§ Sir John Newport
rose, pursuant to his notice, to call the attention of the House to a letter from the Under Secretary of State for the Home Department, to the Colonial Department, respecting the admission of aliens into this country. In all periods of our history, the Legislature had taken care to keep open the ports and harbours of-Great Britain, for distressed strangers; and it was the glory of this country, that when protection could not be afforded to them, by other nations, they were sure of finding an asylum here. At an early period of the French revolution, precautionary measures were adopted; and though it was not incumbent on him to discuss the propriety of that law, yet it was material to observe, that the Legislature had placed strict guards over those who were entrusted with the exercise of its powers. This was enough to shew the jealousy of Parliament on the subject. With the first French war the first Alien Act expired; it was revived soon after the commencement of the second French war, and nearly in the same form and manner, and with the same powers and restrictions, as the former Act. What, then, was the surprise of himself and of several other members, when they found, on the discussion of the conduct of sir s James Duff, that the following letters were laid before, the House? The first was a copy of a dispatch from lord Bathurst to sir James Duff, dated November 29, 1814, to this effect:—"Sir; It having been represented to his Majesty's government, that you have directed the masters of all British vessels touching at Cadiz, not to depart from that port with any Spanish subjects on board, unless such Spanish subjects should be provided with your passport, or with one from the government of Spain, I am to request that you will acquaint me how far this is founded on fact," &c. In answer, sir James Duff wrote as follows: "I beg leave to represent to your lordship, that in virtue of the orders of his Majesty's government, it has been the practice at this port, since June 1813, to allow no aliens to go passengers in British merchant vessels or packets, to any of his Majesty's dominions, unless provided with proper passports "Sanctioned by his Majesty's 320 ambassador whilst he resided there, and since then by me; and that, to prevent the possibility of any evasion, British subjects were requested to conform to that regulation. At the request of the governor of this city, I renewed that order, &c." Then came the letter from J. H. Addington, esq. to Edward Cooke, esq. to which sir James Duff had referred in justification of his conduct: it was dated May 4., 1813, more than eighteen months before lord Bathurst's dispatch, and was to the following purport: "Sir; in order to prevent, as far as may be practicable, the introduction from the Continent, of aliens of suspicious character into this country and its dependencies, it appears to lord Sidmbuth desirable, that instructions should be given to his Majesty's ministers at foreign courts, and to the British consuls and agents on the Continent, to require that such persons as may propose to embark for any part of the British dominions, should, in the first instance, apply to them to be furnished with passports for that purpose; and his lordship is also of opinion that, in all case, when either the character of the person applying for such passport, or the object which he has in view may be objectionable, it would be expedient to refuse it. N. B. A printed copy of this letter was forwarded on the Gift of May, 1813, from, the Foreign Office, to all his Majesty's consuls in foreign countries, for their guidance." Now, he would ask the House, whether there ever existed a case in which such extensive powers were so delegated, or conveyed in a manner so loose and improper? But there was something further, which marked it more strongly. It would have been a great dereliction of duty not to have communicated to the House the reasons of taking such an extraordinary step; but between the interval of writing this letter and the discovery of it, the Alien Act; which would have expired, was re-enacted and brought specially before the House. Was not that the period at which this letter should have been submitted to the House? Was it not proper, as the question did not pass sub silentio, and some of his Majesty's ministers; participated in the debate, that this measure should have been communicated? During that time, this circular*For copies of the several documents referred to in the course of this debate, see Vol. xxix, pp. 596, 740.321 letter was in force; and when the Bill for continuing the Alien Act was submitted to the House, no notice was taken with respect to passports for foreigners who wished to come to this country. On the contrary, there were passages directly negativing the possibility of such a thing as passports having been granted. The House knew nothing of that fact, and would not have known of it at present, if sir James Duff had not relied on this letter for his justification. But if the Legislature, for good and wise reasons, thought proper to depart from a general system, and to intrust to the highest offices of this country a temporary power, under the Alien Act, was fit that the Secretaries of State should delegate any of those powers without the authority of Parliament? And who were the persons to whom such powers were delegated? He wished the House to consider the situation in which consuls in foreign countries were placed. It was justly remarked by an hon. and learned friend of his* on a former occasion, that if such a power had been entrusted to consuls at the revocation of the edict of Nantes, none of the victims of Louis the 14th's tyranny would have made their escape out of France. It could not be denied, how respectable soever the characters of some of those consuls might be, that many temptations might induce them to co-operate with the governments of those countries in which they resided. But it appeared that they were not only to examine into the characters of the persons applying for passports, but also into the objects which they had in view. Did not the House perceive, that such persons might have to complain of the conduct of that very consul to whom they were to apply? Was it not monstrous, then, that the power of refusing passports should be vested in such hands? Yet this was not all; many of the consuls were engaged in commercial speculations, and it might happen, that the party who wanted to come to this country wished to embark in a similar branch of trade. It was, therefore, a high breach of duty in the great officers of state to commit the execution of their powers to any such persons,—powers which they exercised in this country under the control of the Legislature. It was sufficient for him to show, that in no one part of the Act was there any thing*Sir James Mackintosh. See Vol. 29, p. 1145.322 like a power for them to shift the responsibility from themselves, or rather to delegate the powers of the Act to any other persons. It would be incumbent on the House to mark their sense of that transaction, and he would therefore submit his motion to them. The right hon. Baronet then moved:1. "That it appears to this House, from documents laid before it, that instructions were issued, on the 6th of May, 1813, from the office of the Secretary of State for Foreign affairs, of the recommendation of the Secretary of State for the Home department, to all his Majesty's ministers and consuls in foreign countries, to require that such aliens as might propose to embark for any part of the British dominions should apply to be furnished with passports for that purpose; and that in all cases when either the character of the person applying for such, passports, or the object which he had in, view, may be deemed objectionable, it would be expedient to refuse it:2. "That no communication whatever was made to Parliament of such instructions having been issued until the 14th of February, 1815, a period of nearly two years, and then only in consequence of an inquiry into the conduct of sir James Duff, consul-general at Cadiz, on a subject incidentally connected therewith, although a Bill for renewal of the Alien Act, under certain modifications (in aid of which Act such instructions were avowedly issued), was submitted to the consideration of both Houses of Parliament, and passed, into a law in the month of July, 1814; neither was any notice taken in the said Act of any passports having been required to be procured by such aliens as might arrive in the United Kingdom conformably to such instructions:3."That the extraordinary powers intrusted by the Alien Act to the principal Secretaries of State in Great Britain, or the Lord Lieutenant or his Chief Secretary in Ireland, to be exercised under the immediate view and control of Parliament, could be only warranted by the exigency of the case, and ought not in any degree, or under any circumstances, to have been delegated by those great officers of state to any other persons, without the knowlege and authority of Parliament; still less should they have enabled all the consuls residing in foreign countries to prohibit, at their discretion, the embarkation of aliens for the United Kingdom; a power 323 presenting great temptations to abuse by subordinate agents, and liable to be frequently perverted to objects of extortion or oppression.
§ Mr. Addington
thought that the right hon. baronet was under considerable misapprehensions. The letter of which he complained was a mere measure of vigilant precaution in the Secretary of the Home Department, to whom the execution of the Alien Act was entrusted. It would be for the House to decide, whether, in the exercise of his powers, there was any thing criminal in this transaction. On a former occasion, he had detailed the motives which induced the department to which he belonged to circulate that order; and he would now repeat, that it was issued in consequence of the constant complaints of the number of aliens—little less than twenty thousand—who were in this country, and of the necessity of preventing the admission of those whose characters were liable to suspicion. Various instances have occurred of aliens having arrived at the outports, who were suspected of ill designs, but who were afterwards' permitted to proceed, because sufficient grounds of their intentions had not been adduced: The principal object therefore was, to remove those impediments from aliens in general, and to permit them to land and proceed. The persons who were entrusted with the power of granting passports, were those who must be best acquainted, with the character and motives of the persons applying for them: but the fact was, that this power was not delegated, as the right hon. baronet had conceived; under the Alien Act, but by virtue of the acknowledged prerogative of the Crown, to refuge admission to aliens of any description. Such prerogative existed before the Alien Act was passed; and, therefore, this letter left aliens to a certain degree where it found them; it did not oblige aliens to apply for passports, and persons who knew that no suspicion attached to their conduct could come to this country without them. Since this regulation was adopted, not one single instance had occurred of ah individual coming without a passport, who was refused admission. He wished to draw the attention of the House to the general expressions of the letter; and he would ask any gentleman, whether, under the circumstances in which it was written, it could apply to any aliens but those who were strongly inspected of hostile inten- 324 tions towards the government of this country? The letter was dated on the 4th of May, 1813, when the war on the Continent was not terminated. It had been much the practice of gentlemen opposite, and particularly of the member for Bedford, to charge the Secretary of State for the Home Department with exercising his power under the Alien Act with extravagant rigour; but he (Mr. A.) had discovered two papers in his office, which would shew what precautions were resorted under former administrations. The first was written when the right hon. Baronet himself held a distinguished situation, and when a most respectable nobleman was at the head of the Home Departments. It was dated Dec. 16, 1806, and was addressed to Mr. Reeves, directing that no aliens who had not resided in England were to be permitted to come from the Continent, except under the following regulations: they were to specify, in a detailed manner, who and what they were, their motive's for coming to England, and the port from which they intended to embark; and no alien enemy was to be suffered to come, without the passport of one of his Majesty's ministers resident on the Continent. The other letter, of a subsequent date, was nearly to the same effect; and all he meant to shew by them was, that these precautionary measures did not originate with his noble relative. At the time that those instructions were given to the consuls abroad, nobody could have dreamt of the probability of peace being so soon restored; He was, however, prepared to prove that, independent of the Alien Act, the Crown had the prerogative of sending strangers out of the country. He then read art extract from Blackstone, which stated, "that as to every thing relating to safe conduct for strangers, Puffendorf had very justly resolved, it is left in the power of all states, to take such measures about the admission of strangers, as they think convenient." At the time, however, that the Alien Act was passed, the great majority of the House was decidedly agreed on the adoption of a measure of this nature. He believed the necessity of such a measure had been strongly felt, and he considered it only went to authorise the Secretary of State to do that which, if it did not exist, he would, in some cases, be bound, to do, in the exercise of a sound discretion on his own responsibility.
§ Mr. Whitbread
observed, that the great 325 difference between the prerogative, as it was exercised before the passing of the Alien Act, and after it, was, that before the year 1793, the prerogative was regulated by law, and the Secretary of Slate could only justify himself by showing, that he had acted according to law. The sight hon. gentleman had appeared to be greatly surprised, that sir James Duff had justified himself under the authority of the letter that had been sent by the Secretary of State. Until this justification came out it appeared as if that letter had been quite forgotten. The noble Secretary of State (lord Sidmouth) was, to be sure, as good-humoured a person as could be. He had shewn his good humour by forming a part of so many administrations, and amalgamating his principles and opinions so easily with those of so many succeeding administrations. He considered, this, however, to be an ill-humoured act: as it put it in the power of any consul abroad who was in an ill humour, to refuse a passport without any goad reason. The right hon. gentleman had said, that an alien could not be excluded from this country merely for not having a passport. How many strangers, however, not alien, enemies, but alien friends, were, in fact, excluded by sir James Duff's refusing to give them passports. In order to spare the House the trouble of a second debate, he should take that opportunity of stating the case of Don Anselmo Correia, in which, a most unjustifiable transfer of power had been made by the Secretary of State for the Home Department, to M. de. Souza, the Portuguese minister. Because Correia written some lampoons which annoyed M. de Souza, he applied to Mr. Ryder, who was then Secretary of State by whom he was sent to Lisbon, a place which seemed to be peculiarly selected for the reception of persons guilty of political lampoons [a laugh.] Surely, however, it could not be said that there was any thing in such an offence which justified the exercise, of such a power. There was nothing seditious in it, nothing which tended to excite mutiny or disaffection in the army or navy; it, was contained in a Portuguese pamphlet, which, in fact, had never been translated into English. The hon. member next read a letter from Mr. Reeves to a Portuguese gentleman, informing him that it was necessary to have a certificate from the Portuguese minister, before he could receive a licence for remaining here; and contended that such a 326 regulation was transferring the powers of the Alien Act, so far as they related to the Portuguese, to the ambassador of that nation resident here. He had been informed that the practice still continued. For the papers respecting M. Correia it was his intention to move, as soon as the present question was disposed of.
§ Mr. Addington
said, that when the hon. gentleman first mentioned this subject in the House, it was the general impression that it was his object to bring a charge against the present Secretary for the Home Department, and he was convinced the hon. gentleman himself had supposed that it was a recent case. Upon investigation, however, it appeared that it was a case which had occurred five years ago, when Mr. Ryder was at the head of the Home department. He should certainly vote against the granting the papers which the hon. member gave notice that the would move for. He would never vote for the production of papers, unless the mover made out, at least, a primâ facie case. If the hon. gentleman only wished, for these papers to enable him to fish out some matter of accusation against the Secretary of State, he should oppose the production of them. If the House were to grant these papers, the hon. gentleman, might then move for all the papers relative to every case of aliens detained in this country for the last twenty-three years. Before he sat dawn, he begged leave to move the previous question upon the right hon. baronet's motion.
§ Sir J. Newport
made a short reply, in which he contended that the delegation ought not to have taken place without the consent of Parliament.
thought the bright hon. baronet had given to this subject a degree of importance which by no means belonged to it. If ministers were not allowed to male regulations of that nature upon the subject, he did not know what other arrangements they would be allowed to make. It was an arrangement that was, upon the whole, beneficial to the aliens themselves. The wish of Government was, that every alien should present a primâ facie, recommendation of his being a fit person to be admitted into this country. If they could not produce this primâ facie recommendation, it became the duty of Government to make inquiries into their individual case, which would necessarily subject them to some delay. How could if he expected that the cases of 20,000 327 aliens could be carefully examined by the Government, if they did not bring with them a passport or any primâ facie recommendation?
§ Sir J. Mackintosh
contended, that the extract from Blackstone, which had been read by the right hon. gentleman, did not at all apply to the present question. When Puffendorf stated the right of every state, he only meant the inherent right of every nation to take measures for its own preservation. Puffendorf could not have had in his contemplation, how the prerogative of the Crown in England was restrained in its exercise by Parliament. Certainly there was a power in this country as well as in every other, to exclude such strangers as were conceived to be dangerous. The exercise of the prerogative of the Crown was here restrained in this instance, as in many others, by acts of parliament. Adverting to former periods, he inquired what would have been thought, had the unfortunate beings who fled from the tyranny of Robespierre, been refused an asylum, and been sent back to the scaffold? In proportion to the severity of a law, should be the lenity with which it was understood and put in force. And more particularly should a suspension of a law, founded on one of the most important clauses of Magna Charta, be guarded from a loose and undefined construction. The whole body of consuls and vice consuls amounted to about 23 in number. It was not fitting that they should be entrusted with the power that had been vested in them. Five or six of them were natives of the countries in which they acted; and it was highly improper that they should be empowered to shut the doors of British humanity and hospitality on all those who requested admission.
The Solicitor General
contended, that the authority of sir William-Blackstone had been properly quoted; for though Puffendorf, to whom he had referred had written on the general law of nations, sir William had applied his reasonings to the positive law of this country. There was no doubt but the Crown enjoyed the power of deciding whether aliens should be here or no. The letter did not act as a prevention to the setting out of foreigners for this country, but as a salutary caution; for should they apply in vain to our consuls for passports, they were still at liberty to proceed to this country, with this disadvantage only, that they would be subjected, on their arrival here, to these in- 328 quiries which would not have been made had they been possessed of a passport.
supported the motion, and alluded to the case of a distinguished member of the Cortes, now residing in honourable poverty in this country, for whom sir James Duff sent a search warrant on board the merchant ships in the port of Cadiz, which, however, he happily escaped. British cousuls should not thus be permitted to disgrace both themselves and their country.
rested his objection to foreign consuls being vested with the power of refusing passports, mainly on the ground that they did not resemble responsible ambassadors; but as many of them carried on trade on their own account, and might have mercantile, prejudices and jealousies to gratify, they might abuse their power to forward their own speculations.
§ The House then divided:
|For Sir J. Newport's motion||21|
|For the previous question||68|