Wednesday, May 23.
Alien Enemies.
The bill respecting alien enemies was read the third time, when
Mr. R. Williams moved a recommitment of the bill. He said his objections did not lie so much against the provisions respecting aliens, as to the power proposed to be given to the President of issuing proclamations, which are to be binding on the Judges and other officers with respect to our own citizens. He would wish to designate every offence, and its adequate punishment, as far as it could be done. In order to effect this he made his motion.
Mr. Sewall said, so much discussion took place on this subject yesterday, that he did not expect any more to-day. The gentleman from North Carolina seemed not to object to the powers given to the President by the first and second sections of the bill, but he did not wish him to have any officers to execute his powers. If the President could carry the law into effect with his own hand, he might do so, but he objected to his having any aid from his officers or the people at large. He did not believe this kind of reasoning could have any effect in this House. If the President is authorized to issue orders, he must be authorized to require the aid of proper persons to execute them.
Mr. Gallatin called for the yeas and nays upon this question, which, being agreed to, he hoped this bill would be recommitted. He had no doubt that the committee, by paying due attention to the subject, instead of this general and vague bill, might report such rules and regulations as would be proper to be adopted on this occasion. He recollected seeing a bill from the Senate on this subject, in which something of this kind was done; and though he did by no means approve of that bill, yet it showed that the thing was not impossible. The objection made against a recommittal of this bill, was, that it was necessary to do something to provide means for securing and removing alien enemies, which did not apply as an argument against the recommitment of the bill. It was a good reason why a bill should be passed, but no reason why it should pass in its present form. The present bill, Mr. G. said, was grounded upon the principle that the President of the United States shall have the power to do by proclamation what ought only to be done by law.
In the first place, the Proclamation of the President is to determine the period when foreigners not naturalized shall be liable to be apprehended, restrained, secured, and removed as alien enemies. Mr. G. understood what was meant by apprehending alien enemies, and securing them, but he did not understand the word "restraining;" it was vague, he said, in its nature, and he did not know that it was a legal phrase. The committee could themselves explain it. By the bill from the Senate, it was intended to confine them within the place where they reside; perhaps this was their idea. The bill goes further: they are not only liable to be apprehended, restrained, secured, and removed, but "to be 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."
Mr. G. wished to have explained what was meant by "unusual severities." They must mean something more than confiscations—than apprehending, restraining, or removing—because they are specifically provided for. He wished, therefore, to know what these unusual severities were which, upon our own ideas of Government, we could retaliate? If any other severities besides those which are here enumerated were to be inflicted upon our citizens in France, he thought it would be disgraceful to that country, and he could not believe that either propriety or justice would warrant us committing a disgraceful act against the citizens of another nation, because that nation had committed a disgraceful act upon our citizens in their country.
[Mr. Sewall rose to explain, but the Speaker said, the rule which declares no member shall speak more than once to a question would not permit him.]
Mr. G. did not know whether these words "unusual severities" were not intended to be held in terrorem over the conduct of France. If so, he did not think it a very creditable proceeding. But he believed that part of the bill perfectly useless, for two reasons: First, it is extremely doubtful whether the President of the United States could constitutionally exercise those "unusual severities," which this bill says he may exercise; and with respect to confiscation, it was explained by a subsequent part of the bill to be only a sequestration till the next meeting of Congress, and he therefore conceived this part of the bill to be of no use, except to train our code of law in a manner expressly contrary to the spirit of our constitution, which expressly declares no "cruel or unusual punishments" shall be inflicted.
But, supposing the words only held out in terrorem, he wished to know how they would apply, whether it was to make a part of our permanent law, whether it is suited for the present time only. If it were not to make a part of our permanent system—and he thought no gentleman would say it ought—then it must be on account of our present situation. As to our present situation, in relation to any thing which may befall our citizens in France, he would say the words are useless, and this for a plain reason; for, out of the natives of France in this country, ninety-nine out of an hundred are of that description of persons whom the French call emigrants, and it is therefore perfectly immaterial to the French nation how they are treated; so that the bill could operate only on a dozen or two of persons of a different description who may be in this country.
In the next place, with respect to confiscations, which by the next clause are so limited as to become sequestrations, it would be wrong to give this power to the President. An article is inserted in the British Treaty expressly to declare that sequestrations are impolitic and unjust in every case, and providing against them. He admitted that it might be necessary to resort to them on some occasions, because he believed there might be cases where sequestration would be necessary, by way of indemnification; but what he insisted on was, that it ought to be done by law, and not by the President. On a former occasion, when the question of sequestration was before Congress, the power was not proposed to be left at large with the President, but was to be regulated by law.
There was another circumstance which showed how easy a thing it would be to pass a law themselves, instead of leaving every regulation relative to this subject with the President. About the middle of the second section it is said, "where no treaty exists, a reasonable time shall be allowed, which shall be ascertained and declared by the President, or by the Congress of the United States." This was a kind of double legislation which was new to him. He wished to know what difficulty there would have been in defining the time here referred to in this bill? It appeared to him the right and proper time to do it. From the moment that the resolution came before the House, he was ready to acknowledge that the power of regulating this business was in the power of Government, as it was a power possessed by every nation, which it had a right to exercise for its own security; but it ought to be exercised according to law. In some countries, indeed, this power is vested in the Executive. In France, he believed, it was wholly so, and in England in a great degree; but in this country he trusted that this House would be of opinion that Congress is the proper body to regulate so important a measure.
But the evil, Mr. G. said, did not stop here, it extended to all the citizens of the United States. The object of the last section provides that justices, judges, marshals, sheriffs, and the people at large shall perform a duty which is undefined. But the gentleman from Massachusetts says this is right, because the power given to the Executive by this bill is also undefined. This is the foundation of all the objection made to this bill; it is to the want of legislation in it, which leaves not only alien enemies, but citizens of the United States, to the will of the President.
But he would go farther, and say it is impossible to define the duties of our own citizens, though the two first sections of the bill should be left at large as they are. By the present bill, the duties of justices, &c., are to be regulated by the Proclamation of the President. He could conceive that the House might take into consideration the nature of the powers vested in the President, and inquire what will be the duties required to be performed by the several officers of the Government to carry into effect those powers. Those powers are to apprehend, restrain, secure, and remove alien enemies, and to sequester their property. As to the removal of aliens, he could not see what justices and judges had to do with it; but if they had any thing to do with it, Congress ought to say what. They might say what should be the duties of judges or justices, or of Executive officers in the several cases which may be likely to occur, instead of leaving the thing wholly at large.
The last part of the 3d section, he said, was as objectionable as any other. It defines the crime in two words, "harboring and concealing," and the penalty, if found guilty of this vague and uncertain charge, is imprisonment not exceeding seven years, and a fine not exceeding one thousand dollars. So that if a person be found guilty of harboring and concealing an alien enemy, however trifling the expense may be, his punishment will be left wholly to the discretion of the court. The only power of the jury will be to decide on the fact; and if a citizen has harbored for one night, however undesignedly, an alien enemy, he must be found guilty, leaving it altogether to the court to judge of the criminality of the act, and to affix the degree of punishment. He thought this part of the law ought to be better defined. It ought to distinguish between cases of misdemeanor and those which might arise from ignorance, and in which no offence at all might exist. He hoped, therefore, the bill would be recommitted.
The question on recommitting the bill was put and carried—46 to 44. The yeas and nays were as follow,
Yeas.—Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Stephen Bullock, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, Thomas T. Davis, John Dawson, George Dent, Lucas Elmendorph, John Fowler, Albert Gallatin, James Gillespie, Andrew Gregg, William Barry Grove, John A. Hanna, Carter B. Harrison, Jonathan N. Havens, Joseph Heister, David Holmes, Walter Jones, Matthew Locke, Matthew Lyon, James Machir, Nathaniel Macon, Blair McClenachan, Joseph McDowell, John Milledge, Anthony New, Josiah Parker, John Read, William Smith, Richard Sprigg, jr., Richard Stanford, Thomas Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams.
Nays.—John Allen, George Baer, jr., Bailey Bartlett, James A. Bayard, David Brooks, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, William Craik, Samuel W. Dana, John Dennis, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel Lyman, William Matthews, Daniel Morgan, Lewis R. Morris, Harrison G. Otis, James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, Peleg Wadsworth, and John Williams.
Mr. Sewall, Mr. Dana, Mr. Imlay, Mr. S. Smith, Mr. Josiah Parker, Mr. Brooks, and Mr. Rutledge, composed the committee.