Freedom, Capitalism and Religion
Progressive Essays and Thinking on Capitalism and Freedom and Religion
Natural Rights, Locke and Independence. 3
Jefferson’s Alternative Theory.. 8
Rights and the Allegiance to the Crown.. 12
Rights, Territories and Land Possession.. 14
General Ambivalence About Natural Rights. 20
Jefferson Clings To An Alternative Theory.. 24
Jefferson’s Original Declaration of Independence. 26
No Natural Rights In Jefferson’s Original Virginia Declaration Of Independence 27Jefferson’s Second Declaration of Independence. 29
When In The Course Of Human Events. 33
We Hold These Truths. 37
Pursuit of Happiness. 38
Conclusion.. 42
Endnotes. 44
Appendix 1 Carl Becker’s Interpretation of the Declaration.. 56
Appendix 2 Jefferson’s Declaration and James Wilson’s Considerations. 57
Appendix III. George Mason’s Virginia Bill of Rights. 58
Bibliography.. 60
It is has long been conventional wisdom that The Declaration of Independence is the official and most important American endorsement of natural rights theory. According to this view, the Declaration unequivocally endorses natural rights theory although there is substantial debate about whether it represents a specifically “Lockean view” of rights and government in particular, a point to which we return below. This reading of the Declaration provides support for the argument that natural rights are the foundation of the American tradition and the basis of rights in the Constitution and the Bill of Rights. Interestingly enough, neither of those other two critical founding documents explicitly endorses natural rights or provides a statement outlining a general philosophy of government.[1] The Declaration of Independence contrasts with these later documents, in articulating an explicit philosophy of rights and government. It also represents the culmination of American thinking for the decade leading up to the American Revolution. For all of these reasons, the Declaration has become the source par excellence justifying the view that American constitutional tradition is founded on natural rights philosophy, even though the Declaration’s primary purpose was to justify American independence from Great Britain rather than to serve as a founding document for the new United States.
But against the backdrop of natural rights arguments leading up to the Revolution, this conventional view of the Declaration appears misleading in some critical and potentially troubling ways. To begin with, it is not often realized that the primary author of the Declaration had a different view of rights than is commonly ascribed to the Declaration. Jefferson did not accept the view of rights that had been authorized by the Continental Congress a year and a half before he drafted the Declaration.[2] On two previous occasions, Jefferson had tried to get his alternative view of rights accepted by the Continental Congress but on both occasion his views were rejected. When he sat down to draft the Declaration, he still held a different view of rights and thus had to make a choice-whether to try once again to put forward his own theory of rights or revert to the more traditional theory of natural rights that the Congress had already approved nearly two years earlier. The fact that the primary author of the Declaration disagreed with Congress’ official justification of American rights provides a point of departure for rethinking the Declaration’s understanding of natural rights and its relationship to American rights and independence.
Jefferson was by no means the only thinker with doubts about natural rights theory or the way such theories were used to ground the rights of North American colonies. In the decade leading up to the Revolution, colonists had expressed some profound concerns about natural rights theory in general and their application to American rights in particular. There was in fact no single monolithic tradition of thinking about natural rights in the decade leading up to the Revolution. And even after the First Continental published its official version of rights in September 1774, doubts remained about the strength of natural rights arguments and about the ways those rights should be used to justify American rights.
Against this backdrop, a more tentative and equivocal reading of the Declaration’s statement of rights emerges. Instead of seeing the Declaration as an un-ambivalent embrace of natural rights theory, the Declaration’s position of natural rights theory appears much more ambiguous than is often assumed. Because the Declaration was attempting to state a unified colonial position about independence, its language smooths over and avoids areas of disagreement about natural rights among those favoring independence. On this view, the Declaration’s language hides as much as it reveals. It is as if the Continental Congress through its revision of Jefferson’s draft papered over some of the earlier doubts and disagreements about natural rights theory in an effort to state a unified American view justifying revolution when such a unified theory did not exist. In other words, the Declaration is written in a way that transcends and obfuscates some of the underlying disagreements in American rights theory that had earlier been visible in the writings leading up to the Declaration. That purpose, in fact, may then be one of its effects if not purposes: to try to find common language that could unite Americans across the colonies behind the call for independence. On this view, the Declaration’s genius is not only the powerful way it stated natural rights theory but also in what it did not say and what opinions it did not take a position on. Its beauty in part is in framing a statement that seemed to justify independence, while avoiding the unresolved question about the origin of American rights. But in its ellipses and language some of that earlier ambivalence is still evident and there are major equivocations about just how natural rights justifies the American right to declare independence. On this reading of the Declaration, the foundation of American rights was not in fact completely settled and the meaning of natural rights was more contested than is typically understood. Major questions about the source of American rights vis-à-vis Parliament and the British empire were left unresolved. Peek below the general language of rights in the Declaration and an alarming number of potentially thorny issues in American political philosophy rise to the surface. The Declaration suppressed and hid these tensions, though at the same time using language that made evident that some of those issues still lay in the background. As a political document, then, the Declaration’s effect, if not ambition, was to leave aside philosophical differences and achieve a statement whereby all those who embraced some version of American rights – and the versions were in many ways radically different --- could find their voice in the document. In this way, the Declaration is a document that masks differences and complications, even as it points toward and reveals their presence. This alternative account emerges when the Declaration is set against both the background of natural rights arguments leading up to the Declaration as well as Jefferson’s own particular views of American rights before the Declaration.
The interpretation of the Declaration proposed here intersects with but diverges in critical ways from recent debates that has taken place about the meaning of the Declaration and its relationship to Lockean natural rights theory. Two key questions have tended to frame that discussion of the Declaration’s meaning: The first question, which interestingly enough reaches back to the early 1800’s, is whether the Declaration endorses a specific Lockean view of rights? A second and related question is how central is the statement of rights to the Declaration’s overall purpose. A brief look at these issues follows below.
Most interpreters agree that the Declaration contains what is generally regarded as the basic assumptions of natural rights philosophy. There are two key passages of the Declaration reflecting these assumptions. The first is the Declarations most famous passage regarding inherent individual rights.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The similarity of this statement to Lockean ideas and even language has been remarked on by many interpreters.[3] In addition to this statement about inherent rights, the declaration articulates a philosophy of government based on consent.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Key assumptions and language from the natural rights tradition are evident in these two famous passages: First, the idea that individuals are created equal and derive inherent rights from the equality of creation is the central contention in Locke’s Second Treatise. Second, the Declaration clearly articulates the notion that government is instituted to secure these basic rights and third, that governments therefore derive their “just powers from the consent of the governed”. Fourth, we also find present the idea that people have the right—indeed the duty—to throw off such a government if that government attempts to “reduce them under absolute Depotism.” So far all of these ideas are good natural rights concepts that as an interlocking set of views are articulated by Locke.
While there is a general agreement that the Declaration takes these ideas for granted, there is debate around whether the Declaration’s statement of rights and philosophy of government should be considered specifically Lockean or whether its source of ideas lies elsewhere.
This debate about the Lockean character of the Declaration reaches back to the federalist and republican tensions in 1820’s when federalist Thomas Pickering quoted a letter from John Adams to the effect that the Declaration contained no idea “but what had been hackneyed in Congress for two years before.” Adams had claimed in essence that the ideas “were in the air” and that all the ideas of the Declaration had been articulated already by the Congress’ Declaration of Rights of 1774 and by a pamphlet of James Otis.[4]
In response to Pickering and Adam’s statements, Jefferson wrote to Madison acknowledging that he had never intended to say anything original but that he had not turned to any particular book or pamphlet. Jefferson also responds to the charge that he had copied from Locke:
Pickering’s observations, and Mr. Adam’s in addition, that it contained no new ideas, that it is a commonplace compilation, its sentiments hacknied in Congress for two years before…may all be true. Of that I am not to be the judge. Richard Henry Lee charged it as copied from Locke’s treatise on Government…I know only that I turned to neither book nor pamphlet while writing it. I did not consider it as any part of my charge to invent new ideas altogether and to offer no sentiment which had ever been expressed before.[5]
Then on May 8, 1825 Jefferson in a letter to Henry Lee, acknowledged multiple sources of inspiration for the Declaration including but not limited to Locke. The important task in writing the Declaration was:
Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are impelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind…All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc. [6]
In many ways, the subsequent debate has merely amplified one or more of these various views represented here.
One stream of subsequent thought follows Jefferson’s own perspective and argues that Jefferson’s genius was in his ability to so eloquently capture the American mind or sentiments of the day. For example, Carl Becker, commenting on Adam’s claim that the Declaration was hackneyed, acknowledges that this “is substantially true; but as a criticism, if it was intended as such, it is wholly irrelevant, since the strength of the Declaration was precisely that it said what everyone was thinking. Nothing could have been more futile than an attempt to justify a revolution on principles which no one had ever heard of before.”[7] Similarly Boyd writes that “When he [Adams] said that the Declaration contained only hackneyed ideas, he meant it as criticism, thereby exposing himself to the obvious response: the greatness of the Declaration lay in the very fact that it expressed what Adams himself had said was in the mind and hearts of the people.”[8] Indeed, even if Jefferson had copied from Locke or elsewhere “the most that would be proved by this is that he had failed to be original in an enterprise where originality would have been fatal.”[9] And Boyd in his opening thus essentially follows Jefferson by stating that “In a broad sense, the author of the Declaration of Independence was the American people…If, as Jefferson intended, the Declaration was ‘an expression of the American mind’ he was in this sense the inspired amanuensis of the people.” And again: “The fact is that these broad concepts, familiar to any reader of Locke or Burlamaqui or Vattel, were so much a part of the air breathed by the patriots of 1776 that Jefferson could not have escaped using them and their more or less fixed phraseology even if he had desired to do so.” [10] Similarly Jefferson’s biographer Malone wrote that the ideas of the Declaration “belonged to no single man, but in his opinion, were the property of mankind”; and Merrill Peterson in his biography writes that -they “belonged to everyone and to no one”.[11]
But if one stream of thought claimed that Jefferson’s Declaration captured the ideas that were in the air, and thus represents “the American Mind”, a second strand stream of thought has argued the Declaration is most properly described as a Lockean document and owes its largest debt to Locke.[12] These two views are not necessarily mutually exclusive. Jefferson’s ideas can be Lockean and still be “in the air.” The view that the Declaration is Lockean was put forward most articulately by Carl Becker in The Declaration of Independence. Becker made at least four different and not necessarily compatible claims, a fact not appreciated by all post-Becker interpreters. Becker argued that 1) Jefferson copied from Locke, 2) had read Locke so many times he had memorized Lockean language which he used in the Declaration, 3) that Lockean ideas were in the air (or as Becker so eloquently puts it: “where Jefferson got his ideas is hardly so much a question as where he could have got away from them.”[13]) and 4) that natural rights were compelling to Jefferson and his cohorts because they solved a problem, namely, how to justify independence.[14]
While many have accepted or developed Becker’s assumption of Lockean influence, there has been extensive debate about one or more of Becker’s contentions: whether Jefferson knew or read Locke, whether Lockean ideas were in the air in general, whether Jefferson leaned literarily on other American sources of natural rights language, such as James Wilson’s pamphlet Considerations on the Nature and Extent of the Legislative Authority of the British Parliament [15] or George Masons’ Virginia Bill of Rights, both of which have strong linguistic similarities to Jefferson’s language in the Declaration.[16]
A third and more recent stream of thought, sometimes referred to as “the republican synthesis”, has taken a different tact, arguing that the emphasis on Locke has been overstated in the pre-revolutionary writings in general.[17] Emphasizing the importance of republican ideas and traditions, these writers stress how other intellectual traditions beyond that of Locke shaped American thinking, such as radical Whig thinking, republican views from antiquity or Scottish Enlightenment thinkers. In general, this line of interpretation has argued that Locke’s influence has been overstated in the interpretation of the ideas of the revolutionary thinkers. When this perspective is brought to bear on the Declaration, that document appears less like a Lockean natural rights document and instead is thought to have other influences, such the English Bill of Rights of 1688, which also grappled with the problem of removing the English King or the writing of the Scottish Enlightenment thinkers.[18]
In response to this republican synthesis which has downplayed and marginalized Locke, a recent series of important essays and books has reiterated the view that Lockean ideas were very important and influential in the period leading to the Revolution and to the Declaration itself. These responses argue that Lockean ideas were both distinctive in European thought and had themselves penetrated radical Whig thinking after the Glorious revolution. Locke’s rise to dominance in Whig thinking occurred after the Glorious Revolution and came to dominate and shape Whig radical thinking which influenced the colonial writers and ultimately the Declaration. The Declaration is thus reflecting a view of rights that was new with Locke’s Second Treatises and thus was “Lockean” whether or not Jefferson ever read Locke. The Lockean character of the Declaration thus differentiates the American Revolution, which was justified by natural rights theory, from the Glorious Revolution which rested on different assumptions. [19]
This essay takes a different approach to the question of the Declaration’s position on rights and argues that a key aspect of the Declaration’s meaning and function has been missed. Instead of asking whether the Declaration is Lockean or what literary documents are the source of its ideas, this essay argues that the Declaration’s position on natural rights and independence is much more equivocal than has been typically realized. The question about the source of Jefferson’s ideas is less relevant and interesting than the question of what position on rights was getting articulated. The answer to that question is more equivocal than previously thought. And the equivocation is one part of the Declaration’s meaning and function. Indeed, one central purpose of the Declaration was to unite the colonies behind the decision to declare independence. As such, the Declaration had to evade and sidestep any disagreements about rights that might still have lingered. In this sense, the Declaration had to speak as if “debate had ended” to use the words of Thomas Paine in Common Sense, when on the matter of American rights, the debate had not completely ended and there remained some significant disagreements about the foundations of and nature of natural and American rights. Jefferson himself did not agree with the view endorsed by the First Continental Congress in 1774, though that constituted the official view endorsed by the Congress on behalf of the colonies. When Jefferson sat down to write the Declaration, he had to find words to unite those who otherwise had diverging views. On this reading of the situation, Jefferson’s brilliance was, not only in his powerful rhetorical performance, but to find an articulation of rights that would seemingly be amendable to as many parties as possible, including himself. In this sense, “all its authority rests then on the harmonizing sentiments of the day,” to use Jefferson’s own words, is more profound and ironic an interpretation than anyone has fully appreciated.[20] If Jefferson’s Declaration of Independence captures the American Mind, then it does so in all the complexity and disagreement that characterized the “American Mind” at the time. There was arguably no single American Mind on the question of rights.[21] And the Declaration was harmonizing a tradition that did in fact have divergent views and loose ends. This statement on rights would have to speak not just to those who endorsed the first Congress’s position, but also those who did not, including its author. This interpretation of the Declaration then takes a position that both affirms and criticizes all of the various the positions in the debate. The Declaration does endorse natural rights language and a Lockean like view but at the same time it exhibits some of ambivalence about natural rights and the way natural rights are linked up to American rights. It thus affirms that Lockean ideas were in the air but also affirms that these ideas were contested. The American foundation of rights was not a settled matter.
In addition to rethinking the meaning and place of rights in the Declaration, this essay dovetails with the second critical question in the literature: just how central is the statement of natural rights to the Declaration’s purpose? It is generally conceded by most interpreters that the purpose of the Declaration was not primarily to state a theory of rights or government but to explain to the world why the colonies were declaring independence from Great Britain and why they deserved to be recognized an independent states among the nations of the world.[22] In fact, the colonies had already declared their rights in several earlier documents, particular the Declaration of Rights published by the First Continental Congress in 1774. What was new in the Declaration of Independence was not a theory of rights per se, but the justification of independence. As such, the Declaration was making a statement about the rights of the colonies to be recognized as independent political entities among the nations of the world. The right to be recognized as a nation equal with other powers of the world was itself a separate but related question to the matter of the Americans’ natural rights. For an individual or group of individuals could be living in a situation under which their natural rights were being violated without having thereby established a right to set up a separate state on a particular political territory and be recognized as a nation of the world. And it was one of the central purposes of the Declaration to make that latter claim. From this perspective, some interpreters emphasize that the Declaration thus appears to stand less in a natural rights tradition reaching back to Locke and more in the intellectual tradition reflecting on the Laws of Nations reaching back to thinkers such as Vattel.[23] In that tradition, key questions include when does a political entity get recognized as a state, and what rights do states have vis-à-vis each other, questions that cannot be entirely separated from the question of when do natural rights allow people to consent to the creation of a new state? As Vattel put it, for example, “we have already observed, that, in order to form this natural law of nations, it is not sufficient to simply apply to nations what the law of nature decides with respect to individuals.”[24]
While most interpreters agree that justifying the independent statehood of the colonies was the overarching purpose of the Declaration, it is generally conceded that the natural rights language and philosophy of government is critical to that argument. It is the rights language and philosophy of government that provides the justification for the colonies to be recognized as independent states. Indeed, the Laws of Nation tradition was built on and extended the natural rights tradition and was often conflated with it.[25] So there is no way to extract and separate the Law of Nations intellectual tradition completely from the natural rights tradition. The rights language and philosophy of government in the Declaration thus provides the framework in which independence and the justification of statehood makes sense. Without it, the larger argument falls apart.
As we shall see, however, the exact relationship between the natural rights argument and the theory of statehood is one part of what is equivocal in the Declaration. There were two or more very different justifications for statehood among the colonists and the Declaration equivocates on which one it endorses. That equivocation is key. Jefferson himself had a view that had been rejected by his colleagues on two separate occasions. The Declaration’s final language sounds more like the language of the First Continental Congress than it does Jefferson’s own view. Thus it makes sense that Adams could claim that Jefferson was saying nothing that was not already hackneyed since the First Continental Congress in 1774. From that reading of the Declaration, the very same theory of rights and statehood articulated by Congress was being articulated by the Declaration. And Adam’s was one of the committee members who approved the Declaration. But at the same time the language leaves equivocal exactly how the theory of individual rights married up to the theory of the state’s right. That equivocation was useful. It enabled the Declaration to include Jefferson’s own theory of rights, which he tried to smuggle into the Declaration. And in this way, Jefferson produced a declaration that transcended but left unresolved some of the underlying disagreements about the natural rights tradition and the American foundation of independence.
When Jefferson sat down to write the Declaration of Independence, the colonies had already achieved a quasi-official position defining how natural rights would figure into the basis of American rights. That understanding which was embodied in the First Continental Congress’ Declaration of Rights, however, was not the political theory that was consistent with Jefferson’s own personal view.[26]
Jefferson had several times tried to put forward an alternative understanding of rights and political theory. That understanding placed the foundation of American rights on the “right to quit society”, or what he latter called the right of expatriation.[27] Jefferson had argued that an individual has a natural right to quit one’s country. The settlers of North America had exercised this right to quit their country of birth, find new lands and establish new political entities there that were not subject to the sovereignty of Parliament or under the authority of the King. Jefferson viewed this right to quit society as a natural right and believed it provided the foundation to justify not only the legislative independence of the colonies but the fact that they were independent states among the nations of the world. Jefferson was not the first to put forward this view. His colleague from the Virginia House of Burgesses, Richard Bland, had made an almost identical argument in March 1766 near the close of the Stamp Act Controversy. Nearly ten years later in 1774, Jefferson made almost precisely the same argument as Bland, now taking Bland’s thinking a step further towards its logical conclusions.[28]
On Jefferson’s theory the settlers had no rights or obligations derived from the British Constitution when they immigrated to the lands in America. They left those behind. The new settlers, therefore, were not British Americans, the way many other colonial writers thought of them. After conquering the new lands—and Jefferson did think the settlers had conquered their lands— they set up their own legislatures and freely modeled them after the laws of their mother country and the Anglo-Saxon tradition. But that decision to adopt the laws of their home country had been done freely and was not mandated by any obligation. Indeed, Jefferson does not usually use the word “colonies” because for him the new entities always were free and independent states. Jefferson did assume, like many of his contemporaries, that the Anglo-Saxon ancestors were the ones who had brought the traditions of liberty and rights with them to England in the first place.[29] In his view, the various settlers of North America had adopted those laws and tradition of common law by choice. The fact that the settlers had by right quit their country of origin and set up new political states meant that they were not subject to Parliament’s authority. Parliament was simply another legislature in the empire representing its own people (the English) which did not include the new political entities in America. In this image of a “commonwealth of nations”, multiple political states had autonomy but were united by a common executive, the King, to whom each subject had allegiance.[30] The King in turn was obligated to offer protection to his subjects. In Jefferson’s view, the settlers had not only chosen to adopt British constitution but had also adopted the King as their chief officer. Under Jefferson’s view, the relationship of the various American states to the British Empire was less of “mother” to “child” but also something more than simply a contract between equal nations. They were a kind of “league of nations” with separate legislatures united under a common sovereign, whom they had freely chosen to adopt as their chief officer, in order to preserve ties with their country and traditions of origin. In this way, the American entities had separate legislatures not subordinate to Parliament but they were still subjects of the Crown having made that decision by choice. They were, in other words, under the executive authority of the Crown but not that of Parliament. On Jefferson’s view, therefore, there was never really a need to assert independence as a new state. Independence had already occurred in the past with the emigration of the settlers from England. The states were already independent. Jefferson had outlined these views in his Summary View a pamphlet that he wrote as instructions to the Virginia delegates to the First Continental Congress in 1774. Jefferson himself was too ill to attend the Congress, but he sent the pamphlet to Patrick Henry and Edmund Pendleton, the latter who “laid it on the table” for perusal by the delegates to Congress. It was this pamphlet which initially gained Jefferson a reputation as a strong writer and advocate for legislative independence.[31]
Jefferson’s perspective in Summary View could be and often is construed to be based on a Lockean view of natural rights. But that view is arguably an anachronism, projecting the views understood to be represented in the Declaration of Independence back onto his earlier writing which espoused different views. There are several reasons such a description is problematic at least without adding substantial nuances to the statement.
First, Jefferson’s view was not the view accepted by the First Continental Congress which was the first official body to approve the use of natural rights arguments as a basis of colonial rights.[32] Congress’ view was much closer to a different and what can be called a more classical natural rights argument as used by James Wilson and Samuel Adams, among others. At the very minimum, then, there are several fundamentally different views of how natural rights arguments justify American rights and independence. And at the heart of the disagreement between Jefferson and Congress was a number of key questions: do people have a natural right to quit society? Under what conditions? Do they have a right to create new political entities? What conditions must obtain for conquering a land to result in the right to new states? Did the settlers of North America conquer the land or find it uninhabited? We shall contrast the two views of rights below.
Second, it is at least debatable whether Locke would have agreed with the unqualified statement that people have a right to quit society, as I’ve discussed elsewhere.[33] Locke recognized that each individual had to consent to the social compact at maturity when the parents no longer had authority over their children. In Locke’s view, however, a person who had reached maturity and had explicitly consented to live in society could not leave it. Thus, for Locke the right to leave society would depend on whether individuals had explicitly consented to live under the compact of a society. Once in, you couldn’t leave without sufficient cause. While Jefferson’s right to quit society could be linked back to Lockean natural rights, Jefferson nowhere made any argument that would ground this view in Locke or in the natural rights tradition. He offers no recognition of the fact that Locke thought the right to quit society was lost once one explicitly consented to join the social compact. He simply assumed the existence of an unqualified natural right to quit society.
Third, Jefferson sometimes avoids the use of some classic natural rights language, a point I have developed in much more detail elsewhere.[34] While he calls the right to quit society a “natural right”, there is a marked ambivalence to the use of standard natural rights language in other places where it would make the most sense. We find nothing like the explicit statement about the nature or origin of government in social compact or an account of original rights in a state of nature as found in other writers like Bland, Wilson, or Samuel Adams, to cite earlier and contemporary examples of Jefferson. Although there is a statement about “life and liberty” being created by God, there is no general statement anywhere in his earlier essay about the right to “life, liberty and property,” a common refrain in the more classic statements of natural rights. There are other examples where reticence seems to guide Jefferson and a conscious avoidance of natural rights language. He emphasizes “God and the laws” rather than “God and Nature” and he emphasizes God’s role in creating liberty, in a way reminiscent of Otis, discussed in more detail below. Moreover, in a passage that deals with the right of the British people to depose their King, and thus a context that would normally seem quite appropriate for a reference to Lockean natural rights, Jefferson avoids the language altogether: “A family of princes was then on the British throne, whose treasonable crimes against their people brought on them afterwards the exertion of those sacred and sovereign rights of punishment reserved in the hands of the people for cases of extreme necessity” [emphasis added]. The use of the terms “sacred” and “sovereign”, as well as the language “inalienable” are all terms that could just as well refer to rights derived from the common law tradition, the historical tradition of rights reaching back to the Saxons which Jefferson believes the settlers adopted in America.[35] In Jefferson’s Summary View, the emphasis is not on general natural rights, but on the right to quit one’s society and set up a new political entity. Instead of an argument from general natural rights, there is still a reliance on what looks like a Whig historical argument that links American liberties back to British liberties and ultimately back to Saxons liberties. If one wants to call Jefferson’s view “a natural rights” or “Lockean argument” one at least has to qualify that statement by recognizing that it diverges in fundamental ways from arguments of other colonial writers and thinkers who more explicitly rely on what is a classic Lockean argument.
Even if one still wants to categorize Jefferson’s views as a natural right position, it is evident that it was neither the classic natural rights position nor the one that found the most favor. In fact, the First Continental Congress had rejected Jefferson’s point of view in the Declaration of Rights and Grievances it published in October 1774, even though it endorsed a natural rights argument. Jefferson himself was not in attendance, but views similar to his had been suggested by several of the delegates such as John Jay and possibly by Richard Henry Lee.[36] One of the key objectives of the First Continental Congress was to publish a statement of rights and this task occupied the Congress on and off for six weeks. Early during the Congress, delegates had debated whether natural arguments should be used in justifying the rights of the colonies. Despite initial disagreement about whether natural rights were a solid or feeble foundation of rights, Congress settled on the position endorsing natural rights within a matter of days. But it chose a view of rights that differed substantially from Jefferson’s. Though Congress came to the conclusion that the colonies were independent states, it arrived there by a very different route and based on very different assumptions than Jefferson, a point often overlooked or not given sufficient weight by interpreters.
Specifically, Congress adopted the position that was identical to that of Pennsylvanian lawyer James Wilson among others. According to that officially sanctioned view, the ancestors of the Americans had no right to quit society, or at least that right was not the basis of American rights. Instead they had brought their British rights and obligations with them from the mother country and were as entitled and obligated to them as natural born subjects. When they left Britain, therefore, they came as British subjects to the new colonies, obligated to all the duties and entitled to all the rights of people born there. They were British Americans when they arrived in North America. This view moreover was shared by many of the delegates to Congress such as James Duane, John Rutledge, Samuel Adams, John Adams, Richard Bland and others. Samuel Adams who endorsed a different natural rights argument than Jefferson had this to say about the subject of quitting society, “All Men have a Right to remain in a State of Nature as long as they please; And in case of intolerable Oppression, Civil or Religious, to leave the Society they belong to, and enter into another.” For Adams, the right to quit society was conditional on intolerable oppression, and for Adams and many colonial writers that condition had not obtained in the initial migration. The settlers came to the lands in America as bona fide British subjects.
But a problem emerged because of the colonies’ geographical distance from Great Britain. In the view of Congress, and many colonial writers, that geographical distance made it by definition impossible for Parliament to give the colonies adequate representation in Parliament. Congress, of course, took for granted that representation was a key right of the British Americans. But Congress rejected the view that adding American representation to the British Parliament would meet those requirements of consent. It also rejected attempts, like that of Galloway, to construct a new system of government that would attempt to meet this requirement of representation. At issue was a broader debate on the nature of representation.[37] Congress, like many colonial and British writers, had come to the conclusion that there was no way to satisfy the requirement of British American representation in Parliament. The geographical distance meant that the representatives “there” did not live among their constituents “here” and thus by definition could not represent them, as living among the constituents and being impacted by the same laws was one way in which representation was understood, reaching back to Locke. And Americans had rejected the British claim that representation had always been “virtual” anyway.[38] Since representation, by definition, could not be provided to the colonies, the colonists’ natural rights were infringed. On the view of Congress, then, it was this inherent, inevitable and irreversible infringement of natural rights that justified the separate statehood of the colonies. Like Wilson and others, Congress therefore argued that the colonies had to be independent states with their own legislature because British American’s natural rights could be protected in no other way. By this, Congress meant that the colonies should be supervised by their own legislatures, which were wholly independent of and not subordinate to Parliament.
This position taken by Congress is thus fundamentally different than that put forward by Jefferson in Summary View.[39] This point has often been missed or under appreciated by interpreters of Jefferson and the Declaration. In contrast to the position taken by Congress, Jefferson’s position on independence did not have to depend on a theory of representation at all. He saw the initial political independence occurring as soon as the settlers migrated from England. The migration itself was an act of independence. The whole question of representation was thus irrelevant to his theory of independence whereas the view adopted by Congress depended completely on the inherent inability of Parliament to meet the representation requirement which was inherent in natural rights theory.
It was not only the First Continental Congress that rejected Jefferson’s views. Jefferson tried once again to get his view endorsed when he attended the Second Continental Congress in June 1775. On this occasion, he was called upon to develop the second draft of the “Declaration of the Causes and Necessity for Taking Up Arms” to explain why the colonies were going to war. In his draft of this declaration, Jefferson once again put forward his own theory of rights. But this time his view was rejected by the committee, this time led by John Dickinson and possibly William Livingston. This rejection was not simply a softening of a more radical position, as is sometimes assumed.[40] In fact, Dickinson’s version was quite forceful in its own right. But Dickinson’s revision was a rejection of Jefferson’s theory of rights. The “Declaration of the Causes” published by the Second Continental was Dickinson’s reworked version that substantially demoted if not obliterated the theory of the ancestors’ rights that Jefferson had put forward. Dickinson’s version was much more consistent with the rights position that the First Continental Congress had put forward, although Dickinson’s version put much greater stress on the role of God and clothed the natural rights arguments in more theologically sensitive language, a point to which we return.
In addition to the fundamental disagreement about the origin of the settler’s rights, Jefferson and Congress also diverged on the question of allegiance to the Crown. It is important to separate this question from the issue of subordination to Parliament. On Jefferson’s view, the right to quit society implied the right to freely repudiate the allegiance to the Crown, not just the sovereignty of Parliament. The right of expatriation meant that one can leave one’s country at will and also leave behind the status as a subject to the Crown. One’s allegiance to the Crown and expectation of protection from the Crown do not follow one if one leaves one’s country of origin.[41] In Jefferson’s view, the settlers came to this country with neither an executive officer nor an inherited monarchy. But they did freely choose to adopt the King as their executive leader.
What is emerging in embryonic and undeveloped form in Jefferson is the notion that the executive officer should be the representative of the people and chosen by them, a view that became more central as the colonies moved towards independence. A year and a half after Jefferson’s Summary View, Thomas Paine unleashed a biting critique of monarchy arguing it was an institution incompatible with natural rights. But that emerging perspective differed from the standard view. Natural rights theory, at least as formulated by Locke, had never taken that position. On the contrary, Locke, Montesquieu and many Americans following the same line of thinking, such as James Otis and others, had assumed that natural rights were compatible with three different forms of government: democracy, aristocracy and monarchy. As long as the people chose the particular form of government under which they lived, the minimum standard of government by consent had been met. As long as monarchy was not absolute and did not overstep its bounds of power, it was compatible with natural rights and consent. Indeed, many writers thought the “blended” form of British government, which combined democracy, aristocracy and monarchy was the most perfect way of achieving and protecting liberty.[42] Jefferson initially accepted this view. But Jefferson assumed that because the settlers had left Great Britain and had a right to quit that society, they were no longer subjects of the Crown. But they freely chose to adopt the King as their executive officer. And once adopted, the King had all the rights of the executive rights of Crown such as the “exercise of his negative power” (i.e., veto power), a responsibility Jefferson initially argued that the King has underutilized in controlling the bad behavior of Parliament.[43] For Jefferson, the King’s (executive role) was to mediate between the various states of the empire for the good of the whole.
What Jefferson’s early position in Summary View never makes explicit is how does one end the relationship with an “adopted” monarch? Can one un-adopt him and if so how? Must one depose a monarch who has been adopted in a voluntary way in the same way that one deposes an inherited monarch on the throne? Or are the criteria to depose an “elected” King easier to meet in this case? English history had already established a precedent for removing a King from the throne in 1649 with the beheading of King Charles I and in 1688 with the “abdication” of James II from the throne. But those were instances in which an inherited monarch had been deposed. Was the standard the same for removing a King one had chosen by choice? In the classical understanding of the monarchy, there was a reciprocal relationship between the Crown and the people and each had its own domain of influence. The Crown was viewed as an executive body that had key roles in protecting the state and the people and by playing a key role balancing the diverse interests of society.[44] A pure democracy was in fact viewed as potentially dangerous since it lacked the kinds of checks and balances of the English constitution. Jefferson reflected this view of the Crown when he described the King as “no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers, to assist in working the great machine of government, erected for their use and consequently subject to their superintendance.” Jefferson also saw the King’s role “as yet the only mediatory power between the several states of the British empire.”[45] This is what it meant in part to be subjects of the Crown. In return for their allegiance, the monarch was obligated to protect the people and operate the government within the limits set by the people. While natural rights theory had insisted that the Crown’s power over the people was balanced by representative bodies, such as the Upper and Lower houses of Parliament, it did not initially require an elected executive branch.
When Jefferson argued that the settlers had created new political states with the King as the chief executive officer, he made allusion to the possibility that power could revert to the people. But Jefferson did not thoroughly develop his position and explain the conditions under which the King could be deposed. Thus we look in vain in Jefferson’s Summary View for an understanding of the process to remove a chief officer who had abused his powers.
Leaving Jefferson’s position and turning back to the view of Congress, a different view of allegiance is evident, more in line with the thinking of Wilson and John Adams, among others. While for Jefferson allegiance to the Crown could be severed by the right to quit society, on Congress’ view the colonies came to this country with their British rights intact and as subjects to the Crown.
Resolved, N. C. D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.
Resolved, N. C. D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.
The settlers were British Americans initially and came to the American continent subject to Parliament’s authority and as subjects of the Crown. In Congress’ view, however, Parliament could not retain its authority over the settlers, because of the failure to meet the representation standard required by natural rights. But the relationship of the settlers to the Crown was of a different nature. That relationship remained in tact unless the Crown overstepped its powers or abandoned its protection. James Wilson puts this explicitly in his essay arguing that in the case of Ireland and in the case of the Americas: “Allegiance to the king and obedience to the parliament are founded on very different principles. The former is founded on protection; the latter, on representation.”[46] Wilson is here reflecting a widely shared view at the time that the issue of representation was limited to the matter of legislation, and not the monarchy.
In the view of Congress, James Duane, James Wilson, John Adams and a large number of others, the settlers of America brought their allegiance to the King and status as subjects with them to America. They were British subjects in British America. That relationship could remain in tact across geographical distance, even if representation across that geographical distance could not. While for Jefferson that relationship was a matter of choice, in the view of Congress, the relationship was already in place at the founding of the American settlements and was obligatory unless the conditions for deposing the Crown occurred. And one of the conditions for ending that relationship was the King reneging on his obligations of protection. Natural rights arguments, on this view, tended to be used to justify the independence of the legislature much more than the end of allegiance to the Crown.
In addition to the question of allegiance to the Crown, there was another thorny problem lurking underneath the surface: what right did settlers have to lands in America? The whole issue of how lands were acquired by states in general and by the settlers of America was a Pandora’s box that no one really wanted to examine in too much detail, for good reason. Inside were a number of competing views about how land rights of political entities originated and came about. Indeed, some individuals had argued that natural rights theory was wrong precisely because governments so often were created through conquest, rather than social compact.[47] Locke himself had pondered the question of political territories in quite some detail in his Second Treatise, for the question of how social groups acquire land is related to the issue of how individual’s consent to live in political groups and how individuals acquire property. For those who thought deeply about the issue of colonial rights, the question of how lands in America were acquired was potentially an embarrassing difficulty for the theory of American rights in general and a matter on which not everyone agreed. And it was certainly an issue relevant to the claim of the Declaration--that the political entities on the American lands deserved to be recognized as free and independent states. But what gave the settlers rights to the land in the first place? [48]
Jefferson described the settlement of America as a conquest by the settlers, achieved through their own efforts and blood. That conquest in Jefferson’s view gave the settlers the right to the lands that they occupied and thus grounded their right to create political territories on those lands. Their right to found new states thus rested not just on the right to leave their country of origin but on their legitimate claim to the land which they had conquered through their own efforts, without the help of the Crown.
America was conquered, and her settlements made, and firmly established, at the expence of individuals, and not of the British public. Their own blood was spilt in acquiring lands for their settlement, their own fortunes expended in making that settlement effectual; for themselves they fought, for themselves they conquered, and for themselves alone they have right to hold.[49]
This then provides the justification for the settlers claim to land. “From the nature and purpose of civil institutions, all the lands within the limits which any particular society has circumscribed around itself are assumed by that society, and subject to their allotment only.”
Jefferson links his view back to the Anglo-Saxon notions of property to argue that the lands in America did not belong to the Crown.
Feudal holdings were therefore but exceptions out of the Saxon laws of possession, under which all lands were held in absolute right. These, therefore, still form the basis, or ground-work, of the common law, to prevail wheresoever the exceptions have not taken place. America was not conquered by William the Norman, nor its lands surrendered to him, or any of his successors. Possessions there are undoubtedly of the allodial nature. Our ancestors, however, who migrated hither, were farmers, not lawyers. The fictitious principle that all lands belong originally to the king, they were early persuaded to believe real xxx?
Jefferson is arguing here that possession of the land belongs in the hands of the settlers and not the Crown and that this theory of property extends back to the Anglo-Saxon law which formed the basis of common law tradition. The early settlers (including his colleagues who did not share his view) were duped into believing the principle that all lands belong originally to the King.
In Summary View, Jefferson did not explicitly acknowledge the presence of natives in America, although at one point he describes the “settlements having been thus effected in the wilds of America” almost implying that the lands were unoccupied and thus up for grabs, according to natural rights theory. But his claim that the settlers conquered the lands belies that perspective, implying that he thought there was a right to conquest and a conquest had taken place. But the justice of this conquest, and the relationship to rights argument, was a question that Jefferson passed over in deafening silence in Summary View. Congress was also able to sidestep the question of whether lands in America were conquered. But others felt the need to address the question.
James Wilson, whose view was identical to Congress in other respects, took up this question in his Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, completed in 1770 and published in 1774. Wilson considered the view of William Blackstone who had pondered the status of the colonies in his Commentaries on the Laws of England (1765-1769). Wilson quotes Blackstone’s views on the status of the American “plantations”.
Besides these adjacent islands (Jersey, etc.), our more distant plantations in America and elsewhere are also, in some respects, subject to the English laws. Plantations, or colonies in distant countries, are either such where the lands are claimed in right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties…
Our American plantations are principally of this latter sort; being obtained in the last century, either by right of conquest, and driving out the natives (with what natural justice I shall not at present inquire) or by treaties." 1. Bl Com. 106. 107.
In this passage quoted by Wilson, Blackstone regarded the colonies in America as settlements created through conquest and treaty and thus not necessarily subject to the laws of England. In the extended passage of Blackstone, which Wilson doesn’t quote, Blackstone writes that
And both these rights [the right to claim lands by occupancy and by conquest] are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws ; but, till he does actually change them, the antient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country. [50]
For Blackstone, different laws apply depending on how the colony came to be acquired. If the lands were uninhabited, then the colonization by English subjects immediately resulted in the imposition of English laws. But in conquered or ceded countries—and the lands of America fell into that category according to him—then it was up to the King to decide what laws apply. In the latter case, therefore, the lands are not under Parliament’s control but they are under the control of the Crown.
It is interesting to note that in passing Blackstone raises, but does not develop, the question of “with what natural justice” the settlers drove out natives.
James Wilson challenged Blackstone’s understanding of the facts but not his interpretation of law.[51] In disagreeing with Blackstone, Wilson subtly shifted the discussion away from the conquest of the natives to the question of whether the colonies had been conquered. And in doing so, Wilson articulates a view that differs quite sharply from Jefferson’s.
It will be sufficient for me to show, that it is unreasonable, and injurious to the colonies, to extend that title [conquest] to them. How came the colonists to be a conquered people? By whom was the conquest over them obtained? By the house of commons? By the constituents of that house? If the idea of conquest must be taken into consideration when we examine into the title by which America is held, that idea, so far as it can operate, will operate in favour of the colonists, and not against them. Permitted and commissioned by the crown, they undertook, at their own expense, expeditions to this distant country, took possession of it, planted it, and cultivated it. Secure under the protection of their king, they grew and multiplied, and diffused British freedom and British spirit, wherever they came. Happy in the enjoyment of liberty, and in reaping the fruits of their toils;
Wilson shifts the question from conquering the natives, which Blackstone had apparently assumed, to the question of whether Britain had conquered the colonists. Far from being conquered, the colonists had come under auspices of the Crown and settled the lands peacefully. Then Wilson turns to the thorny question of how the settlers had come to have title to the land and whether that should be considered a conquest. “That idea, so far as it can operate, will operate in favour of the colonists, and not against them,” since they came at their own expense, took possession of the lands and cultivated them. The language of possession and cultivation suggests, not an act of conquest, but a settlement of unoccupied lands and the rightful possession by settling and working the land. Wilson thus seems to hold the view that the natives were living in a State of Nature and that land in such an unoccupied state could be taken for use. This seems to reflect a view similar to that held by others, such as Vattel, who in 1759 wrote in the Law of Nations, for example, that
There is another celebrated question, to which the discovery of the new world has principally given rise. It is asked whether a nation may lawfully take possession of some part of a vast country, in which there are none but erratic nations, whose scanty population is incapable of occupying the whole? We have already observed (§ 81), in establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate. Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth, as we have already observed, belongs to mankind in general, and was designed to furnish them with substance: if each nation had form the beginning resolved to appropriate to itself a vast country, that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants.[52]
Here Vattel is building off a Lockean justification of property origin to justify the European entitlement to the American lands. Since God gave the earth to all humans equally each has an equal right to take possession of parts that can be put to productive use, for their own purposes. But people are not allowed to take more than they need. Since the natives were not making any true use of the land, they cannot be said to possess it, and therefore, therefore the people of European were lawfully entitled to take possession of it.
Wilson seems to hold a similar view, though he does not make it explicit: the British settlers came to America, took possession of unoccupied land, and thereby were subject to all the English laws. He thus disagrees with Blackstone on the facts (they were uninhabited lands) but agrees with Blackstone on the law: as Blackstone put it “that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them.[53] What constitutes “an uninhabited country” of course is an interesting question in its own right, but the point here is that Blackstone had assumed that America was not “uninhabited” and that a conquest had occurred, while Wilson had assumed a rightful possession of unoccupied land, under the auspices of the Crown.
That the issue under debate about land, possession and conquest touched on and intersected with the question of natural rights was acknowledged by Blackstone in that same passage that Wilson interestingly enough skipped. As Blackstone put it: “And both these rights [i.e. conquest or taking possession of deserted land] are founded upon the law of nature, or at least upon that of nations.” The equivocation of whether the right of land possession and political territory is a question of natural rights or law of nations is precisely the same equivocation that arises in the Declaration, as discussed earlier.
About the same time, John Adams, offered one of the more profound statements on the moral question at stake, in his Two Replies of the Massachusetts House of Representatives to Governor Hutchinson, written in 1773. [54] Adams contested Hutchinson’s claim that “at the Time that our Predecessors took Possession of this Plantation or Colony, under a Grant and Charter from the Crown of England, it was their Sense, and the Sense of the Kingdom, that they were to remain subject to the Supreme Authority of Parliament.”[55] Discussing the original possession of land for the Massachusetts colony, Adams writes that
We would take a View of the State of the English North American Continent at the Time when and after Possession was first taken of any Part of it, by the Europeans. It was then possessed by Heathen and Barbarous People, who had nevertheless all that Right to the Soil and Sovereignty in and over the Lands they possessed, which God had originally given to Man. Whether their being Heathen, inferred any Right or Authority to Christian Princes, a Right which had long been assumed by the Pope, to dispose of their Lands to others, we will leave to your Excellency or any one of Understanding and impartial Judgment to consider. It is certain they had in no other Sense forfeited them to any Power in Europe. Should the Doctrine be admitted that the Discovery of Lands owned and possessed by Pagan People, gives to any Christian Prince a Right and Title to the Dominion and Property, still it is vested in the Crown alone. It was an Acquisition of Foreign Territory, not annexed to the Realm of England, and therefore at the absolute Disposal of the Crown. For we take it to be a settled Point, that the King has a constitutional Prerogative to dispose of and alienate any Part of his Territories not annexed to the Realm.
Adams makes two points here that differentiate his view from others. In contrast to the view of Wilson (and someone like Vattel), Adams assumes that the “Heathen and Barbarous People” had “a Right to the Soil and Sovereignty in and over the Lands they possessed, which God had originally given to Man.” In contrast to Wilson (but like Blackstone and Jefferson), Adam assumes that the lands had been possessed by the natives.
Did the Europeans have the right to conquer and take away those lands? With obvious sarcasm, Adam’s questions the doctrine that Christian princes have a right to take away lands from pagan peoples on religious grounds. But even if you grant that dubious principle, Adam’s argues the land would nonetheless be annexed to Crown and not to the Realm of England. Therefore, the King has the right to dispose of land that he had conquered. By implication, Adam’s is arguing that the King could grant this land to the settlers, and the settlers would not be subject to Parliament’s authority, though they would be subjects of the Crown.
Adams here arrives at a view of a commonwealth of nations but along a different path than either Jefferson or Wilson. In his view, the King has acquired the land (whether ethically or not) and could grant those to the settlers without subjecting them to Parliamentary authority. This view differed from Wilson who argued that the settlers had peaceably settled unoccupied land and taken possession of the land themselves as British Americans. Jefferson for his part argued that the settlers had conquered the lands (they were never under Parliament or the Crown’s disposition). On the moral question involved, Adams acknowledges the problem but places the blame squarely on the shoulders of the Crown, Wilson sidesteps the problem arguing the lands were unoccupied, and Jefferson simply considers the settlement a conquest, without considering the moral question at all.
What we see here is fundamental disagreements about a core and critical issue that ties directly to natural rights theory and the law of nations, and thus ultimately to the question of whether the American settlers were by right free and independent states. Some of these disagreements of course were partially settled in the First Congress’ Declaration of Rights when it sided with the position like that James Wilson. The Congress held that the settlers settled the lands under the auspices of the British Empire. But the question of conquest and rightful occupation of land was an issue on which there was deep underlying disagreement and on which there had been no real resolution.
In the final analysis, of course, the positions of Jefferson, Congress, Wilson and Adams had ended up in very similar places. From the end game, all had argued that the colonies are independent states in the sense that they are not subject to Parliament’s authority at all and should be governed only by their own legislatures. In each of these views, the settlers had an allegiance to the King who was expected to provide protection and who had executive duties. The similarities in “end state” of the various positions have led many interpreters to conflate these very different positions and assume the Declaration therefore was an expression of a monolithic American Mind and thus expressing ideas that had been hackneyed in Congress for over a year. But the underlying assumptions about rights in general, about how they relate to American rights, and the development of statehood and territory, are quite different.
Jefferson was not was not the only colonial writer who had doubts about the more classic natural rights position, at least in the version adopted by the First Continental Congress. During the First Congress in 1774, only a year and a half before the Declaration of Independence, there was still substantial debate on whether natural rights provided a solid or feeble foundation for American rights. Reading retrospectively backward from the Declaration of Independence, these doubts about natural rights are often forgotten and portrayed as the opinion of “conservatives” or moderates resisting the momentum towards independence. The story that is often told is that the movement towards independence was tied into an inexorable shift towards natural rights arguments. [56]
But the various positions on natural rights were much more complicated than that story suggests. Not all thinkers who turned to natural rights language agreed on basic assumptions and principles of what natural rights meant. Furthermore, many including the Congress felt that natural rights simply complemented the argument from British rights (the position of the Congress and James Wilson), but that natural rights arguments did not stand on their own. In addition, the embrace or rejection of natural rights did not neatly align with moderate or radical position. For example, some moderates such as John Jay endorsed natural rights arguments quite forcefully, though ultimately siding with those like Galloway who wanted to try to preserve the union with Great Britain.
As late as 1774, several delegates were still expressing serious reservations that natural rights arguments constituted a “feeble foundation.” This was by no means the first time that doubts had been raised about natural rights as a foundation for American rights. In the decade leading up to revolution there were various doubts about the social contract theory and theory of government’s origin upon which classical natural rights theory seemed to rest. Elsewhere I have detailed various objections and doubts about natural rights theory by several leading colonial thinkers in the period leading up to the First Continental Congress.[57] Writers like Massachusetts lawyer James Otis, Rhode Island governor Stephen Hopkins, Maryland lawyer Daniel Dulany, and Massachusetts radical Samuel Adams had all expressed serious doubts about some of the critical assumptions of the natural rights tradition. They felt that one of critical and central assumptions of the natural rights tradition was problematic, namely, the idea that government was itself founded in social compact. This of course was a central part of Locke’s argument in explaining how individuals consent to give up some of their natural liberties so as reap the benefits of joining society. It was not that these writers doubted the idea that government should be governed by consent of the people or that representation was a critical requirement of a just government. No one doubted that proposition. But they doubted that most historical governments actually were founded that way and they were not convinced that the original institution of government in general originated that way. They may even have found evidence of such a doubt in the story of how the British American settlers acquired their own lands, as we have already seen.
A careful reading of Locke’s Second Treatise would actually have shown that Locke had in fact anticipated this criticism and had made clear that he was arguing, at least at times, that government should be founded in natural rights, not that it always was founded that way. [58] But the American writers attributed to the natural rights tradition both convictions and assumed that one grounded the other: governments actually did and therefore should arise from real actual social compacts. The two propositions were linked together in the way they understood the natural rights tradition. The claim that government should be founded on consent was based on the claim that governments did arise that way. If therefore that assertion was false then the conclusions of natural rights philosophy-that government should attend to the people’s happiness and protect their rights --was theoretically shaky. At the very least, other grounds for these truths would have to be found outside of the natural rights tradition.
Noted colonial writers expressed precisely such doubts about the natural rights tradition. Looking back into history, it appeared that governments had often been founded on conquest and colonization and there were few examples of governments that were actually created by people coming together and creating a social compact. To be sure, there were examples of republics in antiquity, and these provided inspiration to the colonial writers. But there were many--indeed possibly a preponderance of existing and historical governments-- that had risen by other means than social compact and were ruled by tyranny. On what basis, then, could one argue that the ideal state of society was consent of the governed?
A second and related issue was the purported origin of government as a human institution in general. Natural rights theory seemed to imply that the very beginning of government as a human institution had arisen when some individuals left the State of Nature and made a social compact. But that account raised various kinds of difficulties as well. For more religiously oriented individuals, this account of government’s origin seemed to downplay God’s role in the creation of government, and appear to ascribe an inappropriate preponderance of responsibility to the human role in the development of government. This bothered some more religiously and theologically minded writers who thought that the emphasis on the human role in government’s origin flew in the face of standard covenantal assumptions. An alternative theory of government’s origin thus attributed the creation of government much more explicitly to God. On that theory, at least the way some writers explained it, government was not a matter of social compact—there was no choice about it. It had been ordained as part of creation itself. [59]
By moving the origin of government back into creation such thinkers risked undermining the very foundations of the natural rights arguments. After all, Locke understood the individual decision to submit to government to involve a renunciation of some natural liberties. There was a trade-off, some of the freedoms in the State of Nature for the benefits of social life. Indeed, it was precisely the view of government as founded in creation that had justified monarchists such as Filmer and from whom Locke had differentiated his views. Other writers left the choice of government up to individuals but argued that the state outside of government was not “natural liberty”, but a “state of sin”. The choice between living under political arrangements and living outside of such arrangements was cast in religious-theological terms. Only by joining a social system one acted in accordance with God’s will.
Stephen Hopkins, the governor of Rhode Island, succinctly expressed the circulating doubts about natural rights theory this way in his pamphlet entitled , The Rights of the Colonies Considered (Dec. 1764).[60]
The safety resulting from society, and the advantage of just and equal laws, hath caused men to forego some part of their natural liberty, and submit to government. This appears to be the most rational account of its beginning, although, it must be confessed, mankind have by no means been agreed about it. Some have found its origin in the divine appointment; others have thought it took its rise from power; enthusiasts have dreamed that dominion was founded in grace. Leaving these points to be settled by the descendants of Filmer, Cromwell and Venner, we will consider the British constitution, as it at present stands, on Revolution principles, and from thence endeavor to find the measure of the magistrates’ power and the people’s obedience.[61]
Similar doubts were expressed in much more detail by James Otis whose pamphlet The Rights of the British Colonies Asserted and Proved (July 1764) was widely read in the colonies. Otis called attention to three different theories of government’s origins, each of which he found inadequate:
What shall we say then? Is not government founded on grace? No. Nor on force? No. Nor on compact? Nor property? Not altogether on either. Has it any solid foundation, any chief cornerstone but what accident, chance, or confusion may lay one moment and destroy the next? I think it has an everlasting foundation in the uncheageable will of God, the author of nature, whose laws never vary. [62]
After rejecting the standard known theories of government origins, including the theory of social compact, Otis endorses the more theological and religious view that government is founded in God’s will at creation. While various passages in Locke could actually support this same point, Otis and others who inclined to more religious language thought that natural rights theory put too much emphasis on human decision and choice in the creation of government.[63] Thus Otis shifts the creation of government back into creation itself and therefore denies that there was any social compact at all that was initiated by human actions. Government originated with creation. It was not a decision entered into by choice by human beings after creation. Other religiously and theologically oriented writers would follow suit, not just clothing natural rights language in covenantal and theological language, but changing some of the basic assumptions of the tradition.[64]
Otis records many more circulating reservations about natural rights theory than simply the prominence of human choice in the creation of government.
On the other hand, the gentlemen in favor of the original compact have been often told that their system is chimerical and unsupported by reason or experience. Questions like the following have been frequently asked them, and may be again.
“When and where was the original compact for introducing government into any society, or for creating a society, made? Who were present and parties to such compact? Who acted for infants and women, or who appointed guardians for them? Had these guardians power to bind both infants and women during life and their posterity after them? ….Is it possible for a man to have a natural right to make a slave of himself or of his posterity? ..What will there be to distinguish the next generation of men from their forefathers, that they should not have the same right to make original compacts as their ancestors had? If every man has such right, may there not be as many original compacts as there are men and women born or to be born? Are not women born as free as men? Would it not be infamous to assert that the ladies are all salves by nature? If every man and woman born or to be born has an will have a right to be consulted and must accede to the original compact before they can with any kind of justice be said to be bound by it, will not the compact be ever forming and never finished, ever making but never done?…”
I hope the reader will consider that I am at present only mentioning such questions as have been put by highfliers and others in church and state who would exclude all compact between a sovereign and his people without offering my own sentiments upon them; …Those who want a full answer to them may consult Mr. Locke’s discourse on government, M. De Vattel’s law of nature and nations, and their own consciences. [65]
Otis concludes:
And say the opposers of the original compact and of the natural equality and liberty of mankind, will not those answers infallibly show that the doctrine is a piece of metaphysical jargon and systematical nonsense?” Perhaps not. [66]
Otis’ conclusion, “perhaps not”, surely is not a ringing endorsement of natural rights theory and the theory of social compact, coming as it does after a long series of known objections against the theory of “original compact.” The system is thought to be “chimerical” , “metaphysical jargon”, and “systematical nonsense.” It also is “unsupported by reason or experience.” Otis then lists a series of probing objections that could be posed to the theory. What kind of force does the law have for those who were not at the original compact and are descended from those who were? Do they have the same rights and obligations? Can they go off and make a new social compact? Why not? What about children and women? Were they included in the social compact? These questions raise important philosophical and moral questions at the heart of social contract theory. To be fair, Locke had thought about and many of these questions and tried to address them in the Second Treatise, as Otis himself noted. But clearly these objections were still important enough that Otis thought necessary to review them and to claim that he was basing his argument on a different theory altogether. That social compact theory had such theoretical problems was not lost on many colonial writers.
As late as 1774, doubts about natural rights arguments were still clearly visible in the debate among delegates at the First Continental Congress. Some of the delegates still argued that natural rights arguments presented a “feeble foundation” and preferred to argue from the British Constitution and from Compacts and Charters. In the end, Congress decided to make a safe decision and base colonial rights on natural rights as well as the British Constitution, charters and Compacts. But as we have seen above there were still serious doubts and open fissures left unresolved in those who adopted some version of natural rights argument.
Jefferson’s own theory of rights, as expressed in Summary View, sits comfortably within this tradition of political thinking that has doubts about the classic theory of natural rights. To be sure, Jefferson calls the right to quit society a natural right. And while one still might want to call Jefferson’s position a “natural rights” argument, it was fundamentally different than that of others such as Wilson and Adams and the position endorsed by the Congress. Indeed, he never invokes a general theory of government, or social compact, the way others like James Wilson and Samuel Adams did. Nor does he argue for American rights based on the right of representation. When he does talk about the origin of liberty, Jefferson’s language seems much more like that of James Otis and others in the theological sub-tradition, emphasizing God’s creation of liberty, rather than an original compact. At times, his language seems to emphasize that knowledge of liberty was intuitive and innate, based on human feelings, rather than discerned through reason the way John Locke had implied.[67] Indeed, Jefferson’s right to quit society enables him to argue, not from a general theory of political consent, but like Hopkins and Dulany before him, from a specific compact that was created between the settlers and the Crown of England. Jefferson appeals to a concrete historical compact made between the settlers and Crown, when they chose to adopt British laws and the King as their elective head. But if one wants still wants to say that Jefferson belongs to the natural rights tradition, one at least has to recognize that that tradition was not monolithic, and that there was substantial debate on key aspects of American rights: whether settlers brought British rights with them, whether representation was relevant to the argument, whether government was founded in social compact, whether allegiance to the Crown and subordination to Parliament followed the same principles, and how rights to the land were acquired. At the very least, Jefferson held an alternative view of rights from that endorsed by the First Continental Congress. Having now situated Jefferson’s own thinking in the context of debates on American rights, we can turn back to the moment in time when he sat down to write the Declaration of Independence and see how these same issues were still on Jefferson’s mind.
To understand Jefferson’s frame of mind when he sat down to write the Declaration it is helpful to briefly back up to the moment after the Second Continental Congress rejected his draft Declaration of the Causes and adopted Dickinson’s reworked version. After writing this draft, Jefferson remained at the Second Continental Congress in Philadelphia working on committees until December 1775 when he returned home. He did not arrive back to the Congress until May 14, 1776. In the intervening months, Thomas Paine has published his Common Sense (January 1776), John Adam’s had published his Thoughts on Government (Spring 1776), and several colonies were now ready to declare independence.
We know that in the intervening period since he left the Continental Congress in December 1775, Jefferson had not yet given up his pet theory about the ancestor’s rights. In the period back at home, he was again trying once more to support his theory that the ancestors were entitled to found new states. In an essay that was never published, entitled Refutation of the Argument that the Colonies Were Established at the Expense of the British Nation, Jefferson this time turns to a detailed historical argument to prove that the colony of Virginia had no obligation to Parliament.[68] He surveys the various charters that the Crown had made with Sir Walter Raleigh and his predecessors, showing how the lands were granted by the Crown to these early settlers. After surveying the role of Sir Walter Raleigh in founding of Virginia, Jefferson concludes
This short narration of facts, extracted principally from Hakluyt’s voyages, may enable us to judge of the effect which the charter to Sr. Walter Ralegh may have on our own constitution and also on those of other colonies within it’s limits, to which it is of equal concernment. It serves also to expose the distress of those ministerial writers, who, in order to prove that the British parliament may of right legislate for the colonies, are driven to the necessity of advancing this palpable untruth that “the colonies were planted and nursed at the expence of the British nation”: an untruth which even majesty itself, descending from it’s dignity, has lately been induced to utter from the throne. Kings are much to be pitied, who, misled by weak ministers, and deceived by wicked favourites, run into political errors, which involve their families in ruin: and it might prove some solace to his present majesty, when, fallen from the head of the greatest empire the world has seen, he shall again exhibit in the political system of Europe the original character of a petty king of Britain, could he impute his fall to error alone.[69]
This historical essay was provoked by the King’s speech at the start of Parliament in October 1775 when the King declared that the colonies were in a state of rebellion and that too much was at stake “to give up so many colonies which she has planted with great industry, nursed with great tenderness, encouraged with many commercial advantage, and protected and defended at much expence and treasure”[70]Jefferson apparently read the King’s speech on January 19, 1776 and likely wrote his response at that point after that time.[71] In this essay, we find Jefferson providing a historical justification for the argument he had earlier made in Summary View and Declaration of the Causes. It is a “palpable untruth” that the British nation planted and nurtured the colonies. Therefore there are no grounds for arguing that the Parliament has authority over the colonies.
What is new here is Jefferson’ criticism of the King for being misled and deceived by “weak and favorite” ministers into adopting this erroneous political view. Jefferson argues that the consequences will be devastating for the King. His mistaken judgment will cost the leader his empire and he will end up being nothing more than a mere petty king of Britain. Jefferson is clearly implying and threatening that the colonies (and perhaps other British dominions) will no longer recognize the King as their sovereign, with the result that he will rule over England only and no longer be the recognized King of a larger British empire that included the American states. The empire in other words will be reduced to just a single state.
By implication, Jefferson is suggesting that the colonies will no longer have any ties left to Great Britain, a clear vision of independence. In Summary View, Jefferson had already argued that the colonies were independent states that had essentially chosen or selected the King as their elected leader. Now he is anticipating the colonies ending that relationship as well. The league of nations would be dissolved. Jefferson still does not say here how he envisions putting an end to the relationship with an elected King. But by the time he sat down to write the Declaration of Independence he had given the question some thought and come up with an answer. The answer is contained in a draft constitution Jefferson wrote for the State of Virginia shortly before he had actually drafted the Declaration of Independence. This document, which was reworked and incorporated into the Declaration of Independence, arguably constitutes Jefferson’s Original Declaration of Independence and more authentically reflects Jefferson’s own views than the Declaration he drafted for Congress, as we shall now see.
In June 1776, only weeks before he wrote the Declaration of Independence, Jefferson had written several drafts of a constitution for Virginia. Jefferson’s home colony was in the process of responding to the Congress’ call for colonies to produce their own Constitutions. On May 10th four days before Jefferson arrived back in Philadelphia, Congress had approved a resolution recommending the colonies assume all powers of government.
Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.[72]
The resolve essentially recognized the end of all local British authority and that local colonial assemblies now had the authority to establish governments that would “best conduce to the happiness and safety of their constituents.” [73] On May 15th, Congress in a divided vote approved a preamble written by John Adams as an introduction to the resolution of May 10th resolution. The preamble was more explicitly radical than the resolution making it explicit that “his Britannic Majesty, in conjunction with the lords and commons of Great Britain, has, by a late act of Parliament, excluded the inhabitants of these United Colonies from the protection of his crown;” and therefore that
it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order, as well as for the defence of their lives, liberties, and properties, against the hostile invasions and cruel depredations of their enemies; therefore, resolved, &c.
In essence, Adam’s preamble is announcing the end of the colonies allegiance to the Crown, which according to Congress was the only remaining tie left to Great Britain. Adam’s recognized Congress’ approval of his preamble as an endorsement of independence. [74] That same day, May 15th, Virginia adopted its resolution calling on Congress to declare the colonies free and independent states.
Jefferson arrived back in Congress on May 15th, one day before both the Virginia resolution and approval of John Adam’s preamble. It must have been before or shortly after that date that Jefferson began writing his drafts of the Virginia Constitution, for several drafts were written by June 13th, when he sent a copy with George Wythe who was going back to Virginia.[75] Based on letters Jefferson wrote at the time, it is clear that he actually thought the activity of drafting a Virginia Constitution more important than the activity in Philadelphia at Congress and he expressed the wish to be recalled. But since he had only recently arrived at Congress, his home colony did not recall him. The result was that Jefferson’s drafts of the Virginia Constitution arrived back in Virginia after the shape of the Constitution had been decided but the Committee did alter some of the laws in light of Jefferson’s own draft .[76] Jefferson’s preamble listing all the various infractions of King George III was incorporated into the Virginia Constitution.
With some revisions, Jefferson’s draft of the Virginia Constitution became the basis for the list of charges against King George that appears in Jefferson’s first draft of the Declaration of Independence as well.[77] Jefferson took one of his earlier Virginia drafts and made some improvements in style thus reworking it into one part of the Declaration of Independence. Thus the draft of the Virginia Constitution is an early draft of one part of the Declaration of Independence. But the draft of the Virginia Constitution is more than just a first draft of one part of the Declaration. It arguably actually is Jefferson’s Original Declaration of Independence. By this I mean that the significance of this document is not simply that it was incorporated into the Declaration of Independence, but that standing on its own it represents Jefferson’s first and original Declaration of Independence. For Jefferson understood the draft Constitution as a document declaring independence for the State of Virginia.[78] He was writing this document, moreover, as an individual and not part of a committee, as he would have to do when drafting the Declaration of Independence for Congress. Jefferson’s first draft of the Virginia Constitution, then, more than the Congressional one which he wrote for the colonies as a group, represents Jefferson’s own views about how to frame independence and could be properly called Jefferson’s Original Declaration of Independence.
Jefferson’s first draft of the Virginia Constitution is of interest, therefore, because it provides a window into Jefferson’s own political philosophy and conception of independence on the eve of drafting the Declaration. It is thus illuminating to see what assumptions from the Virginia Declaration made it into the Declaration of Independence and which assumptions did not. While the Virginia Declaration is consistent with Jefferson’s own theory of rights, he had to adopt a position with which he did not fully agree in writing the Declaration of Independence. Thus the Declaration of Independence holds a position on rights that appeared more consistent with the language of the First Continental Congress’ Bill of Rights, at least after the revisions by the Committee of Five and Congress. Understanding that Jefferson had to promote a position on rights with which he did not fully approve provides a new context by which to understand some of the wording he chose and some of the interesting changes he arguably made to the classic formulation of natural rights language.[79]
One of the most obvious and important differences between what I am calling Jefferson’s Original Declaration of Independence for Virginia and the one Jefferson would shortly write for Congress is the noticeable absence of any natural rights preamble or language. The significance of this difference seems to have been missed by most commentators who have focused instead on how charges against the King were revised and reused in the Congressional Declaration of Independence.[80] But the absence of any natural rights statement in Jefferson’s first draft of the Virginia Constitution is illuminating, indicating once again that Jefferson’s political philosophy is operating in the background. Since in Jefferson’s view the colonies never were under the sovereignty of Parliament, there was no reason to invoke natural rights to justify the colonies’ legislative independence. The only tie that Jefferson believed remained was between the colonies and the King whom the colonies had voluntarily adopted. The problem of independence as Jefferson framed it was how to remove an elected king. In looking for a model for that process, Jefferson arguably turned to the English Declaration of Rights of 1689 which formally ended the reign of James II.[81]
The focus of Jefferson’s Virginia Declaration, therefore, is almost exclusively on the King’s misdeeds, consistent with Jefferson’s view that the relationship with the King was the only remaining connection to the British empire. Jefferson charges that the King who was “entrusted with the exercise of the kingly office in this government, hath endeavored to pervert the same into a detestable and insupportable tyranny…” As evidence of this intention, Jefferson cites sixteen violations of his office that included: vetoing laws of the legislature that were for the common good, by stalling the wheels of government by preventing his appointed officials to approve the legislatures laws, by dissolving legislative assemblies and not calling another for a long period of time, for making naturalization of foreigners difficult and thereby preventing population growth, by keeping standing armies in a time of war, by cutting off American trade to the rest of the world, by imposing taxes without consent, by depriving the right to trial by jury, and finally by abandoning the helm of government and declaring “us” out of his allegiance & protection.
Jefferson then provides the theoretical framework for deposing the elected King.
by which several acts of misrule the sd. George Guelf has forfeited the kingly office, and has rendered it necessary for the preservation of the people that he should be immediately deposed from the same, and divested of all its privileges, powers, & prerogatives
And forasmuch as the public liberty may be more certainly secured by abolishing an office which all experience hath shewn to be inveterately inimical thereto and it will thereupon become further necessary to re-establish such ancient principles as are friendly to the rights of the people and to declare certain others which may co-operate with and fortify the same in future…
And then in the second draft of the Virginia Constitution, Jefferson begins with this shortened introduction which then appears with slight revision in the third draft as well.
Be it therefore enacted by the authority of the people that the said, George the third, King of Great Britain and elector of Hanover be & he is hereby deposed from the kingly office within ys. Government. & absolutely divested of all it's rights & powers, & that he and his descendants and all persons claiming. by or through him & all other persons whatsoever shall be & for ever remain incapable of the same; & that the sd. office shall henceforth cease & be never more erected within this colony.[82]
Jefferson here fills out the theoretical position left unclear in his earlier Summary View: explaining how an elected King can forfeit his office by turning it into a tyranny and abusing the prerogatives the people had given him. When this happens, he forfeits his office and the people therefore should depose him. But Jefferson goes further and argues that the very institution of monarchy should cease within the colony. Thomas Paine had already made an eloquent argument to the same effect in his Common Sense and here Jefferson follows in the same path and recognizes monarchy is “inimical to” the public liberty.
Consistent with his view in Summary View, Jefferson here appeals, not to natural rights in general, but notes that “it will thereupon become further necessary to re-establish such ancient principles as are friendly to the rights of the people and to declare certain others which may co-operate with and fortify the same in future.” Jefferson thus appeals once again to the common law tradition reaching back to the Anglo-Saxons. The settlers came to and conquered new lands, set up new political entities, and chose to adopt the British Constitution and the ancient principles of rights inherited from the Anglo-Saxons. They are preserving the tradition of liberty that reached back to the Saxon ancestors. In Jefferson’s Virginia Declaration of Independence there is no appeal needed to natural rights. On Jefferson’s conception of Independence, the American states are like the House of Commons removing their King. Only in this case, the intent is never to accept a future King as an officer over the State of Virginia.
Having now shown that Jefferson’s Virginia Declaration of Independence does not depend on a theory of classic theory natural rights per se, but on ancient principles and the natural right to quit society, we can turn back to the Congressional Declaration of Independence and drafting of that document.
The story of the official Declaration of Independence has been told by many othe writers in some detail and doesn’t need to be repeated here. Briefly, on June 7, 1776 Richard Henry Lee of Virginia introduced a resolution in the Continental Congress proposing a Declaration of independence.
Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.
That it is expedient forthwith to take the most effectual measures for forming foreign Alliances. That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.[83]
On June 10, 1776 Congress decided to delay the vote on independence until July 1, with the hope of achieving a greater consensus from the colonies. On June 11, 1776, Congress appointed a committee “in the meantime” to draft a declaration so “that no time be lost, in case the Congress agree thereto” on the next vote. The committee was comprised of Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston and Jefferson was selected, for various reasons, to write the first draft.[84] By June 28th, the first draft from the Committee of Five was ready and ordered to lie on table for review. This draft already contained some revisions made by Jefferson himself and some recommended by Adams and Franklin.
Based on the preceding discussion, we are now in a position to see that the official published Declaration of Independence did not represent the way that Jefferson himself thought about independence. Had he had his druthers he never would have put in the classic statements about natural rights for which the Declaration is so famous. On three other occasions he had passed over the opportunity to insert explicit statements of natural rights in his writing, first in his Summary View, again in his Declaration of the Causes, and then again in his Original Declaration of Independence for Virginia. It is reasonable to conclude that Jefferson himself would have happily published a Declaration of Independence with no such statement of rights (as in fact he did in his Virginia Declaration). On his view, a statement of natural rights simply was not needed, and he may have had doubts about natural rights theory anyway, as discussed earlier. What was needed was simply a way to depose the King.
But Jefferson had on each of these earlier occasions seen his peers reject his view of rights. The First Congress rejected his view of rights in its Declaration of Rights which it published in early 1774. Then about a year before he wrote the Declaration of Independence, Jefferson watched his own draft of the Declaration of the Causes be rewritten by John Dickinson. Among other changes, Dickinson inserting a statement of natural rights before Jefferson’s own statement of the ancestor’s rights essentially obliterating and reinterpreting Jefferson’s own theory.
It is not surprising then that Jefferson would try a different tact on his third attempt to draft a document that would be acceptable to his colleagues in the Congress. This time he had learned his lesson. And indeed there was no time to waste since this declaration had to be drafted and approved in haste. Indeed, there is some likelihood that the committee itself gave Jefferson some instructions about what to say and would likely have instructed him to include a statement of rights, given that two of the members were John Adams and Benjamin Franklin.[85] But even had not done so, Jefferson by this time knew that his own theory would not