Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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ALIEN AND SEDITION LAWS

I.37.1

ALIEN AND SEDITION LAWS (IN U. S. HISTORY), two acts passed by the federalist majority in the summer of 1798. The session opened in December, 1797, with a strong federalist majority in the senate, and a democratic-republican majority in the house, which for several months voted down every attempt to resist by force the aggressions of France upon American commerce. But the publication of the dispatches from the X. Y. Z. mission in April, 1798, erased party divisions for the time, silenced the republican leaders, converted all the lukewarm republicans to an intense hostility to France, and gave both houses to federalist control. The leading republican journalists were mostly foreigners, Frenchmen, and refugee Scotchmen, Irishmen, and Englishmen, who had excited the warmest hatred of the federalists by their scurrilous and intemperate language, and by their open advocacy of the extreme violence of French republicanism. One of the first objects of the federalists, after providing for an increase of the army and navy, was to muzzle these aliens, and to this end the acts above mentioned were passed.

I.37.2

—There were three alien laws. The first was an amendment of the naturalization laws, extending the necessary previous residence to fourteen years instead of five, and requiring five years previous declaration of intention to become a citizen instead of three. Alien enemies could not become citizens at all. A register was to be kept of all aliens resident in the country, who were to enter their names under penalties in case of neglect; and in case of application to be naturalized the certificate of an entry in this register was to be the only proof of residence whenever residence began after the date of this act. The second, passed June 25 was limited by its terms to two years of operation. It authorized the president to order out of the country all such aliens as he might judge dangerous to the peace and safety of the United States, or might suspect to be concerned in any treasonable or secret machinations. The third provided that, whenever any foreign nation declared war against or invaded the United States, all resident aliens, natives or citizens of the hostile nation, might, upon a proclamation to that effect, to be issued at the president's discretion, be apprehended and secured, or removed. The first and third of these acts met no warm opposition, though the first was repealed when the republicans gained power. The second is the one which is known pre-eminently as the alien act. It was opposed as an unconstitutional interference with the right secured to the existing states to permit until 1808 the importation or emigration of any such persons as they might think proper; as an attempt to usurp undelegated powers over aliens who were legally under the jurisdiction and protection of the laws of the state wherein they lived (see KENTUCKY RESOLUTIONS, IV.); and as an unconstitutional interference with the right of trial by jury. The first alien act, as to naturalization, was repealed by the act of April 14, 1802, which re-established the former requisites of time of residence. The second and third of these acts have no further history, for no prosecutions or direct presidential action took place under or by virtue of them. They are important only as one moving cause of the Kentucky and Virginia resolutions, and of the overthrow of the federal party at the next presidential election.

I.37.3

—According to Jefferson a sedition law had been threatened in April, but no steps toward it were taken in congress, until June 26, when Lloyd, of Maryland, a federalist senator, introduced a bill in four sections, to define more precisely the crime of treason, and to define, and punish the crime of sedition. The first section of Lloyd's bill declared the people of France enemies of the United States, and adherence to them, giving them aid or comfort, to be treason, punishable with death. The second section defined misprision of treason and prescribed its penalties. The third section made it a high misdemeanor, punishable by fine not exceeding $5,000, imprisonment from six months to five years, and binding to good behavior at the discretion of the court, for any persons unlawfully to combine and conspire together, with intent to oppose any measures of the government of the United States, directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding office under the government of the United States from executing his trust, or with like intent to commit, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination. The fourth section provided that any person who, by writing, printing, publishing, or speaking, should attempt to justify the hostile conduct of the French, or to defame or weaken the government or laws of the United States by any seditious or inflammatory declarations or expressions, tending to induce a belief that the government or any of its officers were influenced by motives hostile to the constitution, or to the liberties or happiness of the people, might be punished by fine or imprisonment, the amount and time being left blank in the draft of the bill. The first and second sections were struck out, and the bill, having thus been razeed to a bill of two sections the third and fourth of Lloyd's draft, passed the senate by a vote of 12 to 6. In the house it also passed, by a vote of 44 to 41, but with a very material change. The extremely objectionable second section, (the fourth of the draft above given), whose intentional looseness and vagueness of expression could have made criminal every form of party opposition to the federalist majority, was struck out. In place of it was inserted a new second section which subjected to a fine not exceeding $2,000, and imprisonment not exceeding two years, the printing or publishing any false, scandalous and malicious writings against the government of the United States, or either house of the congress, or the president, with intent to defame them or to bring them into contempt or disrepute, or to excite against them the hatred of the good people of the United States, or to stir up sedition, or with intent to excite any unlawful combination for opposing or resisting any law of the United States, or any lawful act of the president, or to excite generally to oppose or to resist any such law or act, or to aid, abet or encourage any hostile designs of any foreign nation against the United States. A third section was then added, providing that in all prosecutions under this section the truth of the matter stated might be given in evidence, as a good defense, the jury to be judges both of law and fact; and by a fourth section the act was to continue in force only until March 4, 1801. The credit of the last two sections is due to Bayard of Delaware. The bill as finally passed, therefore, consisted of four sections, the first being the third of Lloyd's draft, and the second, third and fourth the ones just given. The objections to it are its evident intention to restrain freedom of speech and of the press, both of which are guaranteed by the constitution, and its attempt to enlarge the sphere of the federal judiciary by impliedly recognizing its common law jurisdiction in criminal matters. The first objection can hardly be met successfully; in this respect the law was patently unconstitutional, partisan, and dangerous, and the only precedents in justification of it are drawn from the action of state legislatures or the federal government during the revolution or under the confederation, (but see WAR POWER). The second requires further consideration.

I.37.4

—In civil matters the rules of the common law have always been followed by federal as by state courts. In criminal matters the state courts, in addition to the jurisdiction given them by statute, had always exercised a very extensive jurisdiction, which they still exercise, though to a less extent, over a class of offenses which are so not by any statutory enactment, but by custom, that is, by common law. Any of these could of course, at any time, be taken out of the common law by statute, and made a statutory offense with strict bounds of punishment; and libel has since been so treated by all the states. But in 1798 libel was still a common law offense, and the state courts claimed and exercised arbitrary power as to the extent of the punishment to be inflicted in case of conviction. It had never been decided whether the federal courts possessed this common law criminal jurisdiction, but it was known that most of the federal judges believed that they did possess it, and most of the federalists were inclined to the same opinion. The republicans, on the contrary, believed that the crimes expressly enumerated in the constitution—treason, counterfeiting United States coin or securities, piracy, and offenses against the laws of nations—were the only crimes over which federal courts had jurisdiction. If the doctrine of the federalists was correct (and it was certainly never contradicted by the federal courts until 14 years had passed, and the judiciary, with the other departments of government, had fallen into democratic hands) then the sedition law was a very salutary remedial modification of the common law, since it allowed the truth to be given in evidence, and laid down bounds of punishment, which the judges could not pass. If, on the other hand, the republican doctrine was correct, the sedition law was a pernicious precedent, since, by making a common law offense statutory, it implied a common law criminal jurisdiction in the federal courts, wherever statutes did not interfere. The republicans had little legal talent in their ranks in 1798, and had made little open opposition to the federalist claims on this point. But Jefferson at once perceived the limitless consequences which were entailed by the admission and permanent establishment of the principle implied in the sedition law. It was law, until overthrown by the supreme court, which was not at all likely while the supreme court was under federalist control. Individuals were thus irrevocably brought under the operation of a law which, under the very general term of "opposing" the government, made party opposition criminal. To prevent the extension to the state governments of the same prohibition of opposition, under some as yet unthoughtof product of federalist legal ingenuity, the Virginia and Kentucky resolutions were prepared and passed, (see KENTUCKY RESOLUTIONS).

I.37.5

—It is not a little characteristic, however, of the immature politics of 1798, that the alien law directed mainly against French refugees, provoked far more republican rhetoric than the sedition law, directed against native born citizens as well, though there were at least six prosecutions under the latter act and none at all under the former. Neither party had yet advanced far enough in political experience to learn that "the common law offense of libeling a government is ignored in constitutional systems, as inconsistent with the genius of free institutions." In the case of the sedition law the republicans felt the blow rather because it was aimed at them as a party than because of any deep-seated aversion to such laws as legitimate weapons in party warfare; in the case of the alien law, its apparent enmity to France was the touchstone by which alone most of the republicans judged of its iniquity. (See KENTUCKY AND VIRGINIA RESOLUTIONS, FEDERAL PARTY, DEMOCRATIC-REPUBLICAN PARTY.)

I.37.6

—See 2 Benton's Debates of Congress; 1 von Hoist's United States, 142; 5 Hildreth's United States, 215-236; 1 Schouler's United States, 393; and authorities under articles above referred to. The alien acts of June 18, June 25, and July 6, are in 1 Stat. at Large, 566, 570, 577, (see also authorities under AMERICAN PARTY). The sedition law of July 14 is in 1 Stat. at Large, 596. For the subsequent denial of common law criminal jurisdiction, by federal courts, see 7 Cranch, 32; 1 Wheat., 415; 8 Pet., 658 (per McLean, J.). The argument in favor of such jurisdiction will be found in Story's Commentaries, § 158 (note), and authorities there cited; against it, in 1 Bishop's Criminal Law, §§ 16-18, and authorities there cited. Lyon's fine was refunded by act of July 4, 1840, (6 Stat. at Large, 802), and Cooper's by act of July 29, 1850, (9 Stat. at Large, 799), the money in both cases going to the heirs.

ALEXANDER JOHNSTON.

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