an "acquitted felon."* To speak proudly of it to you would be a cruel mockery of your condition; but let me be at least a supplicant with you for its memory. Do not, I beseech you, by a vile instrumentality, cast any disgrace upon its memory. I know you are called out to-day to fill up the ceremonial of a gaudy pageant, and that to-morrow you will be flung back again among the unused and useless lumber of the constitution; but trust me, the good old trial by jury will come round again; trust me, gentlemen, in the revolution of the great wheel of human affairs, though it is now at the bottom, it will reascend to the station it has lost, and once more assume its former dignity and respect; trust me, that mankind will become tired of resisting the spirit of innovation, by subverting every ancient and established principle, and by trampling upon every right of individuals, and of nations. Man, destined to the grave-nothing that appertains to him is exempt from the stroke of death-his life fleeth as a dream, his liberty passeth as a shadow. So too of his slavery-it is not immortal; the chain that grinds him is gnawed by rust, or it is rent by fury, or by accident, and the wretch is astonished at the intrusions of freedom, unannounced even by the harbinger of hope.

Let me therefore conjure you, by the memory of the past, and the hope of the future, to respect the fallen condition of the good old trial by jury, and cast no infamy upon it. If it is necessary to the repose of the world that the prisoner should die, there are many ways of killing him—we know there are; it is not necessary that you should be stained with his blood. The strange and still more unheard-of proceedings against the prisoner at the bar has made the business of this day a subject of more attention to all Europe than is generally excited by the fate or the suffering of any individual. Let me, therefore, advise you, seriously to reflect upon your situation before you give a verdict of

* Mr. Windham's phraseology-he who lately said "that Peter Porcuine deserved a statue of gold for his conduct in America!"

meanness and blood that must stamp the character of folly and barbarity upon this already disgraced and degraded country.

EVIDENCE FOR THE PRISONER.

Sir James Crawford deposed that he was the king's minister plenipotentiary at Hamburgh, in 1798; that in consequence of orders transmitted to him from his majesty's secretary of state, he made a requisition of the senate of Hamburgh to have James N. Tandy arrested and confined, which was accordingly done on the 24th of November, 1798, and he was continued in close custody until the 1st of December following-that he believes Tandy was in Hamburgh on his way to Paris-that the senate of Hamburgh, as this deponent understood, at the instance of Tandy, made application to this deponent to release him on the ground of his being a commissioned officer in the army of the French republic. No application was made to this deponent to send Tandy either to England or Ireland, and if there had, this deponent would have endeavoured to transmit him to England as soon as possible, which, however, he could not have done without the consent of the senate of Hamburgh, as they for some time refused to give Tandy up, lest they should embroil themselves with the French republic, under which they were informed he held a military commission.* This deponent supposes it possible, with fair winds, to come from Hamburgh to Yarmouth, in England, in 37 hours

"

G. Smith swore that he was sent on behalf of the prisoners to Hamburgh, with a subpoena, for Sir James Crawford, Mathias Myer, and Ferdinand W. Walbourn; and by the authority of the prisoners offered to defray their expenses

They were involved with the French government. Bonaparte not only wrote them an angry letter, but obliged them to pay a large sum of money by way of quietus.

to any amount they might fix on; they did not all obey the summons; the two latter are not here.

Mr Attorney-General then addressed the court and jury— he spoke at great length upon the case of Lord Duffus as being strongly in point; after him Mr. Prime Serjeant made some few observations.

Mr. Ponsonby, in reply, observed, it would have been just as pertinent to the point to have quoted the case of the six carpenters, or the case from Swift, of Stradley versus Styles, as that of Lord Duffus. He then commented upon the testimony, and the law applicable thereto, and said, that had the two witnesses of Hamburgh attended, Mr. Curran's statement, as to the manner in which the prisoner had been treated, would have been fully proven.

Mr. McNally spoke to the same effect.

Mr. Ridgeway was stopped by the court.

Lord Kilwarden. Gentlemen of the jury, you have a plain and simple issue, on a question of fact, to decide; and on as simple and plain evidence as ever was laid before a court and jury. The question you have to try is, whether James N. Tandy, the prisoner at the bar, was arrested on the 24th day of November, 1798, by authority derived from the king; and that by reason of that arrest, and continual detainer under that arrest, from the day of the arrest to the first day of December in the same year 1798, it became impossible for the said James N. Tandy to surrender himself, on or before the first day of December, 1798.

Before I state the evidence, I will trouble you by stating the occasion of the present inquiry. An act of parliament passed in this country on the 5th day of October, 1798, entitled "An act to compel certain persons who have been engaged in the late rebellion which hath broken out in this kingdom, to surrender themselves and abide their trials, respectively, within a limited time, on pain of being attainted of high treason." And then the act goes on, and recites the names of certain persons charged with being concerned in

acts of treason, and, among the rest, the prisoner, and that he had fled; and then the act proceeds to adopt such measures as may bring them in, and render them to justice; then it goes on and says, that each of them "shall stand attainted of high treason, and shall be liable to all the pains and penalties by law annexed to the crime of high treason, unless they, and each of them, shall severally and respectively surrender themselves to some one of the judges of his majesty's court of king's bench, or to some justice of the peace within this kingdom, on or before the first day of December, 1798, and shall respectively abide such charges as shall be made against them respectively, for and on account of the several treasons aforesaid, with which they have been charged.

The parties mentioned in this act had until the last moment of the day of the first of December, 1798, to surrender themselves; and, gentlemen, you will observe, that the object of this act was not to attaint or punish any man; but it was to compel every man, mentioned in it, to do that which every subject of the realm was bound to do, namely, to surrender himself to justice; and the act does expressly say, that he must surrender himself, and take his trial for any charges that shall be brought against him. The end and purport of the act was not to inflict punishment on the party, or to condemn him to death unheard; but it was to compel him to do that which he ought to do, namely, to surrender himself and in case he did not surrender himself, the act then went further, and enacted, that the fact with which he was charged, should be taken as confessed, and that he had acknowledged the crime. I have stated so much to you, to remove from your minds what cannot indeed enter into themthat you have no more to do with the criminality of Mr. Tandy than you have with the criminality of any other person alive; and it is your duty to suffer no such idea to enter into your minds. It is necessary for me to go further: I will state this to you that by finding a verdict in favour of the prisoner at the bar, it will produce no other effect than giving the

:

crown an opportunity of indicting him for such charges as they may have against him; and, in my apprehension, the intention or criminality of the prisoner is out of the question.

I wish you to bear in your mind what the issue to be tried is; it is what I have stated-Whether Mr. Tandy was arrested on the 24th day of November, 1798, and kept in close custody; and quoad, whether it was thereby rendered impossible for him to surrender himself? As to his will or intention, it is not given to you in evidence, nor are you bound to inquire into it; and if you suffer that to enter into your consideration, you will find a verdict, if you find against the prisoner, on a fact that had no right to go to you in evidence. It is not what his intention was, or might have been, on the 23d of November, 1798, to go to Paris, and on the 24th to come to Ireland; that is beyond your inquiry, and if you enter into a consideration on that subject, you do that which you were not sworn to try. But you are sworn to try if he was, from that day until the time limited had elapsed, continually confined; and if it was thereby rendered impossible for him to surrender himself to one of the judges of the court of king's bench, or to some justice of the peace within this kingdom.

For my part, I cannot conceive it. And I have the direction of my brethren on the bench, to say for them what I have already said for myself; that it is a case particularly clear, and on which there can be no doubt, that there was an impossibility from the time of the prisoner's arrest on the 24th day of November, 1798, until the last moment of the first of December following, to surrender himself according to the requisitions of the statute.

The jury retired for a few minutes and then returned their verdict, "we find for the prisoner."

Mr. Attorney-General then stated, that as the same evidence was applicable to the prisoner Harvey Morris, he would withdraw the replication, and confess the plea; which being done, he prayed that the prisoners might be remanded for the present.