Thomas Jefferson Papers

Thomas Jefferson to James Barbour, 22 January 1812

To James Barbour

Monticello Jan. 22. 12

Dear Sir

Your favor of the 14th has been duly recieved, and I sincerely congratulate you, or rather my country, on the just testimony of confidence which it has lately manifested to you. in your hands I know that it’s affairs will be ably & honestly administered.

In answer to your enquiry whether in the early times of our government, where the council was divided, the practice was for the governor to give the deciding vote? I must observe that, correctly speaking, the Governor not being a counsellor, his vote could make no part of an advice of council. that would be to place an advice on their journals which they did not give, & could not give because of their equal division. but he did what was equivalent in effect. while I was in the administration, no doubt was ever suggested that where the council, divided in opinion, could give no advice, the Governor was free and bound to act on his own opinion, and his own responsibility. had this been a change of the practice of my predecessor mr Henry, the first governor, it would have produced some discussion, which it never did. hence I conclude it was the opinion & practice from the first institution of the government. during Arnold’s & Cornwallis’s invasion, the council dispersed to their several homes, to take care of their families. before their separation, I obtained from them a Capitulary of standing advices for my government in such cases as ordinarily occur: such as the appointment of militia officers, justices, inspectors Etc. on the recommendations of the courts; but in the numerous & extraordinary occurrences of an invasion, which could not be foreseen I had to act on my own judgment, and my own responsibility. the vote of general approbation at the session of the succeeding winter, manifested the opinion of the legislature that my proceedings had been correct. Genl Nelson, my successor, staid mostly, I think, with the army; and I do not believe his council followed the camp; altho’ my memory does not enable me to affirm the fact. some petitions against him for impressment of property without authority of law, brought his proceedings before the next legislature. the questions necessarily involved were Whether necessity, without express law could justify the impressment, and, if it could, Whether he could order it without the advice of council. the approbation of the legislature amounted to a decision of both questions. I remember this case the more especially, because I was then a member of the legislature, & was one of those who supported the governor’s proceedings; and I think there was no division of the house on the Question. I believe the doubt was first suggested, in Governor Harrison’s time, by some member of the council, on an equal division. Harrison, in his dry way, observed that instead of one governor & eight counsellors, there would then be eight governors & one counsellor, and continued, as I understood, the practice of his predecessors. indeed it is difficult to suppose it could be the intention of those who framed the constitution that, when the council should be divided, the government should stand still: and the more difficult as to a constitution formed during a war, & for the purpose of carrying on that war: that so high an officer as their governor, should be created and salaried, merely to act as the clerk and authenticator of the votes of the council. no doubt it was intended that the advice of the council should controul the governor. but the action of the controuling power being withdrawn, his would be left free to proceed on it’s own responsibility. where from division, absence, sickness or other obstacle, no advice could be given, they could not mean that their governor, the person of their peculiar choice & confidence, should stand by, an inactive spectator, and let the government tumble to pieces for want of a will to direct it. in Executive cases, where promptitude and decision are all-important, an adherence to the letter of a law against it’s probable intentions, (for every law must intend that itself shall be executed) would be fraught with incalculable danger. judges may await further legislative explanations. but a delay of Executive action might produce irretrievable ruin. the state is invaded, militia to be called out, an army marched, arms & provisions to be issued from the public magazines, the legislature to be convened, and the council is divided. can it be believed to have been the intention of the framers of the constitution, that the constitution itself & their constituents with it should be destroyed, for want of a will to direct the resources they had provided for it’s preservation? before such possible consequences all verbal scruples must vanish, construction must be made secundum arbitrium boni viri, and the constitution be rendered a practicable thing. that exposition of it must be vicious which would leave the nation, under the most dangerous emergencies, without a directing will. the cautious maxims of the bench, to seek the will of the legislator in his words only, are proper & safest for judicial government. they act ever on an individual case only, the evil of which is partial, & gives time for correction. but an instant of delay in Executive proceedings may be fatal to the whole nation. they must not therefore be laced up in the rules of the judiciary department. they must seek the intention of the legislator in all the circumstances which may indicate it, in the history of the day, in the public discussions, in the general opinion & understanding, in reason, & in practice. the three great departments having distinct functions to perform, must have distinct rules adapted to them. each must act under it’s own rules, those of no one having any obligation on either of the others. when the opinion first begun that a governor could not act when his council could not, or would not advise, I am uninformed. probably not till after the war; for had it prevailed then, no militia could have been opposed to Cornwallis, nor necessaries furnished to the opposing army of La Fayette.—these, Sir, are my recollections & thoughts on the subject of your enquiry to which I will only add the assurances of my great esteem & respect.

Th: Jefferson

RC (NN: Barbour Papers); at foot of first page: “H. E. Governor Barbour”; lacks address cover. RC (DLC: John Tyler Papers); address cover only; addressed: “His Excellency Governor Barbour Richmond”; franked; postmarked Milton, 27 Jan. 1812. PoC (DLC).

Long before arnold’s & cornwallis’s invasion, on 13 Nov. 1779 the Virginia Council of State approved a capitulary of standing advices authorizing TJ to conduct routine business in its absence. The General Assembly passed a resolution of general approbation of his conduct as governor on 12 Dec. 1781 (PTJ description begins Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, eds., The Papers of Thomas Jefferson, 1950– , 31 vols. description ends , 3:183–4, 6:135–7). On 5 Jan. 1782 the legislature indemnified former governor Thomas Nelson for his impressment of property without authority of law (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia description ends , 1781–82 sess., 74; Acts of Assembly description begins Acts of the General Assembly of Virginia (cited by session; title varies over time) description ends , 1781–82 sess., 18). secundum arbitrium boni viri: “according to the judgment of a good man.” Use of this phrase to describe discretion in the exercise of executive power evoked the long-standing legal tension between technical and discretionary administration of justice (Roscoe Pound, “Justice According to Law,” Columbia Law Review 13 [1913]: 696–713).

Index Entries

  • Arnold, Benedict; Va. invasion of search
  • Barbour, James; letters to search
  • Barbour, James; TJ advises search
  • Cornwallis, Charles, 2d Earl Cornwallis; Va. invasion of search
  • Harrison, Benjamin; as governor of Va. search
  • Henry, Patrick; governor of Va. search
  • Jefferson, Thomas; Opinions on; powers of Va. governor search
  • Jefferson, Thomas; Public Service; as governor of Va. search
  • Lafayette, Marie Joseph Paul Yves Roch Gilbert du Motier, marquis de; and American Revolution search
  • Nelson, Thomas; as governor of Va. search
  • Virginia; constitution of (1776) search
  • Virginia; Council of State search
  • Virginia; governor search
  • Virginia; TJ as governor of search
  • Virginia; TJ on powers of governor search