The Writings of Thomas Jefferson, Vol. 6 (of 9). Томас Джефферсон

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СКАЧАТЬ 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, and 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 and eight counsellors, there would then be eight governors and 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, and 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 control the governor. But the action of the controlling power being withdrawn, his would be left free to proceed on its own responsibility.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 and confidence, should stand by, an inactive spectator, and let their 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 its 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 and 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 and their constituents with it should be destroyed for want of a will to direct the resources they had provided for its 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 and his words only, are proper and safer for judicial government. They act ever on an individual case only, the evil of which is partial, and 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 and understanding, in reason and in practice. The three great departments having distinct functions to perform, must have distinct rules adapted to them. Each must act under its 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 Lafayette. These, Sir, are my recollections and thoughts on the subject of your inquiry, to which I will only add the assurances of my great esteem and respect.

      TO BENJAMIN GALLOWAY, ESQ

Monticello, February 2, 1812.

      Sir,—I duly received your favor of the 1st inst., together with the volume accompanying it, for which I pray you to accept my thanks, and to be so kind as to convey them to Mrs. Debutts also, to whose obliging care I am indebted for its transmission. But especially my thanks are due to the author himself for the honorable mention he has made of me. With the exception of two or three characters of greater eminence in the revolution, we formed a group of fellow laborers in the common cause, animated by a common zeal, and claiming no distinction of one over another.

      The spirit of freedom, breathed through the whole of Mr. Northmore's composition, is really worthy of the purest times of Greece and Rome. It would have been received in England, in the days of Hampden and Sidney, with more favor than at this time. It marks a high and independent mind in the author, one capable of rising above the partialities of country, to have seen in the adversary cause that of justice and freedom, and to have estimated fairly the motives and actions of those engaged in its support. I hope and firmly believe that the whole world will, sooner later, feel benefit from the issue of our assertion of the rights of man. Although the horrors of the French revolution have damped for awhile the ardor of the patriots in every country, yet it is not extinguished—it will never die. The sense of right has been excited in every breast, and the spark will be rekindled by the very oppressions of that detestable tyranny employed to quench it. The errors of the honest patriots of France, and the crimes of her Dantons and Robespierres, will be forgotten in the more encouraging contemplation of our sober example, and steady march to our object. Hope will strengthen the presumption that what has been done once may be done again. As you have been the channel of my receiving this mark of attention from Mr. Northmore, I must pray you to be that of conveying to him my thanks, and an assurance of the high sense I have of the merit of his work, and of its tendency to cherish the noblest virtues of the human character.

      On the political events of the day I have nothing to communicate. I have retired from them, and given up newspapers for more classical reading. I add, therefore, only the assurances of my great esteem and respect.

      TO MR. EZRA SARGEANT

Monticello, February 3, 1812.

      Sir,—Observing that you edit the Edinburgh Review, reprinted in New York, and presuming that your occupations in that line are not confined to that single work, I take the liberty of addressing the present letter to you. If I am mistaken, the obviousness of the inference will be my apology. Mr. Edward Livingston brought an action against me for having removed his intrusion on the beach of the river Mississippi opposite to New Orleans. At the request of my counsel I made a statement of the facts of the case, and of the law applicable to them, so as to form a full argument of justification. The case has been dismissed from court for want of jurisdiction, and the public remain uninformed whether I had really abused the powers entrusted to me, as he alleged. I wish to convey to them this information by publishing the justification. The questions arising in the case are mostly under the civil law, the laws of Spain and of France, which are of course couched in French, in Spanish, in Latin, and some in Greek; and the books being in few hands in this country, I was obliged to make very long extracts from them. The correctness with which your edition of the Edinburgh Review is printed, and of the passages quoted in those languages, induces me to propose to you the publication of the case I speak of. It will fill about 65 or 70 pages of the type and size of paper of the Edinburgh Review. The MS. is in the handwriting of this letter, entirely fair and correct. It will take between four and five sheets of paper, of sixteen pages each. I should want 250 copies struck off for myself, intended principally for the members of Congress, and the printer would be at liberty to print as many more as he pleased for sale, but without any copyright, which I should not propose to have taken out. It is right that I should add, that the work is not at all for popular reading. It is merely a law argument, and a very dry one; having been intended merely for the eye of my counsel. It may be in some demand perhaps with lawyers, and persons engaged in the public affairs, but very little beyond that. Will you be so good as to inform me if you will undertake to edit this, and what would be the terms on which you can furnish me with 250 copies? I should want it to be done with as little delay as possible, so that Congress might receive it before they separate; and I should add as a condition, that not a copy should be sold until I could receive my number, and have time to lay them on the desks of the members. This would require a month from the time they should leave New York by the stage. In hopes of an early answer I tender you the assurances of my respect.

Monticello, February 14, 1812.

      Thomas Jefferson presents his compliments to Dr. Wheaton, and his thanks for the address СКАЧАТЬ