Act Giving Executive the Power to Deal with Aliens
[15 December 1785]1
BE it enacted by the General Assembly, That it shall and may be lawful for the governor, with the advice of the council of state, to apprehend and secure, or cause to be apprehended and secured, or compelled to depart this commonwealth, all suspicious persons, being the subjects of any foreign power or state,2 who shall have made a declaration of war, or actually commenced hostilities against the said states, or from whom the United States in congress, shall apprehend hostile designs against the said states; provided information thereof shall have been previously received by the executive from congress: And that in all such cases, the governor, with the advice of the council of state, shall, and he is hereby empowered, to send for the person and papers of any foreigner within this state, in order to obtain such information as he may judge necessary. All sheriffs and jailers shall receive such suspicious persons whom, by warrant from the governor they shall be commanded to receive, and them in their prisons or custody detain, or transport out of the commonwealth, as by such warrant they may be commanded. And all others the good citizens of this commonwealth, shall be aiding and assisting in apprehending, securing or transporting any such suspicious person, when commanded by warrant or proclamation of the governor, or required by the sheriff or jailer to whose custody such suspicious persons may have been committed. Every person acting under the authority aforesaid, shall be indemnified from all suits to be commenced or prosecuted for any action or thing done by virtue thereof, and may plead the general issue, and give this act in evidence: Saving always to the merchants of any foreign state, betwixt whom the United States of America war shall have arisen, and to their families, agents, and servants, found in this commonwealth at the beginning of the war, the privileges allowed by law.
Printed copy, “An act giving powers to the governor and council in certain cases” (Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , XII, 47–48). No Ms copy has been found.
1. Alexander White reported, and the House passed, a resolve that an act ought to pass giving the governor and council power in certain cases on 29 Nov. White presented the bill on 1 Dec. The following day it was committed to a committee with JM appointed chairman. JM reported amendments to the bill 15 Dec., and it was passed 16 Dec. Prentis was ordered to carry it to the Senate (JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in either 1827 or 1828 and often called the “Thomas W. White reprint.” description ends , Oct. 1785, p. 64 and passim). The first draft of the bill should be attributed to White, but the bill in its final form was the work of JM. Brant attributes it to him. He says that JM drafted it without enthusiasm as chairman of Courts of Justice (Brant, Madison description begins Irving Brant, James Madison (6 vols.; Indianapolis and New York, 1941–61). description ends , II, 360).
2. The bill was occasioned by the arrival of several Algerines in Virginia, who, having no apparent object, were suspected of an unfriendly one. The governor and council called the Algerines before them, but found themselves powerless to act (JM to Jefferson, 22 Jan. 1786; JCSV description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (4 vols. to date; Richmond, 1931——). description ends , III, 487–88, 495–96). The Assembly consequently was asked for an exclusion law. As redrafted by JM the governor’s power to act was made contingent upon receiving notice from Congress that the U. S. was at war or threatened with war. Brant claimed that JM thus twisted Henry’s xenophobia “into a recognition of the primary jurisdiction of Congress over aliens, and gave them implied immunity from molestation in the absence of congressional action” (Madison, II, 360).