University of Virginia Library

4528. LAW, Transcending.—

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 levelled 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 [Jefferson] 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. To proceed
to the conspiracy of Burr, and particularly
to General Wilkinson's situation in New
Orleans. In judging this case, we are bound
to consider the state of the information, correct
and incorrect, which he then possessed.
He expected Burr and 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,
first, in seizing notorious conspirators? On
this there can be but two opinions; one, of the
guilty and their accomplices; the other, that
of all honest men. Secondly, 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, of their continuing
their machinations, the tardiness and
weakness of the law, apathy of the judges,
active patronage of the whole tribe of lawyers,
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 its centre, had that
conspiracy succeeded; all these constituted a
law of necessity and self-preservation, and
rendered the salus populi supreme over the
written law. The officer who is called to act
on this superior ground, does indeed risk himself
on the justice of the controlling powers of
the Constitution, and his station makes it his
duty to incur that risk. But those controlling
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 and place of his action;
but to put themselves into his situation. We
knew here [Washington] that there never was
danger of a British fleet from below, and
that Burr's band was crushed before it reached
the Mississippi. But General Wilkinson's information
was very different, and he could act
on no other. From these examples and 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 authorize them to take
such cases out of the written law. In these,
the example of over-leaping the law is of
greater evil than a strict adherence to its 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 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. Washington ed. v, 542. Ford ed., ix, 279.
(M. Sep. 1810)