Thomas Jefferson Papers

To Thomas Jefferson from Thomas Paine, 15 January–15 February 1787

From Thomas Paine

After I got home, being alone and wanting amusement I sat down to explain to myself (for there is such a thing) my Ideas of natural and civil rights and the distinction between them. I send them to you to see how nearly we agree.

Suppose 20 persons, strangers to each other, to meet in a Country not before inhabited. Each would be a sovereign in his own natural right. His will would be his Law, but his power, in many cases, inadequate to his right, and the consequence would be that each might be exposed, not only to each other, but to the other nineteen.

It would then occur to them that their condition would be much improved, if a way could be devised to exchange that quantity of danger into so much protection, so that each individual should possess the strength of the whole number.

As all their rights, in the first case, are1 natural rights, and the exercise of those rights supported only by their own natural individual power, they would begin by distinguishing between these rights they could individually exercise fully and perfectly and those they could not.

Of the first kind are the rights of thinking, speaking, forming and giving opinions, and perhaps all those which can be fully exercised by the individual without the aid of exterior assistance, or in other words, rights of personal competency. Of the second kind are those of personal protection of acquiring and possessing property, in the exercise of which the individual natural power is less than the natural right.

Having drawn this line they agree to retain individually the first Class of Rights or those of personal Competency; and to detach from their personal possession the second Class, or those of defective power and to accept in lieu thereof a right to the whole power produced by a condensation of all the parts. These I conceive to be civil rights or rights of Compact, and are distinguishable from Natural rights, because in the one we act wholly in our own person, in the other we agree not to do so, but act under the guarantee of society.

It therefore follows that the more of those imperfect natural rights, or rights of imperfect power we give up and thus exchange the more security we possess, and as the word liberty is often mistakenly put for security Mr. Wilson has confused his Argument by confounding the terms.

But it does not follow that the more natural rights of every kind we resign the more security we possess, because if we resign those of the first class we may suffer much by the exchange, for where the right and the power are equal with each other in the individual naturally they ought to rest there.

Mr. Wilson must have some allusion to this distinction or his position would be subject to the inference you draw from it.

I consider the individual sovereignty of the states retained under the Act of Confederation to be of the second class of rights. It becomes dangerous because it is defective in the power necessary to support it. It answers the pride and purpose of a few Men in each State, but the State collectively is injured by it.

RC (DLC); unsigned and undated. This famous letter has been variously dated and has even been attributed to TJ. There can be no question of Paine’s authorship, but the matter of date cannot be precisely determined. Copeland made the first careful examination of the vexed problem of dating various items in the Paine-Jefferson correspondence of 1788–1789 and concluded on the basis of physical characteristics that the evidence “argues for the spring of 1788” as the period to which the letter belongs: the paper is a “pale-green, over-sized sheet” on which Paine also wrote two other undated memoranda to TJ and one letter that is definitely dated “May 1788” (Thomas W. Copeland, Our Eminent Friend, Edmund Burke, New Haven, 1949, p. 184; see also the note to Paine to TJ, at end of May 1788). Koch, rejecting with Copeland the former attribution to 1789 and basing her estimate on substance and chronology, concluded that the probable date was “February or May 1788,” since it clearly could not have been written during March or April while TJ was in Holland (Adrienne Koch, Jefferson and Madison: The Great Collaboration, New York, 1950, p. 83). The Editors agree with this conclusion, but incline to believe that the earlier date is more nearly correct and that late January or early February may be the best approximation. The letter had to be written after the arrival in Paris of a text of James Wilson’s speech in the Pennsylvania ratifying convention of 24 Nov. 1787, which was issued as a pamphlet, The Substance of a Speech delivered by James Wilson, Esq. Explanatory of the general Principles of the proposed Fæderal Constitution, Philadelphia, Thomas Bradford, 1787; a certificate on the final page shows that Bradford recorded publication of the pamphlet “this 26th day of November, 1787” at the prothonotary’s office for Philadelphia county. TJ’s copy is in DLC (Sowerby, description begins Catalogue of the Library of Thomas Jefferson, compiled with annotations by E. Millicent Sowerby, Washington, 1952–55 description ends No. 3013). By 2 Feb. 1788 TJ had received Madison’s letter of 20 Dec. 1787 and within the week following he wrote three letters in which his disapproval of the lack of a bill of rights in the proposed Constitution was strongly emphasized. In one of these letters he went so far as to say that he regarded this as evidence of “a degeneracy in the principles of liberty to which I had given four centuries instead of four years” (TJ to Smith, 2 Feb. 1788; TJ to Madison, 6 Feb. 1788; TJ to Donald, 7 Feb. 1788). It was precisely in the middle of the week covered by these letters that Lafayette wrote Henry Knox that “Mr. Jefferson, Common Sense,” and himself were debating the Constitution “in a convention of our own as earnestly as if we were to decide upon it” (Lafayette to Knox, 4 Feb. 1788, quoted in Gottschalk, Lafayette, 1783–89, p. 374). The evidence seems to point to this as the period when TJ and Paine carried on their discussion of natural and civil rights, and in a context which involved the very first reported debates to reach Europe. There is no letter from any of TJ’s friends in America that shows how he received Wilson’s pamphlet, or when, but a remarkable coincidence of dates suggests a plausible conjecture on these points. We know that Thomas Lee Shippen was much interested in the great constitutional debate in America, and that he was kept informed upon its progress by his uncles Arthur and Richard Henry Lee (see William Lewis to Thomas Lee Shippen, printed above, 11 Oct. 1787). Indeed, in letters to his son written in Nov. and Dec. 1787, Dr. Shippen sent a packet containing “all the papers Against and for the New Constitution” and added: “Lloyd will publish the whole debates as soon as possible and they will be a treat to you and Mr. Jefferson” (see notes, Vol. 12: 231). There can scarcely be any doubt that young Shippen brought to Paris a variety of printed materials on the Constitution and that these almost certainly included the pamphlet version of Wilson’s speech. We do not know precisely what day he arrived in Paris. His father, in Philadelphia, wrote TJ a letter of introduction on 5 Dec. 1787, and Smith, in London, wrote another on 9 Jan. 1788, though it is very unlikely that Shippen, already in London, could have received by the latter date his father’s letter of 12 Dec. or the packet of pamphlets and newspapers mentioned therein. However, on 16 Jan. 1788 Smith forwarded to TJ “2 Letters received within the ½ hour from New York addressed to you,” and asked, if they contained public intelligence, to be informed of it. Neither Smith nor TJ in his reply of 2 Feb. 1788 mentioned the writer of either of the enclosures, but one of these was obviously that from Madison of 20 Dec. 1787. It may be noted that, in his reply to Smith, TJ said: “Mr. Payne happened to be present when I received your favour of January 16.” From these facts it is clear that Shippen had had time, by 2 Feb., to receive his father’s communications, with the accompanying packet—probably did receive them in London on 16 Jan.—and to have arrived in Paris in late January. His first letter from Paris to his father, dated 14 Feb. 1788, indicates that he had been enjoying for some time the hospitality at the Hôtel de Langeac and the circles of Parisian society to which TJ had introduced him (see note to Smith to TJ, 9 Jan. 1788). There can scarcely be any doubt that Wilson’s speech was before Paine and TJ by 2 Feb. and probably a few days earlier.

Thoughtful and informed European opinion, whether in the banking houses of Amsterdam, the cabinets of London and Paris, or the intellectual and diplomatic groups in which TJ circulated, was keenly aware in the spring of 1788 of the importance of the great debate on government that was taking place in America. The latest letters, newspapers, and pamphlets arriving at London or Le Havre were received with tense eagerness, and passed back and forth among correspondents as the procession of ratifying conventions during the early part of 1788 met, debated, and cast their fateful decisions. But in all Europe, perhaps, no one watched these events with deeper interest than the three remarkable champions of republican principles whom Lafayette likened to a small ratifying convention of their own—Jefferson, Paine, and himself. To these three was added a fourth who was also devoted to such principles—Dr. Gem, who, in attending Martha and Mary Jefferson in their illness, gained TJ’s lasting affection and respect, and who must have lingered on in the evenings to join in the long discussions which, like the best of those being carried on publicly in America, went straight to the fundamental objects of government. The present letter emerged from one of these stimulating explorations of the question of man’s relation to society. As Adrienne Koch has shown in a cogent chapter of her Jefferson and Madison: The Great Collaboration, p. 62–96, Paine’s letter should be considered in relation to the political theory that TJ advanced in his famous letter to Madison of 6 Sep. 1789—that is, whether “the earth belongs always to the living generation” and whether one generation has a right to bind another. For, as she points out, this great theme, to which TJ gave unwavering allegiance throughout life and which profoundly affected his view of constitutions and bills of rights, is also set forth in a strikingly parallel development by Paine in The Rights of Man. The long talks of Paine, Jefferson, and Lafayette, with the interesting but obscure figure of Dr. Gem hovering in the background, not only had some influence on the later discussions of the French Declaration of Rights but, in America, through Paine’s and Jefferson’s devotion to the “rational hope that man is at length destined to be happy and free,” profoundly affected the course of modern political thought (TJ to Dr. Gem, 4 Apr. 1790; TJ to Madison, 6 Sep. 1789; TJ to Dr. Gem, 9 Sep. 1789; TJ to Madison, 9 Jan. 1790; Madison to TJ, 4 Feb. 1790).

In making his distinction between the two classes of natural rights and in charging Wilson with having confused his argument by confounding his terms, Paine referred specifically to the following part of Wilson’s speech of 24 Nov. 1787: “Our wants, imperfections, and weakness, Mr. President, naturally incline us to society; but it is certain, society cannot exist without some restraints. In a state of nature each individual has a right, uncontrolled, to act as his pleasure or his interest may prevail, but it must be observed that this license extends to every individual, and hence the state of nature is rendered insupportable, by the interfering claims and the consequent animosities of men, who are independent of every power and influence but their passions and their will. On the other hand, in entering into the social compact, though the individual parts with a portion of his natural rights, yet it is evident that he gains more by the limitation of the liberty of others, than he loses by the limitation of his own,—so that in truth, the aggregate of liberty is more in society, than it is in a state of nature.” Wilson called this “a fundamental principle of society” and went on, in a telling passage, to draw the conclusion that “the situation and circumstances of states may make it as necessary for them as for individuals to associate” (Substance of a Speech Delivered by James Wilson, p. 7).

1Paine first wrote, then deleted, “would be.”

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