Hollingsworth v. Duane

TILGHMAN, Chief Judge, after a few minutes conference on the bench with BAS-SETT and GRIFFITH, Circuit Judges, charged the jury as follows: The single question for you to decide on [358] this issue is, whether the defendant be a citizen of the United States, or an alien. It is your undoubted province to decide on the truth of material facts, alleged on the one side or the other. These facts being settled in your minds, it is the province of the court to direct your judgments on the law, which arises between the parties out of the facts. In this case, the facts necessary to form a legal decision, and which you are to take as the foundation of your verdict, seem ¡to be sufficiently settled. There is, indeed, some doubt upon the evidence, whether Mr. Duane was born in Canada or the province ■ of New York. This question is to be decided by you. If you think from the evidence that he was born in Canada, then the whole foundation upon which his claim to citizenship rests fails; for in 1700, at his birth, Canada was a part of the French territory. Taking the fact, however, to be as stated by the defendant himself, in conversation with the witnesses who have been produced on his behalf, (and we think the probability is on that side,) viz. that he was bom within the British colony of New York, in the year 1760, and removed with his mother to Ireland in 1771, at the age of eleven years, and continued within the British dominions during the revolution, and until 1795, under the circumstances before enumerated by Judge GRIFFITH, and assented to by his counsel — I say, taking his own statement as true, it is the clear opinion of the court, in point of law, that Mr. Duane was not, when he put in this plea, and is not now a citizen of the United States, but an alien. It is not the intention of the court, on a sudden, to enter upon a discussion of supposable cases, wherein the place of birth might confer a right of election on the party, at any indefinite time, to make that circumstance a ground for his claim to citizenship. We confine ourselves to the case before us. We are of opinion that there has been no period until this time, at which he became a citizen of the United States. At his birth, he was a subject of the king of Great Britain, as much so as if he had been born in Great Britain or Ireland. We were all so, at that time. In 1776, at the Declaration of Independence, he was permanently settled in Ireland, receiving his education, or learning his trade. After he came of age, -which much have been in 17S1 or 17S2, we find him settled in business in London, and from thence in 1783 or 1784, going out to the British possessions in India, where he resided until the year 1795, when and whence he came to Pennsylvania. It seems to be the idea of his counsel, that because born in the colony of New York, and removed from the place of his nativity while an infant, he might re-claim his country in her state of independence, after he came of age. Without giving any opinion on this right of election, in such circumstances as the present, it is a sufficient answer to it in this case to say, that he made no such election. He indeed told Hickey in 1782 or 1783, that he had intentions of going to America, and according to Mr. Goodfellow’s relation, Mr. Duane told him, that while he was in the British East Indies, he, on some occasion, made claim to be an American citizen. But no one can, for a moment, view such declarations as these, as amounting to an election of citizenship in the United States in virtue of his birth-right. If such a right did exist, he should, immediately on his coming of age, or as soon after as he could, have taken on him the actual character of a citizen of the United States. Instead of this, he remains from the year 1781, when he came of age, to 1795, within the British dominions; having in all that time done no act, or made any application, nor been recognized by any authority of either nation, as a citizen of the United States. Suppose he had been found in arms against the United States in 1782, after he came of age, must he not have been treated as a British subject? Could he have been hung as a traitor, on the ground of his having been born within the colony of New York, in the year 1760? Certainly not. Upon the whole, we entertain no doubt on this question, in point of law. We do not consider the defendant as ever having entitled himself to those great privileges and rights of citizenship which resulted to the. people of the colonies, in consequence of the Declaration of Independence, the war which ensued, and the final recognition of them as independent states. If Mr. Duane can, merely in consequence of his birth in 1760, in a British colony, after a permanent removal from the year 1771 to 1795, a space of 24 years, and a residence within the British dominions as a British subject, come here and claim to be a citizen of the United States, it would be difficult to say who might not make such claim, or when a limitation would attach. The case of the Honorable Mr. Smith, which has been mentioned as parallel to Mr. Duane’s, bears no resemblance to it. It differs in every circumstance. It would be wasting time to note the circumstances of discrimination. You have, then, gentlemen, the unanimous opinion of the court, delivered in haste, and without that precision of lan-guáge which perhaps might be more impressive, that Mr. Duane, upon his own evidence, is not in law a citizen of the United States, but an alien. If you are of this opinion, upon the facts, you will find a verdict accordingly. On the contrary, it is your right to find him a citizen of the United States, if, upon the law and facts, you are of that opinion. BASSETT and GRIFFITH, Circuit Judges, merely assented to the charge, without delivering any reasons. GRIFFITH, Circuit Judge, observed to Mr. Dallas, counsel for defendant, that as [359] the matter was important to his client, and the point might be thought worthy of more consideration or revision, he would remind him. that if the opinion of the court was thought erroneous, the defendant might take a bill of exceptions, and have the question decided in the supreme court of the United States. Or if his counsel preferred a re-consideration in this court, he should be at liberty to move for a new trial, for the misdirection, if the jury should find against the defendant. The counsel for the defendant seemed to acquiesce in the opinion of the court, declining to take a bill of exceptions. NOTE. After the evidence relative to the alienage of the defendant was rested, some question arose whether, on this plea in abatement, in case the jury found for the plaintiff, it was proper for them to assess the damages against the defendant on the declaration. The counsel not having looked into the practice, agreed generally. that no prejudice should arise from the omission of it. if that should be the course of proceeding. The jury therefore only found a verdict on the point of the plea. The next morning, it was stated by the plaintiff’s counsel, that upon examination, they were satisfied the jury ought to have assessed damages for the libel (Eichom v. Lemaitre, 2 Wils. 367): and the question now was, what ought to be done. Mr. Ingersoll, for the plaintiff, moved, that the court should charge a jury under a law of the state. Province Laws, p. 116, § 27. But the defendant’s counsel superseded this motion by consenting, “that a venire de novo should go on the issue in abatement, and a special jury should be struck; but that on the trial the jury should find for the plaintiff on the issue of alienage, and assess the damages for the libel; on which assessment the defendant should be at liberty to offer in mitigation of the damages, any evidence which might be legally given on the general issue joined.” [Subsequently Mr. Dallas, for the defendant, moved to set aside the verdict in this case because the foreman of the jury which gave the verdict was an alien, of which fact the defendant was ignorant at the time of impaneling the jury. Griffith. Circuit Judge, overruled the motion. Case No. 6,618. See, also. Cases Nos. 6,616. 6.617, 14.996. 14,997, and 16.654. all on questions as to contempt of court during the proceedings in this case.] The jury retired for about two minutes, and returned a verdict, that the defendant was not a citizen of the United States, but an alien and subject of the king of Great Britain, which was entered accordingly.