crime of high treason, unless they, and each of them, shall severally, and respectively, surrender themselves to one of the judges of his majesty's court of king's bench; or to some justice of the peace within this kingdom, 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."

Further proceedings were then postponed for two days, to give the prisoners' counsel time to consider of the proper defence to be made. On the 12th of February, the court refusing to grant any further delay, the following plea and replication were filed on the part of Tandy, the prisoners having severed in their pleadings :—

THE PLEA.

"And the said James N. Tandy says, that before the first day of December, 1798, to wit, on the 24th day of November, 1798, in parts beyond the sea, to wit, at Hamburgh, he was arrested and imprisoned, by the command, desire, and authority of his majesty our said lord the king; and has been ever since continually detained in prison by the same command, desire, or authority, by reason of which arrest and continual detention, it became impossible for him, the said James N. Tandy, from the time of said arrest, to surrender himself on or before the first day of December, 1798; and continued so impossible until after the first day of December 1798; and this he is ready to verify," &c.

REPLICATION.

"And the said Right Hon. John Toler, Attorney-General of our said sovereign lord the king, who for our present said sovereign lord the king in this behalf prosecuteth, as to the said plea of him the said James N. Tandy, by him above pleaded as aforesaid, for our said present sovereign lord the king,

saith, that the said James N. Tandy did not surrender himself within the time in the said act of parliament mentioned, to wit, on or before the first day of December, 1798, without such cause as in the plea of the said James N. Tandy is by him alleged; and this he prays may be inquired by the country; and the said James N. Tandy likewise," &c.

The case was then continued on affidavit being made of the absence of a material witness, until

MONDAY, MAY 19.

This day the prisoner being brought into court, and a jury being sworn to try the issue joined between James N. Tandy and Mr. Attorney-General,

Mr. Ridgeway, counsel for the prisoner. My lords, and gentlemen of the jury, in this case of The King against James Napper Tandy, by an act of parliament passed in this kingdom in the 38th year of the king, it is enacted, that James Napper Tandy, among several others, shall stand attainted of high treason, and shall be liable to all the pains and penalties of the 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 charge as shall be made against them respectively, for and on account of the several treasons aforesaid, with which they have been charged.

To this Mr. Tandy has put in a plea in bar, in which he states, that before the 1st day of December, 1798, the day limited by the act of attainder for time to surrender himself, to wit, on the 24th of November, 1798, in parts beyond the sea, to wit, at Hamburgh, he was arrested and imprisoned, by the command, desire, and authority of the king; and has ever since been detained in prison. By reason of which arrest and continual detention, it became impossible

for him, from the time of the said arrest, to surrender himself on or before the said 1st day of December, 1798, and continued so impossible until after the said 1st day of December.

To this plea of Mr. Tandy, the Attorney-General has replied, that he did not surrender himself within the time in.. the act of parliament mentioned, to wit, on or before the 1st of December, 1798, without such cause as in his plea is alleged. And on this plea and replication issue has been joined.

Mr. CURRAN. My lords, and you, gentlemen of the jury, I am in this case of counsel for Mr. Tandy, the prisoner at the bar. I could have wished it had been the pleasure of the gentleman who conducts this business on the part of the crown, if he had gone on first: the subject itself is of a very novel nature in this country, but certainly it is the right of the crown, and which the gentlemen have thought proper to follow, to call on the counsel for the prisoner to go first; and therefore it is my duty, my lords, to submit to you, and to explain, under the direction of the court, to you, gentlemen of the jury, what the nature of the question is that you are s worn to try.

An act of parliament was passed in this country, which began to be a law on the 6th of October, 1798; on that day it received the royal assent. By that law it is stated, that the prisoner at the bar had been guilty of acts of treason of many different kinds: and it enacted, that he should stand attainted of high treason, except he should, on or before the 1st day of December following, surrender himself to one of the judges of this court, or to one of his majesty's justices of the peace, for the purpose of becoming amenable to the law from which he was supposed to have fled, in order to abide his trial for any crime that might be alleged against him.

It was a law not passed for the purpose of absolutely pronouncing any judgment whatsoever against him, but for the purpose of compelling him to come in and take his trial; and nothing can show more strongly that that act of parliament

has not established any thing touching the fact of the pri soner's guilt, because it would be absurd, in one and the same breath, to pronounce that he was guilty of high treason, and then call upon him to come in and abide his trial; and the title of the act speaks, that it is an act not pronouncing sentence against the prisoner, but that it is an act in order to compel him to come forward.

This act creates a parliamentary attainder not founded on the establishment of the prisoner's guilt of treason, but on his contumacious avoidance of trial, by standing out against a trial by law. I make this observation to you, gentlemen of the jury, in order that you may in the first instance discharge from your minds any actual belief of any criminality in the prisoner at the bar, and that for two reasons: first, because a well founded conviction of his guilt, on the authority of this statute, might have some impression on the minds of men sitting in judgment on the prisoner; but for a more material reason I wish to put it from your minds, because his guilt or innocence has nothing to do with the issue you are sworn to try.

Gentlemen, the issue you are called upon to try is not the guilt or the innocence of the prisoner: it is therefore necessary you should understand exactly what it is. The prisoner was called on to show cause why he should not suffer death, pursuant to the enacting clause of the statute; and he has put in a plea, in which he states, that before the time for surrender had expired, namely, on the 24th of November, 1798, seven days before the day that he had for surrendering had expired, he was, by the order of his majesty, arrested and made a prisoner in the town of Hamburgh; and that in consequence of such arrest, it became impossible for him to surrender himself and become amenable to justice within the time prescribed: and the counsel for the crown have rested the case on the denial in point of fact of this allegation; and, therefore, the question that you are to try is simplified to this "I was arrested," says the prisoner, "whereby it

became impossible for me to surrender"-to which the counsel for the crown reply, "You have not been arrested at the time alleged by you, whereby it became impossible for you to surrender." This I conceive to be the issue in point of fact joined between the parties, and on which it is my duty to explain the evidence that will be offered.

Mr. Tandy, gentlemen, is a subject of this country, and had never been in it from the time this act of parliament passed, until he was brought into it after his arrest on the 24th of November, 1798: on that day he was in the town of Ham burgh. He had seven days, in which time it was practicable for him to arrive in this country, and surrender himself according to the requisitions of the act of attainder. Every thing that could be of value to man was at stake, and called on him to make that surrender. If he did not surrender, his life was forfeited-if he did not surrender, his fortune was confiscated-if he did not surrender, the blood of his family was corrupted; and he could leave them no inheritance, but the disgrace of having suffered as a traitor.

It

Your common sense, gentlemen, will show you, that where a man is to forfeit his life unless he complies with the conditions of an act of parliament-your common sense, your common humanity must show you, that a man ought to be suffered to perform the conditions on which his life depends. can require no argument to impress upon your minds, that to call on a man to surrender himself on pain of death, and by force to prevent him from surrendering, goes to an atrocity of oppression that no human mind can contemplate without horror.

But it seems that the prisoner at the bar was a man of too much consequence to the repose of all the civilized nations; to the great moral system, I might almost say to the great physical system of the universe, to be permitted to act in compliance with the statute that called upon him to surrender himself upon pain of death. The wisdom of the entire continent was called upon to exercise its mediation on this most