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punishable, are first, offences committed by the nation of which they make a part, and in whose offences they are involved : Secondly, offences committed by themselves alone, without any charge against the nation to which they belong. The first is the case of alien enemies; the second, the case of alien friends. In the first case, the offending nation can no otherwise be punished than by war, one of the laws of which authorizes the expulsion of such of its members, as may be found within the country, against which the offence has been committed. In the second case, the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations, the individual only, and not the nation, is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations. Un. der this view of the subject, the act of Congress, for the removal of alien enemies, being conformable to the law of nations, is justified by the Constitution : and the “act,” for the removal of alien friends, being repugnant to the constitutional principles of municipal law, is unjustifiable.
Nor is the act of Congress, for the removal of alien friends, more agreeable to the general practice of nations, than it is within the purview of the law of nations. The general practice of nations, distinguishes between alien friends and alien enemies. The latter it has proceeded against, according to the law of nations, by expelling them as enemies.* The former it has considered as under a local and temporary allegiance, and entitled to a correspondent protection. If contrary instances are to be found in barbarous countries, under undefined prerogatives, or amid revolutionary dangers, they will not be deemed fit precedents for the government of the United States, even if not beyond its constitutional authority.
It is said, that Congress may grant letters of marque and reprisal ; that reprisals may be made on persons, as well as property; and that the removal of aliens may be considered as the exercise in an inferior degree, of the general power of reprisal on persons.
Without entering minutely into a question that does not seem to require it, it may be remarked, that reprisal is a seizure of foreign persons or property, with a view to obtain that justice for injuries done by one state or its members, to another state or its members, for which, a refusal of the aggressor requires such a resort to force under the law of nations. It must be considered as an abuse of words to call the removal of persons from a country, a seizure or reprisal on them: nor is the distinction to be overlooked between reprisals on persons within the country and under the faith of its laws, and on persons out of the country.
But, laying aside these considerations, it is evidently impossible to bring * Vatt. B. III., $ 63.
+ The idea that reprisals cannot lawfully be made upon persons, or property within the country, and under the faith of its laws, is plainly not necessary to the argument. The proposition that such reprisals are inadmissible is sustained by the authority of Vattel (B. II., $ 344, and B. III., $ 63,) and others, and is certainly conformable to the general usage of nations. If a state chooses, however, to adopt a less liberal policy, it cannot, for so doing, be reproached with the violation of any principle of international law. (See Martens Summ. B. VIII., c. ii., $ 5. The Boedes-Lust, 5 Rob, Adm'y Rep. 246. Brown v. United States, 8 Cranch, 121.)
the alien-act within the power of granting reprisals; since it does not allege or imply any injury received from any particular nation, for which this proceeding against its members was intended as a reparation. The proceeding is authorized against aliens of every nation; of nations charged neither with any similar proceeding against American citizens, nor with any injuries for which justice might be sought, in the mode prescribed by the act. Were it true, therefore, that good causes existed for reprisals against one or more foreign nations, and that neither persons nor property of its members, under the faith of our laws, could plead an exemption, the operation of the act ought to have been limited to the aliens among us, belonging to such nations. To license reprisals against all nations, for aggressions charged on one only, would be a measure as contrary to every principle of justice and public law, as to a wise policy, and the universal practice of nations.
It is said, that the right of removing aliens is an incident to the power of war, vested in Congress by the Constitution.
This is a former argument in a new shape only; and is answered by repeating, that the removal of alien enemies is an incident to the power of war; that the removal of alien friends, is not an incident to the power of war.
It is said, that Congress are by the Constitution to protect each state against invasion; and that the means of preventing invasion are included in the power of protection against it.
The power of war in general, having been before granted by the Constitution, this clause must either be a mere specification for greater caution and certainty, of which there are other examples in the instrument, or be the injunction of a duty, superadded to a grant of the power. Under either explanation, it cannot enlarge the powers of Congress on the subject. The power and the duty to protect each state against an invading enemy, would be the same under the general power, if this regard to greater caution had been omitted.
Invasion is an operation of war. To protect against invasion is an exercise of the power of war. A power, therefore, not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends, has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of
Nor can it ever be granted, that a power to act on a case when it actually occurs, includes a power over all the means that may tend to prevent the occurrence of the case. Such a latitude of construction would render unavailing every practicable definition of particular and limited powers. Under the idea of preventing war in general, as well as invasion in particular, not only an indiscriminate removal of all aliens might be enforced, but a thousand other things still more remote from the operations and precautions appurtenant to war, might take place. A bigoted or tyrannical nation might threaten us with war, unless certain religious or politi. cal regulations were adopted by us; yet it never could be inferred, if the regulations which would prevent war, were such as Congress had other. wise no power to make, that the power to make them would grow out of the purpose they were to answer. Congress have power to suppress in
surrections, yet it would not be allowed to follow, that they might employ all the means tending to prevent them ; of which a system of moral instruction for the ignorant, and of provident support for the poor, might be regarded as among the most efficacious.
One argument for the power of the general government to remove aliens, would have been passed in silence, if it had appeared under any authority inferior to that of a report, made during the last session of Congress, to the House of Representatives by a committee, and approved by the House. The doctrine on which this argument is founded, is of so new and so extraordinary a character, and strikes so radically at the political system of America, that it is proper to state it in the very words of the report.
"The act (concerning aliens) is said to be unconstitutional, because to remove aliens is a direct breach of the Constitution, which provides, by the 9th section of the 1st article, that the migration or importation of such persons as any of the states shall think proper to admit, shall not be prohibited by the Congress, prior to the year 1808."
Among the answers given to this objection to the constitutionality of the act, the following very remarkable one is extracted:
“Thirdly, that as the Constitution has given to the states no power to remove aliens, during the period of the limitation under consideration, in the mean time, on the construction assumed, there would be no authority in the country, empowered to send away dangerous aliens, which cannot be admitted."*
The reasoning here used, would not in any view, be conclusive; be. cause there are powers exercised by most other governments, which in the United States are withheld by the people, both from the general government, and from the state governments. Of this sort are many of the powers prohibited by the declarations of right prefixed to the constitutions, or by the clauses in the constitutions, in the nature of such declarations. Nay, so far is the political system of the United States distinguishable from that of other countries, by the caution with which powers are delegated and defined, that in one very important case, even of commercial regulations and revenue, the power is absolutely locked up against the hands of both governments. A tax on exports can be laid by no constitutional authority whatever. Under a system thus peculiarly guarded, there could surely be no absurdity in supposing, that alien friends, who if guilty of treason. able machinations may be punished, or if suspected on probable grounds, may be secured by pledges or imprisonment, in like manner with perma. nent citizens, were never meant to be subjected to banishment by any arbitrary and unusual process, either under the one government or the other.
But, it is not the inconclusiveness of the general reasoning in this pas. sage, which chiefly calls the attention to it. It is the principle assumed by it, that the powers held by the states, are given to them by the Consti.
* The argument contained in the report here referred to, (which may be seen 20 Am. State Papers, 181), in vindication of the constitutionality of the alien and sedition laws, is condensed, but able. It will repay the perusal of the diligent student, who desires audire et alteram partem.
tution of the United States; and the inference from this principle, that the powers supposed to be necessary which are not so given to state governments, must reside in the government of the United States.
The respect, which is felt for every portion of the constituted authorities, forbids some of the reflections which this singular paragraph might excite; and they are the more readily suppressed, as it may be presumed, with justice perhaps, as well as candour, that inadvertence may have had its share in the error. It would be an unjustifiable delicacy, nevertheless, to pass by so portentous a claim, proceeding from so high an authority, without a monitory notice of the fatal tendencies with which it would be pregnant.
Lastly, it is said, that a law on the same subject with the alien-act, passed by this state originally in 1785, and re-enacted in 1792, is a proof that a summary removal of suspected aliens, was not heretofore regarded by the Virginia Legislature, as liable to the objections now urged against such a measure.
This charge against Virginia vanishes before the simple remark, that the law of Virginia relates to "suspicious persons being the subjects of any foreign power or state, who shall have made a declaration of war, or actually commenced hostilities, or from whom the President shall apprehend hostile designs ;” whereas the act of Congress relates to aliens, being the subjects of foreign powers and states, who have neither de. clared war, nor commenced hostilities, nor from whom hostile designs are apprehended.
2. It is next affirmed of the alien act, that it unites legislative, judicial, and executive powers in the hands of the President.
However difficult it may be to mark, in every case, with clearness and certainty, the line which divides legislative power, from the other departments of power, all will agree, that the powers referred to these depart. ments may be so general and undefined, as to be of a legislative, not of an executive or judicial nature; and may for that reason be unconstitu. tional. Details to a certain degree, are essential to the nature and cha. racter of a law; and on criminal subjects, it is proper, that details should leave as little as possible to the discretion of those who are to apply and to execute the law. If nothing more were required, in exercising a legislative trust, than a general conveyance of authority, without laying down any precise rules, by which the authority conveyed should be carried into effect; it would follow, that the whole power of legislation might be transferred by the legislature from itself, and proclamations might become substitutes for laws. A delegation of power in this latitude, would not be denied to be a union of the different powers.
To determine, then, whether the appropriate powers of the distinct de. partments are united by the act authorizing the executive to remove aliens, it must be inqaired whether it contains such details, definitions and rules, as appertain to the true character of a law; especially, a law by which personal liberty is invaded, property deprived of its value to the owner, and life itself indirectly exposed to danger.
The alien-act declares," that it shall be lawful for the President to order all such aliens as he shall judge dangerous to the peace and safety of the
United States, or shall have reasonable ground to suspect, are concerned in any treasonable, or secret machinations, against the government thereof, to depart,” &c.
Could a power be well given in terms less definite, less particular, and less precise ? To be dangerous to the public safety; to be suspected of secret machinations against the government: these can never be mistaken for legal rules or certain definitions. They leave everything to the President. His will is the law.
But, it is not a legislative power only, that is given to the President. He is to stand in the place of the judiciary also. His suspicion is the only evidence which is to convict: his order, the only judgment which is to be executed.
Thus, it is the President whose will is to designate the offensive conduct; it is his will that is to ascertain the individuals on whom it is charged; and it is his will, that is to cause the sentence to be executed. It is rightly affirmed, therefore, that the act unites legislative and judicial powers to those of the executive.
3. It is affirmed, that this union of power subverts the general principles of free government.
It has become an axiom in the science of government, that a separation of the legislative, executive, and judicial departments, is necessary to the preservation of public liberty.* Nowhere has this axiom been better understood in theory, or more carefully pursued in practice, than in the United States.
4. It is affirmed that such a union of powers subverts the particular organization and positive provisions of the Federal Constitution.
According to the particular organization of the Constitution, its legislative powers are vested in the Congress, its executive powers in the President, and its judicial powers in a supreme and inferior tribunals. The union of any two of these powers, and still more of all three, in any one of these departments, as has been shown to be done by the alien-act, must consequently subvert the constitutional organization of them.
That positive provisions, in the Constitution, securing to individuals the benefits of fair trial, are also violated by the union of powers in the alienact, necessarily results from the two facts, that the act relates to alien friends, and that alien friends being under the municipal law only, are entitled to its protection.
II. The second object against which the resolution protests, is the sedition-act.
of this act it is affirmed, 1. That it exercises in like manner a power not delegated by the Constitution. 2. That the power, on the contrary, is expressly and positively forbidden by one of the amendments to the Constitution. 3. That this is a power, which more than any other ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication thereon, which has ever been justly deemed the only effectual guardian of every other right.
* Montesq. Sp. Law. B. XI. c. 6.