“Art. 17. Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.”

Private property under the ancien régime was not sacred. De Tocqueville cites the following, which may serve us for illustration of the condition: “A royal declaration was made, suspending in time of war repayment of all loans contracted by towns, villages, colleges, communities, hospitals, charitable houses, trade corporations and others, repayable out of town dues by us conceded, though the instrument securing the said loans stipulates for the payment of interest in the case of non-payment at the stipulated time. Thus not only is the obligation of repayment at the stipulated terms suspended, but the security itself is impaired.”[42] This article, seventeenth, was also reactive against the grievous and burdensome corvées, military convoys, and forced transportation of convicts.[43]

The remaining seven articles are more theoretical, covering the doctrines of liberty, equality, natural and inalienable rights, national sovereignty, the social contract and the separation of powers. The views expressed were, in the main, accepted at least in theory in the American States. France was not, however, indebted to the colonies for them; although their germinal ideas had been introduced from the teachings of foreign writers, notably from the English, they had grown up in France largely as a home product.

The doctrine of national or popular sovereignty was no new conception for the French nation. It had been appealed to by the Church to check the secular power, and by the Empire to check ecclesiastical encroachments. Thomas Aquinas, the oracle of the Church, had recognized the popular will as a limitation upon the royal power, and had commended the elective form of monarchy.[44] Marsilio of Padua, in his Defensor Pacis, was even more pronounced in favor of popular sovereignty. “The sovereignty of the State,” he said, “rests with the people; by it properly are the laws made and to it they owe their validity. From the nation itself proceeds all rights and powers, it is the authoritative lawgiver among men.”[45] In the sixteenth century the Calvinists and the League alternately made use of the theory of popular sovereignty.[46] This theory was revived in the eighteenth century and popularized by Rousseau and his disciples.

The doctrine of natural rights has not so remote an origin for France. De Tocqueville rightly pointed out the distinction between liberty, regarded as “the enjoyment of a privilege” and liberty considered as “the exercise of a universal right”; he also showed that the Romans and the feudal aristocracy figured their liberties to themselves under the former type; and that it was not till the eighteenth century that the French nation began to conceive of liberty as a natural right.[47]

This transformation of the theory of liberty from a privilege to a natural right was chiefly accomplished after 1734. Boulainvilliers, in L’Histoire de l’ancien gouvernement de la France, published (1727) in Holland after his death, asserted as its fundamental thought: “Le gouvernement féodal est le chef d’oeuvre de l’ésprit humain.” To the author, all progress of royal, civil, or municipal authority is an usurpation of the rights of the nobility, who were the only heirs of the early Franks, conquerors of the Gauls.[48] This champion of the feudal aristocracy was not answered in the name of democracy, but of privileged rights. Abbé Dubois, the secretary of the French Academy, replied in “the name of Roman Gaul, semi-municipal and semi-monarchical.” This reply, entitled, “Histoire critique de l’établissement de la monarchie française” (1734), denied the Frankish conquest and asserted that the French monarchy had succeeded in a peaceable way to the rights of the Roman Empire over the Gauls, and that the feudal system had been established by usurpation several centuries later. Public opinion and the judgment of the savants, says Martin, pronounced in favor of Dubois.[49]

Saint Pierre, d’Argenson, and Montesquieu contributed to the political literature of the century, but did not formulate a new theory of rights. The Physiocrats applied the natural law to economic problems, but not specifically to political questions; this was reserved for Rousseau. In the Genevan philosopher’s writings, natural rights and kindred democratic ideas were treated in such a popular style that they were able to revolutionize the French political theories in a generation.

A critical student cannot attribute complete originality to Rousseau; the similarity of his views to those of Locke is too striking. He borrowed from his English predecessor psychological, philosophical and political conceptions.[50] The Contrat Social (1762), however, according with the nascent political Zeit-Geist of France, found conditions favorable to the ready acceptance of its ideas. The philosophers had shaken the authority of dogma, humanitarian views were gaining prominence, men were tired of arbitrary imprisonments and of useless privileges, moreover, the long struggle between the monarch and the parlements was still unsettled, the theory of the right of parlement to refuse to record decrees was found to need a firmer basis than custom. The sympathies of even the nobles were awakened in behalf of the peasants and the curates. The Physiocrats hoped for tax reform, to be effected by a strong sovereign, though, when attempted by Turgot, it had failed. Amid such conditions the Contrat Social was being read. Its striking, stimulating apothegms furnished apt quotations. Its effect was revolutionary. Even philosophers and magistrates were not insensible to its stimulus.[51] When the nation was called to speak, on the eve of the Estates General, in pamphlets and in cahiers, the influence of Rousseau was patent. The speeches made in the National Assembly were constantly interlarded with quotations and ideas from Contrat Social.[52]

After this general introduction to the political theories of the Revolution, we are ready to examine the remaining articles of the Declaration of the Rights of Man. We shall place in parallel with these some quotations from the Contrat Social that will serve to indicate the similarity of their ideas.

“1. Men are born and remain free and equal in rights. Social distinctions may only be founded upon the general good.” “It is agreed that anything of power or property or liberty which is alienated by the social compact, is only a part of all the use of which is of importance to the community.”[53]
“2. The aim of all political associations is the preservation of the national and imprescriptible rights of man. These rights are liberty, property, security, and resistance of oppression.” “To find a form of association which shall defend and protect with the public force the person and property of each associate, and by means of which each, uniting with all, shall obey however only himself, and remain as free as before; such is the fundamental problem of which the Social Contract gives the solution.”[54]
“3. The principle [principe] of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.” “I say then that the sovereignty, being only the exercise of the general will, can never alienate itself, and that the sovereign, who is not a collective being, can be represented only by himself; power can transmit itself, but not will.”[55]
“4. Liberty consists in being able to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other member of the society the enjoyment of the same rights. These limits can only be determined by law.” “Any service that a citizen can render the State is due from him whenever the sovereign demands it; but the sovereign, for his part, cannot place any burden upon his subjects which will not be useful to the community; he can not even desire to do so, for, under the law of reason as under the law of nature, there is nothing done without a purpose.”[56]
“5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.” “When I say that the object of laws is always general, I mean that the law considers subjects in a body, and actions as abstract; a man is never considered as an individual nor an action as an individual action.”[57]
“6. Law is the expression of the general will. Every citizen has a right to participate personally or through his representatives in its formation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities and without distinction except that of their virtues and talents.” “By whatever path we return to the principle, we always reach the same conclusion; that the social compact establishes among citizens such an equality that they all engage under the same conditions, and should enjoy the same rights. Thus by the nature of the agreement, an act of sovereignty, that is, any authentic act of the general will, obliges or favors equally all citizens; so that the sovereign knows only the body of the nation and distinguishes no one of those composing it.”[58]