Posted by: Democratic Thinker | June 26, 2010

History of the Neutrality Act

Foreign Affairs


 

Charles Warren, Assistant Attorney General, wrote a treatise (1917) on the history of the the Logan Act (currently 18 USC §953) which forbids citizens, other than those under authority of the Executive Branch, from corresponding with foreign governments; and on one of the Neutrality Laws (currently 18 USC §958) which forbids American citizens from accepting commissions from foreign governments.

HISTORY OF LAWS PROHIBITING CORRESPONDENCE WITH A FOREIGN GOVERNMENT AND ACCEPTANCE OF A COMMISSION

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MEMORANDUM ON THE HISTORY AND SCOPE OF THE LAWS PROHIBITING CORRESPONDENCE WITH A FOREIGN GOVERNMENT, AND ACCEPTANCE OF A COMMISSION TO SERVE A FOREIGN STATE IN WAR.

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BY CHARLES WARREN, Assistant Attorney General.

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Logan Act, § 5 — Neutrality Laws, § 9 —

HISTORY AND SCOPE OF SECTION 9 OF THE FEDERAL PENAL CODE.

SEC. 9. Every citizen of the United States who, within the territory or jurisdiction thereof, accepts and exercises a commission to serve a foreign prince, State, colony, district, or people, in war, by land or by sea, against any prince, State, colony, district, or people, with whom the United States are at peace, shall be fined not more than two thousand dollars and imprisoned not more than three years.

GENERAL CONSIDERATIONS.

A question has been presented as to the meaning of the word “commission” in Federal Penal Code, section 9 (formerly Rev. Stat., sec. 5281). A review of the history and purpose of the statute will clearly show that it was intended to apply primarily to the acceptance and exercise by United States citizens of commissions to serve a foreign belligerent nation in some military or naval capacity; and that it can not legally be applied to any service other than in some office formally created by the foreign Government and required to be evidenced by the official warrant termed a “commission.”

The original act reproduced in this section 9 is section 1 of the act of June 5, 1794 (1 Stat., 381), the necessity for the passage of which arose from the following series of events:

On the outbreak of the war between France and England in 1793 Washington wrote from Mount Vernon to each member of his Cabinet, April 12, 1793, that “it behooves the Government of this country to use every means in its power to prevent the citizens thereof from embroiling us with either of these powers by endeavoring to maintain a strict neutrality. I therefore require that you will give the subject matter mature consideration that such measures as shall be deemed most likely to effect this desirable purpose may be adopted without delay;”* and he called a Cabinet meeting for April 19 at his house in Philadelphia, submitting 13 questions for consideration. At this meeting the famous so-called “neutrality proclamation,” drafted by the Attorney General, Edmund Randolph (“badly drawn,” as Jefferson wrote), was determined upon and issued April 22, in which it was stated that the “duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward belligerent powers”; and it warned all citizens “carefully to avoid all acts and proceedings whatsoever which may in any manner tend to contravene such dispositions,” and not to violate the law of nations, under penalty of prosecution.

* The letters and documents referred to in this memorandum will be found in The Writings of George Washington (Ford’s Ed., 1891), vol. 12; The Writings of Thomas Jefferson (Ford’s Ed., 1895), vols. 1, 6; The Correspondence and Public Papers of John Jay (IS91), vol. 3; The Works of Alexander Hamilton (1861), vol. 2; American State Papers, Foreign Relations, vol. 1.

While always termed a “neutrality proclamation,” the word “neutrality” was omitted from it by express purpose, in order to avoid committing the Cabinet to the position that the President had power to declare that there should be no war—Jefferson especially having opposed the use of the word.* (See Writings of Thomas Jefferson, Vol. VI, letters of June 23, 29, July 14, Aug. 11, 1793.) Its purpose was therefore not to serve as an announcement of the political status of the United States, but rather to require such line of action on the part of its citizens as would prevent international complications. In a series of letters signed “Pacificus,” in June and July, 1793, Hamilton defended the proclamation on the very ground that: “Its main object is to prevent the Nation’s being responsible for acts done by its citizens, without the privity or connivance of the Government, in contravention of the principle of neutrality; an object of the greatest moment to a country whose true interest lies in the preservation of peace;” and later he stated in a draft for the President’s annual address to Congress, “it was probable that designing or inconsiderate persons among ourselves might from different motives embark in enterprises contrary to the duties of a nation at peace with nations at war with each other * * * and of course calculated to invite and to produce reprisals and hostilities.”

* See especially a speech by R. G. Harper, giving a history of this whole affair from a Federalist standpoint. (Annals of Congress, 5th Cong., 1st sess., pp. 1192 et seq. Mar. 2, 1798.)

The actions of the new French minister, Genet, and of United States citizens favoring the French cause, soon showed the necessity for the warning conveyed by the proclamation and for preventive or 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 classes:

(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 commanders 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 congressional 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, maimed 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. Without taking all these facts for granted, we have not hesitated to express our highest disapprobation of the conduct of any of our citizens who may personally engage in committing hostilities at sea against any of the nations parties to the present war; to declare 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.*

* See, also, Hamilton’s opinion rendered to the President, May 15, 1793. [Hamilton’s Works, Vol. IV, 399.]

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 out of the United States on the vessels of their enemy.

Jefferson replied, June 5, 1793:

* * * the granting military commissions within the United States by any other authority than their own is an infringement on their soverignty, and particularly so when granted to their own citizens to lead them to commit acts contrary to the duties they owe their own country.

To this, Genet retorted, June 8:

At all times, like commissions, during a war, have been delivered to our vessels. The officers of the marine transmit them to them, in France, and the consuls, in foreign countries; and it is in virtue of this usage, which no power has ever thought of regarding as an act of sovereignty, that the executive council has sent here such commissions. * * * It results from this note, * * * that the commissions transmitted in virtue of the Executive Council of the Republic of France to the French vessels in the ports of the United States are merely an authority to arm themselves, founded upon the natural right and usage of France, that these commissions have been expedited at all times, in the like circumstances; that their distribution can not be considered but as an act of consular administration, and not of sovereignty.

In a subsequent letter of June 17, referring to another infraction of neutrality, Jefferson wrote that it was—

a repetition of that which was the subject of my letter of the 5th instant which animadverted not merely on the single fact of the granting commissions of war by one nation within the territory of another, but on the aggregate of the facts.

The questions relating to neutrality became so numerous and serious that, after consideration at a Cabinet meeting between July 12 and 18, the President resolved to ask the Justices of the Supreme Court to express their opinions on a list of 21 questions drafted by Hamilton, to which Jefferson added 8 more. The letter to the court July 18, drafted by Jefferson, was as follows:

The war which has taken place among the powers of Europe produces frequent transactions within our ports and limits, on which questions arise of considerable difficulty, & of greater importance to the peace of the U. S. These questions depend for their solution on the construction of our treaties, on the laws of nature & nations, & on the laws of the land; and are often presented under circumstances which do not give a cognizance of them to the tribunals of the country. Yet their decision is so little analogous to the ordinary functions of the Executive, as to occasion much embarrassment & difficulty to them. The President would therefore be much relieved if he found himself free to refer questions of this description to the opinions of the Judges of the Supreme Court of the U. S. whose knowledge of the subject would secure us against errors dangerous to the peace of the U. S. and their authority ensure the respect of all parties. He has therefore asked the attendance of such of the judges as could be collected in time for the occasion, to know, in the first place, their opinion, Whether the public may, with propriety, be availed of their advice on these questions? and if they may, to present, for their advice, the abstract questions which have already occurred, or may soon occur, from which they will themselves strike out such as any circumstances might, in their opinion forbid them to pronounce on.

To this, the justices replied, July 20, that they felt a reluctance to decide in the absence of some of their number, but saying:

We are pleased, sir, with every opportunity of manifesting our respect for you, and are solicitous to do whatever may be in our power to render your administration as easy and agreeable to yourself as it is to our country. If circumstances should forbid further delay, we will immediately resume the consideration of the question, and decide it.

Washington wrote again, July 23, stating that he did not desire to press the court, but that the circumstances which had induced him to ask their counsel still existed, and on August 8, the justices replied:

We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on the 18th of last month, [regarding] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly limited to the executive departments.

We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.

Jefferson had written to Madison, August 3, that the judges “will not agree, I believe, to give opinions,” and, on August 11, that

I mentioned to you that we had convened the judges to consult them on the questions which have arisen on the law of nations. They declined being consulted. In England, you know, such questions are referred regularly to the Judge of Admiralty. I asked E. R. [Edmund Randolph, Attorney General] it we could not prepare a bill for Congress to appoint a board or some other body of advice for the Executive on such questions. He said he should propose to annex it to his office. In plain language, this would be to make him the arbiter of the line of conduct for the United States towards foreign nations.

Meanwhile the question had arisen in the Federal courts whether, in the absence of any statute, persons could be punished who offended against the laws of nations, particularly in engaging in privateering or enlisting against countries with which the United States were at 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.

* For form of the commissions issued, see Wharton’s State Trials, p. 51, note. As to Henfield’s case see V. 8. Gazette, June 5, July 31, 1793; Hamilton’s Works, Vol. IV, 451.

Considerable doubt was felt in the United States as to the validity of this decision, and the desirability of legislative action by Congress 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 suggest recall. In his letter to Morris of August 16, 1793, Jefferson referred to Genet, who “arms vessels, levies men, gives commissions of war * * * when they [the Government] forbid vessels to be fitted in their ports for cruising on nations with whom they are at peace, he commissions them to fit and cruise,” and stated further:

Mr. Genet asserts his right of arming in our ports and of enlisting our citizens, and that we have no right to restrain him or punish them. Examining this question under the law of nations, founded on the general sense and usage of mankind, we have produced proof from the most enlightened and approved writers on the subject that * * * the right of raising troops being one of the rights of sovereignty and appertaining exclusively to the nation itself, no foreign power or person can levy men within its territory without its consent; and he who does may be rightfully and severely punished; that if the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories they are bound by the laws of neutrality to exercise that right and to prohibit such armaments and enlistments * * * we hold it certain that the law of nations and the rules of neutrality forbid our permitting either party to arm in our ports.

On September 7, 1793, Jefferson issued a circular to French consuls in the United States stating that as it appeared from their advertisements in the public papers that “they are undertaking to give commissions within the United States and to enlist or encourage the enlistment of men, natives or inhabitants of these States, to commit hostilities on nations with whom the United States are at peace, in direct opposition to the law of the land,” the President would revoke the exequatur of any consul committing any such act.

Genet did not confine his activities, however, to the granting of commissions to commanders of privateers. He actively organized, on United States soil, military expeditions against Spanish and English possessions and granted commissions to United States citizens to act as officers on these expeditions and on other expeditions to be organized on foreign soil.

As early as July 5, 1793, Jefferson records in his Anas a conversation with Genet as to a proposal that officers shall be commissioned by himself in Kentucky and Louisiana, that they shall rendezvous out of the territories of the U. S. * * * to undertake the expedition against New Orleans. * * * I told him that his enticing officers and souldiers from Kentucky to go against Spain was really putting a halter about their necks, for that they would assuredly be hung if they commenced hostilities against a nation at peace with the U. S.

Under these conditions, when Congress assembled December 3, 1793, President Washington in his address laid before it his “neutrality proclamation,” the regulations formulated under it, and the reasons for his action; and he further strongly recommended legislation by Congress:

It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure; and it will probably be found expedient to extend the legal code and the jurisdiction of the courts of the United States to many cases which, though dependent on principles already recognized, demand some further provisions.

Where individuals shall, within the United States, array themselves in hostility against any of the powers at war; or enter upon military expeditions or enterprises within the jurisdiction of the United States; or usurp and exercise judicial authority within the United States; or where the penalties on violations of the law of nations may have been indistinctly marked, or are inadequate; these offenses can not receive too early and close an attention, and require prompt and decisive remedies. * * *

Within a month the necessity of a statutory curb on the granting of military commissions to United States citizens became even more evident through the receipt by the President of a copy of the proceedings of the Legislature of South Carolina, transmitting a committee report as to the levy of armed forces by persons under foreign authority. This report stated that five named citizens of South Carolina, and others unnamed, “have received and accepted military commissions from Mr. Genet * * * authorizing them and instructions requiring them, to raise, organize, train, and conduct troops within the United States * * * to proceed into the Spanish dominions; * * * that the persons above named in pursuance of the powers vested in them by the said commissions * * * have proceeded * * * to enroll numbers of citizens of this State * * * in the service of the Republic of France.” The committee recommended that the governor issue a proclamation forbidding such acts; and also that the Attorney General prosecute such persons “for accepting or engaging to accept commissions from a foreign power to raise troops within the United States, and for going about within the States levying or attempting to levy troops, and for seducing and endeavoring to seduce the citizens of this State to enroll themselves for foreign service to commit acts of hostility against nations with whom the United States are at peace.” (American State Papers, Foreign Relations, Vol. I, p. 309.)

A proposed message by the President to Congress, transmitting this report, was drafted by Hamilton, as follows:

* * * a case has occurred, which is conceived to render further forbearance inconsistent with the dignity, and perhaps the safety of the United States. It is proved, as will be seen by papers now transmitted for the information of Congress, that this foreign agent has proceeded to the extraordinary lengths of issuing commissions in the name of the French Republic, to several of our citizens, for the purpose of raising within the two Carolinas and Georgia a large military force, with the declared design of employing them, in concert with such Indians as could be engaged in the enterprise, in an expedition against the colonies in our neighborhood, of a nation with whom the United States are at peace.

It would seem likewise, from information contained in other papers, herewith also communicated, that a similar attempt has been going on in another quarter, namely, the State of Kentucky, though the fact is not yet ascertained with the requisite authenticity.

Proceedings so unwarrantable, so derogatory to the sovereignty of the United States, go dangerous in precedent and tendency, appear to render it improper that the person chargeable with them should longer continue to exercise the functions and enjoy the privileges of a diplomatic character.

Washington, however, simply forwarded the papers to Congress, January 15, 1794, with no comment.

Genet evasively admitted that he had granted commissions.*

* See as to this, a graphic letter from Fisher Ames (then Congressman from Massachusetts) to T. Dwight, Jan. 17, 1794. (Works of Fisher Ames, Vol. I, p. 132.)

THE ACT OF 1794.

A bill drafted by Hamilton, and intended to penalize infractions of neutrality, was introduced in the Senate February 12, 1794. (Annals of Congress, 3d Cong., 1793-1795.) The very first section made it criminal to “accept or take any commission to serve a foreign prince or state in war.” The second section made criminal the enlisting and hiring of others to enlist. The third section made criminal the fitting out and arming of privateers and the issue or delivery of a commission for any such ship. The fourth was concerned with the increase of the force of any foreign warships. The fifth made criminal any military expedition from the United States. These sections, practically unchanged, constitute the present so-called Neutrality Laws of the United States. (Federal Penal Code, sees. 9-13.) It will be noted that each section dealt with a particular problem and form of violation of neutrality with which the United States Government had been confronted between May, 1793, and February, 1794. The language used by Congress is to be construed, therefore, in connection with the evils to which it was intended to apply and with the events which gave rise to the statute. The bill passed the Senate March 13 by the casting vote of the Vice President, and was introduced in the House March 14. Before the House took action, however, the necessity became still clearer for the enactment of those sections penalizing the exercising of commissions to serve a foreign state, enlisting of men for foreign service, and sending out of military expeditions from the United States.

An expedition against New Orleans had been set on foot in Kentucky under French auspices, and foreign commissions were issued to United States citizens in the fall of 1793. Spain had complained to this country, and Jefferson wrote, November 6, to the governor of Kentucky (American State Paper, Foreign Relations, Vol. I, pp. 455-457):

I have received from the representatives of Spain here, information, of which the following is the substance: That on the 2d of October four Frenchmen, of the names of La Chaise, Charles Delpeau, Mathurin, and Gignoux, set out in the stage from Philadelphia to Kentucky; that they were authorized by the minister of France here to excite and engage as many as they could, whether of our citizens or others, on the road or within your Government, or anywhere else, to undertake an expedition against the Spanish settlements within our neighborhood, and, in event, to descend the Ohio and Mississippi and attack New Orleans, where they expected some naval cooperation; that they were furnished with money for these purposes, and with blank commissions, to be filled up at their discretion. I enclose you the description of these four persons in the very words in which it has been communicated to me.

Having laid this information before the President of the United States, I have it in charge from him to desire your particular attention to these persons, that they may not be permitted to excite within our territories, or carry from thence, any hostilities into the territory of Spain. For this purpose, it is more desirable that those peaceable means of coercion should be used which have been provided by the laws, such as the binding to the good behavior these or any other persons exciting or engaging in these unlawful enterprises, indicting them, or resorting to such other legal process as those learned in the laws of your State may desire. Where these fail, or are inadequate, a suppression by the militia of the State has been ordered and practised in the other States. I hope that the citizens of Kentucky will not be decoyed into any participation in these illegal enterprises against the peace of their country, by any effect they may expect from them on the navigation of the Mississippi.

The governor replied January 13, 1794, doubting whether there was any authority to restrain citizens, saying:

I have great doubts, even if they do attempt to carry their plan into execution (provided they manage their business with prudence), whether there is any legal authority to restrain or punish them, at least before they have actually accomplished it: for, if it is lawful for any one citizen of this State to leave it, it is equally so for any number of them to do it. It is also lawful for them to carry with them any quantity of provisions, arms, and ammunition; and, if the act is lawful in itself, there is nothing but the particular intention with which it is done that can possibly make it unlawful; but I know of no law which inflicts a punishment on intention, only, or any criterion by which to decide what would be sufficient evidence of that intention, if it was a proper subject of legal censure.

The new Secretary of State, Edmund Randolph, replied March 29, 1794, stating:

* * * That foreigners should meddle in the affairs of a Government where they happen to be, has scarcely even been tolerated, and is often severely punished. That foreigners should point the force of a nation, against its will, to objects of hostility, is an invasion of its dignity, its tranquillity, and even safety. Upon no principle can the individuals on whom such guilt shall be fixed, bid the Government to wait, as your excellency would seem to suppose, until their numbers shall defy the ordinary animadversions of law; and until they are incapable of being subdued, but by force of arms. To prevent the extremity of crimes, is wise and humane, and steps of precaution have, therefore, been found in the laws of most societies.

Nor is this offense of foreigners expiated or lessened by an appeal to a presumed right in the citizens of Kentucky to enlist under such banners without the approbation at their country. In a government instituted for the happiness of the whole, with a clear delineation of the channels in which the authority derived from them must flow, can a part only of the citizens wrest the sword from the hands of those magistrates whom the whole have invested with the direction of the military power? They may. it is true, leave their country; they may take arms and provisions with them; but. if these acts be done, not on the ground of mere personal liberty, but of being retained in a foreign service, for purposes of enmity against other people, satisfaction will be demanded, and the State to which they belong can not connive at their conduct without hazarding a rupture.

The division of opinion which had thus arisen between the governor and the Secretary of State as to legal authority to prevent the hostile actions caused the President to lay the whole correspondence before Congress, May 20, as evidence of the need of legislation. The House of Representatives responded by taking up Hamilton’s bill for debate, May 31, June 2;* and the bill passed June 2 and became law June 5, 1794. Upon its passage, Hamilton wrote to Jay, June 4, 1794:

* See opposition of Monroe in the Senate and Madison in the House (Annals of Cong. 1793-1796, pp.67, 757). As to the objects of this act of 1794, see Marshall, C. J., in Santissima Trinidad, 1 Brock. Rep. 488.

You will learn with satisfaction that the bill which had passed the Senate before you left, for punishing and preventing practices contrary to neutrality has become a law. I now consider the Executive and the judiciary as armed with adequate means for repressing the fitting out of privateers, the taking of commissions, or enlisting in foreign service, the unauthorized undertaking of military expeditions, etc.*

* In the debate in Congress on the renewal of the act of 1794 by the act of Mar. 2, 1797, there is a discussion of the law as to acceptance of commissions. [See Annals of Congress, 4th Cong., 2d sess., pp. 2228 et seq.]

The wording of the first section of the statute (now Federal Penal Code, sec. 9) was probably derived and copied in part from an English statute of 1756 (29 George II, c. 17), which made it a felony for any British subject, without license, to “take or accept of any military commission, or otherwise enter into the military service of the French King as a commissioned or noncommissioned officer.”

GENERAL PURPOSE OF THE ACT.

There has been but one reported indictment in the courts under this statute; in 1797, Isaac Williams, being tried in the district court in Connecticut for accepting a commission under the French Republic. (See 2 Cranch., 82, note, and Wharton’s State Trials, p. 652.) At the time of the Canadian disturbances in 1838, however, Judge McLean, in a charge to the grand jury in the circuit court in Ohio, construed the law as follows:

The offense in the first section consists in “accepting and exercising a commission” to carry on war against any people or State with whom we are at peace.

The word “commission” in the statute is used in the same sense as in Article II, section 2, of the Constitution granting the President, power to appoint “officers of the United States * * * which shall be established by law” and “to fill up all vacancies * * * by granting commissions * * *”; and as in Article II, section 3, he “shall commission all the officers of the United States.” The commission is the “deed of appointment” to office, “the open unequivocal act” by which the appointment is “ evidenced.” (See Marbury v. Madison, 1803—1 Cranch, 137, 157, 159.)

“Commission,” in its legal sense, is used only in connection with an official office, and is not used in connection with mere employment or agency.

Thus Bouvior’s Law Dictionary defines it as:

Letters patent granted by a government under the public seal to a person appointed to an office giving him authority to perform the duties of his office. The commission is not the appointment, but only evidence of it, and as soon as it is signed and sealed vests the office in the appointee.

So, Dew v. Judges (1808—3 Hen. & Mun., 1, 43):

I take a commission to mean a warrant of office, a written authority or license issued by a person or persons, duly constituted by law for the purpose to a public officer empowering and authorizing him to execute the duties of the office to which he may be appointed.

United States v. Planter (1852—27 Fed. Cas., p. 546):

A commission grants the right to hold and discharge the duties of a certain office.

See also Scofield v. Lounsbury (1830—8 Conn., 109, 111).

Babbitt v. United States (1880—16 Ct. Cls., 202, 215).

English dictionaries in use about the time of the enactment of the statute in 1794 define “commission” as follows:

Kersey’s English Dictionary (1721):

Commission: A warrant for an office. In military affairs, the authority by which every officer acts in his post.

Fenning (1771):

Commission: * * * A warrant for the exercise of any office. Dyche (1794): Commission: * * * A warrant by which any trust is held, or an office is constituted.

Scott (1797):

Commission: * * * A warrant of office.

Johnson’s New English Dictionary (1755 Ed.):

Walker (1791) and Sheridan (1797):

Commission: * * * A warrant by which any trust is held; a warrant by which a military officer is constituted.

From the definitions supra, the history of the statute, the particular evils against which it was directed, as well as from the English act from which it was apparently taken, the meaning of the words “accept or exercise a commission to serve a foreign prince * * * in war by land or sea” becomes entirely plain. By the word “commission,” Congress intended the official warrant by which a military, naval, or other Government officer is appointed to the rank, command, post, or office held by him under a foreign Government, either of a body of men or of a privateer or other ship of war, or otherwise—the warrant under which he is to exercise the authority committed, delegated, or intrusted to him. It had no reference to a contract, or agreement of employment by a foreign Government.

Respectfully submitted.

CHARLES WARREN,

Assistant Attorney General.

October, 1915.

END.

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