Archive for October, 2010

The Avalon Project and the Alien (Enemies) Act

Posted in Law on 20101009 by Avenging Sword

Back in college, when I began to make a hobby of reading about emergency powers, one of the first websites I stumbled across was Yale’s Avalon Project.  Packed with hypertext versions of various historical documents, I found it quite a useful resource.  I was therefore dismayed to discover, a few years back, that Avalon’s area discussing the Alien & Sedition Acts contains hyperlinks like this:

…which unfortunately point to the wrong Alien Act.  In particular, while these links purportedly point the interested reader towards the text of the Alien Friends Act of 1798,[1] these links actually direct one to Avalon’s copy of the Alien Enemies Act of 1798.[2] The error becomes clear when one peruses pp. 570572 & 577578 in Volume 1 of the Statutes at Large.

The problem begins at Avalon’s home page for Alien & Sedition Act materials, which contains the following link:

1798 : The Alien Act – An Act Respecting Alien Enemies : July 6

Similarly, Avalon’s copy of the Virginia Resolution reads, in relevant part:

That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “Alien and Sedition Acts” passed at the last session of Congress….

Avalon’s copy of the Kentucky Resolution likewise contains this passage:

…that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiesecence as highly criminal….

Also afflicted is Avalon’s copy of Jefferson’s Kentucky Resolutions draft:

4. _Resolved_, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the — day of July, 1798, intituled “An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.


6. _Resolved_, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple _order_ of the President to depart out of the United States, as is undertaken by said act intituled “An Act concerning aliens,” is contrary to the Constitution, one amendment to which has provided that “no person shall be deprived of liberty without due process of law;” and that another having provided that “in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence,” the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defence, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force….


…let the honest advocate of confidence read the alien and sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits….

One may wonder why this is such a big deal.  Are the laws in question really that different?  In fact they are.  The Alien Enemies Act was a far narrower statute than its (in)famous cousin.  Although the Act did authorize Presidential proclamations imposing preventive detention,[3] summary deportation,[4] and various lesser restrictions upon liberties,[5] its reach was restricted to “alien enemies” – i.e., citizens or subjects belonging to a “hostile government or nation” upon which the United States has either declared war, or by which the US is threatened with “invasion or predatory incursion”.[6] With only minor amendments, it has remained on the books since 1798, and is currently codified in 50 U.S.C. § 21 et seq.

The Alien Friends Act, by contrast, was a peacetime measure, which applied to all aliens – including, significantly, so-called “alien friends” who hailed from nations with which the United States was at peace.  It also authorized summary deportation,[7] preventive detention,[8] and various lesser restrictions[9] – but did so without regard to whether an alien’s country of origin was friendly or hostile to the United States.  (Another less-noteworthy difference vis-à-vis the Alien Enemies Act was the existence of a sunset clause establishing a two-year lifespan.[10])

Preserving the distinction between these two acts is not mere nitpicking; it’s also a matter of historical accuracy.  When historians speak of the grand constitutional controversy surrounding the “Alien & Sedition Acts”, it is the Alien Friends Act that they’re referring to, not the Alien Enemies Act.  The constitutionality of the latter was largely non-controversial during debate over the Alien & Sedition Acts:  even opponents of the Alien Friends Act conceded the constitutionality of the Enemies Act, which was viewed as being incidental to the federal government’s war powers.  James Madison, for instance, implicitly admitted as much, in this passage from his celebrated Virginia Report:

much confusion and fallacy have been thrown into question, by blending the two cases of aliens, members of a hostile nation; and aliens, members of friendly nations. These two cases are so obviously and so essentially distinct, that it occasions no little surprise that the distinction should have been disregarded: and the surprise is so much the greater, as it appears that the two cases are actually distinguished by two separate acts of Congress, passed at the same session, and comprised in the same publication; the one providing for the case of “alien enemies;” the other “concerning aliens” indiscriminately; and consequently extending to aliens of every nation in peace and amity with the United States. With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress is denied to be constitutional; and it is accordingly against this act, that the protest of the General Assembly is expressly and exclusively directed.[11]

Albert Gallatin, a leading Republican, expressed similar sentiments when debating the Alien Enemies Act in Congress:

…[A]lthough Congress has not the power to remove alien friends, it cannot be inferred, as had been objected, that it had not the power to remove alien enemies; this last authority resulted from the power to make all laws necessary to carry into effect one of the specific powers given by the Constitution.  Among these powers is that of declaring war, which includes that of making prisoners of war, and of making regulations with respect to alien enemies, who are liable to be treated as prisoners of war.  By virtue of that power, and in order to carry it into effect, Congress could dispose of the person and property of alien enemies as it thinks fit, provided it be according to the laws of nations and to treaties.[12]

By contrast, the constitutionality of the Alien Friends Act (along with the Sedition Act) was vociferously denied by Republicans,[13] challenged by the Virginia & Kentucky Resolutions,[14] and ultimately condemned by history.  To conflate the Alien Friends Act and the Alien Enemies Act is therefore to commit a historical error of no small magnitude.

I have emailed the Avalon Project on more than one occasion, informing them of this error and asking them to correct it.  Alas, to no avail.  So I post this here instead, partly in order to vent my (relatively mild) frustration, and partly for the purposes of general edification.  And that’s all I have to say about that….

[1] Act of Jun. 25, 1798, Ch. 58, 1 Stat. 570.

[2] Act of Jul. 6, 1798, Ch. 66, 1 Stat. 577 (codified as amended at 50 U.S.C. § 21 to 24).

[3] Act of Jul. 6, 1798, Ch. 66, 1 Stat. 577, § 1 (providing that “[A]ll natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.”).

[4] Act of Jul. 6, 1798, Ch. 66, 1 Stat. 577, § 1 (authorizing the President to specify “the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security their residence shall be permitted” and “to establish any other regulations which shall be found necessary in the premises and for the public safety”).

[5] Act of Jul. 6, 1798, Ch. 66, 1 Stat. 577, § 1 (authorizing the President “to provide for the removal of those, who, not being permitted to reside within the United States, shall refuse or neglect to depart therefrom”).

[6] Act of Jul. 6, 1798, Ch. 66, 1 Stat. 577, § 1.

[7] Act of Jun. 25, 1798, Ch. 58, 1 Stat. 570, § 1 (authorizing 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 grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States”).

[8] Act of Jun. 25, 1798, Ch. 58, 1 Stat. 570, § 1 (providing that if “any alien, so ordered to depart,” fails to do so, “every such alien shall, on conviction thereof be imprisoned for a term not exceeding three years, and shall never after be admitted to become a citizen of the United States.”).  In combination with the President’s power, under the act, to summarily order such aliens’ departures, this effectively permitted de facto preventive detention of any alien who was guilty of no crime besides failing to obey such an order.

[9] Act of Jun. 25, 1798, Ch. 58, 1 Stat. 570, § 1 (providing that “if any alien so ordered to depart shall prove to the satisfaction of the President…that no injury or danger to the United States will arise from suffering such alien to reside therein, the President may grant a license to such alien to remain within the United States for such time as he shall judge proper, and at such place as he may designate.”).  Of course the power to grant licenses also implied the power to prescribe the terms of said licenses.

[10] Act of Jun. 25, 1798, Ch. 58, 1 Stat. 570, § 6 (providing that “this act shall continue and be in force for and during the term of two years from the passing thereof.”).

[11] James Madison, Report on the Virginia Resolutions, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 546, 554 (J. Elliot ed. 1836) (emphasis in original).

[12] 5 ANNALS OF CONG. 1980 (1798).  Opponents did dispute the prudence of various enforcement provisions in an earlier version of the Act.  See generally id. at 1785-1796.  The main objections appear to have been towards the third section of bill, which aimed to criminalize harboring of alien enemies, & other types of non-cooperation, by citizens, with Presidential proclamations regarding alien enemies.  Id. at 1786.  The language of this section was arguably vague enough that it could be read as criminalizing noncompliance with Presidential proclamations of any kind.  See id.  Hence, Gallatin argued that the Act ought to specifically define the obligations of citizens regarding alien enemies.  Id. at 1795 (statement of Albert Gallatin).  Others feared this section could be an ex post facto law.  Id. at 1786-1787 (statement of James Bayard).  Gallatin’s objections to the rest of the bill focused on the its delegation of power to the President regarding the securement & deportation of alien enemies; and the vagueness of the phrase “unusual severities” in the bill’s first section.  Id. at 1793-1795 (statement of Albert Gallatin).

[13] See, e.g., id. at 1955-1957 (speech of Albert Gallatin), 1962-1965 (speech of Robert Williams), 1967-1969 (speech of Abraham Baldwin), & 2005-2015 (speech of Edward Livingston); also James Madison, Report on the Virginia Resolutions, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 546, 554-561 (J. Elliot ed. 1836).

[14] Although the Virginia Resolutions mentioned only the “Alien and Sedition Acts”, Madison’s Report clarifies that this referred to the Alien Friends Act, not the Alien Enemies Act.  See Virginia Resolutions of 1798, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 528 (J. Elliot ed. 1836).  The Kentucky Resolutions’ various mentions of “alien friends” and “An Act concerning Aliens” make clear its target was the Alien Friends Act.  See Kentucky Resolutions of 1798, 1799, reprinted in 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 540, 541 (J. Elliot ed. 1836).