PART15.TXT

        A LAW BEYOND THE CONSTITUTION









        _To John B. Colvin_



        _Monticello, September 20, 1810_









        SIR, -- Your favor of the 14th has been duly received, and 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



through the residue of life.









        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 magazineswere 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, 1st, 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.  2d. 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 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 overleaping 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.









        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.









        Accept the assurances of my esteem and respect.















        RELATIONS WITH ADAMS









        _To Dr. Benjamin Rush_



        _Monticello, January 16, 1811_









        DEAR SIR, -- I had been considering for some days, whether it



was not time by a letter, to bring myself to your recollection, when



I received your welcome favor of the 2d instant.  I had before heard



of the heart-rending calamity you mention, and had sincerely



sympathized with your afflictions.  But I had not made it the subject



of a letter, because I knew that condolences were but renewals of



grief.  Yet I thought, and still think, this is one of the cases



wherein we should "not sorrow, even as others who have no hope." I



have myself known so many cases of recovery from confirmed insanity,



as to reckon it ever among the recoverable diseases.  One of them was



that of a near relative and namesake of mine, who, after many years



of madness of the first degree, became entirely sane, and amused



himself to a good old age in keeping school; was an excellent teacher



and much valued citizen.









        You ask if I have read Hartley?  I have not.  My present course



of life admits less reading than I wish.  From breakfast, or noon at



latest, to dinner, I am mostly on horseback, attending to my farm or



other concerns, which I find healthful to my body, mind and affairs;



and the few hours I can pass in my cabinet, are devoured by



correspondences; not those with my intimate friends, with whom I



delight to interchange sentiments, but with others, who, writing to



me on concerns of their own in which I have had an agency, or from



motives of mere respect and approbation, are entitled to be answered



with respect and a return of good will.  My hope is that this



obstacle to the delights of retirement, will wear away with the



oblivion which follows that, and that I may at length be indulged in



those studious pursuits, from which nothing but revolutionary duties



would ever have called me.









        I shall receive your proposed publication and read it with the



pleasure which everything gives me from your pen.  Although much of a



sceptic in the practice of medicine, I read with pleasure its



ingenious theories.









        I receive with sensibility your observations on the



discontinuance of friendly correspondence between Mr. Adams and



myself, and the concern you take in its ...