of the masses. Goethe beautifully expresses in his Hermann u. Dorothea the feeling with which these ideas were received by the downtrodden classes of Europe:

"Denn wer laugnet es wohl, dass hoch sich das Herz ihm erhoben, Ihm die freiere Brust mit edleren Pulsen geschlagen, Als sich der erste Glanz der neuen Sonne heranhob, Als man hörte vom Rechte der Menschen das Allen gemein ei, Von der begeisternden Freiheit und der löblichen Gleichheit! Damals hoffte jeder sich selbst zu genuegen; es schien sich Aufzulösen das Band, das viele Länder umstrickte, Das der Müssiggang und der Eigennutz in der Hand hielt."

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