When a Jew died his chattels, like a villein's, went to the king as his lord, and not, like a freeman's, to the ordinary. But the king did not always wait for his death, and inquests de catallis Judaeorum like those de catallis felonum were of common use. And when they were expelled in 1290, the king was careful to retain all their money, securities, and their dwelling-houses, and to enforce the one pro rege and to regrant the other, without the need of any verdict as required for freemen by the charter.

The status of the Jews being then servile, the king's dealings with them are not referable to the prerogative, which is a term applicable only as between subject and sovereign, and not to the relations of master and servant.

But beyond this, their expulsion seems to have amounted to a legislative act, based on the assent of the king to a petition of Parliament and Convocation. The contemporary annalists clearly show this 1, and the single reference to edictum regium in the Annals of Oseney2 points only to the then usual method of promulgating statutes by proclamations to the sheriffs 3. The expulsion, in fact, was after a sentence of exile by Convocation 4, and was assented to by the Crown as a condition precedent to the passing of the appropriations of the year, giving the king one-fifteenth of lay property and one-tenth of spiritual revenues.

Neither then the status of the Jews nor the mode of their expulsion point to any exercise of the prerogative, and it could be more truly urged that the king by their expulsion surrendered a source of revenue than that he exercised a prerogative. The Jews then being neither foreigners nor freemen, and their expulsion being not prerogatival but parliamentary, some other basis for the Crown's right, if any, must be sought.

Now, not only the charters of the thirteenth century, but the whole tenor of legislation up to the reign of James I. is inconsistent with the survival of any prerogative to exclude or expel an alien friend. The statutes from Edward II. to the rebellion, too numerous to be detailed in an article, are now all repealed as to England, leaving only the charter of 1297; but their perusal will sustain the proposition above laid down. They relate to three classes of aliens, merchants, artificers, and clergy, and the fact that statutory authority was needed points to the inability of the Crown to impose the desired restrictions of its own mere will.

Concedente rege Edwardo,' Chron. Edw. I. and Edw. II. vol. i. p. 99, ed. Stubbs. 'Procerum suorum sicut sane credi poterit salubri fretus consilio;' 4 Ann. Mon. 327. 'Cum consilio procerum suoruin;' Trokelowe, vol. i. p. 57.

2 Ann. Mon. vol. ii. p. 409.

4 1. c., p. 465.

Pike, Hist. Crime, p. 465. 5 See 12 Coke Rep. 75.

Mostly by 3 Geo. IV. c. 41; 9 & 10 Vict. c. 59; 19 & 20 Vict. c. 64; and 26 & 27 Vict. c. 125. See I Inst. 57; 3 Inst. 178.

As to the merchants, these old statutes show (1) that the importance of commerce was so far felt, that foreign merchants were encouraged, and that their right of entry under the charter was again and again confirmed, and that the severest measures were passed to prevent piratical interference with them or their wares upon the sea: (2) that the jealousy of native merchants led to certain protective measures, and prevented the foreign merchants from retailing their goods unless they were of a perishable nature, or from encroaching upon the peculiar province of the English merchant guilds: (3) that the false political economy of the mercantile system led to restrictions upon the manner of trade, and forced the foreign merchant to accept payment for his foreign commodities in silver or English goods, and forbade the export of gold. It is indeed possible that this restriction flowed also from the principles which led to the Statutes of Provisors. But apart from customhouse regulations and laws in favour of guilds, and in protection of the coinage, the ingress and egress of foreign merchants has not, from Edward I's time until now, been subject to any increased restrictions, and the restrictions imposed were parliamentary and not prerogative. With regard to handicraftsmen the law was different. No statutory power to exclude them seems to have been given, nor do they seem to have been numerous till just before the Reformation. And the Act 1 Richard III. c. 9 is the first which interferes with them. This Act was intended to prevent foreign artificers from competing with Englishmen, as master workmen, to effect the same purposes for which American and Colonial democracy passes exclusion acts. The Act is important for two reasons: (1) that it contains a parliamentary direction for disobedient alien artificers to depart the realm, whence it may be inferred that the prerogative was incompetent to expel them: (2) that it excepts certain callings in which English could not compete with aliens, especially in the production of books.

The legislation of Henry VIII. on the same subject proceeds on the same lines, the protection of the English trade guilds; but inasmuch as the number of foreigners vastly increased, it seems to have been thought necessary first to swear all aliens to the laws 2, and then later to provide that all aliens should owe local allegiance 3, and be subject to local taxation.

I have not been able to trace any case of the exclusion or expul

1 Erasmus in 1499 found he could not export more than six angels of English money owing to 3 Hen. VII. c. 8; England as Seen by Foreigners, Hentzner, p. 113.

2

32 Hen. VIII. c. 16. The special tribunals theretofore resorted to by aliens (the Staple) thenceforth declined.

sion of aliens from England in the sixteenth century, except in the case of Jesuits and one or two plotting ambassadors in Elizabeth's reign. A petition is recorded in 1568 for the restraint of the resort of strangers and foreigners to London accused of infection, saying that foreigners coming by sea should be stayed at Gravesend1. But this is little more than a demand for quarantine, and it does not seem to have been granted.

In 1621, by which time persecutions abroad had driven very many foreigners into England, an outery both loud and general was raised against the intrusion of foreigners into English trades, and the superiority of their methods and machinery for manufacture. The legal basis of the complaint was laid upon the laws of Richard III and Henry VIII 2, and a commission was issued which purports to be based not upon any prerogative of the Crown, but upon the statutes which its recitals closely follow, save that it excepts Scots ante nati and also new trades; and the provision compelling aliens to bind themselves to observe the statutes or depart the realm is distinctly derived from the Act of Richard III. Moreover the whole aim of the commission was not to assert the prerogative, but to prevent aliens from claiming any immunity from the existing municipal law 3. The Commission went actively to work, but its main business was to register all the aliens, and as they were mostly religious refugees no expulsion seems to have been resorted to, though prosecutions were certainly instituted for breach of the old statutes 4, and after the Restoration and the revocation of the Edict of Nantes it became part of the national policy to encourage (by statutory favours) the immigration of Protestants, especially those who introduced new trades.

The expulsion, then, of lay aliens, even in the seventeenth century, was restricted to the cases provided by statute, viz. breaches of the law of the land. And in this respect they really stood in no different position from subjects who were equally liable to exile on conviction of crime.

Foreign clergy were not within the words of Magna Carta, and at that time the clergy were free from the common law, and had complete liberty to enter the realm. Papal legates were in some cases excluded 5, but this was because they were ambassadors, and

1 St. Pap. Dom. 1547-1580, ed. Lemon, p. 320.

2 St. Pap. Dom. 1619-1623, ed. Green, pp. 270, 271. See Foreigners in England, 16181688 (Camden Tracts).

3 It recites that the object of the old statutes was that strangers should be demeaned as the law of nations required, but regulated within such moderate bounds as that natural-born subjects might not be prejudiced or discouraged. Sign Man. James I, vol. xii. no. 76.

Govert. Devett for exercising the trade of a cloth worker; Green, 1. c. p. 421. Another for setting up a sugar refinery (1. c. p. 423). He was let out on selling his business to the English refiners.

because they claimed to exercise jurisdiction in England. But till the Statutes of Provisors1 alien clergy were free to come into England and hold English benefices, even in time of war 2. The necessity of legislation was an admission of prior incompetence to deal with them. It was not till a claim of supremacy even over clerks was made that such a statute was possible, and it was the correlative to the Constitutions of Clarendon, restricting the egress from the realm of beneficed clergy and directed against the exercise by the Pope of a power within the realm.

Besides the Statutes of Provisors and Praemunire, at the Reformation other statutes were directed to keeping Roman clergyout of the realm 3: but aimed more at Catholic subjects than alien Catholics. The necessity of legislation points to the weakness or absence of any prerogative right to exclude such persons, even when the claims which they intend to enforce were inconsistent with complete national independence: and the acts in question aimed at the punishment and not the mere expulsion of the offenders. The only modern act against Roman Catholic monastic orders (10 Geo. IV. c. 7, ss. 28-38) is never put in force, and the penalty of banishment thereby imposed has been altered into penal servitude by 16 & 17 Vict. c. 99.

I have found no case throughout all this period in which a foreign offender was expelled or surrendered. Requisitions addressed to the English sovereigns are recorded, but no concessions. This argument cannot, however, be pressed very far; for the usual ground of demand was treason, and the natural refuge of the traitor was the country in whose interests the alleged treason was committed.

But at any rate everything points to the conclusions of Coke, that England was a complete asylum to the foreigner who did not offend against its laws, and that the Crown had no power over him except for breach of English law. And his authority seems to have prevailed throughout the seventeenth century. Moreover 16 Car. I. c. 10, s. 6, by imposing on the common law courts the burden (and duty) of testing the validity of any commitments per speciale mandatum regis, or the Privy Council may be said to have fettered effectually the pouvoir administratif, and to have killed the prerogative plea of act of state as a justification of any interference by the Crown with alien friends within the realm.

In the eighteenth century two notable cases of expulsion occurred. Of the first, that of the Swedish ambassador, Count Gyllenberg, it

1 1350-1400, still in the Statute Book.

3

13 Eliz. c. 3; 14 Eliz. c. 6; 1 Jac. I. c. 4.

2 See I Inst. 58.

See the case in 42 Edin. Rev. p. 99. Charles II. could not expel a Frenchman who had taken the king's mistress to the theatre, and had to ask for his recall.

may

be said—(i) That if the case was within 7 Anne c. 12, his expulsion was a gross violation of law; (ii) That if it was not, he could be lawfully arrested for treason within the realm; (iii) That in substance the act was a casus belli.

The second was that of the Count of St. Germains, and in 20 St. Tr. 1316 is recorded a statement by Pitt that, 'knowing by advice of the law officers a warrant would be illegal, yet, preferring the general safety in a time of war and public danger to every personal consideration, he ran the risk and did an extraordinary act upon a suspicious foreigner just come from France.' A potent admission of the lack of prerogative.

3

It is true that Blackstone1 and Chitty 2 say that the Crown, even at Common Law and by the Law of Nations, has a right to order aliens out of the realm or to keep them out, independently of any Alien Act, at any rate if they be not merchants. And Blackstone goes so far as to speak of the prerogative of granting safeconducts, without which by the law of nations no member of one community has a right to intrude into another,' and to say that aliens are liable to be sent home whenever the king sees occasion. But Chitty is wrong in asserting that a right exists to arrest without warrant men suspected of crimes abroad. The English view of crime being that it is local, no act done upon land abroad can be felony here except under a British statute; and the ordinary right to arrest felons without warrant cannot apply to foreign fugitive criminals, who ex hypothesi are guilty of no offence against the law of England or the Queen's peace. Such arrest, if lawful, could lead to no judicial proceeding known to the common law.

The only case in which anything like an authority can be found. is with reference to an arrest in England for abduction in Ireland, in which a justice for the city of London committed the accused, who was not an alien, to the Poultry Counter. But the Court of Queen's Bench, while it refused to release him, avowed its inability to issue any process for his conveyance to Ireland ; and both countries were under the same sovereign.

And Blackstone is even more wrong. The Crown can have no prerogative by the law of nations. It may be perfectly true that in international law independent states are entitled, if strong enough, to exclude or expel alien friends from their territories, subject to any treaties then existing. But this determines nothing as to the exist

1

3

I Comm. p. 366 (ed. 21st Hargrave).

2 Chitty, Prerog. Crown (1820), p. 49.

1 Bl. Comm. 289. See Mackintosh's criticisms in 34 Cobbett Parl. Deb. 468. But for the saving in 31 Car. II. c. 2, s. 15 a, Habeas Corpus must have gone. In the result the man was sent over in charge of a messenger under authority of a Secretary of State's warrant. Kimberley's case, Strange 848.

5 Great Britain forced China at the point of the bayonet to admit aliens to her