The Declaration of the Rights of Man and of Citizens by Georg Jellinek

Author:Georg Jellinek [Jellinek, Georg]
Language: eng
Format: epub
ISBN: 9781530685899
Google: jIK2DQEACAAJ
Amazon: B08R3ZNH5R
Barnesnoble: B08R3ZNH5R
Goodreads: 56364204
Publisher: Alpha Edition
Published: 2016-06-30T08:03:14+00:00

FOOTNOTES:

[46] It harks back finally to the old definition of Florentinus L. 4 D. 1, 5: "Libertas est naturalis facultas eius, quod cuique facere libet, nisi si quid vi aut jure prohibetur."

[47] Arch. parl. VIII, p. 222.

[48] Ibid., pp. 438 and 453.

[49] Bancroft, VII, p. 243.

[50] Cf. Blackstone, Commentaries on the Laws of England, I, 1, p. 127. (Edited by Kerr, London, 1887, I, p. 115.)

[51] Upon this point, cf. Cooley, Constitutional Limitations, 6th edition, Boston, 1890, Chap. VII. Even if the stipulation contained in the bills of rights that one can be deprived of his property only "by the law of the land" should not be embodied in the constitution by a state, a law transgressing it would be void by virtue of the fundamental limitations upon the competence of the legislatures. Loc. cit., p. 208.

[52] The right to address petitions to the king (5), and the right of Protestant subjects to carry arms for their own defense suitable to their condition (7).

[53] "And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties."

[54] The old English charters put forward as possessors of the "jura et libertates" now the "homines in regno nostro", now the regnum itself. The Petition of Right speaks of the "rights and liberties" of the subjects, but they are also characterized as "the laws and free customs of this realm".

[55] Year Books XIX, Gneist, Englische Verfassungsgeschichte, p. 450.

[56] "By which the statutes before-mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom." Gardiner, The Constitutional Documents of the Puritan Revolution, 1889, pp. 1, 2.

[57] "And whereas the laws of England are the birthright of the people thereof." Act of Settlement IV, Stubbs, Select Charters, 7th ed., 1890, p. 531. Birthright = right by birth, the rights, privileges or possessions to which one is entitled by birth; inheritance, patrimony (specifically used of the special rights of the first-born). Murray, A New English Dictionary on Historical Principles, s. h. v.

[58] Cf. the instructive work of Dicey, Introduction to the Study of the Law of the Constitution, 3d ed., 1889, pp. 171 et seq.

[59] "Sie sind objectives, nicht subjectives Recht." Dicey, pp. 184 et seq., 193 et seq., 223 et seq., etc. Dicey treats the whole doctrine of the rights of liberty in the section "The Rule of Law." Individual liberty according to him is in England simply the correlative of only permitting the restriction of the individual through laws.

[60] This is treated in the chapter "Of the Extent of the Legislative Power," On Civil Government, XI.

[61] Cf. On Civil Government, XI, § 142.

[62] Political liberty is no other than national liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public. Loc. cit., p. 125 (113).

[63] Loc. cit., pp. 141 et seq. (127 et seq.).

[64] Cf. loc. cit., pp. 127 (114), 144 (130).

[65] L. 32 D. de R.J. Exactly so the kindred doctrines of the Stoics earlier in Greece had not the least legal success.

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