Mr Briggs' Hat: The True Story of a Victorian Railway Murder by Kate Colquhoun Page A

the energy with which the British Government has disregarded seas and oceans in their pursuit of this man , he began. I am not here to raise any ill feeling against that grand old nation but to judge that Treaty by the acts of the English nation itself .
    Shaffer intended to move for a discharge of the entire hearing on insuperable legal grounds. First, he argued that the extradition treaty of 1842 between Britain and America was an infringement of the American constitution and its amendments, that no person shall be held to answer for a capital or infamous crime, save on the indictment … of a Grand Jury. How was it possible, he asked, that the Commissioner was being asked to surrender a man to be tried for his life when he had not been indicted? Further, in his view, the prisoner had already been convicted in the mind of the British public. There was no chance that he would receive a fair trial in London and to allow his extradition would be to place him where his life and liberty will be imperilled.
    I have, however, another proposition , continued Shaffer, warming to his theme. It is an elementary principle, recognised by the laws of nations, that a state of war suspends the operations of all treaties. You will say there is not war between the United States and England. Not in their sovereign capacity; but there is war, what Grotius terms a ‘mixed unsolemn state of war’ between the subjects of the nation on the one side … and the subjects of the nation on the other side, without any formal declaration of war . Harnessing legal theory and the antagonism between the Northern States and Britain to his cause, Müller’s attorney declared that the extradition treaty of 1842 was nullified. Calling on such elevated authorities as Grotius, the seventeenth-century father of international law, his arguments left the majority of the courtroom impressed by his authority if baffled by his erudition.
    Reminding the court of the events of the past three years, Shaffer cited the routine sinking or pillaging of American vessels and the suspension of trade and commerce between Britain and America. He declared that the southern rebels were furnished with arms and ammunition by the neutral ports of Great Britain and that American subjects whose hands are stained with blood were not returned. Shaffer believed that England claimed neutrality but acted like an aggressor. No state of national neutrality in effect actually exists , and the state of war suspends operation of all treaties. They that would have justice , he declaimed, his voice soaring and his arms widening, must do justice. England must come here with clean hands . In his opinion, the 1842 agreement was a dead letter.
    The packed court burst into enthusiastic applause at Shaffer’s denouncement of the British government. Shaffer turned to the question of the provisions of the treaty. Though undoubtedly death by violence has been proved, there is not sufficient evidence that it amounts to murder , he claimed. Further, the Commissioner must be satisfied beyond all reasonable doubt that not only was the crime that of murder but that Franz Müller was the murderer.
    Reading out Thomas Lee’s deposition, the lawyer endeavoured to show that Müller – short, thin and barefaced – was clearly neither of the two men said by Lee to have shared a compartment with Thomas Briggs on 9 July. Lee’s evidence, Shaffer argued,was crucial, yet he was not present to be cross-examined. In addition, there was no evidence submitted to prove that Müller was not at home on the evening of 9 July. (Here Marbury objected, citing witness statements that Müller had indeed been absent and that he was not seen until Sunday morning. His objection was sustained.)
    Finally, Shaffer alleged that the sum of evidence so far brought forward against his client was circumstantial and allowed for other interpretations. How are we to say he did not buy those goods not knowing them to belong to a murdered man?