The Plain Language of the Alien Enemies Act

In 1798 the U.S. Congress, caught up in the possibility of war against France (then under the Directory government), passed a series of controversial laws.

The Naturalization Law made it harder for immigrants to become citizens of the U.S. of A. by increasing the number of years a person had to live in the country before applying. This was repealed in 1802.

The Act Concerning Aliens (distinguished as the Alien Friends Act) empowered the President to jail or deport any non-citizen who he determined was “dangerous to the peace and safety of the United States.” This expired after two years.

The Sedition Act criminalized combining to oppose government measures and criticizing the U.S. government, House, Senate, or President. The John Adams administration deployed this law against Jeffersonian politicians and printers. It expired in 1800.

The Alien and Sedition Acts were strongly opposed at the time. They led to Jeffersonian victories over Federalists. Since then, historians and legal scholars have almost universally treated these laws as a Bad Thing.

The fourth of those laws from 1798 remained on the books, however: the Act Respecting Alien Enemies. It didn’t have an expiration date. Instead, its language limits the circumstances under which a President can invoke it.

The Alien Enemies Act empowers a President to act only

whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government

If “any foreign nation or government” is in a “declared war” with the U.S. of A. or has made a “predatory incursion,” then the federal government can jail and deport that country’s male citizens aged fourteen or older. The U.S. Constitution further vests the power to declare war in Congress, not the executive branch.

Last week the White House illegally invoked the Alien Enemies Act to justify deporting hundreds of Venezuelans to El Salvador even though there’s no declared war against Venezuela nor any invasion by Venezuela.

In place of the law’s actual conditions, the White House claimed that the Tren de Aragua criminal gang and Venezuela amount to something it calls “a hybrid criminal state.” (It didn’t address how in 2023 the Venezuelan government deployed 11,000 soldiers to break up a Tren de Aragua stronghold.) The White House also claims that illegal migration by individuals, in unspecified numbers, is the equivalent of a government-led invasion.

In some ways, the President is an expert on criminal states. He’s a convicted felon, facing additional federal and state charges, adjudicated as liable for sexual assault, and bound by multiple legal settlements for fraud. But that experience in crime doesn’t give this President the legal power to invoke a statute contrary to its provisions.

The executive branch then further demonstrated its lawlessness by ignoring a judicial order to stop flying people out of the country until the legal issues can be decided.

The Nicolás Maduro regime in Venezuela shows the danger of allowing a coup plotter—in this case, Maduro’s predecessor Hugo Chávez after 1992—to take political office. Coup plotters by definition don’t respect elections and the rule of law. Venezuela is now only nominally republican, actually authoritarian (as is El Salvador). But Venezuela isn’t in declared war against or invading the U.S. of A., as the Alien Enemies Act stipulates. It’s not the only criminal state in this story.

“Our Telegraphe much news relates”

Yesterday I quoted the introductory lines of the verse for 1 Jan 1799 printed for the subscribers to the American Telegraphe in Newfield (later Bridgeport), Connecticut. In the voice of the newspaper carrier Polly, the wife or perhaps the stepdaughter of printer Lazarus Beach, that poem asked readers to “excuse what you cannot commend” in the rest of the broadside. But what might need excusing?

Those verses that followed were a poetic review of the year 1798, and they emphasized political controversies. For example:

Of Frenchmen’s “Diplomatic skill,”
Which many a Telegraphe did fill,—
Of X, Y, Z, and Talleyrand,
And ladies too, a chosen band,
Who undertook t’extort a fee,
From nations sovereign and free,
And after we had crouch’d and feed ’em,
To make us swallow Gallic freedom…

That’s a reference to the XYZ Affair (lampooned above), in which French officials had demanded bribes from American diplomats. With the facts gradually coming out, the nascent American political parties maneuvered for advantages and openings to blame the other side.

At home—of these United States,
Our Telegraphe much news relates:
How French-Americans are bang’d,
Yet Doctor L——n goes unhang’d.
How B——w a long letter wrote,
In right French stile and Gallic note:
For showing which, the Vermont L—n
The cold stone doublet has to try on.

“Doctor L——n” was Dr. George Logan, a Jeffersonian who had tried to effect peace between the U.S. of A. and France through informal contacts. Federalists denounced him as a traitor and passed a law making such unofficial diplomacy illegal.

“B——w” was the American diplomat Joel Barlow, who sent a long, one-sided letter from Paris to his brother-in-law Rep. Abraham Baldwin on 1 Mar 1798 about the friction between America and France. Rep. Matthew Lyon (the “Vermont L—n”) printed that letter and went to jail for that and other offenses under the Sedition Act. The American Telegraphe celebrated rather than condemned that attempt to limit the free press.

How Kentucke and the old Dominion,
(Akin by nature and opinion)
Are ’bout resolving, all at once,
To act the madman and the dunce.
But Carolina and Georgia too,
Are honest, Fed’ral, firm and true,
What then can poor Virginians do?
Why after they’ve cut all their flashes,
Repent in sackcloth, dust and ashes.

That refers to the conflict over the Virginia and Kentucky Resolutions, challenges to the central government drafted by James Madison and Thomas Jefferson, respectively.

There were also some ethnic insults aimed at the French:

Great Buonaparte with his war dogs,
Has gone to Egypt after frogs…

In sum, the bulk of this broadside was Federalist invective. The American Telegraphe was one of the few newspapers to adopt that name which didn’t support the Jeffersonian party. And even at New Year’s, the paper’s employees were spreading its politics. The carrier delivering the verse was therefore in the potentially difficult position of asking for generous contributions while insulting a portion of the public.

But it could have been worse. In The Revolution of American Conservatism, David Hackett Fischer classified the American Telegraphe as “moderately Federalist in 1798.” In The Opposition Press of the Federalist Period, Donald H. Stewart called it “Independently Federalist.” Imagine what those verses would have sounded like if the paper had been strongly Federalist.

The End of the Constitutional Telegraphe

When we left off with John S. Lillie on Tuesday, he was feeling triumphant about the election of Thomas Jefferson as President in 1800. His Constitutional Telegraphe newspaper had strongly supported the Jeffersonian party, though—given how Massachusetts had a favorite son in the race and was already awarding all its Electoral College votes to whoever won the state—that hadn’t actually affected the election.

But Federalists were still in power in New England. And Americans were still working out their understanding of a free press. In February 1801 Chief Justice Francis Dana convinced a jury to indict Lillie for printing an anonymous piece that called him “Lord Chief Justice of the Common Law of England” and cast other aspersions on his integrity. Dana had been trying to apply English libel law in Massachusetts as a way to stamp out “sedition.”

Lillie announced in his 18 February paper that he “prefers to remain for a short time incog.” Too short a time, since state authorities brought him to court in August. Lillie produced the handwritten essay he had published about Dana. People recognized the writing of John Vinal—I suspect this was the man born in 1761 who taught in Boston’s Writing Schools and not his namesake father.

Both Lillie and Vinal were tried in the spring of 1802. For his attorney Lillie had George Blake, who had published essays about the case in the Independent Chronicle and had just been appointed U.S. Attorney for Massachusetts. Vinal had Harrison Gray Otis and John Quincy Adams. That team argued that handwriting wasn’t legal evidence—and indeed it wasn’t yet. So Vinal was acquitted for lack of proof.

There was no question, however, that Lillie’s name appeared on the Constitutional Telegraphe’s masthead. And the U.S. hadn’t established our current understanding of protected political speech. So Lillie was convicted of libel and sentenced to three months in jail and a $100 fine. At the end of March 1802, nineteen days into his term, he published an angry account of the proceedings from his cell and announced he was giving up the newspaper.

A printer named John Moseley Dunham took over, soon changing the paper’s title to the Republican Gazetteer. (The fad for Telelgraphe newspapers had passed.) Later it got new owners and became the Democrat. Dunham went into the ink business before moving to Ohio.

On 12 Oct 1803 Lillie wrote to President Jefferson, enclosing a bill for $4.50 for sending him the Constitutional Telegraphe for six months (October 1801 to April 1802). He explained:

When I was Editor of the News Paper called the Constitutional Telegraphe, I sent it on to you, as did Doctr. [Samuel S.] Parker, who was the original Editor of that Paper. I should not at this late period have thought of forwarding my Bill to you, which I have inclosed in this Letter, but for my misfortunes. I have suffered, Sir, very much in consequence of my too ardent zeal in the Republican cause, & am willing, if it should be necessary, still to suffer more, neither the neglect of my Republican friends, nor the contumely or contempt of my federal enemies, will, I trust, ever induce me to alter my political creed. Perhaps my zeal in the Republican cause when I edited the Telegraphe, made me rather imprudent; I certainly meant well, & my concience does not reproach me with an intention, to injure, either directly, or indirectly, the private character of any man. The distress of my family was great during my unfortunate imprisonment for a supposed libel on Judge Dana; at that time, two of my Children lay at the point of Death, particularly, the youngest, who has the honor to bear your name . . .

You no doubt will recollect Sir, that the Constitutl. Telegraphe, was, at one time, the only decided Republican Paper in this State. and if I know my own heart, when I became its Editor, I had no other view, than the good of my native Country, in the promotion of Republicanism in your Election to the Chief magistracy of the nation, and to this single point I exerted with pleasure all the abilities which I possessed, & had the inexpressible satisfaction to find the cause triumphant

Lillie got what look like federal patronage jobs in the U. S. Loan Office and the U.S. Bank. In 1802 he also inherited the “the old Franklin house on Milk Street”—the Benjamin Franklin birthplace—from his uncle. However, he enjoyed that house for only eight years before it burned down. Lillie died at age 76 in 1842.

“No man…was so hated and despised as Matthew Lyon”

Federalist journalist William Cobbett’s 1798 poem “The Pig and the Lion,” quoted yesterday, didn’t compare William Frederick Pinchbeck’s trained pig to an actual lion. After all, wearing a wooden sword, spitting in people’s faces, and carrying a candle in one’s buttocks isn’t typical leonine behavior.

Rather, Cobbett was comparing the beast to Rep. Matthew Lyon (1749-1822, shown here) of Vermont, a radical Democratic-Republican who became the Federalists’ biggest rhetorical target that year.

Lyon was born in Ireland and came to Connecticut in 1764 as a teen-aged “redemptioner”—meaning he worked as an indentured servant on a farm for a while to pay for his passage. Lyon moved north to the “New Hampshire Grants” in 1774 and was an adjutant and a lieutenant under Col. Seth Warner.

In 1776 Gen. Horatio Gates ordered Lyon to be cashiered. Lyon later claimed that this was because he had failed, despite his best efforts, to prevent his men from mutinying, and that he retained respect locally, which appears to be true. Lyon’s political enemies said he had been condemned to wear a wooden sword as a sign of cowardice, but there doesn’t seem to be evidence for that.

In independent Vermont, Lyon founded the town of Fair Haven, built mills, and started a newspaper. He served in the legislature and in 1796 was elected to represent Vermont in the U.S. Congress. At that time American politicians were openly forming two parties, each blaming the other for factionalism, and the bounds of accepted political behavior were being worked out.

Lyon was from the radical wing of the Democratic-Republican Party. On 30 Jan 1798, he claimed on the House floor that Connecticut Federalists weren’t representing the interests or desires of their constituents. One of those Federalists, Rep. Roger Griswold (1762-1812), replied by asking Lyon if he’d fight for them with his wooden sword. Lyon spat in Griswold’s face. Hence Cobbett’s poetic allusions to a wooden sword and spitting in Christians’ faces.

On 15 February, Griswold ran up to Lyon’s desk and started beating him with a cane. Lyon stumbled to a fireplace and grabbed the tongs to defend himself. The two men grappled before other members pulled them apart. Eventually the House decided not to take action against either Lyon or Griswold since both had behaved badly and both claimed to have won. That episode might have something to do with Cobbett’s candle allusion, though that would be more of a stretch.

In his History of the People of the United States (1914), John Bach McMaster wrote: “No man in the whole Republican party, not Benjamin Franklin Bache, nor Albert Gallatin, nor Thomas Jefferson, nor James Thomas Callender, was so hated and despised as Matthew Lyon.” In October 1798 Lyon was convicted and jailed under the Sedition Act for lambasting President John Adams’s policies toward France, but his constituents overwhelmingly reelected him anyway. He got to cast a decisive vote for Thomas Jefferson during the disputed election of 1800.

The next year, Lyon moved to Kentucky, which he and later his son also represented in Congress. J. Fairfax McLaughlin’s 1900 biography of Lyon is available on Google Books, and there have been more recent studies as well.

Responding to Responses to the Bill of Rights

The April 2012 issue of the William and Mary Quarterly arrived this weekend. Its articles aren’t available free online, but the Omohundro Institute publishes the book reviews for everyone. And in this issue that includes a detailed discussion of M.I.T. professor Pauline Maier’s Ratification: The People Debate the Constitution, 1787-1788, available as a series of P.D.F. files from this page (for now).

First are five essays responding to Ratification by other scholars: Todd Estes, Saul Cornell, Seth Cotlar, Maeva Marcus, and R. B. Bernstein. Maier herself responds to those comments, and then the five respond to her responses. Finally, Maier responds to the responses to her response to the responses to her book. And they could have gone on forever.

A clear division opens among the scholars in the conversation, as shown by how Marcus began her second essay:

After reading the comments of my fellow Forum participants, I came away thinking that perhaps I had read a different book from the one read by Professors Seth Cotlar and Todd Estes. . .

The big question is, as so often, whether this study gives enough attention to the people as opposed to elite politicians. Maier chose to examine ratifying the Constitution rather than writing it, a process that necessarily was more broadly based. But did that widen the focus only a bit to the elite politicians in each state? And what if those gentlemen were the biggest part of the story?

Along the way there are interesting exchanges like this, starting with Maier:

Although bills of rights were a popular issue in the state ratification debates, of the five states that both ratified and recommended amendments, only Virginia formally asked that a bill of rights be added to the Constitution.

However, Virginians who ardently supported that demand, such as Patrick Henry and Richard Henry Lee, were bitterly disappointed with the amendments the First Federal Congress proposed. Neither they nor, for that matter, anybody else—not Washington, or Jefferson, or Madison—referred to the twelve amendments proposed by Congress or the ten ratified by the end of 1791 as a “bill of rights.” When did that term become commonplace, and why?

To which Cornell replied:

Maier…places a bit too much confidence in the work of legal scholar Akhil Reed Amar, whose controversial study of the Bill of Rights claims that this term was not applied to the first ten amendments until late in the nineteenth century, when collective rights such as the Second Amendment morphed into individual rights during Reconstruction. If one looks closely at Amar’s sources, they turn out to have a clear bias that reflects his heavy reliance on case law.

To be sure, Amar and Maier are absolutely correct that the term Bill of Rights was not widely used in the years immediately following the adoption of the first ten amendments. I have found evidence that it began to gain some purchase during the Alien and Sedition crisis. By the time his law lectures were published in 1831, Henry St. George Tucker referenced “the bill of rights and written constitutions, both of the federal and state governments.” Two years later the eminent legal scholar and Supreme Court justice Joseph Story used the same phrase in his influential Commentaries on the Constitution. Story wrote that “at its very first session, [Congress] took into consideration the amendments so proposed; and by a succession of supplementary articles provided, in substance, a bill of rights.” In the time between the Alien and Sedition crisis and the Jacksonian era, the term had clearly entered American legal discourse.

Story was born in Marblehead in 1779, Tucker in Virginia in 1780. They were too young to have closely followed the original debates over amending the Constitution, so their writings represented the consensus of the next generation of American legal scholars. The first generation was divided enough about the meaning and weight of those amendments that they passed the Sedition Act. The ascendancy of the Jeffersonian Republicans—including Story and Tucker—might have made their interpretation of the first ten amendments as a Bill of Rights the American standard.

Anthony Haswell and Isaiah Thomas

During the preparation of “Mapping Revolutionary Boston” website/app, as I recall, someone asked if there was enough information to profile a printer’s apprentice—like Johnny Tremain, but real. So I worked up an article on the youth of Anthony Haswell (1756-1816).

The text under young Anthony’s yellow pin describes how he was born in England, brought to Boston by his father, and basically abandoned when he was a teen. He worked through the town’s Overseers of the Poor to get himself apprenticed to a printer instead of a potter.

Those paragraphs don’t cover Haswell’s later life: possible military service during the Revolutionary War; a return to printing; starting the first newspaper in Springfield, Massachusetts, with Elisha Babcock in 1782; and then settling in Bennington, Vermont, as postmaster and publisher of the Vermont Gazette a year later.

I was surprised to find no biographical information about Haswell in Isaiah Thomas’s History of Printing in America, first published in 1810. Thomas claimed to write about everyone in the profession through the Revolution. To be sure, he highlighted firsts, and the Vermont Gazette was that state’s second newspaper, but Haswell was a very prominent printer in that state up through the time Thomas wrote his book.

Furthermore, Thomas must have watched Haswell’s career because he was the printer who’d signed up young Anthony as an apprentice back in 1771. During the war, when Thomas was beset by creditors, Haswell even became the nominal publisher of Thomas’s Massachusetts Spy for a while. That episode prompted the only mention of Haswell in Thomas’s History, and it’s hardly flattering:

The printer of the Massachusetts Spy, or Boston Journal, was obliged to leave Boston, as has been mentioned, on account of the commencement of hostilities between the colonies and the parent country. He settled in this place [Worcester], and on the 3d of May, 1775, recommenced the publication of that paper, which he continued until the British troops evacuated Boston; when he leased it for one year to William Stearns and Daniel Bigelow. . . .

After the first lease expired, the paper was leased for another year, to Anthony Haswell, printer. Owing to unskilful workmen, bad ink, wretched paper, and worn down types, the Spy appeared in a miserable dishabille during the two years for which it had been leased, and for some time after. At the end of that term, the proprietor returned to Worcester, and resumed its publication…

Why did Thomas have so little, and nothing good, to say about his former apprentice? I suspect politics was involved. Thomas was a Federalist. Haswell became a Jeffersonian, and not just any Jeffersonian—he was one of the printers jailed under the Sedition Act in 1799 and made into a martyr for press freedom. Here’s a page about Haswell at the Bennington Museum, and another from the Posterity Project.

So Anthony Haswell might not have been discussed in Thomas’s History of Printing because he was too prominent a printer.