Commonwealth Books, LLC
The Rights of Man
Tennis Court Oath
by Jacques-Louis David (1791)

On the morning of 20 June 1789, the deputies to the Estates General discovered the door to their meeting hall at Versailles was locked and guarded. Fearing the King meant to resist their efforts to form a new government, they convened in a nearby tennis court. There they pledged "not to separate, and to reassemble wherever circumstances require, until the constitution of the kingdom is established." Swearing this oath marked the moment when authority passed from the monarch to the people of France. Their solidarity forced the King to order the three estates—nobility, clergy, and commoners—to meet together as a National Assembly. On 26 August, this assembly of approved a Declaration of the Rights of Man. Its preamble read in part:
    "The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man . . ."

“While the great mass of the people are thus suffering under physical and moral oppression,
 I have endeavored to examine more nearly the condition of the great, to appreciate the true 
value of the circumstances in their situation . . .” 
TJ to Charles Bellini Paris, September 30, 1785      

How different Thomas Jefferson’s private mission in France was from that of English agrarian Arthur Young! Jefferson went to France to make himself into a Renaissance man like the one he met at Monticello in the spring of 1782 when Chastullux visited him. During his reconstruction project, Jefferson transformed himself from “a savage of the mountains of America” into a chateau progressive. Arthur Young was also a liberal reformer and close friends with the duc de la Rochefoucauld and his 
cousin Liancourt. But he went to France on the eve of its revolution to collect statistical data relating to French agriculture. Where Jefferson’s private mission required him to “examine
more closely the condition of the great,” Young’s required him to observe the social, political and economic conditions that produced the French Revolution. Readers of Young’s diaries will understand why there was a revolution in France and a Reign of Terror. Readers of Jefferson's letters will not.

Traveling from one soirée to the next in his custom-made Phaeton, the American Ambassador was able to skirt most of the unpleasantries that Arthur Young described in his diaries. Jefferson understood that the vast majority of Frenchmen were poverty-stricken peasants, but he spent his money and time creating a fashionable residence where he could entertain France's cognoscenti. His elegant hotel on the western end of the Champs Elysees was comfortably removed from the simmering rage that would bring violent death to many of his enlightened friends. The socially ambitious Virginian trained himself to see the world the way France’s most polished progressives did because it fit his new template. He earned coveted respect and acceptance by repeating their mantra that a constitutional government with a properly formed bill of rights would solve all of France’s social and economic problems. 
The extent of the oppression endured by France’s peasant class would be difficult to grasp today without the detailed observations Young provided in his Travels in France During the Years 1787, 1788, 1789. This book appeared in 1792, the same year his friend la Rochefoucauld was stoned to death by an angry mob. The following passage contains one of his many vivid examples of the rules that made it almost impossible for French peasants to survive prior to the revolution:
Arthur Young by John Russell (1794)
Now, an English reader will scarcely understand it without being told, that there were numerous edicts for preserving the game which prohibited weeding and hoeing, lest the young partridges should be disturbed; steeping seed, lest it should injure the game; manuring with night soil, lest the flavor of the partridges should be injured by feeding on the corn so produced; mowing hay, &c. before a certain time, so late as to spoil many crops; and taking away the stubble, which would deprive the birds of shelter. The tyranny exercised in these capitaineries, which extended over 400 leagues of country, was so great, that many cahiers demanded the utter suppression of them. Such were the exertions of arbitrary power which the lower orders felt directly from the royal authority; but, heavy as they were, it is a question whether the others, suffered circuitously through the nobility and the clergy, were not yet more oppressive.

Jefferson left no record showing that he understood the structural characteristics of the servitude that bound France's peasant class. Still, it should have been clear there was no possibility that the sudden implementation of constitutional government acknowledging the rights of man would solve France's problems. It was far more likely to trigger a nuclear reaction. Jefferson could ignore this foreseeable development because he had made himself into a contented cosmopolitan who observed the world without being sullied by it. During the two years preceding the storming of the Bastille, it was enough good for him to repeat what his enlightened friends thought. The indifference he expressed toward both the plight of the poor and the impending collapse of France’s monarchy suggests that he perceived indifference as the way a gentleman viewed the world in Paris. His stylish comments to Philadelphia heiress Anne Willing Bingham, thought by some the most beautiful woman of that age, provide one in a string of examples showing his disconnectedness. On 7 February 1787, two weeks before the Notables assembled, he wrote:
I know of no interesting change among those whom you honored with your acquaintance, unless Monsieur de Saint James was of that number. His bankruptcy, and taking asylum in the Bastille, have furnished matter of astonishment. His garden, at the Pont de Neuilly, where, on seventeen acres of ground he had laid out
Anne Willing Bingham by Gilbert Stuart (1797)
fifty thousand louis, will probably sell for somewhat less money. The workmen of Paris are making rapid strides towards English perfection. Would you believe, that in the course of the last two years, they have learned even to surpass their London rivals in some articles? Commission me to have you a phaeton made, and if it is not as much handsomer than a London one, as that is than a Fiacre, send it back to me. Shall I fill the box with caps, bonnets, &c.? Not of my own choosing, but -- I was going to say, of Mademoiselle Bertin's, forgetting for the moment, that she too is bankrupt. They shall be chosen then by whom you please; or, if you are altogether nonplused by her eclipse, we will call an Assembleé des Notables, to help you out of the difficulty, as is now the fashion. In short, honor me with your commands of any kind, and they shall be faithfully executed. 
The refusal of the Notables to approve Calonne's request for new taxes made it a virtual certainty that the king would act on Lafayette's demand and summon a congress of the people. Jefferson thought with the rest of his progressive circle that the convening of this body would mark the moment when monarchical authority transferred to the representatives of the people. Jefferson assumed that the people would then complete the process by adopting a constitution with a bill of rights enumerating the social and political rights of all French citizens. In his letter to Francis Hopkinson on 21 December 1788, Jefferson observed, cryptically, that “all hands are employed in drawing plans of bills of rights.” He seemed to mean that several of his progressive friends—Condorcet, Richard Gem, and Lafayette—had engaged themselves in this task. He did not mention that it was as much a question how a bill of rights would be used as which liberties should be included in it. In fact, by December of 1788 these issues formed the center of an increasingly dangerous divide.
Drafting the Declaration of Independence
by Jean Leon Gerome Ferris (1932)
After the meeting of the Notables, Jefferson was increasingly free with his opinions about what was happening and what should be done next. On 20 March, he wrote Madame de Tesse from Nismes, speaking again in his enlightened persona:
The Maison Carée, the Arenas and the Magne Tower in Nimes
by Hubert Robert (1787)
Here I am, Madam, gazing whole hours at the Maison quarrée, like a lover at his mistress. The stocking weavers and silk spinners around it, consider me as a hypochondriac Englishman, about to write with a pistol, the last chapter of his history. This is the second time I have been in love since left Paris. The first was with a Diana at the Chateau de Laye-Epinaye in Beaujolois, a delicious morsel of sculpture, by M. A. Slodtz. This, you will say, was a rule, to fall in love with a female beauty: but with a house! It is out of all precedent. 
The contented cosmopolitan spoke again on the day the Assembly of Notables convened. This time he addressed Abigail Adams. “The spirit of resistance to government,” he informed her, “is so valuable on certain occasions, that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the Atmosphere.” 

This odd announcement illustrates the new persona in which Jefferson attired himself after he became enlightened. One of the great satisfactions he derived being a Renaissance man in France was the esteem in which he was held by his new peers. The deference they paid his opinions on political matters must have been especially gratifying since it was such a significant departure from what he had experienced in Williamsburg and in Philadelphia where he had kept his heterodox thoughts to himself.
Jefferson had written his first patriotic tract alone at Monticello in the summer of 1774. He had waited on his mountaintop as the delegates to the first Virginia Convention, meeting in Williamsburg, analyzed and then rejected the argument he presented in A Summary View of the Rights of British America—few of his older, more conservative peers in Virginia’s squirearchy agreed with his claim that Virginians were a sovereign people in whose affairs the English Parliament had no right to meddle. Upon hearing that his argument had been rejected, Jefferson embarked on an eight-month "retirement" that continued from June 1774 to March 1775. During this time, it dawned on him that society in the Old Dominion existed in essentially the same form as society in England. He therefore quietly dedicated himself to dismantling Virginia’s “pseudo-aristocracy.” He spent most of his time during the American Revolution developing a beyond-the-veil plan to accomplish this unorthodox mission. It is not surprising that he kept it to himself.
Jefferson spent the fall of 1775 in the second Philadelphia Congress filling in for Peyton Randolph who had returned to Williamsburg to deal with the crisis Lord Dunmore precipitated when he snatched the powder from the town’s arsenal. In Philadelphia, Jefferson listened as John Adams and other delegates agreed that the best form for a new government would be a republic in which men are governed by laws to which they consent. When Jefferson returned home after Christmas, he began organizing a plan for a new government in Virginia. Working alone, first at Monticello and then in his rooms in Philadelphia, he finished this plan just in time to send it to the convention then meeting in Williamsburg. Jefferson had been careful to incorporate into this plan mechanisms to disempower Virginia’s hereditary hierarchy. The convention, by-passing Jefferson’s carefully designed masterpiece, approved George Mason’s plan, which had no similar provisions for eliminating Virginia’s socio-political hierarchy. Though outraged, Jefferson could not voice his complaint in Virginia. Instead he waited and incorporated it into the book he published in France. 
Jefferson was well regarded by his fellow patriots in the 2nd Continental Congress, but here again he found himself in an awkward position. Trained in the law by George Wythe, he had mastered the art of arguing from legal precedents he found in the law journals and in the Common Law. Because he reasoned like a lawyer from precedent and not as a philosopher from premise to conclusion, he saw nothing inherently valuable in the vague, malleable concepts of Natural Law and Natural Right. Regarding the case in point, he had what he considered a foolproof precedent to support his claim that the sovereignty of the American people was the true rationale for their separation from England. Privately, Jefferson was disposed believe that patriotic appeals to Natural Law and Natural Right were faulty. But even if they could be validated, Jefferson counted them as irrelevant. With the possible exception of Richard Bland, whose position Jefferson had adopted, Jefferson was alone in this view, so he kept it to himself. When called upon to draft the declaration of independence, he acquiesced to patriotic preferences and copied George Mason’s appeal to Natural Law and Natural Right into the preamble of his text. When his work won acclaim as an historic expression of the rights of man, Jefferson allowed the details of his own idiosyncratic position to fade into the shadows and pass out of mind, which it easily did since he nurtured it, as he did most things political, beyond a carefully constructed veil. 
The progressives with whom Jefferson communed during his last three years in France seemed to think that he had deep insights into matters relating to the Rights of Man. The one place where Jefferson expounded on this subject was in his Summary View, which he wrote a dozen years before the subject found him in France. He began this paper with a resolution in which he claimed that public right—at least as it applied to subjects of the British Monarch—derives from “God” (Natural Right) and from “the laws” (Positive Right). In making this claim, Jefferson implied that he was repeating the “common sense of the subject”. One therefore assumes that this was his view as well. In his text, however, Jefferson appealed to seven—not two—categories of right. Besides 1) natural right, and 2) constitutional/legal right, Jefferson invoked 3) right of conquest, 4) ancestral right, 5) right of commerce, 6) sovereign right, and 7) moral right. If he thought that the last five were sub-sets of the first two he did not say so. Nor did he say that these seven categories of right were the entire list. If he thought the last five classes of rights derived from the two primary categories, he neglected to reveal the generative connection. Resolving these questions is complicated by the fact that he provided no definition of what he meant by “natural right”. Thus, while the sovereignty argument he advanced in his Summary View may have been legally potent, the philosophical underpinnings he provided were well below grade.

On the subject of public right at least, Jefferson proved that he was better at compiling ideas framed by others than at formulating his own. That is to say, his gift for assembling ideas in political documents did not make him an original thinker. It is therefore noteworthy that in the years immediately preceding the French Revolution he conducted himself as a seminal thinker in respect to the rights of man. That he did so shows how his conception of himself and his role as a political agent changed following his enlightenment.
After this feminine cosmopolitanism, Jefferson showed his manly side in an analysis he would often repeat regarding the assembly at Versailles:
Under a good and a young King, as the present, I think good may be made of it. I would have the deputies then, by all means, so conduct themselves as to encourage him to repeat the calls of this Assembly. Their first step should be, to get themselves div-
ided into two chambers instead of seven; the Noblesse and the Commons separately. The second, to persuade the King, instead of choosing the deputies of the Commons himself, to summon those chosen by the people for the Provincial administrations. The third, as the Noblesse is too numerous to be all of the Assemblée, to obtain permission for that body to choose its own deputies. Two Houses, so elected, would contain a mass of wisdom which would make the people happy, and the King great; would place him in history where no other act can possibly place him. They would thus put themselves in the track of the best guide they can follow, they would soon overtake it, become its guide in turn, and lead to the wholesome modifications wanting in that model, and necessary to constitute a rational government. 
The Farmer crushed by “Taille, Imports et Corvee”, by tithe, taxation, and statute-labor, Courtesy Musee Carnavalet, Paris
The King dismissed Calonne on 8 April 1787. In the remaining six weeks of the first Assembly of Notables to be called in 173 years, its delegates agreed to authorize loans to rescue the monarchy from immediate bankruptcy and to allow economic reform to proceed, but new land and stamp taxes, they said, required the consent of the people in an Estates-General. Calonne’s replacement dissolved the assembly on 25 May. From that point it was a running battle between the rear guard of monarchical absolutism, led by Loménie de Brienne, and the constitutionalists, among whom Lafayette distinguished himself, to set the date for convening the people’s congress. 

In the winter of 1788, Brienne decided to fill new shortfalls in the Treasury with supplemental levies from the provincial parlements. In April of 1788, the Parlement of Paris responded to this tactic by announcing that “the will of the King alone” was not enough to make the law. It went on to refuse authorization for any further collection of taxes until an Estates-General had been called. This was how matters stood until 8 August, when Brienne received word from his comptroller that only 400,000 livres remained in the royal treasury—enough money to run the government until the close of business that day! Brienne's first response was to ask his subordinate why he had not been apprised of the impending problem. Receiving no answer, he announced that the Estates-General would convene in 1 May 1789 and hoped for the best. 

Étienne Charles de Loménie de Brienne 
Artist Unknown (1770)
As word of the disaster spread, the money markets closed, the market value of government securities collapsed, and the Farmers-General stopped supplying the government’s coffers. On 16 August, the Treasury suspended repayment of its loans, which placed the government in bankruptcy. On 25 August 1788, Loménie de Brienne retired to the country where he hoped he would be safe. Shortly after his departure Jacques Necker resumed his former post as director of royal finances. His reappearance was accompanied by public jubilation. Lenders looked forward to the convening of the Estates-General. Perhaps progressives would be right in their claim that liberty would unleash the economy. Lenders were, for the moment, content to believe that a new constitutional government would be a more reliable debtor than an old bankrupt monarchy. Its expenditures would after all be scrutinized by the people.

Jefferson's prognostications were not so good in the years preceding the outbreak of the French Revolution. A large part of his problem lay in the fact that he had privately endorsed replacing France's monarchical government since joining la Rochefoucauld’s circle in the winter of 1786. In respect to the bankruptcy of the monarchy, however, he was on the money. In a letter he wrote to Hector St. John de Crèvecœur on 9 August 1788, Jefferson announced, "There are well-founded fears of a bankruptcy before the month of May." The prospect of governmental bankruptcy did not dampen Jefferson's optimism as can be seen in his often-repeated comment to William Carmichael on 12 August. “With respect to the internal affairs of this country,” he observed, “I hope they will be finally well arranged, and without having cost a drop of blood.”

The process of creating a bill of rights had nominally begun on 3 May 1788 when the Parlement of Paris issued a “declaration of the rights of the nation” as a basis for resisting the policies the king and his finance minister were pressing upon it. The authors of this document applied two more-or-less traditional concepts: 1) that a compact already existed between the French people and the French king, and 2) that this existing compact is perpetually renewed by “a general oath, that of the coronation, which unites all of France with its sovereign.” These principles allowed the magistrates of the Parlement of Paris to assert that France was a monarchy governed by fundamental laws that fixed the rights of both the Crown and the Nation. And so, they asserted that among the rights of the Nation was the right of the people assembled in Estates General “regularly convoked and constituted” to consent to the levying of taxes. 
As the standoff between the Crown and “the nation” continued through the summer and fall of 1788, the idea of what a bill of rights represented fragmented. By the time Jefferson wrote Hopkinson, it was no longer settled that its purpose was to reaffirm an historic relationship between the French king and his people. Rousseauian radicals had given it a nettlesome philosophical dimension. They claimed that a bill of rights was a social contract and that its true purpose was to provide a foundation for a new society. This was essentially Condorcet’s view. Jefferson should have shared it since Condorcet thought that a French declaration of the rights should invoke the same natural law principles Jefferson had invoked in the American Declaration of Independence. Being a contract between members of a new—more perfect—French society, Condorcet asserted that a declaration of rights needed to be in place before a constitution could be constructed just as had been the case in America.

No corresponding clarity or conviction underpinned Jefferson’s perception in respect to the rights of the people. The plan of government he sent to the Virginia convention in June of 1776 included a bill of rights within the body of the document. When he wrote this document, in other words, Jefferson viewed the rights of the people as positive rights that might be amended or even ab-
Jean-Jacques Rousseau
by Allan Ramsey (1766)
olished depending of the will of the majority of Virginia’s voters. Two weeks later, he transcribed the first three articles of George Mason’s Virginia Declaration of Rights into the preamble of his declaration of independence. In doing so, he recognized that the people of America had unalienable natural rights. His complaint with the new constitution of the United States of America, which he first read while monitoring the debate on the purpose of a French declaration of rights, was that it contained no bill of rights. He thought the law of the land should contain a bill of rights, which would contain a list of alterable positive rights.

Natural Law. Positive Law. Natural Right. Positive Right. It all seemed to run together in Jefferson’s legally trained mind. Guiding his vision for France was the idea that her monarchical government was inherently tyrannical and had to be replaced. Because Condorcet basically shared this view, Jefferson seemed content stick with Condorcet, who was also framing the issue for Lafayette and the others in La Rochefoucauld’s chateau reform circle. Leaving the political logic to Condorcet, Jefferson counseled his friends and acquaintances that all would be well in France once a constitution was enacted with a properly worded bill of rights. The main issue in Jefferson’s estimation was that the transition be completed peacefully. Since there was relatively little violence in the months leading up to the meeting of the Estates General, Jefferson assumed all was well. This what he reported in his letters.
On 4 December 1788, Jefferson sent this optimistic analysis to General Washington:

"In every event, I think the present disquiet will end well. The nation has been awaked by our Revolution, they feel their strength, they are enlightened, their lights are spreading, and they will not retrograde. The first States General may establish three important points, without opposition from the court:  1) their own periodical convocation;  2) their exclusive right of taxation (which has been confessed by the King);  3) the right of registering laws, and of previously proposing amendments to them, as the parliaments have, by usurpation, been in the habit of doing. The court will consent to this, from its hatred to the parliaments, and from the desire of having to do with one, rather than many legislatures."
Mirabeau Answering Dreux-Breze, at a National Assembly Meeting, 23rd June 1789
Alexandre Evariste Fragonard (1830)
Jefferson looked to the Estates General to create a declaration of rights and a constitution. As to their theoretical details Jefferson had no fixed idea. Was the objective to limit the power of the monarch or was it to proclaim the liberty of the people? Should a bill of rights enumerate the rights of the French people within the existing hierarchical system or should it be a contract for an enlightened new egalitarian system? Men who were debating this issue were beginning to worry. These concerns did not cloud Jefferson’s view however. On 12 January 1789, he sent copies of bills of right he had received from Lafayette and Gem to Madison as an encouragement to insert an enumeration of the people’s rights into the new American constitution. Lafayette's draft assumed that France would remain a monarchy. Gem preferred that it would not by prescribing compulsory equal division of property among heirs. Jefferson made no specific comment about these differences even though the debate was becoming partisan.
The Estates General finally convened on 5 May. Jefferson waited pensively as the delegates debated whether to vote by order or by head. As the debate dragged on week after week, Jefferson met with Lafayette and others to discuss how to resolve this crucial issue. Finally, on 3 June he circulated a dramatic plan of his own to break the logjam—the King would convene a seance royale in which he would “come forward with a Charter of Rights in his hand, to be signed by himself & by every member of the three orders.” Jefferson’s scheme centered on the abolition of “all pecuniary privileges and exemptions, enjoyed by any description of persons.” This did not abolish the monarchy or create a new society, but for Jefferson these were abstractions. Subjecting the nobility to the same law that applied to common Frenchmen—this was tangible! Jefferson bolstered his compromise with a few of the articles George Mason had transcribed from the 1689 English Bill of Rights into the Virginia Declaration of Rights in the summer of 1776, and with a couple of timely financial provisions. For the new progressive from America, this seemed like enough to get the ball rolling again. For the people of France, who had a past and a future, matters were not so cut and dried.
Portrait d'un sans-culotte by Louis Leopold Boilly (Undated)