Thomas Jefferson Sets Landmark Constitutional Precedent in U.S. Foreign Policy

As Secretary of State, He Orders Attorney General Randolph to Apply the Law of Nations in the New Republic for the First Time.

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An uncommon and important letter from the Secretary of State to the Attorney General on a matter of high diplomatic importance

He directs the Attorney General: Establish “the Truth of the Fact”

 

For the first Administration, with Washington as President and Jefferson as...

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Thomas Jefferson Sets Landmark Constitutional Precedent in U.S. Foreign Policy

As Secretary of State, He Orders Attorney General Randolph to Apply the Law of Nations in the New Republic for the First Time.

An uncommon and important letter from the Secretary of State to the Attorney General on a matter of high diplomatic importance

He directs the Attorney General: Establish “the Truth of the Fact”

 

For the first Administration, with Washington as President and Jefferson as Secretary of State, international relations was of the highest importance.  The U.S. Constitution grants the President the right to receive foreign ambassadors and holds that “treaties made…under the authority of the United States, shall be the supreme law of the land.” It also instructs the President to “take care that the laws be faithfully executed.” It does not, however, define the extent and limits of the President’s authority in relation to foreign policy, nor offer guidance on how to conduct it.

Yet Washington and Jefferson took office just three months before the French Revolution occurred.  By early 1792 the European nations were at war. The U.S. was quickly threatened with being engulfed into the spiraling wars. This confronted President Washington and his Secretary of State, Thomas Jefferson, with a series of challenges, one of which was the Constitutional issue of the extent of executive of power in matters involving other nations. Without clear support from the Constitution’s text, Washington recognized the new French revolutionary government, received its controversial foreign minister and requested his recall, in 1793 issued a Neutrality Proclamation declaring that United States was impartial in France’s war against Great Britain and its allies, and then initiated prosecutions against American citizens who broke this neutrality.

There was no world tribunal in his day, and the power of the Supreme Court in international cases was limited. Principles were laid down and decisions made by the Department of State; and in his capacity as Secretary, Jefferson ruled on a large number of questions of an international nature. His was an influential position and he led the country through its first foray as an independent world entity.  Since Washington and his Secretary of State Jefferson were setting precedent with each major diplomatic action, what was their inspiration for their actions? What authority did they claim?

A serious crisis which Washington and Jefferson faced sheds light on this. The Dutch were the first non-belligerent European power to recognize the United States.  Our relationship with that country was paramount.  Pieter Johan Van Berckel became the first Dutch ambassador to the United States in 1783, and held that post during America’s first Presidential Administration. On June 25, 1792, a Pennsylvania constable named Meeker entered Van Berckel’s premise and served a lawsuit on an American employee of the embassy. In his presence the employee then paid the constable £5, the amount owed. Van Berckel immediately protested this invasion of his diplomatic residence by lodging a complaint with Secretary of State Jefferson, who quickly sent it to Attorney General Edmund Randolph.

Thus arose the first question of the extent of the rights of foreign diplomats in the United States under the Constitution. In determining this issue, Randolph knew well that, as with the other actions relating to foreign nations, the Constitution was silent. There was, however, a statute passed by Congress in 1790 that provided immunity for diplomats, their families and servants, as well as for lower ranking diplomatic mission personnel. The Constitutionality of the law had neither been questioned nor tested, so that determination would obviously be involved in this case. But should that law not cover the situation, what else would be relevant to decide this diplomatic tempest on American soil?

The Law of Nations was a subject of great import in the late 18th and early 19th centuries, when it was seen as defining the underlying principles of right and justice among nations. Noted 18th century Swiss author Emmerich de Vattel, whose authoritative book was The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, wrote that is was “the science of the rights which exist between Nations or States, and of the obligations corresponding to these rights.” In essence, it was international common law. The U.S. Constitution makes reference to the term, delegating the power to Congress to “define and punish … offenses against the Law of Nations”. It gives no further clue as to whether the Law of Nations applied beyond that. The jurist Blacksone, in his Commentaries, held that included in the Law of Nations was “Protection of foreign embassies, ambassadors, and diplomats.”

This Law of Nations concept was warmly embraced by our Founding Fathers and would help to guide official US policy. Among those citing Vattel and the Law of Nations were Thomas Jefferson, Benjamin Franklin, John Adams, James Wilson, Alexander Hamilton, James Madison, John Jay, and John Marshall. Add to that list George Washington, who discussed these authorities in cabinet meetings and who borrowed copy of “Law of Nations” from the New York Society Library in 1789 (he took it to Philadelphia when the capital moved there, and never did return it). So the Constitutional question was, did this international Law of Nations bind the United States? It was this crucial principle that Jefferson aimed to answer with this Van Berckel case.

When he got Jefferson’s letter, Attorney General Randolph rendered an important opinion. It is contained in the book “Official Opinions of the Attorneys General of the United States,” and takes the form of a letter to Jefferson, June 26, 1792. It was the first official U.S. government statement that the broad law of nations applied in the United States. It was also the first Attorney General’s opinion to deal with the immunity of foreign diplomats to the laws of the United States, and just the second related to diplomatic or foreign affairs. In it, Randolph found that though existing laws did not apply, the United States accepted the Law of Nations, so if the act was improper under the Law of Nations, the offender might be prosecuted. Randolph found that, “The law of nations, although not specifically adopted by the Constitution, is essentially part of the law of the land. Its obligation commences and runs with the existence of a nation…” His opinion did not decide the facts of the case, nor rule on what specifically ought to be done to manage this diplomatic incident.

Jefferson wrote to Van Berckel on July 2,1792, saying the Dutch embassy should have been inviolate, and sending him Randolph’s opinion. He then offered Van Berckel two concrete options on actions that could be taken: the first, under existing statute, would be hard to sustain, he said; while the second, under the law of nations, would be the better avenue. “It was with extreme concern that I learned from your letter of June the 25th, that a violation of the protection, due to you as the representative of your nation had been committed, by an officer of this State entering your house and serving therein a process on one of your servants. There could be no question but that this was a breach of privilege; the only one was, how it was to be punished. To ascertain this, I referred your letter to the Attorney General, whose answer I have the honor to enclose you…You will be so good as to decide in which of these two ways you would choose the proceeding should be; if the latter, I will immediately take measures for having the offender prosecuted according to law.”

Van Berckel responded to Jefferson with his choice, and Jefferson notified Randolph and instructed him to proceed with what would be the very first Law of Nations application and an important American judicial and diplomatic precedent. This is that very letter.

Autograph Letter Signed, Philadelphia, July 12, 1792, to Attorney General Randolph, stating that a prosecution under the law of nations should be instituted. “Mr. Van Berckel, the resident for the United Netherlands with this government, having, as you will perceive by the copies of his letters inclosed, complained of an infraction of the law of nations by an officer of this state, entering his house and therein serving a process, I take the liberty of putting into your hands the inclosed copies with a desire that you will proceed in such due course of law as you shall think best for establishing the truth of the fact, & if established, for subjecting the offender to such punishment as the law directs.” The address leaf stating “The Attorney General of the United States” is still present.  This is the only letter of Jefferson to Randolph during the Washington Administration that we can find having been offered for sale.

So President Washington and Secretary of State Jefferson saw their Constitutional duty “to take care that the laws are faithfully executed”, and applied it to their decision that the Law of Nations was part of the law of the land, to create the basis for an assertion of the broad powers of the American Executive to conduct an extensive foreign policy. In other words, rather than exercising discretionary power, Jefferson acted on the authority of the Take Care Clause, and this Law of Nations case was the situation that he used to justify his actions. This has had major implications regarding executive power, foreign affairs and international law. Presidents ever since have followed Jefferson’s precedent-making lead in assuming powers to interact with foreign nations. And to the extent that international law remains part of national law, a subject much debated today, the actions of Jefferson and Washington provide an important precedent for the role of the U.S. Chief Executives.

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