On July 9, 1789, M. Mounier, who had been charged by the Constituent Assembly with the preparation of a scheme for a constitution, presented a report in behalf of the committee, the first article of which reads: “Tout gouvernement doit avoir pour unique but le maintien des droits des hommes; d’où il suit que pour rappeller constamment le gouvernement au but proposé, la constitution doit commencer par la déclaration des droits naturels et imprescriptibles de l’homme.”[3] July 11, Lafayette proposed the form of a Declaration of Rights, containing twelve articles, and pointed out the advantages of such an instrument.[4] M. Lally Tollendal approved this project, but argued that it was dangerous to adopt any such articles separate from the Constitution; he at the same time called the attention of the Assembly to the great difference between a new-born colonial people, who were breaking with a distant government, and an old nation extending over an immense territory, one of the first nations of the world, which for eight centuries had obeyed the same dynasty and had cherished the royal power when it had been tempered by custom. This nation, he said, will idolize this power when it shall be regulated by laws.[5] M. Lally Tollendal certainly believed that they were following the American example.
July 14, Lafayette’s motion was discussed. Some thought the Declaration should be put at the head of the Constitution, in order permanently to secure the rights of man before establishing those of society; others thought it should be placed after the Constitution. It was decided at this session that the Constitution should contain a Declaration, but its position was left for later decision.[6] Siéyès read his exposition of the Rights of Man, on July 10, to the Constitutional Committee, and on July 21, to the Assembly.[7] On July 17, M. Target presented a scheme of thirty-one articles for a Declaration, and M. Mounier one of sixteen articles.[8] On July 31, M. D. Servan, advocate to the Parlement of Grenoble, presented a project of thirteen articles. August 1, a long debate occurred upon the position to be given to the Declaration in the Constitution. M. Thouret also offered a scheme for a Declaration. The debate continued. On August 4, M. Camus proposed that the Assembly make a declaration of the rights and duties of man and of a citizen; but this motion was defeated by a vote of 570 to 433.[9] However, at the same session, it was decided almost unanimously that the Constitution should be preceded by the Declaration. On August 12, Abbé Siéyès offered a project of a Declaration of forty-two articles.[9]
During discussion in the Assembly, August 1, M. Champion de Cicé, Bishop of Auxerre, opposed a declaration as useless at that time, and said that the example of North America was not conclusive, as that country only contains proprietors, cultivators, and citizens all on the same social footing. M. De la Luzerne, Bishop of Langres, also asserted that the Constitution of an empire did not need a Declaration. M. Malouet, in making strong protest against their placing the Declaration at the head of the Constitution, portrayed the contrast between the situation of France and that of America.[10] M. Delandine spoke in agreement with M. Malouet.
On August 12, two projects for a Declaration of Rights were offered to the Assembly: one of seventy-one articles, by Gonges-Carton of Quercy, and one of twenty-four articles, by the Sixth Bureau of the Assembly. On August 13, a committee of five, consisting of Desmeuniers, Bishop of Langres, M. Tronchet, Count Mirabeau and M. Rhédon, was chosen to receive the drafts of a Constitution and to recast these into one form.[11] August 14, Mirabeau, on behalf of the committee, reported a scheme of a Declaration containing nineteen articles. In speaking of the aim of the committee, he said, that from the score of plans offered them, they had sought, like the Americans, to construct a Declaration not of abstract and scientific principles, but one of political truths that would readily be comprehended by the popular mind.[12] In the debate of August 18 upon the Declaration, M. Rabaud de Saint Étienne said that the Declaration of Rights had been adopted because the cahiers had asked it, and that the cahiers had asked it because the Americans had set the example, but that this was no reason why the Declarations should be similar, for the circumstances of the two nations were different.[13]
August 19, the Assembly decided to discuss first the Declaration of the Sixth Bureau.[14] On August 21, after some debate, the Assembly adopted the preamble of the plan, somewhat modified, presented by the committee of five. M. Mounier then proposed three articles, which were adopted. August 21, on the proposal of M. Alexander de Lameth, articles four, five, and six, after discussion, were adopted.
August 21, M. de Boislander proposed a plan of seventy-four articles. August 22, after divers proposals had been made and discussed, articles seven, eight, and nine were adopted.[15] August 23, after many proposals and lengthy debate, article ten was agreed upon. August 24, a liberal discussion of the phraseology resulted in the adoption of articles eleven, twelve, and thirteen.[16] August 26, after some discussion, articles fourteen and fifteen were accepted; later in the same day, articles sixteen and seventeen were agreed upon.[17] Then the Assembly resolved that the consideration of further articles should be postponed until the Constitution should be completed.[18] October 2, the articles previously adopted were presented to the Assembly, with article four changed from “La liberté consiste à faire tout ce qui ne nuit pas à autrui,” to “La liberté consiste à pouvoir faire tout” etc. The change was accepted. The whole Constitution was presented to the king September 13, 1791, and accepted by him. In the Assembly, September 14, the king swore to obey the constitution.[19]
These are the facts of historical data relating to the formation of the Declaration of the Rights of Man purposely set forth in detail and in chronological order. What conclusions may we draw from them? The frequent reference to the American Bill of Rights, the number of Declarations proposed in cahiers and before the Assembly, differing in form and in length, but agreeing in fundamental principles, the discussions, the selections and the modifications to which this raw material was subjected in the process of constructing the Declaration finally adopted, warrant these two inferences: (1) the notion of a Declaration of Rights, separate from the Constitution proper, was suggested to the French by the American State Constitutions; (2) the contents of the articles and the language in which they were couched were original.
A study of the separate articles of the Declaration in the light of contemporary conditions gives additional reason for thinking that the ideas therein contained were not foreign to France. For convenience of consideration in the present study, the articles of the Declaration may be divided into two classes: the first class consists of those articles that were in the main reactive against certain abuses under which the French suffered; the second class comprises those articles which contained principles more especially theoretical. Less proof, perhaps, is necessary for deciding upon the originality of the former class than upon that of the latter. We shall treat these classes in the order named.
“Art. 7. No person shall be accused, arrested or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed any arbitrary order shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense.
“Art. 8. The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law, passed and promulgated before the commission of the offence.