1869, by the full Court of Queen's Bench upon a case reserved by Mr. Justice Mackay, as follows:

"The prisoner was tried before me on the 3rd July, 1869. At the commencement of the trial, while the petty jury were being formed, and the jurors called for this trial, numbers of jurors were ordered to stand aside,' on the prayer of the Crown prosecutor. So many jurors had been so made stand aside,' and so many had been challenged peremptorily by the prisoner, that before a complete jury was formed the whole list was gone through once: resort had then to be had to those who, just before, had been made 'stand aside.' I ordered them to be called in order. On the first of these, namely Adolphe Masson, being called, he answered, and was advancing to the jurybox, when he was ordered to 'stand aside' by the Crown prosecutor; the prisoner's counsel objected, insisting that Masson should be sworn, unless the Crown had cause for challenging him, and did then state sufficient cause. This the Crown refused to do. I ruled in favour of the Crown, and Masson was ordered to 'stand aside,' and he was not sworn. Others were called afterwards, sworn, and the trial proceeded The prisoner was convicted, and the Court of Queen's Bench, Drummond, J., dissentiente, maintained the conviction.

It is most remarkable, in this last case, that the learned Judges have completely ignored sec. 7, par. 8, of the 27-28 Vic., ch. 41 (1864), then in full force, and even now not expressly repealed. It is in the following terms:

"No person arraigned and about to be tried for any felony shall be permitted peremptorily to challenge more than twenty of the jurors appearing, when called in court, to serve as jurors upon such trial; and no challenge on behalf of the Crown, shall be finally maintained by the Court, except for cause, unless there remains a sufficient number of qualified jurors in attendance on the Court, without the persons challenged, after the right of challenge on behalf of the person prosecuted has been exhausted."

Now this clause has never been expressly repealed though it seems, as in Lacombie's case, not even to have been mentioned in the late case of Rex. vs. Dougall, 18 L. C. Jur. 242, where the question of the Crown challenges was raised (see post, under sec. 40). Of course, though not expressly mentioned in the General Repeal Act of 1869, it stands by sec. 1 thereof, repealed in so far as it is contrary or inconsistent with the Procedure Act of 1869. And this clearly destroys the first part of this clause of the Act of 1864, which gives twenty peremptory challenges in all felonies. But the second part of this clause remains law. In fact, it contains nothing but a re-enactment of the Statute of Edward I., and says exactly the same thing in other words.

And so, besides the granting of four peremptory challenges to the Crown, section 38 of the Procedure Act is not new law, and contains nothing but the rule on this question as it has always been since the 33 Edward I, which is interpreted by Blackstone as fol

lows: "However it is held that the King need not assign his cause of challenge till all the panel is gone through, and unless there cannot be a full jury without the persons so challenged. And then, and not sooner, the King's counsel must shew his cause, otherwise the juror shall be sworn: " 4 Blackstone, 353.

And it is said in 2 Hawkins, 569:

However, if the King challenge a juror before a panel is perused, it is agreed that he need not show any cause of his challenge till the whole panel be gone through, and it appear that there will not be a full jury without the person so challenged." See also Bacon's Abr. Verb. "juries," E. 10.

"The King need not

In 1 Chitty, 547, it is said: show the cause until the whole panel is exhausted, and if one of the jurors was not present, but appear before his default is recorded, the King's counsel, if he has previously challenged another juror, need not assign his cause of challenge till after such defaulter has been sworn."

In the case of Reg. vs. Geach, 9 C. & P. 499, Parke, B., is reported to have held that: "if on the trial of a case of felony, the prisoner peremptorily challenges some of the jurors, and the counsel for the prosecution also challenges so many that a full jury cannot be had the proper course is to call over the whole of the panel in the same order as before, only omitting those who have been peremptorily challenged by the prisoner, and, as each juror then appears, for the counsel for the

prosecution to state their cause of challenge; and if they have not sufficient cause, and the prisoner does not challenge, for such juror to challenge.

Upon this case, Lord Campbell, C. J., in Mansell's case, supra, remarks: "There can be no doubt that the course pointed out by the learned Judge was, under the circumstances, the proper course; but is there any reason to suppose that if, after the panel had been once called over, and before any further step had been taken for the formation of the jury, jurors on the panel who had been called and did not at first answer had come into court in sufficient number to make a full jury, they would have been rejected, and the Crown would have been put to assign cause for its challenges?...... No doubt it may be assumed, prima facie, that all the jurors in the panel are in Court when the panel is called over, and if, when it has been once called over, there is not a full jury made, the usual course would be immediately to call the names over again, and to put the Crown upon assigning cause of challenge........ but there is no decision nor dictum to the effect that the panel may not be called over again, with a view to see whether there may not be some of the jurors in the panel who may have come into court, and who may make up a full jury, without putting the Crown to assign cause of challenge."

JURIES DE MEDIETATE LINGUÆ.

Sec. 39.-Juries de medietate linguæ shall not here-after be allowed in the case of aliens.

Ever since the 28 Edw. III. ch. 13, aliens, under our Criminal Law, have been entitled to be tried by a jury composed of one half of citizens and one-half of aliens or foreigners, if so many of these could be had. It seems to have been thought necessary, in Reg. vs. Vonhoff, 10 L. C. Jur. 292, that these six aliens should be natives of the country to which the defendant alleged himself to belong, but the better opinion seemed to be that six aliens were required, without regard to what nationality they were of. Sec. 2 of 28 Ed. III. ch. 13 says "the other half of aliens."

However, this is now of historical interest only, and the above clause has put aliens, all through the Dominion, on the same footing as British subjects, as to the composition of the jury, so that aliens can never now be jurors. As to the Province of Quebec: see sec. 4, par. 5, 32 Vic. ch. 22.

In England also now, an alien is not entitled to a jury de medietate linguæ: 33 Vic. ch. 14, Imp. (1870).

MANITOBA AND PROVINCE OF QUEBEC.—JURIES HALF ENGLISH AND HALF FRENCH.

Sec. 40-In those districts in the Province of Quebec in which the Sheriff is required by law to return a panel of petit jurors composed one half of persons speaking the English language, and one half of persons speaking the French language, he shall in his return specify separately those jurors whom he returns as speaking the English language, and those whom he returns as speaking the French language respectively;