This lecture was delivered by Yannick Bosc (Normandia Université, UniRouen, GRHis) on the 2 March 2017 at a Crisis, Extremes, and Apocalypse seminar on Rousseau, Freedom, and the French Revolution.
Thomas Paine and Robespierre: the Terror of the Rights of man
Yannick Bosc (Normandie Université, UniRouen, GRHis)
Thomas Paine and Robespierre are not on the same side in the theatre of the heroes and the anti-heroes of modernity that we are used to mobilize. Paine stands for the Moderns as a democrat and a liberal while Robespierre personifies the tyrant and the incarnation of a potentially totalitarian Classical republicanism.
I am refering in particular to the work of Keith Baker who has modelised this interpretation which uses the ideological partition set up by Germaine de Staël and Benjamin Constant. It is a cold war model which was in particular elaborated by Jacob Talmon, Isaiah Berlin and Hannah Arendt, that Baker has reworked from the pocockian pattern that opposes right and virtue, right being on the side of the moderns, of Paine, of the Declaration of Rights; virtue on the side of the ancients, of Robespierre, and of the Terror.
The problem is that this model conflicts with what we find in the archives: they do not tell the same story. For instance, in 1795, Jean-Baptiste Louvet writes : "The same political opinion may be defended by a philosopher and a tribune ; Payne and Robespierre may sometimes be of the same opinion; and this is not the most astonishing phenomenon of revolutions”. And Louvet specifies: “The system of Thomas Payne [...] has only ever produced [...] calamitous agitations. As soon as this system is established, or even when it is proclaimed, the social order is altered [...] and anarchy begins. This doctrine has always been the signal of political fires, of those lamentable crises in which the fierce despotism of the multitude breaks all the springs of society.”
Louvet is a Girondin, according to the historiography he is therefore on the same political camp as Paine. But in 1795, one year after the execution of the “robespierrists”, Louvet argues that Thomas Paine and Robespierre share the same political principles which generate anarchy.
What happened for the political principles of Paine and Robespierre to be thus identified? What, then, is this system of Paine, and what consequences must we draw from it when we interpret the French Revolution and more broadly modernity?
We will see that in spite of their differences Paine and Robespierre share the same conception of the republic founded on the right to existence and the same idea of liberty, grounded on the principles of the Declaration of Rights, and more broadly, principles of natural rights which the thermidorians regard as the origin of the “Terror”. Thomas Paine thus allows us to question the standard narrative that opposes the Rights of man and terror .
Paine, the French Revolution and the Constitution of 1795
Thomas Paine is a French citizen since 1792 - because he defended "the cause of peoples against the despotism of kings" - and he was elected to the National Convention (the French Assembly between 1792 and 1795) for the Pas-de-Calais.
Ever since publishing Rights of Man (1791 for the first part, 1792 for the second), he is regarded as the emblematic defender of the principles of the French Revolution.
In Rights of Man, Paine disputes the theses developed by Edmund Burke in his Reflections on the Revolution of France (1790), which will become the breviary of the counter-revolution.
Burke rejects the possibility of founding political legitimacy on the principles of the Declaration of 1789. To their abstraction he opposes the historical experience upon which the English Constitution is founded.
In 1792, Paine continued his reflection in the second part of Rights of man, where he stigmatized the costly parasitism of the English monarchy. This lead to his condemnation and forced him to take refuge in France. In this book he also laid the foundations of a social policy in favour of the poorest.
Regarded as English, and therefore as a national of a country at war with France, Thomas Paine was arrested in December 1793. Paine had no sympathy for Robespierre, whom he regarded as his "inveterate enemy" , holding him personally responsible for his arrest.
In fact, Paine's biographers emphasize the role of Governor Morris (the US ambassador in Paris) in his arrest, who was very hostile to Paine.
Paine was released from the Luxembourg prison three months after the execution of the robespierrists and regained his seat as deputy at the Convention 5 months later. So, he could be expected to enjoy a strong capital of sympathy within the Thermidorian
Convention: he was a victim of the Terror and a famous and respected man. Henceforth why did Louvet write that his ideas were those of Robespierre at a time when it was not really a compliment ?
Louvet writes this because Paine has intervened in the constitutional debate of summer 1795 which has led to the vote of a Constitution –the Directory’s Constitution– which limits political rights by reintroducing census suffrage. And Thomas Paine is the only one to oppose this limitation of political rights, justified by Boissy d’Anglas who affirms that only proprietors are able to decide on the laws :
“We must be governed by the best; the best are those who are best educated and most interested in the maintenance of the laws: yet, with very few exceptions, you find such men only among those who, owning a piece of property, are devoted to the country that contains it, to the laws that protect it, to the economic security it provides, the education that has made them capable of discussing with sagacity and exactitude the advantages and inconveniences of the laws that determine the fate of their native land. The man without property, on the other hand, requires a constant exercise of virtue to interest himself in a social order that preserves nothing for him, and to resist actions and movements that hold out hope to him. [...] A country governed by proprietors is in the social order; the one where non-proprietors govern is in the state of nature.”
Paine denounces the exclusion from political rights (each one should have a right to political representation) and calls in question the legitimacy of material property as justifying this exclusion.
He concludes that the principles upon which the Revolution was based since 1789 have been abandoned and replaced by property :
“In my opinion, if you subvert the basis of the revolution from principles to property, you will extinguish that enthusiasm which has hitherto supported the revolution; and you will substitute in its place nothing but the cold indifference of self-interest, unable to animate, which will fade again and will degenerate into an insipid inactivity.”
According to Paine, the natural law principles as they have been declared in 1789 are constituent of a republic, that is of a state of civilization in accordance with what it should be. They rely upon an idea of liberty which is thought both as an attribute of the person and as a social relation. Paine defines it as the equality of personal rights . According to Paine, a republic can only exist when the equality of personal rights exists, id est when liberty is guaranteed. There is no equality of personal rights when non-proprietors are excluded from political rights. Paine also believes that the aim of a political society is not to guarantee property of material goods, but property in the broad sense, including that of the rights that one possesses.
Property, right to existence and basic income
Indeed, for Paine the concept of property is not reduced to the property of material goods: as he writes in 1795, “personal rights are a property of the most sacred kind .” The property concept also touches on what is specific to man, that is having rights inherent to human nature, id est natural rights. This same idea of property is used by Locke in his Second treatise of government (1690) which is the reference work for the 18th century debate on natural law principles. “Property of things” is indeed only one of the facets of what Locke calls a property. He thus writes that humans unite in society in order to guarantee the preservation “of their lives, liberties and estates, which I call by the general name, property ”. The major property is life and the right to preserve it is the major right. Here is the natural law foundation of the right to existence. As Locke, Paine thinks that these two kinds of property –the one of rights and the one of material goods– do not have the same value: rights attached to a person are more important than rights one has on material things. Property of personal rights, instead of property of material goods, is, according to Paine, the only criterion from which a political society can be created. Humans thus unite in a society in order to preserve their personal rights, the right for life being the first one.
This is the reason why he elaborates the principle of the basic income following the constitutional debate of 1795, a principle which he explains in Agrarian Justice (this text is published in 1797 but Paine had already written the text during the winter of 1795-1796).
This allowance, supplied with a tax on inheritances, would be given to any person reaching adulthood or old age, whether they were rich or poor, according to the universality principle. This allowance would give everyone the means of a dignified existence and an income which would free them from the dependence of others, and make them fit for the exercise of political rights.
In order to justify the institution of a universal allowance, Paine relies on the principles of natural law, of which he has become the champion with his book Rights of man, and on a criticism of appropriation that he formulated against Boissy d'Anglas in 1795.
According to the postulate of natural law philosophy that Paine here rewords, human beings should never have a worse life in the state of society than when there is no society: “the first principle of civilization ought to have been, and ought still to be, that the condition of every person born into the world, after a state of civilization commences, ought not to be worse than if he had been born before that period. » Paine continues: “But the fact is that the condition of millions, in every country in Europe, is far worse than if they had been born before civilization began”. How, Paine asks himself, can we explain that civilized societies are not civilized, id est that there are not in accordance with what they should be, according to natural law principles coming from what he calls common sense? He explains it through the appropriation process.
Paine starts from the postulate that the earth was originally “the common property of the human race” . But he observes that at the end of the 18th century this common good is possessed by only a part of the population. A minority thus “has dispossessed more than half the inhabitants of every nation of their natural inheritance, without providing for them, as ought to have been done, a compensation for that loss.” This “landed monopoly” “has thereby created a species of poverty and wretchedness that did not exist before .”
This confiscation comes from a violent process, based upon conquest, which Paine considers as a theft. The current proprietors have to reimburse mankind who first owned in common this earth. The universal allowance is rightfully based upon this, and Paine describes it as a “ground rent” owed to people unjustly despoiled of their common property . This universal allowance is supposed to guarantee to each member of society a dignified existence; otherwise it is not a state of society, but a state of war as Locke means it, a state in which the right to life is not guaranteed and there is no safety for me and my circle.
Paine condemns the appropriation process but not property in itself, as he considers each man has a right to possess some land. However, this right of land property is not unlimited: man “had no right to locate as his property in perpetuity any part of it; neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue .” The property that Paine considers as legitimate is thought as a social relationship –like liberty– and is thus relative; I cannot accumulate when others do have nothing. The prevailing property is not “ostentatious property” but property which helps to live.
Paine and Robespierre
With the universal allowance, Paine suggests an original solution to the problematic of the right to existence, but he is far from being the only one to set the right to existence and its relation with appropriation at the core of his theories. Indeed he comes within a culture based upon the natural law principles and widely shared during the 18th century.
Before and during the French Revolution, there are some uses of the natural laws principles, which do not correspond to current usual representations. These uses, whose theoretical foundations can be found in Locke, do not aim at justifying, in the name of individual liberty, an unlimited liberty for the proprietor, but on the contrary at charting a political economy, critical towards a social order based on individual interest and the domination of proprietors; it is thus critical of what will be later called economic liberalism. It is the case in particular with Mably, Mably who, 30 years before Thomas Paine, makes the same observations about property, asks the very same questions and bases himself on the natural right to existence, which he considers as good sense principles, and gives the same answer: a society can exist only if the right to existence of its members is guaranteed, and that implies a control of properties.
This criticism is not only theoretical but also practical and is not the prerogative of a few intellectuals like Mably. It is used by the popular movement which opposes, in the name of the right to existence, the policy of liberalisation of the grains and cereals trade inspired by physiocratic principles and launched in the 1760’s in the name of the liberty of the proprietor .
During the French Revolution, the claim for the right to existence is always asserted by the popular movement. The Montagnards try to put this conception of a fair government –i.e. a republic– into laws . In particular with the maximum policy, which aims at setting limits to prices of staple products, or the Ventôse decrees, which aim at redistributing to the poorest the lands of the Revolution’s enemies. Saint-Just, who is the reporter of the law, said: “The wretched are the masters of the earth. They have the power to speak as masters to the governments who neglect them.” It is clear that the foundation of this policy has to do with natural law principles. On the 2th of December 1792 Robespierre denounces the Girondins’ policy of liberty of grain trade and reminds of the right to existence principles, upon which society is based:
“What is the first object of society? It is to preserve the inalienable rights of man. What is the first of these rights? The right to exist. The first social law has thus to guarantee to all members of society their means for existence; all the other laws are subordinate to this one; property has been established or guaranteed only to consolidate it; it is first and foremost in order to live that we have properties. It is not true that property could ever oppose men subsistence. The food necessary for men is as sacred as life itself. All that is indispensable for preserving life is common property for the whole society. Only surplus can be an individual property and be abandoned to trade industry. Any mercenary speculation I could indulge in at the expense of the life of my fellow man is not a traffic, but it is a robbery and a fratricide .”
The same principle according to which the ensuring of the right to existence is constitutive of the social state stands at the heart of Robespierre’s project of Declaration, dated on the 24th of April 1793; the second article specifies that “man’s major rights are to provide the preservation of his existence and his liberty.” Paine and Robespierre have in common the same concept of property, that is not limited to material property but encompasses personal rights. In his speech against the “silver mark decree” in April 1791, Robespierre considers that the rights attached to each individual are the first of proprieties: “my liberty, my life, the right to obtain safety or revenge for myself and my beloved ones, the right to repel oppression, the right to use freely all faculties of my mind and my heart; all these so sweet proprieties, the first that nature has given to man […] .” Moreover, neither Paine nor Robespierre are opposed to property, but they consider that personal appropriation should be limited by the right to existence; consequently, that proprietor’s liberty, as each kind of liberty, is limited by the liberty of the other one. In the fourth article of the Declaration of 1789 the definition of liberty is applied to property: “Liberty consists of doing anything which does not harm others: thus, the exercise of the natural rights of each man has only those borders which assure other members of society the enjoyment of these same rights.” A proprietor cannot stockpile or speculate at the expense of his fellow men’s lives, id est at the expense of their liberty.
In spite of their differences, Paine, Robespierre and the rural and urban sans-culottes share the same conception of social state –it should guarantee the existence of the poorest– and the same argumentation, based upon the natural law principles, which belong to what Paine calls “common sense”. Paine and Robespierre have the same conception of liberty, which is liberty as non-domination, as Philip Pettit or Quentin Skinner define it (to be free I must not be dominated and I must dominate no one), or liberty as reciprocity (I am free because the others are also free).
Paine and Robespierre also share the same conception of democracy. Democracy implies the right to political existence, the right to self-representation, writes Paine, and citizenship founded on natural law which implies universal suffrage. This is the reason why the Thermidorians characterize the policy of Robespierre and the Terror which he incarnates as “organization of anarchy” in which the people are “constantly deliberating”. We have forgotten that for the Thermidorians terror is not merely repression and expeditious justice.
Rights of man and Terror
In 1795, like at the time when he wrote Rights of man three years before, Paine sets himself as a defender of natural law principles. He sets once again the same ideas out. These ideas won him his French citizenship and his election at the National Convention in 1792; and these very same ideas won him in 1795 to be considered as an anarchist and a dangerous demagogue, suspected of trying to spread once again the Reign of Terror “system”. Between these two dates, three years have passed and the context has fundamentally changed.
During the Thermidorian Reaction, the National Convention itself puts into question the values Paine embodies and to which the French Revolution identifies itself since 1789. In 1795 natural law principles –human rights– are indeed not considered anymore as the foundation of liberty but as an arsenal for anarchists and levellers, as Boissy d’Anglas says ; this arsenal would have lead to “Terror” and Robespierre’s tyranny, whose “system” Paine is said to share (and this has been forgotten by standard historiography).
In 1795, Jeremy Bentham, who then resided in France, wrote that “the terrorist language” was contained in the article 2 of the Declaration of right of 1789 that states :“The aim of every political association is the preservation of the natural and imprescriptible rights of Man. These rights are Liberty, Property, Safety and Resistance to Oppression.” For Bentham, the Declaration is a collection of anarchic sophisms.
This is why Jean-Baptiste Say (another "modern", who is in France the father of economic liberalism and who shares the same Girondist networks as Bentham) writes in the wake of Paine's intervention that it is no longer necessary to place a Declaration at the head of a constitution:
“It may be said that an usurper would find here an obstacle ; but experience has taught us that he could also make it an instrument. Robespierre said, addressing the audience of the Jacobin Club: People, you are betrayed, reclaim the exercise of your sovereignty”.
Also in 1795, Germaine de Staël (a modern as you know, who is at the origin of the concept used by Constant) is not sympathetic to the ideas of Paine. She considers that his intervention against the Constitution of 1795 has reduced “demagogy to dogmas by basing it on what he calls the principles”. This rejection of the "principles" highlighted by Paine (those of the Declaration of 1789) is coherent with the conception of societies defended by Madame de Stael. Indeed, she thinks that "property is the origin, basis and ties of the social pact [...] property or society are one and the same thing."
From this we can deduce that these "liberals", those "moderns" as the standard narrative has homologated them, are not in favour of the principles of natural law declared in 1789, contrary to what the same narrative asserts. It is easy to understand this why when we remember that these principles make possible the inscription in law of the primacy of the right to existence over exclusive property, thus limiting the grip of the latter. The republicanism of Thomas Paine and those who share it (such as Robespierre), invites us to question the construction of the myth of capitalist modernity which has unduly annexed the natural rights of man.
1. Keith. M. Baker, “Transformations of classical Republicanism in Eighteenth-Century France”, The Journal of Modern History , 2001, vol 73, n°1, p. 32-53
2. La Sentinelle, n°26, 1er thermidor an III, p.103.
3. Yannick Bosc, La terreur des droits de l’homme. Le républicanisme de Thomas Paine et le moment thermidorien, Paris, Kimé, 2016.
4. Lettre du 19 thermidor an II adressée à la Convention, The complete writing of Thomas Paine, op.cit., p. 1339-1340
5. Le Moniteur, réimpr, vol. 25, p.92
6. Thomas Paine, “Agrarian justice opposed to agrarian law, and to agrarian monopoly, being a plan for meliorating the condition of man”, 1797, in Thomas Paine, Collected writings, presented by Eric Foner, New York, The Library of America, 1995.
7. Thomas Paine, Dissertation sur les premiers principes de gouvernement, Paris, impr. de la rue de Vaugirard, an III, (1795), p. 18.
8. John Locke, The second treatise of government, 1690, IX-123.
9. Thomas Paine, Agrarian justice, op.cit., p. 398.
10. Ibid., p. 400
11. Ibid., p. 398.
12. Ibid., p. 399.
13. Florence Gauthier, “Political Economy in the Eighteenth Century: Popular or Despotic? The Physiocrats Against the Right to Existence”, Economic Thought , Vol 4, No 1, 2015, p. 47-66.
14. Jean-Pierre Gross, Fair Shares for All. Jacobin Egalitarianism in practice, Cambridge, CUP, 1997.
15. Œuvres de Maximilien Robespierre, Paris, SER, 1958, vol. 9, p.112.
16. Ibid., vol. 7, p. 164-165
17. Florence Gauthier, Triomphe et mort du droit naturel en Révolution (1789-1795-1802), Paris, PUF, 1992, rééd. Syllepses, 2014.
18. Décade philosophique, 20 messidor an III, n°44, T.6, p.81.
19. Madame de Staël, Réflexions sur la paix intérieure (1795), Œuvres complètes, t.2, Strasbourg, Truttel et Wurtz, 1820, p.149-150.
20. Madame de Staël, Des circonstances actuelles qui peuvent terminer la Révolution et des principes qui doivent fonder la République en France, (éd. Viénot), Paris, Librairie Fischbacher, 1906, p. 47.