the court would be that those prisoners be both now arraigned. The reason is that an application will be made on behalf of Nagle, who is an American citizen; of course you can see at once what that application will be. He is anxious that his trial should not be delayed beyond this commission.

The ATTORNEY GENERAL. I do not see how the purposes of justice, as regards Warren, can be affected one way or the other by calling on Nagle to plead now, and I must, therefore, decline to accede to the application.

Mr. HERON. I don't do it for the purpose of pleading. My request is that Nagle may be now arraigned, in order that an application may be made to your lordships with reference to his trial during the present commission.

The ATTORNEY GENERAL. It will be quite time enough to do that when he is called upon to plead.

Mr. HERON. I really cannot see why this should be refused. Nagle would have been arraigned on Saturday, only I informed your lordships that a question would arise on the arraignment. thought they were to be arraigned together.

The ATTORNEY GENERAL. I never said that the two prisoners would be arraigned together. When the present prisoner, Warren, has pleaded, I must be allowed to take my own course as to whom I will arraign next.

The CHIEF BARON. If you have any application to make on the part of any prisoner against whom a bill of indictment has been found, there is nothing to prevent your making it.

[Page of report No. 2.]

Mr. HERON. My application on behalf of Nagle cannot be legally made until he has pleaded, and that is the reason I ask him to be arraigned. If he is arraigned now, he will plead "not guilty" without any delay.

The CHIEF BARON. Do you see any reason, Mr. Attorney General, for not arraigning him now?

The ATTORNEY GENERAL. I see no objection to it, my lord, except that it will delay the proceedings.

The CHIEF BARON. It cannot affect the proceeding against Warren; for, supposing we arraign Nagle now, of course we are not called upon to proceed with his trial.

The ATTORNEY GENERAL. I am aware of that, my lord; but putting forward Nagle now would cause considerable delay to the present trial.

The CHIEF BARON. If questions are likely to arise on the arraignment of Nagle that would involve delay, that would be a good reason for not arraigning him now; but if not, I see no reason why we should not accede to the application.

The ATTORNEY GENERAL. My lord, I respectfully say we are not bound, on behalf of the Crown, to put forward any prisoner except the prisoner with whose trial we, acting for the Crown, think it desirable to proceed.

The CHIEF BARON. I think you are not called upon to proceed with the trial of any prisoner, Mr. Attorney, except the prisoner whom you deem it desirable should be tried.

The ATTORNEY GENERAL. Nor to put forward any prisoner, unless we think it desirable on behalf of the Crown to do so.

The CHIEF BARON. I think there should be no objection to arraigning the other prisoner now.

The ATTORNEY GENERAL. If your lordships rule that you have the right so to direct, of course I must submit; but on behalf of the Crown I respectfully object to your doing so.

us.

The CHIEF BARON. We will proceed with the arraignment of the prisoner now before

Mr. HERON. Then, my lords, on behalf of that prisoner I respectfully ask to see the indictment, in order that I may see the list of witnesses indorsed on the back of it, before he pleads.

The ATTORNEY GENERAL. The prisoner has already got a copy of the indictment. Mr. HERON. But I want to see the original.

The ATTORNEY GENERAL. I submit that all he is entitled to is a copy of the docu

ment.

Mr. HERON. My lords, there is express authority in support of my application. I quote from 3 Cox's Criminal Cases, page 517, which says that "a prisoner indicted for: felony is not entitled to a copy of the names and addresses of the witnesses appearing on the back of the indictment, but he will be allowed to inspect the indictment for the purpose of seeing the names of such witnesses." That has always been the law in England.

The indictment was then handed to Mr. Heron.

Mr. HERON. My lord, we put in a plea in abatement, which will be verified by the prisoner's affidavit.

[Page of report No. 3.]

The usual affidavit in support of the plea was then sworn by the prisoner.
Mr. Heron read the plea in abatement as follows:

"And the said John Warren, in his own proper person, cometh into court here, and having heard the said indictment read, saith that it does not appear by any entry, statement, or indorsement upon the back of the said indictment, or upon any part thereof, that the witnesses whose names are indorsed upon the back of the said indictment by the clerk of the Crown, pursuant to the statute in such case made and provided, were, or that any of the said witnesses were sworn or affirmed by the said Alexander Ferrier, foreman, or any other member of the said grand jury, previous to this on his examination, or at all before the said grand jury, as appears by the record of the said indictment; and the said John Warren further saith that the said Alexander Ferrier, foreman, has not, nor has any other member of the said grand jury, stated and authenticated the same by his signature or initials upon the back of the said indictment or upon any other part thereof, that any of the said witnesses, upon whose testimony the said bill of indictment was found and returned a true bill by the said jurors, was sworn or affirmed previous to such witness or witnesses having been examined, or giving his or their evidence before the said jurors; and the said John Warren further saith that it does not appear by the record of the said indictment, or otherwise, that the said bill of indictment was found and returned a true bill by the said jurors, upon the evidence of any witness or witnesses who were sworn or affirmed by said foreman, or any member of the said grand jury. And this he, the said John Warren, is ready to verify; whereupon he prays judgment, and that the said indictment may be quashed." Mr. HERON. My lords, the point of this plea in abatement is founded on the act 1st and 2d Victoria, cap. 37, sec. 1.

The attorney general demurred as follows:

"And thereupon the Right Hon. Robert R. Warren, attorney general for our said lady the Queen, who now prosecutes here for her Majesty, in this behalf saith that the said plea, above pleaded by the said John Warren, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to prevent the said John Warren from being now compelled to answer the said indictment; and the said Robert R. Warren, for our lady the Queen, prays judgment, and that the said John Warren may be compelled now to answer the said indictment.' Mr. HERON. We join in demurrer for the prisoner. This is our joinder in demurrer: "And thereupon the said John Warren saith that the said plea above pleaded by him, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to prevent the said John Warren from being now compelled to answer the said indictment, and are sufficient in law to preclude our said lady the Queen from prosecuting the said indictment against him, the said John Warren; and the said John Warren is ready to verify and prove the same, as the said court here shall direct and award."

The ATTORNEY GENERAL. I respectfully submit that demurrer must be allowed. The [Page of report No. 4.]

plea which the prisoner has put into the indictment avers that it does not appear upon the back of the indictment that certain witnesses were sworn, and that it does not appear that Mr. Alexander Ferrier, the foreman, or any other member of the grand jury, by his signature or initials upon the back of the bill authenticated the swearing of the witnesses by whom this bill was found. This plea is stated to be founded upon the statute 1st and 2d Victoria, cap. 37, sec 1, by which act of Parliament the former law under which witnesses were sworn in open court was repealed, as was decided in the case of the Queen vs. O'Connell, and in lieu of that mode of swearing witnesses, it provided that the foreman or other member of the grand jury should have the power of administering an oath, and it then proceeds to say: "The foreman or other member of the grand jury who shall have administered such oath shall, upon the back of the bill, state the names of the witnesses, and authenticate the same by his signature or initials." Now the matter of fact which is admitted by our demurrer is that in the present case. the foreman has not authenticated the swearing of the witnesses by his name or signature. We say that is not sufficient ground for a plea in abatement. In the case of the Queen rs. O'Connell and others, a similar plea was put in by one of the prisoners, Thomas Steele. (See 11th Clark and Fennelly's Reports, page 252.) I shall read to your lordships what Chief Justice Tyndal says, in his judgment given to the House of Lords on this question, in that case. He says:

"As to the ninth question, the errors in fact assigned in the writs of error coram nobis by each of the defendants-except Thomas Steele-were the same, viz: That the bill of indictment was found and returned a true bill by the grand jury upon the evidence of divers witnesses, whose names are enumerated, and of no other persons; and that these witnesses, previous to their examination before the grand jury, were not sworn in the court of Queen's Bench, as required by 56 Geo. III, c. 87, now lawfully bound by affirmation or declaration to give true evidence before the said grand jury. In the case of the writ of error coram nobis brought by the defendant, Thomas Steele, the error assigned was this: That the indictment was not found in the manner required by the

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 rs. 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 lingue, 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 lingue 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. Such 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 linguæ-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 mediatate 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 linguæ, 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 wo 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?