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To Thomas Jefferson from Levi Lincoln, 25 January 1804

From Levi Lincoln

Washington Jany   1804 [25 Jan.]

Sir

I have examined the questions referred to my consideration by your note of yesterday—By the Constitution of the US. offences against it and the laws made in pursuance thereof are cognizable by the federal Courts—All crimes or misdemeanors, which are not such by this constitution, or to which the jurisdiction of the federal Courts, is not by law, expressly extended, are, it is conceived triable by a State judiciary only—

Under the clause giving the authority to make all laws necessary & proper for carrying the powers vested in the national Govt. into execution, is the 22. Sec of the act for the punishment of 1 certain crimes agt. the US.—This Sec. provides that if any person or persons shall knowingly and wilfully obstruct, resist, or oppose any officer of the U.S. in serving or attempting to serve or execute any mesne process, or warrant, or any rule or Order of any of the courts of the U.S. or any other legal write or process whatsoever, or shall assault or beat or wound any officer or other person duly authorized in serving or executing any rule or order process or warrant aforesd., every person so knowingly and wilfully offending in the premises, shall on conviction thereof, be emprisoned not exceeding twelve months & fined not exceeding three hundred dollars—

In the 71st. Sec of the act of the 2d of March 1799 for regulating the collection of duties on imposts & tonnage (V. 4. p 391) It is provided that if any person shall forcibly resist, prevent, or impede any officer of the customs, or their deputies, or any person assisting them, in the execution of his duty such person so offending shall for every such offence be fined in a sum not exceeding four hundred dollars

By the 90th Sec. of the same law (p. 430) It is provided that all ships or vessels goods wares or merchandise, which shall be condemned by virtue of this act &c shall be sold by the Marshal2 or other proper officer of the Court, in which the condemnation shall be had, to the highest bider, at public auction, by order of such court &c—

The foregoing recited parts of the laws of the U.S. are those alone, it is beleived, which can, on any principles, be construed to embrace; or to extend to the outrage committed at Plymouth. Of the applicability of the provisions of the aforesd. 71. Sec. of the law, I have very serious doubts—I have mentioned it, because, at first blush, it seemed to apply, and may have from others a less confined construction. It is true, the stealing of goods after the condemnation & before the sale, which the collector had seised & stored, may be considered, in its bearings & effects, as really a resistance and impediment to an officer of the customs, or his assistance, in the execution of their duty, yet I conceive it is not that direct personal resistance and impedement which the law contemplated. But should it be considered as applicable, it would reach every part of the Plymouth transaction—

The Marshal, who by the 90th Sec. of the cited law, who is to sell by the order of a Court condemned goods, wares and Merchandise, to the highest bider, at public auction, is both an officer of the federal Court, and of the US. within the intent of the sd 22 Sec. of the first mentioned act; and the order of the Court, in which the condemnation of the goods has been had to the Marshal for their sale, is also an order or legal process within the letter, as well as within the reason & meaning of this sec. of that law—

It is therefore to me perfectly clear that the persons who deterred the people from biding on the goods, who threatening3 insulting and intimidating those who did bid, assaulted & beat Crocker, abused the officer, and endeavoured to intimidate & embarrass him in the execution of his order for to make the sales have been guilty of a very aggravated obstruction, resistance & opposition to an officer of the U.S. and are liable on an indictment by a federal Court to be convicted fined & imprisoned—

In addition to this offence agt the US. of an obstruction to its officer, in the Execution of his duty—there appears to have been three other distinct offences committed agt. the State in which these transactions took place as mentioned in the Collectors letter—and as such triable only under the authority of that State

The taking of the two hodgsheads of rum from the Store on the 14th. was undoubly feloneous (even if by the former owner,4 as is supposed, or by the consent of the store keeper,) and an highly aggravated theft—The threatenings insults assaults beatings and other outrages at the sale was a violent high handed riot, involving all who were present for the unlawful purpose of preventing a fair sale, or were actually concerned aiding or countenancing the acts of violence which took place.—The losing of the horses, in the evening, was a malicious mischeif constituting a legal misdemeanor, and furnishing a third ground for a state indictment in the County which has been disgraced by the wantonness of a few—

Under these circumstances would it not be desirable to divide the criminal processes which it may be thought proper to commence? Should prosecutions both State & national be instituted and be conducted with firmness, ability, moderation & prudence (as I have no doubt they would be from my knowledge of the gent. who would manage them) they would lead to some useful disquisitions disclosures, and avowals in open Court—

A few of the leaders, or principals being tried before the federal Court at Boston, a few others well selected on account of their habitual opposition to the execution of the revenue laws and to Govt. before the State courts at the place where the offences were perpetrated would probably be a more useful exhibition both of the firmness and fairness of Govt. as well of its magnanimity & mildness (as it would be more convenient to the offenders themselves) than to carry all who ought to be5 tried to a distance from home with the Witnesses—It is possible from prejudice & connections, there would be a difficulty in the jurys agreeing to convict, taken from Plymouth & its neighbourhood on evidence sufficiently strong. But it is certain in such a case there would not be twelve persons in one panel who would agree to acquit—The consequence would be a continuance & trials from Court to Court, which would hold the offenders under bonds, under expence and under a kind of suffering, which might be as useful to the individual & the public as would be a conviction at the first term—

It is possible the persons who stole the rum & those who injured the horses may not be discovered, and altho the opposers of the Marshal, May by the same act of opposition have been also guilty of a riot against the laws of their own state, yet as it may be thought severe to punish them both ways, or rather for both offences; and as the district Attorney may think it his duty to prosecute all who may be deemed worthy of punishment in the federal Court, & the Attorney Genl of the State may from delicacy, not think it proper to anticipate, or interfere with, prosecutions which may be grounded on the transactions of the 16th, would it not be advisable by letter to the collector or the district Atty to suggest to them the expediency of a consultation with the Atty Genl. of the State on the proprietors of prosecuting some of the offenders of the 16th as Oppugnators6 to an officer of the US, in the federal Court; and others as federal rioters in the Courts of the State

I am sensible that some of the above remarks are not answers to the stated questions but as they associated with them, and are applicable to the subject matter I have taken the liberty of submitting them.

I have the honor to be Sir most respectfully Your Obt Servt

Levi Lincoln

Please to excuse the accident to the enclosed

RC (DLC); partially dated, but see below; postscript in margin of first page; addressed: “The President of the United States”; endorsed by TJ as received 26 Jan. and “Plymouth. riot at. Atty Genl.’s opn” and so recorded in SJL.

note of yesterday: on 24 Jan., TJ informed Gallatin that he had sent Henry Warren’s letter to Lincoln, but TJ’s query to the attorney general is not recorded in SJL and has not been found.

For Section 22 of the 30 Apr. 1790 act for the punishment of certain crimes, quoted here by Lincoln, see U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855-56, 8 vols. description ends , 1:117. Sections 71 and 90 of the 2 Mch. 1799 act for regulating the collection of duties are in same, 1:627, 678, 696-7. For the pagination as cited by Lincoln, see Acts Passed at the Third Session of the Fifth Congress of the United States (Philadelphia, 1799).

TJ appointed George Blake the U.S. district attorney for Massachusetts in July 1801 (Vol. 35:300-1n). attorney genl of the state: James Sullivan (ANB description begins John A. Garraty and Mark C. Carnes, eds., American National Biography, New York and Oxford, 1999, 24 vols. description ends ).

1MS: “of of.”

2MS: “Marsal.”

3MS: “theatening.”

4MS: “owne.”

5Word lacking in MS.

6Lincoln underlined this word, and “federal” later in the sentence, with two strokes.

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