Thomas Jefferson Papers
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To Thomas Jefferson from Levi Lincoln, 25 June 1804

From Levi Lincoln

Washington June 25th 1804


There can, I think, be but little difficulty in determining on the theory and general principles applicable to the subject matter of your communication, which I had the honor of receiving the last evening. “Taking a part in a war against a nation in amity with us’ or any way to interfere, and favor one party more than the other, must be agreed to be inconsistent with a fair construction of the acknowledged rules of neutrality, and a violation of the laws of nations.—Wittingly and deliberately doing any thing to impede, oppose, or defeat such measures of the general Government as are adopted & directed by the proper authority, must be considered, on general principles, as a violation of the duties of obedience and submission to a constitutional power, and a misdemeanor deserving punishment.—A State’s procuring, or inducing a belligerent, gratuitously, for consideration, by contract or otherwise, to send to our coast a part of its national force, to protect our commerce, exclusively, or in common with its own, against the depredations of an enemy, or the ‘predatory corsairs’ belonging1 to nations in amity with us, appears to me, would be substantially a controvening the restrictions of the 10th Sec. of the 1st. Art of the Const. of the US. which provides that “no state shall enter into any treaty, alliance or confederation,” or “enter into any agreement or compact with another state, or with a foreign power, or engage in war &c.” A double violation of duty, and of the spirit of these salutory restraints would there be, should an individual presumptuously do this. The Protection of the commerce of one nation by the national force of another, and the arrangement for such an object, is among the usual, direct, and important fruits of national treaties. Nations thus to act, place themselves in new situations towards each other, assume new relations between themselves and in reference to the nation against whom this protection force is to be exerted; assume new dangers, new difficulties, new responsibilities, and as the case may be, their ultimate ruin, instead of commercial protection. The general character of this new relation, would be protector, and Protected2 as in the present Instance; For as we could not protect the british commerce in return against the same corsairs of the french without engaging directly in the war, in this humble and dangerous situation would the execution of the marine insurance project place the U.S.—To prevent such, & similar degradation & peril, the constitution has secured to the general Government, exclusively, the regulation and formation of every species of connection with foreign nations in reference to trade, peace, or war; and has expressly excluded from the agency of States, and, a fortiori, of particular citizens, those transactions by which alone such connections could, in principle or in fact, be produced.

Notwithstanding these general principles may be admitted in the abstract, there may be some doubts, when we descend to particulars, in reference to their application, and the mode of inforcing them. There may be instances, as mentioned by writers on national law, were subjects or citizens may reasonable presume on the will of the constitutional power, and act in consequence of its tacit & presumed consent. Of such a complexion, may be considered the late applications to the Sovereigns of France and Russia for their kind offices in favor of our countrymen at tripoli, as also some of the measures, which Commodore Prebble may have taken with foreign nations to accomplish the object of his mission. And altho it should be conceded, that the law of nations has been violated in an individual’s inviting to our coast a belligerent, to protect our commerce, by acting against our friend; and that so doing, being an opposition to that known system of fair & impartial neutrality which has been adopted by the proper authority is a misdemeanor; and further, a violation of the principle & spirit of an express article of the constitution; yet some may doubt, as Congress has made no general, or particular provision for the punishment of these specific offences, whether they are the subjects of indictments in our courts of justice. I am aware of the principles, and of their correctness, with qualifications and limitations, from which this doubt may result, yet I am inclined to think, an indictable offence against the Government of the US. may be committed, independent of any statute provision defining the offence, or prescribing the punishment. The old Government directed, prosecutions to be instituted, and sustained them, for offences against the law of nations unaided by any particular law of Congress. Suppose the State of New York in violation of the cited provision of the constitution, had made a treaty with admiral Mitchell, he being authorised for the purpose which provided that in consideration of furnishing him with some marines & military stores, he should imploy the forces under his command in protecting the commerce of N York against the depredations of the french corsairs, and that the President of the marine insurance company had been the minister or agent who had made this treaty forbidden by the constitution. The treaty, as to any binding effects, would have been a nullity. But the supreme law of the land would have been broken. An offence would have been committed, in the person of the individual agent who executed the unlawful act. The State could not be indicted,—could not act but by its agent,—could be guilty of no offence in merely determining to do an unlawful thing; and having no authority thus to determine, could furnish no justification to an individual for doing what the law had forbidden; He alone would be amenable to the justice of his country, for the violation of her laws—This supposed case cannot be distinguished in principle, from the existing case. The supposed doings of the state, being in themselves void acts can make no difference, and the supposition of the consideration of a supply of marines & military stores, cannot alter the principle, or the action of law on the case. In either statement the individual acting violates the law, and it being a legal principle to punish by indictment, with fine or imprisonment, the person who does what the law forbids, altho no particular mode of prosecution, or punishment, may be explicitly prescribed, he is of course subject to such a prosecution, if federal laws & state laws are to be executed on the same principles.

The act of the 30th. of Jany 1799. appears to me to be pointed in its application to the existing case without the aid of construction. To carry on, without the permission of Govt, directly or indirectly any verbal or written correspondence or intercourse with any foreign Govt. or any officer or agent thereof, with an intent to influence the measures or conduct of any foreign Govt. or of any officer or agent thereof, in relation to any disputes or controversies with the US. or to defeat the measures of the Govt. of the U.S. is the offence therein described. That the stated correspondence with an officer of a foreign Govt. was with the intent to influence the conduct of that officer, in the sense of this law, is manifest both from the force of the expressions made use of, & the nature of the transaction. The only question which can be made is, was it in relation to any disputes or controversies with the US, within the meaning of this law? It may be contended, that the controversies here meant were such as should subsist between the United States, and the officer or his Govt. with whom the correspondence might be carried on. But the words “in relation to any disputes or controversies with the US,” are as general and comprehensive as could be used, and from their force extending to all our national controversies, they ought not to be limitted, unless the subject matter or the reason of the thing shall require it. There is the same reason, for preventing a correspondence with an officer of a foreign Govt. with an intent to influence their measures in reference to a controversy between the US and a third Govt. as there is for forbiding it in relation to a dispute between them and his own Government. The mischeif, is the same in both instances—The proviso, in the nature of an exception, of this act is a proof that the legislature considered it as extending to almost every kind of intercourse with foreign nations or their officers by which the US. could be effected. Altho no particular law of Congress can be found making unlawful the stated act, as taking a part in a war, against a nation in Amity with us; would it not be best that the indictment should contain four3 distinct counts predicated on four different principles?

The 1. For a violation of the laws of nations
2. For opposing & endeavoring to defeat the measures adopted by the Genl. Govt. to preserve peace.
3 For violating the provisions of an article of the Constitution.—and—
4 For unlawful correspondence &c against the statute—

This will bring the matter in various views before the federal courts. What they will do with it, time must disclose. Its evils are great, threatening, & ruinous and if not checked, might prostrate the Govt. I am clearly of the opinion, that it ought to be put into a train for legal investigation, & judicial animadversion—The above ideas are the result my hasty reflection on the subject, should a further attention to the principles of law materially change them, you will indulge me with the liberty of communicating it—

I have the honor to be Sir most respectfully your obt Sevt

Levi Lincoln

RC (DLC); at head of text: “The Presidt. of the U States”; endorsed by TJ as received 25 June and so recorded in SJL with notation “Presidt. Insurance co.”; also endorsed by TJ: “Atty Genl.”

1 MS: “beloning.”

2Lincoln underlined this word and “protector” with two strokes.

3Here and later in the sentence, Lincoln first wrote “three” and then altered it to “four.”

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