ern 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 in 1849 and attempted prematurely to form a united empire drew up a similar declaration of fundamental rights. The constitutions of many civilized nations now contain similar declarations.

These declarations of the Rights of Man mark a new

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

of human nature, these possessing in each individual a different content, which is a psycho-physiological principle; and equality before the law, which alone is a 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 supe

rior 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.

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 Savigny, Beruf unserer Zeit für Gesetzgebung u. Rechtswissenschaft.

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