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Congressional Report Defending the Alien and Sedition Laws 21 February 1799 - Lance Banning, Liberty and Order: The First American Party Struggle [1787]

Edition used:

Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Congressional Report Defending the Alien and Sedition Laws 21 February 1799

The committee to whom were referred the memorials of sundry inhabitants … , complaining of the act entitled “An act concerning aliens,” and other late acts of Congress, submit the following report:

It is the professed object of these petitions to solicit a repeal of two acts passed during the last session of Congress, the one “An act concerning aliens,” the other “An act in addition to an act for the punishment of certain crimes against the United States,” on the ground of their being unconstitutional, oppressive, and impolitic.

The committee cannot, however, forbear to notice that the principal measures hitherto adopted for repelling the aggressions and insults of France have not escaped animadversion.

Complaints are particularly directed against the laws providing for a navy; for augmenting the army; authorizing a provisional army and corps of volunteers; for laying a duty on stamped vellum, parchment, and paper; assessing and collecting direct taxes; and authorizing loans for the public service.

With these topics of complaint, in some of the petitions, are intermingled invectives against the policy of the government from an early period and insinuations derogatory to the character of the legislature and of the administration… .

The act concerning aliens and the act in addition to the act entitled an act for the punishment of certain crimes shall be first considered.

Their constitutionality is impeached. It is contended that Congress have no power to pass a law for removing aliens.

To this it is answered that the asylum given by a nation to foreigners is mere matter of favor, resumable at the public will. On this point abundant authorities might be adduced, but the common practice of nations attests the principle.

The right of removing aliens, as an incident to the power of war and peace, according to the theory of the Constitution, belongs to the government of the United States. By the fourth section of the fourth article of the Constitution, Congress is required to protect each state from invasion, and is vested by the eighth section of the fifth article with power to make all laws which shall be proper to carry into effect all powers vested by the Constitution in the government of the United States or in any department or officer thereof; and to remove from the country, in times of hostility, dangerous aliens, who may be employed in preparing the way for invasion, is a measure necessary for the purpose of preventing invasion and, of course, a measure that Congress is empowered to adopt… .

This law is said to violate that part of the Constitution which provides that the trial of all crimes, except in cases of impeachment, shall be by jury; whereas this act invests the President with power to send away aliens on his own suspicion, and thus to inflict punishment without trial by jury.

It is answered, in the first place, that the Constitution was made for citizens, not for aliens, who of consequence have no rights under it, but remain in the country and enjoy the benefit of the laws, not as matter of right, but merely as matter of favor and permission; which favor and permission may be withdrawn whenever the government charged with the general welfare shall judge their further continuance dangerous.

It is answered, in the second place, that the provisions in the Constitution relative to presentment and trial of offenses by juries, do not apply to the revocation of an asylum given to aliens. Those provisions solely respect crimes, and the alien may be removed without having committed any offense, merely from motives of policy or security. The citizen, being a member of society, has a right to remain in the country, of which he cannot be disfranchised, except for offenses first ascertained on presentment and trial by jury.

It is answered, thirdly, that the removal of aliens, though it may be inconvenient to them, cannot be considered as a punishment inflicted for an offense, but, as before remarked, merely the removal from motives of general safety of an indulgence which there is danger of their abusing, and which we are in no manner bound to grant or continue.

The “Act in addition to an act entitled an act for the punishment of certain crimes against the United States,” commonly called the “sedition act,” contains provisions of a two-fold nature: first, against seditious acts; and, second, against libelous and seditious writings. The first have never been complained of, nor has any objection been made to its validity. The objection applies solely to the second; and on the ground, in the first place, that Congress have no power by the Constitution to pass any act for punishing libels, no such power being expressly given; and all powers not given to Congress being reserved to the states, respectively, or the people thereof.

To this objection it is answered that a law to punish false, scandalous, and malicious writings against the government, with intent to stir up sedition, is a law necessary for carrying into effect the power vested by the Constitution in the government of the United States and in the departments and officers thereof, and, consequently, such a law as Congress may pass; because the direct tendency of such writings is to obstruct the acts of the government by exciting opposition to them, to endanger its existence, by rendering it odious and contemptible in the eyes of the people, and to produce seditious combinations against the laws, the power to punish which has never been questioned; because it would be manifestly absurd to suppose that a government might punish sedition and yet be void of power to prevent it by punishing those acts which plainly and necessarily lead to it; and because, under the general power to make all laws proper and necessary for carrying into effect the powers vested by the Constitution in the government of the United States, Congress has passed many laws for which no express provision can be found in the Constitution, and the constitutionality of which has never been questioned; such as the first section of the act now under consideration, for punishing seditious combinations; the act passed during the present session for punishing persons who, without authority from the government, shall carry on any correspondence relative to foreign affairs with any foreign government; the act for the punishment of certain crimes against the United States, which defines and punishes misprision of treason; the tenth and twelfth sections, which declare the punishment of accessories to piracy, and of persons who shall confederate to become pirates themselves, or to induce others to become so; the fifteenth section, which inflicts a penalty on those who steal or falsify the record of any court of the United States; the eighteenth and twenty-first sections, which provide for the punishment of persons committing perjury in any court of the United States, or attempting to bribe any of their judges; the twenty-second section, which punishes those who obstruct or resist the process of any court of the United States; and the twenty-third, against rescuing offenders who have been convicted of any capital offense before those courts; provisions, none of which are expressly authorized, but which have been considered as constitutional because they are necessary and proper for carrying into effect certain powers expressly given to Congress.

It is objected to this act, in the second place, that it is expressly contrary to that part of the Constitution which declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the liberty of the press.” The act in question is said to be an abridgment of the liberty of the press and therefore unconstitutional.

To this it is answered, in the first place, that the liberty of the press consists, not in a license for every man to publish what he pleases, without being liable to punishment if he should abuse this license to the injury of others, but in a permission to publish, without previous restraint, whatever he may think proper, being answerable to the public and individuals for any abuse of this permission to their prejudice; in like manner as the liberty of speech does not authorize a man to speak malicious slanders against his neighbor, nor the liberty of action justify him in going by violence into another man’s house, or in assaulting any person whom he may meet in the streets. In the several states the liberty of the press has always been understood in this manner, and no other; and the constitution of every state which has been framed and adopted since the Declaration of Independence asserts “the liberty of the press;” while in several, if not all, their laws provide for the punishment of libellous publications, which would be a manifest absurdity and contradiction if the liberty of the press meant to publish any and every thing without being amenable to the laws for the abuse of this license. According to this just, legal, and universally admitted definition of “the liberty of the press,” a law to restrain its licentiousness in publishing false, scandalous, and malicious libels against the government, cannot be considered as an “abridgment” of its “liberty.”

It is answered, in the second place, that the liberty of the press did never extend, according to the laws of any state, or of the United States, or of England, from whence our laws are derived, to the publication of false, scandalous, and malicious writings against the government, written or published with intent to do mischief, such publications being unlawful and punishable in every state; from whence it follows, undeniably, that a law to punish seditious and malicious publications is not an abridgment of the “liberty of the press”; for it would be a manifest absurdity to say that a man’s liberty was abridged by punishing him for doing that which he never had a liberty to do.

It is answered, thirdly, that the act in question cannot be unconstitutional because it makes nothing penal that was not penal before, and gives no new powers to the court, but is merely declaratory of the common law and useful for rendering that law more generally known and more easily understood. This cannot be denied if it be admitted, as it must be, that false, scandalous, and malicious libels against the government of the country, published with intent to do mischief, are punishable by the common law; for, by the second section of the third article of the Constitution, the judicial power of the United States is expressly extended to all offenses arising under the Constitution. By the Constitution, the government of the United States is established, for many important objects, as the government of the country; and libels against that government, therefore, are offenses arising under the Constitution, and consequently are punishable at common law by the courts of the United States. The act, indeed, is so far from having extended the law and the power of the court, that it has abridged both and has enlarged instead of abridging the “liberty of the press”; for, at common law, libels against the government might be punished with fine and imprisonment at the discretion of the court, whereas the act limits the fine to two thousand dollars and the imprisonment to two years; and it also allows the party accused to give the truth in evidence for his justification, which, by the common law, was expressly forbidden.

And lastly, it is answered that had the Constitution intended to prohibit Congress from legislating at all on the subject of the press, which is the construction whereon the objections to this law are founded, it would have used the same expressions as in that part of the clause which relates to religion and religious tests; whereas the words are wholly different: “Congress,” says the Constitution [First Amendment], “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or the press.” Here it is manifest that the Constitution intended to prohibit Congress from legislating at all on the subject of religious establishments, and the prohibition is made in the most express terms. Had the same intention prevailed respecting the press, the same expressions would have been used, and Congress would have been “prohibited from passing any law respecting the press.” They are not, however, “prohibited” from legislating at all on the subject, but merely from abridging the liberty of the press. It is evident they may legislate respecting the press, may pass laws for its regulation, and to punish those who pervert it into an engine of mischief, provided those laws do not “abridge” its “liberty.” Its liberty, according to the well-known and universally admitted definition, consists in permission to publish, without previous restraint upon the press, but subject to punishment afterwards for improper publications. A law, therefore, to impose previous restraint upon the press, and not one to inflict punishment on wicked and malicious publications, would be a law to abridge the liberty of the press, and, as such, unconstitutional.

The foregoing reasoning is submitted as vindicating the validity of the laws in question.

Although the committee believe that each of the measures adopted by Congress during the last session is susceptible of an analytical justification on the principles of the Constitution and national policy, yet they prefer to rest their vindication on the true ground of considering them as parts of a general system of defense, adapted to a crisis of extraordinary difficulty and danger.

It cannot be denied that the power to declare war, to raise and support armies, to provide and maintain a navy, to suppress insurrections, and repel invasions, and also the power to defray the necessary expense by loans or taxes, is vested in Congress. Unfortunately for the present generation of mankind, a contest has arisen and rages with unabated ferocity, which has desolated the fairest portions of Europe and shaken the fabric of society through the civilized world. From the nature and effects of this contest, as developed in the experience of nations, melancholy inferences must be drawn, that it is unsusceptible of the restraints which have either designated the objects, limited the duration, or mitigated the horrors of national contentions. In the internal history of France, and in the conduct of her forces and partisans in the countries which have fallen under her power, the public councils of our country were required to discern the dangers which threatened the United States, and to guard not only against the usual consequences of war, but also against the effects of an unprecedented combination to establish new principles of social action on the subversion of religion, morality, law, and government. Will it be said that the raising of a small army and an eventual provision for drawing into the public service a considerable proportion of the whole force of the country was, in such a crisis, unwise or improvident?

If such should be the assertion, let it be candidly considered whether some of our fertile and flourishing states did not, six months since, present as alluring objects for the gratification of ambition or cupidity as the inhospitable climate of Egypt. What then appeared to be the comparative difficulties between invading America and subverting the British power in the East Indies? If this was a professed, not real object of the enterprise, let it be asked if the Sultan of the Ottoman empire was not really the friend of France at the time when his unsuspecting dependencies were invaded; and whether the United States were not, at the same time, loaded with insults and assailed with hostility? If, however, it be asserted that the system of France is hostile only to despotic or monarchical governments, and that our security arises from the form of our Constitution, let Switzerland, first divided and disarmed by perfidious seductions, now agonized by relentless power, illustrate the consequences of similar credulity. Is it necessary at this time to vindicate the naval armament? Rather may not the inquiry be boldly made, whether the guardians of the public weal would not have deserved and received the reproaches of every patriotic American if a contemptible naval force had been longer permitted to intercept our necessary supplies, destroy our principal source of revenue, and seize, at the entrance of our harbors and rivers, the products of our industry destined to our foreign markets? If such injuries were at all to be repelled, is not the restriction which confined captures by our ships solely to armed vessels of France a sufficient proof of our moderation?

If, therefore, naval and military preparations were necessary, a provision of funds to defray the consequent expenses was of course indispensable; a review of all the measures that have been adopted since the establishment of the government will prove that Congress have not been unmindful of the wishes of the American people to avoid an accumulation of the public debt; and the success which has attended these measures affords conclusive evidence of the sincerity of their intentions. But to purchase sufficient quantities of military supplies to establish a navy and provide for all the contingencies of an army without recourse to new taxes and loans, was impracticable; both measures were, in fact, adopted. In devising a mode of taxation, the convenience and ease of the least wealthy class of the people were consulted as much as possible; and, although the expenses of assessment have furnished a topic of complaint, it is found that the allowances are barely sufficient to ensure the execution of the law, even aided as they are by the disinterested and patriotic exertions of worthy citizens; besides, it ought to be remembered that the expenses of organizing a new system should not, on any principle, be regarded as a permanent burden on the public.

In authorizing a loan of money, Congress have not been inattentive to prevent a permanent debt; in this particular, also, the public opinion and interest have been consulted. On considering the law, as well as the manner in which it is proposed to be carried into execution, the committee are well satisfied in finding any excess in the immediate charge upon the revenue is likely to be compensated by the facility of redemption which is secured to the government.

The alien and sedition acts, so called, form a part, and in the opinion of the committee an essential part, in these precautionary and protective measures adopted for our security.

France appears to have an organized system of conduct towards foreign nations to bring them within the sphere and under the dominion of her influence and control. It has been unremittingly pursued under all the changes of her internal polity. Her means are in wonderful coincidence with her ends: among these, and not least successful, is the direction and employment of the active and versatile talents of her citizens abroad as emissaries and spies. With a numerous body of French citizens and other foreigners, and admonished by the passing scenes in other countries as well as by aspects in our own, knowing they had the power, and believing it to be their duty, Congress passed the law respecting aliens, directing the dangerous and suspected to be removed and leaving to the inoffensive and peaceable a safe asylum.

The principles of the sedition law, so called, are among the most ancient principles of our governments. They have been engrafted into statutes, or practiced upon as maxims of the common law, according as occasion required. They were often and justly applied in the revolutionary war. Is it not strange that now they should first be denounced as oppressive, when they have long been recognized in the jurisprudence of these States?

The necessity that dictated these acts, in the opinion of the committee, still exists.

So eccentric are the movements of the French government that we can form no opinion of their future designs towards our country. They may recede from the tone of menace and insolence to employ the arts of seduction, before they astonish us with their ultimate designs. Our safety consists in the wisdom of the public councils, a cooperation, on the part of the people with the government, by supporting the measures provided for repelling aggressions, and an obedience to the social laws.

After a particular and general review of the whole subject referred to their consideration, the committee see no ground for rescinding these acts of the legislature. The complaints preferred by some of the petitioners may be fairly attributed to a diversity of sentiment naturally to be expected among a people of various habits and education, widely dispersed over an extensive country; the innocent misconceptions of the American people will, however, yield to reflection and argument, and from them no danger is to be apprehended.

In such of the petitions as are conceived in a style of vehement and acrimonious remonstrance, the committee perceive too plain indications of the principles of that exotic system which convulses the civilized world. With this system, however organized, the public councils cannot safely parley or temporize, whether it assumes the guise of patriotism to mislead the affections of the people; whether it be employed in forming projects of local and eccentric ambition, or shall appear in the more generous form of open hostility, it ought to be regarded as the bane of public as well as private tranquillity and order.

Those to whom the management of public affairs is now confided cannot be justified in yielding any established principles of law or government to the suggestions of modern theory; their duty requires them to respect the lessons of experience and transmit to posterity the civil and religious privileges which are the birthright of our country, and which it was the great object of our happy Constitution to secure and perpetuate.

Impressed with these sentiments, the committee beg leave to report the following resolutions:

Resolved, that it is inexpedient to repeal the act passed the last session, entitled “An act concerning aliens.”

Resolved, That it is inexpedient to repeal the act passed the last session, entitled “An act in addition to the act entitled lsquo;An act for the punishment of certain crimes against the United States.’”

Resolved, That it is inexpedient to repeal any of the laws respecting the navy, military establishment, or revenue of the United States.