Introduction

Jefferson’s letter to John B. Colvin is one of the most important statements by a president about what the English philosopher John Locke called the prerogative power. According to Locke, the prerogative power is the power to act “without the prescription of the law, and sometimes even against it,” for the public good. Jefferson wrote his letter in response to Colvin’s question whether sometimes officers in high trust had to act beyond the law. Colvin had also notified Jefferson that he was writing the memoirs for General James Wilkinson who had violated the law in order to put down the Burr Conspiracy, so it is likely that Jefferson knew his words would find their way to print. The Conspiracy was and remains somewhat hazy with respect to all of the facts, but it turned on some scheme by Aaron Burr to either incite an insurrection among enslaved persons in Louisiana and or start a new republic in present day Texas. Burr was captured and tried for treason. Somewhere along the way, Burr was denied key rights of the accused. Because the Burr Conspiracy was a controversial event in Jefferson’s second term, it is also likely that Jefferson chose his words with great care.

Jefferson’s answer begins with several examples that are meant to lead to an easy answer: when necessary for self-preservation, the unwritten law of survival must be paramount to the written law. But Jefferson complicates his answer with a “hypothetical,” which no longer seems to be about self-preservation. Having thus prepared the way with these examples, Jefferson answers Colvin’s question about Wilkinson and Burr. Importantly, Jefferson never asserts a constitutional basis for the prerogative. Rather, he requires that the officer come clean and accept judgment by Congress or the people after the fact.


Source: Thomas Jefferson to John B. Colvin, 20 September 1810, Founders Online, National Archives, https://goo.gl/RkC7ak.


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 thro’ 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, altho’ the property of a citizen.[1] 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 Yorktown, 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.[2] 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 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.[3] 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 supposed it foreseen that a John Randolph[4] 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.[5] 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.[6] 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[:]

  1. 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.
  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, 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 center, had that conspiracy succeeded, all these constituted  a law of necessity and self-preservation, and rendered the salus populi supreme over the written law.[7]

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 the 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 Gen. 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,

TH. JEFFERSON

Study Questions

A. How are Jefferson’s first three examples of extra-legal actions similar to one another? In what way does his hypothetical about Florida differ from these examples? What are the requirements for the officer who acts beyond the law? For the people who judge the officer’s action?

B. How does Jefferson’s answer to Colvin compare to Alexander Hamilton’s and James Madison’s interpretations of the Vesting Clause in their respective arguments about the treaty power and the removal power (see Madison’s remarks on the removal power and the Pacificus-Helvidius debate)?

Footnotes

  1. The Battle of Germantown occurred in October, 1777, in Pennsylvania.
  2. the laws of private property, or “mine and thine”
  3. When the United States acquired the Louisiana Purchase, it believed that the deal included West Florida, which extended from Baton Rouge into most of the Panhandle. Spain, who held East Florida (the rest of Florida), claimed that it had not ceded West Florida to France and so France could not have sold it to the US.
  4. John Randolph was an influential Representative from Virginia. He led a group of Jeffersonian Republicans, called the “Quids,” who opposed Jefferson on the grounds that the Louisiana Purchase had violated Jefferson’s own principle of a strict construction of the Constitution.
  5. In June, 1807, the USS Chesapeake was attacked by a British ship while patrolling off the coast of Virginia.
  6. General James Wilkinson (1757-1825) was the governor of the Louisiana Territory who eventually captured Burr.
  7. the safety or welfare of the people