vereign has ce. Chapter XII obedience to Parliament. That Acts of the Parliament now, like acts of the King in times past, are based on those old grants of liberties, must be admitted* : but it is to Acts of Parliament alone because So- that the alien must look for his rights and duties. For him the no legisla Sovereign has no legislative existence; and it is on this absorptive existen tion of the kingly power by Parliament that the liberty, which the alien undoubtedly enjoys, depends. The King cannot tax aliens without the consent of Parliament, not in virtue of the Petition of Rights, but in virtue of the constitutional principle that the King has now no legislative power. So the King could not now sell to an alien, or deny or defer to any alien, justice or right, because he administers justice only through his Judges. [5 B & A. at p. 648.] The question was described above as being almost academic : but in the matter of petitioning the King it almost assumes a practical aspect. The common law has clothed this right with its qualified privilege [per Best J., in Fairman v. Ives]. Does that privilege extend to petitions by foreigners? It is not unreasonable to suppose that the founders of the common law based themselves on the clause of the Bill of Rights, which was for them a living document. Perhaps the privilege does extend to such petitions; but the question is not clear. But there is Can an alien a previous question: Has an alien any right to petition the King petition the King? while he is resident? or, putting this in a practical form: Will such a petition be laid before the King? A question which may be of practical importance to persons naturalized in the Colonies, who are aliens in the United Kingdom: but the answer to this is no clearer than to the former question. Does the Pe- Right Act Vict. c. 34. This brings us down to a much more practical question: Does the Petition of Right Act, 1860, apply to aliens? A petition of right has been defined to be "a petition presented by a subject to the Crown stating some infringement of the suppliant's legal rights by the Crown or its officers, and praying Clode "Peti- redress therefor "; and a doubt has been expressed whether an alien can avail himself of this right to obtain redress of his grievances. In the old authorities it may be taken for granted tion of Right", Pp. 1, 35. * The following case will illustrate my meaning. In Crown Colonies innumerable petitions on every conceivable subject are daily sent to the Governor. If a proposal were made to impose a stamp duty on these petitions, would it not be justly said that it would be an interference with the liberty of the subject ; in other words, an attempt to check the right of the subject to petition ? that "the subject" is always mentioned, for much the same rea- Chapter XII son as subjects are always referred to in the old charters we have just examined. Thus Staunford says "that it is so called because of the right the subject hath against the King by the order of his laws to the thing he sueth for. " But the modern form in which the question must be put is as given above: Are resident aliens within the Act of 1860 ? The preamble runs thus- Whereas it is expedient to amend the law relating to petitions of right, to simplify the procedure therein, to make provision for the reyovery of costs in such cases, and to assimilate the proceedings, as nearly as may be, to the course of practice in force in actions and suits between subject and subject. tween sub The reference to proceedings "between subject and subject " Petitions of Right assioccurs again in s. 7 and s. 12, and it might be argued that the mean- lated to proing of the enactment should be stated thus: " proceedings be- ceedings be tween the subject and the Sovereign are to be assimilated ject and subin practice to proceedings between subject and subject ". That ject. this is the true meaning is made probable by the proviso to s. 7, which is as follows Provided always, that nothing in this statute shall be construed to give to the subject any remedy against the Crown in any case in which he would not have been entitled to such remedy before the passing of this Act. This proviso is important, not merely on account of the inference to be derived from it, but also because it seems to make it clear that the statute was only passed to regulate the procedure with regard to what was a pre-existing right: and that therefore the statute must be read as incorporating the existing law as to who might present the petition. If this is so, the better opinion would seem to be that an alien, even resident, has no such right: though it would leave him without redress against the Crown, under circumstances precisely similar to those in which the subject can obtain redress. Naturalized subjects would have the right to petition: but, izd Right of in virtue of the narrow construction of s. 7 of the Act of 1870, subjects to not when they are out of the kingdom: and aliens naturalized petition. in the Colonies would not have the right to sue their petition in the Courts of the United Kingdom. Whether they would have the right to do so in the Colonial Courts, raises difficult questions, which are settled in some Colonies by express legislation. We come to the firmer ground of simple interpretation of a Chapter XII Habeas Corpus Act: 31 Ch. II, C. 2. Preamble. S. I. S. II. s. 15. Difficulties tion of Ha statute when we examine the question whether a resident alien may have the benefit of the Habeas Corpus Act, 1678, but as to which there is, so far as I can ascertain, no decision, nor any authority or reference in the books. The Habeas Corpus Act was passed "for the better securing the liberty of the subject ". The preamble recites* that— Great delays have been used by sheriffs gaolers and other officers to whose custody any of the King's subjects have been committed for criminal or supposed criminal matters in making returns to writs of habeas corpus to them directed-whereby many of the King's subjects have been and hereafter may be long detained in prison in such cases where by law they are bailable, to their great charge and vexation. The enactment is however said to be made "for the prevention thereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters": and the first section, which creates the privilege of the Act, provides that Whensoever any person or persons shall bring any habeas corpus directed unto any sheriff or sheriffs gaoler minister or other person whatsoever for any person in his or their custody, the sheriff or other officer shall within three days after service thereof (unless the commitment were for treason or felony) bring the body of the party committed before the Court to which the writ is returnable and certify the true causes of the detainer or imprisonment. The second part of the title, that the Act is also "for prevention of imprisonments beyond the seas", is taken up in S. II: which provides that- No subject of this realm that now is or hereafter shall be an inhabitant or resiant of this kingdom of England shall or may be sent prisoner into any parts garrisons islands or places beyond the seas which are without the dominions of His Majesty and that if any of the said subjects be so imprisoned he may maintain an action for false imprisonment. The inception of the Fugitive Offenders Act is to be found in s. 15 If any person or persons at any time resiant in this realm shall have committed any capital offence in Scotland or Ireland or any of the islands or foreign plantations of the King where he ought to be tried for such offence, such person or persons may be sent to such place there to receive such trial, in such manner as the same might have been used before the making of this Act. The Act must, it is suggested, be interpreted by the ordinary of construc- rules: that is to say, where the word "subject " is used, it must beas Corpus be construed strictly. But in spite of the special reference to subjects in the title and preamble, it would appear as if those Act. * The citations from this Act are given for convenience in a condensed form. sections which commence with "any person" refer equally to Chapter XII resident foreigners as to subjects: and therefore the writ of habeas corpus would seem to be available for such foreigners, as by s. 1, it may be directed to the sheriff "for any person" in his custody. But s. 8 provides that "any person subject of this realm "committed to prison or in custody of any officer, for any criminal or supposed criminal matter, shall not be removed from such prison or custody, unless it be by habeas corpus or some other legal writ. And s. 11, which prevents imprisonment beyond the sea, is limited to "subjects of this realm inhabitant or resiant of this kingdom." sions of the Section 15 applies expressly to persons at any time re- Other provisiant in this realm ", which includes those who are temporarily Act. within the ligeance. The curious provision of s. 13, which enables persons convicted of felony to pray in open Court to be transported beyond the sea, is also drafted generally, and is applicaTM ble to " any person". In spite of probable complications, it is difficult to see, should the question ever arise, how the sections which are actually limited to subjects, are to be otherwise construed. born is alien This chapter has been headed" Of the rights of aliens in the An alienEmpire": for, just as the law of British nationality extends to throughout the dominions, and he who is a British subject natural-born in the Empire: any part of the dominions, is a natural-born subject throughout the Empire, so also the alien-born is alien throughout the Empire. The alien's rights however are not necessarily identical in all parts of the dominions, for the exercise of any of the rights which an alien might otherwise possess may, if it is not governed by but his rights may some imperial statute, be regulated by colonial legislation, or by depend on some different common law in force in any given Colony. Thus, colonial legislation. the right of aliens to hold land under s. 2 of the Act of 1870, does not extend to the Colonies, but each Colony may legislate for itself. For example in New South Wales, s. 4 of the Act No. 21 of 1898, reproduces the English section. In Colonies where the common law prevails, in the absence of such express provision, an alien could not hold realty. In Mauritius the question was dealt with by Order in Council in 1842: but in Colonies where a different common law obtains, in the absence of express provision, the right would be governed by that law. Chapter XII So, in some Colonies the right of an alien to be tried by a jury de mediatate lingue is expressly done away with: but at Aden it still remains. Further, there may be special legislation affecting aliens passed by the Colonies, such as the Chinese Immigration Acts of Australia. 66 Perhaps the most exceptional piece of legislation on the subject is s. 15 of the Constitution of South Australia, which allows persons not being natural-born subjects "to be elected members of the Colonial Parliament after five years residence.† Apart from A part however from special legislation, it may be assumed special laws that all aliens are free to depart out of the dominions, to come they are free to come and into the dominions, to tarry in and go through the dominions, as well by land as by water, to buy and sell without any manner of evil tolls by the old and rightful customs, except in time of war. go. [cf. cl. 30 of Magna note on P. 175.] Such is the law of England irrespective of any arrangement by treaty. But as was pointed out in connection with the right of aliens to free access to British Courts of Law, it is not unusual Free rights for freedom clauses" to be inserted in Treaties of Friendship of aliens oftengoverned and Commerce which are entered into between Great Britain and by treaties. foreign Powers. These clauses cover freedom of residence, of Example. exercise of civil rights, of acquisition and disposition of property, of access to the Courts for the prosecution and defence of their rights, under the same conditions as such freedom is enjoyed by British subjects, and vice versa. These treaties are usually extended to the Crown Colonies, so far as their laws permit; but a right of adherence is, as usual, given to the self-governing Possessions and Colonies. In order to complete this branch of the subject, I give by way of example two of the clauses which deal with these matters in the treaty with Uruguay of 1886. 4-The subjects or citizens of each of the Contracting Parties shall be permitted to reside permanently or temporarily in the dominions or possessions of the other; and to occupy and hire houses and warehouses for purposes of commerce, whether wholesale or retail. They shall also be at full liberty to exercise civil rights, and therefore, to acquire, possess, and dispose of every description of property, moveable and immo So far as I have been able to ascertain this section is still in force: but even if it were repealed, it would serve as an illustration of the varied nature of colonial legislation with regard to aliens to which text refers. The Act of South Australia is No. 2 of 1855-56, confirmed by Order in Council, 24th. June, 1856. The marginal note to s. 16, is-" Aliens not eligible until after 5 years residence ". |