CHAPTER III. THE BILLS OF RIGHTS OF THE
INDIVIDUAL STATES OF THE NORTH
AMERICAN UNION WERE ITS MODELS.
THE conception of a declaration of rights had found expression in France even before the
assembling of the States General. It had already appeared in a number of cahiers. The
cahier of the Bailliage of Nemours is well worth noting, as it contained a chapter entitled
"On the Necessity of a Declaration of the Rights of Man and of Citizens",1 and sketched a
plan of such a declaration with thirty articles. Among other plans that in the cahier des
tiers état of the city of Paris has some interest.2
In the National Assembly, however, it was Lafayette who on July 11, 1789, made the
motion to enact a declaration of rights in connection with the constitution, and he
therewith laid before the assembly a plan of such a declaration.3
It is the prevailing opinion that Lafayette was inspired to make this motion by the North
American Declaration of Independence.4 And this instrument is further declared to have
been the model that the Constituent Assembly had in mind in framing its declaration. The
sharp, pointed style and the practical character of the American document are cited by
many as in praiseworthy contrast to the confusing verbosity and dogmatic theory of the
French Declaration.5 Others bring forward, as a more fitting object of comparison, the
first amendments to the constitution of the United States,6 and even imagine that the latter
exerted some influence upon the French Declaration, in spite of the fact that they did not
come into existence until after August 26, 1789. This error has arisen from the French
Declaration of 1789 having been embodied word for word in the Constitution of
September 3, 1791, and so to one not familiar with French constitutional history, and
before whom only the texts of the constitutions themselves are lying, it seems to bear a
later date.
By practically all those, however, who look further back than the French Declaration it is
asserted that the Declaration of Independence of the United States on July 4, 1776,
contains the first exposition of a series of rights of man.7
Yet the American Declaration of Independence contains only a single paragraph that
resembles a declaration of rights. It reads as follows:
"We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness; That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the governed; That
whenever any Form of Government becomes destructive of these ends, it is the Right of
the People to alter or to abolish it, and to institute new Government, laying its foundation
on such principles and organizing its powers in such form, as to them shall seem most
likely to effect their Safety and Happiness."
This sentence is so general in its content that it is difficult to read into it, or deduct from
it, a whole system of rights. It is therefore, at the very start, improbable that it served as
the model for the French Declaration.
This conjecture becomes a certainty through Lafayette's own statement. In a place in his
Memoirs, that has as yet been completely overlooked, Lafayette mentions the model that
he had in mind when making his motion in the Constituent Assembly.8 He very
pertinently points out that the Congress of the newly formed Confederation of North
American free states was then in no position to set up, for the separate colonies, which
had already become sovereign states, rules of right which would have binding force. He
brings out the fact that in the Declaration of Independence there are asserted only the
principles of the sovereignty of the people and the right to change the form of
government. Other rights are included solely by implication from the enumeration of the
violations of right, which justified the separation from the mother country.
The constitutions of the separate states, however, were preceded by declarations of rights,
which were binding upon the people's representatives. The first state to set forth a
declaration of rights properly so called was Virginia.9
The declarations of Virginia and of the other individual American states were the sources
of Lafayette's proposition. They influenced not only Lafayette, but all who sought to
bring about a declaration of rights. Even the above-mentioned cahiers were affected by
them.
The new constitutions of the separate American states were well known at that time in
France. As early as 1778 a French translation of them, dedicated to Franklin, had
appeared in Switzerland.10 Another was published in 1783 at Benjamin Franklin's own
instigation.11 Their influence upon the constitutional legislation of the French Revolution
is by no means sufficiently recognized. In Europe until quite recently only the Federal
constitution was known, not the constitutions of the individual states, which are assuming
a very prominent place in modern constitutional history. This must be evident from the
fact, which is even yet unrecognized by some distinguished historians and teachers of
public law, that the individual American states had the first written constitutions. In
England and France the importance of the American state constitutions has begun to be
appreciated,12 but in Germany they have remained as yet almost unnoticed. For a long
time, to be sure, the text of the older constitutions in their entirety were only with
difficulty accessible in Europe. But through the edition, prepared by order of the United
States Senate,13 containing all the American constitutions since the very earliest period,
one is now in a position to become acquainted with these exceptionally important
documents.
The French Declaration of Rights is for the most part copied from the American
declarations or "bills of rights".14 All drafts of the French Declaration, from those of the
cahiers to the twenty-one proposals before the National Assembly, vary more or less
from the original, either in conciseness or in breadth, in cleverness or in awkwardness of
expression. But so far as substantial additions are concerned they present only doctrinaire
statements of a purely theoretical nature or elaborations, which belong to the realm of
political metaphysics. To enter upon them here is unnecessary. Let us confine ourselves
to the completed work, the Declaration as it was finally determined after long debate in
the sessions from the twentieth to the twenty-sixth of August.
reference:
Georg Jellinek, The Declaration of the Rights of Man
and of Citizens: A Contribution to Modern Constitutional
History (1895)