Stranger Citizens: Migrant Influence and National Power in the Early American Republic by John McNelis O'Keefe

Author:John McNelis O'Keefe [O'Keefe, John McNelis]
Language: eng
Format: epub
Tags: Public Policy, City Planning & Urban Development, National, Immigration, Political Science, American Government
ISBN: 9781501756535
Google: x7sTEAAAQBAJ
Goodreads: 57413220
Publisher: Cornell University Press
Published: 2020-12-15T14:06:29+00:00

Do Alien Enemies Possess a Right to Due Process? Lockington v. Smith and Aliens’ Right to Legal Agency

Several migrants attempted to challenge the legality of the removal order and assert a right of legal agency. The cases attempted to preserve court and local jurisdiction over aliens, but decisions gave the federal government effective power to continue enforcing alien policy and forced removal. Lockington v. Smith was the most prominent of the court challenges, and the decision retained alien enemies’ right to legal agency as well as state jurisdiction over aliens, while still keeping Charles Lockington, the British subject in question, in custody. Lockington was able to obtain a ruling that theoretically granted him legal agency and the right to petition for a writ of habeas corpus, but this ruling left key questions about the legal agency of alien enemies ultimately unresolved. It had little effect on British subjects subject to removal.

Courts successfully retained their authority in certain circumstances. William Bold, who had been placed in custody of the US Marshal in South Carolina, successfully argued that as a dependent, he became a naturalized citizen when his father naturalized in 1786, and so obtained a court order for his discharge.

Another case petitioning for a writ of habeas corpus for an alien enemy came before Virginia’s circuit court. The opinion of the presiding judge, John Marshall, skirted the issue but retained some court authority over aliens by ordering Thomas Williams, the British subject in question, released on a technicality: he had not been ordered to remove to a specific place by the US Marshal.56

Lockington v. Smith stemmed from Marshal John Smith’s arrest and confinement of Charles Lockington for violating the removal order. Lockington was an English emigrant who had settled in Philadelphia before the war, and he made his living there through “a mercantile pursuit.” Although Charles Lockington was exceptional in his choice to pursue a court challenge to the removal order, his actions were otherwise typical of many men in his situation. He contemplated a return to Britain, but chose instead to remain in the United States, and followed the orders requiring his registration with the federal marshal. He even initially complied with the removal order, retiring inland to Lancaster, Pennsylvania. But his work, presumably involving import-export trade, was not a feasible means of subsistence away from port. Lockington’s health, class status, and education meant that he felt himself “not fitted by condition or habit, for manual labor.” Lockington “remained at Lancaster until his funds were exhausted, and being destitute of the means of support, he was compelled to return to Philadelphia, in order to obtain the means of subsistence.” His presence came to the attention of US Marshal John Smith, who ordered him to leave for Reading, Pennsylvania, “where little or no commercial business is done.” Lockington “represented his pecuniary inability to the Marshal” and asked for permission to leave the US, or to be sent to Reading, “if the means of doing so and supporting him when there should be furnished him.

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