Did Thomas Jefferson Believe in a Right to Property?

Article by R. Michael Smith

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Correction from the author: George Mason did not teach Thomas Jefferson at William & Mary. William Small was his principal instructor. Jefferson and Mason were contemporaries who participated at the same time with Virginia’s Committee of Correspondence. My stepson, a graduate of George Mason University, spotted my error. I thank him for bringing it to my attention.

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The Declaration of Independence famously proclaims that citizens of the United States were entitled, by that citizenship, to certain self-evident, inalienable rights, which include life, liberty and the pursuit of happiness.[i]  Among historians and political philosophers the second sentence of the Declaration has often been called the greatest sentence ever written about liberal, democratic government.[ii]  A right to life and a right to liberty logically seem to be inchoate to a sui generis individual.  A right to the pursuit of happiness, while lyrical, does not convey the same weight. As it was in 1776, today, many have argued that the right to property was intended for the third self-evident right. The choice of words was debated during the days ahead of the drafting of the Declaration.  This article, hopefully, will articulate part of that debate, but will focus on Thomas Jefferson’s philosophical tenets that led to his choice for the pursuit of happiness.[iii]

          Essentially, this is putting the end before the beginning.  Knowing that Jefferson chose “the pursuit of happiness” and not “property” is sufficient if you are only interested in the short answer. A longer attempt at an answer is necessary to understand Jefferson’s rationale and, also, the course of American history. Jefferson’s ideals and the consensus of ideals at the writing of the Declaration help explain the Second Continental Congress’s adoption of pursuit of happiness. It also informs the constitutional divide that led to America’s first two political parties: Federalist and Democratic-Republican. The earlier party was that of Washington to a small extent and Hamilton to a much larger extent.  Jefferson was the philosophical leader of the Democratic-Republican group, seconded by his successor Virginia Presidents and the states’ rights believers.  Both parties agreed that there was a right to property and to the pursuit of happiness. Ultimately, the historic debate focuses on which level of government (or no government) would define, if necessary, and enforce, as necessary, those rights.[iv]

What Contributed to Jefferson Choosing “Pursuit of Happiness”?

          Thomas Jefferson was born into relative wealth.  His father, Peter, owned a modest estate in Albemarle County, at Shadwell, where Jefferson was born as the eldest son.  Jefferson went to a small, private, boarding school for his education ahead of college.  His principal instructor at the time was an ordained minister, whose teachings, while based in a religious framework, were nevertheless broad and secular.  Jefferson learned Greek and Latin and may have been exposed to the classic philosophers as a youth.  He also studied French, which he found most useful during his official time in Paris as a representative of the colonies and the states.[v]

          Jefferson was influenced by his college education in his thinking on government, society, and rights of the individual.  He attended the College of William & Mary for undergraduate and law studies.  George Mason was his lead instructor at W&M and George Wythe was the principal teacher on the law in his newly formed school.[vi]  In the course of these studies, he was exposed to the classic philosophers and the thinkers of the Enlightenment.  Through this exposure, he assimilated concepts of the natural law, inchoate rights of the individual citizen, and fundamentals of government.  He practiced law successfully[vii] and entered public office as expected in the 1760s.  He impressed his colleagues in the General Assembly with his measured countenance and writing skills.  He was rewarded with an appointment as a Delegate from Virginia to the Second Continental Congress.  He did not, however, arrive in Philadelphia until the late spring of 1775, which was after the Boston Tea Party, Boston Massacre, and Lexington and Concord.

Portrait of a Young Thomas Jefferson

          What Had Jefferson Learned from These Esteemed Thinkers by July 4, 1776?[viii]

          Western political thought began in ancient Greece with Plato and Aristotle.  Here was the beginning of the republican form of government, which was further explored by the Roman Republic.  Both philosophers viewed a republic as a preferable form of government to limit the power of the sovereign.  Citizens would be members of the state with certain rights.  The rights, however, were neither self-evident nor inalienable.  Rights were awarded by the state to individuals as a reward/benefit for service to the state.  Once one became a citizen, he would participate in governance and wealth.[ix]

          Neither man recognized a natural right to property.  Ownership of property was permitted but transfer to heirs or others was subject to state regulation. The effect was to continue the existing class structure based on economics.

          Plato emphasized that a just social order was the foundation for the state and, simultaneously, the state was the foundation of a just social order.  He was skeptical of equal rights and equal access to property among the general populace.  He believed, given human nature, would lead to conflict of values, wisdom, and place.  The lowest class (he called them Producers), lacking proper virtue and wisdom, would want more of the material of the state without the skill of governance.  If unchecked by the highest class (Philosopher-rulers) using the middle class (Auxiliaries/guardians) for protection of the state, the Producers would accumulate power by reason of their number, and this would lead to anarchy.  While the upper class would rule in his republican state, he insisted that their broader individual rights were awarded only with greater responsibilities and duties to preserve that state through their greater wisdom and virtue.[x]

          Aristotle broadly accepted Plato’s theories of government.  Rights and duties were equal parts of citizenship.  On the other hand, he thought that the middle class was essential to stability of the state.  Within the proper social structure, the middle class would have the skill to govern and the capacity to be governed.  The ideal middle class would be filled by “good citizens” who were neither arrogant (upper class) nor envious (lower class).  Still, he did not favor democracy in its purest sense as that would likely lead to mob rule.

          Between them, Plato and Aristotle introduced the concept of government by leaders elected by Citizens.  Citizens were granted rights by the state based on service to the state.  Those with the greatest virtue and wisdom would, naturally, form the upper, leadership class.  Rights to participate in societal governance were restricted and came with commensurate duties to the state.  Neither viewed rights of life, liberty, or property as inchoate to the individual.  Rights were earned from, given by, and could be taken away by the state.

          Much of Magna Carta focuses on inheritance of real property, collection of debts, scutage,[xiv] and judiciary.  Clauses 39 and 40 are still cited as the foundation of a liberal, free society governed by laws and rights:

(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

(40) To no one will we sell, to no one deny or delay right or justice.

Protection of property and transit was assured to English and foreign merchants. Royal forests would be disafforested.  Any man that the King disposed of lands (including any still away from England for the Third Crusade) was promised a day in court before the council of barons for redress of any unlawful taking.[xv]

          Magna Carta did not provide a constitutional framework to protect and preserve its stated rights or extend them more broadly beyond the royal and ecclesiastical classes.  While the monarchy resorbed near absolute power over the ensuing centuries, enforcement and expansion of rights to larger groups of citizens were promulgated by Parliament with the monarch’s consent.  Among these laws were the Petition for Rights (1628), the Habeas Corpus Act (1679), and the (English) Bill of Rights (1689).  The latter spread the vote to the general public of men.  It also codified freedom of the press and the right to petition the government for wrongs.  Further, the government was prohibited from taxation or raising an army without consent of the Parliament.

          The Bill of Rights was influenced by John Locke. His writings, and those of other Enlightenment thinkers were known by and inspiration for America’s Founding Fathers and, particularly, Thomas Jefferson.  In fact, Jefferson named Locke as one of his trinity of the greatest men of all time along with Isaac Newton and Francis Bacon.[xvi]

John Locke

          John Locke and the Enlightenment Thinkers

          John Locke, Voltaire, and Montesquieu were leading Enlightenment thinkers, who were known to the Founding Fathers in 1776: That is, they were known to all readers of books on political thought or newspapers tracking the then current events in the Colonies, England, and Europe.  Locke is most often cited as the inspiration of the author of the Declaration of Independence, but Jefferson’s personal notes reveal more entries from Montesquieu than Locke.[xvii] Indeed, most of the historiography on Jefferson’s thoughts undergirding his choice of words for the Declaration is a debate on who contributed more: the classical philosophers, Locke, or others.[xviii]

          In brief, Locke provided arguments for liberal government.  He viewed self-government as an expected result of the evolution of mankind from a natural, wild state to normalization via a participatory society and then governance.  By nature, humans were first created[xix] to lead free lives and, naturally, to self-protect that life and liberty.  Creation came with endowed natural rights to use and possess the world for protection and growth.  Eventually, the expansion of population and its accumulated experience with the world would lead men to the rational conclusion[xx] that society needed laws to enforce and protect the natural rights of life, liberty, and property.  Government would serve best when founded on the consent of those governed.  That is, it would be a government created within society, not instituted by monarch, despot, or church.  Moreover, he posited that, if existing government does not protect the natural rights of the individual citizen as its priority, the populace was justified to replace it (even by violence, if necessary) and install one that honors that priority.

          The corollary to Locke’s beliefs was that the people would, naturally, enter a mutual, social contract in which each citizen ceded a portion of his rights to the government in exchange for the government’s promise to protect his rights that he did not surrender.  Consent of the governed was essential to Lockean thought.  He was not naïve in that he recognized that the history of mankind was uneven, full of misdeeds, wars, and other disasters.  He attributed this as much to prior rulers and the church as he did to any corruption of man’s natural evolution.  In other words, he believed that a government of, by, and for the people, would work if given a chance.  To maintain a mature, stable government considering such history, implementation of the natural law was needed as a curb on the government and the people.

          Locke’s ideals informed Jefferson and the Declaration of Independence.  Montesquieu, on the other hand, informed the Constitution’s drafters.  Jefferson and the representatives at the Second Continental Congress already held rights of life, liberty, and property due to British citizenship.  Derived from the monarch, these rights were not at that time deemed to be natural rights.  The purpose of the Declaration was to state the reasons for a violent break from King and Parliament to form a new, uniquely American social contract for self-government.  The Declaration of Independence stated those reasons and those ideals.

          The Articles of Confederation attempted to codify the new social contract.  Its ineffectiveness prompted the Constitutional Convention.  Montesquieu’s ideas for separation of powers and checks-and-balances were largely adopted by James Madison and the other framers.[xxi]

          Contemporary Input on Property or Pursuit of Happiness

          Locke had used the phrase “pursuit of happiness” in his writings.  His usage was casual, however, making the phrase interchangeable with “property.”  The natural rights of life, liberty and property were accepted as a given truth for the nascent country by its leading thinkers of the middle of the 18^th Century.

          In a 1773 satiric piece, Benjamin Franklin counseled the Earl of Hillsborough, Minister of American Affairs, on exactly how not to relate to the Colonies.[xxii] Much of his article addresses taxes and quartering troops against the will and choices of the colonists.  Franklin points out that these burdens were placed upon the Colonies without their representation in Parliament.  He confirmed loss of property rights directly in Rule IX:

This (taxation without representation) will probably weaken every idea of security in their property and convince them, that under such a government they have nothing they can call their own; which can scarce fail of producing the happiest consequences.

[Emphasis in original.] Then, in Rule X, he instructs the Minister-to-be on the best way to preserve the liberty of the colonists:

Possibly, indeed, some of them might still comfort themselves, and say, “Though we have no property, we have yet something left that is valuable; we have constitutional liberty, both of person and of conscience. This King, these Lords, and these Commons, who it seems are too remote from us to know us,and feel for us, cannot take from us our Habeas Corpus right, or our right of trial by a jury of our neighbors; they cannot deprive us of the exercise of our religion…

From this setup, Franklin proceeded to enumerate those wrongs of England that were known throughout the Colonies to be the causes for breaking the ties between them.  His list was not new.  The Continental Congress had sent several petitions to the Crown requesting redress of grievances, as had most of the separate Colonies.  The failure to hear those grievances or seemingly to ignore them arrogantly was a key impetus in moving the United Colonies from desperately seeking a compromise to reluctant defense and, eventually, revolution.[xxiii]

          The continental movement toward independence and revolution may owe its roots more to commerce and economics (property) and less to Enlightenment or classical philosophy of the free and noble nature of man.  Thomas Paine’s Common Sense, written in January 1776, was a powerful argument for separation from England by force of arms.  The argument, however, is based on the relatively simple concept that, while a nation could govern, exploit, or subjugate an island, it made no sense that an island (England) could rule a continent.  It was common sense that America should be free of distant British governance.

          Patrick Henry may have been the most outspoken patriot who claimed that life and liberty were the motivating causes of his radicalism: “As for me, give me liberty or give me death!” is a demand for the exchange (alienation) of one natural right (life) for another (liberty).  Property was not part of his creed.

          Nevertheless, a right to property was a given among the Founders.  In debate on an anti-importation resolution in the First Continental Congress in October 1774, a demand for rights and liberties of an Englishman was made.  This demand was rather muted.  The North Carolina delegation offered an alternate resolution which stated its priority claim in its first clause:

Resolved, N.C.D.1. That they are entitled to life, liberty & property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent.[xxiv]

          While “pursuit of happiness” was a phrase used less often than “property,” when used it was a distinction without a difference.

          Conclusion: Why, Then, Did Jeferson Choose “Pursuit of Happiness”?

          As stated above, many trees have been wasted over the last two and a half centuries trying to explain why Thomas Jefferson chose pursuit of happiness over property as the third natural right of men.  Some have suggested an influence by classical philosophers to whom he had early exposure.  Most argue that he strayed from Lockean liberal thought, while recognizing that Locke exchanged the two.  Locke held that ownership of property, along with life and liberty, by man’s nature, would produce a state of personal happiness.  That is, pursuit of happiness may have been a mash-up of all three rights but was most correlated with property.  A few have opined that Jefferson’s choice derives from his affinity for land and its cultivation.[xxv]

          Dumas Malone, in his seminal six volume biography of Jefferson, written in the middle of the 20^th Century, argued that it did not make a difference to the signers of the Declaration, makes no difference to history, and should not make a difference today.  Nevertheless, in understanding Jefferson, it does make a difference:

Was there any significance in his omission of the word “property,” which had been used by John Locke, and his substitution for it of the phrase “pursuit of happiness”? It is exceedingly doubtful that his contemporaries thought there was. Locke presupposed the pursuit of happiness, and Jefferson always assumed as basic the right of an individual to hold property. He did not anticipate communism. Nevertheless, his use here of a more inclusive phrase than the word “property” was probably deliberate, and if it does clearly indicate a philosophical distinction between different sorts of rights it does suggest the characteristic shading of his thought.  From his later statements and actions there can be no doubt that such rights as freedom of mind, conscience, and person were the ones he cherished most. These, unquestionably, were inalienable, and also desirable in themselves; property was indispensable, just as government was, but, like it, was a means to human happiness and not an end.[xxvi]

Jefferson never articulated his rationale directly.  His later writings and letters give hints to his choice of pursuit of happiness over property, but not definition.

          While I find Malone’s analysis the most persuasive, I believe Jefferson’s choice at the time of writing his First Draft of the Declaration of Independence was decidedly his viewpoint.  His choice of the word “inalienable” is the key, I think.[xxvii]  The philosophy of natural rights was that they were inalienable.  As used, the word meant more than the individual could not trade those rights away.  Basic to the right(s) of property is its alienability; that is, the right to sell, encumber, possess, use in commerce, lease, license, grant easement, etc.  This seems to be in opposition to property being an inalienable right.  Proponents of natural rights (as Jefferson) viewed man’s essential nature as impelling him toward life and liberty, and use and ownership of the environment for his own well-being.  It was the powerful spiritual and moral disposition of mankind toward life and liberty that was not alienable.  The premise was that no person, in rational consciousness, would trade away his life or liberty for anything.  Jefferson did not see property as a thing that a rational person would die or go to jail for.  He did, however, see freedom of conscience, morality, values, emotions(?), etc. as the definition of personhood.  Such individual, internal concepts were part of mankind’s nature and could not be alienated by the individual even if he so desired.  Rational, natural man tended toward equality, self-preservation, protection of one’s family, and respect for the rights and thoughts of others.  Mankind also tended toward a liberated life of happiness.  Property, in addition to being, in fact, alienable, does carry an elitist negativity that opposed Jefferson’s optimistic faith in mankind.  In the end, I think, Jefferson chose the right to pursue happiness as equally inalienable as life and liberty.[xxviii]

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[i] “Inevitable” appears on the Jefferson Memorial and is accepted as the modern term. The original published Declaration has “unalienable,” which may have been a typo or misspelling.  “Unalienable” also appeared in the first handwritten copies.  Jefferson’s first draft has “inalienable.”

[ii] See, e.g., Walter Isaacson, The Greatest Sentence Ever Written, Simon & Schuster, 2025.  He went so far as to say: “It became the greatest sentence ever created by human hand.”  p.2. This analysis literally goes word by word analyzing Jefferson’s drafts and the input from his drafting committee members.  Sam Adams and Ben Franklin made significant contributions to the phrase addressed herein.

[iii] Much has been written on this singular topic by honored scholars with whom I can do little by comparison except to borrow extensively from their articles and books.  For additional reading, please see the appended bibliography.  It is representative of the writings on both sides of the ‘property’ versus ‘pursuit of happiness’ debate but is only a small list of what has been published.

[iv] Overly simply stated, Federalists became Republicans and Democratic-Republicans became Democrats (perhaps without the states’ rights ideal).  That history will not be pursued here except any reference that might illuminate the word choice of the Declaration.

[v] His French teacher was Scottish.  It was rumored that Jefferson spoke French with a Scotch accent that he did not realize until service in France.

[vi] As to Jefferson’s younger life and education, see, generally, Dumas Malone, Jefferson: The Virginian, Little, Brown & Company, 1948 (Vol.1, Jefferson & His Time), pp. 40-55.

[vii] Successful he was, but not as well-known as Patrick Henry as a trial lawyer.  Significant among his cases was Howell v. Netherland (Albemarle County, 1770).  This was a case for the freeing of a third generation mulatto slave.  Although the case was doomed in a slave society, Jefferson argued publicly, for the first time, that, due to the language of a particular statute of interest to the case, “under that law” “we are all born free.”  Malone, supra, pp. 121-122.

[viii] What follows, at best, is a grossly superficial summary of political thought.  At worst, it is all wrong.  I hope I hit the key points.  I have not read Plato, Aristotle, Locke, Voltaire, or Montesquieu (although they are on my Bucket List), as Jefferson did.  In condensing the summaries of others, I intend to put broad strokes on Jefferson’s canvas of influencers.  Refinements (much better summaries) can be found in the bibliography.  For an accessible overview, on YouTube, see, Dr. Kevin DeYoung, “The Triumph of Liberty: Baron de Montesquieu and Thomas Jefferson,” Christ Covenant Church, April 23, 2020, https://www.bing.com/videos/riverview/relatedvideo?q=jefferson+and+montequi&mid=25DC9799038EE70B9B0525DC9799038EE70B9B05&churl=https%3a%2f%2fwww.youtube.com%2fchannel%2fUCWditGBJsbbj3FpJ0JfpALA&FORM=VIRE.

[ix] The discussion of rights was restricted to Greek males.  This remained the position of women and slaves until the 19^th Century, at least in the English speaking world.  Rights of women, slaves, and Native Americans in Revolutionary Virginia as to property are topics of future articles in this Examiner series.

[x] He went so far as to suggest that private property be abolished among the Philosopher-rulers to prevent their human nature leading them to corruption.  He intended to ensure that they remained dispassionate in governance and be influenced by personal interests.

[xi] The same Prince (later King) John of Richard I (the Lionhearted) and Robin Hood infamy.

[xii] Not including the Sheriff of Nottingham.

[xiii] Numbering Magna Carta’s clauses was done later by editors.  The original is unnumbered and written in Latin, the language of the Church. Hopefully, a future article in this Examiner series will address the property rights of the colonial era Anglican Church.

[xiv] A payment to the monarch by a noble to avoid military service, which was a form of taxation.

[xv] Women were ignored except in matters related to their marriages and limited privileges as a married woman or as a widow. In what may have been the first spousal abuse law; however, Clause 54 provides: “No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband.” For more on Magna Carta, see, Cullen Couch, “The Sheer Force of an Idea,” UVa Lawyer, Vol. 38, no. 2, Fall 2014, pp. 22-29.

[xvi] Malone, Dumas, Jefferson and the Rights of Man, Little, Brown & Company, 1951 (Vol. 2, Jefferson & His Time), pp. 211 and 287. With this threesome, Jefferson seemed to recognize those at the pinnacle of science (Newton), the arts (Bacon), and philosophy (Locke).

[xvii] Malone, supra, Jefferson the Virginian, pp. 176, et seq. His own note showed his acceptance of a sort of noblesse oblige among the wise and virtuous of the republic: “He (M) considers political virtue or the Amor Patriae, as the energetic principle of a democratic republic; moderation, that of an aristocratic republic; honor, that of a limited monarchy; and fear, that of a despotism; and shews that every government should provide that it’s energetic principle should be the object of the education of it’s youth.”  Further, “That it’s laws should also be relative to the same principle. In a democracy, equality and frugality should be promoted by the laws, as they nurse the amor patriae.”

[xviii] E.g., see, Bassani, Luigi Marco. 2004. “Life, Liberty, and …: Jefferson on Property Rights.” Journal of Libertarian Studies, Vol. 18, no. 1, pp. 31-87. https://www.mises.org; Katz, Stanley N. 1976. “Thomas Jefferson and the Right to Property in Revolutionary America.” The Journal of Law & Economics, Vol.19, no. 3, pp. 467-488. https://www.jstor.org/stable/725077; Post, David M. 1986. “Jeffersonian Revisions of Locke: Property-Rights and Liberty.” Journal of the History of Ideas, Vol. 47, no. 1, pp. 147-157. https://www.jstor.org/stable/2709601.

[xix] Jefferson did believe in a Creator/God as multiple references in the Declaration reveal. Not being a Christian, however, he shared deism with many of his colleagues.  He did believe, perhaps most strongly of all beliefs, that free men had an inalienable natural right to believe (or not) in any religion of choice, and that interference in that right by the government should be prohibited.  His religious skepticism is inherent in his belief in the moral choices of the individual guided by his own values and choices, not those imposed by church or state.

[xx] Voltaire’s contribution to political philosophy is primarily in his firm belief that society would bend toward good (not evil) and justice.  This would be generated in his belief that government served best by dispassionate, rational, and moral decisions of leaders among all the naturally free and equal men.

[xxi] Jefferson, who was not a participant in the writing of the Constitution, accepted Montesquieu’s concepts of limited, constitutional government.  He did not favor the likely concentration of power ceded to the federal government. He favored government at the lowest level.  Montesquieu might have believed that pure democracy would work.  Jefferson was optimistic about the virtue and wisdom of the individual in a democracy, but, facing reality, he knew that a republic was needed.

[xxii] Benjamin Franklin. Sept. 1773. “Rules by Which a Great Empire May Be Reduced to a Small One: Presented to a Late Minister, When He Entered Upon His Administration.” Gentlemen’s Magazine, Vol. XLIII, pp. 441, et seq.

[xxiii] Revolution and liberty was the radical thought of the time.  The politics of the American Revolution is a fascinating story itself. Samuel Adams, particularly, was deeply and secretly involved in steering the Pennsylvania delegation to voting for liberty.  If not a direct agitator, he manipulated an expansion of suffrage in the state to result in new instructions to the delegation from a populist majority.  In a ‘be careful what you wish for’ moment, Adams nearly got a result he did not want:  He did not want tradesmen and artisans in government, but he needed them for his desired result of freedom.  High ideals were not so much his thing. Freedom from England was his capstone.  Was he motivated by the natural right to property?  For more in depth on the chaos preceding the Declaration of Independence, see, William Hogeland, Declaration: The Nine Tumultuous Weeks When America Became Independent, May 1-July 4, 1776. New York: Simon andSchuster Paperbacks, 2010.

[xxiv] Journals of the Continental Congress, 1774-1789 (Vol. 1), October 14, 1774.

[xxv] See, e.g., A. Whitney Griswold. 1946. “The Agrarian Democracy of Thomas Jefferson.” The American Political Science Review, Vol. 40, no. 4, pp. 657-681.

[xxvi] Malone, Jefferson the Virginian, supra, pp. 227-228.

[xxvii] Note “inherent &” is bracketed in the draft ahead of “inalienable.”  That was deleted in the final version, probably by the Congress.

[xxviii] “In other words, there are certain rights that are inherent to a person’s existence in a state of nature that, even when they make a social contract, they cannot divest. Nor can any government or monarch deprive them of these rights.” Isaacson, supra, p. 24.

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