Chief Baron Pigott’s refusal of a mixed jury in Warren’s case.

The Chief Baron. My learned brother and I do not entertain the least doubt as to the course we ought to adopt in reference to this proceeding. It is essential to sustain the application; and, assuming the court has the power to grant it, the practice has been invariably to award a jure de medietate, as it is called, wherever an alien claims it. But assuming the authority of the court, upon which I will not now cast the slightest doubt, it is perfectly plain the person who claims a jury de medietate linguœ must be an alien. It is very truly put by the counsel for the prisoner that what the prisoner contends for in the present case is, that by reason of what appears—assuming the statement to be fact—what appears stated in the suggestion, he is an alien, and he is not now under the allegiance of the Queen. I cannot allow that proposition to be put forward without meeting it with a prompt and unhesitating denial. According to the law of England, a law which has been administered without any variation or doubt from the very earliest times, he who once is under the allegiance of the English sovereign remains so forever. It would be really almost pedantry for me to cite authorities on that subject. They are familiar to every lawyer. I shall cite one English authority, and I shall then cite some American authorities of the greatest weight and highest reputation. In the first volume of Blackstone’s Commentaries, pages 269 and 270, the law is thus stated:

“Allegiance, both express and implied, is, however, distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from natural-born subjects. This is a tie which cannot be severed or altered by any change of time, place, or circumstance, nor by anything but the united concurrence of the legislature. An Englishman who removes to France or to China owes the same allegiance to the King of England there as at home, and twenty years hence as well as now. For it is a principle of universal law that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former, for this natural allegiance was intrinsic and primitive, and antecedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed, the natural-born subject of one prince, to whom he owes allegiance, [Page 1373] may be entangled-by subjecting himself absolutely to another, but it is his own act that brings him into these straits and difficulties of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bonds by which he is connected to his natural prince.”

Blackstone then proceeds to show that local allegiance, which by foreigners is due to the monarch, continues so long as the foreigners reside within the kingdom. The maxim of the law on this subject, referred to by Sir Michael Foster, page 184 of his treatise, and referred to by a variety of other authorities, is nemo potest exuere patriam. I said I would only refer to one English authority. I have brought down, with a view to some possible matter which might have arisen, some American authorities; and I don’t think it is unuseful to cite these authorities on the subject now before us. In Story’s “Conflict of Laws,” page 23, section 21, referring to the general maxim or rule that the laws of one State do not bind property or persons in another, he says:

“Upon this rule there is often engrafted an exception of some importance to be rightly understood. It is, that although the laws of a nation have no direct binding force or effect except upon persons within its own territories, yet that every nation has a right to bind its own subjects by its own laws in every other place. In one sense this exception may be admitted to be correct and well-founded in the practice of nations; in another sense it is incorrect, or at least it requires qualification. Every nation has hitherto assumed it as clear that it possesses the right to regulate and govern its own native-born subjects everywhere, and consequently that its laws extend to and bind such subjects at all times and in all places. This is commonly adduced as a consequence of what is called natural allegiance; that is, of allegiance to the government of the territory of a man’s birth. Thus, Mr. Blackstone says, natural allegiance is such as is due from all men born within the King’s dominions immediately upon their birth.”

He then proceeds to quote the passage from Blackstone which I have cited. In ‘Chancellor Kent’s Commentaries, in the second volume, page 42, the following is laid down as English law. He is expounding the American law; and, expounding the American law, founded as it is on the law of England, he says—

“It is the doctrine of the English law, that natural-born subjects owe an allegiance which is intrinsic and perpetual, and which cannot be divested by any act of their own.”

He then cites an English authority in the case of McDonnell, who was tried for high treason in 1746, by Lord Chief Justice Lee, and who, he says:

“Though born in England, had been educated in France, and spent his riper years there. His counsel spoke of the doctrine of natural allegiance as slavish and repugnant to the principles of their revolution. The court, however, said that it had never been doubted that a subject born, taking a commission from a foreign prince and committing high treason, was liable to be punished, as a subject, for that treason. They held that it was not in the power of any private subject to shake off his allegiance and transfer it to a foreign prince; nor was it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the Crown. Entering into foreign service without the consent of the sovereign, or refusing to leave such service when required by proclamation, is held to be a misdemeanor at common law.”

Chancellor Kent then deals with the question, how far the English law prevails in America. He says:

“It has been a question [here he leaves the English law and proceeds to expound the other] frequently and gravely argued, both by theoretical writers and in frequent discussions, whether the English doctrine of perpetual allegiance applies in its full extent to this country.”

That is, whether in America that doctrine is recognized. Its recognition there or repudiation could not in the slightest degree affect this country or its tribunals. Chancellor Kent then proceeds with an elaborate review of the authorities, and he closes thus, stating his view of the American law:

“From this historical review of the principal discussions in the Federal courts on this interesting subject of American jurisprudence, the better opinion would seem to be that a citizen cannot renounce his allegiance to the United States without the permission of Government, to be declared bylaw; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered.”

I have thought it right to cite these two great American authorities—Mr. Justice Story in his book on the Conflict of Laws, that is, on the laws of nations as they relate to each other, and Chancellor Kent expounding the law of America, and expounding it in the first instance by an exposition of the law of England, which is its foundation. We in our courts have been in the habit of treating, not merely with respect, but with reverence, these two great lights of the laws of America. We have cited them in our courts of justice; they have been quoted in our forensic discussions. The principles laid down by them in interpreting in America the laws of England as they are adopted there, have been approved and adopted by some of the ablest judges [Page 1374] that have sat on the British bench. Mr. Justice Story was himself a great judge. So was Chancellor Kent; and some of the finest contributions that have ever been made to the science of jurisprudence, or to the law of England as a science, have been made by these two great men from whose works I have read these passages. I have thought it not unuseful, since I had the opportunity of doing so, of stating that this was the law as laid down by the great authorities in America, because I think it is desirable that they who in America formed views—I will say no more now than that—with respect to what is passing, or what is expected to pass, within the dominions of the Crown of England, should be aware of the obligations imposed on them if they have ever been under the allegiance of the Crown of England; and how, according to the laws of England, they may be dealt with when they are found here. For these reasons we are of opinion that the objection made by the attorney-general is well founded, and that we ought not to comply with this application, and that the prisoner is not entitled to a jury de medietate linguœ.