Mr. Adams to Mr. Seward

No. 1521.]

Sir: I have to acknowledge the reception of dispatch from the department numbered 2116, of the 28th ultimo, on the subject of allegiance and expatriation.

Much discussion is going on in the London newspapers upon the subject. Concurring with you in the opinion that this is not a favorable time to negotiate, I yet feel very sure that the only opening to any prospect of a future peaceful settlement of the question with this country must be found in the gradual indoctrination of the British mind to the expediency of surrendering the ancient theory.

The panic occasioned by the Clerkenwell affair is gradually abating, although the enrollment of special constables is going oh very extensively over a large part of the kingdom.

I have the honor to be, sir, your obedient servant,


Hon. William H. Seward, Secretary of State, Washington, D. C.

Court of Queen’s Bench, January 13.

Sittings in Banco—(Before the Lord Chief Justice and Justices Blackburn and Lush.)


Mr. Coleridge, Q. C, with whom was Mr. W. P. Macdonald, applied, under the 19th and 20th Vic., chap. 16, sec. 3, for a rule nisi to remove the trial of Burke for treason-felony from Warwick to the central criminal court.

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The Lord Chief Justice. You only ask for a rule nisi?

Mr. Coleridge. Yes. For a rule nisi to show cause why a certiorari should not issue to remove the trial to London. Your lordships judicially know nothing about the charge against Burke, but I will assume you are sufficiently aware that he has recently been committed.

Mr. Justice Blackburn. For treason-felony. That is sufficient to make us aware what the case is.

Mr. Coleridge. I move on an affidavit for a rule to show cause why a certiorari should not issue to bring Burke back to London for trial. The case was heard at considerable length by Sir Thomas Henry at Bow street, and amongst other parts of the case an important part was that Burke was said to have been connected with the purchase of fire-arms at Birmingham, which were to have been sent to Ireland to be used against the government. No doubt that is one of a series of overt acts which make up the events for which he is to be tried. The prisoner’s counsel strongly urged before Sir Thomas Henry that Burke should be committed for trial at the Old Bailey, but it was opposed by Mr. Giffard, Q. C., who appeared for the Crown, and who as strongly urged that it should take place at Warwick, the overt act with reference to the purchase of fire-arms having taken place at Birmingham. And so far as I am aware Sir Thomas Henry, chiefly on that ground, committed Burke for trial at Warwick, and he has been accordingly taken to Warwick castle. I have no wish to say one word more than is material to the question. The affidavit on which I now move states that it is extremely desirable, so far as Burke is concerned and for the interests of justice, that he should be tried in London, and on the following three short grounds: First, it is stated that Warwickshire, as we all know, has recently been rather conspicuous for religious heats and disturbances, especially as connected with Irishmen and with persons more or less supposed to be mixed up——

Mr. Justice Blackburn. But surely the charge against Burke is in no way connected with Soman Catholicism. We are all aware that Fenianism, instead of being connected with Mr. Murphy or the Romish church, has in fact been excommunicated by the latter, if I am not mistaken.

Mr. Coleridge. That may or may not be. At all events, there might be persons in Warwickshire unlike your lordship, unable to discriminate between one Irishman and another, or between a Roman Catholic Irishman or a Fenian Irishman. Whether Roman Catholic or Protestant, without wishing to say anything disrespectful of any one likely to take part in the trial, (if it takes place at Warwick,) they might not possess your lordship’s education and judicial mind, and it is not an unfair observation to make, that in a county which has been a great deal distinguished of late for what might be called Irish riots, to state that it is a fair ground for Burke to say that it is not for the interests of justice to be tried where the jurors might come from that part of Warwickshire where this religious feeling had existed. The second ground upon which the motion is made is this: Mr. Merriman, the prisoner’s attorney, is a London solicitor of large practice, and he states that he has been for months conducting Burke’s defense, and as such he is able to state that Burke is almost entirely without funds; and he further states that it will be extremely difficult for him to conduct Burke’s defense at Warwick instead of London. Burke was arrested in London, all the proceedings had been taken in London, and the conspiracy, if any, was to a great extent in London, and it is suggested that it is a harsh proceeding to take him from London and try him in Warwickshire. The words of the statute are in the largest possible form.

Mr. Justice Blackburn. The words appear to have been purposely selected, so as to give us as absolute a discretion as possible.

Mr. Coleridge. That is so; and it is as much for the interest of the prisoner as for the prosecutor that the right discharge of the criminal law should be vindicated.

The Lord Chief Justice. We must see there is some substantial justice connected with his interest to bring him back. You appeal to us from the magistrate who committed him to remove Burke from the jurisdiction he had been committed to to that of the central criminal court.

Mr. Coleridge. I do not complain in a sense that Sir Thomas Henry is wrong, or suggest anything of the sort, because it was hardly an act of discretion. Certain overt acts were proved to have been committed, or spoken of as having taken place, in Warwickshire, and Sir Thomas Henry has done what any one else would have done under the circumstances. It is hardly an appeal against the discretion of the magistrate.

Mr. Justice Lush. You mention the name of Burke only. You do not appear for any one else?

Mr. Coleridge. No. Only for Burke.

Mr. Justice Lush. Are not two others committed with him?

Mr. Coleridge. No doubt there are, and I am informed that Mr. Fitzjames Stephen will make an application on their behalf to the court.

The Lord Chief Justice. They might prefer to be tried at Warwick. In that case it will be a ground of objection to your application.

Mr. Coleridge. Yes, if it should turn out so. It may be the Crown might have no [Page 145] objection to the removal of the trial. I only apply for a rule nisi. It is surely a matter for the consideration of the court—the position in which Burke is placed with reference to his London solicitor. The third ground upon which I move is, that Burke wishes to have a larger selection—in fact, from the whole bar—than would be open to him for his defense if he is confined to the Midland circuit. It is not for me to say that the Midland circuit has not more than enough members of the bar belonging to it from which Burke might select an advocate; but he wishes to be unfettered in his selection in a matter of so much import. Sir Thomas Henry proceeded in this matter, so far as I can make out, chiefly on the ground that some of the overt acts were said to have been committed in Warwickshire, and also that a number of the witnesses live in Birmingham. Now, it appears that 35 witnesses were examined before Sir Thomas Henry, of whom 14 only reside in Warwickshire, and the remainder in London, Liverpool, and Ireland, chiefly in the first two places. The least expensive mode of trial, so far as the prisoner is concerned, if he calls witnesses, will be to be tried in London.

The Lord Chief Justice. But he does not say he has any witnesses to call.

Mr. Justice Blackburn. If he has, and he summons them under the new act, he will have a chance of the expenses being allowed by the Crown.

Mr. Justice Lush. There is this to be considered. The indictment must be found in Warwickshire, because it is only after the indictment has been found that it can be removed. So that all the witnesses must go to Warwick to go before the grand jury.

Mr. Justice Blackburn. The expense of the trial is a matter for the prosecution and not for the prisoner to consider. So far as his calling witnesses from Liverpool and Ireland, it is a matter of indifference where the trial takes place. The question is, the number of Warwickshire witnesses as contrasted with those of London.

Mr. Coleridge. That is so. I can only state what I find in my instructions.

Mr. Justice Lush. It seems that an order may be made for the removal of the trial before the indictment is found, but it cannot take effect until after the indictment has been found.

Mr. Coleridge. Yes; and enough witnesses must go down to find the bill. Mr. Merriman, in his affidavit, states that Burke is a naturalized American subject, and that he has held a commission as captain in the United States army, and my third ground for the removal of the trial is that it might raise a question as to the jury.

Mr. Justice Blackburn. What question can it raise?

Mr. Coleridge. It may be that he is entitled to be tried by a jury of foreigners.

Mr. Justice Blackburn. He has no more pretense for saying that than any other Englishman accused of any other crime. No possible point can be raised on it.

Mr. Coleridge. If it is impossible I have nothing more to say. Your lordship appears to have already decided the point without hearing me.

The Lord Chief Justice. Only one member of the court has expressed an opinion on the point. I have not done so.

Mr. Justice Blackburn. Can you say that a British-born subject can claim such a privilege?

Mr. Coleridge. I am not arguing the question; I am only stating the facts upon which I move.

The Lord Chief Justice. But the state of the law upon the point ought to be considered. There can be no doubt a British-born subject cannot throw off his allegiance.

Mr. Justice Blackburn. And that question can be as well raised at Warwick as in London.

Mr. Coleridge. But on any question of importance all reasonable indulgence should be given to persons accused of crimes of this sort, which are not viewed by every one as your lordship and I might be inclined to view them. But I will not say anything further on it.

The Lord Chief Justice. We cannot make a distinction between the particular nature and character of the offense charged from any other crime. A great inconvenience will no doubt arise in all the witnesses having to go to Warwick, but it seems indispensable, in order that the indictment should be preferred before a Warwickshire grand jury, and that only after that can it be removed into the central criminal court, and bring them back to London again.

Mr. Coleridge. No doubt it is so, but it arises from the case having been sent there. It is not my business to pass judgment on what has been done, but I cannot help saying it is to be regretted the prisoners have been committed to Warwick. It is substantially a metropolitan offense, and only an incident in the train of circumstances, buying arms in Birmingham. Apart from what was to be done with them, and the other matters which make it a criminal charge, the purchase of fire-arms in itself is a perfectly legitimate thing.

The Lord Chief Justice. Have you had any communication with the attorney general upon the subject?

Mr. Coleridge. No.

The Lord Chief Justice. If there is no objection on the part of the Crown, then the court my possibly assent.

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Mr. Coleridge. I am told notice of this application has been sent to the Crown. The purchase of arms at Birmingham might be done with perfect innocence; and it was merely connecting it with other circumstances that enabled the magistrate to commit to Warwick.

Mr. Justice Blackburn. You have just spoken of this as a metropolitan offense. My impression is, it is more of an Irish offense. Very little was actually done in London.

Mr. Coleridge. Metropolitan offense is a wrong expression. It as an imperial offense, one against the country rather than against the county of Warwick.

Mr. Justice Blackburn. The charge is of such a nature that it might be tried in many places.

Mr. Coleridge. Yes. It is an imperial offense.

The Lord Chief Justice. And you may very well say the central criminal court is the proper place to try it. The only question for us is whether the magistrate having, in his view of the case, sent it to Warwick, should we bring it back to London? If these considerations had been presented to Sir Thomas Henry he might not have sent the case there; but its being there, shall we bring it back?

Mr. Coleridge. I am not pressing anything untenable. I am only asking for a rule nisi. It may be that when the attorney general hears of this he will assent to it.

The Lord Chief Justice. We must consider whether the other two will have to be brought back, and therefore the application had better stand over for the present, and see what they do; and, in the mean time, perhaps you (Mr. Coleridge) will communicate with the attorney general.

Application postponed.

Law Amendment Society.

Sir R. Phillimore, judge of the admiralty court, presided at a meeting of this society, held last evening in the Adelphi.

Mr. John Westlake read a paper on “Naturalization and Expatriation, or a change of Nationality.” After referring to President Johnson’s allusion to the topic in his last message, and to its bearing upon the French army organization bill, he said it was admitted on all sides that the time had come when it was necessary to arrive at some clear and mutual understanding upon it. He then detailed those rights of protection and control which gave to nationality its importance, showing the difference between the laws and customs in various parts of the world as to the rights of foreigners, and pointing out that foreigners were generally held to be exempt from military service, but not from the payment of war taxes. These rights and duties were no doubt a burden which nations submitted to in order to facilitate intercourse between them. There was no reason to believe that the English parliament would hesitate to propose such alterations as might be necessary, but the particular arrangements to be recommended must be a question for much discussion even after the principle of free expatriation had been admitted. There was much difficulty in the proposal to merge nationality in domicile. The following rules might be considered for a change of nationality: First, a simple form of naturalization, to which any state might add any condition it thought necessary; secondly, a provision for securing that none but permanent residents were naturalized, making for that purpose a certain number of years’ residence necessary, unless special reasons were assigned; thirdly, the renouncing of all claim by the original government over the person naturalized; and, fourthly, some provision for the return of expatriated persons to their original country.

In the discussion which followed, Mr. Mozely said the question could not be settled until an international code was agreed upon, but meanwhile some advance might be made. At present the British legislature seemed to go upon no intelligible principle whatever, except that of making as many persons as possible British subjects.

Mr. Vernon Harcourt said that foreigners had no rights whatever except those which the country in which they were resident chose to give them; they went there of their own will, and must be subject to the laws made there. Any government might, in its discretion, subject to enlistment anybody within its borders, those so subjected, if they disliked the law, having the option of leaving the country. The doctrine of locality of crime, in the strictest sense of the. word, had no place whatever in general or international law, and any country whatever had a perfect right to say it would try every man within its borders for any crime whatsoever, whether committed there or elsewhere. England and America were the only countries where this doctrine was not held. At present if an American plotted against this country, for instance, he would be punishable for the offense in his own country, but would be perfectly safe in this country against which he had been conspiring. If an Englishman murdered a foreigner abroad he might be tried in England for doing so, but if a foreigner murdered an Englishman abroad and came to England he could not be tried. Could anything be more [Page 147] absurd? If we acknowledged the continental doctrine upon this subject, we should have a sounder basis to proceed upon than the American doctrine of citizenship.

Mr. Chisholm Anstey said our present law was full of absurdity, and illustrated his position by narrating what took place on the coast of China.

Mr. Garvie, Mr. Merriman, Mr. E. Hill, and Dr. Waddilove continued the discussion, which at length turned upon the desirableness of adjourning the debate.

Sir R. Phillimore said the subject was one of extreme importance at the present time, and would have to be pressed upon the attention of not only the English and American governments, but upon the consideration of all nations. The entire question would require deliberate and ample discussion, for it was to be viewed from a great many positions, and would require a great many lights to be thrown upon it before it was satisfactorily settled. The true interpretation of international law was, that when a foreigner entered the dominion of any state he was in all respects amenable to its law. The chief difficulty arose from an inability to define when a man actually left his country. Of course, if an Englishman broke the municipal law of a foreign country, by that law he must abide; but the protection of his own government should be thrown over him so far that he should not be placed in a worse position than the citizens of the country in which he might happen to be. He (the chairman) should not like to countenance the doctrine that the moment a citizen left England the state ceased to have any care over him, or he to have any claim upon the protection of the state. All lawyers knew the difficulty there was in settling when residence became domicile, and that made him think domicile itself would not be a discreet or sufficient test of expatriation, although it might with advantage be used as an element in the matter. Any rule that was proposed must be one upon which there should be mutual agreement. He felt a difficulty in touching upon this question as effecting military service, because he was concerned in it during the American war. Very early the absolute necessity of agreeing to some clearly defined rule as to the protection of British subjects in America was forced upon their attention. It was soon agreed that it could not be demanded as a matter of right by a British subject who had by his acts incorporated himself in America either by domicile, by the purchase of land, by the establishment of manufactories, or still more by the exercise of voting, that he should be regarded as otherwise than an American citizen. It was justly regarded that if a person had settled in America at his own option and for his own convenience, he had no right to claim the rights of British citizenship when his residence there became inconvenient, especially as the chances were that he would return as soon as the cause of inconvenience was removed. A line was accordingly drawn, and it was agreed that the option should be given a man of leaving the country if he wished to avoid military service. With regard to the interesting question of the competency of a country to punish a crime committed in another country against itself, he was inclined to think that it was a monstrous thing that any technical rule of venue should prevent justice being done in this country on a criminal for an offense which was perpetrated here, but the execution of which was concocted in another country. But he was not prepared to say that if a criminal, being a foreigner, was accused of a crime against a third state, the same rule should apply. He did not see why any crime committed against a British subject abroad should not be tried here, instead of action being limited to a crime against the state. It was stretching the law of hospitality too far to afford a foreigner a refuge in the country against whose welfare he had been conspiring.

The debate was adjourned.


It is unlucky for the calm consideration of the theory of indefeasible allegiance that the American objection to it is put forward at the very time when we have to defend our institutions against the plots of so-called American citizens. Our columns yesterday, for instance, contained at once the report of a discussion by the Society for the Improvement of the Law on the international bearings of the law of allegiance, and a notice of Mr. Coleridge having raised the point before the Court of Queen’s Bench, whether Burke was not a foreigner entitled to the benefit of a mixed jury. Now it is quite certain that, whatever we may do to meet frankly the reasonable wishes of the American government, we shall not consent to any alteration in our laws which will afford a better hope of immunity for Irish Americans who return to this country for the purpose of deluging it with blood. Our first duty is to ourselves. We must make our principles and procedure so distinct as to leave no chance of evasion to those who are really guilty of crimes against the state. Yet, while we are firm upon this point, we may fairly consider what alterations could be conceded in order to facilitate the adoption of a satisfactory general rule.

In this inquiry it must always be assumed that we treat only of what may be done in time of peace, for in time of war; and for a certain brief space preceding it, no [Page 148] abandonment of the national flag for that of the enemy can ever be permitted. But during the existence of peace we may readily enough admit that there is no good reason for insisting on maintaining our bond of authority over those who dona fide desire to renounce it in order to make a foreign land their permanent residence. It can be of no possible advantage to us to assert the doctrine that Americans to the remotest generation are still British subjects, since they never come within the reach of British power, nor ever demand British protection or privileges. It is equally useless even to assert the indelible British character of one who was actually born in Britain, when he has unquestionably renounced his claim to the benefits of that character. Even if war broke out, we should not venture to hang him as a traitor if we captured him in arms against us in the enemy’s ranks. But while all must admit that the British doctrine is in theory far too extensive, and that it might properly be cut down by admitting a bona fide renunciation of citizenship, coupled with actual permanent residence abroad, to divest the emigrant of his British character, these modifications only introduce new difficulties. How are we to measure bona fides in this matter? What is to constitute a permanent abandonment of residence? Evidently we must secure both these points in some way. To neglect the one would allow a colorable abandonment of our country, only the better to wound it. To omit the other would enable people while still remaining in this country to evade the duties and burdens of its inhabitants. But what test shall we adopt to ascertain the existence of conditions so indefinable, and so subject to variety in different cases?

The problem seems difficult, and it is not wonderful that a number of solutions should have been proposed both by the official organs of the states which have discussed it and by private lawyers. Yet, we confess, it seems to us one which a little common sense can sufficiently cope with. What we want to provide against is the case of a person nominally throwing off allegiance in order the more safely to perpetrate a crime. Now, the general law of this and of all countries declares that a foreigner committing a crime within it is punishable as a citizen. It is only in the case of treason that there is a difference, because it is only a citizen that can commit treason. But this is a mere rule of technical law. As such it is one for our own legislature to alter. If we abolish the statement in the indictment that the accused is a subject of the Queen, and owes allegiance to her, we should make the form similar to that of an indictment in every other case; and we should make the foreigner liable in the same way as he is for any other crime. Nor could he complain of being required to conform to the same laws as apply to all around him. We do not invite his presence; we only suffer it. Obviously, we can do so only on condition of his conforming to our laws. He cannot be allowed to murder a private person with impunity. Why should he be allowed to levy war against the Queen with impunity?

Nor would the abolition of this purely technical rule in the least affect the rights of foreigners when they are entitled to be treated as such. On an invasion by the troops of a state whic his at war with us, we should in strictness be entitled to try every man for murder. But we do not, yielding to the international code which declares that slaughter in public war is not murder. So we should in that case admit that the levying of war was not treason. A public war would alter the character of every act, and there is no chance of difficulty in discriminating whether a war is public between states, or only private, levied by individuals. Indeed, in the latter case we should have, as we have before now pointed out, the additional right to proceed against the foreigner as a mere pirate, as a contravener of international law as well as a breaker of municipal law.

As to the period of residence necessary to consummate a change of allegiance, no greater difficulty ought to be found in agreeing upon a general rule. No state would willingly allow full nationality to be acquired, with all its attendant privileges and duties, without a reasonable period of probation. But if that period is fixed upon, it would be of reciprocal effect. On a man who had been denaturalized coming back to the land of his birth, he would have to pass through the like period of residence before he could recover the benefits of citizenship. This in many cases would render him slow to renounce it, for the occurrence in the mean time of a war between the two nations would leave him in the position of an alien enemy, without right to hold property or to sue in our courts.

The practical consequence which these remarks point at would be the conclusion of a treaty by which the subjects of all countries should be allowed, on becoming naturalized citizens of another state in time of peace, to renounce citizenship in the land of their birth. They would then, on revisiting it, be free from its civil obligations; though, on the other hand, they would be liable to the civil disabilities of foreigners. But if, when within its borders, they committed a breach of its laws, they would be liable to trial by the ordinary municipal law in the same way as if they were still subjects of the state. Whatever privileges the municipal laws might accord to all foreigners would be theirs. But no other state would be entitled to demand that any exceptional privileges at all should be accorded to foreigners, since that is solely a matter for the internal regulation of each state by itself. In its application to existing circumstances [Page 149] the effect of the rule would be, that Burke, if a naturalized American, must have declared that he had ceased to be a subject of the United Kingdom. But if he is proved to have levied war against the sovereign of the United Kingdom, he would be liable to be hanged just as if he were still a subject. Besides this, he would be liable to be hanged if he were proved to be a foreigner who was on a fillibustering expedition. He would be entitled to a mixed jury so long as our laws allow that privilege to foreigners. But, on the other hand, he could hardly expect the sympathy or intercession in his behalf of the American government, since he would not only have committed treason and piracy against us, but would have broken the American laws to which he owes allegiance, in levying private war against a friendly state of which he had avowedly and expressly ceased to be a subject.