THE TRIAL

OF HENRY AND JOHN SHEARES, FOR HIGH TREASOŃ.

COURT OF OVER AND TERMINER.

ON the 21st of May, 1798, Henry Sheares and John Sheares, Esqrs. were arrested and committed to gaol on a charge of high treason-and, on the 26th of June, at a court held at the sessions-house for the city and county of Dublin, by virtue of a special commission of oyer and terminer, composed of Lord Carleton, Hon. Alexander Crookshank, Hon. Michael Smith, Hon. Denis George, and the Hon. Robert Day, the grand jury found an indictment for high treason against the two Sheares, of which the following is an abstract:

First Count. That the said Henry Sheares and John Sheares, not regarding the duty of their allegiance, falsely, wickedly, and traitorously, did compass, imagine, and intend the king, their supreme and lawful lord, off and from his royal state, crown, title, and government of this his kingdom of Ireland, to depose and deprive, and the said lord the king to kill, to put to death, and murder. Το which were added sixteen overt acts.

Second Count. That the said Henry and John Sheares, with intent to subvert the government and constitution, unlawfully and traitorously were adhering to, and aiding and comforting the persons exercising the powers of government

in France, and the men of France, under the government of the said persons, then being enemies of the king.

The same overt acts were set forth in support of the se cond count, with an additional one, to wit, the 7th, that they became members of a society of United Irishmen, for the purpose of aiding and assisting the French.

WEDNESDAY, JULY 4, 1798.

Henry Sheares and John Sheares were brought to the bar, and arraigned upon the indictment that had been found against them.

Mr. McNally begged their lordships to indulge the prisoners with some little time, as their counsel had not all come into court; and expressed a wish to advise with his colleagues on an important objection to the indictment, which went to show that the whole proceedings were coram non judice.

After a delay of half an hour, the prisoners' counsel not appearing, the court said the cause must go on.

Mr. McNally then rose and moved to quash the indict ment, on the ground that one of the grand jury was not le gally qualified to serve, that he was an alien, a Frenchman born; he stated that the fact had but lately come to his knowledge, that the grand panel having been called over in the absence of the prisoners, and at a time when they had no counsel assigned them, they had it not in their power to take advantage of it at an early stage of the proceedings. "I am at a loss," said he, "to know how the fact is to be inquired into, whether by collateral issue or otherwise. I am not ashamed to own my ignorance in this respect-perhaps it may come in the shape of a plea, to which the counsel for the crown may demur.”

The court overruled the motion; and said, that if the counsel had any plea they must put it in.

Their lordships waited some time for the plea to be

drawn and engrossed. In the interval Mr. Curran and Mr. Plunket came into court, and apologized for their absence. A plea was then put in and read, in substance as follows:

That the said Henry and John Sheares say, that they ought not to be compelled to answer said indictment, because that John Decluzeau is an alien, and not a natural born subject, he having been born in the kingdom of France, &c.

On the part of the crown, a replication was filed to the following purport, viz. That John Decluzeau is not an alien, but is, by statute in that case made and provided, deemed and adjudged a natural born subject of our said lord the king, &c.

Mr. Curran then moved the court to adjourn, in order to give time to consider of the case, as it was in its nature so entirely novel; but the court refused to do so. He then moved to quash the replication on the ground that in criminal cases the parties were not permitted to plead double.*

Lord Carleton. In civil cases certainly, the right of pleading double arises from an act of parliament. As to the objection you now make, you must avail yourself of it in some other way. We will not quash the replication upon motion.

The following rejoinder was then filed on the part of the prisoners, viz. They demur to the replication, and pray the judgment of the court, whether they shall be bound to the indictment, &c.

To this the Solicitor-General answered and said, that the matters contained in the indictment are sufficient in law to put the said John and Henry Sheares on their trial, and prays the judgment of the court, &c.

Mr. CURRAN. My lords, it is my duty to suggest such reasons as occur to me in support of the demurrer filed here on the part of the prisoners. My lords, the law of this country has declared, that, in order to the conviction of any mañ,

* See 5 Bac. Abr. 447. 4 Term Rep. 701. 2 Stra. 208.

not only of any charge of the higher species of criminal offences, but of any criminal charge whatsoever, he must be convicted upon the finding of two juries; first, of the grand jury, who determine upon the guilt in one point of view; and, secondly, by the corroborative finding of the petty jury, who establish that-guilt in a more direct manner; and it is the law of this country, that the jurors who shall so find, whether upon the grand, or whether upon the petty inquest, shall be probi et legales homines omni exceptione majores. They must be open to no legal objection of personal incompetence; they must be capable of holding freehold property; and, in order to have freehold property, must not be open to the ob jection of being born under the jurisdiction of a foreign prince, or owing allegiance to any foreign power. Because the law of this country, and, indeed, the law of every country in Europe, has thought it an indispensable precaution to trust no man with the weight or influence which territorial possession may give him contrary to that allegiance which ought to flow from every man having property in the country. This observation is emphatically forcible in every branch of the criminal law; but in the law of treason, it has a degree of force and cogency that fails in every inferior class of offence; because, the very point to be inquired into in treason is, the nature of allegiance. The general nature of allegiance may be pretty clear to every man. Every man, however unlearned he may be, can easily acquire such a notion of allegiance, whether natural and born with him, or whether it be temporary and contracted by emigration into another country -he may acquire a vague, untechnical idea of allegiance for his immediate personal conduct. But I am warranted in saying, that the constitution does not suppose that any foreigner has any direct idea of allegiance but what he owes to his original prince. The constitution supposes, and takes for granted, that no foreigner has such an idea of our peculiar

and precise allegiance, as qualifies him to act as a juror, where that is the question to be inquired into; and I found myself upon this known principle, that, though the benignity of the English law has, in many cases, where strangers are tried, given a jury half composed of foreigners and half natives, that benefit is denied to any man accused of treason, for the reason I have stated; "because," says Sir W. Blackstone, "aliens are very improper judges of the breach of allegiance."* A foreigner is a most improper judge of what the allegiance is, which binds an English subject to his constitution. And therefore upon that idea of utter incompetency in a stranger, is every foreigner directly removed and repelled from the possibility of exercising a function that he is supposed utterly unable to discharge. If one Frenchman shall be suffered to find a bill of indictment between our lord the king and his subjects, by a parity of reasoning, may twen ty-three men of the same descent be put into the box, with authority to find a bill of indictment. By the same reason that the court may communicate with one man whose lan guage they do not know, may they communicate with twentythree natives of twenty-three different countries and languages. How far do I mean to carry this? Thus far: That every sta tute or means by which allegiance may be shaken off, and any kind of benefit or privilege conferred upon an emigrating foreigner, is for ever to be considered, by a court of justice, with relation to that natural incompetency to perform certain trusts, which is taken for granted, and established by the law of England. I urge it with this idea-that, whether the privilege is conferred by letters patent, making the foreigner a denizen, or whether by act of parliament, making him as a native subject, the letters patent, or act of parliament, should be construed secundum subjectam materiam, and a court of. justice will take care that no privilege be supposed to be granted incompatible with the original situation of the party to whom, or the constitution of the country in which it is conferred. Therefore, my lords, my clients have pleaded, that 4 Black. Com. 352.