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 constitution.[6] 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 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.
FOOTNOTES:
[1] First of all, as is well known, Burke and Bentham, and later Taine, Les origines de la France contemporaine: La révolution, I, pp. 273 et seq.; Oncken, Das Zeitalter der Revolution, des Kaiserreiches und der Befreiungskriege, I, pp. 229 et seq.; and Weiss, Geschichte der französischen Revolution, 1888, I, p. 263.
[2] Titre premier: "Dispositions fondamentales garanties par la constitution."
[3] Hélie, Les constitutions de la France, pp. 1103 et seq.
[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.
[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.