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A Constitutional History of the United States
Chapter XIX - The Alien and Sedition Acts
by McLaughlin, Andrew C.
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The House passed the bill for carrying the Jay treaty into effect in the
spring of 1796, and in the summer of that year Britain gave up the western
posts. Washington must have breathed more easily and with deep satisfaction.
The most trying and perilous crisis was passed. For two years he had been
without the aid of first-rate advisers; Jefferson had retired from office at
the end of 1793, Hamilton a year later.[1] While these two men were
his official advisers he could feel confident that, however much they might
differ, or even because of their differences, he was getting material on which
to base his own judgment. Factious disputes were peculiarly annoying to him,
hut he seems to have had natural aptitude for choosing his course when
alternatives were clearly and ably presented. After Hamilton's withdrawal,
Washington occasionally appealed to him for assistance, which was given with
usual precision and positiveness.[2] But on the whole, the President
had to get on as he best could with advisers of mediocre quality.
When Washington retired to Mount Vernon, hoping to enjoy the labor and
the ease of plantation life, Adams came to the presidency, with Jefferson as
Vice-President — a combination indicative of the imperfect organization of
parties. Adams was a lonely figure; he did not stand with the Hamilton group,
whose leaders did not like him; nor was he more of a favorite with the
Jefferson group or with that great body of voters and politicians who were
beginning to form a real party with an organization capable of waging
successful partisan warfare. He retained for a time in the executive offices
the men who had been serving under Washington, but they looked to Hamilton as
their leader. Not without executive ability, though with marked incapacity for
holding men to himself by bonds of personal attachment and confidence, Adams
finally took the reins into his own hands, accepted the resignation of McHenry,
his Secretary of War, and dismissed Pickering, the Secretary of State. This was
in 1800; for the previous three years, however, the President had struggled
along with advisers on whose general loyalty and sympathy he could not
thoroughly rely. Washington, as we have said, had a signal facility in reaching
conclusions when conflicting opinions were proposed; and so in theory might a
president pursue his way. But Adams was in no such position and had no such
aptitude.
Washington might well feel not only relieved but gratified at the end of
his term; he had performed services of inestimable value to his country, though
doubtless he was the last man to appraise at their true worth his own influence
and his own wisdom. Anxious though he was, unduly anxious, about factious party
strife, he had good reason to believe that the government would live. But there
were dangerous breakers ahead. If the Jay treaty had solved for the time the
perilous disputes with Britain, it irritated France; and that country was
making things unpleasant for America and was playing the bully. There resulted
the well-known X.Y.Z. controversy; commissioners (Charles C. Pinckney, John
Marshall, and Elbridge Gerry) sent by Adams to Paris to settle the dispute were
treated with disrespect, confronted with humiliating terms at the very
beginning, and, to crowd insult upon injury, were informed by insolent
emissaries that if they desired attention, the members of the Directory must be
properly bribed.
The publication of the X.Y.Z. correspondence (sent to Congress by Adams
April 3, 1798) had very immediate effect. Old party antagonisms were for the
moment forgotten or nearly forgotten. Preparations were made for war, and
Washington was summoned from retirement to take charge of the army. Adams,
often charged with being hot-headed and impetuous, in the emergency was wise
and cautious. Receiving a hint that new negotiations could be conducted with
decency, he named a commission (1799) which succeeded in making a treaty and
quieting the disturbance. Adams's decision was sensible and prudent; indeed, he
acted throughout the period with good judgment, but his decision to approach
France and reach a peaceful solution of the difficulties made the Federalist
leaders almost frantic.
The political events of the decade under discussion — the decade
during which the government was established, parties were formed, and practices
of enduring effect were begun — have been passed over rapidly in the
preceding pages; but we have now come to a crisis and a controversy demanding
careful examination. The French trouble in 1798 and 1799 produced legislation
of a radical nature and, on the other hand, led the Republican leaders to the
announcement of principles which were very far-reaching, much farther reaching
than the politicians expected or probably intended, for political leaders are
likely to have a very immediate goal in view; and even Madison and Jefferson
could not, of course, see the far distant future.
The Federalists, irritated by the scandalous assaults of journalists and
pamphleteers, fearing the effects of abuse and misrepresentation when war with
France appeared inevitable, having no patience at the best with the clamor of
the common folks, angered by the mouthings of the aliens who took advantage of
a free country to heap abuse upon its rulers, the kind of abuse that would not
have been tolerated in their native land — the Federalists were now beside
themselves. Congress, despite serious and able opposition, passed important and
eventful acts, (1) The Naturalization Act (June 18, 1798) provided for fourteen
years' residence before the granting of full citizenship and required
registration of resident aliens as well as new arrivals. (2) The Alien Enemies
Act (July 6, 1798) provided that whenever a proclamation by the president
announcing war or predatory invasion was issued, alien enemies should be liable
to apprehension and removal; the president was authorized "to direct the
conduct to be observed, on the part of the United States, towards the aliens
who shall become liable...." (3) The Alien Act (June 25, 1798) authorized the
president to order such aliens as he might deem dangerous or to be engaged in
"treasonable or secret machinations" against the government to depart from the
country; if anyone so ordered should be "found at large" and without a license
to remain, he should "on conviction thereof" be imprisoned for not more than
three years and become ineligible to citizenship. The president might in his
discretion grant a license to remain in the country, but he was on the other
hand given full authority to send forth any alien already in prison under the
provisions of the act; and if any alien so dismissed should return without
permission, he should "on conviction thereof" be imprisoned so long as in the
opinion of the president the public safety might require. Both this act and the
Alien Enemies Act allowed an alien to remove his property, and there were other
provisions which respected his property rights. (4) The Sedition Act (July 14,
1798) was directed against unlawful combination or conspiracy purposing to
oppose governmental measures or impede their operation. In sweeping and
comprehensive language, it further provided for punishing anyone publishing or
causing to be published scandalous and malicious writings against the
government, or either house of the Congress, or the president, with intent to
defame them or to bring them "into contempt or disrepute", or to stir up
sedition, or excite unlawful combinations for resisting any law of the United
States or any act of the president done in pursuance of such laws. A person
accused under the act might be brought before "any court of the United States
having jurisdiction thereof," and punished by a fine not exceeding two thousand
dollars, and by imprisonment not exceeding two years.[3]
The question of the constitutionality of these acts which were soon
vehemently attacked must now be examined. But the reader should be warned that
it is in some measure improper, in an historical investigation, to present as
criteria judicial decisions and pronouncements of a later time.
Little need be said of the Naturalization Act. The portion dealing with
the term of residence before admission to citizenship is of course
unquestionably constitutional; and, though the provision for registration of
aliens and, under some circumstances, for their giving surety for good behavior
might even now raise questions of propriety, the constitutionality of the act
can be passed by without serious comment. The act was, however, reactionary in
character, certain to awaken hostility toward the party responsible for it.
The Alien Enemies Act likewise does not demand much attention. There can
be no doubt of the right of Congress to authorize the president to take such
steps as seem necessary to protect the country against the machinations of
enemies; indeed one might say that in all probability the president, as
commander-in-chief, might go far in this direction without formal statutory
authorization. It is true, he might act tyrannically and might abuse his power.
Possibly we might criticize the act because no provision was made for the
proper protection of those persons who were alleged to be enemy aliens but
asserted they were citizens; but on the face of the act itself one cannot find
the assignment of unconstitutional authority.[4]
The Alien Act and the Sedition Act were drastic and extravagant pieces
of legislation. "Let us not", wrote Hamilton at the time, "establish a tyranny.
Energy is a very different thing from violence."[5] The former act
authorized the president without the shadow of a trial to order out of the
country any alien judged dangerous, no matter how long he had been a resident;
it thus offered plentiful opportunity for injustice and harsh treatment. The
assignment of such power was certain to arouse intense opposition and awaken
public alarm. Assertion of the Jeffersonians that alien friends were within the
care of the states and the states alone can now be dismissed as untenable. The
act, as we have seen, provided that any alien who was ordered to depart and
"found at large" without a license should "on conviction thereof" be punished.
The offense appears to be failure to obey the command of the executive. Was
personal liberty properly safeguarded? We can leave that question unanswered,
only referring once more to the possibility of tyrannical administration. But
the courts in comparatively recent days have gone so far in upholding the right
to deport aliens that one must hesitate to condemn the Alien Act as a positive
infringment of constitutional liberty because of its provisions granting wide
executive power in this respect. The critical question is whether judicial
trial is imperative, a trial, that is to say, with the usual formalities of a
court of justice. Because of traditional habits of thought, we naturally at
first sight react against the theory that personal rights, even though the
person may be alleged to be a foreigner, should be passed upon outside of a
court of law; but necessity has given rise to more expeditious, and perhaps we
should say, more summary methods; executive tribunals and officials have been
allowed great authority, and their decisions considered final. The courts have
reserved the right to determine whether or not a fair hearing has been allowed
by the administrative officials; but they have not denied, that, as a
principle, the officials have the power to act, if reasonable and suitable
methods of conduct have been followed.[6]
The Sedition Act presents more serious difficulties. Suppression of
freedom of speech and the press must under all circumstances be looked upon
with misgivings. And this is so not so much because any specific words in the
Constitution may perhaps be violated or given improper construction, as because
the very vitals of free government are endangered or maltreated when freedom of
thought and discussion are crudely interfered with. One of the chief attacks
upon the Sedition Act immediately after its passage was founded on the
assertion that it took for granted that the federal courts had jurisdiction of
common law crimes. It is perfectly true, as the Supreme Court later
declared,[7] that there is no such jurisdiction; but as a matter of
fact, the Sedition Act established a statutory crime; and the question is
whether Congress had the authority to announce the crime and provide for its
punishment. In general, of course, libel and slander are matters within the
province of the states. If statements, which would be commonly regarded as
criminally libelous, were directed against John Adams or any member of Congress
as a private individual, and if such an attack could have no reasonably
assignable or conceivable connection with the safety of the government and its
operation, then the United States could not punish the culprit in its courts.
We cannot now doubt that the government — quite plainly, in times of peril
— can protect itself against verbal attack, either upon its officials or
its policies, if the attack is of such a character as to endanger its safety or
reasonable security in the conduct of its affairs; an act providing for the
trial of an alleged culprit cannot be considered under such circumstances an
assumption of authority totally belonging to the states.
The question remains how far Congress may go without violating the first
amendment, which guarantees freedom of speech and the press. Once more we are
aided by judicial decisions of much later date. This subject in some of its
aspects was passed upon by the courts in considering the constitutionality of
certain parts of the Espionage Act of 1917. It appears to be a safe conclusion
to say that whether an act is a violation of the amendment depends upon the
scope of the act, perhaps more evidently upon its application, and also, as is
so often the case, upon actual circumstances and conditions. Freedom of speech
does not mean unlimited liberty to say anything and everything, under any and
all conditions; there are limits: "The most stringent protection of free speech
would not protect a man in falsely shouting fire in a theatre and causing a
panic.... The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree. When a nation is at war many
things that might be said in times of peace are such a hindrance to its effort
that their utterance will not be endured so long as men fight and that no Court
could regard them as protected by any constitutional right." [8] It
is difficult, therefore, to pass any sweeping judgment on the constitutional
validity of the Sedition Act; so much must depend upon the interpretation of
its more extreme provisions and upon the question of the application of its
provisions by the courts in concrete cases. But we must remember that any act
which gives opportunity to officials for punishing the innocent must be
considered as approaching the verge of unconstitutionality; for, when all is
said, the protection of an innocent and peaceful citizen is quite as important
as the rapid and condign punishment of the guilty; and reasonable assurance of
such protection and safety should appear on the surface of the act.
The more important question remains whether, technicalities being cast
aside, the acts of 1798 were contrary to the spirit of the Constitution and
appear in essence to be at variance with the elementary principles of free and
liberal government. Without a great degree of actual liberty to express opinion
and to criticize authority, democratic government cannot exist; it is in danger
of being hidden in the mists and miasmic vapors which obscure normal vision in
time of war; and this fact of course points to the antagonism between war,
which rests on force, and popular government, which demands argument. That the
acts which we are considering breathe on the whole a spirit of arrogance and
intolerance, and that such a spirit was noxious and menacing, appears to be
beyond doubt.[9]
[1] Jefferson, December 31, 1793. Hamilton, January 31,
1795.
[2] The above remark is especially applicable to the argument
concerning the propriety or obligation to send information on the Jay treaty to
the House. On two or three other occasions, including the preparation of the
famous farewell address, Hamilton served the President.
[3] The Naturalization Act was repealed in 1802 and five
years were established as the term of residence. The Alien Enemies Act was not
repealed. The Alien Act was limited by its terms to two years and was not
renewed. The Sedition Act expired in 1801 and was not renewed.
[4] Referring to the deportation of aliens under the General
Immigration Act of 1917, the Supreme Court said, "Jurisdiction in the executive
to order deportation exists only if the person arrested is an alien. The claim
of citizenship is thus a denial of an essential jurisdictional fact." The Court
referred to a similar situation when proceedings are taken against a person
under the military service and he denies that he is in the military service.
"It is well settled that in such a case a writ of habeas corpus will issue to
determine the status." Ng Fung Ho v. White, 259 U. S. 276, 284 (1922).
[5] Letter from Hamilton to Oliver Wolcott, June 29, 1798, in
Hamilton, Works (H. C. Lodge, ed.), X, p. 295.
[6] "That Congress may exclude aliens of a particular race
from the United States", said the Supreme Court in a comparatively recent case,
"prescribe the terms and conditions upon which certain classes of aliens may
come to this country; establish regulations for sending out of the country such
aliens as come here in violation of law; and commit the enforcement of such
provisions, conditions, and regulations exclusively to executive officers,
without judicial intervention, — are principles firmly established by the
decisions of this court." Yamataya v. Fisher, 189 U. S. 86, 97 (1903).
See also United States v. Ju Toy, 198 U. S. 253 (1905) and cases there
quoted and referred to. In Fong Yue Ting v. United States, 149 U. S. 698
(1893), the right to expel or deport foreigners who have not been naturalized
or taken any steps toward becoming citizens is specifically upheld. Concerning
right to a hearing, consult Chin Yow v. United States, 208 U. S. 8
(1908). Concerning punishment without judicial trial see Wong Wing v.
United States, 163 U. S. 228 (1806).
[7] See United States v. Hall, 8 Otto 343 (1879) and
cases cited, particularly United States v. Hudson and Goodwin, 7 Cranch
32 (1812). In the former case Justice Clifford said, "Such courts possess no
jurisdiction over crimes and offences committed against the authority of the
United States, except what is given to them by the power that created them; nor
can they be invested with any such jurisdiction beyond what the power ceded to
the United States by the Constitution authorizes Congress to confer, —
from which it follows that before an offence can become cognizable in the
Circuit Court the Congress must first define or recognize it as such, and affix
a punishment to it, and confer jurisdiction upon some court to try the
offender." 345. In United States v. Hudson and Goodwin, the Court held
that the circuit courts could not exercise common law jurisdiction of criminal
cases. There may be implied powers in the government to preserve its own
existence and promote its ends; but if such powers do exist, "The legislative
authority of the Union must first make an act a crime, affix a punishment to
it, and declare the court that shall have jurisdiction of the offence." 33-34.
The constitutionality of these acts has been attacked on the ground that there
was no proper designation of the court or assignment of jurisdiction; but such
criticism appears to be without thorough basis because of the general provision
of the Judiciary Act of 1789 assigning criminal jurisdiction to the circuit
courts. As to there being a common law of the United States, see Western Union
Tel. Co. v. Call Pub. Co., 181 U. S. 92 (1901) and references.
[8] Justice Holmes giving the opinion of the court in Schenck
v. United States, 249 U. S. 47, 52 (1919). In another case, Justice
Holmes, dissenting, said: "I had conceived that the United States through many
years had shown its repentance for the Sedition Act of 1798, by repaying fines
that it imposed. Only the emergency that makes it immediately dangerous to
leave the correction of evil counsels to time warrants making any exception to
the sweeping command, 'Congress shall make no law ... abridging the freedom of
speech.'" Abrams v. United States, 250 U. S. 616, 630-631 (1919).
Professor Corwin has summed up a discussion of freedom of speech by saying,
"... Congress is not limited to forbidding words which are of a nature 'to
create a clear and present danger' to national interests, but it may forbid
words which are intended to endanger those interests if in the exercise of a
fair legislative discretion it finds it 'necessary and proper' to do so.... In
short, the cause of freedom of speech and press is largely in the custody of
legislative majorities and of juries, which, so far as there is evidence to
show, is just where the framers of the Constitution intended it to be." E. S.
Corwin, "Freedom of Speech and Press Under the First Amendment," Yale Law
Journal, XXX, p. 55.
[9] In the earlier years of the twentieth century and
especially after the world war there was much discussion concerning this
subject. An illustration of the position of the more "liberal" opinion on the
bench is the dissenting opinion of Justice Holmes in Gitlow v. New York,
268 U. S. 652, 673 (1925): "It is said that this manifesto was more than a
theory, that it was an incitement. Every idea is an incitement.... If in the
long run the beliefs expressed in proletarian dictatorship are destined to be
accepted by the dominant forces of the community, the only meaning of free
speech is that they should be given their chance and have their way." See also
the concurring opinion of Justice Brandeis (in which Justice Holmes concurred)
in Whitney v. California, 274 U. S. 357, 376-377 (1927): "Fear of
serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burnt women. It is the function of speech to free men
from the bondage of irrational fears.... Only an emergency can justify
repression. Such must be the rule if authority is to be reconciled with
freedom. Such, in my opinion, is the command of the Constitution. It is
therefore always open to Americans to challenge a law abridging free speech and
assembly by showing that there was no emergency justifying it."
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