From Edmund Randolph
Philadelphia June 26th 1792.
This morning I had the honor of receiving the letter of Mr. Van Berckel, with its inclosures addressed to you, complaining of the arrest of one of his servants.
The law of nations, tho’ not specially adapted by the constitution, or any municipal act, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to modifications on some points of indifference. Indeed a people may regulate it so as to be binding upon the departments of their own government in any form whatsoever; But with regard to foreigners, every change is at the peril of the nation, which makes it.
Impliedly however, the law of nations is considered by the act affixing penalties to certain crimes, as being in force; and some of its subjects are thrown under particular provisions.
We are then to determine whether the facts, upon which Mr. Van Berckel remonstrates fall within these provisions; what would be the consequence of finding this to be the case; and what ought to be done to avenge an infraction of the law of nations, which may not be punishable under any merely municipal law.
The arrest of the domestic servant of a public minister is declared illegal by the act concerning crimes; all process for that purpose are annulled; and the persons concerned in the process are liable to imprisonment not exceeding three years, and to a fine at the direction of the court. If however the domestic be a citizen or inhabitant of the United States and shall have contracted prior to his entering into the service of the minister, debts still unpaid, he shall not take the benefit of the act: nor shall any person be proceeded against under the act for such arrest, unless the name of the domestic be registered in the secretary of state’s office, and transmitted to the marshal of the district, in which Congress shall reside.
The going into Mr. Van Berckel’s mansion and serving an execution is not animadverted upon by the fœderal law.
These two Examples of Offence must, I think be examined by different rules. In that of arresting a domestic, congress appear to have excluded every resort to the law of nations. This must be the effect of their regulations, or else the offender would be punishable both under that act and the law of nations, or at least1 under either, at the will of the prosecutor. But this cannot be conceived as the sense of the legislature. It is presumable, that they meant to settle this subject in all points appertaining to it. Mr. Van Berckel then can appeal upon the arrest2 to the fœderal act alone; According to which the Officer arresting may protect himself, if he can with truth use the proviso contained in 26th. section.
The other branch of the officer’s conduct to wit the entering into the house to serve an execution, will either be absorbed in the arrest, as being necessarily associated with it, if that should be found criminal; or if the arrest be admissible, must be punished, if at all, under the law of nations, as being left untouched by the municipal act. It then becomes a question, whether it be an Offence and in What degree against the law of nations, to go into the house of a Minister peaceably, to arrest a man, who might be elsewhere lawfully arrested? I shall not ask what might be done, if a Minister was to afford an asylum to a man not intitled to protection, against the civil process of the country; because here it cannot possibly be insinuated. Nor will I say that such a regard is not due to his residence, as to forbid an intrusion for the purpose of arresting by ordinary proces even an unprotected man. But if it should be proved, that the domestic could not claim the benefit of the act of congress, the mere going into the house and executing a precept will probably sustain a prosecution but at best it would be esteemed summum jus. On the other hand if the Officer could be mulcted for the Arrest on the principle of the Arrest the federal courts are open to all cases cognizable under the authority of the United States.
I ought not to omit for your consideration a remark, arising from a comparison of the 25th. and 26th. sections of the act of congress. The former renders the process void to all intents: the latter denounces a penalty against the persons concerned in it, and furnishes the excuse in certain circumstances. Now should Mr. Van Berckels servant not be a citizen or inhabitant of the United States who may have contracted the debt prior to his entering into the Ministers service, the execution may be void although the Officer may be exempt from punishment.
But I should doubt upon the whole, Whether if the servant has not been registered, it might not be as well to apprize the Minister, of the law. And to pursue with vigor any like3 aggression, which shall be made, after the servants shall have been enrolled in your office, Perhaps it might be expedient to publish in the newspapers the 25th., 26th., and 27th. sections of the law. I have the honor, Sir, to be yr. mo. obt. serv.
RC (DNA: RG 60, Letters from and Opinions of the Attorneys General, 1791–1811); in a clerk’s hand except for complimentary close, signature, address at foot of text, and interlineations noted below; at foot of text: “The Secretary of State”; endorsed by TJ as received 1 July 1792 and so recorded in SJL. PrC of Tr (DLC); in the hand of George Taylor, Jr. Enclosed in TJ to Van Berckel, 2 July 1792.
The act concerning crimes was passed by Congress in April 1790 (Annals description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials, Washington, D.C., Gales & Seaton, 1834–56, 42 vols. All editions are undependable and pagination varies from one printing to another. The first two volumes of the set cited here have “Compiled … by Joseph Gales, Senior” on the title-page and bear the caption “Gales & Seatons History” on verso and “of Debates in Congress” on recto pages. The remaining volumes bear the caption “History of Congress” on both recto and verso pages. Those using the first two volumes with the latter caption will need to employ the date of the debate or the indexes of debates and speakers. description ends , ii, 2273–81). In order to prevent a recurrence of the sort of problem caused by the arrest of a servant of the Dutch minister Van Berckel, TJ evidently asked each of the foreign ministers and agents in Philadelphia to provide him with a list of servants in their households, so that they could be registered in compliance with the terms of this legislation. The diplomatic representatives of Britain, France, and Spain were the first to reply (Hammond to TJ, 27 June 1792, RC in DNA: RG 59, NL, with enclosed list of servants of same date signed by Hammond, endorsed as received that day and so recorded in SJL with date of letter incorrectly entered as 22 June; Jaudenes and Viar to TJ, 27 June 1792, RC in same, in Viar’s hand, with enclosed list in a clerk’s hand, endorsed by TJ as received that day and so recorded in SJL with date of letter incorrectly entered as 22 June; Ternant to TJ, 1 July 1792, RC in same, in French in a clerk’s hand except for Ternant’s signature, with enclosed list signed by Ternant, endorsed by TJ as received 3 July 1792 and so recorded in SJL). In consequence, TJ signed a document on 3 July 1792 listing their household servants and certifying that they were registered as required by the 1790 act (PrC of Tr in DNA: RG 59, MLR; in Taylor’s hand; mutilated). TJ also received a similar list, not found, in a letter of 4 July 1792 from the Dutch minister and entered the names in a certifying document on the following day (PrC in same; unsigned; in Taylor’s hand; mutilated).
1. Preceding two words interlined.
2. Preceding three words interlined.
3. Word interlined in place of “such.”