Gilbert Chinard

When Thomas Jefferson arrived in Philadelphia and took lodgings with "Ben Randolph" on Chestnut Street, he was only thirty-three years old, "the youngest member of Congress but one." But he was already known as the author of the "Summary View of the Rights of British America", he was bringing with him Virginia's answer to Lord North's "Conciliatory Proposition," and he had been appointed to succeed as delegate the former President of Congress. Most of all he had behind him, not only the first colony in population, but also, to a large extent, all the Southern colonies, which were bound to follow the course of Virginia.

Unassuming and straightforward, he was at once welcomed with open arms by the New England leaders, and years later John Adams still remembered the first impression he made upon him:

Mr. Jefferson came into Congress in June 1775, and brought with him a reputation for literature, science and a happy talent of composition.... Though a silent member in Congress, he was so prompt, frank, explicit and decisive upon committees and in conversation—not even Samuel Adams was more so—that he soon seized upon my heart.

Five days later, he was placed on the committee appointed to draw up a "Declaration of the Causes of Taking Up Arms." Through deference for the authority of Dickinson, leader of the conservative party, he withdrew a draft he had prepared and in the final text he claimed as his only the last four paragraphs. But these last paragraphs contained some of the sharply coined sentences that impress themselves on the mind, the final expression of so many ideas ever since repeated in political speeches whenever an attempt is made to define America's ideal policies. To a certain extent Jefferson, as well as most of his contemporaries, may have been influenced by Thomas Paine, whose "Common Sense", a pamphlet addressed to the inhabitants of America, had taken the city by fire. For the first time the colonists had been told that "the cause of America is in a great measure the cause of all Mankind. Many circumstances, have and will arise, which are not local, but universal, and through which the Principles of all lovers of mankind are affected and in the event of which this affection is interested." It also contained a rather vague plan for a confederation, a "Continental charter", but Paine's pamphlet was essentially an eloquent appeal to elemental feelings; it exalted the cause of the colonists calling on them as the last defenders of oppressed liberty; it had all the fire and passion of an evangelical message:

O ye that love mankind! Ye that dare oppose not only the tyranny, but the tyrant, stand forth. Every spot of the old world is over-run with oppression. Freedom hath been hunted around the globe. Asia and Africa have long expelled her.—Europe regards her like a stranger; and England hath given her warning to depart. O receive the fugitive, and prepare in time an asylum for mankind!

But greatly as he admired Paine's eloquence, Jefferson did not try to emulate it; impassioned as it was, his appeal to the inhabitants of the British colonies sounded more like the summing-up of a lawyer before the jury than an emotional sermon.

Our cause is just. Our union is perfect—our internal resources are great.... We fight not for glory or for conquest. We exhibit to mankind the remarkable spectacle of a people attacked by provoked enemies, without any imputation or even suspicion of offense. They boast of their privileges and civilization, and yet proffer no milder condition than servitude or death.

Thus was the uniqueness of America's position emphasized and called to the attention of her own people. Nor was it forgotten that the country was particularly favored by God, for it declared that:

We gratefully acknowledge, as signal instance of the Divine towards us, that His providence would not permit us to be called into this severe controversy, until we were grown up to our present strength, had been previously exercised in warlike apparatus, and possessed of the means of defending ourselves.

Finally, Jefferson reiterated once more his favorite contention, the theory which has become one of the fundamental axioms of the doctrine of Americanism: that America did not owe anything to the older civilization of Europe, and was a self-made country:

In our native land, in defence of the freedom that is our birthright, and which we ever enjoyed until the late violation of it; for the protection of our property, acquired solely by the honest industry of our forefathers and ourselves, against violence actually offered, we have taken up arms. We shall lay them down when hostilities shall cease on the part of the aggressors, and all danger of their being renewed shall be removed, and not before.

Then came a perfunctory appeal to conciliation, and a final religious note strictly nonsectarian; for of his religious faith the young delegate had retained the form and the tone which scarcely concealed his deism:

With an humble confidence in the mercies of the supreme and impartial Judge and Ruler of the Universe, we most devoutly implore his divine goodness to conduct us happily through this great conflict, to dispose our adversaries to reconciliation on reasonable terms, and thereby to relieve the empire from the calamity of civil war.

No wonder this "Declaration" was read amid thundering huzzas in every market place and amid fervent prayers in nearly every pulpit in the colonies. With an extraordinary "felicity of expression", with a unique sense of fitness, Jefferson had struck every chord susceptible of response in every American heart. He had drawn for the people an ideal picture of the nation and themselves, he had portrayed them as they yearned to be looked upon by posterity and the nations of the world: he had formulated the creed of Americanism.

Far more judicial in tone was the neat state paper prepared by Jefferson to answer Lord North's "Conciliatory Proposition." The committee appointed consisted of Benjamin Franklin, Thomas Jefferson, John Adams and Richard H. Lee. The youngest member of the committee was chosen to draw up the document, the answer of the Virginia Assembly he had brought with him having been approved. Not for nothing had Jefferson attended the courts of justice of Albemarle County and Williamsburg for more than ten years and listened to decisions from the bench. The answer strives to be a cold, dispassionate enumeration of facts, with its short paragraphs beginning: "we are of opinion"—recalling the "Whereases" of legal documents. But there is an undertone of indignation, cropping up in every sentence, which belies the studied reserve. The conclusion, one might call it a peroration, is a genuine specimen of revolutionary eloquence:

When it considers the great armaments with which they have invaded us, and the circumstances of cruelty with which these have commenced and prosecuted hostilities; when these things, we say, are laid together and attentively considered, can the world be deceived into an opinion that we are unreasonable? Or can it hesitate to believe with us, that nothing but our own exertions may defeat the ministerial sentence of death or abject submission?

Truly Jefferson might have become a great orator had he chosen to correct his handicap in speech and train his voice. Historians who attribute much importance to racial traits and inherited characteristics may believe that this was due to the Welshman that reappeared in him at times; but the Welsh temperament was suppressed and checked by the puritanical restraint of Mr. Small, Mr. Maury, the judicial reserve of Mr. Wythe, the example of Mr. Peyton Randolph; and, carried away as he was by Patrick Henry's oratory, Jefferson saw in him impulsive and emotional qualities to be admired but to be shunned. More than any of his contemporaries, however, he was unconsciously influenced by reminiscences of speeches he had read and memorized in Livy, Cicero and perhaps Demosthenes. These sentences have a classical ring; his true models were the Greek and Latin orators, and if a critical edition of Jefferson's early papers were ever attempted, a careful investigation could not fail to bring to light the classical sources of his inspiration.

The report was adopted on July 31, and Congress adjourned the next day. Jefferson returned at once to Monticello, to stay in Virginia until the opening of Congress. In spite of the fiery tone of the answer to Lord North's proposition, it seems that neither he nor any of his friends seriously entertained nor even considered the possibility of the colonies separating entirely from the mother country. War had already begun, but it was a civil war. There still remained some hope that an "everlasting avulsion from Great Britain would be avoided." Yet it could be avoided only on one condition: that the British Government should accept, without reservation or restriction, the minimum terms of Congress. Jefferson then wrote to his friend, John Randolph, who had decided to remove to England:

I would rather be in dependence on Great Britain, properly limited, than on any nation upon earth, or than on no nation. But I am one of those, too, who, rather than submit to the rights of legislation for us, assumed by the British Parliament, and which late experience has shown they will so cruelly exercise, would lend my hand to sink the whole island in the ocean.[37]

The manuscript letter in the Library of Congress is not the one that was used in the different editions of Jefferson's "Works." It is a much corrected and written-over draft, containing several passages which have disappeared in the published text.[38] It contained particularly a request to John Randolph who was going to "the hub of literature", to buy him "books of parliamentary learning." It also included a request to Randolph to sell him his fine violin, to which Randolph acceded, averring that "Tho we may politically differ in sentiments, yet I see no reason, why privately we may not cherish the same esteem for each other which formerly I believe subsisted between us. We both of us seem to be steering opposite courses: the success of either lies in the womb of Time."[39]

Such letters are very significant, for they express better than long dissertations the state of mind of the leading men of the day. The question at issue was still a political question; it was a question of internal politics on which men could differ without necessarily becoming enemies or losing each other's esteem and affection. Less than a year before the Declaration of Independence, independence seemed to Jefferson the worst possible solution, to be delayed and avoided if it were possible.

Chosen again as delegate to Congress, but delayed by the illness and death of his second child, Jefferson reached Philadelphia on September 25, twenty days after the opening of the session. He stayed only until the twenty-eighth of December, and resumed his seat on May 13 of the following year. In the meantime events were moving rapidly. Congress had been advised of the king's refusal even to notice their second petition; and Jefferson, writing a second time to John Randolph, could declare:

Believe me, my dear sir, there is not in the British empire, a man who more cordially loves a union with Great Britain than I do. But by the God that made me, I will cease to exist before I yield to a connection on such terms as the British Parliament propose; and in this I think I speak the sentiment of America. We want neither inducement nor power, to declare and assert a separation. It is will alone which is wanting, and that is growing apace under the fostering hand of our King.[40]

On the sixth of December, a declaration was adopted repudiating allegiance to the king, and the British Constitution was proclaimed "our best inheritance." Four days previously Jefferson had drafted a declaration concerning Ethan Allen, when news arrived of his being arrested and sent to Britain in irons to be punished for pretended treason. For the first time the delegate from Virginia referred to the British as "our enemies" and called upon them to respect "the rights of nations."

At this juncture and shortly after being appointed on an important committee, Jefferson abruptly left Congress and set out for home. The reason for his sudden departure has never been satisfactorily explained. It may have been due to news of the bad health of his mother: she died on March 31, 1776, and this is the only explanation that Randall could offer. It was more probably due to his anxiety about the fate of his family. Communications with Virginia were rare and difficult. He wrote home regularly every week, but on October 31 he had not yet received a word "from any mortal breathing", and on November 7 he repeated:

"I have never received the script of a pen from any mortal in Virginia since I left it, nor been able by any inquiries I could make to hear of my family. I had hoped that when Mrs. Byrd came I could have heard something of them. The suspense under which I am is too terrible to be endured. If anything has happened, for God's sake let me know it!" Two weeks later he urged his wife to keep herself "at a distance from Ld. Dunmore", and he was planning to meet Eppes "as proposed."

There seems to be very little doubt that he yielded to his anxiety and to the entreaties of Eppes who seems to have urged him to come back. He had left at Monticello a sick mother, his sisters, a wife who had recently lost a child and had hardly recovered from the blow, and he was in constant fear that a raid from the British troops, who had already burnt Norfolk, should endanger the lives of his dear ones. Furthermore he believed that his presence in Philadelphia was not indispensable; for he was never one who overrated himself. Finally, a document overlooked by his biographers informs us that on September 26, 1775, he had been appointed by the Committee of Safety for the Colony of Virginia, Lieutenant and Commander in chief of the Militia of the County of Albemarle.[41] In view of Lord Dunmore's impending attacks his presence was evidently required to organize local forces. All these are reasons enough to explain why he left Philadelphia. We do not even know that he hesitated at all or experienced any conflict of duties. National patriotism was still limited by family duty, and local patriotism was stronger in him than obligations to a country which did not yet exist.

So it happened that the man who wrote the Declaration of Independence was to miss many of the preliminary steps and discussions that preceded it. He did not resume his seat in Congress until May 14, 1776. Five days before, a resolution framed by Adams and R. H. Lee had been adopted, instructing the colonies to form governments. It was passed the very day Jefferson arrived in Philadelphia. Not only had he come back rather reluctantly, but he was anxious to return to Virginia in order to participate in the work of the Colonial Convention, as appears from his letter to Thomas Nelson, Junior:

With all his attention turned towards the Old Dominion and in his anxiety to participate in establishing a model form of government for his "country", he then decided to send to Pendleton, President of the Assembly, the draft of a proposed constitution for Virginia, or rather, as he termed it, "A Bill for new modelling the form of government and for establishing the Fundamental principles of our future constitution."[42] This is a capital document for the history of Jefferson's political thought. For the first time he had the opportunity to develop fully his views on society and government. How clear in his mind were the theories of which he later became the advocate will be easily perceived. The draft started with a recital of the grievances of the colony against "George Guelph King of Great Britain", which Jefferson was to utilize in the Declaration of Independence. It declared that "The Legislative, Executive, and Judiciary shall be forever separate" and continued with a description of the three branches of government. For the Legislative, Jefferson proposed a bicameral system, consisting of a House of Representatives and a Senate. The House was to be elected by "all male persons of full age and sane mind having a freehold estate in (one fourth of an acre) of land in any town or in 25 acres of land in the county and all persons resident in the colony who shall have paid scot and lot to government the last two years." The Senate was to be appointed by the House of Representatives. The death penalty was abolished for all crimes except murder and offences in the military service; torture was abolished in all cases whatsoever. Some of these provisions were incorporated later in the "Bill for Apportioning Crimes and Punishment." The Administrator was to be appointed by the House of Representatives, as well as the Attorney-general and the Privy Council. Judges were to be appointed by the Administrator and Privy Council; the High Sheriffs and Coroners of counties were to be elected annually by the voters, but all other officers, civil and military, to be appointed by the Administrator. The bill proposed that "descents shall go according to the laws of Gavelkind, save only that females shall have equal rights with males."—"All persons shall have full and free liberty of religious opinion; nor shall any be compelled to support or maintain any religious institution." "Printing presses shall be free except so far as by commission of private injury cause may be given of private action. There shall be no standing army but in time of actual war." The introduction of slaves into the State was forbidden. Finally provisions were made for the revision of the Constitution.

Truly most of the reforms advocated by Jefferson are already contained in this document, not implicitly but explicitly: religious freedom, freedom of the press, abolition of slavery, the laws of descent and the bill to abolish entail, the "Bill for Proportioning Crimes and Punishment" are all here. It was a bold and radical proposal, and no wonder the young delegate from Virginia was anxious to go home in order to defend it before his colleagues of the Assembly. The delegates, after much wrangling, had come to practical agreement on the most important points. It was too late and they were too "tired" of the subject to resume the discussion. From Jefferson's plan they simply borrowed the long recital of grievances which became the preamble to the Virginia Constitution.[43]

As finally adopted, the Constitution was far less liberal than the plan proposed by Jefferson, and this may explain his severe criticism of it in his "Notes on Virginia" (Query XIII). It embodied, however, some of the same essential principles; it proclaimed the separation of powers and established two Chambers. It retained the name of governor, redolent of the English rÉgime, instead of "administrator"; it made no mention of slavery, entails, descents and freedom of the press, but in some respects it was even more democratic than the Jefferson plan since both houses were directly elected. In the meantime things were coming to a head in Philadelphia, and on June 7 certain resolutions concerning independence being moved and adopted, it was

On June 10, it was

Jefferson's biographers have indulged in a great many discussions about the reasons which determined the selection of the committee. Jefferson certainly did not seek the honor, and little did he dream at the time that it would bring him such fame. Without renewing the old controversy on the participation of the other members of the committee in the drawing up of the famous document, a few facts have to be considered. First of all it was not an improvisation. The committee appointed on June 10 reported only on June 28. A written draft was submitted to Adams and Franklin, whose advice could not be neglected, and they suggested several modifications, additions and corrections. Furthermore, Jefferson was too good a harmonizer not to discuss many points with his colleagues of the committee, so as to ascertain their views before writing down the first draft. Even the desirability of having a declaration was a highly controversial question, and Jefferson himself, in the detailed notes he took of the preliminary discussion, indicates that when the committee was appointed "the colonies of New York, New Jersey, Pennsylvania, Delaware and South Carolina were not yet matured for falling from the parent stem."[46]

On June 28, the committee appointed to prepare a declaration brought in a draft which was read and "Ordered to lie on the table." On July 2, Congress resumed the consideration of the resolution agreed to by and reported from the committee of the whole; and the same being read, was agreed to as follows.

Properly speaking this is, as Mr. Becker has remarked, the real Declaration of Independence. But the principle once adopted, it remained to proclaim and explain the action taken by Congress not only to the people of the Free and Independent States, but to the world at large. Congress then resolved itself into a committee of the whole, only to decide that it was too late in the day to take up such a momentous question. The discussion continued on the next day but Harrison reported that the committee, not having finished, desired leave to sit again. On July 4, Congress resolved itself into a committee of the whole to take into further consideration the Declaration; and after some time, the president resumed the chair. "Mr. (Benjamin) Harrison reported, that the committee of the whole Congress have agreed to a Declaration, which he delivered in. The Declaration being again read, was agreed to." Congress then ordered that the Declaration be authenticated and printed, and the committee appointed to prepare the Declaration "to superintend and correct the press."

Such is briefly told from the "Journals of Congress" the story of the momentous document in its external details. It has been too well related by Mr. Becker and Mr. Fitzpatrick to leave any excuse for a new account. Writing many years later, John Adams declared "there is not an idea in it but what had been hackneyed in Congress two years before," and replying to Adams' insinuations, Jefferson admitted that:

In another letter to Lee, written in 1825, a year before his death, Jefferson had given, as his last and final statement on the subject:

Two phrases in this letter deserve particular notice, "an expression of the American mind" and "the harmonizing sentiments of the day." This is truly what Jefferson had attempted to express in his "felicitous language"—the confused yearnings, the inarticulate aspirations, the indefinite ideals of the speechless and awkward masses. He did it in words so simple that no man could fail to understand it, in sentences so well balanced and so rhythmic that no artist in style could improve upon them. The Declaration of Independence is not only a historical document, it is the first and to this day the most outstanding monument in American literature. It does not follow, however, that Jefferson had no model. Mr. Becker in his masterly study has demonstrated that it was the final development of a whole current of thought, the origins of which can be traced back in history even farther than he has done. The Declaration of Independence is essentially of Lockian origin, but it does not ensue that Jefferson had memorized Locke, nor even that he was conscious, when he wrote the document, that he was using a Lockian phraseology. As a matter of fact, even if he remembered Locke, it is more than probable that reminiscences from two other more modern expressions of the same idea haunted his mind. The first was a pamphlet of James Wilson, written in 1770, published in Philadelphia in 1774 and entitled "Considerations on the Nature and Extent of the Legislative Authority of the British Parliament." Mr. Becker has pointed out the similarity between a passage in Wilson and the preamble. Since then I have found that, in his "Commonplace Book", Jefferson copied passages from Wilson's pamphlet, although for reasons which I could not determine he omitted the very passage which presents the most striking resemblance:

A Lockian theory to be sure, but Wilson in the footnote to this paragraph quoted Burlamaqui to the effect that "This right of sovereignty is that of commanding finally but in order to procure real felicity; for if this end is not obtained, sovereignty ceases to be legitimate authority." But this is not all! The Declaration of Rights of 1774 ("Journal of Congress", I, 373) stated in somewhat similar terms the rights of the inhabitants of the English colonies. Finally the "Virginia Bill of Rights" written by George Mason, adopted by the Virginia Assembly on June 12 and necessarily forwarded to the delegates in Congress, contained articles resembling more closely those of the Declaration of Independence:

This time it is no longer a question of analogy, or similarity of thought—the very words are identical, "Unalienable rights" is the expression which finally replaced "undeniable" in the final form—and "pursuing and obtaining happiness" has become the well-known "pursuit of happiness." Does it mean that Jefferson should be accused of plagiarism? Not in the least, since, as the French author said, "l'arrangement est nouveau", and, in a work of art, "l'arrangement" constitutes true originality, according to the formula of the classical school. Furthermore, it was clearly Jefferson's rÔle and duty as a delegate from Virginia to incorporate in the Declaration as much as he could of the "Bill of Rights" recently adopted by his native dominion. The only fault that could be found is that he did not more clearly acknowledge his indebtedness to George Mason. But his contemporaries, and particularly the Virginians, could not fail to recognize in the national document the spirit and expression of the State document. Jefferson had expressed the American mind but he had above all expressed the mind of his fellow Virginians.

Whether the doctrine enunciated in the Declaration of Independence is founded in fact and is beyond question "undeniable", is a problem which cannot even be touched upon here. We cannot dismiss it, however, without mentioning a feature which seems to have escaped most American students of political philosophy, probably because it has become such an integral part of American life that it is not even noticed. I do not believe that any other State paper in any nation had ever proclaimed so emphatically and with such finality that one of the essential functions of government is to make man happy, or that one of his essential natural rights is "the pursuit of happiness." This was more than a new principle of government, it was a new principle of life which was thus proposed and officially indorsed. The most that could be asked from governments of the Old World was to promote virtue and to maintain justice; honor, "amor patriae" and fear were the essential principles on which rested the governments described by Montesquieu. But in spite of the eternal and unquenchable thirst for happiness in the heart of every man, what European, what Frenchman particularly, could openly and officially maintain that the "pursuit of happiness" was a right, and that happiness could be reached and truly enjoyed. This quest of happiness had been the main preoccupation of French philosophers during the eighteenth century, but in spite of their philosophical optimism, they were too thoroughly imbued with pessimism ever to think that it was possible to be happy; the most they could hope for was to become less unhappy. The whole Christian civilization had been built on the idea that happiness is neither desirable nor obtainable in this vale of tears and affliction, but as a compensation Christianity offered eternal life and eternal bliss. The Declaration of Independence, on the contrary, placed human life on a new axis by maintaining that happiness is a natural right of the individual and the whole end of government. To be sure, the idea was not original with Jefferson, it had been mentioned more than once in official or semi-official documents, it was in James Wilson, as in the Bill of Rights, but I cannot quite conceive that such a formula could have originated in New England. I cannot conceive either that it could have been proclaimed at that date anywhere except in a new country where the pioneer spirit dominated, where men felt that they could live without being crowded or hampered by fierce competition, traditions, and iron-bound social laws.

In his plan for a DÉclaration des droits de l'homme et du citoyen, Lafayette some twelve years later included "la recherche du bonheur", in memory of the American Declaration of Independence, but "la recherche du bonheur" disappeared in the committee and was never mentioned again in any of the three Declarations of the French Revolution. The nearest approach to it is found in the first article of the Declaration of June 23, 1793; but it simply states that the aim of society is common happiness—and this is quite a different idea. Whether it was right or not, Jefferson, when he reproduced the terms used by George Mason in the Virginia Bill of Rights, gave currency to an expression which was to influence deeply and even to mold American life.

In that sense, it may be said that the Declaration of Independence represents the highest achievement of eighteenth-century philosophy, but of one aspect of that philosophy that could not develop fully in Europe. Trees that are transplanted sometimes thrive better under new skies than in their native habitat and may reach proportions wholly unforeseen.

Thus the Declaration of Independence written to express the sentiments of the day probably shaped the American mind in an unexpected manner. It was essentially a popular document planned to impress the masses, to place before the young nation at its birth a certain ideal and a certain political faith, but it was also a legal and judicial document intended to make more precise the reasons why the united American colonies had finally resolved to separate from the mother country.

For this part of the Declaration Jefferson drew largely from the "Constitution" he had drafted for Virginia and sent to Randolph by Mr. Wythe. He was his own source—the more so as he substantially repeated many of the grievances enumerated two years earlier in the "Rights of British America." But here again he markedly improved the first version, which was a monotonous recital of dry facts, starting with a legal "Whereas" and beginning each article with a clumsy participle. "By denying his Governor permission:... By refusing to pass certain other laws ... By dissolving Legislative Assemblies," became in the Declaration the dramatic presentation of facts by a prosecuting attorney and not the summing-up of a case by a judge. But the final renunciation of the mother country has an unsurpassed dignity, a finality more terrible in its lofty and dispassionate tone than any curse:

"We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends." There again one is reminded of the well-known French formula: "beau comme l'antique." Twice in its history the supposedly young and uncultured people had the rare fortune to find spokesmen who, without effort and laborious preparation, reached the utmost heights. The Declaration of Independence, with its solemn renunciation of ties of consanguinity, reminds one of the tone of the Greek tragedy; while the only parallel to the Gettysburg address is the oration pronounced by Pericles over the warriors who had laid down their lives during the first war of Peloponnesus.

Such heights can only be reached if the author is moved to his innermost depths. Singularly unimaginative in ordinary circumstances, for once in his life Jefferson was superior to himself: the student of Greece, the refined Virginian, became truly the voice of the people. But great effects often have small causes. We may wonder if he would have spoken with that same suppressed emotion, fiercely burning and yet controlled, if at that very time he had not been laboring under an emotional stress that never recurred in his life.

While he was in Philadelphia, writing the first draft in which he opened to the people of America "the road to glory and happiness", he could well wonder whether his personal happiness was not about to be destroyed.—His mother had recently died, he had just lost a child and had left in Monticello a beloved companion dangerously ill. "Every letter brings me such an account of the state of her health, that it is with great pain I can stay here," he wrote to Page (July 20, 1776), and for those who knew how reserved he was in the expression of personal feelings, the restraint in his expression hardly conceals the anxiety and distress by which he was torn.

There were also other reasons for his desiring to go home. Jefferson had always understood that as a delegate to Congress his duty was not so much to make a record for himself as to voice the sentiments of the people he represented and to carry out their instructions.[48] He was much worried about his standing with the Virginia Convention and suspected that some members were trying to knife him in the back. The Convention had just proceeded to elect delegates for the next Congress. Harrison and Braxton had failed to be reappointed, and Jefferson was "next to the lag."—"It is a painful situation," he wrote to William Fleming, on July first, "to be 300 miles from one's county, and thereby opened to secret assassination without a possibility of self-defence."[49]

A week later, he wrote to Edmund Pendleton to decline his new appointment as a delegate to Congress:

On July 8 he announced to R. H. Lee that he would return to Virginia after the eleventh of August. It was not until September 2 that, his successor having arrived, he considered himself as free to go. His final reason, possibly not the least important, is given by Jefferson himself in his "Autobiography":

"My state," wrote Jefferson in 1818, but in his letters to William Fleming he was speaking of Virginia as his "country", and at that time constantly referred to the colonies and not the United States.

The necessity of some sort of a union or confederacy had been keenly realized for a long time, but the ways and means were far from receiving unanimous support. As a matter of fact, union had been obtained just on the point of secession, or as Jefferson had it "avulsion from Great Britain"; but the consciousness of solidarity, the community of ideals and interests which constitute an essential part of patriotism hardly existed at that date. Thus the man who had just been the voice of America probably felt himself more of a Virginian than of an American, for local patriotism was very strong, while national patriotism was still in a larval stage. Curiously enough the independence of the United States had been proclaimed before the Articles of Confederation, which really constituted the United States, had been adopted or even reported. When they were drafted the name "colonies" was used and this was not changed to "states" until the second printing.[51] The only official bond that united the colonies was loyalty to the Crown. That bond once severed, each of them became a separate unit and returned to a sort of "state of nature." For a student of government this was the most fascinating situation that could be devised, since he was going to witness the actual formation of a new society and the signing of a social compact. Jefferson attended all the meetings of Congress in which the Articles of Confederation were discussed, without actively participating in the debates. He took copious notes and inserted them in his "Autobiography" but for reasons presently to be seen, he refrained from expressing his own opinion on the matter. Only when he was back in Virginia could he collect his ideas and formulate to his own satisfaction a theory on the formation of society. He then sat at his table and sent to a friend his reflections on the debates he had just attended. I had the good fortune to discover this document in the Library of Congress. It is of such importance that it must be given here in full.

Unless I am much mistaken we have here the key to the whole democratic system of government evolved by Jefferson and the solution of the apparent contradictions often pointed out in his system. Starting from the hypothesis of Hobbes that in a state of nature men are free agents and have no other law but their own will, Jefferson attributes to the surrounding dangers the urge to form some sort of a society, a theory also found in Locke. But what follows is more original: in forming a social compact, men do not abdicate all their sovereignty as in the hypothesis of Rousseau; they do not even abdicate a certain portion of all their rights. On the contrary, they reserve entire a certain class of rights, all those they can exercise fully without the aid of exterior assistance, and they exchange for more security those they cannot exercise themselves. Thus the social compact is no longer a pactum subjectionis. It is no longer a question of deciding whether in a society the individual or the society are sovereign, since both are sovereign in their respective domains. How far Jefferson was from being a demagogue is clearly indicated by the sentence in which he refers to James Wilson. Liberty, except liberty of speech and thought, cannot be unlimited and unrestricted in any society; it is a matter of bargain and exchange. Thus Jefferson proposed a definition of liberty entirely different from the French conception as found in Rousseau and reproduced in the "DÉclaration des droits de l'homme" of May 29, 1793: "La libertÉ consiste À pouvoir faire tout ce qui ne nuit pas À autrui." With him, on the contrary, liberty consists in the free enjoyment of our will except in certain specific cases, to be enumerated at the time we form a social compact. Hence the necessity of a Bill of Rights, in which the individual accepts certain limitations in order to obtain a corresponding amount of security, and specifically denominates those of his natural rights he means to keep integrally and wholly.

This explains clearly why Jefferson, who is represented as the champion of State rights, not only accepted the abridgment of State sovereignty but declared that the retention by the States of certain rights was dangerous and illogical. One of the first cases arises when dealing with foreign nations. Here the individual State is clearly unable to protect itself against foreign aggressions and foreign encroachments, and foreign policies must properly be placed in the hands of the Federal Government. This applies not only to questions of protection, but to questions of commerce, and for two reasons, both of them practical and not theoretical. Commerce is one of the great causes of war. In order to protect the confederation the government has the right to levy taxes, and the most convenient form is that of imposts or taxes on importations. Secondly, the Federal Government is evidently in a better situation than the individual States for obtaining favorable treatment of their commerce by foreign nations. Hence the insistence of Jefferson throughout his life on the prerogatives of the Federal Government in all matters referring to foreign policies, and his reiterated declarations in favor of State rights.

Incidentally, this document explains two otherwise unexplainable incidents in Jefferson's career.

The Declaration on Violation of Rights adopted by the First Continental Congress had specified the rights of the inhabitants of the British colonies:

"Resolved, That they are entitled to life, liberty, & property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent."[52] The Virginia Bill of Rights had similarly declared that among the inherent natural rights was the means of acquiring and possessing property.

Now, in the preamble to the Declaration of Independence, which follows so closely the Bill of Rights, the word "property" does not appear, while the other rights are reasserted.

Nor was this an unintentional omission, for when Lafayette submitted to Jefferson his "DÉclaration des droits de l'homme", Jefferson put in brackets the words "droit À la propriÉtÉ", thus suggesting their elimination from the list of natural rights.

Yet he was not in any way a communist, and it would be a serious error to see in that systematic omission the influence of Rousseau's "Discours sur l'Origine de l'InÉgalitÉ." The fact is that, with his mind accustomed to draw fine legal distinctions, he had come to the conclusion that the right of possessing and acquiring property had to be protected by society in order to be enjoyed securely. It is one of those rights which are at the same time abridged and made more secure by society, since in any society it may be found necessary to levy taxes on the property of any citizen and even to condemn his property in the interests of the community.

Such a philosophy of natural rights had never before been expressed by any political philosopher I have been able to refer to, with one possible exception. While Locke had said that one divests oneself of his liberty in assuming the bonds of civil society—while Rousseau had declared that man sacrifices all his natural rights on the altar of society—a Scottish jurist had maintained that "Mutual defence against a more powerful neighbor being in early times the chief, or sole motive for joining in society, individuals never thought of surrendering any of their natural rights which could be retained consistently with their great aim of mutual defence." Not only had Jefferson read Kames, but he had copied extensively from his "Historical Law" tracts in his "Commonplace Book", where this very passage is to be found. He had also seen in the tract on history of property the fine distinction established by Kames between possession and property, the two terms being coextensive among savages, while in more refined society the relation of property was gradually evolved and disjoined from possession.[53]

Thus if Jefferson borrowed from any one the main principles of his philosophy, it was not from any of the eloquent and famous thinkers of France and England. Locke he had certainly read, he had abstracted Montesquieu, he may have known Rousseau's theory, although this is doubtful, but he had read and summarized the tracts of a Scottish jurist whom he had probably discovered through Doctor Small. His conception of the social compact is not the conception of a philosopher; it is essentially the conception of a jurist and a lawyer. The social compact is not a metaphysical hypothesis, nebulous and lost in the night of ages, it is a very specific and very precise convention to be entered into or to be denounced by men who retain their "rights inherent and unalienable", who remain free and yet agree to submit themselves to certain rules and a certain discipline in order to obtain more security. And thus was evolved and defined by Jefferson a combination of liberty and order, individualism and discipline which lies at the basis of American civilization, an object of wonder to most foreigners, often discussed but never so satisfactorily elucidated as in the document written by Jefferson when, "wanting amusement", he sat down to explain to himself his ideas of natural and civil rights and the distinction between them.

CHAPTER II