To John B. Colvin
Monticello Sep. 20. 10.
Your favor of the 14th has been duly recieved, & I have to thank you for the many obliging things respecting myself which are said in it. if I have left in the breasts of my fellow citizens a sentiment of satisfaction with my conduct in the transaction of their business it will soften the pillow of my repose thro’ the residue of life.
The question you propose,1 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, but2 sometimes embarrasing 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 & all those who are enjoying them with us; thus absurdly sacrificing the end to the means. when, in the battle of Germantown, Genl Washington’s army was annoyed from Chew’s house, he did not hesitate to plant his cannon against it, altho’ the property of a citizen. when he besieged Yorktown, he levelled the suburbs, feeling that the laws of property must be postponed to the safety of the nation. while that army was before York, the Govr of Virginia took horses, carriages, provisions & even men, by force, to enable that army to stay together till it could master the public enemy; & he was justified.3 a ship at sea in distress for provisions meets another having abundance, yet refusing a supply; the law of self preservation authorises the distressed to take a supply by force.4 in all these cases the unwritten laws of necessity, of self-preservation, & of the public safety controul the written laws of meum & tuum.5 farther 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 l805. 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 3. 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 foreknolege, 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 Chesapeak 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.6 we ventured however to provide them and to place our country in safety, and stating the case to Congress they sanctioned the act.
To proceed to the conspiracy of Burr, & particularly to Genl Wilkinson’s situation in N. Orleans. in judging this case we are bound to consider the state of the information, correct & incorrect, which he then possessed. he expected Burr & his band from above, a British fleet from below, and he knew there was a formidable conspiracy within the city. under these circumstances, was he justifiable 1. in seising notorious conspirators? on this there can be but two opinions; one, of the guilty & their accomplices the other, that of all honest men. 2. in sending them to the seat of government when the written law gave them a right to trial in the territory? the danger of their rescue,7 of their continuing their machinations, the tardiness and weakness of the law, apathy of the judges,8 active patronage of the whole tribe of lawyers,9 unknown disposition of the juries, an hourly expectation of the enemy, salvation of the city, and of the Union itself, which would have been convulsed to it’s center, had that conspiracy succeeded, all these constituted a law of necessity & self preservation, and rendered the salus populi supreme over the written law.10 the officer who is called to act on this superior ground, does indeed risk himself on the justice of the controuling powers of the constitution, and his station makes it his duty to incur that risk. but those controuling powers, and his fellow citizens generally, are bound to judge according to the circumstances under which he acted. they are not to transfer the information of this place or moment to the time & place of his action: but to put themselves into his situation. we knew here that there never was danger of a British fleet from below, & that Burr’s band was crushed before it reached the Missisipi. but Genl Wilkinson’s information was very different, and he could act on no other.
From these examples & principles you may see what I think on the question proposed. they do not go to the case of persons charged with petty duties, where consequences are trifling, and time allowed for a legal course, nor to authorise them to take such cases out of the written law.11 in these the example of overleaping the law is of greater evil than a strict adherence to it’s imperfect provisions. 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 it’s very high interests are at stake. an officer is bound to obey orders: yet he would be a12 bad one who should do it in cases13 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,14 & throw himself on the justice of his country and the rectitude of his motives.
I have indulged freer views on this question on your assurances that they are for your own eye only, and that they will not get into the hands of newswriters. I met their scurrilities without concern while in pursuit of the great interests with which I was charged. but in my present retirement no duty forbids my wish for quiet.
PoC (DLC); at foot of first page: “Mr J. B. Colvin.” Tr (ViU: TJP-CC); posthumous copy, in two hands. Extracted without attribution in James Wilkinson, Memoirs of General Wilkinson, vol. 2 (Washington, D.C., 1810; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 3511; only vol. issued at this time), 56–9; with additions and variations in wording, emphasis, and punctuation, the most important of which are noted below.
Thomas Nelson was govr of virginia during the 1781 siege at Yorktown (ANB description begins John A. Garraty and Mark C. Carnes, eds., American National Biography, 1999, 24 vols. description ends ). TJ’s hypothetical case of a proposed purchase of the floridas closely parallels events early in his second presidential term, when opposition by john randolph of Roanoke delayed by months a secret appropriation of two million dollars for this purpose (Malone, Jefferson description begins Dumas Malone, Jefferson and his Time, 1948–81, 6 vols. description ends , 5:71–7, 91–4).
1. Letter to this point omitted in Memoirs of General Wilkinson.
2. Wilkinson, Memoirs, here adds “must be.”
3. Wilkinson, Memoirs, here adds “So in retreats, we destroy roads, and boats, and bridges, and houses, force the inhabitants from their homes, and despoil the country of its stock.”
4. Wilkinson, Memoirs, here adds “In conflagrations, buildings are demolished to arrest the progress of the flames.”
5. With one exception, described in next note, remainder of paragraph omitted in Wilkinson, Memoirs, which also adds another two paragraphs before returning to the extract from TJ.
6. Preceding two sentences given in Wilkinson, Memoirs, as “After the affair of the Chesapeake, the nation considered war a very probable result. The unexpected outrage found our magazines unprovided in many essentials, for immediate defense, and no appropriation existed for their purchase.”
7. Wilkinson, Memoirs, replaces this word with “correspondence with Burr; the certainty.”
8. Wilkinson, Memoirs, here adds “who insisted that the traitors could not be imprisoned while they could find security.”
9. Wilkinson, Memoirs, here adds “with two or three exceptions.”
10. Wilkinson, Memoirs, here adds “Wilkinson was reduced to the necessity of putting down the conspirators, or of being himself put down.”
11. Paragraph to this point paraphrased in Wilkinson, Memoirs.
12. Wilkinson, Memoirs, here adds “very.”
13. For remainder of sentence Wilkinson, Memoirs, substitutes “when, from a change of circumstances, the execution would produce mischievous consequences.”
14. Extract in Wilkinson, Memoirs, ends with this conclusion to paragraph: “and must depend for satisfaction on the soundness of his judgment, the rectitude of his motives, and the justice of his country.”
- Burr, Aaron (1756–1836); treason trial of search
- Chesapeake, USS (frigate); incident (1807) search
- Colvin, John B.; and J. Wilkinson’s memoir search
- Colvin, John B.; letters to search
- Florida; acquisition of by U.S. search
- Jefferson, Thomas; Opinions on; extralegal action search
- Memoirs of General Wilkinson (Wilkinson) search
- Nelson, Thomas; as governor of Va. search
- Randolph, John (of Roanoke); opposes purchase of Fla. search
- Washington, George; TJ on search
- Wilkinson, James; Memoirs of General Wilkinson search
- Yorktown, Va.; siege of search