the Act, by becoming a naturalized subject of a foreign state; and his own declaration was evidence of that fact, and was precisely of the same force and character as that of his being a natural born subject of Great Britain. The Court further considered, that, though the natural allegiance of the prisoner continued as it is, "a debt of gratitude, which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance," yet, as the prisoner had committed a most flagrant breach of duty as a subject, and distinctly repudiated that relation, and asserted a status entirely at variance with it, there was no obligation on the part of the Sovereign to recognize the relation of subject as still continuing; but the prisoner might, at the option of the Crown, be treated as a naturalized citizen of a foreign state. (a) Another important case on the construction of this Statute is that of Reg. v. Lynch. (b) In this case, the charge was the same as in the last; but it differed from it chiefly in the fact that, after it was proved for the prosecution that the prisoner had declared himself, on at least two occasions since his arrest, in writing, to be an American citizen, and that he came to Canada as such, his counsel called a witness on his behalf, who proved that he was born within the Queen's allegiance. It was held, that, although, where a person is born within the Queen's dominions, the rule is, "once a British subject, always one," yet the Crown might waive the right of allegiance, and try him as an American citizen, which he claimed to be. If the prisoner appeared clearly to be a British subject, and there was no evidence that he was an American citizen, he would still be indictable under our statute (a) Reg. v. M'Mahon, 26 U. C. Q. B. 195. (b) 26 U. C. Q. B. 208. law for substantially the same felony, with some variation of statement. (a) His offence in such case, would partake of the nature of treason, and where the Crown has a right to deal with a party as a traitor, they may proceed against him as guilty only of felony. (b) The prisoner having been indicted, under Con. Stats, U. C., c. 98, as a citizen, of the United States of America, was convicted of having, as such, joined himself to divers other evil disposed persons, and having been unlawfully and feloniously in arms against the Queen, within Upper Canada, with intent to levy war against Her Majesty. It was sworn the prisoner had said he was a American citizen, and had been in the American army, and there was no evidence offered to contradict this, and the Court held it evidence against the prisoner as his own admissions, and declarations of the country to which he belonged. (c) At an early hour, on the first of June, 1866, about eight hundred men landed at Fort Erie, in arms, coming in canal boats towed by tugs, the infernce being irresistibly that they came from the United States. The prisoner was seen among them, armed with a revolver. The Canadian volunteers in uniform were attacked at Lime Ridge by these men, who were called Fenians, and some were killed and wounded. The prisoner was within half a mile of the battle field, and attended the wants of the wounded on both sides, and heard the confession of five wounded Fenians. On the day before, the prisoner was talking with the Fenians in their camp, two or three being then officers, and seemed friendly with them. When the Fenians moved, on that day, from their camp, (a) See 31 Vic., c. 14, s. 3; Reg. v. Lynch, 26 U. C. Q. B. 211. some of them left their valises behind, and the prisoner said "Pick up the valises, the boys may want them, we do not know how long we may stay in Canada." The men picked up the valises, and the prisoner followed them. He spoke to the men, and told them to take care of themselves and said to some bystanders : "Don't be afraid, we do not want to hurt civilians." Some one said they wanted to see red coats, and the prisoner said "yes; that was what they wanted." It was held that these facts were sufficient to go to the jury, to establish that the Fenians entered the Province, with intent to levy war against the Queen, and that the prisoner was connected with them, and consequently involved in their guilt. It was also held that even, if he carried no arms, on which the evidence was not uniform, being joined with, and part, of an armed body, which had entered Ontario from the United States, and attacked the Canadian volunteers, he would be guilty of their acts of hostility, and of their intent; and that, if he was there to sanction with his presence, as a clergyman, what the rest were doing, he was in arms as much as those who were actually armed. (a) It was proved that a large body of invaders landed from the American side of the river. They were armed with rifles and bayonets, marched in order and had officers with them, some in uniform and some in plain clothes with green flags, with harps and drums. They took prisoners, and confined them. They said they were going to take Canada, and have farms. Two fights took place with the Queen's troops at Fort Erie, and near Ridgway, and men were killed on both sides. The prisoner was identified as one of the invaders. The prisoner asserted that he came over with the invaders as reporter (a) Reg. v. M'Mahon, 26 U. C. Q. B. 195. AA only, but it was held that this could form no defence for there was a common unlawful purpose, and the presence of any one, in any character, aiding and abetting or encouraging the prosecution of the unlawful design, must involve a share in the common guilt. The facts above stated, were held evidence of an intent to levy war. The fact of the invaders coming from the United States, would be prima facie evidence of their, being citizens or subjects thereof. (a) Where it was proved that several hundreds of armed men landed in this Province from the United States of America; that, very shortly afterwards, the prisoner came from the same place; that he was with them all the night, previous to an attack made by them on the Canadian volunteers, and was, early in the morning, on which the attack was made, seen carrying a rifle and bayonet, similar to those carried by the invaders, and altogether different from those used by Her Majesty's troops: it was also shewn that this armed body was organized; that it encamped and marched in military order; that it took prisoners, engaged Her Majesty's troops, and killed several of them :-Held, evidence of an intent, on the part of the prisoner, to levy war against Her Majesty the Queen, and that this intent, as laid down in Frosts case, (b) may be collected from the acts of the accused, the bellum percussum of the body, with which he is identified, and does not require the passing of a resolution, or a verbal, or written declaration, plainly expressive of a purpose to levy war. (c) In this case, it was further proved that the prisoner was in arms, at Fort Erie, in Ontario, at four o'clock, in the morning of the attack made upon the volunteers, and that he had been there with the (a) Reg. v. Lynch, 26 U. C. Q. B. 208; and see Reg. v. School, ib., 214. (b) 9 C. & P. 1.50. (c) Reg. v. Slavin, 17 U. C. С. Р. 205. armed enemy the night before :-Held, evidence that he was in arms, in Upper Canada, with intent to levy war, notwithstanding his statement that he had found the weapons, with which he was armed, upon the road, and the fact that there was evidence of his having been unarmed the night before. It is not necessary, in order to render a party amenable to the Statute, that he should actually have arms upon his person; it is quite sufficient that he is present, and concerned with those who are armed, even, though he do not carry arms himself; for all who are present at the commission of the offence are principals, and are alike culpable in law. (a) In this case, evidence was admitted, against the prisoner, of the engagement above alluded to, although the same took place several hours after his arrest:-Held, that the evidence had been properly received, as shewing, to some extent, that the engagement in question had been contemplated by the parties, while the prisoner was with them before his arrest. In Reg. v. School, (b) the prisoner was indicted in two sets of counts, one charging him as a citizen of the United States, the other as a subject of Her Majesty; but the corpus delicti in all the counts was the same, viz. the levying of war or intent to do so. It was contended on the trial that the Crown should elect on which set of counts it would proceed; on the ground that the prisoner was thereby forced to defend himself against two distinct offences, and was thereby embarrassed in his defence; but the Judge refused to call upon the Crown to elect, and the Court confirmed his ruling; it would seem on the ground that the corpus delicti and the overt acts (a) Reg. v. Slavin, 17 U. C. С. Р. 205. (b) 26 U. C. Q. B. 212. |