HC Deb 19 July 1822 vol 7 cc1717-25

On the order of the day for the third reading of this bill,

Mr. Bernal

expressed his strong disapprobation of the principle and details of the measure. It was no longer called for by any foreign war, but the ground on which it rested was, that it was necessary for the sake of preserving our friendly relations with continental states. He contended, that though it was only to continue for two years, it contained in itself the seeds of perpetual regeneration. For the very reasons for which the measure was solicited, it might be shown to be impolitic and unjust. If the ordinary law was not sufficient for repressing the plots and machinations of aliens, when any extraordinary danger arose, the minister might rely upon parliament to afford him powers equal to the emergency. If projects against foreign states were concerting here, it would be amply sufficient to preserve the bonds of amity, that the enterprise should be communicated through the medium of the established envoys. The bill had the effect of producing a degree of suspicion and distrust in the minds of strangers, wholly inconsistent with their previous notions of British hospitality and generosity.

Mr. Wetherell

argued, that the principle of the Alien bill was as old as the constitution of the country. It was a power inherent in the Crown from the earliest periods. Every state in its first rudiments must have the right to admit, exclude, or send away those who were not its subjects. Magna Charta, in terms, applied to merchant strangers only; and they could not come, but under the safe conduct and protection of the king; by which in fact was meant the king's license. There were between 15 and 20 statutes, from the time of, Magna Charta to the reign of Henry 6th, in which provision was made for the admission into our ports of merchant strangers only. How, then, could gentlemen contend, that a right, specifically granted for the purposes of trade, could be extended generally to persons having nothing to do with trade? Magna Charta gave the right of safe conduct to those who came here to trade; but it went no farther. This was the interpretation given to the passage by sir Matthew Hale, and other eminent men. There was a curious document now in existence, from which it appeared, that in the reign of Edward 3rd, a safe conduct was given to a merchant of Bourdeaux "to come here to prosecute his affairs;" which showed that the power to allow or to prevent the entry of foreigners into this country had been anciently exercised by the Crown. If a merchant were coming here, not to prosecute treason, but to prosecute his trade, it would, he admitted, be wrong to prevent him; but the question was, whether the state had or had not the right to exercise this power over aliens? Was languages, which evidently pointed at persons acting in a mercantile character, to be enlarged to the extravagant limits to which the genius or fancy of his learned friend (sir J. Mackintosh) wished to extend it? His learned friend had argued, that this privilege was given to foreigners, not only for the purpose of trade, but that the constitution granted it to all persons who pleased to make use of it. He denied the truth of this proposition. If persons came here simply to trade, it would certainly be a breach of Magna Charta to remove them; but he would on that principle graft this proposition, that persons coming here were amenable to the coercive power which every state possessed; and if they resided here under the mask and pretence of trading, but really with intent to acts injurious to the community, they might be sent out of the country. It was proper to inquire what the antecedent practice of the constitution was, in order to discover whether they were violating a principle indigenous to it. He must contend, that the same principle which anciently, prevailed was still in existence, unless it could be shown that it had been repudiated and thrown away. Had not the state the same power over aliens that it always had over the natural-born subjects of the Crown? If it appeared that it had always exercised a similar power over the natural-born subjects of the Crown, it must follow, that it had a right to use a congenial and analogous authority over aliens. If he could prove that the Crown had the authority to say to its natural-born subjects, "You shall not quit the kingdom," or, being absent, to command their return, then he brought those who opposed the bill to this monstrous absurdity—that it exercised a power over its natural-born subjects which it could not enforce with respect to alien—that it was strong where it ought to be weak, and weak where it ought to be strong. Strong where it ought to be weak, by exercising a power of coercion over its natural-born subjects and abridging their rights; but weak with respect to aliens, who, though not equal candidates for favour, were left in the possession of that privilege of which the natural-bore subject was deprived. He would not contend that the alien should he placed in a worse situation than the natural-born subject; but he must argue that the latter ought at least to enjoy as extensive a privilege as the former. He was surprised to hear, the learned member for Lincoln (Mr. J. Williams) say, that the writ ne exeat regno originated in a dark age; that it was only to be found in some hole or corner of the constitution. Fitzherbert, whose authority was highly respected, gave a laborious statement of the power and effect of the writ ne exeat regno. That writ might be applied; first, to prevent any persons from leaving the kingdom; 2nd, to prevent the departure of any particular individual; and, 3rd, if parties were abroad, the power of recall existed, by letters under the great or privy seal. The writ might be issued by the lord chancellor, ex arbitrio; by the secretary of state. or the keeper of the privy seal. Lord Hale, by his annotations, sanctioned the doctrine laid clown in Fitzaherbert. A case in which the existence of this controlling power was peculiarly manifested occurred in the reign of queen Elizabeth, and was to be found in Dyer's Reports. There a merchant left the country without license, under the 5th of Henry 2nd, which permitted none but nobles, soldiers, and merchants, to leave the country. Complaint was made of his departure, and the queen referred it to the judges. The question was, whether he went abroad for the purpose of trading, or for general residence; and the judges held, that as he was a merchant, he had a right to go abroad. In the time of James 1st, sir T. Dugdale went to Venice, and refused to obey the king's letters of recall. Prior to his going abroad, he had made over his property to a friend. It was questioned whether the property thus made over could be forfeited on account of his conduct: but the Court of Exchequer found that it was forfeitable. This showed that the Crown had exercised the power of inflicting a penalty on a natural-born subject for remaining out of the realm. In 1716, in the reign of George 1st, lord: Wharton, who had been created a duke for the attachment he had manifested to the reigning family, changed his political sentiments, and attended at the court of St. Germain's. He was recalled, but he refused to obey the order, and confiscation of his property followed. Here they found that latent power in full operation, which they were told no one ever heard of, except in the "dark periods of the constitution." They would find that it had been resorted to in all times and ages, down to the reign of Geo. 1st.—He would next inquire into the power which the state had over aliens. Lord Hale explained that point fully in his inquiry into the right of the Crown to open and shut the ports of the kingdom at pleasure. Now, surely, if the Crown had a right to keep out ships, it had also authority to keep out those who were embarked in them. Lord Hale spoke of the Crown as the bearer of the keys of all the ports and havens in the country. He could cite various letters from the time of Henry 3rd, which had been directed by the Crown to the governor of Dover, the archbishop of Canterbury, and others, to prevent foreigners from coming into this country in time of peace. If they ventured here, it was ordered that they should be sent back. At various periods this power was vigilantly exerted to prevent emissaries from the See of Rome coming to England. This was a clear proof of the exercise of that authority which they had been told never existed. But it was quite evident, that in some branch of the constitution that power always did exist, to prevent individuals who were not merchants from coming here. From a curious letter, to be found in sir Dudley Digby's compilations, it might be seen, that queen Elizabeth's lawyers conceived that the right of dismissing aliens belonged to the Crown. The letter contained instructions which the earl of Worcester was ordered to carry to sir F. Walsingham, then minister at the French court. The French king had complained that Elizabeth had received into her dominions the relics of the Hugonot party, after the massacre of St. Bartholomew. He demanded, "not only that they should be admonished, but that they should be commanded to return." Sir F. Walsingham was directed to expostulate with the French king; and the instructions were signed by lord Burleigh and sir T. Smith. Those instructions contained the following passage:—"It is the privilege of Great Britain to receive exiles of France and every other country; but if they attempt any thing to the disquietude of the realm, they are sent away." A case occurred in the reign of James 1st, where the court of Spain remonstrated against the expulsion of a Spaniard from this country. The answer was, "that he had been intriguing in the court?" At the same time, some low-born Irishman insulted sir C. Cornwallis, our ambassador in Spain. He, however, did not request that the offender should be removed to Dublin, but merely desired that he should be lectured in private.—He went along with gentlemen on the other side in their feelings and principles respecting this bill; but he could not go along with them in saying that we abrogated the laws, and tarnished the glory of our ancestors, in advocating this doctrine. Aliens could not be domiciled in this country. How was that consistent with the rights alleged to be given by Magna Charta? They were entitled, it was contended, to live in this country; yet they must live under vines and fig trees, and sheltered only by the canopy of heaven. Merchants only were by law allowed to have houses. If the power of sending aliens out of the country was possessed only by the king and the parliament, then they might misconduct themselves while parliament was not sitting, without any power of sending them away. He agreed with gentlemen opposite, that if aliens were sent out of this country because they were unpopular at foreign courts, then the powers of the act were abused. That they should be accused of offences in foreign countries, was no reason for refusing them protection here. The regicides of Louis 16th, if they had sought shelter here, ought not to have been sent away. Exiles for crime ought to find an asylum in this country. The criterion was, whether this state was likely to be injured by their presence.

Mr. Denman

said, that he was not sanguine enough to believe that there was any chance of defeating this measure in the present session, he still hoped that it might be repealed in the next. With respect to the object and tendency of this bill, the feelings of his learned friend were involuntarily engaged on the side of those who opposed it; and he could not help thinking that this avowal had done him more credit, both as an English lawyer and a gentleman, than any of that arguments, however acute or ingenious, which he had urged in its support. Certainly, if this were merely a bill for modifying and regulating an ancient prerogative of the Crown, his learned friend would be entitled to consider it as a boon to foreigners, instead of an act of oppression. He had always considered the line of argument taken by his learned friend as involving a question of mere antiquarian research; but even upon this feeble and insufficient ground, he was prepared to meet the supporters of the bill. His learned friend admitted, that he could not find in any historian, lawyer, or compiler, a single authority to show that this claim of prerogative was recognised as a part of the law of England. This concession involved the whole argument, for, if there was no such testimonial lo be found, it was surely not too much to infer that such a prerogative, formed no part of the law of the land. His learned friend had said, that the same reasoning might be equally applied to the writ of ne exeat regno, and that there was no evidence of its frequent or modern exercise. But, was his learned friend prepared to contend that there was no more evidence of the writ of ne exeat regno, than of the alleged prerogative of the Crown, to send aliens out ol the country? There was not a single compendium of law, in which the prerogative of the Crown to restrain subjects from leaving the realm was not mentioned. In Comyn's Digest, mention was made of the writs ne exeat regno and revertatur in regnum. But if they looked to the head of 'Alien,' either in that work or in Bacon's Abridgment, and to the enumeration of all the disadvantages under which aliens laboured, not the slightest intimation would be found of their being expellible from the country at a moment's warning, at the caprice of a minister of the Crown. Aliens were undoubtedly disqualified by the law of England from holding land; but it surely could never be the intention of our ancestors, who gave them the right of residing in this country, to deny them the shelter of a home. The right of aliens to sue in all personal actions was recognised by the law of England; and this right was wholly incompatible with the arbitrary power of sending them out of the country, during the prosecution of their legal claims. Mr. Fox strenuously denied that such a power existed in the Crown. Mr. Pitt never asserted it; and Mr. Burke admitted that it was only to be conceded under circumstances of extreme necessity. Not a single statute referring to aliens made the slightest mention, of the existence of this supposed prerogative in the Crown. The proclamations were regarded by lord Coke as against the law of the land; and the objection to them received additional confirmation from Magna Charta. Either Magna Charter ought to be repealed, or this law ought not to be passed. He denied that there was any analogy between this law and the law ne exeat regno. The question came to be, who was the person who was to be sent out of the country; and that would be found to depend upon the will of the government. The impression upon foreigners' minds as to the measure might be seen from what had taken place in the late queen's case with respect to Marietti. Many aliens had re quested not to be brought forward as witnesses on her majesty's behalf, from an apprehension that their evidence might cause the act to be enforced against them. In the case of alien jurors, the effect of the bill would be still more dangerous. He really thought that its existence would, in any cause where government was prosecuting, give a legal ground of challenge to the defendant. Where was the necessity for the bill? Arbitrary power might always be asked for as desirable; but it was not because it was convenient that it therefore ought to be granted. He saw nothing to apprehend from what had been called the ruining of empires. That we had lost America would not now be considered as absolute ruin. That South America was separated from Old Spain, was not an event pregnant with very dangerous consequences. From the downfall of the Bastile, and of the Inquisition, and of the principles which had supported those establishments, he augured nothing but advantage to the world. He should vote against the present measure, because he thought it most injurious both to the honour and to the interests of England.

Sir R. Wilson

opposed the bill as a disgrace to the national character and as a measure not resorted to in France. Instances of the abuse of the act might be stated in numbers. Witness the case or general neral Gourgaud, sent out of the country upon the deposition of a worthless individual to whom he owed money. Witness the treatment, not only of Napoleon living, but of Napoléon dead. He would read a paper, signed by count Montholon, in which the count declared, that the executors had, at St. Helena, ordered a tablet to be placed, by Mr. Darling, on the emperor's coffin, with an inscription, as follows: "Napoléon Né à Ajaccio, le 15 Aôut, 1769; Mort à Ste Hélénèle 5 Mai, 1821." This tablet, sir Hudson Lowe, would not allow to be placed on the coffin, and would not even permit the initial of that name, which had filled, and will fill the universe, to be inscribed upon it. The bill would no doubt be passed this session; but the hon. member for Durham would move for its repeal in the next.

Colonel Stanhope

felt convinced that no person would object to it, who had not done something wrong in his own country. He would beg leave to ask the gallant gentleman, by what law he had been sent out of France?

Sir R. Wilson

replied, by that power which had violated the convention of Paris.

The House divided: Ayes, 75. Noes, 32.

List of the Minority.
Abercromby, hon. J. Mackintosh, sir J.
Baillie, Col. J. Marjoribanks, S.
Barham, J. Monck, J. B.
Barrett, S. M. Moore, P.
Bennet, hon. H. G. Palmer, Fyshe
Bernal, R. Prendergast, M.
Burdett, sir F. Rice, S.
Craddock, S. Robinson, sir G.
Crompton, S. Scarlett, J.
Davies, col. Smith, W.
Denman, T. Smith, J.
Forbes, C. Smith, R.
Gurney, H. Whitbread, S.
Hobhouse, J. C. Wood, alderman
Hume, J. TELLERS.
Lockhart. J. J. Calcraft, J.
Lushington, Dr. Wilson, sir R.
Maberly, J.
Mr. Hobhouse

then moved, that the bill be entitled. "A bill to repeal so much of the great charter of England, and of other statutes, as relates to the free ingress and free residence of foreign merchants in these islands, and to assimilate, in that respect, the executive authority of Great Britain to the despotic governments of the continent."—The House divided: Ayes, 20. Noes, 69.

The bill was then passed.