Lord Lyons to Mr. Seward.
Sir: On receiving from me a copy of the note which you did me the honor to address to me on the 30th May last, respecting the imprisonment of Mr. John J. Shaver, her Majesty’s government considered it desirable to write to Canada for further information on the subject. Her Majesty’s government having, in this way, obtained additional evidence, have again taken the case into consideration, and have directed me to make to you a further representation with regard to it.
To begin with Mr. Shaver’s claim to be a British subject. It is proved by the affidavits of Nancy Moore, Peter Shaver, John Hedley, and others, which I have the honor to transmit to you herewith, that Mr. Shaver is of British descent, and that he and his family have always had their residence on British territory.
It appears, indeed, from the affidavits of Mr. Benjamin and others, (which also are enclosed,) that Mr. Shaver has had for many years past (and had at the time of his arrest) a residence at Belleville, Upper Canada, at which his wife lives, and to which it has been his habit to return whenever the claims of his business have allowed him to do so. It does not appear that he ever had a fixed residence within the territories of the United States; and his occupation while in these States was of a nature to cause constant travelling from one part of the country to the other, and almost to exclude the idea of any fixed residence whatever; and, moreover, it continued only for a limited portion of each year.
Her Majesty’s government are, then, clearly of opinion that Mr. Shaver has established, by good proof, that he is a born subject of her Majesty; and, what is of less importance, that he has retained his British domicil; and as regards the latter point, her Majesty’s government confess that they have failed to perceive the force of the remarks made in your note, or the justice of the rebuke which you found upon them.
The domicil of the wife was not stated to be the domicil of the husband. But the fact of the residence of the wife and family at a particular place was, in the case of a travelling agent, alleged as part of the evidence that his home or domicil was in that place.
This position is in accordance with the best authorities, English and American, upon the particular point of domicil; and her Majesty’s government are of opinion that, in spite of travelling agencies, limited to three or four months, Mr. Shaver was domiciled at Belleville.
[Page 485]The question, however, is one of natural allegiance, and not of domicile And when the United States authorities forebore to press the oath of allegiance, which they had at first tendered to Mr. Shaver, it was, her Majesty’s government cannot doubt, because they were satisfied of his British origin and allegiance.
Next, as to the charge against Mr. Shaver of using seditious language while he was in the United States. Her Majesty’s government observe that the only witness mentioned in connexion with this charge is Sears P. Thompson. Mr. Shaver states that this Thompson was in his employment, and that fraudulently withheld from him money received on his account. He declares, moreover, that his conversations with Thompson never proceeded beyond the private expression of opinions on passing events, and were not calculated to excite any feelings. And, indeed, it may be gathered from the manner in which Thompson’s statement is mentioned in your note, that this assertion is not likely to be disputed. Mr. Shaver, moreover, explicitly denies that he ever in any public manner gave expression to sentiments hostile to the government of the United States.
It seems, therefore, to her Majesty’s government that the character of Thompson, and his particular relations with Shaver, go far to discredit his evidence, such as it is. And her Majesty’s government observe, further, that even if Thompson’s evidence were not discredited, the conduct of Mr. Shaver could hardly be regarded as an offence, except under a rigid despotism; that it could be only under such a form of government that a free comment upon passing events to an acquaintance could be considered as a crime justifying imprisonment.
Other charges against Mr. Shaver connected with the carriage of correspondence, and similar matters, are prefaced in your note, with the words, “It is in proof,” but no witness who has testified to them is named. Mr. Shaver distinctly and Categorically denies that he was ever, either directly or indirectly, engaged in the carriage of any correspondence to persons who were in arms or in revolt against the United States. With regard to the assertion concerning the trunks in his possession, which are stated to have come northward light, and to have gone southward heavy, Mr. Shaver’s answer is, that these trunks contained the bills, papers, and tickets, which, in the course of his business as a ticket agent, he sold. That the trunks came up light because the greater portion of the passenger traffic was from south to north, and the tickets were then in the hands of the passengers. That they returned heavy because the tickets had then been collected from the holders, and were on their way back to the companies in the south, for whose account they had been sold. He stated, moreover, that on every occasion of their going south these trunks were searched.
It is further affirmed in your note that Mr. Shaver stated on the way to Lafayette, after his arrest, that “he had parcels in some express office which he expected to receive to carry south.” The latter part of this statement Mr. Shaver denies having made. He admits the former part, but adds that the United States authorities obtained the parcels, and examined them, and found them to contain cigars.
The assertion that Mr. Shaver stated his intention to go south, contrary to the proclamation of the President, and also to carry correspondence to the southern army, Mr. Shaver meets with a positive denial; and as the names of the witnesses on whose evidence this charge is made are not given, it is not easy to say what other answer, supposing the charge to be untrue, Mr. Shaver could give to it.
On the whole case, her Majesty’s government are of opinion that the grave facts as to Mr. Shaver’s detention, ill-usage, and imprisonment, remain wholly without excuse or modification; and even if your reliance on the statement of the United States officials as to the treatment of Mr. Shaver, after his arrest, be [Page 486] justified, this would, it seems to her Majesty’s government, merely tend to show some possible exaggeration not unnatural or inexcusable, under the circumstances, on Mr. Shaver’s part, as to some points of detail which are not really of much importance to the substance of the case, and as to which the feelings and observations of prisoners are apt to be more acute than those of the officers who hold them in custody.
Her Majesty’s government have indeed been strengthened by the information which they have now obtained, in the opinion which I expressed to you by their order, in my note of the 26th of April last, and they have accordingly directed me to state to you that they consider the claim of Mr. Shaver for redress and compensation to be fully established.
I beg you to be so good as to send me back the ten original documents enclosed in this note.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Hon. Wm. H. Seward, &c., &c., &c.