From Francis W. Gilmer
Winchester, 10th July 1816
I have delayed until now the acknowledgement of your favour of June 7th inclosing the ‘traité du droit naturel’ par Mr. Quesnay, from Mr. DuPont; under the expectation that you would not return from Bedford ’till about this time. I can but feel myself flattered by your very polite invitation to meet our ‘admirable friend the Abbé,’ as Mr. DuPont, calls him, at Monticello; and from the last intelligence which I had of him, I hope to accompany him to Albemarle from Winchester.
I have read Quesnay’s treatise & the comments contained in your letter with equal pleasure. I thought myself happy in finding two such advocates of an opinion which I had often defended in conversation. I have generally found those who contend for the hypothesis that man surrenders part of his natural rights on entering into civil society, argue entirely from the matter of fact as it is found to exist in the two states, without considering that it may, & indeed often must happen, in a natural society, that individuals exercise powers which cannot be derived from natural right: such as killing their fellow creatures merely from resentment. &c. And that we should always inquire in a civil Society, when a power is exercised in violation of our natural rights, whether such power be really conferred on the body politic on entering into the social compact, or whether it be not just as much an usurpation as the killing is in the other case.
It seems to have been generally admitted that men have even their natural rights better secured in civil societies than in natural ones; that their natural rights are enjoyed with a greater extent, for what Cicero says, ‘Legum denique idcirco omnes servi sumus, ut liberi esse possumus,’ has never been contradicted;1 and I could never yet be convinced, that man on entering into social relations gave up any portion of his natural rights, in order as is commonly said,2 to secure the rest. They who affirm that he has relinquished this portion, say, that in a natural society, individuals may lawfully exercise the right of killing a trespasser3 with their own hands. But in a civil society death or some other adequate punishment is equally inflicted,4 and all that can be said is, that the remedy is changed, which does not affect the right. But say they, the privilege of applying the remedy with ones own hands is a part of the right. Denying as I do, the correctness of this position, it cannot be overlooked, that in every civil society conformable to the nature of things, a law is, but the expression of the general will, and that general will being conformable to the rules of justice, is the will of each particular individual who thinks justly; whatever then is done by a just5 law, is as much in conformity to the will of a just man, as if he himself had dictated the law: and every punishment inflicted on the perpetrator of a crime by such law, is as much his act as if he himself had inflicted it. And if he does not think as a just man, he could have no more right to gratify such a will in a natural, than in a civil society; since there is no state in which one can have a right, to do wrong. and all that the right of inflicting punishment with our own hands can be worth, is the pleasure of gratifying the will, which is better gratified in civil than in natural societies, because the injured party has the co-operation of the whole community in executing his will.
The advocates of this doctrine next object, that men on entering into societies submit themselves to pains & punishments6 for crimes against the body politic as such, which did not exist in the natural state, & that therefore they give up a portion of their natural rights. Now to relinquish a right implies, that we enjoyed it before it was relinquished; but as there was no civil society in the natural state, & men could consequently commit no offence against such society, it is hard for me to conceive, what right we relinquish in subjecting ourselves to punishment for offences which we had neither right, nor power to commit in the natural state. But to consider the subject more according to its own nature than to these objections, which tho’ made are out of nature; is it not manifest, that men in a natural state have a right to govern their actions as they please, provided that they violate none of the rights of others? And all the laws which are made to enable a society to maintain itself, are only to prevent such society from being subjected to the controul of particular individuals instead of that of the general will. Thus the laws against Treason, are to prevent the exercise of powers not conceded by the people: and as men cannot govern themselves without such laws; to enact them to secure the right of self government, is doing only in another way, what was previously done in the natural state, where men vindicated their right of exemption from the controul of others by force, instead of convention. But as men in a natural state had no right to controul the actions of others, they surely relinquish none in being punished for usurping such a right.7
I can therefore find no right at all belonging to men in a natural state which is relinquished on entering into a civil one; & if men are less free in the latter than the former, it is either because the government is an usurpation; or because a licentiousness exists in the natural state which has not the sanction of reason, or of justice, & is therefore not a natural right, but a natural wrong.
Your remarks on the opinion of Hobbes, that justice is a merely conventional thing, appear to me very8 satisfactory. I regret with you that Mr. Tracy should have adopted such an hypothesis. This doctrine of the Philosopher of Malmesbury has always appeared to my mind, with many others of his, to spring entirely from a very bad opinion of mankind, & from a love of paradox. If Justice be conventional, I should be glad to know what governs that agreement on right & wrong;9 for if it depends entirely on an arbitrary & capricious will, its rules could not be so constant as they are admitted to be. ‘Justitia est constans & perpetua,’ are almost the first words I believe in the Civil Law. Are not right & wrong in reality, whatever we may think of them, relations in themselves absolute & independent of all convention? If so, for men to agree that certain things are just & others unjust, when their agreement cannot alter the nature of these things, is agreeing to nothing more than that men on entering into social relations may if they please tolerate injustice; a power which no body ever denied them physically, or can ever concede to them morally.
If Hobbes contend that the sense of justice10 is the effect of convention, he appears to me equally in an error. For what is this justice whether it be conventional or not, but a fitness between a moral action & the moral good which is its end? Now what is good or bad for man depends upon his wants, & his wants depend upon his11 organization both physical & moral; & what can best gratify these wants12 depends on the nature of things & not upon the will. Therefore justice not being controuled by the will, but depending upon the order of nature, if the sense of justice be different from this order it is a false sense, & alters not the nature of the thing itself; and if on the other hand, the sense be conformable to this order, it cannot be merely conventional because controuled by such order: and what Hooker13 says, is evident14 ‘choice there is not, unless the thing we take be so in our power, that we might have refused & left it.’ But in this case, justice being necessarily15 conformable to the nature of things, & the nature of things independent of us, it cannot be said that justice is dependent on our wills.
we have moreover great authorities with us against Hobbes & Mr. Tracy. Aristotle has said that man is ζῶον πολiτίκον., and so indeed we have every where found him. Can it be supposed that a being from his very necessities subject to civil & social relations, is16 without a moral sense to govern him in such relations? Would not the society be broken up for want of the only element which holds it together, before men became17 enlightened enough18 to discover it by the light of reason?19 There are other ‘politic animals’ beside man, which must be endowed with instincts to enable them to sustain the part which as individuals they bear to the whole; for otherwise having no reason to guide them in establishing conventional standards of moral propriety,20 their society would perish from defect of a convention to settle their reciprocal obligations: and what Hobbes has said of man out of society—would apply to them just as strongly in it. ‘negari non potest quin status hominum naturalis antequam in societatem coiretur bellum fuerit.’ If then even insects are created with such instincts, is it any thing unreasonable to suppose21 that man whose relations to his fellow beings are so much more complicated, should be endowed with a similar & an higher sense,22 to govern him in the twilight of his reason, & contribute to perfect it? The doctrine of Justinian that nature has taught all animals their natural rights, is much more agreable to my feelings & opinions: and what is justice but the observance of those rights?23 ‘jus naturale est quod natura omnia animalia docuit, nam jus istud non humani generis proprium est, sed omnium animalium.’
But I am troubling you with very crude opinions on a subject which you have already studied. I will in my first leizure hours translate the treatise of Quesnay. For a few weeks I shall be at the Bedford Springs to recruit my languid health: & may perhaps in that interval find time, if I can retirement enough, to pay Mr. DuPont that small piece of attention in return for his kindness24 in sending me many books & letters.
F. W. Gilmer.
RC (MoSHi: Gilmer Papers); at foot of first page: “Thomas Jefferson esqr”; endorsed by TJ as received 24 July 1816 and so recorded in SJL. Dft (MoSHi: Gilmer Papers); addressed: “Thomas Jefferson esquire Monticello Albemarle County.”
cicero wrote “legum denique idcirco omnes servi sumus, ut liberi esse possimus” (“all of us in short—obey the law to the end that we may be free”) in Pro Cluentio, 53.146 (Cicero: Pro Lege Manilia … Pro Rabirio Perduellionis, trans. H. Grose Hodge, Loeb Classical Library [1927; undated reprint], 378–9). Thomas Hobbes was from malmesbury, England (ODNB description begins H. C. G. Matthew and Brian Harrison, eds., Oxford Dictionary of National Biography, 2004, 60 vols. description ends ). justitia est constans & perpetua (“justice is constant and perpetual”) is the opening statement of book 1, chapter 1, of Justinian, D. Justiniani Institutionum libri quatuor. The Four Books of Justinian’s Institutions, ed. and trans. George Harris (London, 1761, and other eds.; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2191), 5.
choice there is not … refused & left it is from Richard Hooker, The Works Of that Learned and Judicious Divine, Mr Richard Hooker, in Eight Books of Ecclesiastical Polity (London, 1676), 78. aristotle wrote that man is by nature a ζῶον πολiτίκον (“political animal”) in his Politics, 1.1.9 (Aristotle: Politics, trans. Harris Rackham, Loeb Classical Library [1932; rev. ed. 1944; undated reprint], 8–9). In his Historia Animalium, 1.1, Aristotle asserts that, beside man, bees, wasps, ants, and cranes are social animals (Aristotle: Historia Animalium, trans. Arthur L. Peck, Loeb Classical Library , 1:14–5).
Hobbes argued that negari non potest … bellum fuerit (“it cannot be denied but that the natural state of men, before they entered into Society, was a mere War”) in De Cive, 1.12 (Hobbes, Elementa Philosophica De Cive [Amsterdam, 1669; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 2388, TJ’s copy in DLC], 15; Hobbes, Philosophicall Rudiments Concerning Government and Society [London, 1651], 14). jus naturale … sed omnium animalium (“The law of nature is not a law to man only, but likewise to all other animals”) is from book 1, chapter 2 of Justinian, D. Justiniani Institutionum, 6.
1. Preceding four words not in Dft.
2. Preceding four words not in Dft.
3. Preceding two words not in Dft.
4. TJ wrote “negatur” (“deny”) in left margin opposite this phrase.
5. Dft: “general.”
6. Dft substitutes “punishment” for preceding three words.
7. Sentence not in Dft.
8. Dft here adds “just &.”
9. Remainder of this and following sentence not in Dft.
10. Dft: “right & wrong.”
11. Preceding five words not in Dft.
12. Dft substitutes “advance this good” for preceding three words.
13. Dft here adds “justly.”
14. Preceding two words not in Dft.
15. Word not in Dft.
16. Dft here adds “created.”
17. Dft from “without a moral sense” to this point reads “to sustain his part in those relations, before his reason is.”
18. Word interlined.
19. Dft substitutes “direct him in his duty” for preceding seven words.
20. Remainder of sentence in Dft reads “it might be said of their political associations as Hobbes has said of the state of man before he entered into society.”
21. Preceding two words interlined in RC and absent from Dft.
22. Remainder of sentence not in Dft.
23. Sentence in Dft to this point reads “Justinian too has said.”
24. Sentence from this point in Dft reads “for many books & letters which he has done me the honor to send me.”
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