Wednesday, November 30, 2005

Divergent Paths: Rights in the American and French Revolutions
The crisis is arrived when we must assert our rights, or submit to every imposition, that can be heaped upon us, till custom and use shall make us as tame and abject slaves. – George Washington, 24 August 1774[1]

Let us follow the example of the United States: they have set a great example in the new hemisphere; let us give one to the universe, let us offer a model worthy of admiration. – Duke Mathieu de Montmorency, 1 August 1789

[The French] have taken Genius instead of Reason for their Guide, adopted Experiment instead of Experience and wander in the Dark because they prefer Lightning to Light. – Gouverneur Morris, 18 September 1790

Terror is nothing but prompt, severe, inflexible justice; it is therefore an emanation of virtue. It is less a special principle than a consequence of the general principle of democracy applied to our country’s most pressing needs. – Robespierre, 5 February 1794

The last quarter of the eighteenth century was witness to more than just two ground-breaking revolutionary movements on either side of the Atlantic. Beyond the American and French Revolutions were republican movements in Switzerland, Holland, Poland, and the slave insurrection on French Saint Domingue. However, the American and French Revolutions stood apart from these other events for a couple of reasons; 1) the American Revolution presaged the reestablishment of a large scale national republic since the days of antiquity and 2) the French Revolution heralded the collapse of a monarchy hundreds of years old in the most heavily populated country of Europe, to be replaced by a constitutional monarchy, then a republic, then a military dictatorship, and then a restored Bourbon monarchy. One of the greatest lingering historiographical problems has been to explain the divergent paths these revolutions took, with the United States emerging from constitutional crises with the first large national republic since Rome while France, almost from the opening moments of its revolution, descended into chaos and violence, eventually engulfing all of Europe and much of the world (including the United States) in war for a quarter of a century.
Susan Dunn, a scholar of both revolutions, has argued that in America there was a “driving passion was for freedom” while in France the people wanted “a nation of equal citizens.”[5] She summed up the main difference of the revolutions as alternate ways of engaging in politics,
Tumult, division, and competing interest groups in the United States vs. concord, unity, and community in France. Here were the antithetical concepts of democracy and nationhood that shaped the core values of both revolutions, influencing, as we shall see, their notions of individual rights and freedoms, coloring their political discourse and style, and setting the stage for the success or failure of the two revolutionary projects.[6]

Dunn set up the dichotomy and explored the thought of the revolutionaries but did not much look into the philosophical antecedents that were the precursors to the split. Her work on rights instead focused on the more apparent, but less essential, difference in the rights of the Americans being proscriptions against the state as opposed to positive assertions of the citizens.
Another question arises of whether the split between the revolutions came right at the start of the French Revolution. This problem was debated as much at the time of the Revolution by those observing it on either side of the Atlantic as it is now among historians. Dunn saw the split immediately with the “Declaration of the Rights of Man and Citizen” in comparison to the Bill of Rights (which came two years later) and the individual states’ bills of rights (which came at various times before).[7] Simon Schama also saw the French Revolution as fundamentally different in course from its beginning as opposed to veering off later with the rise of Jacobinism and the Terror. He famously wrote in his bestselling account of the French revolution that, “The Terror was merely 1789 with a higher body count. From the first year it was apparent that violence was not just an unfortunate side effect from which enlightened Patriots could selectively avert their eyes; it was the Revolution’s source of collective energy. It was what made the Revolution revolutionary.”[8] Schama was echoing other historians of the French Revolution, namely Augustin Cochin and François Furet, the latter of whom wrote,
The truth is that the Terror was an integral part of the revolutionary ideology, which, just as it shaped action and political endeavor during that period, gave its own meaning to ‘circumstances’ that were largely of its own making. There were no revolutionary circumstances; there was a Revolution that fed on circumstances. The mechanism of interpretation, action and power I have attempted to describe above was fully operative from 1789. There is no difference in kind between Marat in 1789 and Marat in 1793. Nor were the murders of Foulon and Bethier fundamentally different from the massacres of September 1792, any more than Mirabeau’s aborted trial after the October Days of 1789 was different from the sentencing of the Dantonists in the spring of 1793. As Georges Lefebvre noted in an article in 1932, the aristocratic plot was, as early as 1789, the outstanding feature of what he called the ‘collective revolutionary mentality’; indeed I regard the plot as central to the system of notions and actions that constituted the revolutionary phenomenon itself.[9]

Even if one accepts that the French Revolution was different from the beginning and did not descend into a tragic trajectory later on, the pertinent and fundamental question of “why?” still lingers and demands answering.
The answer lies in the divergent intellectual currents which developed in the Enlightenment and upon which of those currents the different revolutionaries chose to build their revolutions and subsequent governments. One could explore all sorts of manifestations of ideas in such a broad field, including the various structures given to different governments, the presence or absence of unicameralism, the independence of the judiciary or lack thereof, the power of the executive, or the non-existence of one of these branches of government as a separate entity. More important in the development of political thought in the Enlightenment and coming out of these revolutions is the concept of political rights. This is not to suggest that political rights were brand new with George Mason’s Virginia Declaration of Rights in 1776, far from it, the concept stretched back in English history over a thousand years. That being said, the concept underwent an important and revolutionary transformation in the seventeenth and eighteenth centuries that began to have real repercussions for the entire world beginning with the American and French Revolutions. Gordon Wood, speaking of the transition from British to American constitutionalism, captured the transformation of the concept of political rights beautifully,
It is not just written and unwritten constitutions that separates the British from the Americans; the separation runs deeper than that. American rights are not merely rights of the people against the power of the government [a remarkable achievement by itself achieved by the British with Magna Carta in 1215 and again with the Bill of Rights in 1689]; they are the rights of individuals against the power of the people themselves. Such rights set against the will of the whole society have given a permanent individualist cast to our law and our constitutionalism—much more so than the English law and constitutionalism from which ours are derived.[10]

The American and French Revolutionaries would come to see political rights in different ways. Sometimes the differences were subtle and sometimes they were profound, but the differences were crucial in determining the relation of the states created by the revolutionaries to their individual citizens and would, by extension, be crucial to the success or failure of the two revolutions.
Historians’ debates aside, the nature of the revolutions similarities and differences were fiercely contested contemporaneously. It is a little surprising that the most heated internationally read debate over the nature of the French Revolution was penned by two adversarial Englishmen. Edmund Burke could not have been more emphatic in his condemnation of the French Revolution if he tried. This surprised (according to him) Thomas Paine, who had penned Common Sense to help convince Americans to rebel and The Crisis to convince them to keep the rebellion going. During that conflict Burke and Paine had been on the same side, Burke had actually endorsed the colonists’ efforts to preserve their rights as Englishmen. When the French Revolution began it did not take either of them any time to figure out which side to be on, but this time they were on opposite sides and worked against one another with their pens. Burke spoke for many critics of the revolution, in England, America, and France in expressing his hesitation to jump of the French revolutionary bandwagon until he saw where it was going,
Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a madman who has escaped from the protecting restraint and wholesome darkness of his cell on his restoration to the enjoyment of light and liberty? Am I to congratulate a highwayman and murderer who has broke prison upon the recovery of his natural rights?[11]

Unsurprisingly, Tom Paine, who would be elected to the Convention at the start of the republic in September 1792, was outraged and put his considerable talents to work for the French Revolution. Paine unraveled Burke’s many repeated appeals to tradition which had been used to attack the “innovations” at work in France and to support the British Constitution. Paine also provided an English translation of the Declaration of the Rights of Man and Citizen, the first three articles of which he called, “the basis of Liberty, as well individual as national.”[12] Yet with the ascendancy of Robespierre, Paine ended up in prison and only barely avoided going to the guillotine for his lack of enthusiasm in beheading Louis XVI.
Tom Paine and Edmund Burke were not the only veterans of the American Revolutionary experience who had taken opposite sides in the debate over the French Revolution. The tumult in France sundered the American political scene as well, pitting Federalists, hesitant and then hostile to the situation, against Jeffersonians who were sympathetic and incredibly enthusiastic about the possibility of worldwide republican revolution. The split was highly acrimonious, turned former friends and allies into enemies, and contributed greatly to the first widespread public criticisms of President Washington because of his declaration of neutrality in the conflict between republican France and monarchical England. In France as the first ambassador of the United States under the new constitution Gouverneur Morris wrote to President Washington of his fears as early as 31 July 1789, explaining, “You may consider the Revolution as compleat; that is to say the Authority of the King and of the Nobility is completely subdued, but yet I tremble for the Constitution. They have all that romantic Spirit and all those romantic Ideas of Government which, happily for America, we were cured of before it was too late.”[13] Alexander Hamilton wrote to Lafayette in October of 1789 to express his growing concerns about the course the revolution was taking, beginning, “As a friend to mankind and to liberty I rejoice in the efforts which you are making to establish it while I fear much for the final success of innovations greater than will consist with the real felicity of your Nation.”[14] He listed his greatest fears to the success of securing liberty in France,
I dread disagreements among those who are now united (which will be likely to be improved by the adverse party) about the nature of your constitution; I dread the vehement character of your people, whom I fear you may find it more easy to bring on, than to keep within Proper bounds, after you have put them in motion; I dread the interested refractoriness of your nobles, who cannot all be gratified and who may be unwilling to submit to the requisite sacrifices. And I dread the reveries of your Philosophic politicians who appear in the moment to have great influence and who being mere speculatists may aim at more refinement than suits either with human nature or the composition of your Nation.[15]

Hamilton’s concerns only grew during the next years of the revolution and he would conclude in 1794, that while all Americans had greeted the news of revolution in France in 1789 with “a warm zeal,” the “excesses which have constantly multiplied, with greater and great aggravations have successively though slowly detached reflecting men from their partiality for an object which has appeared less and less to merit their regard.”[16] Principal architect of the 1780 constitution of Massachusetts and Federalist Vice-President John Adams was anxious about the revolution in France from its beginning, writing to Richard Price in April 1790 Adams predicted that the new constitution, which vested all power into the National Assembly, would either be altered or France would re-enact the tragedies of the past, concluding, “Too many Frenchmen, after the example of too many Americans, pant for equality of persons and property. The impracticability of this, God Almighty has decreed, and the advocates for liberty, who attempt it, will surely suffer for it.”[17]
In what was perhaps the nadir of their careers, Jefferson and his political allies took another view that became more and more attached to the French cause as the Federalists grew apart from it. Jefferson himself, sounding very near Saint-Just and Robespierre, wrote to William Short, who was beginning to have apprehensions about the revolution, in January 1793 that “The liberty of the whole earth was depending on the issue of the contest, and was ever such a prize won with so little innocent blood? My own affections have been deeply wounded by some of the martyrs to this cause, but rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam and an Eve left in every country, and left free, it would be better than as it now is.”[18] Morris’s successor, the Francophile James Monroe, arrived on the scene after Robespierre’s downfall and reported, as if it were a fact, the official line of the Post-Thermidorean government, “that, from the period of Danton’s fall, Robespierre had amassed in his own hands all the powers of the government, and controuled every department in all its operations. It was his spirit which ruled the committee of public safety, the Convention, and the revolutionary tribunal.”[19] Monroe basically suggested that Robespierre had somehow turned the revolution into a bloodbath through usurpation, highlighting the already begun mythology that the fall of Danton was the turning point of what had been a promising revolution. Even the circumspect and well-reasoned James Madison was not immune to the hyperbolic rhetoric over the French Revolution. Writing to Jefferson in September 1793 he ridiculed Washington’s efforts to stay out of the war with his neutrality declaration, called the appointment of Gouverneur Morris as ambassador “unfortunate,” and showed just how much the French Revolution had become a political litmus test, referring to a conversation he had with a prospective ally, “He talks like a sound Republican, and sincere friend to the French cause in every respect.”[20] In an article he wrote for the Aurora General Advertiser in February 1799 he actually managed to praise the Directory, less than a year before Napoleon got rid of it, as a “model of virtue” for not destroying liberty in France despite commanding a very large standing army which (as Madison left out) at that time was being used in offensive and aggressive military campaigns all over Europe and the Middle East.[21]
Jefferson would later admit fault in his assessment of the French Revolution, albeit grudgingly, telling John Adams that “Your prophecies to Dr. Price proved truer than mine; and yet fell short of the fact, for instead of a million, the destruction of 8. or 10. millions of human beings has probably been the effect of these convulsions. I did not, in 89. believe they would have lasted so long, nor have cost so much blood. But altho’ your prophecy has proved true so far, I hope it does not preclude a better final result.”[22] Jefferson’s still thinking, after a quarter century of warfare and unremitting bloodshed, that a better final result would occur was nothing other than the opinion of an indomitable optimist. He also still believed a quarter century after the revolution started that it had begun on a higher level than that which it ended, writing to a friend of his in France he reflected, “But of what scenes has it [Paris] since been the theatre, and with what havoc has it overspread the earth! Robespierre met the fate, and his memory the execration, he so justly merited.”[23] At the very least Jefferson and his allies were able, retrospectively, to avoid Hamilton’s harsh condemnation that, “If there be any thing solid in virtue—the time must come when it will have been a disgrace to have advocated the Revolution of France in its late stages.”[24]
An historian of the French Revolution has said quite accurately that “It has never been possible to be neutral about the French Revolution,”[25] and this is largely true about the American Revolution as well. The clear difference is that the efforts of the American revolutionaries and the documents they produced are still the active foundation of an operating state, while those produced by the French Revolutionaries in 1789, 1793, and 1795 represent historical documents separated from operative governments. Certainly the Fifth Republic is the heir of the revolution but it was not born from that revolution. The result is that the arguments created by the American Revolution still occur under the aegis of modern American politics while those spawned from the French Revolution are held in one of the great “What ifs ….?” of history. Rather than pretend neutrality over either revolution or speculating on the potentialities of the French Revolution in comparison to the ongoing outcome of the American Revolution, I will seek to shed light on the conception of political rights developed by both sets of revolutionaries and how this contributed to the different outcomes.

* * *

Before one can properly look to the revolutionaries in America and France and their work on political rights, it is necessary to examine the philosophical precursors which influenced them and in some cases formulated the political doctrines and ideas of rights the revolutionaries would adopt and put into practice. It is almost the ultimate truism of intellectual history to say that John Locke, the seventeenth century Scottish philosopher, was the ideological forbear of the American founding fathers. Yet Locke’s thought was extremely valuable to the founders and they openly proclaimed their attachment to him, Jefferson calling Locke one of “the three greatest men that have ever lived, without any exception,”[26] and to not look into his ideas on liberty and rights a little more in depth, accepting the truism only, would be a disservice.
Many of the political theorists of Locke’s day, beginning with Thomas Hobbes, were concerned with the formation of political society. Why had men chosen to form societies and governments, exiting the “state of nature” which had been their original condition? Since the time when men lived in the state of nature long predated writing and the “invention” of written history attributed in the Western world to Herodotus, the state of nature was a theoretical starting point upon which thinkers like Hobbes and Locke could then reason about the proper functions and forms of government. Locke saw the state of nature as a condition of total freedom and sovereignty for individuals. Individual men were “willing to quit this Condition, which however free, is full of fears and continual dangers” from other men wishing to take their property “and is willing to joyn [sic] in Society with others who are already united, or have a mind to unite for the mutual Preservation of their Lives, Liberties, and Estates, which I call by the general Name, Property.”[27] Property was crucial to Locke’s conception of government, which he posited was only in existence to protect the property of those who had consented to forfeit a share of their sovereignty to a government for that purpose. Locke said this clearly enough when speaking of the power to tax, writing that when a governor can take property “without such consent of the People, he thereby invades the Fundamental Law of Property, and subverts the end of Government. For what property have I in that which another may by right take, when he pleases to himself?”[28] The importance of this idea of government and Locke’s conception of what government was in place to do, i.e. protect the lives, liberties, and property of its citizens, was that individuals took preeminence not only in the state of nature, but also in civil society. The revolutionaries of America and France would adopt Locke’s view of the importance of property, but there would be a divergence over the role of individual citizens in the country at large, as will become clear.
The American revolutionaries followed a political tradition dating back to Locke and the Glorious Revolution of 1688 which was known as the country or “Whig” party in England. The men who would lead the revolution in 1776 and the republic were followers of a radical Whig tradition that had as its leading political theorist Algernon Sidney, whose great work Discourses Concerning Government was widely disseminated in the American colonies.[29] Even more widely read were his popularizers, two radical Whig pamphleteers John Trenchard and Thomas Gordon, who penned Cato’s Letters, a series of essays drawing upon Locke and Sidney to critique the policies and government of Robert Walpole. These writers, among others, further solidified the importance the individual and his rights had in the polity, indeed their fundamental importance to any conception of the state at all. Trenchard and Gordon articulated the problem James Madison would come to deal with, the rights of minorities against the majority in a popular government which one historian has called “the great dilemma of America’s constitutional democracy,”[30] when they wrote,
It is a mistaken notion in government, that the interest of the majority is only to be consulted, since in society every man has a right to every man’s assistance in the enjoyment and defense of his private property; otherwise the greater number may sell the lesser, and divide their estates amongst themselves; and so, instead of a society, where all peaceable men are protected, become a conspiracy of the many against the minority.[31]

The radical Whigs truly put the individual and his rights before any notions of society and its alleged needs, Sidney denied the right of anyone to anyone else’s property for as men “are all equal, and equals can have no right over each other, no man can forfeit anything to one who can justly demand nothing, unless it may be by a personal injury.”[32] Trenchard and Gordon hammered this point home when they defined liberty as,
the right of every man to pursue the natural, reasonable, and religious dictates of his own mind; to think what he will, and act as he thinks, provided he acts not to the prejudice of another; to spend his own money himself, and lay out the produce of his labour his own way; and to labour for his own pleasure and profit, and not for others who are idle, and would live and riot by pillaging and oppressing him, and those that are like him.[33]

It should not be hard to figure out how Thomas Jefferson chose his language for the Declaration of Independence, because the ideas of rights articulated by Locke and the radical Whigs had long been circulating in the colonies whether it was in the forms already discussed or through numerous other sources. Take for example the British essayist and radical Whig Joseph Addison, whose Spectator essays were the favorites of a young James Madison or whose play Cato was the favorite of George Washington. Washington quoted the play frequently, had it performed for the army during the revolution, and may even have drawn upon it in his speech to potentially mutinous officers at Newburgh.[34]
Great Britain did not have a monopoly on political philosophers or influence on the American Revolutionaries. There were numerous French philosophers and political theorists whom clearly were read by the American revolutionaries and had an impact, especially on how they approached the forms and structures of government. It was nearly a cliché for radical Whigs in England to support and praise a government which mixed Aristotle’s three forms of government; democracy, aristocracy, and monarchy. Addison said as much in one of his many essays, where he called upon the authority of “Aristotle, Polybius, and Cicero, that is, the greatest Philosopher, the most impartial Historian, and the most consummate Statesman of all antiquity. These famous authors give the preeminence to a mixed government consisting of three branches, the regal, the noble, and the popular.”[35] This was echoed by Sidney in the Discourses, “And if I should undertake to say, there never was a good government in the world, that did not consist of the three simple species of monarchy, aristocracy and democracy.”[36] The Baron de Montesquieu, a French jurist and political philosopher, after visiting England and studying the government there, became convinced, like the radical Whigs, that “liberty is formed by a certain distribution of the three powers.”[37] James Madison wrote Federalist No. 47 to argue in favor of this point, drawing heavily upon Montesquieu (perhaps as heavily as his Anti-Federalist opponents who were endeavoring to show the exact opposite[38]) to show that the proposed constitution did, in fact, have separate and independent branches of government that divided the rule of one, the few, and the many and thus would protect the liberties of individual citizens.[39]
The contribution of French philosophers to the concept of rights was somewhat more complex and less clearly tied to the American than the French revolutionaries. In Diderot’s Encyclopedia the definition of “natural right” or droit naturel illustrates the primary difference between the American and French conception of that term, “You have the most sacred natural right to everything that is not resisted by the whole human race. It is the general will which shall enlighten you as to the nature of your thoughts and desires. Everything you conceive, everything you contemplate, will be good, great, elevated, sublime, if it accords with the general and common interest.”[40] One of the early collaborators of Diderot on the Encyclopedia was a young man from Geneva who would elaborate further on the “general will” and fundamentally challenge the views of government and mankind forwarded by Locke, the other radical Whigs, and Montesquieu.[41] Of course that young man was none other than Jean-Jacques Rousseau, whose language and ideas would permeate throughout the French Revolution and who would be remembered by the revolutionaries as “a prophet who had seen the future.”[42]
When the subject was property and its protection, which Locke and the radical Whigs had argued was the paramount focus of government, Rousseau said non! In his Discourse on Inequality Rousseau proclaimed that the creation of private property was a fraud perpetrated on “simple people” and openly wondered how many “crimes, wars, murders, how many miseries and horrors might the human race have been spared” had someone stepped forward and told the people “that the earth belongs to no one.”[43] In On Social Contract Rousseau seemed more reconciled to the existence of private property, but still undercut the institution in a way Locke and the radical Whigs would have found unacceptable when he said “In whatever way this acquisition is made, the right of each individual to his own piece of land is always subordinate to the community’s right to everything, without which there would be neither solidity in the social bond nor real power in the exercise of sovereignty.”[44]
Rousseau objected in every way to any individualistic basis for civil society, instead preferring to put everything and everyone under the dominion of the general will. Rousseau called for the “total alienation of each associate with all his rights to the whole community.”[45] Whatever Rousseau considered as the “rights” of the individual he never articulated clearly. He did, however, repeatedly point out the irresistible nature of the general will. Whereas Locke argued that individuals only surrendered that portion of their sovereignty to the government that they needed the government for, i.e. contract enforcement, police, and army for property protection, Rousseau wrote, “Each of us puts his person and all his power in common under the supreme control of the general will, and, as a body, we receive each member as an indivisible part of the whole.”[46] Fearful that he did not make this point strongly enough and to leave no doubt whatsoever he stated once more,
Just as nature gives each man absolute power over all his members, the social pact gives the body politic absolute power over all its own; and it is this same power, under the direction of the general will, which bears, as I have said, the name of sovereignty.[47]

There could be no more articulate and influential spokesman for the philosophical underpinnings of autocratic government than Rousseau. His collectivist conceptions of rights and the nature of civil society would be present at every stage of the French Revolution. Where the Americans had the “dilemma” of protecting individual rights against a popular majority, the French, in accepting the premises of Rousseau, had no dilemma which the general will, reflected through conventions, assemblies, committees, and the guillotine could not resolve.

* * *

When the American and French revolutionaries came to construct their governments they often came directly to the question of rights, frequently prefacing their written constitutions with a bill or declaration of rights. In 1774, the First Continental Congress adopted a declaration of rights and resolves, authored principally by John Adams. The rights declared were grounded first in the “immutable laws of nature” and included “life, liberty, and property.”[48] The rest of the declaration consisted of resolves claiming that the colonists had not lost their traditional rights as Englishmen because their forefathers had crossed the Atlantic. By the time the Second Continental Congress declared independence little had changed other than the absence of rhetoric about retaining their rights as Englishmen, men instituted government to secure their inalienable rights, among which were “Life, Liberty, and the Pursuit of Happiness.” The congress then called on the colonies to draft state constitution, which they did along with their own declarations of rights.
Virginia’s constitutional convention met in 1776 and included such luminaries as George Mason as well as young and raw legislators like James Madison. Mason drafted the “Virginia Declaration of Rights” that prefaced the state constitution, which began in sweeping and unequivocal terms, “That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”[49] The emphasis on the voluntary and individual nature of civil society is apparent here in Mason’s words, but the constitution drafted by John Adams for Massachusetts in 1780 was even more explicit,
The end of the institution, maintenance, and administration of government is to secure the existence of the body politic; to protect it, and to furnish the individuals who compose it with the power of enjoying, in safety and tranquility, their natural rights and the blessing of life; and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, happiness, and prosperity.[50]

To make things even plainer, Adams wrote “The body politic is formed by a voluntary association of individuals.”[51] In the “Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts,” Adams defined the fundamental rights of men as the “right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting [their] property; in fine, that of seeking and obtaining their safety and happiness.”[52] Throughout the declaration Adams made sure that it would be clear to all that it was the individual who was the basic unit of civil society, reiterating throughout, “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property,”[53] “But no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent,”[54] and “It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice.”[55] For this emphasis on the individual and his penchant for being able to “convert theory into practice”[56] one historian of John Adams’ political philosophy has aptly called him “one of John Locke’s greatest underlaborers.”[57]
The French revolutionaries also made many attempts to codify the rights of man. The Marquis de Lafayette presented a proposal for a declaration of rights in the National Assembly in July of 1789, the ensuing debate ended in the issuance of the “Declaration of the Rights of Man and Citizen” in August of the same year. Lafayette had recommended the following language for the definition of rights, which was largely adopted in the final draft,
Every man is born with inalienable and imprescriptible rights; these are the freedom of all his opinions; the care of his honor and his life; the right of property; the entire disposition of his own person, his industry, and all his faculties; the communication of his thoughts by all possible means; the pursuit of well-being and resistance to oppression.[58]

But Simon Schama reminds us that despite the language Lafayette and others had codified, the situation on the ground in Paris was far different where the rights of unpopular officials or perceived enemies of the revolution routinely violated in numerous ways, including repeated violations of the right to life. As Schama points out in one of the most powerful passages of his work on the revolution,
No one grasped this dismaying fact [the centrality of violence to the revolution] more immediately than Lafayette. As the darling of the crowd, he had been the figure to whom the votive gift of Bertier’s disjecta membra had been offered. He had brushed it aside with the terse comment that he and the mayor were too busy to see any further “delegations.” But the fact that the commandant of the National Guard had been impotent to prevent Bertier’s summary execution was itself alarming evidence that something more than the lofty Declaration of the Rights of Man (on which Lafayette was still working with Jefferson) was needed if the Revolution in Paris was not to spiral rapidly downwards into bloody anarchy.

The inability of those sympathetic and active in the revolution to deal with or control the violence endemic to it from the beginning made assuring that “men are born and remain free and equal in rights”[59] or that “the imprescriptible rights of man,”[60] which were “liberty, property, security, and resistance to oppression,”[61] were not violated nearly impossible without an alternate conception of political society.
The Declaration of 1789 contained the seeds of exception which are always disastrous to what is supposed to be an unequivocal statement of the rights of all mankind and contributed further to the lack of enforceability all such documents had during the French Revolution until those in power reacted with large-scale military force. For instance, article five of the Declaration said, “The law only has the right to prohibit those actions which are injurious to society. No hindrance should be put in the way of anything not prohibited by the law, nor may any one be forced to do what the law does not require.”[62] This was a not a statement of any right that is not already in existence, but merely a rather long-winded way of saying that “You cannot be punished for that which there is no law,” but it is not a prohibition on state action. If anything, it was a carte blanche for the state because anything that could be construed as “injurious to society” was declared to be the proper sphere of government action. Articles ten and eleven presented further vague curtailments of rights, with ten saying, “No one should be disturbed for his opinions, even in religion, provided that their manifestation does not trouble public order as established by law,”[63] and eleven adding, “Every citizen may therefore speak, write, and print freely, if he accepts his own responsibility for any abuse of this liberty in the cases set by the law.”[64] (emphasis added) These exceptions and provisos in the Declaration, a document Thomas Paine said would be “of more value to the world, and will do more good, than all the laws and statutes that have yet been promulgated,”[65] would become more pronounced in subsequent declarations and the running of French revolutionary governments.
After Louis XVI’s failed flight to Varennes and the declaration of a republic, two things had to be dealt with outside of the military situation with the Prussians and the Austrians. These problems were 1) what should be done with the deposed King? and 2) the promulgation of a new constitution and declaration of rights. The first problem was dealt with by trial and the King’s trial, not to mention his execution, provided ominous foreshadowing for what was to come. Saint-Just, in a speech about the fate of the King in November 1792, compared Louis’ execution to that of Caesar’s and excoriated his fellow delegates for their timidity in meting out punishment to one whose “murderous hands soaked with blood!”[66] Despite his obvious zeal for killing the deposed king, he ended in a Rousseau-like flourish, “You will never see my will oppose the general will. I shall desire what the People of France, or the majority of its representatives, desire.”[67] The proviso about a majority of the representatives of France was important because those trying to avoid executing the king were trying to have the question given to the people in a plebiscite, which Robespierre, Saint-Just, and the other Jacobins opposed. Thomas Paine, then a representative in the Convention, in an inversion of due process, declared that “If Louis is innocent, let us put him to prove his innocence,”[68] implying his presumed guilt when Louis also, perhaps with more cause, could have accused his accusers of crimes, namely kidnapping his family and holding them against their will even after he was deposed and stripped of title and official powers. Robespierre spoke the “general will” of the Convention when he “regretfully” voiced the “fatal truth, Louis must die because the nation must live.”[69]
After the king had been killed and England and France declared war on one another (radicalizing American politics considerably), the Convention moved to consolidate the state in a great flurry of legislation into which was mixed the new constitution and declaration of rights. The ironic twist here was that the new constitution and declaration of rights would never be put into effect instead being “temporarily” suspended by Robespierre who would inaugurate, in his own words, a “despotism of liberty against tyranny.”[70] In March 1793 the Convention issued the “Decree upon the Press” which guaranteed the death penalty for anyone convicted of “having composed or printed works or writings which incite to the dissolution of the national representation, the re-establishment of monarchy or of any other power which constitutes an attack upon the sovereignty of the people” and two years in prison to the distributors of these writings if the distributor refused to name the author.[71] This was no real departure from articles ten and eleven of 1789’s “Declaration of the Rights of Man and Citizen” which had said people would not be disturbed for their opinions as long as they did “not trouble public order as established by law.” Now there was a law decreeing which opinions did trouble public order. Now it was time for authors to accept their “own responsibility for any abuse of this liberty [to speak, write, and print freely] in the cases set by law.” Rousseau had even said in On Social Contract that “Just as the general will is declared through the law, so public judgment is declared through the censorship; public opinion is the kind of law which the censor administers, and which he applies only to particular cases, after the example of the prince.”[72] By comparison, the Virginia Declaration of Rights had been unequivocal about this right, saying “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotick governments.”[73] And, of course, the First Amendment to the Constitution of the United States says with equal bluntness that “Congress shall make no law … abridging the freedom of speech, or of the press …”[74]
Beyond this troubling development, in April 1793, Robespierre forwarded his proposed Declaration of Rights for the new constitution. In it were the expressions of the collectivist nature of the French revolutionaries’ conception of political rights. For Robespierre, “The purpose of every political association is the maintenance of the natural and imprescriptible rights of man and the development of all his faculties.”[75] (emphasis added) This idea of civil society existing not just to protect rights, but to develop all the faculties of man became, in the final draft, the even more vague “The aim of society is the common welfare.”[76] Robespierre proposed that the principle rights of man were those “providing for the preservation of his existence and his liberty” and he then added novel (what Edmund Burke would have called “innovative”) duties upon the citizens (and presumably rights for the beneficiaries) consisting of the “obligation to provide for the support of all its [society’s] members either by procuring work for them or by assuring the means of existence to those who are not in condition to work,” the duty of those “who possess a superfluity” to pay their “debt” and provide relief “for those who lack the necessities of life,” and finally the duty of those whose incomes exceeded what was needed for subsistence to “support” those whose incomes did not, “progressively, according to the extent of their fortunes.”[77] These ideas were modified for the final draft but were still very much present, the official version said, “Public relief is a sacred debt. Society owes maintenance to unfortunate citizens, either procuring work for them or in providing the means of existence for those who are unable to labor.”[78] But this is a moot point because, as has been said, the Declaration of Rights and the Constitution of Year I (1793) never went into effect. By the time a new declaration and constitution did go into action it would be in Year III (1795) under the Directory, which listed very basic rights, but also had a declaration of duties which notably proclaimed, “The obligations of each person to society consist in defending it, serving it, living in submission to the laws, and respecting those who are the agents of them.”[79]
It does not mean that because the constitution and declaration of rights of Year I were suspended that no rights were defined under the Terror. Quite the contrary, but their definition tended to be negative in the nature of a child being told what cannot be done. For example, in July 1793, the Convention issued a decree against “Profiteers” which mandated the death penalty for “monopolists” who were defined as people who kept “essential” commodities off the market through hoarding or by destroying them for fear of their being expropriated or their being accused of hoarding.[80] In September 1793 the Convention authored another decree, this time on “Suspects” who were defined as those who had shown themselves as “partisans of tyranny or federalism and enemies of liberty,” those who were unable to show that their incomes were not derived from noble titles, those “to whom certificates of patriotism have been refused,” former nobles and their entire families, and those who fled France during earlier phases of the revolution. Their punishment, at the very least, was immediate arrest.[81] Paradoxically, it was the Convention in the days of Robespierre that finished off slavery in the French colonies (until Napoleon’s failed attempt to bring it back) simply saying that “all men, without distinction of color, residing in the colonies, are French citizens and will enjoy all the rights assured by the constitution.”[82] The American revolutionaries by contrast failed miserably on this front despite near universal moral condemnation of the institution in quite possibly the only moment to confront and end the problem without a calamitous civil war which eventually tore the Union apart.
Robespierre and his allies often invoked the war being fought against the English and other continental powers to justify his “despotism of liberty against tyranny,” and he has been backed by some historians of the French Revolution, notably Georges Lefebvre. In a general history of the revolution Lefebvre wrote, “In spite of elements which extended it [the Terror] rashly or polluted it, it remained until the triumph of the Revolution what it had been from the first moment: a punitive reaction linked indissolubly to the defensive impetus against the ‘aristocratic plot.’”[83] François Furet, responding to apologists like Lefebvre, has pointed out that,
Situations of extreme national peril do not invariably bring a people to revolutionary Terror. And while the revolutionary Terror that gripped France at war with the European monarchies always conjured up that peril to justify its existence, it actually raged independently of the military situation: the “spontaneous” massacres of September 1792 took place after the fall of Longwy [to the Prussians], but the “Great Terror” conducted in the spring of 1794 by the government and by Robespierre made heads roll after the military situation had improved.[84]

Also instructive is that while the American revolutionaries were not immune from committing abuses in the midst of their revolutionary struggle, they did move fairly quickly to curb the abuses in whatever ways they had at their disposal, whether it was through state constitutions and bills of rights during the revolution or with the creation and adoption of a Federal Constitution which limited the powers of government and would guarantee fundamental rights which did not constitute a claim or debt on others.
The dueling conceptions of political rights which the American and French revolutionaries formulated and put into practice contributed greatly to the creation of different republican experiments. One, with the horrible and fundamentally disastrous contradiction of slavery, assured individual rights to the populace by recognizing that political rights existed before men entered into civil society, and that those rights ought not to be usurped by government. The other posited a collective conception of rights that applied to “the people” and not the individuals who comprised that body. This difference does not explain everything about the divergent paths of these two revolutions, but it does demonstrate how the two conceptions of rights manifested in incredibly different revolutionary experiences.

[1] George Washington to Bryan Fairfax (24 August 1774), The Spirit of Seventy-Six, ed. Henry Steele Commager and Richard B. Morris (Edison, NJ: Castle Books, 2002), 25.
[2] Duke Mathieu de Montmorency, “Duke Mathieu de Montmorency, August 1, 1789,” in The French Revolution and Human Rights: A Brief Documentary History, ed. and trans. Lynn Hunt (Boston: St. Martin’s Press, 1996), 74.
[3] Gouverneur Morris, A Diary of the French Revolution, ed. Beatrix Cary Davenport (Boston: Houghton Mifflin Company, 1939), vol. 1, 594.
[4] Robespierre, “On Political Morality,” (5 February 1794), Liberty, Equality, Fraternity: Exploring the French Revolution [].
[5] Susan Dunn, Sister Revolutions (New York: Faber and Faber, 1999), 24.
[6] Ibid.
[7] Ibid, 145-59.
[8] Simon Schama, Citizens (New York: Alfred A. Knopf, 1989), 447.
[9] François Furet, Interpreting the French Revolution, trans. Elborg Forster (Cambridge: Cambridge University Press, 1981), 62-63.
[10] Gordon S. Wood, “The Origins of the Bill of Rights,” reprinted from The Proceedings of the American Antiquarian Society, Volume 101, Part 2 (Worcester: American Antiquarian Society, 1992), 258.
[11] Edmund Burke, “Reflections on the Revolution in France,” Edmund Burke: Selected Writings and Speeches, ed. Peter J. Stanlis (Washington D.C.: Regnery, 1963), 515.
[12] Thomas Paine, “Rights of Man, Part One, 1791,” Collected Writings, ed. Foner (New York: Library of American, 1995), 509.
[13] Gouverneur Morris, Diary, vol. 1, 171.
[14] Alexander Hamilton, “Letter to Lafayette (6 October 1789),” Hamilton: Writings, ed. Joanne B. Freeman (New York: The Library of America, 2001), 521.
[15] Ibid.
[16] Hamilton, “Memorandum on the French Revolution, 1794,” Writings, 833-34.
[17] Adams, “Letter to Richard Price (19 April 1790),” Political Writings, 663.
[18] Thomas Jefferson on the French Revolution (3 January 1793) [].
[19] James Monroe, “To Secretary of State Edmund Randolph (15 August 1794),” The Political Writings of James Monroe, ed. James P. Lucier (Washington DC: Regnery Publishing, 2001), 114.
[20] Madison, “To Thomas Jefferson (2 September 1793),” Writings, 549.
[21] Madison, “Political Reflections, in Aurora General Advertiser (23 February 1799),” Writings, 599-607.
[22] Thomas Jefferson to John Adams (11 January 1816), The Adams-Jefferson Letters, ed. Lester J. Cappon (Chapel Hill: The University of North Carolina Press, 1987), 459.
[23] Thomas Jefferson, “To Madame de Staël (24 May 1813),” Writings, ed. Mettill D. Peterson (New York: Library of America, 1984), 1271.
[24] Hamilton, “Memorandum on the French Revolution, 1794,” Writings, 835.
[25] William Doyle, The Oxford History of the French Revolution, 2d ed. (Oxford: Oxford University Press, 2002), 446.
[26] Thomas Jefferson, “To John Trumbull (15 February 1789),” Writings, 939. The other two Jefferson considered to be in this eminent troika were Sirs Francis Bacon and Isaac Newton, all three were British “empiricists” as opposed to Cartesian “rationalists.”
[27] John Locke, Two Treatises of Government (New York: Cambridge University Press, 2000), ed. Peter Laslett, 2nd Treatise, Chapter 9, 350.
[28] Ibid, Chapter 11, 362.
[29] Bernard Bailyn, The Ideological Origins of the American Revolution, enlarged ed. (Cambridge: Belknap, 1992), 34-5; see also Gordon S. Wood, The Creation of the American Republic 1776-1787 (Chapel Hill: University of North Carolina Press, 1998), 16; and Wood, The Radicalism of the American Revolution (New York: Vintage, 1991), 179.
[30] Ibid, 189.
[31] John Trenchard and Thomas Gordon, Cato’s Letters, ed. Ronald Hamowy (Indianapolis: Liberty Fund, 1995), Letter No. 62, vol. 1, 427.
[32] Algernon Sidney, Discourse Concerning Government, ed. Thomas G. West (Indianapolis: Liberty Fund, 1996), 511.
[33] Trenchard and Gordon, Cato’s Letters, Letter No. 62, V.1, 429.
[34] Ralph Ketcham, James Madison (Charlottesville: University Press of Virginia, 1990), 41; and Forrest McDonald’s forward in Joseph Addison, Cato: A Tragedy, and Selected Essays, ed. Christine Dunn Henderson and Mark E. Yellin (Indianapolis: Liberty Fund, 2004), viii. The relevant passage comes in Act III, Scene V.
[35] Addison, Cato and Selected Essays, Freeholder No. 51 (15 June 1716), 252.
[36] Sidney, Discourses, 166.
[37] Montesquieu, The Spirit of the Laws, ed. and trans. Anne Cohler, Basia Miller and Harold Stone (New York: Cambridge University Press, 1997), 187.
[38] Pennsylvania Minority, “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents,” 18 December 1787, The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketcham (New York: Mentor, 1986), 251.
[39] James Madison, Writings, ed. Jack N. Rakove (New York: The Library of America, 1999), 273-80.
[40] Denis Diderot, from the Encyclopédie, Political Writings (New York: Cambridge University Press, 1992), 20.
[41] Doyle, Oxford History of the French Revolution, 52.
[42] Ibid, 53.
[43] Jean-Jacques Rousseau, “Discourse on Inequality,” Rousseau’s Political Writings, ed. Alan Ritter and Julia Conway Bondanella, trans. Julia Conway Bondanella (New York: W.W. Norton & Company, 1988), 34.
[44] Ibid, “On Social Contract,” 98.
[45] Ibid, 92.
[46] Ibid, 93.
[47] Ibid, 101.
[48] “Declaration and Resolves of the First Congress, 14 October 1774,” The Spirit of Seventy-Six, 57.
[49] The Virginia Declaration of Rights quoted by Robert A. Rutland, George Mason: Reluctant Statesman (Baton Rouge: Louisiana State University Press, 1989), 111.
[50] The Political Writings of John Adams, ed. George W. Carey, The Report of a Constitution, or Form of Government, for the Commonwealth of Massachusetts (Washington D.C.: Regnery Publishing, 2000), 499.
[51] Ibid.
[52] Ibid, 501.
[53] Ibid, 506.
[54] Ibid.
[55] Ibid, 510.
[56] C. Bradley Thompson, John Adams and the Spirit of Liberty (Lawrence: University Press of Kansas, 1998), 87.
[57] Ibid.
[58] Marquis de Lafayette, “Marquis de Lafayette, July 11, 1789,” in French Revolution and Human Rights, 73.
[59] “Declaration of the Rights of Man and Citizen, 26 August 1789,” in French Revolution and Human Rights, 78.
[60] Ibid.
[61] Ibid.
[62] Ibid.
[63] Ibid, 79.
[64] Ibid.
[65] Paine, “Rights of Man,” Collected Writings, 509.
[66] Speech by Saint-Just (13 November 1792) [].
[67] Ibid.
[68] Speech by Thomas Paine (21 November 1792) [].
[69] Speech by Robespierre (3 December 1792) [].
[70] Robespierre, “On Political Morality,” (5 February 1794) [].
[71] “Decree upon the Press, 29 March 1793,” in The Constitutions and Other Select Documents Illustrative of the History of France, 1789-1901, ed. Frank Maloy Anderson (Minneapolis: The H.W. Wilson Company, 1904), 158.
[72] Rousseau, “On Social Contract,” Rousseau’s Political Writings, 164.
[73] The Virginia Declaration of Rights quoted by Rutland, George Mason, 113.
[74] U.S. Constitution, amend 1.
[75] “Robespierre’s Proposed Declaration of Rights, 24 April 1793,” in Constitutions and Other Select Documents, 160.
[76] Declaration of the Rights of Man and Citizen from the Constitution of the Year I (1793) [].
[77] “Robespierre’s Proposed Declaration of Rights, 24 April 1793,” in Constitutions and Other Select Documents, ed. Anderson, 161.
[78] Declaration of the Rights of Man and Citizen from the Constitution of the Year I (1793) [].
[79] Declaration of Rights and Duties of Man and Citizen, Constitution of the Year III (1795) [].
[80] Decree against Profiteers (26 July 1793) [].
[81] The Law of Suspects (17 September 1793) [].
[82] “Decree of the National Convention of February 4, 1794, Abolishing Slavery in All the Colonies,” French Revolution and Human Rights, 116.
[83] Georges Lefebvre quoted in Doyle, Oxford History of the French Revolution, 449.
[84] Furet, Interpreting the French Revolution, 62.

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