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Article 1, Section 8, Clause 4 (Citizenship)

Document 14

James Iredell, Charge to Grand Jury

9 Fed. Cas. 826, no. 5,126 C.C.D.Pa. 1799

I. The alien laws, there being two. To these laws, in particular, it has been objected: 1. That an alien ought not to be removed on suspicion, but on proof of some crime. 2. That an alien coming into the country, on the faith of an act stipulating that in a certain time, and on certain conditions, he may become a citizen, to remove him in an arbitrary manner before that time, would be a breach of public faith. 3. That it is inconsistent with the following clause in the constitution (article 1, § 9): "The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."

With regard to the first objection, viz., "That an alien ought not to be removed on suspicion, but on proof of some crime." It is believed that it never was suggested in any other country, that aliens had a right to go into a foreign country, and stay at their will and pleasure without any leave from the government. The law of nations undoubtedly is, that when an alien goes into a foreign country, he goes under either an express or implied safe conduct. In most countries in Europe, I believe, an express passport is necessary for strangers. Where greater liberality is observed, yet it is always understood that the government may order away any alien whose stay is deemed incompatible with the safety of the country. Nothing is more common than to order away, on the eve of a war, all aliens or subjects of the nation with whom the war is to take place. Why is that done, but that it is deemed unsafe to retain in the country, men whose prepossessions are naturally so strong in favour of the enemy, that it may be apprehended they will either join in arms, or do mischief by intrigue, in his favour? How many such instances took place at the beginning of the war with Great Britain, no body then objecting to the authority of the measure, and the expediency of it being alone in contemplation! In cases like this, it is ridiculous to talk of a crime; because perhaps the only crime that a man can then be charged with, is his being born in another country, and having a strong attachment to it. He is not punished for a crime that he has committed, but deprived of the power of committing one hereafter to which even a sense of patriotism may tempt a warm and misguided mind. Nobody who has ever heard of Major André, that possesses any liberality of mind, but must believe that he did what he thought right at the time, though in my opinion it was a conduct in no manner justifiable. Yet how fatal might his success have proved! If men, therefore, of good character, and held in universal estimation for integrity, can be tempted when a great object is in view, to violate the strict duties of morality, what may be expected from others who have neither character nor virtue, but stand ready to yield to temptations of any kind? The opportunities during a war of making use of men of such a description are so numerous and so dangerous, that no prudent nation would ever trust to the possible good behaviour of many of them. Indeed, most of those who oppose this law seem to admit that as to alien enemies the interposition may be proper, but they contend it is improper, before a war actually takes place, to exercise such an authority, and that as to neutral aliens, it is totally inadmissible. To be sure the two latter instances are not quite so plain; the objection I am considering belongs equally to them all; for if an alien cannot be removed but on conviction of a crime, then an alien enemy ought not to be removed but on conviction of treason, or some other crime showing the necessity of it. If, however, we are not blind to what is evident to all the rest of the world, equal danger may be apprehended from the citizens of a hostile power, before war is actually declared as after, perhaps more, because less suspicion is entertained; and some citizens of a neutral power are equally dangerous with the others. What has given France possession of the Netherlands, Geneva, Switzerland and almost all Italy, and enables her to domineer over so many other countries, lately powerful and completely independent, but that her arts have preceded her arms; the smooth words of amity, peace, and universal love, by seducing weak minds, have led to an unbounded confidence, which has ended in their destruction, and they have now to deplore the infatuation which led them to court a fraternal embrace from a bosom in which a dagger was concealed.

In how many countries, alien friends as to us, dependent upon them, are there warm partisans not nominally French citizens, but completely illuminated with French principles, electrified with French enthusiasm, and ready for any sort of revolutionary mischief! Are we to be guarded against the former and exposed to the latter? No, gentlemen. If with such examples before their eyes, congress had either confined their precaution to a war in form, or to citizens of France only, losing all sense of danger to their country in a regard to nominal distinctions, they would probably justly have deserved the charge of neglecting their country's safety in one of its most essential points, and hereafter the very men who are now clamorous against them for exercising a judicious foresight, might too late have had reason to charge them, (as many former infatuated governments in Europe may now fairly be charged by their miserable deluded fellow-citizens), as the authors of their country's ruin. But those who object to this law seem to pay little regard to considerations of this kind, and to entertain no other fear but that the president may exercise this authority for the mere purpose of abusing it. There is no end to arguments or suspicions of this kind. If this power is proper, it must be exercised by somebody. If from the nature of it, it could be exercised by so numerous a body as congress, yet as congress are not constantly sitting, it ought not to be exercised by them alone. If they are not to exercise it, who so fit as the president? What interest can he have in abusing such an authority? But on this occasion, as on others of the like kind, gentlemen think it sufficient to show, not that a power is likely to be abused (which is all that can be prudently guarded against), but that it possibly may, and therefore to guard against the possibility of an abuse of power, the power is not at all to be exercised. The argument would be just as good against his acknowledged powers, as any others, that the legislature may occasionally confide to him. Suppose he should refuse to nominate to any office, or to command the army or navy, or should assign frivolous reasons against every law, so that no law could be passed but with the concurrence of two-thirds of both houses! Suppose congress should raise an army without necessity, lay taxes where there was no occasion for money, declare war from mere caprice, lay wanton and oppressive restraints on commerce, or in a time of imminent danger trifle with the safety of their country, to gain a momentary breath of popularity at the hazard of their country's ruin! All this they may do. Does any man of candour, who does not believe everything they do, wrong, apprehend that any of these things will be done? They have the power to do them because the authority to pass very important and necessary acts of legislation on all those subjects, and in regard to which discretion must be left, unavoidably implies that, as it may be exercised in a right manner, it may, if no principle prevent it, be exercised in a wrong one. If the state legislatures should combine to choose no more senators, they may abolish the constitution without the danger of committing treason. If to prevent a house of representatives being in existence, they should keep no law in being for a similar branch of their own, deeming the abolition of the government of the United States cheaply purchased by such a sacrifice, they may do this. They have the same power over the election of a president and vice president. What is the security against abuse in any of these cases? None, but the precautions taken to procure a proper choice, which, if well exercised, will at least secure the public against a wanton abuse of power, though nothing can secure them absolutely against the common frailty of men, or the possibility of bad men, if accidentally invested with power, carrying it into a dangerous extreme. We must trust some persons, and as well as we can, submit to any collateral evil which may arise from a provision for a great and indispensable good that can only be obtained through the medium of human imperfection. At the same time it may be observed, that in the case of the president, or any executive or judicial officer wantonly abusing his trust, he is liable to impeachment, and there are frequent opportunities of changing the members of the legislature, if their conduct is not acceptable to their constituents.

The clause in the constitution, declaring that the trial of all crimes, except by impeachment, shall be by jury, can never in reason be extended to amount to a permission of perpetual residence of all sorts of foreigners, unless convicted of some crime, but is evidently calculated for the security of any citizen, a party to the instrument, or even of a foreigner if resident in the country, who, when charged with the commission of a crime against the municipal laws for which he is liable to punishment, can be tried for it in no other manner.

The second objection is, "that an alien coming into the country, on the faith of an act stipulating that in a certain time and on certain conditions, he may become a citizen, to remove him in an arbitrary manner before that time, would be a breach of public faith." With regard to this, it may be observed, that undoubtedly the faith of government ought, under all circumstances, and in all possible situations, to be preserved sacred. If, therefore, in virtue of this law, all aliens from any part of the world had a right to come here, stay the probationary time, and become citizens, the act in question could not be justified, unless it could be shown that a real (not a pretended) overruling public necessity to which all inchoate acts of legislation must forever be subject, occasioned a partial repeal of it. But there are certain conditions, without which no alien can ever be admitted, if he stay ever so long; and one is, that during a limited time (two years in the case of aliens then resident; five in the case of aliens arriving after), he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same. If his conduct be different, he is no object of the naturalization law at all, and consequently no implied compact was made with him. If his conduct be conformable to that description, he is no object of the alien law to which the objection is applied, because he is not a person whom the president is empowered to remove, for such a person could not be deemed dangerous to the peace and safety of the United States, nor could there be reasonable grounds to suspect such a man of being concerned in any treasonable or secret machinations against the government, in which cases alone the removal of any alien friend is authorized. Besides, any alien coming to this country must, or ought to know, that this being an independent nation, it has all the rights concerning the removal of aliens which belong by the law of nations to any other; that while he remains in the country in the character of an alien, he can claim no other privilege than such as an alien is entitled to; and consequently, whatever risk he may incur in that capacity, is incurred voluntarily, with the hope that in due time, by his unexceptionable conduct, he may become a citizen of the United States. As there is no end to the ingenuity of man, it has been suggested that such a person, if not a citizen, is a denizen, and therefore cannot be removed as an alien. A denizen in those laws from which we derive our own, means a person who has received letters of denization from the king, and under the royal government such a power might undoubtedly have been exercised. This power of denization is a kind of partial naturalization, giving some, but not all of the privileges of a natural born subject. He may take lands by purchase or devise, but cannot inherit. The issue of a denizen born before denization cannot inherit; but if born after may, the ancestor having been able to communicate to him inheritable blood. But this power of the crown was thought so formidable that it is expressly provided by act of parliament, that no denizen can be a member of the privy council, or of either house of parliament, or have any office of trust, civil or military, or be capable of any grant of lands from the crown. Upon the dissolution of the royal government, the whole authority of naturalization, either whole or partial, belonged to the several states, and this power the people of the states have since devolved on the congress of the United States. Denization, therefore, (in the sense here used,) is a term unknown in our law, since the right was not derived from any general legislative authority, but from a special prerogative of the crown, to which parliamentary restrictions afterwards were applied. So much so, that if an act of parliament had passed, giving certain rights to an alien with restrictions exactly similar to those of a denizen, I imagine he would not have been called a denizen; because the royal authority was not the source from which his rights were derived. As to acts of naturalization themselves, they are liable in England, by an express law to certain limitations, one of which is, that the person naturalized is incapable of being a member of the privy council, or either house of parliament, or of holding offices or grants from the crown. Yet I never heard, nor do I believe that such a person was ever called a denizen; for which, as there is no foundation in precedent, or in the constitution of the United States, I presume it is a distinction without solidity. Fixed principles of law cannot be grounded on the airy imagination of man.

The third objection is, "That it is inconsistent with the following clause in the constitution, viz.: "The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on said importation not exceeding ten dollars for each person.'" I am not satisfied, as to this objection, that it is sufficient to overrule it, to say the words do not express the real meaning, either of those who formed the constitution, or those who established it, although I do verily believe in my own mind, that the article was intended only for slaves, and the clause was expressed in its present manner to accommodate different gentlemen, some of whom could not bear the name slaves, and others had objections to it. But though this probably is the real truth, yet, if in attempting to compromise, they have unguardedly used expressions that go beyond their meaning, and there is nothing but private history to elucidate it, I shall deem it absolutely necessary to confine myself to the written instrument. Other reasons may make the point doubtful, but at present I am inclined to think it must be admitted, that congress, prior to the year 1808, cannot prohibit the migration of free persons to a particular state, existing at the time of the constitution, which such state shall, by law, agree to receive. The states then existing, therefore, till 1808, may (we will say) admit the migration of persons to their own states, without any prohibitory act of congress.--This they may do upon principles of general policy, and in consistence with all their other duties. The states are expressly prohibited from entering into an engagement or contract with another state, or engaging in war, unless actually invaded, or in such imminent danger, as will not admit of delay. The avenues to foreign connection being thus carefully closed, it will scarcely be contended, that in case of war, a state could, either directly or indirectly, permit the migration of enemies. If they did, the United States could certainly, without any impeachment of the general right of allowing migration, in virtue of their authority to repel invasion, prevent the arrival of such. And as such invasion may be attempted without a formal war, and congress have an express right to protect against invasion, as well as repel it, I presume congress would also have authority to prevent the arrival of any enemies, coming in the disguise of friends, to invade their country. But, admitting the right to permit migration in its full force, the persons migrating on their authority must be subject to the laws of the country, which consist not only of those of the particular state, but of the United States. While aliens, therefore, they must remain in the character of aliens; and, of course, upon the principles I have mentioned, be subject to a power of removal, in certain cases recognized in the law of nations; nor can they cease to be in this situation, until they become citizens of the United States; in which case they must obey the laws of the Union as well as of the particular state they reside in. But, gentlemen argue as if because the states had a right to permit migration, the migrants were under a sort of special protection of the state admitting it, lest the United States, merely to disappoint the purpose of migration, should exercise an arbitrary authority of removal without any cause at all. It would be just as consistent to say, that if such migrant was charged with a murder on the high seas, or in any fort or arsenal of the United States, he should not be tried for it in a court of the United States, lest the court and juries, out of ill will to the state, should combine to procure his conviction and punishment, in all events, to defeat the state law. The two powers may undoubtedly be made compatible, if the legislatures of the particular states, and the government of the United States, do their duty, without which presumption, not an authority given by the constitution can exist. They surely are more compatible than the collateral powers of taxation, which, under each government, go to an unlimited extent, but the very nature of which forbids any other limitation than a sense of moral right and justice. If we skepticize in the manner of some gentlemen on this subject, suppose each legislature should tax to the amount of 19s. in the pound; each has the power; but is such an exercise of it more apprehended than we apprehend an earthquake to swallow us all up at this very moment? All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description: but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people.

The Founders' Constitution
Volume 2, Article 1, Section 8, Clause 4 (Citizenship), Document 14
The University of Chicago Press

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