Wolfe Tone's Case (1798) 27 State Trials 624
[Theobald Wolfe Tone was an Irish rebel, a member of the United Irishmen who had worked with the French to secure their invasion of Ireland in support of an uprising with the declaration of a republic as its objective. He had been captured during the attempted invasion and sentenced to death by court martial. He was not a soldier in the British Army.]
. . . a motion was made in the Court of King's Bench by Mr. Curran, on an affidavit of Mr. Tone's father, stating that his son had been brought before a bench of officers, calling itself a court martial, and by them sentenced to death.
"I do not pretend to say," observed Mr.
Curran, "that Mr. Tone is not guilty of the charges of which he was accused;
- I presume the officers were honourable men; - but it is stated in the
affidavit, as a solemn fact, that Mr. Tone had no commission under His
Majesty, and therefore no court martial could have any cognizance of any
crime imputed to him, while the Court of King's Bench sat in the capacity
of the great criminal court of the land. In times when war was raging,
when man was opposed to man in the field, courts martial might be endured;
but every law authority is with me, while I stand upon this sacred and
immutable principle of the constitution - that martial law and civil
law are incompatible; and that the former must cease with the existence
of the latter. This is not the time for arguing this momentous question.
My client must appear in this court. He is cast for death this day.
He may be ordered for execution while I address you. I call on the Court
to support the law. I move for a Habeas Corpus to be directed to
the provost marshal of the barracks of Dublin, and major Sandys to bring
up the body of Mr. Tone.
LORD CHIEF JUSTICE [Kilwarden].- Have a writ instantly prepared.
MR. CURRAN. - My client may die while this
writ is preparing.
LORD CHIEF JUSTICE.- Mr. Sheriff, proceeded to the barracks, and acquaint the provost-marshal that a writ is preparing to suspend Mr. Tone's execution; and see that he be not executed.
[The Court awaited in a state of the utmost agitation, the return of the Sheriff.]
Mr. SHERIFF.-My lords, I have been at the barracks, in pursuance of your order. The provost-marshal says he must obey major Sandys. Major Sandys says he must obey lord Cornwallis.
Mr. CURRAN.- Mr. Tone's father, my lords, returns, after serving the Habeas Corpus: he says general Craig will not obey it.
LORD CHIEF JUSTICE.- Mr. Sheriff; take the body of Tone into your custody. Take the provost-marshal and major Sandys into custody: and show the order of this Court to general Craig.
MR. SHERIFF (who understood to have been refused admittance at the barracks) returns. Ð I have been at the barracks. Mr. Tone having cut his throat last night, is not in a condition to be removed. As to the second part of your order, I could not meet the parties.
[A French Emigrant Surgeon, whom General Craig had sent along with the Sheriff, was sworn.]
SURGEON.- I was sent to attend Mr. Tone this morning at four o'clock, his windpipe was divided. I took instant measures to secure his life, by closing the wound. There is no knowing, for four days, whether it will be mortal. His head is now kept in one position. A sentinel is over him, to prevent his speaking. His removal would kill him.
Mr. Curran applied for farther surgical aid, and for the admission of Mr. Tone's friends to him. [Refused.]
LORD CHIEF JUSTICE.- Let a rule be made for suspending the execution of Theobald Wolfe Tone; and let it be served on the proper persons.
[The prisoner lingered until the 19th day of November, when he expired, after having endured in the interval the most excruciating pain.]