ence of any constitutional power in a perfectly independent state to exclude or expel strangers. And while the state of which the expelled person is the subject may have internationally no ground of complaint, the expelled person himself may have a complete cause of action by the municipal law of the expelling state to which no mere plea of an act of state1 would be any sufficient answer. If this were so, many successful actions against government officials from Fabrigas v. Mostyn onwards could have been defeated by the Crown.

The only weighty name in support of the other view is that of Lord Ellenborough, who expressed, in 1816, in the House of Lords 2, upon an Alien Act then under discussion, his opinion that the Crown could expel aliens without statute. This was however based only upon Vattel and Puffendorf and on a reference to a petition of the citizens of London for the expulsion of aliens, which is insufficiently identified in the meagre report in Hansard, and may have referred to the Jews, who for reasons already given were outside the charter.

And while, except in the cases of Counts Gyllenberg and St. Germains, no pressing necessity for the expulsion of aliens other than Papists seems to have existed in the eighteenth century until the French revolution, Lord Ellenborough's opinion is discounted by the fact that the prerogative, if not absolutely gone, was deemed too weak and rusty for independent exercise, and that 33 Geo. III. c. 4, 45 Geo. III. c. 155, and 55 Geo. III. c. 54, which are throughout enacting and not declaratory statutes, were deemed necessary to authorise the expulsion or exclusion of undesirable foreigners 3.

In the debates on these bills, those who contended that a prerogative survived could suggest no mode of its exercise, but by proclamation and indictment for contempt thereof, nor any precedent for that procedure or the infliction of banishment as a penalty.

4

The conflict between the views of Coke and Blackstone approached a final settlement in the case of Re Adam, in which the Privy Council decided that the expulsion of a Frenchman from Mauritius was legal, on the express ground that French and not English law governed the rights of aliens in that island.

And settlement was reached, so far as an extra-judicial decision

territory. The United States by statute rigidly exclude all Chinese from theirs, but would probably declare war if the same measure were meted out to them. See U. S. For. Rel. 1882, pp. 285, 294.

1 Pleas of act of state and public danger were raised, demurred to, and overruled in the Victorian case already cited. See Musgrave v. Pulido, 5 App. Cas. 102.

Forsyth, Cas. Const. Law, 181.

Justifying Jefferson's opinion of 1791 (see Works, ed. Washington, p. 299). See also per Mellish L.J. in Kwok a Sing's Case, L. R. 5 P. C. at p. 189 and 42 Edin. Review,

p. 130.

Re Adam, 1837, 1 Moore, P. C., 460, 477. See also Forsyth, p. 341.

could attain it, in the case of the Creole. This vessel, in 1841, left Hampden in Virginia with tobacco and slaves for New Orleans, a voyage perfectly lawful by American law, being from one part of the United States to another, and not a slave-trading voyage by international law. The slaves, when upon the high seas, rose upon the captain and crew, seized the ship and in the struggle killed one man, a passenger. They then forced the mate and crew to navigate the ship to Nassau in the Bahamas. There one hundred and twenty landed and were liberated and eighteen were charged with murder and piracy.

The United States demanded1 surrender of the slaves for murder and piracy, and maintained also that as the ship had touched at the Bahamas under stress of circumstances, the British courts had no jurisdiction over it to liberate the slaves or otherwise.

This demand was fully discussed in the House of Lords and elsewhere, and refused. Lords Lyndhurst, Brougham, Campbell, Denman, Cottenham, Wynford, and Abinger, Sir Frederick Pollock, Attorney General, Sir William Follett, Solicitor General, all the judges and all Westminster Hall, were unanimously of opinion that these slaves could not be surrendered, and that no claim for damages for liberating them could be entertained2; and in the result the British Government instructed the Governor of the Bahamas to release the Creole prisoners, unless any colonial law, like that of Canada, empowered their surrender or trial. No such law existing, the men were released and were not tried for piracy jure gentium, the only other alternative. Since 1842 no attempt has been made to expel any alien friend except under statutory authority (e.g. the Alien Act of 1848 and the Crimes Act of 1882) save in 1854, when the law officers declared illegal the seizure for surrender of some deserters from a Russian public vessel 5.

Soon after this great debate the first of the present Extradition Treaties was made. But that and all subsequent treaties have depended for their municipal effect upon the statutes which have confirmed them or authorised the Crown to enter into them. If the prerogative claimed for existed the statutes would be superfluous as to foreigners. And a fugitive from foreign justice, however undesirable as a resident in England, is before the English law as innocent as the most unjustly persecuted of foreign patriots.

1 There was at this time no extradition treaty with the United States, Jay's Treaty of 1794 having expired on the outbreak of the war of 1812, and the Ashburton Treaty not being yet made.

3 Wm. IV. c. 23, since repealed. Forsyth, 468.

Kwok a Sing, L. R. 5 P. C. 179.

Indeed the same is true of Jay's Treaty of 1794 with the United States, confirmed by 37 Geo. III. c. 97, s. 26, and the Treaty of Amiens.

The present Master of the Rolls has indeed on one occasion intimated as his opinion, in the case of Reg. v. Weil (9 Q. B. D. 701), that a foreign felon could be arrested without warrant. But this opinion was obiter dictum1, wholly needless for the decision of the case, was not adopted by the rest of the court, and is not founded upon any principle known to the English law. And in Reg. v. Weil, as has been subsequently decided in Reg. v. II. Woodhall (20 Q. B. D. 832), the Court of Appeal assumed a jurisdiction which did not belong to it. The widest extent to which such a doctrine can be stretched is to admit arrest without warrant for those felonies committed abroad over which there is a British jurisdiction concurrent with that of the foreign country, and for felonies committed in other parts of the British Empire, which are against the peace of the Queen or statutes enacted by a Colonial Legislature of which she by her commissioners is constitutionally an integral factor. And even the lawfulness of this extension has been denied in Canada 2.

The law of England then now stands thus with respect to aliens. 1. The Crown has no prerogative to interfere with the free ingress or exit of any alien friend except perhaps foreign sovereigns and their ambassadors, and certainly their troops. And any

attempt at such interference can be stopped by Habeas Corpus or action of false imprisonment or by indictment, as in R. v. Lesley (29 L. J. M. C. 97) against the official or ship captain who interferes with the alien.

2. The Legislature has made no provisions to restrict such ingress or exit except

(a) 6 & 7 Wm. IV. c. 11, which provides for the registration of incoming aliens, except foreign ministers and their domestics, who may be registered under 7 Anne c. 12 in the office of the Sheriffs of London and Middlesex, children under fourteen, and aliens who have resided three years in the United Kingdom. This Act is a dead letter3, and disobedience to its provisions does not entail expulsion.

(6) The Merchant Seamen Deserters Act 1852 and Extradition Acts of 1870 and 1873, and the treaties and conventions incorporated with them. But these Acts can only be put into force at the instance of the foreign State from whose justice or service the

1 A direction that arrest without warrant for a felony committed abroad could not be justified was held good, Rogers v. Van Valkenburgh, Up. Ca. 20 Q. B. 220 (1860); and in Lower Canada in ex parte Garner (1868), 4 Lower Canada, Law Journ. 59, it was held that a person arrested without warrant under a demand in extradition was justified in shooting the constable.

2 Cameron J. (1881), 8 Ontario, Pr. Rep. 452, Reg. v. McHolme and per Lord Denman, 60 Hansard, p. 324.

3 Parl. Report on Aliens, 1843, p. ix; Life and Labour in East London, vol. 1, ed. Booth, p. 551.

fugitive alien has sought asylum in England, and the surrender must be after legal enquiry and in strict compliance with the forms of the statutes. The Extradition Acts recognise but do not create the right of every alien arrested under them to the writ of Habeas Corpus.

(c) The Quarantine Acts, which are not directed against aliens, but against disease, though in New Zealand as in the United States they have been wrested to the detriment of the Chinese.

3. Neither the Privy Council nor the Cabinet nor any executive officer has by delegation or otherwise any power not expressly given by statute to expel any alien friend even for crime committed in England.

Any attempt to confine foreigners on shipboard otherwise than for quarantine could be at once stopped by a writ of Habeas Corpus, as in the case of Somersett, who was an African born, and obviously not naturalized, and, the more recent cases of The Afghan's passengers in New South Wales, in which the Supreme Court of the colony, in May 18881, overrode all the attempts of the Executive to prevent the landing of some forty Chinese, whose exclusion even the stringent Anti-Chinese Acts of the colony did not authorise.

And no constraint can be exercised, save under the authority of a statute aptly and expressly worded, to expel or exclude any alien friend from the realm, however unwelcome may be his competition in the less-skilled or worse-paid industries. And if the Crown has no prerogative in the United Kingdom, its agents in the constitutional colonies, even if clothed with viceregal authority, can have no more. The only colonies in which an exception from this rule is possible are those in which, when acquired by conquest from foreign powers, the foreign law has been suffered to remain and the Crown may, as in Ceylon, Mauritius 2 or Trinidad3, be deemed to have succeeded to the executive powers accorded by the Dutch-Roman, French, or Spanish laws respectively. But even there the difference is probably only this, that an alien has not the same civil rights as in England. As to all colonies not acquired by conquest from civilized powers, and even in India the English law as to aliens seems to have been adopted; and so far as relates to America the Act 12 Charles II. c. 18, s. 2, excluding alien merchants from the plantation trade, shows that it was then believed that Art. 30 of the Charter applied to the colonies. Consequently throughout the empire

1 Re Lo Pak, L. R. 9 New South Wales 221; re Leong Kum, 1. c. p. 250; re Lau Yon Fat, 1. c. p. 269.

2 Re Adam, I Moore, P. C. 460.

See Picton's case, 30 St. Tr. 225.

(1814) Reg. v. Symons, 2 Strange, Madras Rep. 93, where the Courts on Habeas Corpus released two Goanese Jesuits whom the administration wished to expel.

any interference, except under imperial or colonial statute, with the perfect freedom of an alien friend to enter and remain in any part thereof can be prevented by use of the writ of Habeas Corpus, issuable either out of the Courts of the colony, or, if there be no local Court competent to issue the writ, then out of the High Court of Justice in England'.

NOTE. Chinese immigrants are excluded or restricted:

In the United States, by an Act of 1884, c. 115, United States Statt. at Large, vol. xxiii. p. 115, and a more stringent Act of 1888.

In Canada, by an Act of 1886; 1 Rev. Statt. Canada, c. 67, p. 975, after some constitutional troubles arising out of the attempt of British Columbia to pass an Act of its own (1884, cc. 2 & 3), which was quashed by its own Courts as unconstitutional, under the British North America Act 1867. In Queensland, by the Acts No. 8 of 1877 and No. 13 of 1884. In New South Wales, by 45 Vict. c. 11; until last year during which another Act has been passed.

In Victoria, by 27 Vict. No. 259, amended in 1881, c. 723. In South Australia, by the Act No. 213 of 1881, which, however, does not apply to the northern territory at present attached to that colony.

In Canada, all immigration even of British subjects can also be restricted by an Act of 1886; Rev. Statt. c. 65, p. 958, framed upon the United States' Acts for a like purpose.

W. F. CRAIES.

1

Reg. v. Anderson, 30 L. J. Q. B. 129; 25 & 26 Vict. c. 20.