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, 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 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