MS (DLC: TJ Papers, 36:6252–3); in an unidentified clerk’s hand, with marginal note by TJ; endorsed by him: “Fayette. His decln. of rights”; undated, but this state of the text probably belongs to the end of June or the beginning of July 1789.

This text represents an intermediate state of Lafayette’s proposed declaration of rights between that transmitted by TJ to Madison on 12 Jan. 1789 and that presented by Lafayette to the National Assembly on 11 July 1789. Lafayette consulted TJ in its preparation and, as he was about to introduce it, specifically asked TJ for “the Bill of Rights with your Notes” and to “Consider it Again, and Make Your observations” (Lafayette to TJ, 6 July 1789 and [9 July 1789], Documents i and x of the series printed under 6 July 1789). TJ must have returned one copy of the text to Lafayette with his “Notes” at their presumed meeting on 7 July, and perhaps also a revision of that text on 10 July. It is certain that TJ’s influence, though its extent cannot be fixed, is present in this text and in that finally presented, and it seems likely also that that influence was present in the words Lafayette employed in arguing to the National Assembly that a declaration of rights served two useful purposes: “Le premier est de rappeler les sentiments que la nature a gravés dans le coeur de chaque individu; d’en faciliter le développement, qui est d’autant plus intéressant que, pour qu’une nation aime la liberté, il suffit qu’elle la connaisse, et que, pour qu’elle soit libre, il suffit qu’elle le veuille.—Le second object d’utilité est d’exprimer ces vérités éternelles d’où doivent découler toutes les institutions, et devenir, dans les travaux des représentants de la nation, un guide fidèle qui les ramène toujours à la source du droit naturel et social. … Le mérite d’une déclaration des droits consiste dans la vérité et la précision; elle doit dire ce que tout le monde sait, ce que tout le monde sent” (Archives Parlementaires, viii, 221). The author of the Declaration of Independence who had tried to draft “an expression of the American mind” would certainly have approved such words.

In DLC: TJ Papers, 233:41602, accompanied by TJ’s endorsement, “Rights Declarations of,” on a separate page, there is a MS entirely in his hand (PrC, at fol. 41603) reading as follows:

“Loix fondamentales d’une societé politique

• 1. Point de noblesse, ni droit, ni charge, hereditaire.
• 2. Point de substitution.
• 3. Les biens des parents partages egalement entre tous les enfans.
• 4. Le divorce.
• 5. Liberté religieuse.
• 6. L’impôt territorial unique.
• 7. La liberté entiere de l’industrie et du commerce.
• 8. Toutes les loix positives et etablissemens quelconques doivent etre conformes à la justice universelle.
• 9. L’etat ne doit pas avoir des sujets.
• 10. Tout le corps des citoyens doivent etre formé en milice.
• 11. Toute puissance publique doit resider dans les proprietaires des terres.
• 12. Le droit de voter dans les elections des corps legislatifs doit etre limité á une certaine revenue en fond de terre.
• 13. La liberté de la presse.
• 14. La loi de Habeas corpus.
• 15. Les jugemens par jurés.
• 16. Point d’alliance avec <puissances> nations etrangeres.”

The endorsement accompanying this MS, the fact that Lafayette’s draft of a declaration of rights was mentioned in his letters to TJ early in July, the presence of other texts of such documents in TJ’s papers having endorsements of the names of Lafayette and Gem, and TJ’s correspondence with Gem on fundamental principles of society early in Sep. 1789 combined to cause these texts, naturally enough, to be catalogued and received by scholars as belonging to July-Aug. 1789. The MS just quoted is catalogued “[1789—July].” It was, however, actually written before 12 Jan. 1789, and should have been noted under that date in connection with the enclosures of texts of declarations of rights proposed by Lafayette and Gem and sent to Madison by TJ. This MS is important as suggesting the influence that TJ may have had on the development of Gem’s text during the stage when, as has been said of him early in 1788, he was conducting a sort of “informal seminar on political theory … for Lafayette’s benefit” (Gottschalk, Lafayette, 1783–89 description begins Louis Gottschalk, Lafayette between the American and the French Revolution (1783–1789), Chicago, 1950 description ends , p.374). It is obvious that this MS corresponds in substance and often in phraseology to the earlier “Principes generaux relatifs à un etat politique” of Gem; it would also have corresponded to that in the number of articles except that two in the former (11 and 12) became a single article (2) in the latter. After TJ had sent his transcript to Madison, Gem caused him to add another article to the text (see Vol.14: 439–40, note 5). This article is not in the MS just quoted and since the Gem text with which it agrees in substance is the prototype of the transcript sent to Madison, it follows that it antedates the document there identified as Gem MS. The differences between this MS and Gem MS, however, are more important than their similarities, for these differences suggest TJ’s possible influence in the development of the text. For example, the inexact title “Loix fondamentales d’une societé politique” in MS becomes, more accurately, in Gem MS “Principes generaux relatifs à un etat politique”; even this was altered to a more exact form later, possibly in discussions with TJ after the text derived from this MS and the intermediate stage (Gem MS) had been sent to Madison (see Vol.14:440, note 3). Such an alteration would be quite in keeping with the clear distinction that TJ habitually made between fundamental law and positive legislation. So, too, the change from “Toute puissance publique doit resider dans les proprietaires des terres” in this MS to “Le droit d’elire le corps des representants doit resider dans les proprietaires du territoire” in Gem MS may reflect a similar influence, exerted in order to avoid the confusion between sovereignty and suffrage requirements.

But TJ, regarding Gem as “a pure theorist” whose declaration of rights was addressed to all possible abuses and not merely to those existing, certainly must have made less effort to influence his proposals than he did those of Lafayette, whose declaration of rights he thought was focussed on actual abuses and contained “the essential principles of ours accomodated as much as could be to the actual state of things here” (TJ to Madison, 12 Jan. 1789). This is best reflected in the respective treatment by Gem and Lafayette of the matter of trial by jury. TJ considered trial by jury as “the only anchor, ever yet imagined by man, by which a government can be held to the principles of it’s constitution.” He had urged its inclusion in an American bill of rights, both in his letters to Madison and indirectly through Lafayette to Washington (TJ to Madison, 31 July 1788; Gottschalk, Lafayette, 1783–89, p.379). Viewing trial by jury as he did and endeavoring as he undoubtedly was at this time to influence Lafayette to address himself to the realities of the situation and to secure such reforms as were possible (see TJ to Lafayette, 3 June 1789), it is significant that the various texts of a proposed declaration of rights by Lafayette contain no such provision for trial by jury while those of Gem do. Since both men consulted TJ on the subject and were advised by him, it seems clear that a part of the answer to this may lie in TJ’s doubt that France was ready for trial by jury or that the National Assembly would adopt it (TJ to Paine, 11 July 1789). Retention of trial by jury in the more theoretical draft by Gem, a figure outside of politics, did not particularly matter: it mattered a great deal, however, what was placed in Lafayette’s proposal, for he was in the midst of the struggle over constitutional reform then taking place. Yet, while the constitution was being reformed, TJ worked silently in other ways to advance the concept of trial by jury (see TJ to Arnoux, 19 July 1789).