The question being upon agreeing to the first resolution declaring it to be inexpedient to repeal the alien law,
Mr. Gallatin rose and spoke as follows:
Mr. Chairman: This subject was so fully discussed during the last session, that I would not have addressed the committee on this occasion, did I not entertain some hope that the change of circumstances which has taken place since the laws were enacted, and above all, the sense which so many of our fellow-citizens have expressed on their propriety and constitutionality, may induce the House to reconsider their decision of last year.
Petitions, signed by near 18,000 freemen of this State alone, collected in a few counties and within a few weeks, have been laid on your table, earnestly requesting Congress to repeal laws, at best of a doubtful nature, and passed under an impression of danger which does not now seem to exist, of general alarm, which has nearly subsided.
Sixteen hundred of my immediate constituents have joined in these petitions, and their opinion on this subject being the same which I have uniformly entertained, I feel it forcibly to be my duty to examine the reasoning used by the select committee who have reported against the repeal of the obnoxious laws.
The act concerning aliens comes first under consideration. Two laws were passed during the last session of Congress on that subject, the one concerning aliens generally, and the other respecting alien enemies. No petition has been presented against the last, and it would remain in force even if the first should, agreeably to the request of the petitioners, be repealed. The petitions apply solely to those provisions of the first act which are not included in the last. The provision, therefore, complained of, and which is the subject-matter of the reference to the committee, is that which authorizes the President to remove out of the territory of the United States, "all such aliens, (being natives, citizens, denizens, or subjects of a nation which is not at war with the United States, and which has not perpetrated, attempted, or threatened any invasion or predatory incursion against the territory of the United States,) as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the Government thereof."
This authorization is considered by the petitioners as unconstitutional—1st, because such power being neither among the specific powers granted by the constitution of the General Government, nor necessary to carry into effect any of those specific powers, is, both by incontestable deduction, and by the 12th amendment, reserved to the individual States; 2d, because, even supposing such power to be by implication comprehended among those granted to the General Government, its exercise is, for the present, expressly prohibited to that Government by the section which provides that the migration or importation of such persons as any of the States shall think proper to admit shall not be prohibited by Congress prior to the year 1808; and 3dly, because aliens are supposed to come under the general description of persons to whom, by the constitution, the right of a trial of all crimes by jury is secured.
In answer to the first objection, it is not contended that the power of removing such aliens is specifically granted by the constitution. But it is insisted, first, that every nation has a power at will to admit, or to remove aliens; second, that this power is necessary and proper in order to carry into effect the specific powers vested in Congress to declare war and to protect each State from invasion.
To admit the first position in its full extent does not destroy the force of the objection; for that objection rests not on a supposition that the power of removing aliens does not exist in the nation; but on the principle that it is not one of those granted by the nation to the General Government; that it is one of those intrusted by the nation to the Governments of the individual States respectively. The second position is predicated on a construction of the clause of the constitution and an application of that construction to the act, which to me appear inadmissible. The expressions used in that clause are "necessary and proper." The idea conveyed by the word "proper" is implied in that of the word "necessary," for whatever is necessary must be proper. The addition of the word "proper" was therefore useless, unless designed more precisely to ascertain the meaning of the word "necessary," the better to prevent a construction "that by necessity nothing more was meant than propriety," and to establish, beyond contradiction, that whatever might by Congress be thought proper, was not on that account to be judged necessary. Hence the meaning of the word "necessary" is confined in that clause to its strict sense, to wit: the power of passing laws without which some of the powers delegated to Congress could not be carried into effect.
In the present case it cannot be said that a power generally to remove aliens, not belonging to a nation from which a war or invasion is apprehended, is necessary or even proper in order to protect the States against such a war or invasion. Aliens individually may commit acts tending to assist the enemy, and, in such case, it would become necessary to punish them. Should a body of armed aliens (the supposed case of the select committee) land with views evidently hostile, to whatever nation they might belong, the act itself would be an invasion, and the necessity of repelling, or if another expression is selected, of removing them, would be self-evident and immediately flowing from the specific power delegated to Congress to protect the States against invasions. But it is preposterous to say that the necessity of a general removal of alien friends flows from the apprehension of an invasion. The law concerning aliens, however, does not designate the acts which shall establish the necessity of their removal individually. Although they may not have been concerned in any machinations against Government; although the machinations in which they may have been concerned shall not have tended to promote or assist an invasion; and although their machinations might be sufficiently prevented and punished in the common course of law; although, therefore, their removal may not be necessary to protect the States against an invasion; yet, by the present law, they are liable to be removed, if they shall be suspected of being concerned in those machinations. Their having actually and individually committed certain acts is requisite to constitute that necessity which alone can justify the exercise of the power delegated by this law. And yet that removal, which, in order to be constitutional, should rest on its necessity, depends, by the provisions of this law, on the bare suspicion of a necessity. But necessity implies proof, and cannot rest on suspicion. The law cannot be supported by the constitution unless that instrument had declared that Congress shall have power to pass laws which they may suspect to be proper or necessary in order to carry into effect certain specific powers delegated to them.