Mr. Adams to Mr. Seward,
No. 1476]
Legation of the United States,
London,
November 5, 1867.
Sir: I have the honor to transmit copies of the
London Times* containing a report of
the trial of the persons charged with the murder of a police officer in
the prosecution of an attempt to rescue two prisoners at Manchester. In
the course of the remarks made by two of these men, I perceive that they
declare themselves American citizens, and complain that no attempt was
made by me to interfere in their behalf.
Of one of these parties, Shore, or Shaw, I have never heard anything
before, either directly or indirectly. So far as I know, he never made a
sign to me of any kind.
With regard to the other man, Gould, he proves to be Michael O’Brien, the
person who was arrested and tried at Liverpool for being accessory to
the possession of some government rifles traced into the hands of the
Fenian Irish in that place. As the evidence upon his examination seemed
to me quite insufficient to justify the charge, I authorized Mr. Dudley
to employ some one to protect him, and guard against the risk of
political prejudice prevailing against him on account of a suspected
connection with the Fenian agitation. The trial, however, was very
fairly conducted, and the evidence not proving sufficient, as I
supposed, he was acquitted and released. It was, however, quite strong
enough to throw a doubt over his purposes, and to justify Mr. Dudley,
the consul, who saw him, in giving him a friendly caution to avoid all
further risks by returning at once to America.
In the present instance Mr. O’Brien wrote to me again soliciting
assistance. But the circumstances seemed so entirely changed, the
charges brought of so purely a criminal nature, and sustained by such
strong evidence, that it did not seem to me to be a proper case to
attempt to interfere with the usual course of law. It admits of little
doubt that he was one of the chief parties engaged in the rescue by
violence, and as such liable to suffer the penalty of the law. I presume
at least three of the five persons convicted will be executed.
I learn from Mr. West that the trial of Colonel Nagle will be transferred
to Sligo and postponed to the spring. This is alleged to be on the
ground that the evidence to fix. upon him, as an alien, an overt act,
must clearly prove this act to have been committed within the British
jurisdiction. Thus a clear distinction appears to be made between him as
a native of the United States, and Warren, who is a naturalized citizen.
In this connection much stress is laid on the doctrine of our courts,
and works of high legal authority, upon the indefeasibility of
allegiance. It is much to be regretted that on this point there should
always have been some conflict between the established policy of the
executive department and the ruling of the federal judiciary.
There is a leader on the subject in the London Times of to-day, which I
send herewith.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
[Untitled]
From the London
Times, November 5,
1867
There is one incident of the Fenian trials at Manchester and Dublin
which deserves special consideration. It is the fact that several of
the prisoners claimed the privileges of American citizenship and the
interference of Mr. Adams as the representative of their adopted
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government. After the
verdict had been returned against him, and before sentence had been
pronounced, Gould stated that he was a citizen of the United States
of America, and if Charles Francis Adams had done his duty towards
him, as he was paid for doing, he would not be in that dock
answering questions. Shore declared that, “as an American citizen,
he had of course expected to receive the protection of the
ambassador of his own government.” Warren, on being indicted before
the commission court at Dublin, applied through his counsel for a
jury composed in part of American citizens, on the ground that his
allegiance had been transferred to the United States. The lord chief
baron rejected the application promptly and decisively, “the law of
England being clear, and administered without variation from the
earliest times—that the man who was once a British subject, as the
prisoner admitted that he was, remained so forever.” Warren
thereupon protested against being arraigned, tried, or judged by any
British subject, instructed his counsel to withdraw from the case,
and added: “I now place it in the hands of the United States; which
has now become the principal.” Though cautioned by the court, he
adhered to this resolution, and a gentleman presently appeared to
watch the proceedings on behalf of the United States consul. The
chief baron very properly declined to allow so irregular a course,
but treated the prisoner with great consideration, and took care
that his cause should not suffer for want of professional advocacy.
He was convicted, however; and one of our Irish contemporaries, in
commenting upon the case, has thought fit to impugn the decision of
the lord chief baron on the legal question, whether he was entitled
to “ignore the jurisdiction of the court,” or to claim a jury de medietate, as a foreigner. Upon the spirit
and intent of the article headed “Only an American citizen,” in
which this point is urged, we forbear to make any remark, but the
point itself is one of real importance, and calculated to mislead
unlearned persons, unless placed in its true light. The writer
maintains that, if the chief baron’s ruling be sustained, George
Washington, Franklin, and all the other early heroes of independe
ace, remained to the last days of their lives subjects of Great
Britain”—“impenitent rebels”— “at any time liable to be hung by the
neck, if caught, and not entitled to the rights of prisoners of
war.” “The question is,” as he states it, “whether an American
citizen has any right to the privilege accorded by law to every
other alien,” and, in particular, to that of being tried by a jury
half composed of aliens; and upon this question, as he represents,
“the two countries are now face to face.” We have yet to learn the
authority for this last assertion, if it be meant that any claim of
this kind has been preferred or sanctioned by the government of the
United States. Its validity, however, does not depend on whether it
has been pressed or not, and admits of being determined on
principles which are well ascertained.
Very few propositions of international law are better established or
more familiar than the axiom, that a natural-born subject cannot
transfer his allegiance from one sovereign to another at pleasure.
How far he may be enabled to do so by the laws of his native or of
his adopted country cannot be laid down with equal precision,
inasmuch as there is no definite and comprehensive maxim on the
subject universally adopted by the municipal legislation of all
civilized countries. But no doubt whatever exists as to the doctrine
of our own law, which is here identical with that of the United
States. In the words of Lord Stowell, a person born in England, but
naturalized in a foreign state, “is subject to all the obligations
imposed on him by his nativity. He cannot shake off his allegiance
to his native country or divest himself altogether of his British
character by a voluntary transfer of himself to another country,”
even for the purpose of trading in contraband goods with an enemy of
Great Britain. In the words of Chancellor Kent, “from an historical
review of the principal decisions in the federal courts, 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 by law, and that, as there is no existing
regulation on the case, the rule of the English common law remains
unaltered.” General Halleck, one of the highest and latest American
authorities on international law, fully embraces the consequences of
this rule, and, as he observes, even those writers who are in favor
of limiting it, allow that “the renunciation of nationality does not
release him who avails himself of it from any of the obligations
which he owes either to his country or to his countrymen, nor can it
ever be appealed to as a mask to cover crime.” Mr. Webster, in one
instance, went still further, and granted that France, which, like
England and the United States, does not permit her citizens to
renounce their allegiance, might lawfully claim the services of a
Frenchman naturalized in America, “when found within French
jurisdiction.” The resistance of the United States to the
impressment of naturalized seamen by Great Britain in the early part
of this century is in no degree inconsistent with this position,
since it was founded not on a denial of our right to claim their
services, but on a denial of our right to enforce that claim by
search. Indeed, whatever differences may be found in the codes of
different nations with respect to the power of citi zens to shake
off the duties with the privileges of allegiance, we believe the
annals of criminal justice may be searched in vain for a precedent
in favor of the right asserted by our contemporary—that is, the
right of a natural-born subject, indicted for treason or murder in
this country, to plead naturalization in America, and to be tried,
if at all, as an alien. It was assuredly not for the benefit of
persons thus circumstanced that Edward I allowed foreign merchants,
presumed to be ignorant of our language, the doubtful advantage of a
mixed jury, coupled, as history tells us, with the hardship of a
mutual liability for each other’s
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crimes. It is, perhaps, scarcely worth while
to consider how a court of law would have dealt with Franklin or
Washington, had they been indicted as “impenitent rebels” after the
war of independence. Suffice it to say that, for obvious reasons,
affirmed and explained in a memorable judgment on this very subject,
all ties of natural allegiance are severed by a treaty of peace
wherein the Crown expressly relinquishes its authority over a
seceding colony.
The moral aspect of the claims so presumptuously advanced is too
clear to admit of a moment’s doubt. If there be one class of Fenian
conspirators rather than another which deserves no mercy at the
hands of the government, it is a class of American filibusters who
have long infested Dublin, and are beginning to infest our own great
cities. It is possible to feel some compassion for the silly Irish
youths who are first seduced into playing at sedition, and then led
on by appeals to their pride and their fears into overt acts of
treason. It is even possible to feel compassion for an educated
Irishman who becomes a Fenian with his eyes open, taking his life in
his hand, under the influence of a patriotic hallucination. For the
restless adventurers whom the close of the American war has let
loose upon the world, and who fancy they can here perpetrate with
impunity deeds for which they would be hanged at home, with or
without law, we can feel no compassion at all, on whichever side of
the Atlantic they may have been born. There were peculiar reasons
which justified the government in sparing more than one of them on a
former occasion, but those reasons exist no longer. We must deal
with them as the government whose protection they invoke would deal
with ruffians guilty of like outrages in the streets of New York.
They have already had fair warning, and they may be assured that if
they should fall into the hands of justice no American minister will
intercede for them, and no English minister will venture to reprieve
them.
