Thomas Jefferson: On Civil and Natural Rights

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      Francis Walker Gilmer, a lawyer and author, was one of Jefferson's numerous correspondents in the years after 1812. In the following letter to Gilmer of June 7, 1816, Jefferson discoursed on the extent to which natural rights must be relinquished in civil society, and expressed his profound disagreement with the Hobbesian view that justice is conventional only, and not natural. The letter reflected Jefferson's abiding faith in Republican government, the main if not the sole function of which was, in his view, to preserve those rights that man has, ideally, in the state of nature.

      I received a few days ago from Mr. Du Pont the enclosed manuscript, with permission to read it, and a request, when read, to forward it to you, in expectation that you would translate it. It is well worthy of publication for the instruction of our citizens, being profound, sound, and short.

      Our legislators are not sufficiently apprised of the rightful limits of their powers; that their true office is to declare and enforce only our natural rights and duties, and to take none of them from us. No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him. Every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him. And, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded that on entering into society we give up any natural right. The trial of every law by one of these texts would lessen much the labors of our legislators, and lighten equally our municipal codes.

      There is a work of the first order of merit . . . by Destutt Tracy on the subject of political economy. . . . In a preliminary discourse on the origin of the right of property, he coincides much with the principles of the present manuscript; but is more developed, more demonstrative. He promises a future work on morals, in which I lament to see that he will adopt the principles of Hobbes, or humiliation to human nature; that the sense of justice and injustice is not derived from our natural organization but founded on convention only. I lament this the more as he is unquestionably the ablest writer living, on abstract subjects.

      Assuming the fact that the earth has been created in time, and, consequently, the dogma of final causes, we yield, of course, to this short syllogism. Man was created for social intercourse; but social intercourse cannot be maintained without a sense of justice; then man must have been created with a sense of justice.

      There is an error into which most of the speculators on government have fallen, and which the well-known state of society of our Indians ought, before now, to have corrected. In their hypothesis of the origin of government, they suppose it to have commenced in the patriarchal or monarchical form. Our Indians are evidently in that state of nature which has passed the association of a single family; and not yet submitted to the authority of positive laws, or of any acknowledged magistrate. Every man, with them, is perfectly free to follow his own inclinations. But if, in doing this, he violates the rights of another, if the case be slight, he is punished by the disesteem of his society, or, as we say, by public opinion; if serious, he is tomahawked as a dangerous enemy. Their leaders conduct them by the influence of their character only; and they follow or not, as they please, him of whose character for wisdom or war they have the highest opinion. Hence the origin of the parties among them adhering to different leaders, and governed by their advice, not by their command.

      The Cherokees, the only tribe I know to be contemplating the establishment of regular laws, magistrates, and government, propose a government of representatives, elected from every town. But of all things, they least think of subjecting themselves to the will of one man. This, the only instance of actual fact within our knowledge, will be then a beginning by republican, and not by patriarchal or monarchical government, as speculative writers have generally conjectured.

Source: Memoirs, Correspondence, and Private Papers of Thomas Jefferson, vol. 4, Thomas Jefferson Randolph, ed., 1829, pp. 288-290.

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