vidual.a And under the influence of the French declaration there have been introduced into almost all of the constitutions of the other Continental states similar enumerations of rights, whose separate phrases and formulas, however, are more or less adapted to the particular conditions of their respective states, and therefore frequently exhibit wide differences in content. one is miss.j)

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In Germany most of the constitutions of the period prior to 1848 contained a section upon the rights of subjects, and in the year 1848 the National Constitutional Convention at Frankfort adopted the fundamental rights of the German people", which were published on December 27, 1848, as Federal law. In spite of a resolution of the Bund of August 23, 1851, declaring these rights null and void, they are of lasting importance, because many of their specifications are to-day incorporated almost word for word in the existing Federal law. These enumerations of rights appear in greater numbers in

4 Cf. Jellinek, System der subjektiven öffentlichen Rechte, p. 3, n. 1.

5 Binding, Der Versuch der Reichsgründung durch die Paulskirche, Leipzig, 1892, p. 23.

the European constitutions of the period after 1848. Thus, first of all, in the Prussian constitution of January 31, 1850, and in Austria's Fundamental Law of the State" of December 21, 1867, on the general rights of the state's citizens. And more recently they have been incorporated in the constitutions of the new states in the Balkan peninsula.

A noteworthy exception to this are the constitutions of the North German Confederation of July 26, 1867, and of the German Empire of April 16, 1871, which lack entirely any paragraph on fundamental rights. The constitution of the Empire, however, could the better dispense with such a declaration as it was already contained in most of the constitutions of the individual states, and, as above stated, a series of Federal laws has enacted the most important principles of the Frankfort fundamental rights. Besides, with the provisions of the Federal constitution as to amendments, it was not necessary to make any special place for them in that instrument, as the Reichstag, to whose especial care the guardianship of the fundamental rights must be entrusted, has no difficult forms to observe in amending the constitu

tion."

As a matter of fact the public rights of the individual are much greater in the German Empire than in most of the states where the fundamental rights are specifically set forth in the constitution. This may be seen, for example, by a glance at the legislation and the judicial and administrative practice in Austria.

But whatever may be one's opinion to-day upon the formulation of abstract principles, which only become vitalized through the process of detailed legislation, as affecting the legal position of the individual in the state, the fact that the recognition of such principles is historically bound up with that first declaration of rights makes it an important task of constitutional history to ascertain the origin of the French Declaration of Rights of 1789. The achievement of this task is of great importance both in explaining the development of the modern state and in understanding the position which this state assures to the individual.

Thus

6 When considering the constitution, the Reichstag rejected all proposals which aimed to introduce fundamental rights. Cf. Bezold, Materialen der deutschen Reichsverfassung, III, pp. 896-1010.

far in the works on public law various precursors of the declaration of the Constituent Assembly, from Magna Charta to the American Declaration of Independence, have been enumerated and arranged in regular sequence, yet any thorough investigation of the sources from which the French drew is not to be found.

It is the prevailing opinion that the teachings of the Contrat Social gave the impulse to the Declaration, and that its prototype was the Declaration of Independence of the thirteen United States of North America. Let us first of all inquire into the correctness of these assumptions.

CHAPTER II.

ROUSSEAU'S CONTRAT SOCIAL WAS NOT THE SOURCE OF THIS DECLARATION.

a

IN his History of Political Science-the most comprehensive work of that kind which France possesses Paul Janet, after thorough presentation of the Contrat Social, discusses the influence which this work of Rousseau's exercised upon the Revolution. The idea of the declaration of rights is to be traced back to Rousseau's teachings. What else is the declaration itself than the formulation of the state contract according to Rousseau's ideas? And what are the several rights but the stipulations and specifications of that contract ? 1

1 Est-il nécessaire de prouver, qu'un tel acte ne vient point de Montesquieu, mais de J.-J. Rousseau?... Mais l'acte même de la déclaration est-il autre chose que le contrat passé entre tous les membres de la communauté, selon les