therefore, it is entirely in the power of the attorney general for the time being to say whether he will grant a jury de mediatate linguæ. I say next, that in the management of the trial it is very doubtful whether this court has not the same power. At all events, my client instructs me, as a citizen of the United States of America, to claim the benefit of a trial by a jury composed half of Americans and half of British subjects. He respectfully presses his claim, through me, on the court.

Mr. DowSE. The matter comes before the court for the first time, and no authority can be cited for it, and we are obliged to argue the case on general principles. As to what my learned friend said on the common law there can be no doubt. With reference to the word alien, we say the meaning of that is a person who is not under the allegiance of the Crown at the time, and my client stands in this position-he stands here having renounced his allegiance to the sovereign of this kingdom. He says he owes no allegiance as a subject of the Crown of Great Britain and Ireland. There is a document in evidence which is prima facie evidence of the fact of this man being what we call an alien-that is, his naturalization papers of the commonwealth of Massachusetts, and by these papers he has announced his bona fide intention of becoming a citizen of the United States. By these papers he renounces fidelity to every foreign power, potentate, and sovereign, and especially to Queen Victoria, whose subject he had heretofore been. He is admitted by the superior court of the commonwealth of [Page of report No. 17.]

Massachusetts, which, I believe, has authority under the statute in that case made and provided-he is admitted a citizen of the State of Massschusetts, which is one of the States of the United States of America, having renounced allegiance to the Crown of Great Britain and Ireland. Having lived a sufficient number of years, he obtained papers of naturalization. We say he is an alien, and that, though an alien, he is subject to the jurisdiction of this court, which has power to try him except by a venire awarding him a jury de mediatate linguæ, which we say is to be composed half of subjects of Great Britain and Ireland, and half of American subjects.

The ATTORNEY GENERAL. My learned friend Mr. Dowse says that if he gets a jury de mediatate linguæ he is entitled to have half of them Americans. That is not the law.

Mr. Dowse. I say that does not arise. Give us the venire, and then we will argue that, but don't refuse us number two, when you say number one does not exist.

The CHIEF BARON. My learned brother and I do not entertain the least doubt as to the course we ought to adopt in reference to this proceeding. It is essential to sustain the application; and assuming the court has the power to grant it, the practice has been invariably to award a jure de mediatate, as it is called, wherever an alien claims it. But assuming the authority of the court, upon which I will not now cast the slightest doubt, it is perfectly plain the person who claims a jury de mediatate linguæ must be an alien. It is very truly put by the counsel for the prisoner, that what the prisoner contends for in the present case is, that by reason of what appears-assuming the statement to be fact-stated in the suggestion, he is an alien, and he is not now under the allegiance of the Queen. I cannot allow that proposition to be put forward without meeting it with a prompt and unhesitating denial. According to the law of England, a law which has been administered without any variation or doubt from the very earliest times, he who once is under the allegiance of the English sovereign remains so forever. It would be really almost pedantry for me to cite authorities on that subject. They are familiar to every lawyer. I shall cite one English authority, and I shall then cite some American authorities of the greatest weight and highest reputation. In the first volume of Blackstone's Commentaries, pages 269 and 270, the law is thus stated: "Allegiance, both express and implied, is, however, distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from natural-born subjects. This is a tie which cannot be severed or altered by any change of time, place, or cirenmstances, nor by anything but the united concurrence of the legislature. Englishman who removes to France or China owes the same allegiance to the King of England there as at home, and twenty years hence as well as now. For it is a principle of universal law that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former, for this natural allegiance was intrinsic and primitive, and ante

[Page of report No. 18.]

An

cedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed, the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another, but it is his own act that brings him into these straits and difficulties of owning service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bonds by which he is connected to his natural prince."

Blackstone then proceeds to show that local allegiance, which by foreigners is due to

the monarch, continues so long as the foreigners reside within the kingdom. The maxim of the law on this subject, referred to by Sir Michael Foster, page 184 of his treatise, and referred to by a variety of other authorities, is nemo potest exuere patriam. I said I would only refer to one English authority. I have brought down, with a view to some possible matter which might have arisen, some American authorities, and I don't think it is unuseful to cite these authorities on the subject now before us. In Story's Conflict of Laws, page 23, section 21, referring to the general maxim or rule that the laws of one state do not bind property or persons in another, he says:

"Upon this rule there is often engrafted an exception of some importance to be rightly understood. It is that although the laws of a nation have no direct binding force or effect, except upon persons within its own territories, yet that every nation has a right to bind its own subjects by its own laws in every other place. In one sense this excep tion may be admitted to be correct and well founded in the practice of nations; in another sense it is incorrect, or at least it requires qualification. Every nation has hitherto assumed it as clear that it possesses the right to regulate and govern its own native-born subjects everywhere, and consequently that its laws extend to and bind such subjects, at all times and in all places. This is commonly adduced as a consequence of what is called natural allegiance; that is, of allegiance to the government of the territory of a man's birth. Thus, Mr. Blackstone says, natural allegiance is such as is due from all men born within the King's dominions immediately upon their birth.” He then proceeds to quote the passage from Blackstone which I have cited. In Chancellor Kent's Commentaries, in the 2d volume, page 42, the following is laid down as the English law. He is expounding the American law; and expounding the American law, founded as it is on the law of England, he says:

"It is the doctrine of the English law that natural-born subjects owe an allegiance which is intrinsic and perpetual, and which cannot be divested by any act of their own."

He then cites an English authority, in the case of McDonnell, who was tried for high treason in 1746, by Lord Chief Justice Lee, and who, he says—

"Though born in England, had been educated in France, and spent his riper years there. His counsel spoke against the doctrine of natural allegiance as slavish and repugnant to the principles of their revolution. The court, however, said that it had never been doubted that a subject born, taking a commission from a foreign prince and [Page of report No. 19.]

committing high treason, was liable to be punished, as a subject, for that treason. They held that it was not in the power of any private subject to shake off his allegiance and transfer it to a private prince; nor was in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the Crown. Entering into foreign service without the consent of the sovereign, or refusing to leave such service when required by proclamation, is held to be a misdemeanor at common law."

Chancellor Kent then deals with the question, how far the doctrine of the English law prevails in America. He says:

"It has been a question (here he leaves the English law and proceeds to expound the other) frequently and gravely argued, both by theoretical writers and in frequent discussions, whether the English doctrine of perpetual allegiance applies in its full extent to this country."

That is, whether in America that doctrine is recognized. Its recognition there or repudiation could not in the slightest degree affect this country or its tribunals. Chancellor Kent then proceeds with an elaborate review of the authorities, and he closes thus, stating his view of the American law:

"From this historical review of the principal discussions in the federal courts on this interesting subject of American jurisprudence, the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States without the permission of government, to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered." I have thought it right to cite these two great American authorities-Mr. Justice Story in his book on the Conflict of Laws-that is, on the laws of nations as they relate to each other; and Chancellor Kent, expounding the laws of America, and expounding it in the first instance by an exposition of the law of England, which is its foundation. We in our courts have been in the habit of treating, not merely with respect, but with reverence, these two great lights of the laws of America. We have cited them in our courts of justice; they have been quoted in our forensic discussions. The principles laid down by them, in interpreting in America the laws of England as they are adopted there, have been approved and adopted by some of the ablest judges that have sat on the British bench. Mr. Justice Story was himself a great judge; so was Chancellor

Kent; and some of the finest contributions that have ever been made to the science of jurisprudence, or to the law of England as a science, have been made by these two great men from whose works I have read these passages. I have thought it not unuseful, since I had the opportunity of doing so, of stating that this was the law as laid down by the great authorities in America, because I think it is desirable that they who in America formed views-I will say no more now than that-with respect to what is passing, or what is expected to pass, within the dominions of the Crown of England, should be aware of the obligations imposed on them if they have ever been under the allegiance of the Crown of England; and how, according to the laws of England, they [Page of report No. 20.]

may be dealt with when they are found here. For these reasons we are of opinion that the objection made by the attorney general is well founded, and that we ought not to comply with this application, and that the prisoner is not entitled to a jury de mediatate linguæ.

The clerk of the Crown then called over the names on the long panel.

Twenty jurors were challenged by the prisoner, and four jurors were directed by the Crown to stand aside.

The following jury was sworn: William Mercer, (foreman,) Alfred Davis, George Cooke, Henry William Hepburne, William Henry Mellons, Edward Nolan, William Marrion, Robert Robinson, William Shaw, Robert Thacker, Charles David Spinks, William Whyte.

The clerk of the Crown then read the heads of the indictment, which charged the prisoner, in the first count, that he did on the 1st of March, 1867, and divers other days, feloniously compass to depose the Queen from the style, honor, and royal name of the imperial Crown of Great Britain and Ireland, and that said compassings he did express by divers overt acts, which were stated in the indictment. A second count in the indictment charged that the prisoner, on the 12th of April, 1867, and on various other days, did feloniously compass to levy war against our lady the Queen in that part of the United Kingdom called Ireland, and in order to compel her Majesty to change her measures and counsels, and which said compassing he did express by various overt acts. The attorney general rose to state the case for the Crown.

The PRISONER. My lords, as a citizen of the United States, I protest against being arraigned at this bar, and being tried as a British subject.

The CHIEF BARON. We cannot hear any statement from you now.

The PRISONER. Only a few words, my lord.

The CHIEF BARON. We cannot hear you. You have pleaded; your counsel has been heard in your behalf, and the course of the court is to proceed with the trial of that plea. We cannot hear anything more.

The PRISONER. I instruct my counsel to withdraw from the case, and I place it in the hands of the United States government; which government has now become the principal.

Mr. HERON. That being so, my lords, we have no alternative in the case.

The CHIEF BARON. I do not know that.

Mr. HERON. I should state to your lordship that this is not a hasty determination on the part of the prisoner.

The CHIEF BARON. The plea of not guilty is before us, and that plea must be tried, whosoever appears.

Mr. HERON. When he withdraws from his counsel the privilege of appearing, I apprehend your lordship can allow the prisoner to make a statement.

[Page of report No. 21.]

The CHIEF BARON. He is at liberty to withdraw his plea if he thinks fit, but, with the plea before us, the only thing we can do is to proceed with the case.

Mr. HERON. The prisoner says he adheres to his determination, and that, my lord, leaves me no alternative.

The CHIEF BARON. That is for you.

Mr. Dowse. It leaves me no other alternative either. I intend to yield to the suggestion of my client. If he withdraws his case from me, I have no further right to appear, and I disappear accordingly.

The CHIEF BARON. All I can do is to proceed with the case. Now, Mr. Attorney. The attorney general again rose to address the jury.

Mr. HERON. My lords, permit me to say, before I withdraw, that, in my humble judg

ment, the prisoner should be allowed to state his reasons for this course.

The CHIEF BARON. We shall receive from you any statement on his behalf.

The ATTORNEY GENERAL. Gentlemen of the jury: No one can regret more than I do the transaction which you have just witnessed.

Mr. ADAIR. I beg your pardon for a moment.

The ATTORNEY GENERAL. Are you counsel in this case?

Mr. ADAIR. I am. I thought it only right to the prisoner to say I was instructed, on the part of the United States government, to appear in six cases, to watch the pro

ceedings, and to report to them at my discretion. I told the American consul and his solicitor

The ATTORNEY GENERAL. I think this is a most unreasonable interruption.

The CHIEF BARON. We shall not inquire into the manner in which you obtained your authority.

Mr. Justice KEOGH. Are you engaged for the prisoner at the bar? If you are not, it is most irregular.

The ATTORNEY GENERAL. For whom do you appear?

Mr. ADAIR. I will answer every question put to me, but I am not to be spoken to in that way. I am instructed by the United States government consul to appear and watch the proceedings in the other cases. When counsel withdrew from this case, the consul thought it right for me to appear for him, and the United States government too, and to see this case, as far as I can, properly conducted. I want to know from your lordships how far it is my duty and privilege, as counsel, to attend and interfere, or not interfere. I don't want to volunteer. It is not my professional habit to act irregularly.

The CHIEF BARON. If you are not acting as counsel for the prisoner we cannot allow you to interfere; if you appear for the prisoner we shall not inquire further, but we cannot recognize the counsel employed by persons who are unconnected with the proceedings itself.

The ATTORNEY GENERAL. Gentlemen of the jury: I regret these two transactions [Page of report No. 22.]

I regret that any member of the bar should interrupt the progress of the case, knowing that no gentleman has a right to address the court or the jury except he is retained on the part of the Crown or the prisoner; and I also regret deeply that the prisoner should have deliberately rejected the assistance of his eminent counsel-experienced in the law, learned and eloquent, and possessing every qualification for his defense. I had hoped, when concluding my statement, to be able to express the gratification it afforded me that the prisoner was defended in such a manner as that, if convicted, it would be because he was wholly indefensible. This, gentlemen, is not the fault of the counsel for the Crown. They are no party to the withdrawal of the prisoner's counsel. It is his own act, and upon himself the consequences must fall. I wish even now that he would change his mind, and avail himself of that assistance which may be of importance for the protection of his liberty.

The CHIEF BARON. Perhaps it is my duty to state what the prisoner may be ignorant of, that so long as his plea of "not guilty" remains recorded, and so long as he does not plead guilty, the case must be proceeded with; the statement for the Crown must be heard, and the whole evidence for the Crown must be heard and submitted to the jury.

The PRISONER. I am prepared for all that, my lord.

The attorney general resumed: Gentlemen, without preface, I propose to make a statement to you, as brief as I can, as clear as I can, and, above all things, as fair towards the prisoner at the bar as I can, of the case which it is proposed on the part of the Crown to bring before you. I shall state very shortly the nature of the crime charged against him, the circumstances under which he is charged with that crime, and an outline of the evidence which we shall submit to your consideration, in order to show that the prisoner was involved in that crime, and was personally a guilty party in the transaction. Gentlemen, the crime alleged against the prisoner is called "treason-felony," and it consists in compassing or imagining the deposition of the Queen from her royal state, or compassing, imagining, or intending to levy war against the Queen, and manifesting such guilty intentions by open external acts, when such compassings or intentions are manifested by one who owes allegiance to the Queen of the United Kingdom. The intention and design of a man are within his own heart; it is only by his open and external acts-what are called in the law-books his "overt acts"-that his intention and design can be known. Accordingly, gentlemen, the evidence that will be produced as bearing on open external acts will show that the prisoner has done these overt acts alleged against him, and your concern will be simply with the evidence brought before you on these overt acts. If you shall arrive at the conclusion that any one or more of the overt acts alleged in this indictment is or are truly and justly laid to the charge of the prisoner, then it necessarily follows, from the proof of the overt acts to your satisfaction, that the prisoner is guilty of the crime of treason-felony.

Gentlemen, this indictment contains a great variety of overt acts. It will not be

[Page of report No. 23.]

necessary to call attention to all these overt acts, but I shall mention a few of them. In the first and second counts he is charged with conspiring with notorious Fenian leaders for the purposes of the Fenian conspiracy. In the fifth count he is charged with attending Fenian meetings. The sixth count I shall allude to shortly, because it refers to transactions which will be related to you. It charges that the prisoner did embark on board a certain vessel in America, having on board guns and pistols, came to the

west of Ireland, and sailed and cruised along the coast with the intention of effecting a landing, and of landing arms for the purpose of fighting against the Queen, and raising an insurrection in Ireland. The seventh count alleges that he sailed into a certain bay called "Sligo bay," for the same purpose of levying war against the Queen. The eighth count alleges that he joined a treasonable conspiracy in America, called the "Fenian Brotherhood." The tenth count charges that he conspired to provide arms to make war against the Queen. The 15th, that he became a member of an association called the "Fenian Brotherhood," which had for its object the overthrow of the Queen's authority and the establishment of a republic, and made journeys and collected moneys, &c., for that purpose. The 16th count alleges a levying of war in the county of Dublin; and the 20th alleges that in Sligo bay he administered an unlawful oath to Michael Gallagher, to keep secret certain acts and deeds of the Fenian Brotherhood. There is first the charge of conspiracy. If you are satisfied upon the evidence that the prisoner was a Fenian conspirator, then that will be proof of an overt act sufficient to sustain the indictment, and to oblige you to find a verdict of guilty. The only overt act on which I shall now make an observation is that of making war in the county of Dublin, because there will be no evidence that the prisoner personally levied war in the county of Dublin; but that charge is introduced because evidence will be given that members of the same conspiracy did levy war in the county of Dublin; and then, according to a well-known principle of law, not confined to the United Kingdom, but recognized also in the United States, every man who joins in a criminal conspiracy is liable and responsible for and guilty of the acts of all his conspirators which are done in furtherance of the purposes of the conspiracy. And if it shall appear to you, gentlemen, that the prisoner was a member of a conspiracy having for its object the establishment of a republic in Ireland, and that other members of the same conspiracy levied war against the Queen in the county of Dublin, the prisoner himself is guilty of that levy of war. And the object of introducing it into the indictment is to give you, as jurors of the county of Dublin, jurisdiction to try the offense; because, by a principle of our law, a man can be tried only in the venue or place where he has, by himself or by the agency of his co-conspirators, done the acts which are charged against him. Gentlemen, I have spoken of this conspiracy as a Fenian conspiracy. Unfortunately, it is almost unnecessary to speak to you of the nature or the history of the Fenian movement; but it will be my duty to occupy some time upon that subject, because you

[Page of report No. 24.]

are not at liberty to act as jurors except upon the evidence which will be brought before you. You come into that box to try the prisoner as if you had never heard of that conspiracy, to try a man who at this moment must be presumed to be innocent of the crime charged. And, therefore, you must be satisfied upon the evidence of two things: you must be satisfied of the existence and nature of the Fenian confederacy, and that, beyond a reasonable or substantial doubt, the man who is now presumed to be innocent is, notwithstanding that presumption, guilty of the crime imputed to him in the indictment.

The Fenian conspiracy was organized in Ireland and America for the purpose of establishing a republic in this country-for the purpose of deposing the Queen from the crown of this country, and of subverting the government. It was established for the purpose of destroying the social system of the country, of confiscating property, and of plundering the present proprietors of their possessions. These objects were to be * achieved by the conspirators by force of arms and insurrection; because such objects as these could not be accomplished by any moral persuation or influence. This conspiracy had leaders civil and military. It had men holding ranks known as "A's," "B's," and "C's," "centers," "head centers," "delegates," and "organizers." Amongst the men who held these offices were enrolled a great number of discontented and disaffected men-men without property or possession-men for the greater part without education. In my experience of the Fenian conspiracy I have not yet heard, as being connected with it, the name of one man of property or possessions, or who had one material thing to lose by rebellion. It comprised men of the lowest orders in this country, and men of a somewhat superior class who came from another place to take a leading part in the insur

rection.

This Fenian conspiracy existed in America before the breaking out of the civil war between the northern and southern States. When that struggle closed, the immense armies on both sides were to a large extent disbanded; and the consequence was that great numbers of American soldiers and of officers in the American armies were thrown upon the world without employment or occupation, and the result was that these men, thus deprived of what had been their means of livelihood, became members of this conspiracy. They were men of courage from their antecedents and of ambition from their circumstances, and they threw themselves into the cause of the Fenian conspiracy with all their hearts, expecting, as a reward for their services, places in the new commonwealth, and a liberal share of the spoil which was to crown the efforts of the insurgents.