The Declaration on Violation of Rights adopted by the First Continental Congress had specified the rights of the inhabitants of the British colonies:
"Resolved, 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."[52] The Virginia Bill of Rights had similarly declared that among the inherent natural rights was the means of acquiring and possessing property.
Now, in the preamble to the Declaration of Independence, which follows so closely the Bill of Rights, the word "property" does not appear, while the other rights are reasserted.
Nor was this an unintentional omission, for when Lafayette submitted to Jefferson his "Déclaration des droits de l'homme", Jefferson put in brackets the words "droit à la propriété", thus suggesting their elimination from the list of natural rights.
Yet he was not in any way a communist, and it would be a serious error to see in that systematic omission the influence of Rousseau's "Discours sur l'Origine de l'Inégalité." The fact is that, with his mind accustomed to draw fine legal distinctions, he had come to the conclusion that the right of possessing and acquiring property had to be protected by society in order to be enjoyed securely. It is one of those rights which are at the same time abridged and made more secure by society, since in any society it may be found necessary to levy taxes on the property of any citizen and even to condemn his property in the interests of the community.
Such a philosophy of natural rights had never before been expressed by any political philosopher I have been able to refer to, with one possible exception. While Locke had said that one divests oneself of his liberty in assuming the bonds of civil society—while Rousseau had declared that man sacrifices all his natural rights on the altar of society—a Scottish jurist had maintained that "Mutual defence against a more powerful neighbor being in early times the chief, or sole motive for joining in society, individuals never thought of surrendering any of their natural rights which could be retained consistently with their great aim of mutual defence." Not only had Jefferson read Kames, but he had copied extensively from his "Historical Law" tracts in his "Commonplace Book", where this very passage is to be found. He had also seen in the tract on history of property the fine distinction established by Kames between possession and property, the two terms being coextensive among savages, while in more refined society the relation of property was gradually evolved and disjoined from possession.[53]
Thus if Jefferson borrowed from any one the main principles of his philosophy, it was not from any of the eloquent and famous thinkers of France and England. Locke he had certainly read, he had abstracted Montesquieu, he may have known Rousseau's theory, although this is doubtful, but he had read and summarized the tracts of a Scottish jurist whom he had probably discovered through Doctor Small. His conception of the social compact is not the conception of a philosopher; it is essentially the conception of a jurist and a lawyer. The social compact is not a metaphysical hypothesis, nebulous and lost in the night of ages, it is a very specific and very precise convention to be entered into or to be denounced by men who retain their "rights inherent and unalienable", who remain free and yet agree to submit themselves to certain rules and a certain discipline in order to obtain more security. And thus was evolved and defined by Jefferson a combination of liberty and order, individualism and discipline which lies at the basis of American civilization, an object of wonder to most foreigners, often discussed but never so satisfactorily elucidated as in the document written by Jefferson when, "wanting amusement", he sat down to explain to himself his ideas of natural and civil rights and the distinction between them.