sation by a slight misrepresentation of what actually occurred. The learned Judge then proceeded to read over the whole of the evidence, commenting upon it as he proceeded.

The jury acquitted the prisoners. (a)

(a) Another instance, in which the Foreign Enlistment Act, 59 Geo. 3. c. 69., was put in force by the representatives of a foreign power after the British Government had declined to prosecute, occurred in 1863. In the August of that year Mr. (now Sir Harry) Poland, on behalf of Baron Brunnow, the Russian ambassador, obtained a warrant from Mr. Hall at Bow Street for the arrest of "Lieut." Alfred Styles, of the Garibaldian Army, who was enlisting men for

MATERIALS MADE USE OF.-The evidence is taken from the Central Criminal Court Sessions Papers, the indictment from 4 Cox C.C. App. xxvii., and the speeches of counsel and summing-up from the Times of July 6th, 7th, and 9th, 1849, and the brief report in Ann. Reg. 1849, Chron. 71. The diplomatic corre spondence has been obtained from the Foreign Office.

service in the Polish insurrection, in an office in Buckingham Street, Strand. Styles was committed for trial, and, having pleaded guilty, was released on his own recognizances.—Times, August 12th and 19th, and Sept. 24th, 1863.

aliens and denizens, be they merchants or other, as well before the mayor of the staple, as before any other justices or ministers, although the King be party, the one-half of the inquests or proofs shall be denizens, and the other half of aliens, if so many aliens and foreigners be in the town or place where such inquest or proof is to be taken, that be not parties, nor with the parties in contrary pleas or other quarrels, whereof such inquests or proofs ought to be

taken."

This subject is referred to in 6 Geo. 4. c. 50. s. 47, which seems to be merely declaratory of the former Act. It says"Nothing herein contained shall extend, or be construed to extend, to deprive any alien indicted or impeached of any felony or misdemeanor, of the right of being tried by a jury de medietate lingue, but that on the prayer of every alien so indicted or impeached, the sheriff, or other proper minister, shall, by command of the court, return for one-half of the jury a competent number of aliens, if so many there be in the town or place where the trial is

had, &c."

It is clear, therefore, that the prisoner would have been entitled to a jury de medietate lingue, before the late statute 7 & 8 Vict. c. 66., and the question is, whether that statute takes away her privilege, she having been at the time of the trial married to a British subject.

The 16th section is as follows:

That any woman married, or who shall be married to a natural-born subject, or person

naturalized, shall be deemed and taken to be

herself naturalized, and have all the rights and privileges of a natural-born subject."

The spirit of that Act is to confer privileges, and not to take them away. It is attempted to deprive the prisoner by implication of a privilege which is as valuable after marriage as before. The jury system, as a mode of trial, is a part of the constitution of this country, and cannot be altered or destroyed without express words in a statute. There is no mention of juries in 7 & 8 Vict. c. 66. The statute 28 Edw. 3. c. 13. is "in all manner of inquests, &c., amongst aliens and denizens," not between; it would therefore seem to extend to denizens, and is so construed by Chitty in his Criminal Law, p. 525. At that time there could be no great difference between them as far as this question is concerned, for the object was to give to all persons who had been born abroad, under another allegiance, and speaking another language, the advantage of having some men upon the jury who could fully understand that which they might wish to convey. It is true the subsequent statute does not mention denizens, but that does not affect the question here.

WILDE, C. J.: Does Chitty refer to any authority for saying that the Act of

says

If upon an indictment of felony against an alien, he allege that he is an alien, he may challenge the array, &c."

Probably it would be taken for granted that an English subject would never seek to be tried by foreigners. 6 Geo. 4. c. 50. s. 47, 66 says, on the prayer of the alien," but says nothing respecting the proot of alienage. The Attorney-General stated in the court below, that if he acceded to the demand of a jury de medietate lingue, and it turned out that, on the construction of this statute, she was not entitled to it, there would have been a mis-trial; but surely a prisoner, who had been tried at her own request by a jury de medietate linguæ, would be estopped from afterwards contending that she had no right to what she had asked for.

It was further contended that, without reference to the late statute, the prisoner would be deprived of her right, by reason of her being jointly indicted with a naturalborn subject; and Barre's case (a) was cited: there it is said that, upon an information several merchants, some of whom were exhibited by the Attorney-General against aliens, and some English, after issue joined, the aliens prayed a trial per

(a) Moore, 557, and 4 Bac. Abr. 566. The following is a translation of the report of Barre's case in Moore, 557, Mich. 40 & 41 Eliz, The Attorney of the Queen laid an information in the Exchequer against Barre and divers other merchants, of whom some were aliens, some English; and after issue, the aliens prayed a trial per medietatem linguæ. The Court advised with all the judges of England, and at last it was adjudged that they could not have the trial per medietatem linguæ; because the English who are defendants with them cannot have that trial. But the aliens can have a

trial by all English, as they used to have before the statute, and as they would now have, if they it is like the case of privilege, where one did not demand that per medietatem linguæ; and defendant demands privilege, and the Court, as to his companion, cannot hold the plea, and then he shall be ousted of his privilege.-Note in De". C. C. 472. The reporter in 2 C. & K. 888 refers to the trial of Haagen, Swensden, and others before Holt, 14 St. Tr. 559; Swensden's claim to a jury de medietate was allowed, and he was tried separately.

medietatem lingue, but it was resolved by all the judges that they should not have it; and they likened it to the case of privilege, where one of several defendants demands privilege, and the Court, as to his companions, cannot hold plea: then he shall be ousted of his privilege. It is difficult to understand that case in the short note we have of it, for there seems no reason why separate trials should not be had, and then every difficulty would be obviated.

But the main question is, as to the effect of the 7 & 8 Vict. c. 66. In putting a construction upon the words, "all the rights and privileges," in the 16th section, the 6th section may help us: it declares that aliens may obtain a certificate from the Secretary of State, giving them the privileges of natural-born subjects, with certain exceptions mentioned in the Act, and such others as may be mentioned in the certificate. Suppose, then, an alien woman marries a foreigner who has been naturalized, she would, for certain purposes, be naturalized also, but not for all

Though aliens are subject to our laws, and in enormous offences, as murder, &c., are liable to the ordinary course of justice, yet it may be too harsh to punish them on a local statute. Thus a French prisoner indicted of privately stealing from the shop was acquitted of that by direction of the judge, and found guilty of larceny only."

The Attorney-General (with whom were Clarkson, Bodkin, and Clerk) for the prosecution: First, it would have been clearly a mis-trial if the prisoner had been tried by a jury de medietate linguæ, and afterwards held not to have been entitled to it, as it would have appeared on the record that she was not an alien born. Barre's case, as reported in Moore, was rightly decided, and shows that a foreigner indicted with an Englishman cannot have a mixed jury. In Burre's case the information cannot be found, but it decides that a foreigner loses the privilege when he is co-defendant with a British subject. The judges compared the case to one of privilege. The case of

(a) Fost. Cr. L. 188 n.

a peer indicted with a commoner is different, because each class is entitled to be tried by its peers. The first mention of trial per medietatem is in 27 Edw. 3. c. 8., and may serve to show the meaning of the statute passed in the next year-upon which the prisoner relies. It enacts, that upon all plaints before the mayor of the staple, upon which an inquest should be awarded

"If both parties be aliens, it shall be tried by aliens; if both be denizens, it shall be tried by denizens; if one a denizen, and the other an alien, one moiety of the inquest, or the proof, shall be denizens, and the other aliens."

66

This statute did not apply where the King was a party, but the 28 Edw. 3. applies as well to criminal as civil cases. A mistake is made in classing denizens and aliens together; on the contrary, it is obvious, from the wording of the statute, that " denizen is used in contradistinction from "alien," and means those who have the position of British subjects, whether by birth or by patent. Brooke's Abr. tit. Denizen " and · Alien" confirms this view, and it is material to observe that the word which, in the 28 Edw. 3., is translated "amongst," is in fact "entre," which strictly means between, and this explains the passage in Chitty, referred to on the other side. The statute then applies to suits "between" aliens and denizens, but not to those in which either plaintiffs or defendants are of a mixed character, for then the inconveniences pointed out in Barre's case would arise. Besides, in this statute "deuizens" means British subjects.

WILDE, C.J.: Not denizens by letters patent, but denizens by birth. Attorney-General: In Brooke's Abr. tit. Denizen" and " Alien," part 4, it is

66

said

"Denizens are as well those that are English born, as those who were aliens and are made denizens by the King by his letters patent." and part 12

"Where two aliens were at issue, it was awarded that they should be tried by all English; but if alien and denizen are at issue, they shall be tried by English and aliens."

;

Secondly, the prisoner is not an alien c. 50. s. 62, and s. 47 re-enacts the law, 28 Edw. 3. c. 13. is superseded by 6 Geo. 4. but limits the right of trial de medietate, by omitting the word denizens, thus confirming the right to aliens. The Act of 7 & 8 Vict. has naturalized the prisoner.

A jury de medietate linguæ has been formed part of it, were to be taken treated as though the foreigners, which from the country of the prisoner on trial; but a Frenchman might be well tried by a jury of half Russians, the latter

not understanding, perhaps, a word of his language, and the principle, therefore, of the privilege has been entirely misconceived. The right which was conferred by statute may be withdrawn by statute. It is true that 7 & 8 Vict. does not mention juries, but it just as effectually takes away the right, if it changes the status to which alone it was attached. Persons born aliens are not all entitled to the privilege; e.g., persons naturalized under various Acts of Parliament for serving on Queen's ships, serving three years in the whale fishery, &c.: Com. Dig. tit. " Alien," (B.) 2. Aliens only are entitled to the privilege. Is this prisoner an alien? The statute in question declares that if she marries a natural-born subject she is naturalized ipso facto. She was so married at the time of the trial, and had ceased therefore to be an alien. It is said that the naturalization is not absolute; but the words of the statute are as extensive as they can be, with regard to the woman; there is no limitation. It is true that in the 15th section there is a reservation of all rights of property, which in the case of the man might have been otherwise restricted by the certificate; but even then there is no mention of personal rights, which is a clear proof that they were intentionally excluded. Can it be said, then, that a naturalized person is an alien? In Com. Dig., tit. "Alien" (B.) 2, under the heading, "Who is not an alien ?" it is said

"If an alien be naturalized, he shall be to all intents as a natural subject, and shall inherit as if he had been born within the King's legiance." So in Co. Litt. 129a, it is said"If an alien be naturalized, he shall be to all intents as a natural subject."

Naturalization is larger than denization, but even a denizen by letters patent could not claim a jury de medietate. In the case of the Abbot of Westminster v. Executors of Leman Clerke, (a) it is said—

"So is this statute which says that when the matter of an alien born is in trial, it shall be tried per medietatem lingua. Still, if the trial be by all Englishmen, the judgment is not er

roneous."

CRESSWELL, J.: I think that was where there had been no prayer for a jury per medietatem.

Atto ney-General: It is said that a prisoner is entitled to a jury de medietate linguæ, on mere allegation of alienage and demand, and that the prosecution cannot deny the alienage.

POLLOCK, C.B.: We think you need not trouble yourself on that point.

PLATT, B.: If your position is correct, that naturalization places an alien in the

(a) Dyer, 26 b. pl. 172.

Ballantine replied.

WILDE, C.J., delivered the judgment of the Court: From the time this case came from the Central Criminal Court into the hands of the judges, it has received their anxious attention, not for the purpose of forming an opinion, but in order that they might be better prepared to appreciate the arguments that would be addressed to them. We have attentively listened to those arguments, so very ably urged upon us by Mr. Ballantine, and are unanimously of opinion that the objection cannot be sustained, and that the prisoner was properly tried by the jury empanelled at the trial. It appears to all the judges, that, for the purpose of arriving at a just conclusion upon this case, it is unnecessary to enter into many of the topics introduced in the course of the argument. The question is simply this-Was the prisoner, Maria Manning, an alien or not at the time of this trial? If she was, she would be entitled to what she prayed-to be tried by a jury de medietate linguæ. If she was a British subject, she would not be so entitled. Now the effect of a bill of and one could scarcely expect that it naturalization has not been questioned, should be; for the authority of the textwriters is so clear, so uniform, and so consistent, that no advocate of the ability and learning of Mr. Ballantine would question it. By Lord Coke, by Lord Bacon, by Sir Matthew Hale, and by every text-writer; by the various learned editors of all the editions of Blackstone, it is a proposition universally adopted, that a person naturalized becomes to all intents and purposes a British-born subject. That proposition is not at all impugned by the circumstance that in Naturalization Acts certain qualifications are sometimes introduced, because it is competent for the Legislature to impose qualifications individually on British subjects, which do not apply to other subjects of the country. The Royal Marriage Act imposes disqualification in regard to marriage on British subjects, and various other statutes disqualify subjects in particular situations from holding certain offices, and exercising certain rights. The question in this case. therefore, seems to