the Crown, because the Crown alone can legal by courts of law. The most daring conveniently exercise it. This again was prerogative-lawyers of former times had a mere fallacy. Undoubtedly a power of submitted to all these conditions in dealing with aliens according to the de- their boldest attempts to enlarge the mands of the public safety, as well as of regal power. Noy, one of the most doing every other act which an indepen- learned lawyers of his learned age, a dent commonwealth may lawfully do, is man of very different authority from sir vested in the supreme authority of this Edward Northey, did not presume to frame realm, which consists of King, Lords and the writs for levying ship-money on his Commons. They may vest in the Crown own opinion, however weighty, if he had alone a power to banish aliens, whenever been honest. He came armed with preso dangerous a power is absolutely neces- cedents, found indeed to be impertinent, sary. A power scarcely claimed, not to but numerous and specious. He came say exerted, for centuries-a power grant- fortified by every abstract argument which ed in 1793 professedly on the ground of a could be derived from the necessity of danger without parrallel in our history, guarding the seas and shores of the kinghas no need of being permanently placed dom against urgent danger from pirates where its exertion would be always easy and invaders. A decision of a very great and convenient When the times require majority of the twelve judges of England it, parliament may vest in the Crown the at length sanctioned his opinion. What dictatorship over aliens. And this is the was the result? In spite of the number universal answer of this constitution to all of plausible examples, in spite of specious such speculative arguments on behalf of reasonings, in spite even of the judgment inherent prerogatives in prerogatives in the Crown. of the most venerable body in the lawParliament can always strengthen what Both Houses of Parliament unanimously may be weak, or supply what may be de- condemned the grievance" aggravated," ficient in the legal rights of the monarch. as a great man said, "not supported The king of England wants many powers by the judgment." The judges were which are necessary to the general ends impeached, and compelled to fly from of government. The want is not a fault, their country, or dragged as prisoners but an excellency of the constitution. from the bench where they administered His power is defective, that its ex-justice: and finally these judgments and ertion may wholly depend on parliament. proceedings were solemnly and for ever It is lamed for the express purpose condemned by act of parliament. of disabling it to move by itself. Every If such was the fate of an exercise of mode of reasoning of a different sort prerogative-justified by so many seeming is, however, unconsciously founded on examples and high authorities, what could principles of absolute monarchy. Whe-be thought of a case like the present? ther the question, therefore, was considered on grounds of precedent or on those of reason, he saw no warrant of law for this supposed prerogative. It would, indeed, be no light proof of usage, no loose analogies, no remote inferences, no general speculations, however plausible of political expediency, which could establish the existence of such a power. No acts of violence against foreigners before the constitution was settled, or in times when its principles were suspended, could be sufficient. Still less could any constitutional reasoner consider as precedents any examples of such acts of power unknown at the time and now, for the first time, dragged out of the darkness of official repositories where they had been mouldering for centuries. They must be acts done in the light of day, in the face of the public, sanctioned by parliament, or at least, recognised as In three and twenty years discussion, one example of the exertion of such a power had been found. There was one such case in the reign of Henry 4th balanced by another of an opposite tendency, in the reign of the very same prince. Only one rusty precedent could be found, after ransacking the whole armoury of prerogative. For four hundred years it seemed to be admitted that there was no example, or at least none such as could be quoted as authority of the exercise of this pretended prerogative. But what sort of prerogative is that which rests upon a single instance of exercise, and which has been disused for four centuries? If this or much more were sufficient, no part of English liberty could be secure. There was no violation of right, of which more than one example might not be found scattered over the records of so many ages in times of confusion or of violence. act unnecessary must think so of the present bill. But those who consented to adopt such an extreme measure under the extraordinary circumstances of that time, were bound in consistency to be first convinced that there existed so great an evil before they concurred in the adoption of an equally violent remedy. The same species of danger was not now even pretended. No man now affected to dream of any machinations of foreigners against the quiet of this country. Nobody could contend that any measures of precaution were necessary against the agents of foreign governments or the emissaries of foreign factions. There never was a moment in which such apprehensions were more chimerical. Was it, then, to provide against danger to other governments that the ancient policy of our laws was to be altered? It had been said, "that this bill would be agreeable to other governments!" The minister had notified to the House the pleasure of the continental sovereigns that we should have an alien bill. He had brought down a message from the con This absence of precedent was at least decisive proof of the established policy of our ancestors. The famous clause of Magna Charta, however interpreted, the hospitality shown to the Flemish refugees from the merciless Alva, the humanity exercised even under a Popish king to the Protestants, who fled from the persecution of Louis 14th, the attempts often made and once in the very best period of our history with success, to naturalize all foreign Protestants,-all these examples, and the whole course of our history show that it was our ancient policy to welcome and foster foreign fugitives, to endow them with the privileges of freemen of this realm -not to cast them as slaves on the pleasure of the Crown. And to do justice to the act of 1793, it did not profess perma⚫nently to abandon these ancient principles of English policy. Whether it was or was not justified by the circumstances of that period, it was not now in the least degree useful to discuss. But certainly the preamble of that statute most amply acknowledges, that the general policy is an unfettered admission of strangers, and that restraints are justifiable only in circum-gresses of Vienna and Paris, recommendstances of extreme danger. It sets forth, that, "under the present circumstances much danger may arise to the public tranquillity from the resort and residence of a great and unusual number of aliens." A law for the regulation of aliens defended on principles which require its perpetuity, on the ground of any less danger than that of 1793, and justified by any consideration but that of equal peril to the internal tranquillity of this country, was in all these respects a deviation from the policy of the act of 1793. That statute was founded on a temporary danger to the quiet of this kingdom of the utmost magnitude. Similar restrictions without an equal and similar danger must be condemned, not supported by the precedent of that statute. Those indeed who thought that * 7 Anne, c. 5, "Whereas the increase of people is a means of advancing the wealth and strength of a nation, and whereas many strangers of the Protestant or reformed religion out of a due consideration of the happy constitution of the government of this realm, would be induced to transport themselves and their estates into this kingdom, if they might be made partakers of the advantages and privileges which the natural born subjects thereof do enjoy, &c." ing to parliament to shut this country against all the victims of their arrangements. They had not openly stipulated for the passing of an alien law, but the House was now obviously called upon to give effects to the understanding which prevailed among all the members of these assemblies. No doubt it would always be agreeable and always convenient to governments, that refugees from their oppressions, might find no safe and honourable asylum above all, that they might find no refuge in a free country from which they might make their complaints heard by all Europe. This was the strongest of all objections to the bill, unless we meant to render our laws the engines of every oppression that might be practised by the despotic governments of the continent. It would have been certainly very 66 agreeable" to Philip 2nd and to Louis 14th, that the Flemish or French Protestants had been prohibited to land on the English shore; or, what would have been the same, that they had been subjected to such an arbitrary power of expulsion, as to deter them from taking refuge in so precarious an abode. The number of foreigners now here had been repeatedly mentioned as unusual, and in itself enough to justify precaution. These numbers were now before the House. There were now twenty-two thousand, and it appeared that the number of aliens usually resident here was probably about eighteen thousand. These were merchants, clerks, handicraftsmen, teachers, and artists, or domestic servants, who, generally speaking, must be considered as making no part of this case. They came here to exercise industry and to seek fortune. They contributed to the national wealth or enjoyment, while they augmented their own fortune. Their number was an indication of the general confidence of ingenious and industrious men throughout Europe, in the justice of our laws and the humanity of our people. How small a proportion of the resident foreigners were affected by political circumstances, would appear from an inspection of the return. It was well known, that the far greater number of the French emigrants in this country returned to France, in consequence of the amnesty of 1802. Yet from 1801 to 1804, the whole number of aliens were not reduced by four thousand. And the influx from every part of the continent after so long and so rigorous an interruption of intercourse with England, did not increase the whole number above four thousand, from 1812 to 1814. Supposing a thousand to have returned with Louis 18th, (which would probably be an exaggeration) the new aliens would not be five thousand. And as none of the followers of Napoleon were dispersed by the first conquest of France, it is apparent that the far greater part of the new comers must have consisted of that submissive and timid body who repair hither in pursuit of subsistence or fortune. The number of aliens in this country at the present moment was not half the number of the Protestant refugees in the last country. It was not a fourth more than the probable number of those who usually reside here. There was, perhaps, no other industrious and opulent country with so small a relative number; and they were of necessity persons who must have the least will and the least power to disturb the public peace. But he was really ashamed of labouring to lessen the number of foreigners as if it were a just object of apprehension. It was too great a compliance with the illiberal and pusillanimous policy of this bill that number was heretofore our pride; and it was not to the honour of our times that it was now become our terror. But in order to make a right estimate of this bill, it was necessary to consider these numbers in another point of view. It was a bill to subject twenty thousand residents in Great Britain to banishment at an hour's warning, on secret information, without knowledge of their offence, without the possibility of proving the clearest innocence. It might be as great a hardship to be banished from the country of choice, as from the country of birth. It might be a most severe punishment to be banished from their sole refuge, from the seat of their fortune, or the best scene of their industry. Was it nothing to be driven from friends, perhaps from connexions, from the residence which either from inte, rest or affection they had chosen above any other? Did not a compulsory expulsion from a country naturally affect the convenience, the feelings, and the character of the man expelled? Was not this a punishment? Might it not in many cases be a more cruel punishment than just laws inflict on criminals after a conviction of dangerous offences upon clear evidence? Would the House vest in the ministers of the Crown the powers of inflicting this punishment upon twenty thousand foreigners who had chosen to reside in England? Would they grant such power where these ministers themselves with the best intentions never could certainly know whether they did right or wrong: where they must be almost entirely at the mercy of secret informers, whose malice must be freed from the only effectual check as soon as the accused are deprived of all means of detecting and exposing false accusations? Unjust banishment might be inflicted without any previous defence against it, or any subsequent responsibility for it. For it was an insolent mockery to speak of repsonsibility where the cause of punishment was to be concealed from the accused, concealed from parliament, from the public, and if possible even from posterity. We were indeed told that where an abuse was shown parliament would compel ministers to give information. But the object of the bill was to render the exposure of abuse impracticable? It was otherwise with many dangerous delegations of discretionary power: for instance, in what was called the suspenion of the Habeas Corpus act-there the prisoners, generally Englishmen, were sooner later restored to liberty. If the law refused them its aid, they might still complain with safety and effect; they still had a free press and a generous coun or It was vain to say that there had at last been introduced into the alien act of 1813 a power of appeal to the privy council, which would be preserved in the present. He had some knowledge of the clause which gave that appeal, and had at first sanguine hopes that it might have given some security. But he was unde The privy council had decided that the alien was neither entitled to know the charge against him, nor to be defended by counsel. That the privy council had properly interpreted the clause, he did not presume to doubt; but their decision rendered the appeal illusory. Nothing could be more ridiculous, if it were not so deplorable, than the spectacle of a foreigner defending himself against a charge which was kept secret from him without even power to show general probability of innocence by the testimony of witnesses or by the arguments of counsel. No such principle was ever acted on in the star chamber, where the charge was known and the proceedings generally public. There was no parallel to it but in the tribunal of the holy inquisition-and not even there, as it had been modified on the late re-establishment in any Catholic state but Spain. try. They might excite universal indignation against their oppressors. But what was the fate of the fugitive from civil or ecclesiastical tyranny, if he should be unjustly driven out under this bill? If he had found another asylum, was he likely to endanger it; would he provoke new enemies by charges of oppression against the powerful government which had just ex-ceived; one such appeal had occurred. pelled him? Where, indeed, was such an asylum left? Holland and Switzerland, the Protestant principalities of Germany, formerly shared with England the honour of protecting the fugitive? Which of them would now dare to give public protection to a poor exile who entered their territories with the brand of a second banishment from England? No! they must for ever hide their wrongs, they must purchase a trembling and precarious protection by silence; they must not betray their hiding place by complaining aloud. If they are suffered to return to their native country, would they send complaints here which would subject them to new proscription from those whom this bill is introduced to please? Would they ⚫ complain of the government of England in order to be placed under the government of Siberia? The means of proving abuse, in general the means of making out a probable case of abuse, are taken away by the bill; and we were called upon to prove abuses, or to consent to the bill. The grand mischief of this bill was, that it rendered the proof of abuse impossible. The law itself was the abuse. Every act done under it was wrapped up in eternal darkness that it might be secure of eternal impunity. Surely no man would venture to say, that under such a law there was not a great probability of injustice. If there were not, why did we boast of all the protecting forms of our criminal law? Why were accusations precise, witnesses examined in presence of the accused, or by him, juries appointed to be independent and impartial, and judges and juries subjected to public opinion? All these were useless and cumbersome contrivances, if there were not a great chance of injustice in a proceeding founded in secret charges from unknown informers, followed by a clandestine banishment, which imposed silence on the exile almost as effectually as death itself. Were not the publicity of proceedings and the facility of defence, as necessary to guard the judge and minister against falsehood, as to secure the culprit from oppression? But it was said, this is a political and not a judicial proceeding. Of what importance was the epithet by which it is described? It is a proceeding which may affect the character, the property, the safety, in some cases perhaps the life, of twenty thousand men. There was no magic in the word "political." It is as important to these men to have securities against wrong in political as in the judicial proceedings; but it was said that such formalities would altogether enervate the measure. To this it could only be answered, that such a defence is condemnation. There could not be a more sure criterion of a tyrannical law than that its whole efficacy depended on the destruction of all the safeguards of innocent men against punishment. At last it might be defended on the ground of confidence in personal character, to which he would very shortly answer, that he dreaded much more the imposture to which ministers were exposed by this system of darkness, than acts of oppression intentional on their part; and that if he trusted the humanity of ministers (which from personal observation he certainly was inclined to do), there was no reason why they should be trusted by the hundreds in every part of Europe, who would have sought refuge here, if their residence had been assured by law, instead of depending on the equity and mercy of ministers. The evil of alien acts consisted fully as much in their deterring many meritorious refugees, as in the expulsion of many without cause. Perhaps virtuous men were now working in chains on the walls of Ceuta, or in the harbour of Manilla, who would have sought shelter under the laws of England, but who dreaded (however unfortunately) the protection of the allies of Ferdinand 7th. To be here in such a state was to live by will and not by law. This was the very definition of slavery. Aliens under such a regulation had no assured abode. They had only a respite from banishment during the pleasure of a minister. It was a bill to reduce twenty thousand men to slavery-not by the privation of political privileges-luxuries which belong only to few nationsbut by being bereft of the right not to be condemned without knowledge of their crime, and punished without the possibility of manifesting innocence-which even the worst governments profess to respect as the common rights of mankind. It was a bill to repeal Magna Charta, to close the city of refuge which had opened its gates to the fugitive and the supplicant during the tempests and convulsions of six centuries. If it passed into a law, the soil of England, instead of the glorious privilege of enfranchising the slave, would henceforward have the wretched power to enslave the free. Mr. Jones opposed the bill, as being most unconstitutional in its principle, and highly oppressive in its operation. The House divided: For the second reading Majority List of the Minorily. Abercrombie, hon. J. Campbell, hon. J. Chaloner, Robert 141 47 94 Dundas, hon. L. Dundas, Charles Fergusson, sir R. C, Grant, J. P. Halsey, Jos. Hanbury, Wm. Heron, sir Robt. Horner, Francis Jervoise, G. P. Jones, John Lamb, hon. W. Lloyd, J. M. Leader, W. Romilly, sir Sam. Russell, R. G. Sefton, earl of Sharp, R. Smith, W. Tavistock, marq. of TELLERS. Hamilton, lord A. Macdonald, James HOUSE OF LORDS. Monday, May 13. IRISH TITHES.] The Earl of Kingston moved the second reading of the Irish Tithes bill. The object of the bill was, he said, to remedy an inconvenience which was complained of in Ireland, and which arose from the sentences of the ec clesiastical courts against persons who, in numbers of four or five, gave notice on the same day to the clergyman to take his tithes. This had been considered as a fraud on the clergyman, by rendering it impossible for him to take up his tithes at. all, and an act had been passed making it a misdemeanor for four or five persons to give such a notice with such intention. But it might and did often happen in Ireland, that four or five persons gave notice to the clergyman to take his tithes on the same day, without any intention to defraud the clergyman, and without any thing like a conspiracy; and yet the Irish ecclesiastical courts punished this as a misdemeanor under the act; and the object of this bill was to explain and amend that act. The Lord Chancellor expressed his surprise that the ecclesiastical courts in Ireland should suppose themselves qualified to try for a misdemeanor. If they had such a power, all he could say was, that the law in Ireland was very different from the law in England. It was, in his opinion, also a mistake that the notice by four or five persons on the same day could be taken as a presumption of any vexatious intention. The act would not admit of such a construction. If the principle of the present bill was right, the enactments were insufficient to carry it into execution. The Marquis of Lansdown said, he understood from others, as well as from his noble friend, that such an opinion did prevail in the ecclesiastical courts of Ireland. |