Tuesday, May 22.
Alien Enemies.
On motion of Mr. Sewall, the House went into a Committee of the Whole on the bill respecting alien enemies, Mr. Dent in the chair; when the bill was read as follows:
Sec. 1. Be it enacted, &c., That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion, or predatory incursion, shall be perpetrated, attempted, or threatened, against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, denizens, citizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed, as alien enemies; and shall be further subject, with their goods and effects, to a just retaliation of any unusual severities, restraints, and confiscations, which shall be suffered by the citizens of the United States, resident within the territory of the hostile nation or government, and inflicted by their authority, previous to, or at the commencement of, any war or rupture as aforesaid, under color or pretence thereof. And the President of the United States shall be, and he is hereby, authorized, in any event as aforesaid, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, towards the aliens who shall become liable as aforesaid; the manner and degree of the restraint to which they shall be subject, and in what cases and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom, and to establish any other regulations which shall be found necessary in the premises, and for the public safety, subject, nevertheless, to the regulations which the Congress of the United States shall thereafter agree and establish.
[The second section allows to any alien enemy who shall not be chargeable with actual hostility, all the time for the disposal of his effects, and his removal from the country, which any treaty with his nation may stipulate; and the third commits the execution of the act in relation to all persons comprehended in the President's Proclamation, and to all who shall harbor them, to all the judicial and ministerial officers of the Federal and State Governments.]
The two first sections having been read, without motion for amendment,
Mr. Lyon moved to strike out the word "harbor," in the third section, which was negatived.
Mr. Macon thought the third section gave the President a very extraordinary power; it seemed that his proclamation, in all cases, was to be considered as law. He wished the chairman of the committee, who reported the bill, to give some information on the subject.
Mr. Sewall said, the gentleman from North Carolina seemed to suppose that this was a general power placed in the hands of the President, whereas his power is confined by the first section of the bill. This power, Mr. S. said, must be placed somewhere, and he believed it could not be better placed than in the President.
Mr. Lyon saw no ground for the first section of the bill, except it was to restrain the property of aliens to make satisfaction for the injuries done to our own citizens; nor should he be willing to give a power to the President which might enable him to distress innocent persons. He moved, therefore, to strike out the words "or threatened," in the first section, as he considered these words too vague to authorize the exercise of so great a power as was here given.
Mr. Macon seconded the motion.
The question was put and negatived, 44 to 39.
Mr. Harper moved to strike out the words "predatory incursion," in the first section. The power, he said, was a very extensive one, and he did not think it ought to be given except in cases of serious attack; but, after a few words in opposition to it by Mr. Sewall, and in favor of it by Mr. McDowell, he withdrew his motion, alleging that he had not rightly understood the section.
Mr. Bayard said, the last section of this bill contained a principle contrary to all our maxims of jurisprudence, viz: to provide punishment for a crime by a law to be passed after the fact is committed. Whether the crime to be punished is to amount to treason, misprision of treason, or be only a misdemeanor, is left uncertain. It was his opinion that laws could not be too definite; but it would be impossible in this case for the person committed to know what crime he had committed, or to what punishment he was liable. In order to get rid of this difficulty, he moved to strike out all the words after the word "aforesaid," at the conclusion of the last section, and to insert in lieu thereof the following words, viz: "shall be guilty of a misdemeanor, and subject to a fine not exceeding —— dollars, and be imprisoned not exceeding —— months."
Mr. Sewall acknowledged there was a good deal of uncertainty in that part of the bill moved to be struck out; but the select committee did not see any way of remedying the evil without making the law too mild in its operation. In some cases, the offence would amount to high treason, the punishment for which is death; in others, to misprision of treason, the punishment for which is imprisonment not exceeding seven years, and a fine not exceeding one thousand dollars. As the offence might, therefore, sometimes amount to high treason, there would be an impropriety in making it uniformly a misdemeanor.
If an alien should have resided here for a number of years, and he should turn out to have been a spy, and a citizen of the United States should have harbored and concealed the said alien, knowing him to have been a spy, he would be chargeable with high treason for aiding and abetting the enemies of the United States within its territory, or at least a misprision of treason.
But the gentleman from Delaware was mistaken in his idea that it was intended to try an offender by a law passed after the offence was committed. By the expression, "as by law is or shall be declared," was only meant such law as should be passed between the present time and the time of committing any offence.
The question on this amendment was put and carried, 44 to 25.
On motion of Mr. Bayard, the blank for containing the amount of the penalty, in the amendment just carried, was filled with one thousand dollars.
The committee rose, and reported the amendments; which having been agreed to,
Mr. Dent moved to strike out the word "months," in Mr. Bayard's amendment, in order to insert "seven years."
Mr. N. Smith hoped this amendment would not be agreed to. He believed the penalty might, in some cases, be too severe, and in others by far too mild. He thought the bill stood well as it was. He did not think there was any uncertainty in it but what arose from the different species of offence which were comprised within this provision—for a person under it might be guilty of the highest crime, or of no crime at all, according to the circumstances of the case. This being the condition of things, to make an uniform punishment for all cases, whether highly criminal, or no crime at all, cannot be proper.
The bill as it stands, without the amendment, provides that offenders shall be imprisoned and punished according to the law which is or shall be made, (before the offence is committed,) and he thought this was the proper footing, as the punishment would then be apportioned according to the offence.
Mr. Bayard hoped the amendment would be agreed to. He did not know that a greater misfortune could happen to any man than to live in a country where the laws are so indefinite that a person cannot ascertain when he commits an offence, or what is the penalty of an offence when it is committed. The gentlemen from Massachusetts and Connecticut tell the House about the aggravation of the offence. What was the aggravation they allude to they have not stated, and no gentleman could form an opinion upon the subject. The fact was of a definite nature, and a definite punishment ought to be made for it. What is the fact? It is the harboring and concealing of an alien enemy after the proclamation of the President. Gentlemen say this offence may amount to treason, misprision of treason, or other offence. If the offence could amount to treason, he owned he did not understand the bill, because the crime of treason is defined by the constitution, and could not be varied by any law of Congress. If, then, the fact amount to treason, it will not be included in this law. If gentlemen wished to punish persons in exact conformity to their degree of offence, they ought to prepare a scale of offence for that purpose. If not, the amendment agreed to in Committee of the Whole, ought, in his opinion, to be concurred in.
Mr. Sewall said, this bill aimed at one thing, and the gentleman from Delaware at another. The bill has in itself a definition of the offence. It has declared certain circumstances which shall put a person in a situation in which he shall answer for his conduct. It declares that a person harboring an alien enemy shall be a suspected person; but the crime and punishment must be ascertained by other laws; and by these offenders are to be punished agreeably to their offences, whether they be great or small.
Mr. Gallatin said, if he understood the gentleman from Massachusetts, it was not the object of this bill to define the nature of the offence of which a person shall be guilty, or the punishment for it, for harboring and concealing an alien enemy, but only that certain circumstances should render a man a suspected person. This to him was altogether a new legislation.
If he understood the bill as it stood rightly, a person may be apprehended and imprisoned on account of his having harbored and concealed alien enemies; yet the gentleman from Massachusetts says this is in itself no crime; for, if it were a crime, it ought to be punished in the way proposed by the gentleman from Delaware, but he states it to be only a sufficient ground of suspicion. This Mr. G. said, was not only contrary to every principle of justice and reason, but to the provisions of the constitution. The constitution says, "that no person shall be deprived of life, limb, or property, without due process of law." But here certain persons may be deprived of their liberty without any process of law, or being guilty of any crime. Yet the gentleman from Massachusetts says, that this bill does not define a crime or award a punishment. But, Mr. G. said, this assertion was not correct; for there was a new crime instituted, which was that of being a suspected person, and the overt act which is to be evidence of that crime, is the harboring and concealing of an alien enemy, and the punishment is to be apprehension and imprisonment until it shall be found what law the prisoner has offended.
Mr. G. said he was ready to acknowledge that where a man commits an offence, he ought to be punished; but he could not consent to punish any man on suspicion merely. He therefore moved to recommit the bill. He did this because he thought the whole of the bill vague in its nature. He wished it to be more in detail, and that the offences to be punished should be defined; for it was remarkable that every section of the bill concluded with these singular words: "subject nevertheless to the regulations which the Congress of the United States shall thereafter agree and establish." So that instead of deciding what the law should be, it gives the President the power of saying what it is; subject to the after regulations of Congress. He wished now to make the law to declare what the offence should be, and what the punishment, and not leave it to the President to make what regulations he shall think proper. If not, the whole of the bill might as well be in two or three words, viz: "The President of the United States shall have the power to remove, restrict, or confine alien enemies and citizens whom he may consider as suspected persons." When Congress attempted to legislate, they ought not to do it in this way. When the resolution was agreed to, authorizing this bill to be reported, he expected the committee would have defined the nature of offences and their punishments, and not reported the bill in the vague way in which it is before the House, especially as this appears not to be meant for a temporary, but a permanent law.
If gentlemen examine the third section of the bill, it will be found that all Judges, Justices, Marshals, Sheriffs, and other officers, and all the good people of the United States, are bound to do, what? Not to execute any law; but to carry into effect any proclamation, or other public act of the President. So that instead of the Judicial, and any other officers of the United States, and the people at large, being obedient to the laws, they are to be obedient to the will of the President.
The last clause of the bill, which does not relate to aliens, but to our own citizens, is very objectionable. It is in the shape of a penal law, and the crime it defines is the harboring and concealing of alien enemies. Now it is said, that this crime may amount to high treason, by its being construed that an offender has adhered to the enemies of the United States, knowing them to be such, or it may be no offence at all. But the provision is general; and a man guilty of no offence is liable to be apprehended and imprisoned equally with the highest offender under this law.
Upon the whole, it was evident, Mr. G. said, that this bill wants detail, as what is left general and ambiguous, ought to be clearly defined. He hoped, therefore, the bill would be recommitted.
Mr. Sewall said, that the gentleman from Pennsylvania, in order to bring forward this motion, has shut his eyes to the intention of the bill. He says it is a bill for punishing crimes which are not defined. He never knew that alien enemies were guilty of an offence merely as such. It is a bill to provide for the public safety in certain cases. In the event of a war with France, all her citizens here will become alien enemies, but neither this bill, nor common sense, would consider them as offenders. They may be offenders, but not because they are alien enemies; nevertheless it is necessary to provide for the public safety, and in all countries there is a power lodged somewhere for taking measures of this kind. In this country, this power is not lodged wholly in the Executive; it is in Congress. Perhaps, if war was declared, the President might then, as Commander-in-chief, exercise a military power over these people; but it would be best to settle these regulations by civil process. They would be regulated by the treaties as well as by the laws of nations. The intention of this bill is to give the President the power of judging what is proper to be done, and to limit his authority in the way proposed by this bill. In many cases, it would be unnecessary to remove or restrict aliens of this description; and he believed it would be impossible for Congress to describe the cases in which aliens or citizens ought to be punished, or not; but the President would be able to determine this matter by his proclamation. If, however, gentlemen could point out any way in which the necessary regulations could be detailed, he should have no particular objection to it, though he thought the bill stood very well as it was.
Mr. Otis.—In considering this subject, the only practicable modes, he said, which present themselves, are three. To provide for the removing or otherwise restricting all alien enemies without distinction, or to specify some overt acts for committing of which they shall be liable to be removed or restricted, or else to leave the power with the President to take such steps respecting them as he shall think proper and necessary for the public safety.
Mr. O. inquired if the House was ready to do the first? He thought not. He had no doubt there might be French citizens resident here who were entitled to protection, who meant to become good subjects, and who ought not to be exposed to any inconvenience or penalty whatever. He believed very few gentlemen are of opinion that it would be proper to treat all alien enemies in the same way. The operation of such a measure would be unjust. Will gentlemen think it right, then, to declare that alien enemies shall only be removed, or otherwise restricted, on conviction of some overt act to be specified in the act? They are at present liable, with all other persons, to be punished for crimes; so that a regulation with this view would be unnecessary. But there may be cases where the conduct of such persons being extremely suspicious, they ought to be taken into custody, though no positive crime could be proved. Suppose a French army were to land in this country, some of these persons might show a disposition, which would warrant their imprisonment; and yet he did not know how such dispositions could be defined in this bill.
Mr. O. believed, therefore, that it would be best to vest a discretionary power in the Executive to secure and take care that these men should do no injury. And this could not be looked upon as a dangerous or exorbitant power, since the President would have the power, the moment war was declared, to apprehend the whole of these people as enemies, and make them prisoners of war. And in case of a predatory incursion, made on this country, there might be as much reason for securing some of them as in case of actual war or invasion. So that this bill ought rather to be considered as an amelioration or modification of those powers which the President already possesses, as Commander-in-chief, and which the martial law would prove more rigorous than those proposed by this new regulation. Unless gentlemen were disposed to interfere, to suffer those men to go at large, and to carry on a correspondence with their countrymen and our enemy; unless they will consent to suffer a band of spies to be spread through the country, from one end of it to the other, who, in case of the introduction of an enemy into our country, may join them in their attack upon us, and in their plunder of our property, nothing short of the bill like the present can be effectual.
He was willing to say, that in a time of tranquillity, he should not desire to put a power like this into the hands of the Executive; but, in a time of war, the citizens of France ought to be considered and treated and watched in a very different manner from citizens of our own country.
As to the objection made by the gentleman from Pennsylvania, that the bill provides a punishment for suspected persons, and that the word suspected was indefinite, Mr. O. asked whether men are not usually arrested on suspicion? When information is lodged against a man for committing an offence, he is suspected of being guilty, and imprisoned until he can be examined.
Mr. O. believed, that, to provide for this detention of the person, was all Congress could now do. If the bill was recommitted, he did not think any definite provision could be made. It was necessary the President should have the power of judging in this case, and that punishment ought not to depend upon the slow operations of a trial. Though possessed of this power, the President would doubtless suffer all such persons to remain in this country as demeaned themselves peaceably; but when they discovered a contrary spirit, he would treat them accordingly.
Mr. Gallatin withdrew his motion for committing the whole bill, and moved to commit the third section of it. His arguments, he said, went wholly against that; and gentlemen, in reply to him, had chosen to direct their observations to other parts of the bill. As he did not wish his object to be misunderstood, he would only move for a recommitment of the third section of the bill, as his objections to the other parts of it were immaterial when compared with this.
After a few words from Mr. Otis, Mr. Macon renewed his motion for recommitting the whole bill, which was negatived—37 to 36.
Mr. Gallatin then renewed his motion for recommitting the third section, which was negatived by the casting vote of the Speaker, there being thirty-eight votes for it, and thirty-eight votes against it.
Mr. Lyon renewed his motion to strike out the words "or threatened," in the first section. He thought this too indefinite an expression upon which to rest so important a power as was given to the President by this bill. Where the liberty and happiness of thousands of people are concerned, he wished they might depend upon something more certain. Gentlemen who advocate this bill, he said, spoke as if all power was to be placed in the President, and Congress were never to sit again. He wished this expression to be stricken out, and if, when Congress met again, they found the President had not power enough, they might give him more. He called for the yeas and nays upon his motion.
The question for taking the yeas and nays was put, but less than one-fifth of the members present rising in its favor, it was not carried. The question was then put on the motion, and it was negatived without a division.
Mr. Gallatin supposed, if these regulations were established, it would be proper that permits should be granted to such aliens as the President should suffer to remain in the United States. He was not immediately prepared to introduce a proper amendment for that purpose; but he would move to add a few words in that part of the bill where it is proposed to punish citizens for harboring aliens, to try the question. He did not very well understand the phrase, "liable as an enemy," by which those aliens were defined, and whom it would be criminal by this law to harbor; but he would move to introduce the words, "who shall not have obtained permission, under the authority of the President of the United States to remain within the territory of the United States." He moved this, in order that citizens might not be entrapped by this law, but that they should know precisely to what description of aliens they might give a night's lodging, without being liable to be arrested as suspected persons.
Mr. Bayard did not think this amendment necessary, as a citizen must harbor and conceal an alien to be guilty of any offence.
And the question was put and negatived—38 to 33.
The bill was ordered to be engrossed for a third reading to-morrow.