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.