James Madison Papers

To James Madison from Levi Lincoln, 9 May 1804

From Levi Lincoln

Washington May 9th. 1804.


I had the honor of receiving yours,1 inclosing Mr Merry’s as his Britanic majesty’s minister to the United States. Its contents lead to a consideration of the immunities of public ministers, in relation to exemptions and protections, of their dwellings their domestics, servants, and labourers, in some new views of those subjects, and beyond any cases, which from my means of information, I can find, to have occurred either in Europe or America. In such a case, the decision must depend, principally, on reasoning from general principles & the analogy there is between it, and cases which have been considered as settled. The circumstance of the person, retained by Mr Merry, being a slave, and with his mistress, a native of the Country where the minister resides, forms points in the cause, which difference it, materially, both in principle, and in fact, from any which appear to have been sanctioned by the consent of nations. It is to be regretted, that the officer or Agent complained of, had not previously, to the recapture of the runaway slave, advised Mr Merry of his condition, & consulted, on the means of reclaiming him. Had this requisition of decency & propriety, have been complied with, and which seems to have been injoined by a respect for our own Govt. as well as for his & for his official situation in the country, there can be no doubt, but he would have immediately dismissed, from his employ, the runaway servant of one of our citizens, & thereby have prevented an unpleasant discussion of unsettled principles of the laws of nations and an apparent violation of priviledge, which a religious respect for the usages of nations, and “the duty due to his situation,” obliged him to notice. Neither Great Britain, or any other nation, can be more interested in “a religious observance of the laws of nations” than the United States; nor can the Administration of the American Govt. be less anxious for a principled, and correct decision, in the existing case, than Mr Merry; Both will be happy in the result of an examination, which shall evince, that no violation of official priviledge or national law hath taken place.

The question is not, whether the taking of the negro, from the employ of a foreign minister, without previous notice to him or the Government in which he resided, was sufficiently respectful towards them; But what are the legal & national rights and obligations, in reference to all the parties concerned respectively. The immunities of, foreign ministers, their retinues, domestic servants, dwellings, goods &c, as stated by the approved writers on the laws of nations, are recognized, by the United States, in their fullest extent. Present inquiries, as to the matter of the things alledged to be priviledged and exempted from the ordinary procedures in our country, as connected with a foreign minister, are, was Scott Mr Merrys domestic Servant, or was he his chattle, in the sense, in which the law intitled them to that exemption? or was his garden, parcel of his dwelling, to that purpose? The general positions, in favor of such exemptions, have their exceptions. Some, are mentioned in the books; others, equally, within their reasons, with no militating decision, should be equally respected. The reclaiming of a slave, by his master, in a summary manner, is beleived to be such an one, as against the mere question of a priviledged service with a minister of a foreign nation—As against his rights of domicil, it may be more questionable. If a graden [sic], is not the priviledged parcel of, or appurtenant to, a dwelling house, those rights could not have been violated, in the existing case. This then is the 1st. Question. Was Scott Mr Merry’s domestic Servant, in the sense of national law, and in his service, at the time of his capture?

The mere act of doing labor, in a minister’s house or garden, does not, of course, make the labourer such a servant. The labourer may be the domestic Servant of the Sovereign of the country where the minister resides, or of some minister from another foreign Sovereign, in which case, in the event of such a laborer’s getting into the actual employment of a minister other than the one to whom he belonged, he would be considered as the servant of his first & rightful master. He could not be the servant of both, have two such masters—Nor is the lodging in a minister’s house, or even his certificate, uncontrollable evidence of the right of priviledge. And without thus lodging & being certificated, a person may be a priviledged domestic. Altho a distinction exists in some respects, between servants who are natives of the Country where the minister resides, and foreign servants brought with him, It does not apply to the present question; Nor is it of importance to examine into the reasons of the difference which some authors make between menial Servants, and such as they call domestic ones, if indeed they are not the same. While the right of exemption, or protection, may be admitted to extend to every description of a minister’s servants, this right must not be confounded, with the abuse of it. A person to be priviledged must be in reality, and bona fide, the servant of the minister, otherwise no exemption can be claimed, by him, or for him. The law protects only such. With whatever good faith, or fair intentions, a minister may receive a person into his service, if it is not also so & legal, on the part of the person received, he cannot be protected.

If Scott was the servant of Mr Merry, he must have become so by some act or contract between them sanctioned by some usage, or principle of law. It is assumed, that Scott, at the time of is [sic] engaging in this service, was the runaway slave of a Mrs. Stone, and her property, & that he was retaken by her authority. As such with what right could a foreign minister, with, or without notice, employ him, priviledge him, or retain him. Could their [sic] be a service by contract? a bona fide one? The Slave was the property of his mistress, had no will of his own, was incapable of disposing of his time for a moment, of creating a right, or binding himself, by any contract which he could make. If so, the whole matter of engagement must be considered as void. And the negro, was so far from being “the hired Servant for a month,” that he was, from his condition in society, incapable of becoming one at will. The Service of a slave is secured by the Govt. to his owner. He may be considered as in custody of the law, in the custody of his owner. His master, by law, has the same right to restrain, re[c]laim, & maintain the possession of him, that an officer has, in reference to his prisoner; Considered as property, as the goods & chattles of the owner, the reasoning is still stronger. The right of recapture, as against a more actual possession, is universal, and always justifiable, if not attended with a breach of the peace. The law of nations respects the rights of the native inhabitants of a Country, where a foreign minister may reside, as well as his rights & immunities. Hence it is, that the Act of Congress, passed April 30th. 1790:2 which expressly recognizes the rights of public ministers, provides as does the british Statute, in conformity to national law, that the benefit of the same shall not be extended to the debts of persons who shall have entered in the service of a public minister, and as shall have been contracted prior to such entry. If a person capable of binding himself to service by contract, is liable by law, to be taken from the service of a foreign minister, by his crediter to whom, previous to engaging in the service, he was indebted, a slave surely, incapable of contracting, may be taken by a master, to whom by previous obligation the services of his life shall have been due, and whose property the slave shall have been. So a person in a service of this Government, which is incompatible with the service of a foreign minister that he may engage in, will not be protected. On these principles, it is beleived, a soldier, a sailor, an apprentice, a child & a wife ingaging in the service of a public minister, would not be priviledged; & forming exceptions to the general rule, could legally be retaken, by their superiors, master, parent, & husband, respectively under circumstances not endangering the peace.

A second Question is, Admitting Scott was not Mr Merrys servant, so as to be protected against arrests, or recapture, were the rights of the dwelling house violated in taking him from the garden? The house of a public minister is exempted from entry by any civil, or criminal process, excepting in some very extraordinary cases. How wide this priviledge of domicile spreads, has perhaps never been determined with any precision. A dwelling house, to the purposes of protecting it and its occupiers against the invasion of burglarians [sic], and the owner & his inclosed goods, against the arrests of civil processes, is correctly known in law. Its limits, as legally defined in these cases, may be considered by some too narrow to comport with the rank and the respect due to the representatives of sovereigns. They may be so; but to all necessary purposes they are sufficiently large. All their out buildings and inclosures are protected by the laws of the Country, in common with those belonging to its most distinguished inhabitants. Indeed, they are better protected; the security, of priviledge which attaches to a minister’s personal chattles where ever they may be; and of redress, in our highest courts and most summary forms of justice, render the asylum beyond the mere dwelling house of no importance, or important only as a sanctuary for strangers. Would a debtor, a culprit, a runaway, a beast or a bird, be priviledged & protected in the out buildings of a minister appurtenent to his dwelling house, as they would be, in the house itself? Can a garden be considered, as parcel of this house, & the man who labours there, as having the protection of the house? Certainly, such privileges would be inconvenient to the public minister, and might be abused to the great injury of the people among whom he should reside. It would create the necessity of personal applications, when ever it should become necessary for the purposes of civil or criminal justice to enter his possessions, and in case of his occasional absence, for the want of his consent, a fugative must escape, or the priviledge be violated. Upon the whole, I can find no sufficient reason, either in precedents, principles, or in the official situation of a public minister, for extending the immunities of his domicil to his garden; As well might it be extended to his farm, and shield day labourers, from the common duties & common justice of their country. This applys to Scott, considered merely as a slave taken from the garden by his owner, and not as the servant of the minister. The extent of priviledge contended for appears to me, noways necessary for the discharge of the official functions of a public minister. It makes, to an unreasonable degree, him independent; nor is it within the necessity or the policy of rendering him so. His independence has limits; he cannot do what he pleases; must conform to the laws of the country of his residence; and if forgetful of duty, he should violate its laws, & its customs, to the injury of others, his priviledge consists more in the withholding the ordinary remedies from the injured, than in those possitive cooperations of Govt. against him, which may seem to sanction the wrong after the sufferer has corrected it by doing himself justice.

If the principles which have been stated are correct they exclude the idea of a resort to any court in the case which has been submitted. Mr Merry’s statement of the seizure’s having been made by an officer of justice, It is beleived is not correct. In this, he must have been misinformed; As I understand it, the Slave was taken by the Agent of his owner, without any process or direction from a majistrate, as has been usual. And of course the case is not provided for, even on the supposition that Scott was the domestic Servant of the minister, by the Act of Congress. Notwithstanding if this was the mans real character, and if the retaking him, in the garden, was seizing him in the minister’s priviledge dwelling, in the sense of law, there has been an offence against the rights of nations; and the offenders may be prosecuted, by the minister, either in the district, or the supreme Court of the United States, or by an indictment, in the district court. But I repeat it; no court can readily avail itself of a precedent, or a principle, which will punish the owner of a slave, of property, for taking it, in a peaceable manner, from the garden of a foreign minister. I have formed no opinion, as to what might be thought expedient, under existing circumstances, if you should have doubts of the propriety of the above stated positions, or Mr Merry be dissatisfied with their application. My views have been confined to the effects of what has been considered, as strict law. Had the man have been seized & taken away by an officer of the general Govt. who was removable at its pleasure, it might be fit to dismiss him, for his neglect of the rules of decency & propriety, in proceeding without first applying to his Govt, or the minister for direction or consent. But a privite person cannot be thus subjected to these rules, or thus punished for a violation of them.

Many and variant opinions may be, & probably will be, formed on this subject; should it become the topic of popular or legal discussion. The one which I have the honor to submit to your consideration may be adjudged erroneous, but it is embraced with confidence, & is the result of my best reflections. I have, Sir, the honor to be with the greatest respect your most obt. Sevt.

Levi Lincoln

RC (DNA: RG 59, LOAG). Docketed by Wagner, with his notation: “Mr. Merry’s complaint of the arrest of his servant.”

2Section 27 of “An Act for the Punishment of certain Crimes against the United States,” 30 Apr. 1790, provided that “no citizen or inhabitant of the United States, who shall have contracted debts prior to his entering into the service of any ambassador or other public minister, which debts shall be still due and unpaid,” would be protected from court processes to recover that debt (U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 1:118).

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