statute 1 and 2 Victoria, c. 37, inasmuch as that, in stating on the back of the said bill of indictment the names of the witnesses who had been sworn, &c., neither the foreman nor any other member of the grand jury did authenticate by his signature or initials, as is required by the statute, that the said witnesses, or any of them, had been sworn, or made affirmation or declaration; nor that no other witnesses, save those named in the assignment of errors, were so sworn, or affirmed, or examined before them. My lords, with respect to the assignment of errors in fact, grounded on the non-compliance with the statute 56 Geo. III, the answer appears to me to be, that the subsequent statute 1 and 2 Victoria, c 37, operates as a virtual repeal of the former as well in the court of Queen's Bench as in other courts of criminal jurisdiction in Ireland, &c."

Now, my lords, in this plea in abatement it is not alleged that in point of fact the witnesses were not sworn; the only fact put in issue by this plea is the fact of the nonauthentication by the foreman or other member of the grand jury of the swearing of the [Page of report No. 5.]

witnesses; and that is the very point which has been solemnly decided in the case of the Queen vs. O'Connell to be insufficient ground for a plea in abatement. I submit, therefore, that this plea is bad, and that the demurrer must be allowed.

Mr. HERON. I have only to say, my lords, that the act of Parliament which has been read by me, and referred to by the attorney general, appears express upon the subject. Formerly the witnesses were sworn in open court. It now must appear in some way that the witnesses were sworn before the grand jury, and that the grand jury found the bill of indictment upon sworn testimony, and I say that on the face of the record here that does not appear. Therefore, following the conciseness of the attorney general, I say the demurrer ought to be overruled.

Mr. Dowse. I desire to add one word to what has been said by my learned friend. We have but this matter upon the record of the proceedings, and that will answer our purpose. I do not intend at present to address any observations to your lordships in support of our plea further than to say that I think this case is distinguishable from the case cited by the attorney general, and in particular, that the plea put in this case was not the same as in the case of the Queen vs. O'Connell.

The CHIEF BARON. The case of the Queen vs. O'Connell appears to us to be a direct authority upon the question; we shall, therefore, allow the demurrer.

Mr. HERON. AS I did not state fully my reasons, would your lordships permit me to renew my application on behalf of the prisoner Nagle? I may tell the attorney general that the prisoner is an Ameriaan citizen, born in the United States, and it is his intention to apply for a venire de mediatate linguæ. The proper way to do so, is when the prisoner is called upon to plead; on pleading "not guilty" he applies for the venire de mediatate linguæ, which the court then awards or not, as it sees fit. Mr. Dowse and I are only concerned for those two prisoners-Warren and Nagle. I put this partly on a ground personal to ourselves, for if the case be tried during term we shall be put to very serious inconvenience. I therefore humbly apply to your lordships, and would also respectfully appeal to the attorney general, that this preliminary may be disposed of. If your lordships see fit to grant the venire, of course it will take some time before the sheriff can execute it, and thus the case might run into the term, and by having the prisoner arraigned now the venire might be issued at once-a matter which I think would be more convenient to the court and to the Crown counsel, and certainly would be a great convenience to the counsel for the prisoners.

The ATTORNEY GENERAL. I am under the impression the proper time to apply for the venire de mediatate linguæ is when the jury is called to try the prisoner, not when he pleads.

Mr. HERON. NO. The proper time is when the prisoner has pleaded. I may refer the attorney general to the case-I am sure he knows it, but I may recall it to his recollection of the Queen vs. Maria Manning, reported in 1st Denison's Crown Cases. I am [Page of report No. 6.]

also prepared with other authorities, which establish the point that the proper time is when the prisoner pleads not guilty.

Mr. Justice KEOGH. There was no jury de mediatate linguæ in the case of Mrs. Manning. Mr. HERON. No, my lord; it was decided in that case that the prisoner was not entitled to a mixed jury, because she was the wife of an Englishman; but it was decided that the proper time to make the application was when the prisoner pleads.

Mr. Justice KEOGH. That was the course adopted in the case of the Queen vs. McCafferty, tried in Cork.

Mr. HERON. Yes. In fact, the prisoner lapses his time if on pleading he does not inform the court that he is an alien and ask for a mixed jury.

The ATTORNEY GENERAL. He lapses his time if he allows the jury to be called without making the application.

Mr. HERON. No; he lapses his time if he does not make it when he pleads.

Mr. Justice KEOGH. In McCafferty's case the application for the venire was after the prisoner pleaded, but there was no application that the prisoner should be arraigned. Mr. HERON. I am doing it on the ground of convenience.

The ATTORNEY GENERAL. I will endeavor to accommodate my learned friends as far as I can, and as soon as this case of Warren's is over I will have Nagle next arraigned. Mr. HERON. Very well, that will do.

The CHIEF BARON. Proceed now to arraign the prisoner.

The CLERK OF THE CROWN. John Warren, you stand indicted that you, on the 1st day of March, 1867, and on divers other days as well before as after that day, feloniously and wickedly did compass and intend to deprive and depose our lady, the Queen, from the style, honor, and royal name of the imperial Crown of the United Kingdom of Great Britain and Ireland, and the said felonious compassing and intention feloniously and wickedly did express, utter, and declare by divers overt acts and deeds charged and stated in the indictment. And in a second count you are indicted that you feloniously and wickedly did compass and intend to levy war against the Queen within that part of the United Kingdom called Ireland, in order by force and constraint to compel her to change her measures and counsels, and the said felonious compassing and intention feloniously and wickedly did express, utter, and declare by divers overt acts and deeds the same as in the first count mentioned. Are you guilty or not?

PRISONER. Not guilty.

Mr. HERON. May it please your lordships, on behalf of the prisoner we beg to hand in the following suggestion:

"And thereupon the said John Warren says, that he is a citizen of the United States of America, under the allegiance of the United States of America, and has been such citizen of the said United States of America from the first day of October, in the year of our Lord one thousand eight hundred and sixty-six, and still is a citizen of the said United States of America; and he says by reason of the premises he is an alien; and [Page of report No. 7.]

he prays the writ of our said lady the Queen to cause to come here twelve good and lawful men of said county, by whom the truth of the matter may be better known, and who are of no affinity to the said John Warren, to recognize upon their oaths, and inquire whether the said John Warren be guilty of the felonies in the said indictment above specified, or either or any of them, or not guilty, and so forth, whereof one-half to be natives, and the other half to be of aliens; to wit, born in the said United States of America, under the allegiance of the said United States of America, to try the issue of said plea."

The ATTORNEY GENERAL. I respectfully submit, my lords, that this suggestion ought

not to be received.

Mr. HERON. Why not?

The ATTORNEY GENERAL. It is not a suggestion that the prisoner is an alien.

Mr. HERON. But why not receive a suggestion which I, on behalf of the prisoner, tender to the court?

The ATTORNEY GENERAL. It does not follow that every document a prisoner chooses to put in is to be placed on the record. There is no authority for receiving such a suggestion.

Mr. HERON. If the suggestion be an illegal one there is a course open to the attorney general, and he can so deal with it. If it be untrue in point of fact, there is also a course open to him. To every document of the kind put in on behalf of the prisoner the Crown have only one of two courses to adopt, either to demur or take issue in fact; but I entirely dissent from the novel doctrine-never listened to except in this courtthat a pleading handed in by counsel on behalf of a prisoner is not to be received. Sech a thing was never done in England in the whole course of the state trials.

The CHIEF BARON. I understand this question arose also in the course of the proceedings in Cork.

The ATTORNEY GENERAL. In that case, the Queen vs. M'Cafferty, it was admitted by the Crown that the prisoner was an alien; but where the fact is not admitted by the Crown, there must be some evidence given before the suggestion can be received. I submit that this suggestion cannot be received till the prisoner gives some prima facie evidence of the allegation on which the suggestion is based.

Mr. Justice KEOGH. Mr. Heron, do you ask us to receive the suggestion without giving us any evidence that the prisoner is an alien?

Mr. HERON. No, my lord; I ask you to receive the suggestion, and let the Crown either take issue or demur to it. If they take issue, then will be the time to give evidence.

The CHIEF BARON. The ground on which you call upon us to receive the suggestion is contained in the 37th section of the jury act.

Mr. HERON. I don't found my application on the 37th section, my lord.

The CHIEF BARON. On what other ground do you make it?

Mr. HERON. At present my application is that this suggestion be received. I found

[Page of report No. 8.]

that application on the ordinary rules of courts of justice, never departed from in England, that any pleading handed in by counsel on behalf of a prisoner is received and dealt with according to law.

The CHIEF BARON. But we have first to determine is this a pleading.

Mr. HERON. It is a suggestion.

The CHIEF BARON. Is it a pleading?

Mr. HERON. It is, in this way: supposing it were untrue, the only way to deal with It would be to take issue upon it and then go into evidence, after which the court could decide upon the matter. In the case to which Mr. Justice Keogh has just referredthe Queen vs. McCafferty-no formal suggestion was handed in; the prisoner stated he was an alien, and the court thereupon directed the venire to issue. But the proper and regular course, as appears by the case of the Queen vs. Manning, is this: that a suggestion is put in by the prisoner, and the Crown deals with that suggestion. In the case of Manning it was refused, which is the strongest point in my favor, for the course adopted was not that of refusing to receive the suggestion; the suggestion was received and made part of the record. The attorney general took issue upon it, and it was decided by the fifteen judges afterwards that the prisoner had no right to the venire, because she was the wife of a British subject. But it was never contended by the attorney general that the suggestion which the prisoner handed in ought not to be received.

The CHIEF BARON. If the suggestion states what is entirely impertinent matter the court ought not to receive it. The purpose of this suggestion is, to claim a venire de mediatate lingua-in other words, to claim a jury composed half of aliens. In order to show that that application is one that ought to be entertained, it is necessary to show that the prisoner is an alien, and there is no allegation in this document that he is an alien. If he is not an alien, he is not entitled in point of law to the privilege he seeks; and if that is not stated to us in a document which is presented to us for the purpose of inducing us to determine that he is entitled to that privilege, I question whether we can deal with it as a document properly receivable by the court.

Mr. HERON. My lord, I propose to try legally, in the only way I can upon the record, whether a citizen of the United States of America is not entitled to a jury de media ate linguæ here in Ireland. The only way I can do that, in my humble judgment, is by placing that suggestion upon the record, in order that in case this court refuses the application there may be a power on behalf of the prisoner to appeal from this court to a superior tribunal. That cannot be done if the court decline to receive the document, which is not an offensive document; which is prepared properly according to the rules of the court; which may state what is contrary to law or what is according to law, but which, at all events, is, in point of form, a proper document properly prepared. My lord, according to the ancient practice, as appears by the reports of the state trials, no such question as this of not receiving such a document could arise, for the old practice was to file it in the office, and an office copy was furnished to the parties and

Page of report No. 9.]

brought into court for the trial, and there is no instance of any application having ever been made to have such a document taken off the files of the court, unless it contained some improper or offensive matter. I, on behalf of my client, claim the privilege to have the case tried by a jury de mediatate lingua, and for that purpose I ask to have that document received, and I ask the attorney general to cite any case in the whole course of the state trials in England, even in the worst times, where a document handed in by prisoner's counsel was not received.

Mr. Dowse. My lords, I shall shortly state the view which we, on behalf of the prisoner, take of this suggestion which we have handed in. We respectfully say that we have stated on the face of that suggestion that the prisoner is an alien. We are willing now, for the purpose of argument, to concede that he is not entitled to the jury de mediatate linguæ unless he is an alien. What that jury de mediatate linguæ may be will be afterwards matter for consideration if the venire is granted. We admit that the prisoner is not entitled to it unless he is an alien. We say he is an alien, and that we have so stated upon this suggestion, although we have not used the word "alien” in the document. We want to raise this point: that a citizen of the United States of America cannot be a subject of the Queen of Great Britain. If the Crown now put in another suggestion, stating additional facts, we are ready to deal with it. We say the prisoner is a citizen of the United States, owing allegiance to the United States, and we say that this is in substance the same thing as stating that he is an alien, only in more extended terms. We say he is a subject of the United States of America, and that in law that means an alien. This matter is not brought before the court for the purpose of making mere technical points and afterwards abandoning them. We wish to have the question solemnly argued and adjudicated upon, and with that object we now apply to your lordships to receive the suggestion. The Crown can then deal with it as they deem right. They may take issue on it; they may demur to it, or they may plead matter which may require a demurrer from us. Our present application is to your lordships to receive the suggestion and place it on the files of the court, so that the question which we seek to raise by it may be decided one way or the other.

The CHIEF BARON. What you mean to contend is, that being a citizen of the United States makes him an alien?

Mr. DowSE. Yes; that a man cannot be the subject of a republic and a monarchy at the same time.

The CHIEF BARON. If that be the object of the suggestion, I fail to see any objection to that being stated on the face of the document. There is nothing to prevent your stating on the face of the document that he is an alien by reason of being a citizen of the United States of America.

Mr. Dowse. Very well, my lord, we will do that.

The suggestion was then handed to counsel, who altered it as pointed out by his lordship.

[Page of report No. 10.]

Mr. HERON. I will now read for your lordship the passage as altered:

"And thereupon the said John Warren says that he is a citizen of the United States of America, under the allegiance of the United States of America, and has been a citizen of the said United States of America from the 1st day of October, 1866, and that he still is a citizen of the United States of America, and he says by reason of the premises that he is an alien."

The ATTORNEY GENERAL. I think the document as it now stands is even more objectionable than before. I apprehend, notwithstanding my learned friend's reference to the state trials, that he will find no case in which a suggestion was received by the court unless, in the first place, there was proof of the matters of fact stated in the suggestion; and, in the second place, the court must be satisfied that it is a material suggestion. I admit that the suggestion would be material if it averred, as a matter of fact, that the prisoner was an alien; but it contains no such averment as a matter of fact. There is, instead of that, an argumentative averment, which, if we were dealing with it in another court, might be the subject of a demurrer, namely, that by being a citizen of the United States he is, in point of law, an alien. In every case that I have read, in which a prisoner applied for a jury de mediatate linguæ, it was on the averment that he was born out of the jurisdiction. Here there is no such averment. The CHIEF BARON. A man may be born out of the jurisdiction and still not be an alien. The ATTORNEY GENERAL. Quite so, my lord; but being born out of the jurisdiction is a necessary element to constitute a man an alien.

The CHIEF BARON. Mr. Heron, have you any authority as to the form of raising a question of this kind on the record?

Mr. HERON. No, my lord; I can only point to the invariable practice of the courts in England to receive any pleadings which the prisoner's counsel hands in.

Mr. Justice KEOGH. What is the practice as regards the granting of juries de mediatate lingua? There surely must be some settled practice on the point. Is there any instance in which a jury de mediatate linguæ has been granted except on the suggestion that the prisoner was an alien?

The ATTORNEY GENERAL. No, my lord.

Mr. Justice KEOGH. Is there any instance of a suggestion being entered argumentatively averring that a prisoner was an alien?

The ATTORNEY GENERAL. None, my lord.

Mr. Dowse. It is very easy to say "none," but how do you know that there is no such

Case?

The SOLICITOR GENERAL. I have never met with such a case. In every case I have seen, and in the form given in all the books, the statement is, "that the prisoner is an alien born, that is to say, that he was born in the county of of an alien father and an alien mother." I respectfully contend that this suggestion is illegal.

[Page of report No. 11.]

Mr. HERON. I decline to argue the legality of the suggestion till I know whether it is on the record or not.

The CHIEF BARON. With respect to the matter of fact alleged in the suggestion, what do you say, Mr. Attorney? Supposing we were disposed to receive the suggestion, if we considered the facts alleged in it bona fide?

The ATTORNEY GENERAL. We don't know how the fact is at all, my lord. Of course the prisoner is bound to give evidence as to the truth of the allegations contained in the suggestion.

Mr. HERON. I cannot go into evidence till I know whether the document is received or not.

The CHIEF BARON. This is matter to be determined by precedent, and we must follow what has been done in courts of justice before on similar occasions. We cannot award a tenire de mediatate linguæ upon the mere allegation in a document that the prisoner is an alien. We cannot treat the statement as made bona fide, unless there be some evidence of his being an alien, or at least a statement showing distinctly how he is an alien, to which statement evidence may be applied. If the claim be made in the form of a izgestion, we must be careful that it be so framed that, if it be met by a demurrer, there shall be no doubt as to what is to be treated as admitted on the record. It must be so worded as to be free from ambiguity. I would therefore suggest that you should

add at the end of the sentence, "and he says by reason of the premises that he is an alien," the words, "and not otherwise."

Mr. HERON. Very well, my lord; I will do so.

The CHIEF BARON. If those words were not added, the prisoner might, if there was an appeal on demurrer, fall back on the suggestion of alienage.

Mr. HERON. I have now altered the document in the way your lordship suggests: "And he says that by reason of the premises, and not otherwise, that he is an alien." Mr. Justice KEOGH. Does that make it unequivocal?

Mr. HERON. I think so, my lord.

The ATTORNEY GENERAL. I think it ought to state where he was born. Will you admit that the prisoner was born in this country, and afterwards became a citizen of the United States of America?

Mr. HERON. Wait till we hear what is to be done with the suggestion. Is the document to be received or not?

The CHIEF BARON. It is absolutely necessary that the facts shall be stated clearly on this document, otherwise we must decline to receive it. If, for instance, it should appear on the evidence that the prisoner was born in this country, or that he was born in America of persons who were British subjects, we might require before receiving this suggestion to have the facts set forth exactly on the face of the document. You cannot evade, or rather you cannot avoid (I will not say evade) the real question. If you desire to have this question entered on the record, you cannot avoid presenting it in such a manner as to raise the question in the mode most fair to the Crown and consistent with the facts in the case.

[Page of report No. 12.]

Mr. HERON. My lord, everything alleged in court is to be proved, and ultimately found by the court secundum allegata et probata. If anything has been suggested contrary to law, there is an easy remedy for that; if anything contrary to fact, there is an easy remedy for that, too. I have alleged my facts upon the face of the document, but till I know the issue which I have to prove I must decline to go into evidence.

The CHIEF BARON. We cannot receive this document without evidence, acting on the authority of the Queen vs. McCafferty.

Mr. HERON. There was no suggestion entered in the case of the Queen vs. McCafferty. The ATTORNEY GENERAL. Pardon me. I have the report of the case here, and it distinctly states that a suggestion was entered, evidence having previously been given on the question of alienage.

The CHIEF BARON. We ought to be satisfied by evidence that the suggestion is bona fide, and founded on fact, before we proceed.

Mr. Dowse. Before we go into that, I understood your lordship to make a suggestion on another point, as to whether this document requires any further amendment. Mr. Justice KEOGH. Yes.

Mr. Dowse. I submit it does not, and that it is perfectly unequivocal. Your lordships will please bear in mind what the document states:

"And thereupon the said John Warren says that he is a citizen of the United States of America, under the allegiance of the United States of America, and has been a citizen of the said United States of America from the first day of October, 1866, and still is a citizen of the United States of America, and he says that by reason of the premises, and not otherwise, he is an alien."

I think, my lord, that is perfectly unequivocal.

Mr. Justice KEOGH. You want to raise the question that a British subject can adopt the American allegiance?

it.

Mr. Dowse. That is not the question exactly, my lord, though it may be involved in

Mr. Justice KEOGH. Surely that is the real question you wish to bring before the court: if not, that document is equivocal.

Mr. Dowse. It is not equivocal. The statute gives to aliens the privilege of having a jury de mediatate linguæ. I admit that we are in the habit of understanding by the word "alien" a person born out of the jurisdiction. We wish to say that the prisoner is an alien by virtue of being a citizen of the United States.

The CHIEF BARON. Have you any objection to state on the suggestion that the prisoner was born within the Queen's dominions? We must take care that there shall be nothing in the frame of the document that shall avoid that question.

Mr. Dowse. Perhaps it would not be right to ask your lordship the question, but as we are in the way of amendment, I wish to know would the suggestion be received when that statement has been added to it?

The CHIEF BARON. We cannot give an anticipatory judgment.

Mr. Dowse. No, my lord, but you might throw out some encouragement.

[Page of report No. 13.]

The CHIEF BARON. Well, if that alteration is made, it appears to me that the document would then raise the real question. Of course I don't know what the attorney general may have to say on the subject.