THE RIGHT OF ALIENS TO ENTER BRITISH

TERRITORY.

HE immigration of the Chinese and of Russian Jews, aliens

THE

both in race and religion, has raised in some parts of the British Empire, and may at any time raise at home, not only international difficulties, but also a very serious constitutional question.

The difference in blood, religion, and habits between such immigrants and the settled population of England or any colony, while considerable, is not so serious in its social and political effects as the immediate economic effect upon the wage-earning classes, who are now the chief depositaries of political power both at home and in the self-governing colonies of the Empire.

Of these colonies, Australasia and Canada are hostile to any immigration of aliens not of Teutonic or Scandinavian origin; but not being independent nations, they have in their legislation to defer somewhat to the diplomatic necessities of the mother country, which is not yet prepared to encourage drastic legislation for the exclusion of all or any foreigners.

As colonial legislatures are limited to some extent not only by the statutes or charters under which they are constituted, but also by the power of reservation of their statutes for consideration of their imperial effect by the Home Government, there is a disposition to have recourse to the old weapon of the prerogative, which is assumed to be vested in their governors as viceroys by virtue of their commissions. For it is one of the peculiarities of present politics, due to the constitutional changes (to which Mr. Dicey has lately so forcibly drawn attention), whereby an executive committee of the legislature in each self-governing part of the empire now wields the powers of the Crown, that there is an increasing disposition and even a popular demand for the use by the Executive, not only of the dispensing power with reference to comparatively unpopular laws, but also of the prerogative instead of the slower methods of modern legislation. It is from this cause that Mr. Balfour is denounced for not exercising a dispensing power as to certain laws in Ireland, and that Mr. Gladstone was applauded for overriding the House of Lords by the use of the Royal Warrant on the question of Purchase in the Army.

By the concession of Representative Government to the Australasian Colonies, to Canada, and to the Cape, the executive functions and the royal prerogative have been to some (though we need not

here discuss to what) extent handed over, not to one, but to many executive committees, acting often at a great distance from and always independently of each other. Consequently each claim by any colonial ministry to exercise any part of the prerogative must raise grave constitutional issues fraught with the utmost importance to the whole of an empire whose constitutional law is more complicated and less defined than that of any other civilized State. And within the last few months in Victoria1 the right of the Governor as H. M.'s representative to exclude certain Chinese at his mere will, or for reasons of state or apprehension by him of public danger, has been considered by the Supreme Court of the Colony in the good old constitutional manner, dear both to England and the United States, of an action for trespass against the official who had to execute the Governor's orders. The Court by a majority decided that the Governor had not the power in question. Their decision, if right, must be so for one of two reasons: (1) either the authority of a Colonial Governor is not wide enough to empower him to exercise all the prerogatives of the Crown, in which case beyond doubt democratic colonies will demand an alteration of his commission so as to concede the power desired; or (2) that the Royal Prerogative does not extend to authorise the exclusion of aliens.

It is with the second alternative only that this paper will deal. If the Crown has not the prerogative claimed for it, there is nothing to delegate to colonial viceroys. If it has the power, the rest is but matter of negotiation as to the manner and extent of its exercise or delegation.

The question for solution appears to be this: whether the Crown has, independently of the Legislature, any right to say in time of peace to any foreigner who is within the empire or who knocks at its gates, that he must depart or may not enter, and whether any corresponding duty is imposed upon him by any such command, or any sanction exists for punishing the breach of it; or whether on the other hand the alien friend has exactly the same rights and remedies for any interference with his freedom of ingress and residence as any natural-born subject.

I omit all reference to the war powers of the Crown—' inter arma silent leges-and any hostile entry by aliens is an infraction of national independence which is either a casus belli, if approved by the state whence the aliens came, or an act of high treason here if disapproved. And the treatment by France of Atchinoff, who lately 1 Chung v. Musgrave, 3 Sept. 1888.

2 As to which see Musgrave v. Pulido, 5 App. Cas. 102.

3 Lo Pak's case, 9 New S. Wales, pp. 221, 243. An alien enemy cannot vindicate his Burr 695. liberty by Habeas Corpus (Reg. v. Schiever,

2

made a descent on French territory in Africa, is at least as merciful as he would have met with from any civilized power.

And the entry of foreign ambassadors or their sovereigns into the realm, must be disposed of in the main by considerations of a similar character, inasmuch as such powers represent the sovereignty of a foreign state.

Except with reference to foreign sovereigns, their ambassadors and their forces, upon a careful historical examination of the subject, there seems to be no prerogative of the Crown either to exclude or expel aliens. Whether they be innocent immigrants or sojourners or fugitive criminals of the deepest dye, their right to land or remain upon British soil depends not upon the will of the Crown but upon the voice of the Legislature; nay, more, this right has existed ever since the Great Charter, if not even earlier, and is so ancient that no prerogative to the contrary can with any certainty be vouched, and this conclusion, if it be correct, must be based upon historical facts, and it will be the aim of this article to trace out what seems to be the history of the question. For if such a prerogative existed, as was claimed by the Victorian Government, some traces will undoubtedly survive of its exercise 1.

It is remarkable that the very groundwork of the Constitution is laid, if not upon a denial, at the least upon a restriction of this Crown right. For the Great Charter which, by Article 29, forbids the exile of a freeman otherwise than by sentence of a court of justice, by Article 30 provides for the free ingress and exit of foreign merchants from England.

The charter of John, 1215 (Art. 41), runs thus:

'Omnes mercatores habeant salvum et securum conductum exire de Angliâ et venire in Angliam, et morari et ire per Angliam tam per terram quam per aquam ad emendum et vendendum sine omnibus malis toltis per antiquas et rectas consuetudines praeterquam in tempore gwerrae, et si sint de terrâ contra nos gwerrinâ: et si tales inveniantur in terrâ nostrâ in principio gwerrae attachiantur sine dampno corporum et rerum donec sciatur a nobis vel capitali justiciario nostro quomodo mercatores terrae nostrae tractentur qui tunc invenientur in terrâ contra nos gwerrinâ; et si nostri salvi sint ibi, alii salvi sint in terrâ nostrâ.'

This article was in 1216 confirmed by Henry III, as Art. 34, with the material addition, 'nisi publice antea prohibiti fuerint,' and in 1217 as Article 37; and appears in the same form in 1297 as Article 30 of 25 Edw. I. c. 302.

1 No instance is recorded of surrender under the old treaties with France and Scotland (mentioned in Rymer) for reciprocal extradition or trial of outlaws.

21 Rev. Statt. (2nd ed.) p. 49. This does not at first seem to have dispensed with the use of Royal safe-conducts. See Letters, Hen. III. vol. ii. p. 403, where certain Florentine

At first sight the words 'nisi publice antea prohibiti1 fuerint' might seem to refer to the then recent expulsion of the Jews; but, as will presently appear, there are strong reasons for saying that none of the charters ever applied to or protected them.

Probably the charter did infringe upon the prerogative; but it purports not to alter but to declare the common law or custom of the realm as fettering the absolute discretion of the Crown. Whether by declaration or enactment it equally imposes a limit upon the prerogative. And the fragmentary saving of the prerogative in the articuli super chartas, if it ought to remain on the statute book and has not already been repealed2, cannot be deemed in any way to preserve intact the extent of the prerogative, inasmuch as to hold otherwise would be to take away by the saving clause the concessions in the operative parts of that statute.

Neither the saving last dealt with nor the words nisi antea publice prohibiti fuerint' in any way preserve any prerogative to exclude or expel aliens. These words were construed, at least as early as Coke's time, to mean a parliamentary and not a prerogative interference with the statutory safe-conduct given by the charter, and it is too late now to alter that construction. Moreover, legislation by Royal Proclamation received its quietus in the seventeenth century; and the now often-used method of legislation by Orders in Council, or in Ireland by Proclamation, is exercised under statutory and not under prerogative authority.

There is but one case in the thirteenth century which might be and which is sometimes vouched as evidence of the existence, at any rate in these early days, of a prerogative to expel aliens, viz. the expulsion of the Jews in 1290. But upon careful consideration this expulsion will be found a totally insufficient authority.

In the first place, it was prior to that edition of the charter which is still upon the statute book1.

Secondly, the Jews then in England were most of them not aliens by birth, but natives of England, since their settlement in the country dated from Richard I.

Thirdly, they were not either freemen or merchants, but serfs and money-lenders, within the hand of the king as to their status, and, for their occupation, under the ban of the Church, especially when, as was frequent, they were its creditors.

creditors of the king get a safe-conduct for themselves and merchandize till Christmas next. But the safe conducts in the Register seem meant for use in war time only, and are not to be confused with writs of protection from suits. (Reg. Brev. f. 25.) 1 See I Inst. p. 57.

2 See note to I Rev. Statt. (2nd ed.) p. 60; and 19 & 20 Vict. c. 64.

E. g. by Holroyd J. in the Victorian judgment already referred to, now under appeal to the Privy Council. That learned judge, however, considered the prerogative to be disused. That of 1297, 25 Ed. I; 1 Rev. Statt. (2nd ed.) p. 49.

The position of a Jew before the English law depended in the thirteenth century, not upon the place of his birth, but upon the history of his race and the then received beliefs of the Christian Church. Dr. Stubbs describes him1 as being, like the forests, the special property of the king; but probably this is too wide, as he seems to have been the property of and to have been farmed by any chief lord within whose lands he settled 2. The reason for this was, as might be expected, ecclesiastical, and is well expressed in 1231 by one of the worthiest churchmen of those days-Robert Grosseteste:

Interim autem dum idem populus Judaeorum in infidelitate permanens Christum mundi salvatorem blasphemat, et ejus passionem subsannat, sub mundi principibus in justam poenam peccati sui tenebitur captivus (caitiff Jew). Debentque principes qui eos tenent captivos ne occidantur defendere' (for which he quotes Scriptural authority, and goes on to use almost Bracton's words), 'terra quae etsi ex operatione illius populi fructificet, non tamen fert illi fructus suos, sed principibus sub quibus captivatur.' (Letters, Rolls Series, pp. 34, 35.)

The Jews, then, were regarded as in captivity to the lords on whose lands they were. And the origin of their status being the same historically as those of nativi, viz. captives in war, its incidents were also much the same. They could own or acquire nothing in their own right, but only for the king or their lord.

Serfdom in England did not wholly expire till nearly three centuries later, so that there is nothing anomalous in the Jews being in servitude. And the charter of John to the Jews, while granting them the privilege of being tried by the Jews' peers and accepting their oath in certain cases, provides that they should not be impleaded except before the king or the keepers of his castles, i. e. the constables, and not the sheriffs in whose bailiwick the Jews lived, but adds the significant words that they should go where they would as safely as the king's chattels, and be free of toll like the king's chattels. And it is this position as the king's chattels that was at once the strength and the weakness of their position in England. Their right did not depend upon the common law, but upon the will of their lord the king. And though, as very valuable property, they were protected by the sovereign, they were wholly in his mercy.

2 License to the Jews to dwell in the king's demesne towns, 1222; Letters, Hen. III. vol. ii. p. 206; and see Coutumier of Oleron, Black Book of the Admiralty, vol. ii. p. 371. See the manumission in 1536 in Stubbs' Const. Hist. iii. p. 653, and Wilmot's Opinions, p. 89. See I Madox, Exch. 255, 2nd ed.

5 The Courts of the Constables did not administer the Common but the Civil Law, and encroached upon the Common Law till restrained, temp. Ric. II, by a statute only recently repealed.