The Earth Belongs in Usufruct to the Living
Editorial Note

Sometime during the first week in September, Jefferson suffered an incapacitating illness of six days—perhaps one of his violent periodic headaches that seemed so often to be preceded or followed by bursts of intellectual activity.1 It was about this time that he was also seized by an idea that exerted a compelling influence over him for the remainder of his life. This was the belief that “the earth belongs in usufruct to the living,” the dead having neither rights nor powers over it.2 This concept of political relativism was the one great addition to Jefferson’s thought that emerged from his years of residence at the center of European intellectual ferment.

It is quite likely that the immediate stimulus causing this idea to burst suddenly upon his consciousness was provided by the physician who attended him in his illness and whom he regarded as the ablest doctor he had ever known, “a very sensible man,” though “a pure theorist, of the sect called the oeconomists, of which Turgot was considered as the head.”3 This was Dr. Richard Gem, an Englishman, a successful physician, an ardent devotee of republican principles, a friend of Diderot, Turgot, Dupont, Condorcet, and Morellet, and of course one of those who gathered around Baron d’Holbach, who died early in 1789. Yet little is known of him: even his name is variously and erroneously given as Gesme, Ghym, Gamm, Gam, Gom. A writer in The Monthly Magazine for 1821, who seems to have met him about the time that Jefferson did, thought it remarkable that scarcely anything had been written about this tall, erect, singular character who was, “in body and mind, distinguished from ordinary men.”4 Yet this author, reminiscing in old age about facts gathered at second hand, portrayed Gem as a youth who “took a dislike to the generally established system of school-learning, but seemed better pleased with the instruction of a neighbouring gentleman, characterised as a free-thinker, and who had, in fact, been obliged to leave the University of Cambridge (where he had graduated) for his openly-avowed penchant to unitarianism. This volunteer preceptor put into young Gom’s hands the translated works of Helvetius and Rousseau, with which writings he expressed himself delighted, but equally anxious to be able to read in the original.” The fact that Helvétius and Rousseau were almost Gem’s age reveals the false coloring of this picture. Others, unsympathetic to views that Gem made no pretense of concealing, wrote even less dependable comments about him. A brief note about the unusual physician who had such a direct connection with the remarkable letter that Jefferson drafted on his sick-bed is therefore necessary.

Richard Gem belonged to a Worcestershire family of some substance that may have been Welsh in origin. He was the only son of Richard Gem of Worcester, and was born at Barnsley Hall, in the parish of Bromsgrove, in 1717. He was placed under the tutelage of the Rev. William Philips, vicar of St. Peter’s, Worcester, who graduated in 1704 from Oriel College, Oxford. In 1735 he was admitted pensioner to St. John’s College, Cambridge, but he seems to have left without graduating. About 1740 he married a lady of French extraction who had been previously married. They had two children who died in infancy, and Gem and his wife separated in 1749. He appears to have received no medical degree, though he may have served an apprenticeship to one of the Gems of Worcestershire who were physicians and who must have been related to him: one was Dr. Thomas Gem and another was Dr. James Gem. His interest in physic and in French science is exhibited in his publication in 1741 of An Account of the Remedies for the Stone, a compilation based on the findings of the Académie des Sciences. In 1751, shortly after separating from his wife, he went to Paris with Lord Albemarle and is said to have resided in Rome for a while. He accompanied the Duke of Bedford to France in 1762–1763, becoming physician to the embassy in Paris, and thereafter divided his time between London and Paris. At his father’s death he inherited a small estate called Fockbury, to which he returned frequently while residing in France. Philip Mazzei said in 1788 that he had known Gem for thirty-two years and described him as “un des meilleurs hommes du monde et veritable philosophe.” He also said that he was the one who had introduced Gem and Jefferson to each other. As a physician of high standing in Paris and London and as one on terms of familiarity with the British nobility, Gem is almost certainly the author of the information about the character of the Prince of Wales that Jefferson transmitted to Jay on 11 Jan. 1789 as being from “an Englishman… of truth, sagacity, and science.”5

But others, who looked upon republican zealots less tolerantly than Jefferson did, portrayed themselves in their comments as much as they did Gem. The Earl of Malmesbury, in Paris in 1796, recorded in his journal: “Dr. Gemm called. Atheist. Systême de la Nature, economist, &c.—the cold apathetic scoundrel described by Burke.”6 Alger, a century later, added some facts and repeated the attitudes: “Almost the first time Gem spoke to Horace Walpole, who met him in Paris in 1765, he said to him, ‘Sir, I am serious, I am of a very serious turn,’ and this seems to have been his stereotyped expression. A rigid disciplinarian and parsimonious, he allowed no eating between breakfast and the five or six o’clock dinner. An avowed materialist, he was enchanted with the Revolution, and was doubtless the ‘Ghym, anglais,’ who in 1792 presented 1000 francs to the Patriotic Fund. This did not save him from being arrested, like other Englishmen, in October 1793, as a hostage for Toulon. He appears in the Prefecture of Police records as ‘Gesme,’ and as having, after nine days at the Luxembourg, been transferred to the Scotch College … he was probably released under the decree of the 3rd November 1793, which, on account of the scarcity of doctors, exempted foreign practitioners from imprisonment. He seems to have gone to live outside Paris, at Meudon, and there to have been rearrested by the Versailles authorities. He was for several months in the same prison, and even in the same room, as Mrs. Grace Dalrymple Elliott. He cried the whole time, and was terrified to death, as she told Lord Malmesbury in 1796, though in her posthumous book she represents him as going to bed at dusk to save candles, getting up at four to read Helvetius or Locke, and waking her at seven to try and argue her into materialism. Malmesbury found him living in Paris, still harping on his philosophy, anxious but unable to get away. He had Malmesbury’s secretaries to witness his will: one of them was the future Earl Granville, whom he had professionally attended, refusing fees; and he died, over eighty, in 1800, leaving the bulk of his property” to William Huskisson, his nephew.7

Gem wrote little, though he may have had a hand in more than has been credited to him. Condorcet’s Declaration des droits, traduite de l’anglois, avec l’original a coté, for example, bears in Jefferson’s hand on his copy a corrected title showing its true nature: “Declaration des Droits, par le Marquis de Condorcet traduite en Anglois, par le Docteur Gem avec l’original a cote.”8 He had also drafted his own declaration of rights, though it evidently remained in manuscript. Jefferson thought enough of it to send it to Madison. But in comparing it with that drawn up by Lafayette he revealed his preference for the latter by saying that it was “adapted to the existing abuses” while the former had in view “those possible as well as… those existing.”9 Such a preference was quite natural, since Jefferson had undoubtedly helped in the preparation of Lafayette’s draft.

It was also in keeping with Jefferson’s characteristic habit of addressing himself to the realities of a situation. Gem was the theoretician, Jefferson the practical legislator. Yet in the text printed below as Document ii Jefferson appears to be linking arms with the speculative thinker. For in the whole range of his elevated and life-long political discussion with Madison, this letter stands apart. That correspondence, while grounded on the importance of political theory, was in general concerned with existing political situations in America. But no such evocative situation existed there in 1789. The fundamental postulates of the nation had long since been declared, defended, and more recently consolidated in a viable form of government with which Jefferson was generally satisfied. Under the circumstances, Jefferson’s letter exposes itself to being, as indeed he feared it might be, “rallied, as a theoretical speculation.” To prove that it was, on the contrary, “solid and salutary,” he suggested that it would “furnish matter for a fine preamble to our first law for appropriating the public revenue.” He thought that no other nation could make such “a declaration against the validity of long-contracted debts so disinterestedly as we.” But this argument of disinterestedness is only another way of saying that he was in fact addressing himself to a political situation in America that did not exist. Its only force therefore would be moral: it would set another example of political wisdom before the world. Yet Jefferson, as a practical statesman, must have known that an example arising out of disinterest would not have had the force of one purchased at some sacrifice of interest on the part of the nation. The extent of that cost, as in the case of the Revolution itself, would have determined the lustre and the appeal of the example.

Further, this suggestion to Madison violates another deep-rooted characteristic of Jefferson’s political thought, for it proposes the enactment in ordinary legislation of a concept that runs to the very foundations of society, thereby opposing itself to the sharp distinction between statutory and fundamental law that Jefferson habitually made. When, for example, he drafted the Virginia Act for Establishing Religious Freedom, he recognized that representatives “elected by the people for the ordinary purposes of legislation only, have no power to restrain” succeeding legislative bodies, but he endeavored to protect the rights of conscience by the declaration that “the rights hereby asserted are of the natural rights of mankind, and if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.”10 In that instance such a declaration had been an unavoidable necessity, because, in Jefferson’s view, the constitution of Virginia itself was an act of legislation and not a fundamental law. But here the situation was quite the reverse: not only was there in existence a fundamental law that provided means of alteration, but there was also under way at this very time an orderly procedure for obtaining amendments that would secure to individuals the enjoyment of their natural rights. The author of the present letter had insisted on such a bill of rights, and its recipient, though less convinced of the efficacy of such “parchment barriers,” was the leader of the movement. Why, then, did Jefferson at this time propose the adoption by the United States of a theory so irrelevant to the existing situation in America—adoption, too, by a method so uncharacteristic of him? If, as he claimed, such a concept merited decision, and “place also, among the fundamental principles of government,” why did he propose to place it in a mere statute instead of incorporating it in the constitution by the means provided in that instrument?

The answer may lie in a situation that was undeniably relevant, in the time and circumstances of composition, and in the text of Jefferson’s remarkable letter itself. “The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind.” Thus Jefferson himself recognized the obvious fact that his development of the idea arose out of a situation in which accumulated abuses had awakened inquiries of the most urgent nature, among which this question was one. His sudden illness came only a week or so after Lafayette had asked Jefferson to permit his house to be used as a meeting place for a few leaders of the National Assembly in order “to prevent a total dissolution and a civil war.”11 He and Lafayette had been consulting for months on the latter’s draft of a declaration of rights. He had himself proposed a compromise charter in June. And while in various letters in 1788 he had suggested the need of adding a bill of rights to the American constitution, those promptings had exhibited little of the sense of urgency that permeated his recommendations to Lafayette or his involvement in the constitutional reforms of France. In his letter to Gem correcting his calculations, Jefferson spoke of the “hurry in which I wrote my letter to Mr. Madison.” Why this haste, particularly at a time when, as Jefferson said a few days later, he was confined to his room, unable to write? And why the urgent need for overtaking the error in his calculations? There was little need for haste in drafting a letter going to America, and plenty of time to make corrections while waiting for a conveyance that had not yet put in an appearance: Jefferson ultimately proved the absence of need for such haste in that direction by taking the text with him, by mentioning but not showing it to Madison at Monticello, and by postponing delivery of it until it had been redrafted early in 1790. The need for decision on such a theory and for its placement among the fundamental principles of government was of an altogether different degree of urgency in America and in France.

As proved by a common (homoeoteleutic) copyist’s error that Jefferson made while transcribing the text that he gave to Gem, some earlier version of his manuscript was before him at the time.12 That text is missing and is probably no longer extant. But, in view of the singular circumstances that set this letter apart from others written by Jefferson to Madison—circumstances that reveal him in uncharacteristic postures—we are permitted a conjecture about its nature. Was it in fact originally couched in the form of a letter to Madison? Or was it, like the compromise charter that Jefferson recommended to Lafayette and Rabaut de St. Etienne early in June, addressed to the exigent situation at hand—a situation so urgent as to cause its author to compose the original text, to transcribe it perhaps in altered form, and to hand it to his consulting physician while still virtually incapacitated by illness?

The question invites an examination of those parts that are undoubtedly addressed to a particular correspondent and to a specifically American need. From this examination there emerges the striking fact that only in the first and final paragraphs is there any evidence of a conscious attempt to adapt the theory to American political need, existing or potential. Stripped of these two paragraphs, the argument is directly and wholly applicable to the immediate circumstances as they existed at the time in France. Thus altered, the text becomes quite characteristic of Jefferson’s approach to a political situation: it is practical, relevant, utilitarian. As such, it recognizes in its closing passage that the principle is “of very extensive application and consequences, in every country, most especially in France.”13 If the text were in fact addressed to an American statesman with the hope of persuading him to incorporate the theory in American law, the italicized words would seem to be misplaced or badly chosen. But what follows is even more irrelevant for such a purpose and for a correspondent of such perspicuity as Madison. For Jefferson proceeds to point out with brilliant clarity just what applications and consequences the theory would have—not for America, but for France. To be sure, some of the detailed applications and consequences were pertinent for both countries, or for any country, but it seems beyond question that in this passage Jefferson was thinking not of the institutions of the United States but of those of France and of the relevance of the theory to the reforms then under way. This is the climax of the argument, filled with details which a constituent assembly such as that in being at Versailles could apply with immediate and extensive force.

The ensuing remarks to Madison about the applicability of the theory to American experience become, by contrast, anti-climactic and almost trivial. Jefferson is able only to cite an application to patent law as being relevant. In short, the hypothesis here advanced is that, in substance, in purpose, and as originally drafted, Jefferson’s development of the doctrine was not merely inspired by a revolutionary situation then existing, but, far from being an authentic letter to Madison, was in actual fact a thesis stated for a pressing need, being intended to provide an instrument of justification for constitutional reforms then under discussion. If this hypothesis is valid, it is possible that in the missing text the first and final paragraphs were lacking altogether. It is more likely however, that Jefferson consciously added them and converted the text into the form of a letter to Madison primarily as a protective device. Already too much involved in the internal affairs of the sovereign to whom he was accredited, Jefferson, in advancing arguments subversive of that sovereign’s power, may have used this indirect method because a direct one was interdicted. This, too, would have been characteristic. But in any case, he allowed to remain in the text the climactic details of applications and consequences of the theory as these pertained to France. These he addressed to Madison, who had no need for them, but handed in urgent haste to Gem, who may have been only a messenger to Lafayette and others who had sought Jefferson’s moderating influence. This additional indirection would have been not only characteristic but, under the circumstances, prudent.

In later life Jefferson never wavered in his allegiance to the concept that the earth belongs to the living. But neither did he again press its adoption as a part of American legislation, not even when he came face to face with John Marshall and the doctrine of the sanctity of contracts. He may not have actually intended it in 1789.

It is worth noting that the final passage of the declaration of rights proposed by Lafayette, both as submitted to Jefferson for his comment and as presented to the National Assembly, recognized that the fundamental law required revision not only because abuses might enter, but also because “les droits des générations qui se succedent” required it. In this general sense the idea that the earth belongs to the living was prevalent in the pamphlet and other discussions of 1789, the chief difference of opinion being over the question whether revision should be at stated intervals or provided against as need arose. Siéyès’s various drafts of a declaration of rights regularly ended with the statement: “un peuple a toujours le droit de revoir et de réformer la Constitution. Il est meme bon de déterminer des époques fixes où cette revision aura lieu quelle qu’en soit la nécessité.”14 And in one of his drafts he elaborated the idea in these terms: “A cet égard, l’intervalle le moins arbitraire est celui de la vie moyenne de l’homme, c’est-a-dire de trente-trois ans, parce qu’il laisse l’espoir à chaque citoyen de consentire une fois dans sa vie, par lui-meme ou par ses représentants, la constitution qui fait son bonheur.”15 As evidenced by the declaration of rights of Lafayette, he opposed the idea of fixed periods of revision, but Mounier was the strongest opponent. Shortly before he joined the conference at Jefferson’s house, Mounier expressed this view: “Je trouve ainsi les plus grands dangers dans le système de ceux qui voudraient annoncer les époques fixes et des convocations extraordinaires pour corriger la Constitution; c’est comme si l’on voulait, à des temps marqués, rendre les lois sans force, rompres tous les ressorts du gouvernement, et livrer la France à toutes les fureurs de la discorde.”16 In describing this conference held “chez un Américain, connu par ses lumières et ses vertus, qui avoit tout-a-la-fois l’expérience et la théorie des institutions propres à maintenir la liberté,” Mounier brought Jefferson in as a favorable witness: “Il porta, en faveur de mes principes, un jugement favorable.”17 Among the principles with which Jefferson agreed must have been that which, acknowledging the right and indeed the inevitability of revision, opposed a requirement of revision at stated periods. Condorcet, as early as 1787, had advocated the need for providing for constitutional revision, and in 1789 he voiced in these words the concept that one generation has no right to bind another: “Les bornes de la durée des lois constitutionelles ne doivent pas s’étendre au delà d’une génération… . La durée de toute loi constitutionelle a donc pour véritable limite le temps nécessaire pour que la moitié des citoyens existants au moment de l’acceptation de la loi ait été remplacé par de nouveaux citoyens; espace facile à determiner, est qui et de vingt ans environ, si la majorité est fixée a vingt et un ans; de dix-huit, si elle est fixée à vingt-cinq.”18

As applied to the general subject of revision of the fundamental law, therefore, Jefferson was not exact in saying that the question whether one generation can bind another “seems never to have been started on this or our side of the water.” Political relativism extended back to Montesquieu and beyond, and the idea of a fixed and irrevocable constitution was generally if not universally repudiated in the reform agitations of 1788–1789. But Jefferson was nearer the truth in saying that the idea had not been sufficiently attended to “particularly as to the power of contracting debts” and as to the “very extensive application and consequences” on which his gaze was focussed in this ostensible letter to Madison.