The eagle — Hanover, N.H., 1799-04-02 00:00:00, page 1

•rrrfrww ^mirrarewmCTOTmniOTteffi^i
Read this Twice !
'A CHARGE
To the Gravd %'-'' of the County
Courts of the Fifth Circuit of the Stale
of Pentyhania, at December S'ffions,
1798/
By Alexander Addison,
President of those Courts.
IN cfyrumflanccs of extraordinary danger
' or alarm, extraordinary means must be
adopted ; for ordinary means are incompe
tent for .extraordinary occafiong. Though I
may not kill a man, while lam in no dan
ger from him ; yet if he be in the a& to kili
me, or I find him breaking into my house
in the night time to rob me, I may put him
to death. .This tefults from the general law
of tels defense. The sacred right of proper,
tywill not forbid us, when a house is on fire,
10 pull down the adjacent buildings, to save
the rest of the town. —Nor will the right of
petfood! liberty retrain the magiftfate from
committing to jail a man who has a&ually
dohe no mischief, if another is justly afraid
of mifehiefberog ^bbt by him. All these
are extraordinary cases, to which the ordina
ry rules of property, or of personal liberty
and fafety, ?r^ not applicable ; and the vio
lation of those rules, in fetch cases, is, in true
c%flrußion, r.o violation of them ; for they
, were never meant tarbeapplied to luch cases,
but only to the ordinary and peaceful (hte of
society, and rcuft yield to the great law of
felf prefervatiou and common welfare.
Nations, like individuals, sre also bound,
by the law of felf preservation, in times of
danger, to adopt rceafurcs, which wouLdbe
altogether unjudifiabre in ordinary times.
They may destroy an boftile army. 6 If a
hostile army be fuffeied to march through a
reuuat cour.try, to attack another nato,%
*&to^'L.„ arfoerttr that country, and |
oppnfr ioroeroy. If fields, gardens, hoc- I
fe?, or ft is, Richer its enemy from the full
force of bHack, they may be defiroyed. If
it be nee . ffary to weaken the enen y by want,
the corn, cattle and all kinds of provision
Dry be carried off, and the frontier made, as
it were, a defer!. Such things are, in time#
of danger, julbfeble by the law of feli-de
fehce ; though in ordinary times they would
be. unlawful and inhuman. On the fame
principles of felf-defehce, to prevent a dan
gerous cammunication of intelligence, or any
mc^urtr unfavourable to its fafety, when a
nation is, or is likely to be, engaged in war,
it m^y cider any aliens, who may be fufpe&
eq cf promoting or favoring the deGgns of its
enemy, to depart cut of its territory. This
may be always, and has been generally done-
Ad, uulefs where this right is regulated by
treaty, this may be done at the diferetion of
the government under which aliens rtfide.
For every government must be the sole judge
nfwhat is necefriry to be dene, for its own
fufciy or advantage, within its own territory*.
And, even with reipc& to their own fubje&s;
most governments have reserved a right,
without being required to shew any cause, to
commit taclofe cullody any fubje& fofpe&..
ed as dangerous to the peace or welfare of
the Co'mnmnity. In England, this right is
retained by the writ of Habeas Corpus, which
gives to every fubje& imprisoned an oppor
tunity of requiring the cause of,his commit
ment, and of obtaining,: in all proper cases,
his enlargement. When, therefore, the
King of Britain's ministers find it necessary,
for political regfont, to retrain the perf&nal
liberty of any fubje&,'without (hewing any
cause for it, a law must be obtained from
Parliament, fafpending the privilege of the
writ of Habeas Corfas ; and Parliament may,
whenever it pleafcs, pafefocha law.
Conforming to the principles of liberty
inherited .from our anceftor^, the privilege
' ofthe writ of Habeas Corpus is eftablifhrd, las
a principle, in the government of this State
and of the Uhiorrt. And, though Congress
or the General Assembly ,ay refpeaively,
like the British Parliament, by law, fufpeud
thw privilege; yet they cannot, like the
British Parliament, pass such law whenever
they plcafc. For the Federal and State Con-
Ghstions have declared, that " the privilege
, sibf the writ of Habeas Corpus shall not be fuf
peuded onlefs when^n case of rebellion or
invafioD, & public fafety may require it."
• Vattel. L. ts N. Prel. sec. 17, £O. B.
see. 94.
+ U. S. Corf. Art. 1, sec. 1. Perin. Coufl.
Art. g, sec. W 1 U. S. L. 101. a St. L.
^ty..
. =_x— —= —=-—-==-=-= =-^ —- -—- — = —* — —— — — —- , — : —
HANOVER, "Newhamfefoire, Printed at the Northwest Corner of College Square, in the Academy, BY BENJAMIN TRUE.
-Volume VI. TUESDAY, April 2, 179^^ Number s
■ — __-—=_.
imgmiWMME^SMMegBWtM»MIOT
)So that, in this country, no citizen can be
deprived of his liberty, without an avowed
and fufficient cause, unless, in case of rebell
ion or invasion, (be legislature think the pub
lic fafety requires it. and suspend the privil
ege of the writ of Habeas Corpus. But herd
the Constitution leaves aliens, as in otherl
countries, to the protection of the general
principles of the law of nations, or efthe
particular provisions of treaties made between
tife United States, and the government
whose fubjeds or citizens the aliens Severally
are.
Congress, in its last session, found the Uni
ted Scares in extraordinary circumftanccs of }
peril, unequalled Since their independence
was solemnly acknowledged. France, hav
ing, without any refpe& to the principles of
liberty, the laws of nations, or the rights of j
individuals, plundered the land to the utmoft}
reach of her grasp ; extending the fame un
principaled rapacity to the ocean, 2nd plun
dered indiferiminately friends and foes. Os
alienations and governments none bad with
more affetiioo regarded the revolution of
France, none had more assiduously cultivated
her friendihip, none had more scrupulously }
ohferved the rules of neutrality, or consist-1
ently with those rules, partially indulged
the views of France ; than the nation and
government of the United Statax. And if;
neutrality, justice, affcaion, and gratitude, |
could have exempted auv government and [
nation from injury from France, the nation f
and government of the United States might !
joßly have claimed this exemption. But|
what weight has justice with a government \
without principles, withq-it 'religion, and'
without an irHereft in the profyerity of the+
people over which it is placed I If the French
government had regarded only the interest II
of France, it would have cultivated the af
feaions of America. But the French go-|
vcrament, like th© tyfe mother, indifferent
to the life of the child, regaled not the in- §
tereA of the Frer.cltf iwiou, but the tudui-I
gence of its owa .ffide,, which; tefeh#
j foughtto bumble all authorities io Utiicerlhi|
I prUiratiun at its feet. She commenced and :
prosecuted (pollutions of our tr^de to an ey,
tent that threatened its ruin : and the difinal
efftas are displayed in the bankruptcies of
our merchants, and the languiffiirg Gate o f
our commerce and agriculture. The Amer
ican government patiently and peacefully
fought redress by negotiation ; but the pre
fum ion and rapacity of the Free h rofc in
proportion to the patience and pe^ce of A
merica ; and with unexampledinfc^nce, ihe
repeatedly drove away cur ainbaffader,feot
Ao cirim only an exemption from irriury, and
a payment of just debts ; required cs, ^ an
ignominious tribute and bribe, to double the'
damage we had fu ffered; and threatened us
if we refuted tbri, with a war and ravageen
our coafis, burnjog of our towns, And even
dilTolution as a nation.
What could have fuelled the infob-nce of
France to this pitch of extravagance ? Had
we done her any injury ? Shocan shew none.
Was it her great foccefs, nd mighty newer ?
We are at a difllance to defy her power.
How then dared she thus to iofolt pufrin
jur'e us ? Sheaccounted us a divided people,
split into factions, among which sh- had zeal-|
eufyartizans. In'this date, (be knew, wel
could make no resistance. And, while we 1
remained in this fete, (hrmight fatcly per
sist in her prbud oppression ; and she did f&°
For men, without regard to religion ardjuf
tice, will do whatever they can do ; & Bath
ing but refinance and force will retrain them
from injuring others. France had long known|
And promoted divisions and factions among
us. And had font fpjes into all parts of our
coupttyfr to procure, information of our cir
cumftancci and opinions." —These travelled
through America under various pretexts, or
curiosity; of philosophy, or of avoiding tyr
anny or perfetation at home. This Talley
rand, who demanded thebribe and lean from
our ambassadors, travelled through America
as aa emigrant; and after his return to
France, was appointed miolfter offoreignaf
fairs. From its spies and other agents he#,
the French government received contact in
telligence of the fentimebts of the citizens,
and the measures of the government of ,A
merica ; and was thus prepared to promote
its own views, and defeat ours.
If ever there was^z time in which it Was
proper for any government, to order aliens
to depart out of its territory, it was proper
for the American government to do so at
this time. lit other countries, this would
have been done by a proclamation of th6
executive. This was a new case under the
American conSilution, and proper for the
I interference of the legislature. ^ Congeals,
ty e@u.
<m^raiMe^^
therefore, patted a law*, the substance of
which, in its own words, I (ball here flare.—
“ It (hall be lawful for the PreGdent of the
United States, to order all fifth aliens, as he
fall judge dangerous te the peace and fafety
cf theUaited States, or (hall have reasonable
grounds to fufpea, are concerned in any trea
sonable or secret machinations againQ the
government thereof, to depart out of the ter
ritory of the United States, within such time
as fliall be expressed in foch order. Which
ordty (ball be served on such alien, by deliv
ering him a copy thereof, or leaving the
fame at his usual abode, and be' returned to
the office of the secretary of state, by the
r rfhal or other person to whom the fame
(fell be directed.",
But "if any alien so ordered to depart,
ffall prove, to the fatisfa&ion of the Presi
dent, by evidence to be taken before such
person as the Prefiuent shall dire&, that no
injury or danger to the United States will a
rise from (offering him to remain therein,
the President may grant a license to such a
lien to remain within the United States, for
fach time as he may judge proper, and at'
fnci places as he shall designate—And the
President may aifo inquire of such alien to
enter into bond to the United Stat-s, in such
penal sum as be may dire&, with one or
more Efficient sureties, to the fatisfa&ion of
the person autherifed by the President to
take the fame coiiditioned for the good be
haviour of such alien during hi^eGdence in
the United States, and for not violating his
license ; which license the President may
revoke whenever he shall think proper.
“ And if any alien, so ordered to depart,
fori' ibe found at large within the United
: St3.t^{ after the time iimi r ed io such order
[for his departure, and :ot having a license
j'from the Present to reside therein ; or hav
ing obtained foch uc^nfe, shall not have con-
Iforrneri thereto ;. cvtiV such alien shall, on
Icoariaion thereof,, be impnfooed for a term
• Frit exceeding three ye^U, and shall never j
_pfei be ad&roed to beetle a cutzen of the ;
fr^St^s^ "
This law further ena&s, "That it shall
be lawful for the President of the United
S:%j, wherever be may lem it necc&ry
for tie public fferv, to order to be removed
out of th^ territory thereof, ary alien who
may be in prifin in pmfaiuce 0; this aa ; &
tn cause to be arrested, ard sent cut of the
United States, Inch of those aliens as shall
have been ordered to depart therefrom, and
(hall net hrve obtained u license as aforefaid,
in all tales, where, in the opinion of the Prc
fident, the pub,be fafety (ball require a spee
dy removal. Ahd if any alien so removed,
dr fentout of the United States, by the Fre
&.4dr& shall VQlttai&rily return thereto, un
l,rfr by permiffibo of the President of the U
nited States, such alien, oh conviction there
of, (hari be imprisoned as long az in the 0-
pinion efthe President, the public fafety may
squire." " '. .'
But it is provided, " That it shall be law
ful for anyulien, who may be oidercd to be
removed from the United States, by virtue
of this aft, to take with him such part, of bis
sbodi, chattels, or other property, ai he may
find convenient, and all property left in the
United States by any alien who may be re
moved, as atorefaid,Jhall be lubje& to his
difpofaj.”
Ore would have thought th:t a law fotea^
fo^W^ ip irfelf, so contormAle to the law
of nations, and th,e uraaice of all govern-.
menu, and while if is altogether confident
with the conttitutiop, so necessary to the (ate
ty and defence of the United States ; if it
did not obtain all praise, would, at least,
have efeaped all censure. Yet this law was
not only vehemendy opposed in Congrefi;
but, even Ghee it was palfed, has been reprb'-'
bated by ignorant^ or wicked and feditietis^
men ; and for there vile and fejfifh purpos
es, has been held up to detestation, as uncon-
Aitutioual and tyrannical. lu many partsof
the Union, it has been used as a pretext and
iofyument/ io inflame the pa ffions of the peo
ple, diQurb the peace of the country, detiroy
refyeti for the laws, and! relax the authority r
of the government ; ahd in one fate to pro
duce such a comaiotioo; as threatens an iq
fafrc&ion, if not a reparation fiom the Un
ion. '.
It is proper for men of all Rations, and pe
culiar ip my Ration, to endeavour to counter
aft such mifehievous passions and miserable
consequences. Wi{h this view I shall exam,
ind the objectidris, which I have oblerved to
be offered agriinfl: this law, solemnly cftabhlh
cd by the authority of the United States.,.
1. It is opposed to this law, that it is con
trary to the express words of the Cbnliitu
tidn. '
We perhaps ought not to wonder, that this
obje&ipn is made. Added to the want of
* %tk,n€, 1798—5 U.S. L. 14%:
sense and knowledge in some of the objeftor''
bf modesty in most of them, and the genera
disposition, from prejudices excited and nour
ished by fllander, to believe every aft of ad
ministration wrong ; the habit of oppofitiou
prepares their minds to make and receive it;
For a habit of opposing everything make#
dreadful havock, not only on the feelings and
conference# but on the understanding itfclf.
This objection is made on two grounds.
The firft is, that the constitution declares
that “ the migration or importation of such
persons, as any of the Rates nowexifting,
shall think proper to-admit, shall not be pro
hibited by Congress, prior to the year one
thousand eight hundred and eight; but a tax
of duty may be imposed on fuctiimporta
tion, not exceeding ten dollars for each per
foD§.” From this it is inferred, that as Con
gress cannot vet prohibit such migration or
importation, they cannot remove the persons,
who have migrated or been imported ; for
this, it is said, would be, in cffe&, prohibit
ing the migration or importation.
It is well known, that the prohibition in
view, refpe&ed only slaves. This was uni
versally underlined, at the time.of the publi
cation of the conftitutipn, during its difeuf
fion, and ever since. Allthe members of the
convention know this. The speaker of the
house of representatives of Congress, who
was a member of the convention, did, in the
argument of this bill, in a committee of that
house, expressly declare this to have been the
avowed sense of the convention, on this clause
of the constitution ; and no man of any
knowledge, of the fubje&, has ever seriously
entertained a doubt of this. The convention
was so averse to the traffic in human beings,
that they would not dire&ly name slaves, sla
very, or the slave trade. The southern mem
bers thought their Rates not yet prepared for
the prohibition of this traffic. The other
members agreed to give those Rates twenty
years to think of it. In that space, they
would probably abolish the slave trade them
selves; or, after that, Congress might do it.
In the mean time, the convention Would not
give slavery the fan&ion of being expressly
I named. Instead of th^' word slaves, the
ped.^' 6 "' was u fed ; ' anal Ifo-eorrefp ond
, with tuis, the word migration, and explana- -
tory of this, the, word testation, as more
'properly applicable to flaveL or feefrons con
sidered, not as aliens, but as pNbertj.
Ou considering this prohibition as refpll
, ing only slaves, we find another reason for this
conf ruction, in the power reterved to Con
gress “ to impose a tax on such Importation ;”,
while'no such power is expressed as to migra
tion ; and thus for conftru&ing those words
as meaning a different manner of introducing
slaves. Congress is retrained from prohibit
ing their importation by sea, or their rnigra
tion by land, into any of the Rates ; but may
lay a duty on their firß importation, not on
any subsequent migration ; the duty in that
case being presumed to have been paid before.
While the prejudices or neaeffities of theJlates
then exiting, were thus indulged ; the con
vention confined the indulgence to them, and
did not restrain Congress from prohibiting the
migration or importation of slaves in;o°any
Rate thereafter to be established, but left them
to the diferetion of Congress. Whatever rea
fdn may bp aligned for it, this is certain, that
it was the plain meaning of the Convention,
and has been the uniform conftrudion of the
conftitution,that the restraint laid on Congress,
by this clause of the constitution, applies°only
to the prohibition of introducing slaves.
But fappofing this not the true conftruQion
of this clause of the constitution, and fappof
ing that Congress is thereby restrained from
prohibiting the migration or importation of
any alien s whatever ; it does net follow, as a
juftponfequeace from this, that Congress caa
make ho law.tb remove such aliens. A rule
will not beextended beyond the fir,4 words,
if this extension will promote mifehief; es
pecially if it endanger the fafety of the peo
ple; which is the fupteme law. I would ask
whether this feftraint, supposing it to refpe&
aliens generally, must not be limited to times
of peace ; and whether it must govern in ex
traordinary times of danger, or muff thengive
way to the great rule of felf-defence and gen
eral welfare ? Let us try this conftru&ion by
the rules of reasoning. It is a rule, that, if
an argument prove tod much, it is unsound.—
Suppose a body of Frenchmen to arrive at
Bottom, who, with arms and ammunition,
which men may carry for their own defence,
and tell the people there; that they are per
sons who have merited, to fettle peaceably in
the country. Another body of such emi
grants, with the fame tale io their mouths, at
Ne,w-York; another, at Philadelphia; an-'
other, at Norfolk; and.another, ,t Charles
ton. Must the Rate legtflatures of Maffschu
fetts,' of New-Ydrk, of Penufylvania. of Vir
. ginia, apd of South Carolina, be convened, to
order those several bodies of emigrants.to de
part out of their several Rates ? Well ; the
Boston emigrants n^arch peaceably into Con
redic^t; and tfe' .South Carolina emigrants
into North Caroline; and so of the others,till
.they all meet peaceably in Maryland ; and «
'then declare, that they are come, by order of
the Directory, to fettle there and to prevail or