European theories, British law

In thinking about immigration and sovereignty, British lawyers were drawn to the writings of Samuel Pufendorf and Emer de Vattel. Well before the start of the nineteenth century, these theorists were instrumental in popularizing in Britain what was basically Thomas Hobbes’s conception of the state. On this conception, the state was a fictional person who was represented rather than constituted by its “sovereign” and the members of its community. The “sovereign powers” forming part of the state were not simply those exercised by or arrogated to the sovereign from time to time, but derived from the deeper interests and “life” of this fictional person. Roughly put, sovereign powers were the powers necessary to sustain the state and to allow it to flourish. Although Hobbes’s theory of the state was not influential in England in its day, it gained popularity in the eighteenth century. The circulation of Pufendorf’s and Vattel’s writings may have even played a role in this process.Footnote ¹¹ The receptiveness of the British legal community to these theorists’ specific claims about immigration can thus be partly explained by the derivation of those claims from a familiar pattern of political thought.

Another aspect of the theorists’ popularity within the legal community was that they had attempted not merely to describe the state’s powers in a moral sense but to claim that these powers were protected by international law. In the wider project of establishing international law, the theorists were (and still are) associated with Hugo Grotius, even if Grotius’s conception of the state has differences from Hobbes’s and their own.Footnote ¹² The legal nature of these theorists’ work would have made it seem a fair exercise to transpose their claims into propositions of law, including, with appropriate caution, the domestic public law of a particular state. In this way, Vattel came to enjoy a reputation among British lawyers that was not far from those of the great treatise writers Hale, Coke, and Blackstone.

The writings of Grotius, Pufendorf, and Vattel were published in the seventeenth and eighteenth centuries, when comparable discussions about state sovereignty and the treatment of foreigners were not noticeable in British politics. But British writers addressed the topic of foreigners and immigration in other ways. Some believed that England was underpopulated and in need of increased immigration from Protestant Europe. In 1709, Parliament passed an Act that made it easier for aliens to become British subjects. In the very same year, though, over 13,000 German refugees arrived in the country from Rhenish Palatinate, only to be viewed as a burden on public resources. The Act was soon repealed, meaning that aliens (once again) could not become subjects without personalized naturalization bills.Footnote ¹³ So while the link between immigration and sovereignty was not yet a focus in British politics, a connection had been made between naturalization and immigration. This connection would become firmer in the nineteenth century.Footnote ¹⁴

Returning to the European theorists, their conclusions about the powers of the state with respect to “foreigners” or “strangers” conveyed both the possibility of control and the desirability of hospitality. Grotius wrote that states could not exclude refugees and that they “ought” to grant residence to foreigners if their territory amounted to “deserted and unproductive soil.”Footnote ¹⁵ Pufendorf wrote that states had the power “to take such measures about the admission of strangers, as they think convenient,” while thinking it “barbarous” to treat all foreign friends and enemies alike and to deport them “unless upon good reason,” such as because of a scarcity of resources, overcrowding, or the “idleness” of foreign workers. “If on the whole,” he continued, “it appears that the persons deserve our favour and pitty, and that no restraint lies on us from good reasons of state, it will be an act of humanity to confer such a benefit on them.”Footnote ¹⁶ Christian Wolff, of whom Vattel claimed to be a disciple, was more assertive about the state’s powers, writing that no foreigner “can claim any right for himself in the territory of another” and that his refusal or admission depended “altogether” on the will of the state’s ruler. But Wolff also described foreigners who were granted admission as the state’s “temporary citizens,” liable to be treated in the same manner as other citizens unless special laws were made for them.Footnote ¹⁷ Similarly, Vattel wrote that it was for the state to judge “whether her circumstances will or will not justify the admission of [a] foreigner” and to “annex what conditions [it] pleases to the permission to enter.” More in keeping with Pufendorf than with Wolff, though, Vattel also thought it would be wrong for the state to act on “slight reasons, or on groundless or frivolous fears.” This equivocation ran through his view on deportation, which permitted the state to “dismiss” foreigners “at once” but on the seemingly demanding proviso that its territory was “scarcely sufficient for herself.”Footnote ¹⁸

A lawyer could read these passages in different ways. Did they mean that the state’s powers were unlimited, or that they were qualified by duties of good reason and conditions of scarcity? Consider the first edition of the Commentaries upon International Law by the English lawyer Robert Phillimore, published in 1854. Vattel was cited for the “received maxim of International Law, that the Government of a State may prohibit the entrance of strangers into the country, and may therefore regulate the conditions under which they shall be allowed to remain in it, or may require and compel their departure from it.” But Phillimore did not elaborate the principle with example, devoting his attention instead to the treatment of foreigners who were residents of the state. This emphasis alone suggested an expectation that admitted foreigners would not face deportation. “It has been the policy of wise States,” he noted in passing, “to open wide the door for the reception and naturalization of foreigners.”Footnote ¹⁹

Another question of interpretation arose from the theorists’ focus on the state’s powers in international law, and from their corresponding descriptions of the wielders of these powers. Vattel, for example, wrote of a “lord of the territory” or a “ruler” exercising the powers of exclusion and deportation, leaving it open who these persons were within a state. In nineteenth-century Britain, a lawyer would have had to ignore centuries of struggle to claim that the Crown, and by extension the executive government, was the country’s “ruler” or “lord” in respect of any given area of public policy. Because of the varying role of legislative assemblies in the colonies, it was more plausible to claim that (for some colonies) the governor was its “ruler.” But along with the awkwardness of equating a governor or colony with a state,Footnote ²⁰ there was a legal obstacle to this line of thought. The prerogative powers of colonial governors were derived from the British Crown. Questions about executive power in the metropole were thus entangled with those in the colonies.

As I said earlier, the relevance of European theories to the Crown’s prerogative was repeatedly discussed during the passage and renewal of the British Alien Acts between 1792 and 1826. The topic was introduced by Lord Grenville in support of the very first Alien Bill in December 1792. In spite of evident uncertainty about the question, Grenville claimed that the bill’s measures were also authorized by the prerogative.Footnote ²¹ While it is possible to see this claim as “somewhat irrelevant,”Footnote ²² since no ministry of the period relied on the prerogative, it yielded a genuine clash of principle. For those who opposed the Alien Acts, the question of the prerogative stood in for wider questions about the place of immigration control in British politics.

The historian Thomas C. Jones has studied the debates on the Alien Acts in detail. Although his main concern was to show the emergence at this time of a concept of asylum, he has highlighted the belief among opponents of the Acts that they were incompatible with legal landmarks such as Magna Carta, habeas corpus, the settlement of 1688 and the right of a person aggrieved by executive action to appeal to the Privy Council.Footnote ²³ Near the end of these debates, in 1825, the Edinburgh Review published a lively essay by William Empson, who memorably described the Alien Acts as “monster births of the French revolution” and compared the new position of aliens to the “crawling and dependent existence of a slave.”Footnote ²⁴ Empson anticipated just about every point raised against the use of the Crown’s prerogative to exclude or deport aliens. Not only did he discuss the tension between, on the one hand, granting aliens extensive civil rights and, on the other, rendering them liable to be “torn” from their homes; he also doubted that Pufendorf or Vattel could be used to “put aside the power of Parliament, and prove a prerogative in the crown of England.”Footnote ²⁵ In Parliament, Henry Brougham and James Mackintosh joined in thinking that Pufendorf was no authority on the British constitution.Footnote ²⁶

A representative exchange on the Crown’s prerogative occurred in 1816. Lord Castlereagh introduced a new Alien Bill and repeated the view of the Liverpool ministry that the “Crown, in truth, possessed the right of sending aliens out of the realm on suspicion that they were concerned in practices dangerous to the state; but it had been thought wise … to arm the executive with the countenance of the legislature.” The Lord Chief Justice of England and Wales, Lord Ellenborough, defended this position on “the authority of Vattel” and the need for “not only … the monarch of this country, but … the sovereign of every country,” to enjoy this sort of power. Against this view, Earl Grey announced his surprise that Ellenborough, a man “at the head of the administration of the law of the country,” had sought support from “a French writer upon the law of nations” rather than the annals of the common law or such “eminent law writers” as Bracton, Fortescue, or Coke. He reminded Ellenborough that Vattel believed as well that the raising of money and the maintenance of an army were sovereign powers, and that no one considered these to be part of the Crown’s prerogative. Some sovereign powers belonged to Parliament, or were shared between Parliament and executive. The Earl of Liverpool himself responded that the sovereign power to “send away dangerous aliens” had to “rest with the executive power,” because if it were placed elsewhere, it might be rendered “ineffective.”Footnote ²⁷ Although it is hard to say which of these positions held sway at the time,Footnote ²⁸ Grey’s view prevailed on government positions later in the century. In 1852, the Foreign Secretary, Earl Granville, informed diplomats across Europe that “all foreigners have the unrestricted right of entrance and residence in this country.”Footnote ²⁹

The background to the colonial disputes is nearly complete. But what must also be recalled is the effective absence of immigration control in Britain between 1826 and 1905. Almost continuously throughout these years, no English legislation authorized the exclusion or deportation of aliens, and neither the Alien Office nor any central department presided over a recognizable immigration policy.Footnote ³⁰ By contrast with continental Europe and the United States, nineteenth-century Britain has accordingly been seen as a country of “free immigration.” But the absence of central control did not entail the absence of practical limits on immigration, or the absence of immigration from British politics. Aside from the cost of international travel, an obstacle to immigration was the limited access of aliens to parochial poor relief, which was conditional on their settlement within a parish. Some aliens who did not receive their settlement within a parish (for example because they could not establish a required period of residence) or who were considered to be a burden on parochial resources were “repatriated” with the help of community organizations.Footnote ³¹ At the insistence of members of the Conservative Party, immigration became a subject of national debate from the 1880s, when a rise in immigration from Eastern Europe and Russia contributed to anti-Semitism and fears of overcrowding in East London. Some combination of these and other factors prompted Arthur Balfour’s government to pass the Aliens Act in 1905.Footnote ³²

Finally, the rights of aliens in Britain underwent reform in the middle part of the nineteenth century. In 1844, a landmark statute was passed to recognize the rights of aliens to hold personal property and take out twenty-one-year leases of land; the law also authorized the Home Secretary to issue certificates of naturalization.Footnote ³³ Two further significant laws were passed in 1870. One gave aliens the right to buy land. The other authorized the extradition of alien fugitives, except for political refugees.Footnote ³⁴ The topic of aliens’ rights is certainly detachable from the topic of immigration control, insofar as these rights were conferred partly to protect a group of individuals who were increasingly prominent in British society. But as Andreas Fahrmeir has explained, these legal changes also reflected an assumption, if not a policy, that aliens coming into Britain would be wealthy and own property.Footnote ³⁵ The changes also meant that lawyers became accustomed to a position of equality between subjects and resident aliens. As with William Empson, some lawyers believed this equality to be in tension with the practice of deportation. A complication here is that the colonies were permitted to regulate the rights of aliens in their own ways.Footnote ³⁶ But variations in colonial law did not stop lawyers from seeing an incoherence between immigration control and aliens’ rights.

A deportation in Mauritius, 1833

Britain acquired Mauritius from France during the Napoleonic Wars, with its conquest formalized by the Treaty of Paris in 1814. By British law, the island’s local laws survived the conquest, such that (up until Mauritian independence in 1968) many of the rights, duties, and powers of private persons as well as public officials were determined by the Napoleonic Code civil.Footnote ³⁷ By the early 1830s, most of the island’s population consisted of white French nationals and around 70,000 slaves.Footnote ³⁸ (Slavery was not abolished on the island until February 1835.Footnote ³⁹) A local elite of estate owners, newspaper publishers, lawyers, and others resisted the Colonial Office’s “amelioration” policies, which included the setting up of a protector of slaves in 1829, along with other features of British rule. To the embarrassment of the Colonial Office, several local governors acquiesced in some of the elite’s assertions of power.Footnote ⁴⁰

In April 1832, Governor Charles Coville enabled the formation of a voluntary militia that was designed to protect the elite’s interests. In view of its nearly thousand-strong membership and habit of wearing the uniform of the National Guard, the militia was a blatant challenge to British authority. Its leader, at least for a time, was the merchant and landowner Henry Adam. In what has been termed the “Jeremie affair,” the militia played a part in the departure of John Jeremie, an abolitionist appointed as the island’s procureur-général, and a temporary collapse of order.Footnote ⁴¹ Colville was quickly replaced as governor by William Nicolay and the militia was declared unlawful by royal proclamation. Following his arrival in January 1833, Nicolay’s overall response to the elite, and to the local existence and conditions of slavery, does not seem to have been strong.Footnote ⁴² It is true that under his tenure the island transitioned away from slavery and then from a system of indentured labor (ending in 1839), but these measures were mandated not by his initiative but by the Slavery Abolition Act of 1833.Footnote ⁴³ Nonetheless, working to instructions from the Secretary of State for War and the Colonies,Footnote ⁴⁴ Nicolay adopted at least one countermeasure. In July 1833, he ordered Mr Adam to leave the island.

The deportation followed some sort of procedure, as part of which a council was formed to hear evidence from Mr Adam and other witnesses. After investigation about the circumstances in which Mr Adam had taken an oath of allegiance to the colony and the oath’s legal effect,Footnote ⁴⁵ Nicolay was satisfied that Mr Adam was not a British subject and was liable to deportation on that basis. The evidence was also clear that Mr Adam had been “mixed up with parties having for object the subversion of good order, and legitimate authority.” Nicolay was inclined to agree with the suspicion of local police that Mr Adam had also been “hostile to the British Government” even though the “circumstances upon which such opinion was founded, may not be susceptible of legal proof.” Perhaps it was a doubt about the evidence, or Nicolay’s sense of Mr Adam’s “high” standing in the community, that dissuaded him from issuing a formal or written decision. Instead he simply informed Mr Adam that “he must quit this Island” by the start of the following month. Mr Adam made known his intention to go to London to challenge his treatment by way of petition.Footnote ⁴⁶

It did not take Mr Adam long to find a willing solicitor. Edward Richardson, who ran a practice in the Adelphi Terrace Building on the Strand, thought that his client had grounds for complaint, even if these were “rather constitutional than legal.”Footnote ⁴⁷ For him, the case did not reduce to whether Mr Adam was a British subject. The sort of question that needed to be asked and answered, Richardson thought, was whether

Understandably, Richardson believed that a court confined to “technical Rules” and “Precedents & authorities” would be ill-equipped to decide such a case, which he described also as raising a “question of Prerogative arising out of a novel relation of Sovereignty.”Footnote ⁴⁹ At least by June 1834, before Lord Stanley resigned as Secretary of War and the Colonies, Richardson had corresponded with the Colonial Office about the referral of a petition to the Judicial Committee. Soon after, when Lord Spring Rice was in the Cabinet post, a civil servant formulated two questions that might be (and indeed later were) referred to the court.Footnote ⁵⁰ These were: “What is the ‘status’ of Mr. Adam?” and “Whether the legal rights incidental to such ‘status’ have been infringed by Mr. Adam’s removal from the Mauritius?” To Richardson’s dismay, the arrival in the Colonial Office first of Lord Aberdeen and then of Lord Glenelg brought concern that these questions would invite the Judicial Committee to veer into matters of “expediency” and “investigate the whole subject in its political as well as in its legal bearings”—and even to make compensation orders that would be viewed unkindly by the Treasury Commissioners.Footnote ⁵¹ Lord Glenelg in particular wondered whether the petition would better be determined by a court of common law,Footnote ⁵² and the canvassing of this option seems to have delayed the consent of the Judicial Committee to hear the case until 1837.

The Law Officers—King’s Advocate John Dodson, Attorney General John Campbell and Solicitor General Robert Rolfe—were instructed to defend the deportation. They actually suggested that the case be settled rather than brought into “public discussion” in view of what they saw as Mr Adam’s “very harsh” experience.Footnote ⁵³ Nonetheless, the lawyers were proven correct in their preliminary advice to the Colonial Office that the legality of Mr Adam’s deportation followed from his status as an alien. They did not doubt that he was. Neither did they doubt that the Crown’s prerogative would authorize the deportation of an alien, or that the prerogative could be used in this way by the colonial governor. They added that their conclusions were subject to the “law of this island at the time when it became part of the British possessions.”Footnote ⁵⁴ But their advice did not refer to specific provisions of the Code (indeed they admitted to having “no precise information” about it and to “assuming what we believe to be the case”), and those they later cited in court were found to be irrelevant.Footnote ⁵⁵ Perhaps thinking that the burden lay with the government’s lawyers, the barristers briefed for Mr Adam, William Follett and Stephen Lushington,Footnote ⁵⁶ did not acquit themselves better in this regard. Their petition was equally low on detail about the Code, pointing instead to the history of deportation in Britain, in which they claimed that the practice had “never been resorted to, even in cases of danger and emergency, without Warrant of Parliament.”Footnote ⁵⁷ In reply to a request for information about Mauritian law, Dr Lushington wrote to Henry Brougham (who, his political career now over, was one of the judges assigned to the case) that he could not assist other than by noting the existence of relevant materials in the House of Commons library.Footnote ⁵⁸ In a separate letter Lushington even confessed to being “wholly sick of the Mauritius!”—though this may have been related to his involvement in a separate case about John Jeremie and wider frustrations with the island’s legal system.Footnote ⁵⁹ Brougham would later hint at the general lack of assistance.Footnote ⁶⁰

Mr Adam’s lawyers argued first that the governor had not been conferred with a “power of Summary Deportation, even of Aliens,” such that Mr Adam could not have been removed without a trial. Second, they argued that even if the governor had a power to deport aliens without trial, Mr Adam’s enjoyment under the Code of rights equivalent to those of a British subject meant that he was not “liable to be treated” as an alien.Footnote ⁶¹ This second contention owed something to a serious engagement by the lawyers—at least by the solicitor Richardson—with Vattel’s theory. In a set of undated notes that must have been sent to the Treasury Solicitor’s Department (since they ended up in its archives) and that were marked “Richardson, 2 Adelphi Terrace, Strand,” the author pondered Vattel’s stipulation that a sovereign could “annex” conditions to the admission of a foreigner. The scope of such conditions could not, Richardson thought, go past a certain point. They could not allow a sovereign the right, at any moment and for any reason, to determine that an admitted foreigner’s residence was no longer lawful. After quoting Vattel’s view that “[i]f the sovereign does not permit aliens to possess immovable property, nobody has a right to complain of such prohibition, for he may have very good reasons for acting in this manner,” Richardson wrote, “Unquestionably, no one can complain of a refusal to permit, but the forcible dispossession after the permission has been accorded by Law, would be an unjustifiable outrage.”Footnote ⁶²

Critically, in a point stressed in the petition,Footnote ⁶³ Mr Adam had been allowed to buy and own land, a right not be given to aliens in Britain until 1870. With references to Blackstone and Calvin’s Case,Footnote ⁶⁴ Richardson considered that this right must come with a right of “permanent residence and establishment.”Footnote ⁶⁵ No such rule was or would later be recognized by British law; an alien cannot guarantee their residence in the country by acquiring property. But what Mr Adam’s lawyers thought went beyond property rights. Both Richardson’s correspondence with the Colonial Office and the petition settled by his barristers refer to the length of Mr Adam’s residence on the island, his personal life, and his social connections and contributions as reasons to count against the legality of his deportation.Footnote ⁶⁶ These points resonate with the demands of contemporary public law, and so it is perhaps surprising that Vattel helped point the lawyers (or Richardson) in this direction.Footnote ⁶⁷ Apart from a reference to the “Practice of enlightened Nations,”Footnote ⁶⁸ though, the petition does not reveal the linkage between Vattel and the argument about Mr Adam’s civil rights; neither does Edmund Moore’s law report of the case.

Explaining the Judicial Committee’s decision in July 1837, Thomas Erskine relied on Vattel in a different way, one that seemed to go in the governor’s favor. He began by quoting Vattel’s view that the “lord of the territory” could “forbid its being entered” and “annex” conditions on the entry of foreigners. He transposed the theorist to mean that “the supreme power of every state has a right to make laws for the exclusion or expulsion of a foreigner.” But Erskine did not take the step of identifying the relevant “state” or its “supreme power,” or do much to suggest that Mauritius or its governor had either status. As for the “law” under which Mr Adam’s deportation had been made, this, in the court’s view, was none other than the Code civil. After a searching examination of the Code and commentary in Philippe-Antoine Merlin’s Répertoire de jurisprudence, Erskine held that the Code authorized the governor, who stood in the place of the French executive, to deport aliens “at [his] pleasure, without conviction for any offence.” The only aliens who were immune from this sweeping power were those who had established their domicile on the island, which meant those who had been given “express authority” by the government to settle there. Because Mr Adam had not shown the giving of such authority by the French government (or the British), he was liable to deportation by the governor.Footnote ⁶⁹

Erskine’s reliance on Vattel is hard to reconcile with the decisive, more legalistic part of his reasoning. It is true that Erskine described the power of deportation as an “inherent prerogative,” but in doing so his concern was to consider whether the Code confirmed or “deprived” the French government of the power, suggesting that it was not foregone that the government could exercise it lawfully. Just as importantly, Erskine did not equate the French law of executive power with the British law of the Crown’s prerogative. British law permitted a colonial governor to exercise powers previously enjoyed by the French government, but that was all; it did not mean that the Crown’s prerogative subsumed all these powers. Erskine did not therefore hold that the Crown’s prerogative generally extended to the deportation of aliens, let alone that the prerogative was informed by Vattel’s theory. After all, the Code was a law “made” by the French government. Only in an unreal sense had a “supreme power” within the British state made or enacted this law; as the case itself attests, neither the governor nor the Law Officers were especially aware of what it said. In this way, the diversity of laws within the British Empire interfered with the transposition of Vattel’s theory into colonial powers over immigration.

In a brief concurring opinion, Henry Brougham recorded his view that Mr Adam had suffered a “great hardship.” The result of the case was “somewhat unexpected” and it was “with much reluctance and regret” that the court had yielded to “peculiar provisions of the French law.”Footnote ⁷⁰ He did not refer to Vattel. Aside from wondering if the dim view of Pufendorf he had expressed in debate on the Alien Acts extended to other theorists, we can be sure that Brougham did not consider a theory of sovereignty to be relevant to the case. Brougham’s past and future politics are easy to project onto his internal conflict here. The ruling against Mr Adam, a participant in the slave trade, coheres with Brougham’s abolitionism, even if Brougham’s desired reforms had been made by this time. Equally, Brougham believed that aliens were entitled to nearly the same legal rights as subjects, and would go on to advocate for the 1844 Act that brought Britain closer to this position.Footnote ⁷¹

So while Mr Adam lost his case, the case is also evidence of two doubts about the relevance of sovereignty to the legality of immigration control. One is that the rights of aliens—in this case those which were derived from French law—did not sit well with the general power of deportation that might be sourced in the theories of Pufendorf and Vattel, and perhaps did not belong in those theories after all. The other is that the interplay of rules and instruments that conferred power on colonial officials made it difficult either to see those officials as a “supreme power” or to see that they had been authorized by such a power to regulate immigration. In the Australian disputes I will now turn to, there were lingering questions about the Judicial Committee’s approach to Mr Adam’s case. In Victoria, Justice Holroyd questioned how the court could have ascribed to an “English Sovereign a power which had been inherent in the Crown of France.”Footnote ⁷² In argument before the Judicial Committee, the London barrister Horace Davey thought it best for the court to put its previous decision to one side, saying “a right to deport aliens is not claimed in this case; it is a right to exclude them which is now in question.”Footnote ⁷³ Davey’s opponent, Walter Phillimore, posed a question that could have been lifted from Richardson’s letters and notes: “Could a man with [property] rights be prevented … from landing?”Footnote ⁷⁴ In turn, the Judicial Committee preferred to evade rather than answer such questions.

Exclusion of Chinese immigrants in Australia, 1880s

The Australian colonies regulated Chinese immigration as early as the 1850s. In the 1870s and 1880s, a second wave of gold rushes brought new arrivals and renewed anti-Chinese racism. In view of Britain’s diplomatic ambitions in China, the Colonial Office preferred the colonies’ immigration policies not to explicitly target Chinese aliens or involve racial criteria. At one point, London withheld royal assent to a reserved Queensland bill that would have imposed discriminatory licence fees on Chinese miners. But this was only to encourage the colonies, who at an 1880–81 conference adopted the strategy of limiting Chinese passengers on arriving ships. The arguments against such measures by prominent Chinese Australians, who pointed to the British constitution, to liberalism, and even to passages from Vattel, fell on deaf ears.Footnote ⁷⁵ Both Victoria and New South Wales laid down passenger limits in legislation. In what proved to be a complication, the laws also sought to restrict Chinese immigration (and raise revenue) by levying a ten-pound landing fee in respect of each passenger.Footnote ⁷⁶

The SS Afghan and its hundreds of Chinese passengers arrived in 1888, first in Melbourne and then in Sydney. In both cities, colonial officials did not allow passengers to disembark, citing the statutory limits. In turn, several passengers who found themselves confined on the ship, and whose legal costs were funded by Chinese Australian communities, invoked the writ of habeas corpus. In the colonies’ supreme courts, the passengers claimed that they were unlawfully detained on the ship, either because the shipmaster offered to pay their landing fees or because (in the case of a passenger in Sydney) they were returning to the colony with a statutory certificate entitling them to do so.Footnote ⁷⁷

In court, Victoria gestured towards an argument that the passenger limits took priority over the right of entry on payment.Footnote ⁷⁸ But neither it nor New South Wales gave this argument much emphasis. Perhaps because the cases gave them the opportunity to do so, both governments argued that the colonial officials had not been exercising statutory executive power but rather the Crown’s prerogative in excluding the passengers. The prerogative allowed the colonies to exercise their “sovereign right … to forbid aliens or foreigners from entering its dominions.” Vattel, along with English and American writers on international law, was cited in support.Footnote ⁷⁹ The colonies also contended that the prerogative could not “be taken away except by express enactment,” such that their own immigration legislation had no bearing on its use. There was an ambitious suggestion, too, that the exclusion of the passengers was an “act of State” immune from legal challenge, even though neither the queen nor any governor had approved the conduct.Footnote ⁸⁰ On behalf of New South Wales, the barrister Julian Salomons went so far as to claim that a new form of executive power, a power specifically to prevent the entry of foreigners, should be recognized. This new power, he said, “is inherent in the executive of any territory, and has nothing to do with the Queen,” and its exercise would have to stand “altogether outside the principle of habeas corpus.”Footnote ⁸¹ In the company of such grand claims, a modest one is easy to miss. “Of course aliens have a right of entering any country,” conceded the Attorney General Henry Wrixon in Melbourne, “until they are forbidden.”Footnote ⁸² The Judicial Committee would later resolve the litigation by rejecting this apparently uncontroversial point.

John Madden, then one of Melbourne’s leading barristers, represented the passenger Mr Chung Teong Toy in his case against Victoria. Madden had much to say about an attempt by his opposing counsel to link European theories of sovereignty with the Crown’s prerogative. Addressing Pufendorf rather than Vattel, Madden said that the theorist “was no authority on the law of England, although he was a writer of great eminence and respect on matters on which he treated,” adding that “he wrote at a time when social philosophy was an interesting subject to many persons.”Footnote ⁸³ Echoes of the parliamentary views of Henry Brougham and James Mackintosh are clear. Even if Pufendorf’s claims were notionally relevant to British law, Madden went on, they were disproved by the Alien Acts of 1792–1826 and by the absence of any “instance where this prerogative has been exercised since the reign of Henry IV.” He pointed to the newly popular theorist of the British constitution, Albert Venn Dicey, as “strong authority” for this view, contrasting him with the “not very substantial” authority of Chitty, Blackstone, and Pufendorf.Footnote ⁸⁴ In Sydney, lawyers for the passengers there did not draw out the same contention, seemingly because they did not need to. In the first case decided by the New South Wales supreme court, the passenger, Mr Lo Pak, held a certificate entitling him to entry under colonial law; his barrister, Charles Pilcher, could rest his case on this statutory right. Mr Lo Pak’s success set a kind of precedent for the next case. Bernard Wise, representing the passenger Mr Leong Kum (who held no certificate but for whom an offer of payment had been made), was informed that no argument needed to be heard from him—the court had questions only for the government.Footnote ⁸⁵In a third case, involving the passenger Mr Woo Tin, the “identical” facts meant that no argument at all was possible; the government submitted to the court’s judgment and Chief Justice Darley delivered a diatribe against it for acting “in open opposition” to the court’s orders.Footnote ⁸⁶

In the supreme court of Victoria, one or two judges endorsed the link between sovereignty and prerogative. Justice Kerferd thought it necessary for the Crown’s prerogative to take a form that would “protect the people of this country from an influx of aliens,” reasoning that it was “beyond all question that every nation may exercise the right of excluding aliens without giving offence to the country to which those aliens belong.”Footnote ⁸⁷ Chief Justice Higinbotham thought along similar lines, preferring to say that the colony’s executive powers over aliens derived from its constitution or its “quasi-sovereign” status rather than from a prerogative power deriving from the British Crown.Footnote ⁸⁸ These judges, however, were in dissent. Neither of their approaches was taken up by the Judicial Committee in resolving an appeal by Victoria, even after that court had (in granting leave to appeal) implicitly promised to inquire “into the source and origin of the constitutional rights of self-government belonging by law to the people of Victoria.”Footnote ⁸⁹

The Chinese passengers prevailed in the Australian courts for a combination of reasons. A total rejection of the link between sovereignty and prerogative was not actually prominent among them. Of all the judges who heard these disputes, only Justice Holroyd in Melbourne held that the power of the British government to exclude aliens was “now vested in the Parliament of the United Kingdom, and not in the Sovereign [i.e. the Crown or executive] alone.”Footnote ⁹⁰ For Holroyd, the legal basis for immigration control was solely legislative, which rendered the relationship between immigration and sovereignty irrelevant to legal analysis. By and large, though, his judicial colleagues preferred to reject the colonies’ arguments in view of other concerns.

One set of concerns was about the colonies’ eligibility to exercise sovereign powers in the first place. In Sydney, Justice Windeyer interrupted the argument of Julian Salomons to say, “You are arguing as if this were a sovereign State.” He went on to explain that even if the British Crown as the “Government of a sovereign State” had a prerogative to exclude aliens, the exercise by the colony of such a prerogative would be “utterly incompatible” with its constitution and “position as a dependency of the mother country.”Footnote ⁹¹ Chief Justice Darley agreed, doubting that it was even possible for the imperial government to delegate its prerogative powers.Footnote ⁹² Justice Foster, who was “disposed to agree” that “the Sovereign has the power to determine whether foreigners shall be received into the territory,” thought nonetheless that the colony had not shown it had been bestowed with this “special power.”Footnote ⁹³ In Melbourne, Justice Williams recorded his racist displeasure in concluding that the terms of Victoria’s constitution meant that the colony lacked “the legal means of preventing the scum or desperadoes of alien nationalities from landing on our territory whenever it may suit them to come here.”Footnote ⁹⁴ Much the same focus on the local constitution was adopted by Justices A’Beckett and Wrenfordsley. In this way, arguments about immigration control intersected with wider controversies about colonial self-government. It is interesting that the only judges in these disputes who emphasized the subordinacy of the Australian colonies within the British Empire were Australian—the Judicial Committee would make no such overtures. It is interesting, too, that so many of the Australian judges were prepared to assume both that the imperial government had a prerogative to exclude aliens and that this power stemmed from its sovereignty, using this concession to show the limits of colonial power.

By contrast with the judges in Melbourne, those in Sydney saw the disputes as having a less abstract dimension. The very existence of the immigration legislation, and the rights of aliens under it, meant that the prerogative to exclude aliens must have been abrogated in the colonies, even if it had once existed there. Otherwise, reasoned Windeyer, the colonial executive would be “effectively” allowed to “set aside that law.”Footnote ⁹⁵ Darley wrote that the legislation “legalised” the arrival of Chinese aliens who held entry certificates or whose shipmaster could pay their landing fee. An executive power to treat aliens otherwise would be “opposed to the statute law of the colony.”Footnote ⁹⁶ Justice Innes similarly said that the “permission” given by the legislation “cannot be over-ridden by the arbitrary action of the executive.”Footnote ⁹⁷ Foster’s quite different emphasis was on the integrity of executive action. In allowing the Afghan to be kept so long in Sydney harbor, local officials had really decided to admit its passengers into the colony’s jurisdiction and thus not to exercise their supposed prerogative to exclude them.Footnote ⁹⁸ In these passages, the connection between sovereignty and immigration is nowhere to be seen. The theme is rather that immigration decisions did not respect ordinary demands of the legal system.

When Victoria (but not New South Wales) appealed to the Judicial Committee, its case was headed up by Horace Davey of the London Bar.Footnote ⁹⁹ While Davey adopted Higinbotham’s dissenting reasons, he did this as an addendum to a new, somewhat strange, argument: that the Crown’s prerogative had been exercised in England to authorize Victorian officials to exclude aliens by refusing to accept payment of the landing fee, or that the prerogative must be “presumed” to have been so exercised.Footnote ¹⁰⁰ This may have been inspired by the willingness of some of the colonial judges to assume that a prerogative to exclude aliens existed in England. But the fiction in the argument was obvious. Perhaps Davey simply wished to evade questions about Victoria’s “constitutional rights of self-government” that, even if they had been invited by the Judicial Committee, were awkward to discuss. By further contrast with the arguments in Australia, there is no evidence that Davey drew on theories of sovereignty in developing his arguments about the Crown’s prerogative. Correspondingly, there is only limited evidence that the committee itself contemplated the relevance of such theories to the case. In oral argument, Lord Herschell asked Walter Phillimore, now the leading counsel for Mr Toy, whether “by international law this country has a right to keep the alien out.” Phillimore answered that possession of power on the international plane did not determine the manner or scope of its exercise on the domestic.Footnote ¹⁰¹ The same point had been made in the months leading up to the case by W. F. Craies in the Law Quarterly Review. After laying out a history of English aliens laws, Craies concluded that the prerogative to exclude aliens had been extinguished, and that only legislation stood in the way of aliens’ entry to any part of the British Empire.Footnote ¹⁰²

The Judicial Committee ruled in favor of Victoria, but not for any reason of prerogative or sovereignty. Its judgment, written by Lord Halsbury, adds to his reputation for inventiveness.Footnote ¹⁰³ More in keeping with Wrixon’s argument in Melbourne than with Davey’s in London, Halsbury held that the legislative purpose of restricting Chinese immigration would be frustrated by the landing of a passenger on payment of the landing fee. But he did not stop there. The Lord Chancellor wrote that aliens had no right to enter British territory under the common law and thus no corresponding right of action in the British courts to enforce their entry—at least, no such right that would “compel the decision of … delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament, and the relations of this country to her self-governing colonies.”Footnote ¹⁰⁴ In the years since the decision of the Victorian supreme court, the Judicial Committee had become unwilling to tackle such questions. Had the small steps of the Australian colonies towards federation contributed to the change of heart?Footnote ¹⁰⁵

For two reasons, Halsbury’s reasoning was a revision of the common law. In all the decades since 1826, no question of aliens needing (or lacking) a legal right to enter Britain had arisen; the common law had never stood in the way of their arrival in Britain. Further, the popular liberal theory of the late nineteenth century held that private persons (unlike public officials) were free to do anything that was not prohibited by law.Footnote ¹⁰⁶ Aside from its legal pedigree, Halsbury’s reasoning also seemed redundant. Immigration legislation might simply confer on aliens a right denied to them by the common law. That had been the main problem for the Sydney judges with the use of the prerogative to exclude aliens there. So Halsbury actually needed his first conclusion—that the Victorian legislation did not confer a right of landing on payment of the landing fee—in order to decide the case. If the legislation had conferred such a right (as the Sydney judges had held), the common law’s treatment of aliens would have been superseded.

The Australian litigation shows first that lawyers were still taking the theories of Vattel and Pufendorf seriously. By contrast with the Mauritian dispute, a few colonial judges were prepared to connect these theories with the Crown’s prerogative in England, or to assume that such a connection was plausible. Nonetheless, the Australian disputes attest to a continued criticism of this line of thought, as well as to a new preference of the Judicial Committee to evade it altogether. A few years later, in 1897, the barrister Thomas W. Haycraft tried to claim that the committee had in fact confirmed the use of the prerogative to exclude aliens and its theoretical relation to Vattel. But since no word of sovereignty was spoken by Halsbury, this claim is impossible to accept.Footnote ¹⁰⁷

I indulge here in an aside. To resolve a dispute in 1899 about trawling in the Moray Firth, the Scottish Court of Session cited Halsbury’s decision for its true holding before recognizing a much wider proposition. Concluding that a German fishing company could not sue the Scottish government for blocking access to local waters, Lord Kyllachy accepted the government’s argument that aliens could not complain about any executive action, not merely about those pertaining to their rights of entry in the country.Footnote ¹⁰⁸ “[E]xcept in a question with its own subjects,” Kyllachy wrote, “the sovereign power—the supreme executive—of every state, must be held to be absolute.”Footnote ¹⁰⁹ For Kyllachy, there was a vast difference between the powers the executive could exercise over subjects and those it could exercise over aliens. He seemed to be imagining exactly what opponents of the early-century Alien Acts had feared: that subjects and aliens would be treated according to two legal standards. I mention this doctrine only briefly because I am not sure that other jurists of the period agreed with it. In response to a similar suggestion that aliens could not complain in the courts in Sydney about their treatment by the executive, Justice Windeyer replied that this would “carry us back to the days of barbarism.”Footnote ¹¹⁰ Not unlike Halsbury’s idea about the common law, Kyllachy’s doctrine was not to enjoy a long legacy. At least by 1921, the British courts would recognize that aliens could sue government officials in private or public law.Footnote ¹¹¹ As we will now see, neither of Kyllachy’s and Halsbury’s ideas was relied on by the Canadian government in defending the deportation of two Americans in the 1900s. Indeed, the government’s style of argument in that case showed that the idea of sovereignty had been almost abandoned by lawyers in thinking about immigration.

The Canadian deportation of “prepaid” immigrants, 1900s

Establishing Canada’s federal government, the British North America Act of 1867 dealt with the topic of immigration in an interesting way. Along with the topic of agriculture, Section 95 of the Act conferred legislative power over immigration on both the federal and the provincial governments. As Robert Vipond explains, this gave the provinces “leverage” in areas that were “central to the nation-building objectives” of federation.Footnote ¹¹² Although Canada’s first prime minister, John A. Macdonald, had imagined that the federal government would be given “all the great subjects of legislation” and “all the powers which are incident to sovereignty,” in these respects that government could not exercise its powers alone.Footnote ¹¹³ The related topics of “aliens” and “naturalization,” however, were given only to the federal parliament. Like the Australian colonies, British Columbia was interested in restricting Chinese immigration, with measures going beyond the federal “head tax” on Chinese arrivals imposed in 1885.Footnote ¹¹⁴ Predictably, legal disputes arose over whether provincial attempts to restrict the rights of Chinese residents were ineligible laws about “aliens” or eligible laws about “immigration.”

These disputes are part of the background to the dispute I focus on here. In 1878, a British Columbia law required Chinese persons to hold three-month residence permits and precluded employers from engaging Chinese workers who did not hold them. Justice Gray of the province’s supreme court saw the law as a blatant attempt “to drive the Chinese from the country” and in doing so as trampling on the federal parliament’s exclusive power over the “rights of aliens.” In acknowledging the deeper unfairness of the law, Gray turned to a variety of legal sources that included Vattel. While Vattel acknowledged the power of the state to forbid the entry of foreigners to its territory, the theorist also wrote that the state “ought not” to draw foreigners “into a snare”; once they were admitted, the state “engage[d] to protect them as his own subjects, and to afford them perfect security.”Footnote ¹¹⁵ Along with the solicitor Edward Richardson in the Mauritius dispute, Gray saw Vattel as illuminating not the generality but the limits of immigration control. For Gray, Vattel showed that the state had “duties towards foreigners” as well as powers over them. He held the provincial law unconstitutional.

Similar disputes came to the attention of the Judicial Committee in 1899 and 1903. In the first dispute, the court held invalid a British Columbia law banning the employment of Chinese miners.Footnote ¹¹⁶ In the second, it held valid a British Columbia law prohibiting Japanese, Chinese and East Indian residents from voting in provincial elections.Footnote ¹¹⁷ The reasoning in these cases is impossible to reconcile, though scholars have pointed to the court’s apparent concern for the rights of employers over the rights of aliens.Footnote ¹¹⁸ In contrast with Justice Gray, the committee did not consult Vattel or other theorists.

Apart from the federal and provincial laws targeting Chinese immigration, the country’s immigration policy was otherwise open. In the 1890s and 1900s, Wilfrid Laurier’s federal government had ambitions of attracting immigrants from Britain, the United States and Europe to work on the prairies. But it did not strongly enforce these designs; many immigrants settled in towns and cities to work in industry, and the country experienced some of its highest-ever annual levels of immigration. At the insistence of the minister of the interior, Clifford Sifton, though, the federal parliament passed an Alien Labour Act of 1897 to reflect the government’s preference for agricultural labor. This law made it unlawful for employers to solicit or “prepay” the transportation of aliens into Canada for the purposes of contract labor, and authorized the Attorney General to deport certain aliens who had arrived in violation of the rule.Footnote ¹¹⁹

The Alien Labour Act was supposed to make it harder for immigrants to proceed directly to industrial employment, or to attract immigrants who could support themselves before settling on the prairies. The deportation of offending immigrants tended to be carried out informally and restricted to those who had lived in Canada for less than a year and who were “unable to get their living.”Footnote ¹²⁰ This selective enforcement benefited many employers, whose foreign advertisements were read not as solicitations but as invitations to apply for employment, and did not stand in the way of Canadian “recruitment agencies” that operated in Italy, Eastern Europe, and Russia.Footnote ¹²¹ Nonetheless, when the Attorney General was informed that the arrival of two Americans, Everett Cain and James Gilhula, had been solicited or prepaid so that they could work at an Ontario railway company, he issued warrants for their deportation.

By their clear terms, the Alien Labour Act authorized deportation, and the British North America Act authorized the Alien Labour Act. In an answer to an application for the writ of habeas corpus in the High Court of Justice in Ontario, there was no need for the Attorney General to rely on the Crown’s prerogative or revive debates about its relationship with sovereignty.Footnote ¹²² Instead it was the Americans’ lawyers who thought that the notion of sovereignty might help them, advancing as their first ground of complaint the proposition that the Alien Labour Act was “unconstitutional as a whole” because it “legislate[d] in reference to a matter within the Province of a Sovereign Power”—the suggestion being that Canada was not yet such a power.Footnote ¹²³ But the majority of their many contentions in the High Court concerned the interpretation and factual application of the Alien Labour Act, the regularity of the deportation warrants, the need for a court hearing before the warrants were issued, and the need for the Americans to have been “formally adjudged” as violating the Act before they were removed.Footnote ¹²⁴ (In respect of Mr Gilhula, the lawyers notably argued that he was a British subject.) But none of these points attracted the interest of the presiding judge, Justice Anglin. He was taken instead by another suggested limitation on the practice of deportation by the Canadian authorities.

According to a controversial doctrine of imperial law, the colonies were not permitted to regulate affairs occurring beyond their own territories. While this doctrine may have been motivated by concerns about international law and conflict between the laws of different colonies, its legal status was uncertain until the Judicial Committee gave it its blessing in a case in 1891. Indeed, the doctrine appears to have been developed by the Law Officers in tandem with the Colonial Office without the guidance of common law or legislation.Footnote ¹²⁵ As early as 1870, the Law Officers had pressed the doctrine’s relevance to immigration policy upon the Australian colonies.Footnote ¹²⁶ But the doctrine does not seem to have been understood as an obstacle to deportation until this Canadian case. The lawyers for the Americans pointed to the fact that their removal from Canada would involve their detention in the United States; that is, while the boat carrying them crossed into American waters.Footnote ¹²⁷ Agreeing, Justice Anglin decided to hold the proposed deportation unlawful on this ground alone.Footnote ¹²⁸ Whether the judge was quite aware of it, this reasoning threatened to derail the practice of deportation by the colonies.

The lawyers for the Americans were probably surprised to have won their case on this basis. When the Attorney General appealed to the Judicial Committee, their leading barrister, John A. Robinson, was happy to endorse Anglin’s conclusion while pointing out that the Americans had pressed “a number of other grounds” in their original case. (The door was left open for debate about the “province of sovereign power” by their argument that the Canadian parliament lacked power to pass the Alien Labour Act, but this topic is not developed in the records of argument.) The emphasis again was on the Americans’ right to a judicial hearing before the deportation warrants were issued and on the factual application of the Act.Footnote ¹²⁹ Strangely, none of this detail is apparent from the Appeal Cases report of oral argument in Judicial Committee, which records the lawyers only as endorsing Anglin’s application of the doctrine of extraterritoriality.Footnote ¹³⁰

Even if it were to rule in favor of the Americans, the Judicial Committee would have been brave to endorse Anglin’s reasoning. The British North America Act, as well as other colonial constitutions, anticipated the making of laws on “immigration”; I am not aware of any evidence that this topic was understood not to exclude deportation, or at least the deportation of immigrants who were not long settled in the state.Footnote ¹³¹ Anglin’s application of imperial doctrine thus frustrated a clear grant of legislative power. It is easy to suppose that Lord Atkinson, who wrote the Judicial Committee’s decision, would have wanted to find a reason to adjust (though perhaps not to repeal) the imperial doctrine. But his solution to this conundrum was quite unexpected.

Holding the Americans’ deportation to be lawful, Lord Atkinson wrote,

The proposition was supported with reference to Vattel. Atkinson did not acknowledge those aspects of Vattel’s theory that stressed the state’s duties towards foreigners, including the duty not to act on “groundless or frivolous fears.” But (perhaps with those aspects in mind) he emphasized the unauthorized nature of the Americans’ arrival: “The power of expulsion is in truth but the complement of the power of exclusion. If entry be prohibited it would seem to follow that the Government which has the power to exclude should have the power to expel the alien who enters in opposition to its laws.”Footnote ¹³³ Strictly speaking, then, Atkinson’s reasoning may be limited to the deportation of unauthorized immigrants, though the first of the above passages does seem to encompass the deportation of all “friendly aliens.” It might also be noted that in discussing the power of exclusion, Atkinson repeated Haycraft’s revisionist claim that the “sovereign” nature of this power had been established by Lord Halsbury in the Australian dispute.Footnote ¹³⁴

Atkinson was clear about the “State” that was relevant to the dispute. It was not Canada, but Britain. The powers of exclusion and deportation belonged in the first instance to the British government, who could “delegate” these powers “to the governor or the Government of one of the Colonies” by royal proclamation, imperial legislation, or assent to colonial legislation.Footnote ¹³⁵ Atkinson was less clear about the “supreme power” of the British state who was exercising the powers. His three styles of delegation suggest the involvement of both the parliament and the executive, although at another stage he described the power to exclude and deport aliens as a power to “make laws” for these things coupled with a power to “enforce” them (suggesting the need for legislation).Footnote ¹³⁶ With this ambiguity, Atkinson may have been keeping alive the question of the Crown’s prerogative to exclude and deport aliens, a question he would revisit fifteen years later.Footnote ¹³⁷ But he did not need to weigh in on the question to resolve this case, in which the hand of the British imperial parliament was clear. Because that parliament enjoyed “sovereign” powers of exclusion and deportation, and because it passed the British North America Act to delegate these powers to Canada’s federal parliament, there was nothing unconstitutional about the use of these powers by the Canadian parliament in passing the Alien Labour Act and authorizing deportation by order of the Attorney General.

This is a fascinating legal text. As I suggested earlier, Atkinson might have simply held that legislative powers over immigration (and thus deportation) had been conferred by valid British legislation on the Canadian federal parliament, and left matters at that. Certainly, the need to reject Anglin’s views about the extraterritoriality doctrine would have been part of the pressure on Atkinson in deciding the case. But I suspect that there were other reasons, too, that pushed Atkinson into a different form of analysis, and into using Vattel to explain the Canadian parliament’s powers.

The most important is the enactment in Britain of the Aliens Act of 1905, which came into effect just months before Atkinson’s decision. This legislation conferred power on immigration officials to exclude “undesirable immigrants” and authorized the Home Secretary to deport aliens convicted of certain offences or found within a year of their arrival to have drawn on parochial relief.Footnote ¹³⁸ As I said earlier, proposals for measures of these kinds had featured in British politics (and especially in the Conservative Party) since the 1880s. The passing of the Aliens Act by the Balfour government, and the earlier recommendations of a Royal Commission on Alien Immigration (1902–3), represented the defeat of a long consensus that immigration control was unnecessary or antithetical to British liberalism.Footnote ¹³⁹ Aretas Akers-Douglas, Balfour’s Home Secretary, gave official emphasis to a sense that Britain had lagged behind other countries, particularly America, in regulating immigration, such that only the world’s “worst” immigrants were coming to the country. Even with its unique protection of political refugees,Footnote ¹⁴⁰ the Act marked a new consensus in Britain about the desirability of controlling immigration—indeed, about the need for Britain to engage in this practice in the world of modern governments.

These were ideal conditions for a renewed interest in the relationship between immigration and sovereignty.Footnote ¹⁴¹ Atkinson’s judgment reads as a telegraph that Britain was now engaging in the sort of practices that the Canadian government had brought to the imperial court. His logic of the delegation of power from Britain to Canada makes Britain, not Canada, seem the prime mover in this realm of public policy, when of course the opposite was true. In the same year, a judge in the new High Court of Australia would cite Atkinson’s judgment with apparent approval, only to explain that it was the former Australian colonies’ own experience with the “sovereign” exercise of immigration control that explained the legislative powers in the country’s federal constitution.Footnote ¹⁴² I have not found direct evidence of Atkinson’s personal views on immigration. But his prior membership of the Conservative Party (from which he resigned on his judicial appointment in 1905) and close links with Balfour, for whom he once acted as private secretary and whose government he served as Attorney General for Ireland, make his sympathy for the Act likely.Footnote ¹⁴³ While the Act’s administration was softened by the Campbell–Bannerman government,Footnote ¹⁴⁴ this bureaucratic development would not have materialized by the time of the decision in April 1906.

There were two or three other probable influences on Atkinson’s thinking. One was that the Supreme Court of the United States had, in the late 1880s and early 1890s, already made use of Vattel in explaining the immigration powers of the Congress and the federal executive under the American Constitution. Atkinson made no reference to the pair of decisions in which that court had described the control of immigration as a sovereign power, but, given the court’s international prominence, I doubt he would have been unfamiliar with them.Footnote ¹⁴⁵ The Judicial Committee’s own history with Canadian provincial legislation may have alerted Atkinson to the somewhat contrary use of Vattel by Justice Gray in British Columbia; if so, that reference also went unacknowledged. But it would not have been straightforward for Atkinson to endorse the American legal analysis. For one thing, the American Constitution dealt with immigration differently than the British North America Act, conferring legislative power over that topic exclusively on the federal government. For another, there was a division of opinion in America about deportation. Justice Stephen Johnson Field, who in 1889 explained the unanimous opinion of the Supreme Court that the exclusion of aliens was a sovereign power, found himself in dissent in 1893 in holding that the deportation of resident aliens should be subject to procedural limits that did not attach to their exclusion. Given that Atkinson’s case was one of deportation, he may have been content to extract references from Vattel without signaling the controversy surrounding the theorist’s use in American law.

Finally, Atkinson may have believed that a popular theory of the British constitution, the theory of parliamentary sovereignty, was not adequate for his task. On this theory, the British parliament had power to pass legislation on any topic whatsoever and in spite of any rule of the common law to the contrary. Viewed in the light of this theory, the imperial parliament’s conferral of the power of immigration (and thus the power of deportation) on the Canadian parliaments would have been unencumbered by the doctrine of extraterritoriality. But the theory’s chief exponent, Albert Venn Dicey, was also a noted critic of immigration control. Among other writers, Dicey argued that restrictions on immigration were contrary to British liberalism; more idiosyncratically, he suggested that such restrictions were contrary to the British constitution, insofar as the constitution required “coercive” immigration legislation to be temporary.Footnote ¹⁴⁶ Dicey’s constitutional views on immigration did not enjoy wide support in the legal community. But what may appear to us today as a simple route to Atkinson’s desired conclusion may not have seemed as such in his day.

In this case, the relationship between immigration and sovereignty experienced a sort of resurgence in legal thought. But the case does not represent a vindication of earlier, criticized views about the Crown’s prerogative. After all, the prerogative was not invoked. Unlike Lord Atkinson, the lawyers for the Canadian government did not even think to use a theory of sovereignty to explain the federal parliament’s powers over immigration. What the case rather represents is an acknowledgment that Britain had become involved in the project of immigration control. Importantly, it had done so by legislation and not by the prerogative. Unfortunately, the procedural or factual points raised by the lawyers for the Americans did not receive a proper answer from Atkinson, whose account of legislative power over immigration seems perfectly compatible with the finer points the lawyers were proposing. Indeed, this answer would only arrive in the second half of the twentieth century, when the British courts recognized that statutory powers to exclude or deport aliens (and, from 1962, Commonwealth immigrants) came with duties of legality, procedural fairness, and legal reasonableness.Footnote ¹⁴⁷ But the very raising of these points, and their resonance with those made in the Mauritian and Australian disputes, shows that lawyers were thinking of the limits that public law might impose on immigration control.