The Correspondence of Thomas Jefferson
By Subject
MORAL PRINCIPLES / AND LAW
The question you propose, whether circumstances do not sometimes
occur, which make it a duty in officers of high trust, to assume
authorities beyond the law, is easy of solution in principle, but
sometimes embarrassing in practice. A strict observance of the written
laws is doubtless one of the high duties of a good citizen, but it is
not the highest. The laws of necessity, of self-preservation, of
saving our country when in danger, are of higher obligation. To lose
our country by a scrupulous adherence to written law, would be to lose
the law itself, with life, liberty, property and all those who are
enjoying them with us; thus absurdly sacrificing the end to the means.
When, in the battle of Germantown, General Washington's army was
annoyed from Chew's house, he did not hesitate to plant his cannon
against it, although the property of a citizen. When he besieged
Yorktown, he leveled the suburbs, feeling that the laws of property
must be postponed to the safety of the nation. While the army was
before York, the Governor of Virginia took horses, carriages,
provisions and even men by force, to enable that army to stay together
till it could master the public enemy; and he was justified. A ship at
sea in distress for provisions, meets another having abundance, yet
refusing a supply; the law of self-preservation authorizes the
distressed to take a supply by force. In all these cases, the
unwritten laws of necessity, of self-preservation, and of the public
safety, control the written laws of
meum and tuum. Further to exemplify the principle, I
will state an hypothetical case. Suppose it had been made known to the
Executive of the Union in the autumn of 1805, that we might have the
Floridas for a reasonable sum, that that sum had not indeed been so
appropriated by law, but that Congress were to meet within three
weeks, and might appropriate it on the first or second day of their
session. Ought he, for so great an advantage to his country, to have
risked himself by transcending the law and making the purchase? The
public advantage offered, in this supposed case, was indeed immense;
but a reverence for law, and the probability that the advantage might
still be legally accomplished by a delay of only three weeks,
were powerful reasons against hazarding the act But suppose it
foreseen that a John Randolph would find means to protract the
proceeding on it by Congress, until the ensuing spring, by which time
new circumstances would change the mind of the other party. Ought the
Executive, in that case, and with that foreknowledge, to have secured
the good to his country, and to have trusted to their justice for the
transgression of the law? I think he ought, and that the act would
have been approved. After the affair of the Chesapeake, we thought war
a very possible result. Our magazines were illy provided with some
necessary articles, nor had any appropriations been made for their
purchase. We ventured, however, to provide them, and to place our
country in safety; and stating the case to Congress, they sanctioned.
the act.
It is incumbent on those only who accept of great charges, to risk
themselves on great occasions, when the safety of the nation, or some
of its very high interests are at stake. An officer is bound to obey
orders; yet he would be a bad one who should do it in cases for which
they were not intended, and which involved the most important
consequences. The line of discrimination between cases may be
difficult; but the good officer is bound to draw it at his own peril,
and throw himself on the justice of his country and the rectitude of
his motives.
to J.B. Colvin, 20 September 1810
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