THE LOGAN ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86M00886R001600130001-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 47
• Document Creation Date: December 21, 2016
• Document Release Date: August 27, 2008
• Sequence Number: 1
• Publication Date: April 9, 1984
• Content Type: MEMO

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I CENTRAL INTELLIGENCE AGENCY
Office of General Counsel
34-- i5/ 9 -1
6 April 1984
Here is the information you
requested today on the Logan Act.
STAT
Stanley Sporkin
General Counsel
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Central Intelligence Agency
? Washington. D.C. 20505
15 April 1986
STAT
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STAT
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 18 USCS ? 952 CRIMES
? 952. Diplomatic codes and correspondence
Whoever, by virtue of his employment by the United States, obtains from
another or has or has had custody of or access to, any official diplomatic
code or any matter prepared in any such code, or which purports to have
b
een prepared in any such code, and without authorization or competent
authority, willfully publishes or furnishes to another any such code or
matter, or any matter which was obtained while in the process of transmis-
sion between any foreign government and its diplomatic mission in the
United States, shall be fined not more than $10,000 or imprisoned not,
more than ten years, or both.
(June 25, 1948, ch 645, ? 1, 62 Stat. 743.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Prior law and revision:
This section is based on Act June 10, 1933, ch 57, 48 Stat. 122 (former
22 U.S.C. ? 135).
Minor changes in phraseology were made.
CROSS REFERENCES
United States defined, 18 USCS ? 5.
Foreign government defined, 18 USCS ? 11.
Disclosure of classified information, 18 USCS ? 798.
Communication of classified information by officer or employee of United
States to foreign government, 50 USCS ? 783.
RESEARCH GUIDE
Law Review Articles:
Edgar and Schmidt, The Espionage Statutes and Publication of Defense
Information. 73 Columbia L Rev 929.
? 953. Private correspondence with foreign governments
'Any citizen of the United States, wherever he may be, who, without
authority of the United States, directly or indirectly- commences or carries
on any correspondence or intercourse with any foreign government or any
officer or agent thereof, with intent to influence the measures or conduct of
any foreign government or of any officer or agent thereof, in relation to
any disputes or controversies with the United States, or to defeat the
measures of the United States, shall be fined not more than $5,000 or
imprisoned not more than three years, or both.
This section shall not abridge the right of a citizen to apply, himself or his
agent, to any foreign government or the agents thereof for redress of any
injury which he may have sustained from such government or any of its
agents or subjects.
(June 25, 1948, ch 645, ? 1, 62 Stat. 744.)
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1. Con
1. co
? 953)
Constit
be info
since s
terns;
Supp 7
 Art. 1, ? 4
The Congress shall assemble at least once in every Year, and such
Meeting shall be on the first Monday in December, unless they shall
by Law appoint a different Day.
Section. 5. Each House shall be the Judge of the Elections, Re-
turns and Qualifications of its own Members, and a Majority of each
shall constitute a Quorum to do Business; but a smaller Number may
adjourn from. day to day, and may be authorized to compel the At-
tendance of absent Members, in such Manner, and under such Pen-
alties as each House may provide.
Each House may determine the Rules of its Proceedings, punish
its Members for disorderly Behaviour, and, with the Concurrence of
two thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may in their Judg-
ment require Secrecy; and the Yeas and Nays of the Members of
either House on any question shall, at the Desire of one fifth of
those Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any
other Place than that in which the two Houses shall be sitting.
Section. 6. The Senators and Representatives shall receive a Com-
pensation for their Services, to.be ascertained by Law, and paid out
of the Treasury of the United States. They shall in all Cases, ex-
cept Treason, Felony and Breach of the Peace, be privileged from
Arrest:, during their Attendance at the Session of their respective
Houses, and in going to and returningfrom the same; and for any
Speech or Debate in either House, they shall not be questioned in
any other Place.
No Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the Authority
of the United States, which shall have been created, or the Emolu-
ments whereof shall have been encreased during such time; and no
Person holding any Office under the United States, shall be a Mem-
ber of either House during his Continuance in Office.
Section. 7. All Bills for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur
.with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it becomes a Law, be presented to the
President of the United States; If he approve he shall sign it, but
if not he shall return it, with his Objections to that House in which
it shall have originated, who shall enter the Objections at large on
their Journal, and proceed to reconsider it. If after such Recon-
sideration two thirds of that House shall agree to pass the Bill, it
shall be sent, together with the Objections, to the other House, by
which it shall likewise be reconsidered, and if approved by two
thirds of that House, it sha
the Votes of both Houses s~
the Names of the Persons s
tered on the Journal of eai
not be returned by the Presl
after it shall have been preE
like Manner as if he had si;
journment prevent its Retui
Every Order, Resolution,
Senate and House of Repre
a question of Adjournment
the United States; and bef
approved by him, or being c
two thirds of the Senate ani
the Rules and Limitations pi
Section. 8. The Congress
Taxes, Duties, Imposts and
for the common Defence an
but all Duties, Imposts and
United States;
To borrow Money on the i
To regulate Commerce wi
eral States, and with the Ind
To establish an uniform R
on the subject of Bankruptci
To coin Money, regulate th
fix the Standard of Weights
To provide for the Punishri
current Coin of the United S
To establish Post Offices a
To promote the Progress c
for limited Times to Author
their respective Writings and
To constitute Tribunals ini
To define and punish Pirac
Seas, and Offences against th
To declare War, grant Lett
Rules concerning Captures on
To raise and support Armi
that Use shall be for a. longer
To provide and maintain a ]
To make Rules for the Gove
naval Forces;
June 1977
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9 April 1984
NOTE FOR: General Counsel
FROM:
Chief, Litigation & Legislation Division
SUBJECT: The Logan Act
Attached is some background material on the Logan Act.
Speaking strictly in the abstract (because I have not seen the
letter which gave rise to the Director's question), I think
that two broad generalizations can be made.
-- The legislative history of the Logan Act indicates
strongly that it was designed to protect the
prerogatives of the Executive Branch. It probably
would apply to activities undertaken by Members of
Congress, at least as individuals, i.e., outside the
scope of their official duties as Congressmen.
-- The speech and debate clause of the Constitution
probably would not be sufficient to foreclose
prosecution of a Member of Congress under 18 U.S.C.
953 so long as the conduct in question was not
integral to the deliberative and communicative process
of the House or Senate.
Of course, whether or not there exists any realistic
possibility that any Member of Congress would ever be
prosecuted under the Logan Act is another question. As the
recent conversations between the visiting President of France
and Democratic Presidential candidates Mondale and Hart
illustrate, discourse between individual Members of Congress or
private citizens and foreign officals has become quite
commonplace. The mission of Presidential candidate Jackson to
Syria which resulted in the release of the captured U.S. naval
airman was, of course, theoretically a violation of the Logan
Act, but certainly no one suggested that the Act be applied in
that case.
STAT
STAT
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 rw rtrVin:,:: ?;r :.
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Pt. 1
the State so that the two
I together.
June 19, 1968, 82 Stat. 234,
102, Oct. 22, 1968, 82 Stat.
e application thereof to any
,he remainder of the chapter
other persons not similarly
1 not be affected thereby.
June 19, 1968, 82 Stat. 234,
102, Oct. 22, 1968, 82 Stat.
!nce.
ign governments.
ign government.
;n governments.
foreign government.
foreign government.
dly nation.
1.
eign nation.
tion.
rent nation.
to to vessel's departure.
ar false statements.
aid of neutrality.
ertain countries?
narcotics to Pacific Islands.
reflect such repeal.
cents
consular officer or attache,
~f a foreign government with-
of State, shall be fined not
lore than ten years, or both.
12,
Ch. 45
FOREIGN RELATIONS _
952. Diplomatic codes and correspondence
Whoever, by virtue of his employment by the United States, ob-
tains from another or has or has had custody of or access to, any
official diplomatic code or any matter prepared in any such code,
or which purports to have been prepared in any such code, and
without authorization or competent authority, willfully publishes or
-furnishes to another any such code or matter, or any matter which
was obtained while in the process of transmission between any for-
.eign government and its diplomatic mission in the United States,
.shall be fined not more than $10,000 or imprisoned not more than
ten years or both.
953. Private correspondence with foreign governments
Any citizen of the United States, wherever he may be, who, with-
out authority of the United States, directly or indirectly commences
or carries on any correspondence or intercourse with any foreign
government or any officer or agent thereof, with intent to influence
the measures or conduct of any foreign government or of any officer
or agent thereof, in relation to any disputes or controversies with
the United States, or to defeat the measures of the United States,
shall be fined not more than $5,000 or imprisoned not more than
three years, or both.
This section shall not abridge the right of a citizen to apply, him-
self or his agent, to any foreign government or the agents thereof
for redress of any injury which he may have sustained from such
government or any of its agents or subjects.
? 954. False statements influencing foreign government
Whoever, in relation to any dispute or controversy between a
foreign government and the United States, willfully and knowingly
makes any untrue statement, either orally or in writing, under oath
before any person authorized and empowered to administer oaths,
which the affiant has knowledge or reason to believe will, or may be
used to influence the measures or conduct of any foreign govern-
ment, or of any officer or agent of any foreign government, to the
injury of the United States, or with a view or intent to influence
any measure of or action by the United States or any department or
agency thereof, to the injury of the United States, shall be fined
not more than $5,000 or imprisoned not more than ten years, or
both.
? 955. Financial transactions with foreign governments
Whoever, within the United States, purchases or sells the bonds,
securities, or other obligations of any foreign government or political
subdivision thereof or any organization or association acting for or
141
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 son-
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'icans, Baker con-
~r countries. They
little less smiling,
cused the Carter
,an influence and
ch reactions from
ctable and tinged
s were being ex-
nside and outside
nittee, after pro-
ration treaty with
pon a significant
in American de-
the Senate For-
ik ratification of
rom Cuba. At a
the White House
]e" and did not
Byrd insisted on
orators to serve
SALT II and on
tors want to be
omatic interests
being neglected
1 strong legisla-
al commentator
as lately be-
)m pick up a
pointed Sec-
nal security ad-
different views
rab-Israeli con-
staff, the State
flicting assess-
,tes. These and
cutive conflicts
activism in for-
ureaucratic in-
leadership po-
vacuum. More-
from Jimmy. Carter, an at is sad to
Sorensen's view:
Effective control over t
Congressional Assertiveness and Foreign Affairs 199
r, disunity within the executive branch is bound to exacer e the
prob of disunity within Congress itself in approachin iplomatic
questions.
Late in one of President John F. Ke y's former White
House aides, Theo C. Sorensen, made arnest appeal to Presi-
dent Carter to "regain trol" over t oreign policy machinery. In
f foreign affairs is slipping away
effective American ffign policy requires
Unit Cates will be marked by drift, ineffectualness, and
onal power abroad.
_dential leadership 38
Recent ex ence has shown that unless and u
policy ap qp4ch is supplied by the chief executive, the
CONGRESSIONAL ASSERTIVENESS:
CONSEQUENCES AND IMPLICATIONS
What impact has a more assertive and independent diplomatic role
by Congress had upon American foreign policy? What have been its con-
sequences - both positive and negative - upon the conduct of foreign
relations by the United States? These questions will be examined in the
light of our case studies and of other examples of Congress' recent dy-
namism in the foreign policy field.
Independent Legislative Initiatives
Until the period of the Vietnam War, it was a clearly established
principle that negotiations with foreign governments were an executive
prerogative. For example, longstanding precedent supports the view that
the president or his designated agent "makes" or negotiates treaties
with other governments. One of the earliest enactments of Congress was
the Logan Act, which prohibits certain unauthorized negotiations e-
tween Americans and foreign o icia s. Although suc h contacts May
have become frequent - and no citizen has ever been prosecuted for
3
violating its terms - the Logan Act remains the law of the land,
In practice, from the period of World War II until the 1970s, legisla-
tors were frequently involved in the conduct of diplomatic negotiations
- but nearly always at the invitation of the president. Today, the
appointment of legislators as members of American negotiating teams is
an accepted technique for creating bipartisan support for the nation's
foreign policy. In the spring of 1979, the Carter administration at-
tempted to win widespread congressional support for the proposed
SALT II agreements with the Soviet Union by allowing "26 Senators, 14
Republicans and 12 Democrats, including opponents and critics, and 46
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n them inde en-
- without
White House roval and sometimes int e ace o
residential o osition. In 1979 Senator esse a ms, a memero t e
Relations Committee sent two sta members to on on
to artici ate direct( in di omatic iscussions esigne to
Ion standin civil Conflict in Zim a we-
Helms' justification was candid: "I don't trust the State Department on
this issue."91
Another newsworthy example of Congress' direct intervention in
foreign relations occurred after Iranian students seized the American
embassy in Tehran on November 4, 1979, and held some 50 Americans
hostage. After early White House efforts to gain the release of the hos-
tages failed, Rer)rese ative Geor a Hansen R-Idaho undertook his own
e mission to Iran where he visite t e ostages an
snit ht to
11 obtain their release. Hansen 's e orts also ale an is un-
authorized negotiations during the crisis were criticized by executive
and legislative officials alike, who feared his initiatives would under-
mine the president's authority and would provide evidence of disunity
within the American government during the crisis.42
Independent diplomatic efforts by Helms, Hansen, and other mem-
bers of Congress appear to have established the precedent that legisla-
tors may now engage in the negotiating process freely. Perhaps legisla-
tors do so on the theory that - in the absence of overt White House
objection - they have the president's tacit approval. In any case, the
practice is bound to raise questions abroad about who is ultimately in
charge of American foreign policy and about how durable agreements
reached with a variety of American officials are likely to be.
r
%
ecogni ion o other governmen s is ano er area - long
garded as executive province -i
t
n
o which C
ongress has i
during the pa ecade. Early in 1979, several senators att
make President r? -I_ .
its
d
n
-o-?Tgstaing claim t vereignty o
legislator
s wanted t th
oreaten t R
recognition if it attempted to sei
ful of
dent and his advisers were future of Taiwan, they
upon the PRC's b ior in +1,.
Another
volves6
Relattfs C
n
o
200 Invitation to Struggle
members of the House of Representatives, to sit in on the arms negotia-
tions in Geneva."4o
The novel feature of Congress' involvement in diplomatic negotia-
tions today is the t d of le islator t
pted to
s Republic of
use force in exert-
aiwan. In effect
these
,
ith withdrawal of American
an by force.43 While th
e presi
-
con siional concern b
tt
ut
nt example of independent
abwe- congressiona itatives in-
Rhodesia
.
Several m
b
em
ers of the Senat oreign
mmittee Dro
nnaed
1-11n of rivate citizens
by the committee, to observe forthcomi
l
ti
ng e
ec
o i th
nsnat country
- an unusual step designed to com
el th
W
p
e
hite H
ouse to recognize a
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new, political('
white-domina
sional initiati
traditional di
tempt by som
away from close
Expansion of 1
As we not(
tional prerogati
the diplomatic
(like its doming
the Senate's col
of congressiona.
ties have come
postwar period,
its role in the t
Two exams
and the SALT 1
instances, Sena
thorough, and i
provide a reliab
ments must nov
Senate participi
ments reached
international ac
viewpoints.
The normal
People's Republ
Senate's preroga
existing America
could only be teri
by some 25 sena
that President C
pact was uncon;
participation in I
was overruled by
ultimately sustai
precedents on fo
affirmed the pres
for the United St
The Pattern of 0
Since World
influential role in
o en a e i
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/111L
PRESIDENT
Office and Powers
1787-195
History and Analysis of
Practice and Opinion
EDWARD S. CORWIN
a
NEW YORK UNIVERSITY PRESS
Washington Square New York
1957
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~f the ere-
be highly
ive." Such
xecutive";
her those
esentative
ion could
no means
the execu-
Gcnct in-
'ashington
1sult Con-
~t's recall,
Presidents
mpending
shington's
to comply
rs relative
originally
theory of
fly instru-
Df foreign
now con-
it's delib-
t did not
)roadened
feels free
his consti-
i's refusal
ed to dis-
e Senate
It, in the
vered by
was re-
le, Sena-
position
nding or
Organ of Foreign Relations
refusing to send any communication to the Senate is not to be
-judged by legal right, but [is] . . . one of courtesy between the
President and that body." " The record of practice amply bears
out this statement.
Washington's success in foreshadowing "the shape of things to
come" is seen also when we turn again to presidential monopoli-
zation of the right to communicate with foreign governments.
The process envisaged is, it should be noted, a two-way process,
depending on whether the President is its terminus ad quem or
is its terminus a quo; in other words, is functioning as the nation's
earpiece or its mouthpiece. The latter, obviously, is the vastly
more important capacity, since, as was pointed out earlier, it in-
volves potentially formation, as well as formulation, of the policy
communicated; while the role of being earpiece is an essentially
passive one. Even so, a Secretary of State found it necessary as
late as 1833 to apprise foreign chancelleries that when they
wished to inform the United States of royal births, deaths, mar-
riages, and the like they should address their communications to
,,the President of the United States of America" and leave Con-
gress out of the business. As to ordinary diplomatic intercourse,
he added, it should be "carried on as usual" through the State
Department.42
,___-:)oMeantime Congress had itself come to the aid and protection
of the President's prerogative to speak for the nation. This oc-
curred in 1799, when one Logan, a Philadelphia Quaker, thought
to avert war between the United States and France by under-
taking a private negotiation with the latter. Manifesting perhaps
some lack of humor, Congress passed a law to penalize such
enterprises, terprises, entitling the measure "an Act to Prevent Usurpation
At Fy .iifiVP Fnnrtinnc." *' In later years, although presidential
pokesmen frequently assumed strange disguises that might easily
have caused confusion, "the Logan Act," while still on the statute
books, dropped out of common ken till the period of the First
World War. Then from 1920 on for several years excited patriots
were constantly rising to demand that its penalties be visited,
now on ex-President Taft and his League to Enforce Peace, now
on Senator France for his philandering with "the Genoa Eco-
nomic Conference," and at various times on Senator Borah; who,
having become Chairman of the Foreign Relations Committee
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? 183
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Organ of Foreign Relations
about that time, had set up as a sort of State Department of his
own.44
Indeed, the First World War proved generally relaxing of the
established etiquette of international intercourse, more or less
permanently so. Early in 1920 Viscount Grey came to this coun-
try on an informal mission, but being unable to see the President,
who was ill, held conversations with certain Senators respecting
the League of Nations fight, following which he published a
letter in the London Times stating that the Lodge reservations
were "satisfactory" to the Allies. President Wilson, apparently
missing the subtle flattery of this imitation of his own prior ex-
ploit in taking the Fiume question to the Italian people over the
heads of their government, professed to be greatly angered at
this "grossest possible breach of courtesy." Likewise, when Candi-
date Harding, then campaigning for the presidency from his
own front porch in Marion, Ohio, was quoted in the papers to
the effect that a French representative had approached him "in-
formally" with the hope that he would "lead the way to a world
fraternity," Mr. Wilson sharply questioned the Republican leader,
who replied with elaborate irony: "Official France would never
seek to go over your high office as our Chief Executive to appeal
to the American people or any portion thereof." By way of con-
trast, President Hoover, following his defeat at the polls in No-
vember 1932, actually invited his successful rival to discuss with
him certain proposals of the British Ambassador with regard to
the war debt situation; and while Mr. Roosevelt declined the-
suggestion, he later on his own initiative invited the Ambassador
to come to Warm Springs for a conference, thereby, as Mr. Krock
of The New York Times commented, virtually taking over "this
function of the Presidency a month before his inauguration." 4b
All such episodes to the contrary notwithstanding, there is no
more securely established principle of constitutional practice than
the exclusive right of the President to be the nation's intermedi-
ary in its dealing with other nations.48
But whatever emphasis be given the President's role as "sole
organ of foreign relations" and the initiative thereby conferred
184
on him in this
vised diplomas
Congress, the 1
taxes for the c
create armies
.United States,
of nations, an(
proper" for ca:
all the powers
any departmer
can arise conc
thus imposed
at the Presider
tion between
relationship df
jointly held cc
States require,
sented with a
counted on to c
now subservie
to the Presider
co-operation w
owing in part
has more and
the present mi
the most impol
foreign policy
Returning ni
ter Congress-1
ential factor in
can foreign po
Empire in Am(
tury raised qu
very imperfect
people he was
by our governr
to determine t
any risks. But
ish monarchy
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Notes
ordered that official to hand the papers in question to him, and defied the
Senate to do its worst. Archibald Butt, Letters, pp. 305-6.
42 Senate Documents, No. 56, 54th Congress, 2nd sess., p. 9 note; Moore,
Digest, IV, 462; cf. notes 46 and 57 infra. No doubt, the discarded practice
was a leftover from Revolutionary days, when all such communications were
sent to the Continental Congress.
48 For debate on the act see Annals of Congress, December 27, 1798,
to January 25, 1799, passim. The measure, amended by the Act of March
4, 1909, 35 Stat. 1088, is now U. S. Code, tit. 18, ? 5. See further "Memg-
randum on the History and Scope of the Laws Prohibiting Correspondence
Government," Senate Document, No. 69b, (AW ongress,
2nd sess. 1917. The author was Mr. Charles Warren, then Assistant -
torney Genera .
44 The New York Times, October 19, 1920; The Woman Patriot (Wash-
ington, D. C.), May 1, 1922; The New York Times, June 22 and 23, 1930
and January 11, 1933. Mr. Ford's "Peace Ship" project early in 1915 did
not of course fall within the purview of the Logan Act, not being intended
"to influence the measures or conduct of any foreign government or of any
officer or agent thereof, in relation to any disputes or controversies with
the United States, or to defeat the measures of the government of the
United States." A like enterprise would later on have appeared in a far
different light. The latest American citizen to find the Logan Act shaken
at him is Mr. Henry Wallace. This occurred when in April 1947 he went
abToad to stir up sentiment against the "Truman Doctrine." " See Mr. Krock's
column in The New York Times of April 1 1947.
4b For Mr. Wilson's reaction to Grey's indiscretion see Washington dis-
patches of February 5, 1920. For the exchange between Wilson and Hard-
ing see The New York Times of October 19, 1920. Mr. Hoover's invitation
to Roosevelt was sent from Yuma, Arizona, November 13, 1932; and the
latter's invitation to Sir Ronald Lindsay was sent January 28, 1933.
4e Presidential assertions of the principle have not always escaped a
flavor of pedantry. In 1876 the governments of Pretoria and Argentina both
sent congratulations to Congress on the occasion of the Centennial, and the
following January Congress adopted joint resolutions of "high apprecia-
tion," which, however, were vetoed by President Grant on the constitutional
ground:
"The usage of governments generally confines their correspondence and
interchange of opinion and of sentiments of congratulation, as well as of
discussion, to one certain established agency. To allow correspondence or
interchange between states to be conducted by or with more than one such
agency would necessarily lead to confusion, and possibly to contradictory
presentation of views and to international complications.
"The Constitution of the United States, following the established usage..
of nations, has indicated the President as the agent to represent the na-
tional sovereignty in its intercourse with foreign powers and to receive all
? 430
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official c
the advit
bassador,
ambassac
of negoti
foreign s
writers c
with fore
"No ec
nished. I
tenor of
cations ai
as they n
to a bran
the recep
pass with
by foreigi
designs."
Earlier,
House pri
the ensuh
and consi
direction,'
rogatives ,
Britten of
Minister I
limitation
the State
quently M
exchanged
subject be
patch, Wa
"The ve
sole organ
tions" is it
299 U. S.
47 On th
cited in no
4B Senate
1? Ibid.,
co Memo
b1 Bentoi
Senate
as Richar
t4 Ibid., I
Years View
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Moore,
,ractice
is were
1798,
March
M emo-
ndence
ngress,
int At-
Wash-
, 1930
15 did
tended
of any
s with
of the
i a far
shaken
e went
Krock's
nn dis-
Hard-
'itation
nd the
sped a
[a both
rid the
precia-
utional
ce and
l as of
,nce or
ie such
dictory
usage
he na-
ive all
Chapter V
official communications from them. It gives him the power, by and with
the advice and consent of the Senate, to make treaties and to appoint am-
bassadors and other public ministers; it intrusts to him solely 'to receive
ambassadors and other public ministers,' thus vesting in him the origination
of negotiations and the reception and conduct of all correspondence with
foreign states, making him, in the language of one of the most eminent
writers on constitutional law, `the constitutional organ of communication
with foreign states.'
"No copy of the addresses which it is proposed to acknowledge is fur-
nished. I have no knowledge of their tone, language, or purport. From the
tenor of the two joint resolutions it is to be inferred that these communi-
cations are probably purely congratulatory. Friendly and kindly intentioned
as they may be, the presentation by a foreign state of any communication
to a branch of the Government not contemplated by the Constitution for
the reception of communications from foreign states might, if allowed to
pass without notice, become a precedent for the address by foreigners or
by foreign states of communications of a different nature and with wicked
designs." Richardson, VII, 431.
Earlier, on August 14, 1876, Grant had sent a special message to the
House protesting against a clause of the diplomatic appropriations act for
the ensuing year that directed the President to notify certain diplomatic
and consular officers "to close their offices." ? "In the literal sense of this
direction," he asserted, "it would be an invasion of the constitutional pre-
rogatives and duty of the President." Ibid., 377. Late in 1928 Congressman
Britten of Illinois, Chairman of the House Naval Committee, sent Prime
Minister Baldwin of Great Britain a proposal that the latter call a naval
limitation conference. When the British Premier sought to reply through
the State Department, the latter declined to transmit the reply. Subse-
quently Mr. Britten and Commander Kenworthy, a member of Parliament,
exchanged correspondence looking to an "unofficial conference" on the same
subject between American M. C.'s and British M. P.'s. United Press dis-
patch, Washington, D. C., December 29, 1928. Nothing came of the idea.
"The very delicate, plenary and exclusive power of the President as the
sole organ of the Federal Government in the field of international rela-
tions" is invoked by the Court in United States v. Curtiss-Wright Corp.,
299 U. S. at 320.
" On the general subject of recognition, see Senate Documents, No. 56,
cited in note 42 ante; Moore, Digest, I, 67-255 passim.
48 Senate Documents, No. 56, p. 30.
49 Ibid., p. 31.
50 Memoirs, IV, 205-6.
51 Benton, Abridgment, VI, 168.
52 Senate Documents, No. 56, p. 36.
53 Richardson, II, 209 (December 2, 1823).
84 Ibid., pp. 41-43; Richardson, III, 266-67; Thomas Hart Benton, Thirty
Years View (Boston, 1854-56), I, 665-70.
? 431
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WASHINGTON
GOVERNMENT PRINTING OFFICE
1917
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(~,Tii l i)SGFt E.s l
!HISTORY OF LAWS PROHIBITING CORRESPONDENCE
WITH A FOREIGN GOVERNMENT AND
ACCEPTANCE OF A COMMISSION
MEMORANDUM
ON THE
MSTORY AND SCOPE OF THE LAWS PROHIBITING
CORRESPONDENCE WITH A FOREIGN GOVERNMENT
AND ACCEPTANCE OF A COMMISSION TO SERVE A
FOREIGN STATE IN WAR, BEING SECTIONS FIVE AND
NINE ' OF THE FEDERAL PENAL CODE
CHARLES WARREN
ASSISTANT ATTORNEY GENERAL
PRESENTED BY MR. BRANDECEE
JANUARY 29,1917.-Referred to the Committee on Printing
 SENATE RESOLUTION NO. 339.
BY MR. BRANDEGEE.
IN THE SENATE OF THE UNITED STATES,
January 31,1917"
Resolved, That the manuscript submitted by the, Senator from 06
onvthe History and Scope of the Laws Prohibiting Correspondence wi
a Foreign Government, and Acceptance of a Commission to Served
Foreign State in War," by Charles Warren, Assistant Attorney Gaul
be printed for the use of the Senate document room.
Attest: JAMES M. BAKER,
Secretary.
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 Approved For Release 2008/08/27: CIA-RDP86M00886R001600130001-3
MORANDUM ON THE HISTORY AND SCOPE OF THE LAWS
ROHIBITING CORRESPONDENCE WITH A FOREIGN GOVERN-
MENT, AND ACCEPTANCE OF A COMMISSION TO SERVE A
FOREIGN STATE IN WAR.
By CHARLES WARREN, Assistant Attorney General.
TORY AND SCOPE OF SECTION 5 OF THE FEDERAL PENAL
CODE.
in the u~aue~, wuetner actually resident or abiding
same, or in any place subject to the jurisdiction thereof, or in any foreign
fry, without the permission or authority of the Gov
d
ernment
irectly or idi
,n-
y, commences or carries on any verbal or written correspondence or intercourse
any foreign Government or any officer or
t
h
agen
t
ereof with a itt t i
,nnenon-
ofce the measures or conduct of any foreign Government or any officer or agent
of, an relation to
United
f
bz ant o
the United States; and every person, being
en of or resident within the United States or in any place subject to the juris-
40n thereof. and not duly authorizes ------- 7- _d_-_
more than three years; but nothing inlthis section shall beoconstrued to abridge
right of a citizen to apply, himself or his agent, to any foreign Government or
agents thereof for redress of any injury which he may have sustained from such
eminent or an
of
y
GENERAL CONSIDERATIONS.
e original act, reproduced in, section 5 of the Federal Penal
~.~~ \4.. f. loo _7_
e act of January 30, 1799 (1 Stat. 613). y-ThereV have been no
ntial ch
anges except that thd " il
e worsorn any pace subject
the jurisdiction thereof," have been twice inserted.
'e
statut h b
eas nevereen construed in any reported case. It is
Unit
d S
e
tates V Crai (188628 Fd9
.g-e. 75, 801) as an illus-
n of the power of the Unit
d S
e
tates to punish ititi
s own czens
acts committed in a foreign country. It is also cited in American
a Co
V United Fruit C (1909213 U S
..o.-.. 347, 356).
[civilized countries]
o furth
t
i
g
er a
t
mes and decla tht thill
,,reaey w punish
e, subject or not, who shall do certain things, if they can catch him, as in the
Pirates on the h;
h r..
g
-
d i
----- ------ -- ....y .mac an
f they get thhii
,e cange, execute smlar
ee to acts done within another recognized jurisdiction. An illustration from
kitesis fou
--- - .
regard
l
c
~uon was embodied in section 5 of the act of March 4,
of 1910. ~ullun 1909, chapter 321, ow by 0 ht, termed the Federal
. 8
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PROHIBITING CORRESPONDENCE WITH A FOREIGN GOVT`
History, therefore, must throw the chief light upon the me
of the statute. While congressional debates are not determmao
the meaning of statutory language, they are unquestionably of.
aid in ascertaining the history of the period and the chief
which led to the legislation.
As was said in Standard Oil Co. v. United States (1911
U. S., 1, 50) :
The debates * * * show, however, that the main cause which led to the
latinn was the thou ht that it was required by the economic condition of times.
States v. Trans-Missouri Freight Association, 166 U. S. 318 and cases cited) that
the environment at the time of the enactment of a particular law, that is, the
of the period when it was adopted.
as the Supreme Court has not hesitated to have reco
Moreover
,
w
to the debates in the Constitutional Convention of 1787 in order
ascertain the construction of words and, phrases in the Constitute
the general rule as to the statutes laid down above may be some*
hundred years ago and only 12 years alter 1787, and in a tune*
times and among men of historical eminence may be valuable
toward the ascertainment of the purport and purpose of the
lation discussed.
OCCASION FOR THE ENACTMENT OF THE ACT OF 1799.
The immediate cause of the passage of the act of 1799 was
intermeddling of a private citizen, Dr. George Logan, in negotia
rvPresident Adams, in 1797, had'sent John Marshall, Charles
Pinckney, and Elbridge Gerry as special envoys to France to
if possible, all claims and causes of differences
tiate and settle
,
then existed between the French Directory and the United S
of the envoys, increased anti-France feeling in the United States,
The envoys one by one returned, having accomplished no
Thereupon, Logan, a benevolent Quaker of Pennsylvania, unde
and others, he sailed for France, m
Thomas McKean
Jefferson
,
,
to do what the three envoys had failed to do. In France "hej
hailed by the newspapers as the envoyeofLpeace, was dine&
and came home to Philadelphia in November
Talleyrand
b
,
y
ies of old letters to the Consul General and the d
some co
p
assurance that France would negotiate for peace." (McMater's
vol. 4, pp. 368-410.)
of the United States
tor
,
y
si
d
h
been
a
VV role I,his' c11 anu
without any partisan political motive, Logan was denounced byo
^
Federalists during his absence and after his return as a treaso
--
caavvy va..,...J vvl..~v.......-~ r----/ l --
r
ence between the American and the French "Jacobins." On
turn he was coldly received by the Secretary of State, and even
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meaning
native of
us
)f causes
t
)11-221
the le$is-
8. ?
to (United
) that rule
scertaining
the history
recourse
order to
titution,
)mewhat
d over a
ie which
present
tble aids
he legis-
was the
,)tiations
tarles C-
to ne$ro'
es which
I States?
e failure
tes, War-
t alieno?
on fro1v
~OVed
, he wag
nod aid
receive
)er
verb b
er's H
)robabll.
th
b9
-Isonable
_?nd'.
,El red
7, 8
rt gl l'I'I\l+' CORRESPONDENCE WITH A FOREIGN GOVERNMENT. 5
y by ex-President Washington, who regarded his action as
itd lntermeddling. Federalists, in general, condemned him; and
was resolved that such interference should be forbidden in' the
More.' President Adams wrote to Timothy Pickering, Secretary of
$ste, November 2, 1798 (Life and Works of John Adams, Vol.
VIIl.p.615):
ibe object of Logan, in his embassy, seems to have been to do or obtain something
:> h might give opportunity for the "true American character to blaze forth in the
~p~o~chi elections." ' Is this constitutional for a party of opposition to send
lb~eaiso to foreign nations to obtain their interference in elections?
In his message to Congress, in December, 1798, the President,
this dealing chiefly with relations with France, made no reference
b Logan. The address of the Senate to the President, December
Ii, 1798, however, contained references to professions made by
"neglecting and passing by the constitutional and author-
i~d aaggeents of the Government" and "made through the medium of
mviduals without public character or authority. ' The President
e his reply to the Senate, December 12, 1798, said (Messages and
of the Presidents, Vol. I, pp. 276, 277) :
Although the officious interference of individuals without public character or
+dharfty is not entitled to any credit, yet it deserves to be considered whether
bttemerity and impertinence of individuals affecting to interfere in public affairs
been Franee and the United States, whether by their secret correspondence or
devise, and intended to impose upon the people and separate them from their
malent, ought not to be inquired into and corrected.
LEGISLATIVE HISTORY AND PURPOSES OF .THE ACT OF 1799.
1$e history and purposes of the act of 1799 are fully set forth in
foals of Congress, Fifth Congress, 1797-1799, Volumes I and III, at
ages cited, infra.
questions involved in the act were first presented in a resolu-
~On introduced in the House of Representatives, December 26, 1798
?2488), by Roger Griswold, of Connecticut, as a proposal to amend
sedition law. He said:
ylte object is to
G Punish a crime which goes to the destruction of the Executive power
a the ?vernment-that description of crime which arises from an interference of
dual citizens in the negotiations of our Executive with foreign Governments.
The resolution was as follows:
&'o1itd, That a committee be appointed to inquire into the expediency of amending
fact entitled "An act in addition to the act for the punishment of certain crimes
the United States " so far as to extend the penalties, if need be, to all persons,
b?f the United Stites, who shall usurp the Executive authority of this Govern-
191, Prince or sate, relating g to on any controversies or disputes with which do or shall exist
? such prince or state and the United States. 1st
),e resolution was debated December 27, 28, 1798 (pp. 2493 et'
by Con ressmen of great eminence, Griswold, John Rutledge
utfih Carolina, Albert Gallatin of Pennsylvania, Thomas Pinck-
?G South Carolina, Robert Goodloe Harper of Maryland; Har-
~tis of Massachusetts, John Nicholas of Virginia, Abra-
vol V Iogan
ette June ,sr of sio na 21 the 9c8onsequent legislation are also to be found in Writings of Thomas
p. 273; Jan. 16, 1799, p. 161; Jan. 26, 1799, p. 326; an. 29, 1799,
e /if F;'ashifgton, Vol. XI, pp. 384, 388. See also Sehoaer's History of the Unitted Sates, Vol.
Wl r th's ""'Or" of the United States, Vol. II, p. 265.
W) 349 398' 3991 nd let ers of Marr..'30 Aug. 26'521.' 1153 Sept 3i,f4,118 25, Oct. `, 17799.AL`Iaw -VIIr
11 kem?>rs of D=~'t~ $0 ~harton's State 'i rfa1s, 20, American State Papers, For. Rel. Vol.
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6` PROHIBITING CORRESPONDENCE WITH A FOREIGN GOVE$N,
ham' Baldwin of Georgia, John Williams of New York, Nath"'
Smith of Connecticut, Nathaniel Macon of North Carolina.
Griswold said' that the object of the resolution was
importance "- of
6igl
I think it necessary to guard by law against the interference of individuals in ..,
negotiation of our Executive with the Governments of foreign countries The D
situation of Europe, in my opinion, calls aloud for a resolution of this kind, fl ?}s
If offenses of this kind are to pass unpunished, it may be in the power of an indirid
to frustrate all the designs of the Executive. The agent of a faction, if such a fac ~'
shall exist, may be sent to a foreign country to negotiate in behalf of that in ought t severely the Executive authority, and will any one saythat such an ofcgd4'`y
y be punished? It certainly ought. gentle
would pretend to say that an unauthorized individual ought to exercise a power w
should influence the measures of a foreign Government with respect to this co' t
This power has been delegated by the Constitution to the President, and the
of this country might as well meet and legislate for us, or erect themselves into,
judicial tribunal, in place of the established judiciary, as that any individual, or I'.
persons, should take upon him or themselves this power, vested in the Execu
Such practices would be destructive to the principles of our Government.
Rutledge said that "if the citizens of this coantry shall be 4
mitted to have intercourse with foreign Governments, they may do'1
the greatest injury to this country under what they conceive to be
the best intentions," and he stated that he thought this ((a gam;
measure of national defense."
Dana said that a person thus employed-
mu t sbe considered as acting in direct hostility with the authority of our Governm ''
and against the general character of our country. * * * It is a crime of sever
magmtude, as the person thus acting must be considered as the agent of a faction'
waiting only for an opportunity of joining the enemies of their country.
Pinckne said that it was a leading doctrine of republican gov '
ernment It "no one can pretend to interfere so as to countered;.
the proceedings of the people of their country as expressed by its legal organs." He stated that he-
knew
of no case, no situation, on which it would be lawful or right for an indfvidmi 1,
to interfere with a foreign Government at a time when any negotiation is going J*,,",
ward by legal authority. Such- an interference can have but a bad effect; it nmq
have a very bad effect. It shows, at least, that there is a party in the country divided'
from the Government who take upon themselves a separate negotiation, and eel""
up a distinct power, which they wish to be paramount to the legal authority,
Harper said : .
The principle once admitted must go to the utter subversion of government- ,
principle being that whenever an individual, or, by stronger reason, a number d,
individuals, conceive themselves wiser than the Government, more able to dieceti
or more willing to pursue, the interest of the country, they may assume its functioey
counteract its views, and interfere in its most important operations. * * *. Upmr
this pretense, if this principle be once established, any discontented faction, ender
the name of a club, or patriotic society, or revolution society, * * * may uamp
the most essential functions of government in their own country , negotiate on aU?
sorts of subjects with the Governments of other countries, and open a direct sad''
broad road for the entrance of that foreign influence which, with equal and fmce~`:
has been declared as the "angel of destruction to republican governments." *
When we knew that that (foreign) Government openly avows its determination W
encourage such intercourse, to protect all factions, all malcontents, all inemgeab`
in all countries, when we knew that this intercourse and her consequent protecd.
of domestic factions are the great engines of her foreign policies-when we know el
this, shall we not oppose an effectual barrier?
The resolution was passed, 65-23 (p. 2545), and Griswold, Pink-;,J
ney, Baldwin, Bayard, and Spaight were appointed a committee.
Gr-
he 1
s tat
enc(
rela'
Uni
hav.
beir
Aid
said
befO
by
term
of ?
258
alre
Jon
wil.
Isar
Jos(
Sarr
Jose
and
T:
Livi
bill
their
G:
All
were
mean
after I
ence
that b
the tv
of the
paps(
appli(
respe(
He
Ot
mess
meas
A
"so ti
or co
Ba.
If th
ever ai
proved
The,
Constit
An ind
any pr:
Exq( ut
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-PROHIBITING CORRESPONDENCE \ViTH A FOREIGN GOVERNMENT.
7
on
h
t
r -.. --
e resolution was introduced in the House by Mr.
newold January 7, 1799, as follows (pp. 2565, 2583):
w-- ce,ueii6 or abiding within the United S vL=~"` 'ales, wnether
ehall, without tha tates, or in any fore,.,,..
It , directly or indirectly, commence or carry on any verbal ormwritten of the correspo United
or intercourse with any foreign Government or an
f___
y o
we united 6tates, ad counsel, advise, aid, or assist, in any such correspondence , with in e t as afo ea
he or they shall be deemed guilty of a high misdemeanor; and
any court of the Unit
on con
i
d S
,
v
e
tates hi jidi
avngursction thereof, shall be punished
`a fine not exceeding thousand dollars, and
by not less than m
imprisonment d
ri
th
on
u
ng a
s nor excdi
,eeng ers The bill was debated at length under the heading of "Usurpation
5xecutive authority," from Januar 9
t
3 et seq.)
o JanuarYy 17, 1799 (pp.
4, by many eminent Con
ressm
ressm
-- , _,
i
g
en
en
n
athan DDayton of New Jersey, Carter B. Harris n oofDVirginia
liam C. Claiborne of
,
~uou
awara ph McDowell,y John Dennis)~J nath nivBraace,n of
del Sewall
amuel Smith,
John D
,
awson Joih Pk
,saarer, William Gordon,
eeph Eggleston, George Thatcher, John Allen, William Edmond d others
.
,
The principal opposition
f
came
rom Albt Glli
eraatn and Edward
vuigston, and was largely based on an unfounded fear that the
Q would prevent private
and
t
pan
o
personal affairs.
atin argued (p. 2586):'
h
c
ange of the measures of government was attempted, though it
Ion merely by an individual to secure his private rights wo
l ,
u
come withi
n
o= we agents of that Government he must do ituin such a manner as
f arguments shall not involve anyof the general principles in dispute between
ha~h;Governments; because the moment. he does thi
L _ .. . .
l
s
d
. It
hat an
n
te for ni
ividual who is not only per-
'cation to the mse but an agent for others should be able to make _f_ -._ .
--
d
es
.
~_
ispute between the two Governments. -V ~V ? ,,, sums
Pisftid wished the bill amended so as to exclude this.
in repl
that th
th
y
e words, with an intent to influence the
Am
Ames of a foreign Government" must relate to general public
88ures, not to the concerns of an
y
i
nset t III plaf " fll
,ce oasoows" the words
as to prevent or impede the amicable adjustment of said disputes
litroversies.
is amendment were to pass, a person (night carry on any coespondence what-
~and no punishment could be infli rr
ntod L__
Bob' - ?=coo a tau invention was
~t b ec of the law is to prevent these private interferences altogether, since the
Rhi,wn has placed the power of negotiat; :. .L_ t
[
 8 PROHIBITING CORRESPONDENCE. WITH A FOREIGN GOVERN'
The amendment was lost (51 to 33), and on being reviewed
again lost (51 to 35). Later in the debate Gallatin, suppord
Nicholas, moved to add the following proviso (p. 2591):
Provided, That nothing in this act contained shall be construed to extend to
person who shall apply to any foreign Government, or to any officer or agent ther14
vl ror
restoration of any property belonging to citizens of the United States and ca the
sequestered, or detained by or under the authority of any such foreign Govern'd,
or any of its ment to the citizens tiof the United State payment of any debts due by such Gov ra.
Bayard opposed, saying the bill was not intended to apply to such
case and there was no need of the proviso :
In order to establish a crime by this bill, what is to be proved? First, that th
are disputes subsisting between the United States and the foreign nation with who e
the correspondence is said to have taken place; that this intercourse has really ex? m
and that it was carried on with a view to influence the measures or conduct of ''
foreign Government in relation to any disputes or controversies with the United States.
and unless all these facts are proved, the crime is not made out.. The intention mm
be proved before the crime will appear.
Dana said that-
.the disputes and controversies mentioned in this bill are those which exist between
the Government of the United States and foreign Governments-disputes and contra
versies of a political nature, unconnected with individual claims.
Edmond said :
It will be wise and prudent at this time to frame a law to prevent individuals from
interfering with the Executive authority in a manner injurious to the community.
The proviso was defeated (48 to 37).
A motion to add after the word "influence" the words "or defeat"
was made by, Joseph Parker (p. 2588), saying that he wished ?to
make the bill as complete as possible and to put every check upon
individual interference with foreign negotiations, which the Govern.
ment had in its power to do so."
The amendment was voted (48 to 30).
Dayton proposed an amendment to strike out the words "relating
to any dispute or controversy between any foreign country and the
United States," and also the word "having" and the words "$e
aforesaid," and to insert in place of "having" the words "in relation
to any. " -
These amendments were voted.
Further statements as to the purpose and intent of the bill were
made in the debates on January 10, 1799 (p. 2599), January 11,
1799 (pp. 2626, 2648), January 16 (pp. 2677, 2682), January 17
(pp 2686, 2721).
Bayard said : " The offense proposed to be punished by this law is
separated only by a shade from treason. " Referring to the particu-
lar action of Dr. Logan, out of which the bill arose, he said: " It must
be clear to every reasonable man that a law of this kind is a necessary
barrier to guard against an arrogation of power in public factions.
The bill is founded on justice and policy."
Griswold said that the object of the bill was perfectly well, known
and understood "to prevent all interference with the Executive
power in our foreign intercourse."
Iii1c
r iow
This f
lo
di
p in its m:
-yaons,
r
~~nv* r
tional C(
or conch
the tour
witted t
governor
liar]
It was
in the P(
of our o'
not an a'
constitu,
with the
two COUI
Brac?
The b'
dispute
Indeed,
defend u
great cal:
others, 0
involves
Rutl.
that in a
ernment
Isaac
this bill
to the e:
to carry
for an in,
between
Varic
motion
pp. 26
e rest
The 1
1799, b
30, 179
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I was
3d by
w any
hereof,
=or the
tured,
Y.
,to
)on
rn-
ing
,he
on
PROHIBITING CORRESPONDENCE WITH A FOREIGN GOVERNMENT.
Pinckney said that a 9
grave evil existed which it was wise f
ndions to prepare against:
or all
This evil is no less than an endeavor on the part of one gove
Le diplomatic'skill , to overset all the governments whi
went b
by means
10 its mad career It i b
h of
d
c
ecom
e necessary, nbons, to guard against e this eve, and to therefore, for us innot concur with.the
Fm
Cer. Upon this footing, Oppose it by such berssmasmare with hinoour
the ll arri
our
nve . menses had
o 0 er
h
a
eady b
een
t *exerienced which make such be la eecd' if no
If an individual goes forward to a foreign
Willi] concerns any sen
,
over
ibl
e
g
s
nment t
e goi
o
m
n
conclude that he is the agent
vernment must either laugh at such negotate a man as ma]
os.
coup of a deep-rooted
from
h
pitted ado w
ich he comes. And certainly no pindividal oueh Veto be ent of
act with
t of his countryimpunity which might throw so great a co
th 6 tted to
t
p
n
m
t u
pone
Harper said:
t "h the as this intent which constituted the essence of the offense; an intent to interfer
Political relations of this country with
forei
our Gover
e
nment
* * nations t d
. * to, oroefeat the measures
titan accidental conversation It this interference, this intermeddl'
which
th
f
e o
Mg
fense required, that orbid The bill includes, in
h1
the functions of
order to
should be done with an intent to interfere
government , and intermeddle with the political relations of the
he Politica
Brace said:
The bill Proposes to
~pute between th
e
eed and any of these foreign Governcontroversy o*
ted us
against Part of our defense which is above all others necess
Cal
ei
gu
esd
e,a wh at hln
lvd
f an oe* Othersnirretrieas aready brought upo this
country
~j~ g deepest dye. * * vable ruin. try
o a whole nation and puts at hasahrd everything of an This crime u3, at it
offense of this kind is tha
Ything we hold dear
Rutledge said
.
-
na1l well-constituted Governments it is a fundamental principle
tshould possess exclusively the power of carryin
that
Gov-
on f ~8ae P
g
arkidh oreign
lti
er sa tat- reaons.
.
.. e ea founded on the principle that
ecuti
th
e
ve peoplfh
e o te United States have given ent
ate 4~a on all foreignarellaat onsand tthat it is n gthere organ foreign Governments and
ten the to undertake to
V -A two Governments, that power
gn power on any dispute
moo 'ts motions to amend the bill in unessential ways including
,pp 26~9 l nit its operation to one
,
year werd fl
,e mae and defeated
682); and the bill was, finally passed in the House of
entatives January
ee _l7, 1799,
by 17 a 9bill was introduced in the Sente, and of 58 to 36 (Jp. 2686). y
091assed on ' bS a vote of 18 to 2. It was signed and b cae a nuar 25,
1~g9 (1 Stat. 613). , January
LEMENTS OF THE CRIME.
~~1)TTh
~Ose ctipesfmade criminal by the statut f
Witho Ions forbidden to United States citizens are:
l~1 _ ec ut the permission or authority of.the Government;
tly or indirectly;
e all into two classes:
n%01 In (2 ormed by Unite States citizens wherever resident
rtes fg; ) those performed by a person resident in the United
ether alien or citizen.
, w e m,
THE E
a
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or, written corresponaence oy a unitea gates cirazeu win any foreign ttovernm
any officer or agent thereof;
measures or conduct of an
for
th
i
fl
i
y
uence
e
n
e
gn Gov
gel With an intent to
or any officer or agent thereof in relation to any disputes or controversies wle ,g
Or-
(f) With an intent to defeat the measures of the Government of the United States.:
(2) The actions forbidden to persons resident within the jJrlit,;;
whether alien or citizen, are: to counsel, advise or assist.il
States
,
the verbal or written correspondence, or intercourse made crirain.ra
--
g
_
a, above, ____'
The dictionaries in vogue in or about 1799 define the phrase <
Carry on: To promote, advance, or help forward; to continue; as, to carry on design; to carry. on the administration of grace; (2) to manage or prosecute; es, tq
That the President of the United States be requested to cause to be laid
xpedientney General all such papers, documents, and evidence, as he may
and which relate to any unauthorized correspondence and inter-
nea ed on by Jared Ingersoll, William Rawle, Joseph B. McKean, P. S.
and Edward Livingston, with the Government of Spain, or with the
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agents thereof, with an intent to influence the measures and conduct of try
ment of Spain, or to defeat the measures of the Government of the Uni "
in-relation to certain disputes and controversies between the said Governnte>
Resolved, That, if in the opinion of the Attorney General, such papers, d
and evidence, or such other evidence as may be presumed, from any that is
criminis, shall be deemed sufficient to warrant a prosecution of the aforesai
or either of them, that the President of the United States be and hereby is, p
to instruct the proper law officer to commence a prosecution, at such tjxnegaa
e such manner as he may judge expedient, against Jared Ingersoll, William ~d for
Joseph B. McKean, P. S.' Dupou;eau, and Edward Livingston, or either of
on Tee act, entitled "An act for the punishment of certain crimes therein spec ~'
And that he be requested to furnish the attorney on the part of the United s
for the purpose of car n on said prosecution, with such papers,.document t
evidence, from the Executive Department of the Government, as he may
expedient and necessary. ee0
A motion was made by Mr. White, that it be
Resolved, That the Senate will take no further order on the-report made to the
respecting the opinions of certain lawyers, relating to the convention between
United States and His Catholic Majesty; the Senate not considering it within ,
province of their duty to do so, and that the injunction of secrecy upon the same be
taken off.
On motion,
Ordered, That the consideration of this resolution be postponed to the first Mon '
in November next. Q.
of American Diplomacy, 229). -7
The only other instances in which the statute has been utilized an
cited b
Moore (Se
631)
f
ll
y
c
as
o
ows:
., The last clause of the statute was appealed to by Mr
Seward in 1861 t
.
o stop
, a,
taro proceedings of Mr. Bunch, British consul at Charleston, S. C., in urging the'
.
British Government to recognize Confederate independence. (Bernard's Neutrality;
of Great Britain, 185, and infra
Sec. 700
)
,
.
See, in relation to the Sackville case, and the "Murchison correspondence." the
n---- a__.
report of Mr Ravard Secretar
of state. t
ah
y
e
o
Ac
com%
sec. 5
Will c
accept
to ser"
and tl
some
to be
The
act of
which
On
Washi
net, A
to use
embro
taro a
subjec
deeme
withoi
his hot
At thi
drafter
drawn
April :
United
faith t
belligei
all acts
to coil
nations
Whit
trality
commi
to decl
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TORY AND SCOPE OF SECTION 9 OF TEE FEDERAL RENAL COD
E
th
ct, or peo le, in war, by land or by sea, against any prince, State ecolony, district, colony
or,:people, with whom the United States are at. peace, shall he fined than
~-aothousand dollars and imprisoned not more than not more
GENERAI, CONSIDERATIONS.
A question has been presented as to the meaning of the wnrrl
~i, ommission " in Fn.7.,.... u-_ - i
cl ~~-&WV1 ule mstory and purpose of the statute
Will early show that it
was intended to alp y primarily to the
?ceeptance and exercise by United States citizens of commissions
d eve a foreign belligerent nation in some military or naval
capacity-
` can not le
all
b
g
y
'N
e a plied to any serviceenother than in
me office formally created by the foreign Governmt nt and required
V be evidenced by the official warrant t ... a _ ?
section
I of Wt of June 5, 1794 (1- Stat., 3u in 81) t he necessity for the passage of
Mich arose from the following series of events:
,VOn the outbreak of th
e war between France and England in 1793
wrote f
M
rom
ount Vernon to each member of his Cabi-
gt, April 12, 1793, that "it behooves the Government of this count
`e ever m
i
y
ry
eans
n its power to prevent the citizens thereof from
embroiling us with either of these powers by endeavoring to main-
_a strict neutrality. T therefor
, ~.__
e
that
,.. consideration that such measures as shall be
gamed most likely to effect this desirable purpose may be adopted
g out delay;" 1 and he called n Cabin t _ _
Phil
adelphia, submitting 13 questions for consideration.
meeting the famous so-called "neutrality proclamation,"
by the Attorney General
Ed
d
,
mun
Randolph ("badly
22 as Jefferson wrote), was determined upon and issued
in which it was stated that the "duty and interest of the
Ited States require that the should with sincerity and good
d
aopt and pursue a conduct fie 31._ _
and "`~`?" Un citizens "carefull to avoid
proceedings whatsoeve
11-'L Y
r w
-1 sue SUM die ositions " not to ?r i mUL1e1- Jena
ti and not to violate the law of
tio 8, upder penalty n nrose
cu
ty? w -%Y- te1-1ueu a -'neutrality proclamation," the word "neu-
omitted f
i
rom
t by express .pur
1lmittin
pose in order to avoid
d
ab
ecleghat b
p
er
e should be notw
th
a
ar
Jeffe on especially h
vln
g
04 E
, (For d's Ed u1891)r zer 0 12; Th Wrthls ltmnm o andumas 7nflhn found u1 Thy W George
llgo? den%
And d. u..~,l Writings , n8
vols. 1
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Vol. VI, letters of June 23, 29, July 14, Aug. 11, 1793.) Its ti?,
of the United States, but rather to require such line ot~ action ona
part of its citizens as would preventinternational complicati
ons.
a series of letters signed Pacificus,~ " in June and July, 1793, 11' -
object is to prevent the Nation's being responsible for acts done
citizens, without the privity or connivance of the Gove t l
rnmenm
contravention of the principle of neutrality; an object of the grea
moment to a country whose true interest lies in, the preservatio test
peace;" and later he stated in a draft for the President's anna?f
address to Congress, it was probable that designing or inconsidr.
ate persons among ourselves might from different motives embark'
enterprises contrary to the duties of a nation at peace with r,.,.:-1
at, War W1411 eaULI Vuuel ullu Vl lioouloe l'L4lliulllwwu to lrl t
for the warning conveyed by the proclamation and for preventive of
punitive action on the part of the United States.
These actions, which were deemed violative of the laws of nations
as to the obligations of a neutral power, fell, in general, into five
(a) The fitting out and equipping in our ports of American and
French privateers.
(b) The holding of prize courts in this country by French consuls,
(c) The enlisting of American citizens by the French minister.
(d) The issue of commissions by the French minister to cow.
manders of privateers, both French and American.
(e) The issue of commissions by the French minister to persons
to serve as military officers to conduct hostilities against nations
with which the United States were at peace.
The last two classes of acts were those to prevent which the con.
gressional legislation in question was directed.
As early as May 15, 1793, Jefferson (Secretary of State) wrote to
the French minister:
Our information is not perfect on the subject matter of another of these memorials,
which states that a vessel has been fitted out at Charleston, manned there, and partly
too with citizens of the United States, received a commission there to cruise against
nations at peace with us, and has taken and sent a British vessel into this port. With.
out taking all these facts for granted, we have not hesitated to express our highest dis.
approbation of the conduct of any of our citizens who may personally engage in com-
mitting hostilities at sea against any of the nations parties to the present war; to do-
clare that, if the case has happened, or that it should happen, we will exert all the
means with which the law and Constitution have armed us, to discover such offenders
and bring them to condign punishment.2
To this Genet answered, May 27, that he
believed no law existed which could deprive French citizens in the ports of the united
States of the privilege of putting their vessels in a state of defense, of taking, in time
of war, new commissions, and of serving their country by causing them to cruise Oct
of the United States on the vessels of their enemy.
I See especially a speech by R. G. Harper, giving a history of this whole affair from a Federalist stud'
1 11 "t,, C 1 L 1192 t o filar 2 1794 %
e s
e
l
ss., pp.
s o on^ress, ong., s s
point. (. nna
7 See, also, Hamilton's opinion rendered to the President, May 15, 1793. (Hamilton's Works, Vol. IV,
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;09101r
be?
0we
To th
At all t
The office:
countries:
ing W
moons.
witted in
Vessels in
founded I.
e%P 1tec
coueldere
The
serious
and 18.
Court t
Hamilt.
July 18
The w:
transacts(
difficulty
for their
& on the
give ea cc
Tittle ana
barraeam
if he fou
Judges of
us agalm
respect o
as could
ion, Wht
question"
have air-
out such
To ti
decide
We are
are solici
easy and
further d
decide it
Was
to prey
him to
replied
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rrrurnlllil~t, corR1,., ,
~~ ua v> o> WI TIr P~ F..L d .
A FQREI(,I
Ile, t;(1F1s'Ri\ ~f1.\ e i jY .
Fat crl; Juut~ 5. 1793: T. 1
amhnrii ? renting rniiitar
than th
i
C01~tti
e
r
sion within the
trhenKranted ow ;
to them n is an 'nfrin united
sove
tltevowe their own Citizens to~eaen t on their
states by any N't 190
count retorted. them to rigutY, and t hlduties
t1 To this; Genet d.o _ acts ts Contrary. y to to he duties
ice and it is 'n virtuue of them to th m'in have
Fr,a b_ en delivered to on,
.eun*_
8 as an -T-'
h
- Limes ,t in t71e like "" clrcuge of Fr that aria the e been
dered but44 ante o ty t ves
rrepc as an ac , that these ese meot b
of consular admire sttratio ;,that their ns have bee
a subsequent letter of J ration and distribution can
not be
Of`IIBlltra~it not of sovereignty
iris 17
J
~,
efferso
,w
eferring to another
t i n wrote that it
tition Of
r
hat Wh ich was thenfraction
the '
~~atetl not merely on th subject lect of m
~ ed the territor &i1gle fact of th
Y letter of the 5th
Y of
e
anoth bh
nstaut
Theer,ut on the aggregate ofmt et facts Of wa wich animad
questions relating to _ Y one
Eli, T. na _
consideration ut1-"Ly became so
the Pside
nume
at a Cabi
net
rousnd
ntl
to ask the meeting between Jul
resoved a express their opinion.
12
Justices
f
ton t
o
o whih a lit
thS
c s?nse . Wy 18, drafted b added. of 21 questions uPd
y Jefferson 8 more. The letter drafted b
The war which has
' was as follows: the oour~
#;-- taken ply
within
our
Y &0 f pOrM and h'mong the Powers of ,Euio
granter import an to the on which 9u S bons Ple Produces frequent
ble
solution on the cons tr Peace of U arise of able
~!`tbeouti f flanduction of o Th COnsidconsiderable
izan c o. and are often lir tieabBu on the laws of questions de nd
ie
:.an ir>a? them to fl,o P esented ?ra _ natu,b a -Pe
%?l'& & difficult t ?`y hmctlons of the ? country , yet their deWalch i
u not
and hi
w them
si
mself fe
Th PE c on
re toeresiden ould the re fore bemsion much em_
i
nsttenoissedangerous to the lf fr Court eef?the U S hie thiB description to the much relieved
t of all
or a?ald be oiled inIle therefo a asked ~os. and
their ae nt subject Would sec uu ee th.
T?0ns7 if
and uouc ma, with c++mon, to know the first uch of th-- Lue
e ju
a~ dY cecurred may, to Ypresent of the!; be ava In iled of their aPlace d their oppln-
h, any cllcumetancy soon occur from vice the abstract dvice on these
0 eB might, in their which the will q~iD s which
y
file
th
t~
o
,
on fbi
e ]usti
ei
cesord thems strke
to pronounce O>;
,dB in the a sea replied' July 20 th
at
C6 to*
Can pleased air, Ce of some of their numthey felt a reluetan
d tour to c~o whatev every opportunity of ber, but saying:
ble y naY be in our powanlfesting' our respect for
e it. u de Y, we will ?ulsejfmedia
aetely resumecountry_ if Lim numstrati
o
Lon Wrote ~? ,rue question, and
to.aske CO but athat gain, J ~ 23, s to '
ed: their counselstill. circumstenceea whe did not desire
i
e
x
sted, and on August 8, the us ced Uie D' sue
ba`'e ~>~dered
6~cre}, of State on the 18th of in a letter written b
-Y the 64-2-2 het month, {regmd8 the ]iaee
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 18',.? p?$OHIBITI G4'CO$BESPUNfDEATCE::WIVE A Fk}BEIOI
meh.?-W
s~..
the propriety of our extra-judicially deciding the questions siloed tou
partments for opinions, seems to have been purposely as well as expresal lire
y
the exec Live de
artments
p
.
ietration, but we derive consolation~from the reflection that your judgment will
every obstacle to the preservation of the rights, peace, and dignity of the
Jefferson had written to Madison, August 3, that the judges
not agree, I believe, to give opinions," and, on August 11, that
tions which have.arisen on the law of nations. They declined being coneulte ques.
l
l
l
k
h
i
f
d
h
a
ar
y to t
now, suc
quest
ons are re
erre
regu
England, you
e Judge of Admiryl
[Edmund Randol p h
Attorney General if we could not
I asked E
R
~?
.
,
prepare s
:
for Congress to appoint a board or some other body of advice for the Executive on m
this would be to make him the arbiter of the line of conduct for the United g
n nations
towards forei
g
.
Meanwhile the question had arisen in the Federal courts whethe
r
in the absence of any statute, persons could be punished who offend
against the laws of nations, particularly in engaging in privates
or enlisting against countries with which the United States were agt,
peace. The first case was that of the indictment in the circuit court
in Philadelphia on July 27, 1793, of Gideon Henfield, who had served
as a prize master, an officer of a _privateer fitted out in Charleston
under a commission issued from France' The case was prosecuted
by the Attorney General, Randolph, and United States Attorney
William Rawle, against Pierre Duponceau,. Jared. Ingersoll, and John
Sergeant. The court, consisting of two Justices of the Supreme
Court-Wilson and Iredell, and District Judge Peters-charged the
jury that "the acts of hostility committed, * * are an offense
against this country and punishable by its laws," being in violation of
the laws of nations and of existing treaties, and in spite of the absence
of any statute. making the acts penal. A similar doctrine had been
upheld by Chief Justice Jay in a charge to the grand jury in the
preceding May.
Considerable doubt was felt in the United States as to the validity
of this decision, and the desirability of legislative action by Con.
gress became evident. Jefferson, as early. as July 14, 1793, wrote to
Monroe that:
I confess I think myself that the case is punishable and that, if found otherwise,
Congress ought to make it so, or we shall be made parties in every maritime war in
which the piratical spirit of the banditti in our ports can engage.
The actions of the French minister and consuls still continued, and
the Cabinet finally determined to write to our minister in France,
Gouverneur Morris, to lay the matter before the French Government
and sugggest recall. - In his letter to Morris of August 16, 1793, Jeffer-
son referred to Genet, who "arms vessels levies men, gives com-
missions of war * * * when they [the Government] forbid v&
sels to be fitted in their ports for *cruising on nations with whom they.
the law 0
diced P
lyg eaclu
its temt.
Punish.
42ty to
we hold i
mitng e
on S,
Ethel
ments j
? omission
]jstmen
boat?ilitl
direct 0
the exe?
Gene
ommic
on Uni
English
zens to
to be o:
As el
tion wi
by him
out of
dition
officers
putting
bun
with tb
Undl
1793, 1
trality
reasons
lation 1
It rest
procedur
juriedicti,
on princi
Where
within th
within th
may hav(
too early
With
of milit
evident
seeding
lnittee
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 dges
anat
dee-
d to
'ern '
?unt
ted
will
1
at
rt
~n
d
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PROHIBITING CORRESPONDENCE WITH A FOREIGN GOVERNMENT. 19
are at peace, he commissions them further: to fit and'
cruise," and stated
'Hr. Gepet asserts his right of arming in
0it i?te
and llave no our
right to restrain him or pnish th and of enlisting our citizens, and
fhre laW that
nations, founded on the general sense eemd. u his
dmoed' "f from the most a htened sage o mankind, estion under
r s 1g troops appproved wri su have prat
they' ht of n pbeing one of al tare the subject that
eaQiueively to the nation itself, no fo a rights of sovereignty and a
,W 'tory without its consent reign power or person can le PPert thin
Wished; that if the its , and he who d ~'Y men ithin
tad States have a right to refuseythe ghtfully and severely