I beg leave to direct your attention to the 7th, 8th, 9th, and 10th pages
of that report. They contain a distinct assertion by the British judge
who presided on that trial, that although the prisoner had been
naturalized in the United States of America, yet if it was also a fact
that he was born in Great Britain, that then, and in that case, he still
remains a subject of the Crown of Great Britain and Ireland, and so he
would not be entitled to the benefit of the law which allows a “jury de mediatate linguœ” to the native born American
citizen as a foreigner in Great Britain. It thus distinctly appears that
a naturalized citizen of the United States is
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denied an equal participation with the native-born
citizen of the United States in the benefits of a, British act of
Parliament.
I have supposed that it might be useful to you, in your debates with Lord
Stanley, to show him how the doctrine of the indefeasibility of British
allegiance is asserted in courts on the trial of naturalized American
citizens. You will be at no loss in showing him how formidable a weapon
this seeming legal abstraction is in the hands of political debaters in
the United States, and how such debaters sometimes use that weapon to
alienate the two countries.
I am satisfied that the people of the two nations might have remained in
good social bonds since the war of 1812 if the British government had
then given up the theory of the indefeasibility of allegiance, a theory
which has long since been found impracticable, and which is now coming
into conflict with the common sense of all nations.
[Untitled]
Friday, November 8,
1867.
At the sitting of the court the prisoner was put forward, again.
The clerk of the Crown having arraigned the prisoner on this charge,
asking him was he guilty or not guilty, the prisoner replied, “I
decline to plead.”
The Chief Baron. I wish to explain to you
what the consequence of your not pleading will be. It is now within
three or four of 300 years since exactly the same course was adopted
in the Court of Queen’s Bench, in England, by a prisoner named
Story, who was arraigned for treason. He refused to plead, and said
he would not do so because he was a subject of the King of Spain,
was in his service, had been so for seven years, and he repudiated
allegiance to the Sovereign of England. The lord chief justice of
that day warned him, as I now warn you, of the consequence of
refusing to plead, and that was done which I do now—a book was shown
to him, stating what the law was. The law at that time was, that in
high treason, if a person refused to plead, judgment was immediately
pronounced against him, as if he had pleaded. The man I speak of
persisted in refusing to plead, judgment and sentence was
immediately pronounced against him, and he was executed. That is not
the law now. The law now is that if a person refuses to plead the
court will enter a plea of not guilty, and his trial proceeds just
as if he had pleaded. [The chief baron here read the enactment on
the subject. The chief baron then directed the act to be handed to
the prisoner, which was done, and on his refusing to plead, directed
the plea of “not guilty” to be entered.]
The Prisoner. Can I have the means of
writing, my lord?
The Chief Baron. Certainly; give him pens,
ink, paper, and blotting paper. You can cross-examine witnesses, and
make any statement in your defense, in the same manner as if you had
pleaded.
The clerk of the Crown called over the jury panel, and apprised the
prisoner that he was about to swear a jury to try him; that he had a
right to challenge 20 jurors peremptorily, and as many more as he
could show sufficient cause for.
The Prisoner. My lords, I am an American
citizen, and I claim to have half the jury Americans.
The Chief Baron. Do you allege you were
born in America?
The Prisoner. I believe I was born
there.
The Chief Baron. It will be necessary to
show that.
The Prisoner. It may be necessary to show
it; but the papers that would show what I am went off in a trunk in
the steamer on board of which I was arrested in Queens-town; that is
the fault of the Crown, and therefore I am unable to produce those
papers in court.
The Chief Baron. It is essential for you to
state in what manner you are not in the allegiance of the Crown.
The Prisoner. I state before the court I am
an American.
The Chief Baron. Do you allege that you
were born in America?
The Prisoner, I decline to answer any
question advantageous to the enemy.
The Chief Baron. You say that you are an
American. That may mean you are an American citizen, which you may
be, and at the same time a British subject, because, if you were
born under the allegiance of this country, and afterwards became an
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American citizen, you
would still be a subject of the Crown of Great Britain and Ireland,
and disentitled to such a jury as you demand.
The Prisoner. I beg pardon, my lord. I
think it is the duty of the Crown to prove that I was born in the
jurisdiction of her Britannic Majesty. They have deprived me of the
means.
The Chief Baron. Before the Crown can be
called upon to give any evidence, it is necessary you should state
whether you are or are not a person who was born under the
allegiance of the British Crown. The Prisoner. I decline to make any statement of the sort.
The Chief Baron. Declining to make such a
statement, we must refuse your application.
The Prisoner. I wish your lordship to
understand me distinctly that the claim I make is this: I am an
American, and I am prevented by the British Crown to certify to that
effect, in consequence of forcing me off the steamer and preventing
me taking the papers that would certify to who I am.
The Chief Baron. If there are any papers in
possession of the Crown, I have no doubt they will produce them.
The Prisoner. I never heard the papers were
in possession of the Crown. They forced them from me, and they were
carried to America.
The Chief Baron. Unless you allege some
fact for which you require the papers, we must consider them
unnecessary for the purpose of the trial.
The Prisoner. They are necessary for the
purpose of identification. That is why I claim those papers to be
necessary.
The Chief Baron. I have stated to you that
your saying you have proofs is immaterial, unless you show what you
have to prove; and unless the papers can establish that you were not
a British subject, the fact of your being an American citizen
becomes immaterial.
The Prisoner. I claim to have a right to
these papers that have been either stolen or lost by means of
British justice. I consider it amounts to absolute stealing.
The Chief Baron. The matter for the court
is, whether or not you will be allowed a jury half foreigners. I
tell you you cannot be so allowed, unless you state whether you are
or are not a person who was born under the allegiance of the British
Sovereign.
The Prisoner. I state I am an American, and
I think that is sufficient to warrant me in having the jury that I
claim.
The Chief Baron. I tell you that it is not
sufficient. If you state you were an American citizen, whether by
becoming an American after you had been a British subject, or that
you were born in America, the question of law will arise.
The Prisoner. I understood it to be a
principle of British law that a man was presumed to be innocent
until he was proved to be guilty; and now I have to prove my
innocence before the trial commences at all.
The Chief Baron. The question of your guilt
or innocence does not arise. Unless you state whether or not you are
a person born within the dominions of the Crown of England, we must
proceed with the trial.
The Prisoner. I will make no statement of
the sort. I will permit the attorney general to pack the jury as he
likes.
The Chief Baron, (to the attorney general.)
Is there any foundation for the claim the prisoner makes?
The Attorney General. No, my lord. He is
not an alien.
The clerk of the Crown then called the names of the jury.
