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

JPage 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 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 venire 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 suggestion, 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?

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

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.

The suggestion was further amended by the counsel for the prisoner.

Mr. HERON. Now, my lords, I have made the further alteration, as required by your lordships. The document now stands thus:

"And thereupon the said John Warren says that he was born in Cork, in Ireland, and that he is a citizen of the United States of America, under the allegiance of the United States of America, and that he has been a citizen of the said United States of America from the 1st of October, 1866, and that he still is a citizen of the said United States of America; and he says that by reason of the premises, and not otherwise, he is an alien."

The ATTORNEY GENERAL. Still the document is equivocal, for he might have been born of American parents in Cork.

Mr. Dowse. Sure no American would come over here to have a child born in Cork. Mr. HERON. I shall now read to your lordships the letters of naturalization which the prisoner holds from the commonwealth of Massachusetts.

The ATTORNEY GENERAL. Is that document verified in any way?

Mr. HERON. It has on it a seal, which at all events will be recognized; it is a document under the seal of the United States of America.

The CHIEF BARON. Let us first decide whether we shall now receive the suggestion.
Mr. Attorney General, do you see any objection to our receiving it in the shape in which
it now stands? Of course I do not ask you to give any consent to our receiving it.
The ATTORNEY GENERAL. No, my lord; of course not.

The CHIEF BARON. Do you apprehend that in the statement that he was born in Cork there is anything equivocal?

The ATTORNEY GENERAL. Yes, my lord; because that is followed by an averment that he is a citizen of the United States, and under the allegiance of the United States. A man born in Cork of American parents, who went back afterwards to America, would be unquestionably an alien.

The CHIEF BARON. Is it alleged that the prisoner was born of British subjects? The ATTORNEY GENERAL. No, my lord; the document merely says he was born in Cork, and that he was an American citizen from the 1st October, 1866.

Mr. HERON. Well, my lords, I now tender this suggestion, and produce the letters of naturalization granted to the prisoners from the commonwealth of Massachusetts. The ATTORNEY GENERAL. I object to the suggestion being received until it is further amended. [Page of report No. 14.]

Mr. HERON. I decline to amend the document any more. Your lordships may now pronounce judgment upon the matter.

The ATTORNEY GENERAL. I ask your lordships not to receive this document in its present shape, being ambiguous and immaterial.

Mr. Justice KEOGH. I think, Mr. Heron, you may very fairly meet the suggestion of the court. To raise the material question, you very properly inserted in the suggestion the statement that the prisoner was born in Cork. I take it that a person born in Cork, if born of American parents, would be an American citizen just as much as a child born in America of British parents would remain a British subject, though born, suppose, in New York. There can be no doubt about that. Then why should you hesitate to carry out your own view, and add the statement, "Born in Cork, and of British parents"? Mr. HERON. Very well, my lord; I will do that. I will add the statement, "Born in Cork, of Irish parents."

The SOLICITOR GENERAL. Before Mr. Heron makes what I suppose is his final amendment, I would ask your lordships' attention to one other point. Allegiance is always an important element in this question-the allegiance under which a person was born. The facts always resolve themselves into the question: Under what allegiance was the prisoner born? I think that point ought to be stated in the suggestion.

The CHIEF BARON. Add the statement, "Born of British parents, under the allegiance of her Majesty." When that is done, Mr. Attorney, you will consider whether this is a document to which you can demur, or whether it is a document in which the proper course would be to refuse to make the order.

Mr. HERON. My lords, I consider the averment that the prisoner was born in Cork, of Irish parents, is amply sufficient, and I will not make any other amendment.

The CHIEF BARON. Then I should be disposed to rule that, the document being ambiguous, it should not be received.

Mr. HERON. I respectfully ask what is ambiguous in the document? It is distinctly stated that he was born in Cork, of Irish parents.

Mr. Dowse. We will put in anything necessary to do away with ambiguity.

Mr. Justice KEOGH. What objection is there to saying, "Born in Cork, of Irish parents, in Ireland, under the allegiance of the Queen ?"

Mr. HERON. I will say under the allegiance of the United Kingdom.

The ATTORNEY GENERAL. No; under the allegiance of the Queen.

Mr. HERON, (having again altered the document.) Very well; I have now made it,

"Born in Cork, of Irish parents, in Ireland, then under the allegiance of King William the Fourth."

The SOLICITOR GENERAL. My learned friend puts in the word "then." What is the meaning of that?

Mr. HERON. "Then" means, when born, that his Irish parents were then under the allegiance of the King.

[Page of report No. 15.]

The SOLICITOR GENERAL. In the way the sentence stands it might mean that Cork was under the allegiance of the King.

Mr. HERON (having again altered the document.) I have now made it thus: "his said parents and the said county being then," at the time of his birth, "under the allegiance of King William the Fourth."

The SOLICITOR GENERAL. What is the meaning of that? Surely no one ever heard of a county being under the allegiance.

Mr. HERON. I only put in the words in consequence of your own suggestion.
The SOLICITOR GENERAL. I never suggested that.

Mr. HERON. Well, I will strike out those words. [Mr. Heron then struck out the words" and the said county," and handed the document to the clerk of the Crown.] The CHIEF BARON. Mr. Attorney General, I wish you now to consider and apprise us whether you think the course to be adopted (supposing the court to be of opinion in your favor) should be a demurrer on your part, and a judgment on the demurrer, or on ours simply a refusal to avoid the renire upon your representation that we should do so? The ATTORNEY GENERAL. I think, my lord, our mode of reply would be a suggestion on the part of the Crown that the prisoner is not entitled to the jury de mediatate lingua. Mr. HERON. I have made every amendment.

The ATTORNEY GENERAL. I am sure you will make this also.

Mr. HERON. I think there is no difference, and therefore I consent to that.

The CHIEF BARON. One is only an inference from the other-that he was born of Irish parents, who were British subjects then, and born in allegiance to the monarchy. Mr. HERON. Born of Irish parents, was my phrase, then under the allegiance of King William the Fourth.

Mr. Justice KEOGH. What do you propose to do now?

Mr. HERON. I have added the words "and that," to make it read properly.
The suggestion as finally altered and filed was as follows:

"And thereupon the said John Warren says that he was born in Cork, in Ireland, of Irish parents, and under the allegiance of his late Majesty King William the Fourth, and 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 United States of America from the 1st day of October, in the year of our Lord 1866, and still is a citizen of the said United States of America; and he says by reason of the premises, and not otherwise, that he is an alien; and 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 of 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."

[Page of report No. 16.] ̧

The ATTORNEY GENERAL. I wont object to that. It may be entered. My lords, in answer to that suggestion, we say:

"That by reason of anything above said and suggested by the said John Warren, the said John Warren is not entitled to the writ of our Lady the Queen next above by him prayed, and that the same should not be granted to him the said John Warren."

The CHIEF BARON. We are both of opinion that in the first instance we need not call on the Crown to state their objections to this application.

Mr. HERON. What I would say is this, my lords: It appears to me to have been in early times very much a matter of discretion with the government whether or not they would give certain people the privilege of having a jury de mediatate linguæ, as it was called in old times, and, as your lordship is aware, the King was in the habit of granting it by charter to the Lombards; he also granted to the Allemaines, and other companies of foreigners in England, the privilege in all cases, civil or criminal, of having a jury de mediatate linguæ. It appears to me at common law entirely within the discretion of the government; and at this moment it is within the power of the attor ney general to grant such a thing. It appears to me to be merely a matter of discretion at common law-a matter of favor from the government of the country-to grant a jury de mediatate linguæ to any person. In a civil case, where the parties were plaintiff and defendant and adverse, it could only be claimed by either one or the other by express charter from the Crown; but it is in the power of the King at common law, in a trial between him and a subject, to give the subject a jury de mediatate linguæ. I say,