ies, the conception of a sphere of rights of the individual, which
was independent of the state, and by the latter was simply to be
recognized. In reality, however, the declarations of rights did nothing
else than express the existing condition of rights in definite universal
formulas.

That which the Americans already enjoyed they wished to proclaim as a
perpetual possession for themselves and for every free people. In
contrast to them the French wished to give that which they did not yet
have, namely, institutions to correspond to their universal principles.
Therein lies the most significant difference between the American and
French declarations of rights, that in the one case the institutions
preceded the recognition of rights of the individual, in the other they
followed after. Therein lay also the fatal mistake of the German
National Assembly at Frankfort which wished to determine first the
rights of the individual and then establish the state. The German state
was not yet founded, but it was already settled what this state not yet
existing dare not do and what it had to concede. The Americans could
calmly precede their plan of government with a bill of rights, because
that government and the controlling laws had already long existed.

One thing, however, has resulted from this investigation with
irrefutable certainty. The principles of 1789 are in reality the
principles of 1776.

FOOTNOTES:

[Footnote 97: Kent, _Commentaries on American Law_, 10th ed., I, p.
611.]

[Footnote 98: _Cf._ Kent, I, pp. 612 _et seq._; Stevens, _loc. cit._,
pp. 208 _et seq._ They are universally designated to-day in America as
"bills of rights". Their example undoubtedly influenced the declarations
of 1776 and those after.]

[Footnote 99: Borgeaud, p. 27, cites a treatise by John Wyse as having
had great influence in the democratizing of ideas in Massachusetts. This
man, whose name was John Wise, has done nothing else than take
Pufendorf's theories as the basis of his work, as he himself
specifically declares. _Cf._ J. Wise, _A Vindication on the Government
of New England Churches_, Boston, 1772, p. 22.]

[Footnote 100: Bancroft, IV, pp. 145, 146.]

[Footnote 101: _Cf._ John Adams, _Works_, X, Boston, 1856, p. 293.]

[Footnote 102: _Analysis of the Laws of England_, Chap. 4.]

[Footnote 103: It formed the basis of Blackstone's later
_Commentaries_.]

[Footnote 104: _Cf._ Otis, _The Rights of the British Colonies asserted