WHEREAS by an Act made and passed in the 11th and 12th years of the reign of her present Majesty, entitled "An Act for the Further Amendment of the Administration of the Criminal Law," it is amongst other things enacted, That when any person shall have been convicted of any Treason, Felony, or Misdemeanour, before any Court of Oyer and Terminer, or Gaol Delivery, or Court of Quarter Sessions, the Judge, or Commissioner, or Justice of the Peace, before whom the case shall have been tried, may, in his or their discretion, reserve any question of law which shall have arisen on the trial for the consideration of the Justices of either Bench and Barons of the Exchequer.

That the Judge, or Commissioner, or Court of Quarter Sessions, shall thereupon state, in a case signed in the manner now usual, the question or questions of law which shall have been so reserved, with the special circumstances upon which the same shall have arisen, and such case shall be transmitted to the said Justices and Barons.

And whereas it is expedient that Regulations be made for the convenience of the Court established under the said recited Act:

IT IS ORDERED, that when any case shall be transmitted by a Court of Oyer and Terminer, or Gaol Delivery, or Court of Quarter Sessions, for the consideration of this Court, the original case signed by the Judge, or Commissioner, or Chairman of Sessions, reserving the question of Law, and seventeen copies of such case, one for each Judge, and one for each party, shall be delivered to the Clerk of this Court, at the Exchequer Chamber,

(Signed)

Westminster, at least four days before the day appointed for the sitting of the said Court.

That every case transmitted for the consideration of this Court briefly state the question or questions of Law reserved, and such facts only as raise the question or questions submitted; if the question turn upon the Indictment, or upon any Count thereof, then, the case must set forth the Indictment, or the particular count.

That no case be heard upon any Demurrer to the Pleadings.

That every case state whether Judgment on the conviction was passed, or postponed, or the execution of the Judgment respited, and whether the person convicted be in prison, or has been discharged on recognizance of bail to appear and receive Judgment, or to render himself in execution.

That when any case is intended to be argued by Counsel, or by the parties, notice thereof be given to the Clerk of this Court, at least two days previously to the sitting of the said Court.

That with every case delivered to the Judges of this Court (except such cases as shall be reserved by such Judges) the Fee payable to the Clerks of the said Judges shall not exceed the fee payable on "Demurrer and other paper books," as contained in the Table of Fees allowed and sanctioned by the Judges, pursuant to the statute 1 Vict. c. 30.

R. M. ROLFE.
WM. WIGHTMAN.
C. CRESSWELL.
W. ERLE.

T. J. PLATT.

E. V. WILLIAMS. T. N. TALFOURD.

Alien- Naturalization by Marriage Claim of Trial by Jury de medietate linguae.

A female alien, who has married a natural born subject of this realm, is by virtue of the statute 7 & 8 Vict. c. 66. s. 16. naturalized, and acquires the status of a natural born subject; and, consequently, when indicted for an offence is not entitled to be tried as an alien by a jury de medietate linguæ.

The following CASE was stated for the opinion of the Judges by Pollock, C.B.

At the last Sessions of the Central Criminal Court (Oct. 19, 1849), Frederick George Manning and Maria his wife were jointly indicted for the murder of Patrick O'Connor. Both prisoners pleaded not guilty; but the female prisoner claimed a jury de medietate linguæ. She was born at Lausanne, in Switzerland, and, in the year 1847, was married to the male prisoner, a natural born subject of this realm.

The prisoner's counsel referred to the statute 28 Edw. 3. c. 13. and to the 6 Geo. 4. c. 50. s. 47. The Attorney General for the prosecution relied upon the statute 7 & 8 Vict. c. 66. s. 16 (1), and on

• Before Wilde, C.J., Pollock, C.B., Coleridge, J., Rolfe, B., Cresswell, J. and Platt, B.

(1) The statute 28 Edw. 3. c. 13. s. 2. enacts, "that in all manner of inquests and proofs which NEW SERIES, XIX.-MAG. CAS.

Barre's case (2). The Judges (the Lord Chief Baron, Mr. Justice Maule, and Mr. Justice Cresswell,) decided, that the prisoner was not entitled to a jury de medietate linguæ, and the trial of both prisoners proceeded in the ordinary manner, and both were convicted.

be to be taken or made amongst aliens and denizens (1), 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 inquest or proof 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 contracts, pleas, or other quarrels, whereof such inquests or proofs ought to be taken." The section then provides for the case of a deficiency of aliens in the place.

In the 6 Geo. 4. c. 50. s. 47, it is enacted, "that nothing herein contained shall extend or be construed to extend to deprive any alien indicted or impeached of any felony or misdemeanour of the right of being tried by a jury de medietate linguæ ; 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, and if not, then so many aliens as shall be found in the same town or place, if any," &c.

The 7 & 8 Vict. c. 66. s. 16. provides, "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." (2) Moor, 557.

(1) In the old French version the phrase is "entre aliens et denzeins."

B

The question is, was the female prisoner entitled to a jury de medietate linguæ.

Ballantine, for the prisoner.-The statute 28 Edw. 3. c. 13. entitled the prisoner to claim to be tried by a jury de medietate linguæ. Her right to such a jury is preserved by the Jury Act, 6 Geo. 4. c. 50. s. 47. The objection that the prisoner has not been tried by a proper jury is an objection of substance and not a mere technical objection. By the statute of Edw. 3. both aliens and denizens are entitled to demand this mode of trial: they are put on the same footing-1 Chit. Crim. Law, 525. When the act of Edw. 3. passed the distinction between naturalized persons and denizens was not much attended to. The intention of the statute was to give to all persons who were born abroad the advantage of being tried before those who could understand their language, feelings and habits, who could comprehend the explanation which probably they might not easily be able to make intelligible to Englishmen. In 1 Dyer, 28, a, the effect of the statute of Edw. 3. is stated in these words: "When the matters of an alien born are in trial, it shall be tried per medietatem linguæ." This shews the opinion of the Court there, that the right claimed was to depend upon the place of birth. The law favours foreigners - Molière's case (3). By the law of nations and of this country a person cannot divest himself of the allegiance he owes to the place of his birth. It is true the word "denizen" is not used in the statute of Geo. 4. The allegation of the prisoner that she was an alien entitled her to a jury de medietate linguæ. The statute provides no means of trying whether a party is an alien or not. No such issue has ever been raised. The Court had no right to put her to the proof that she was an alien. The law assumes that no Englishman would desire to be tried by a foreign jury. In 2 Hale, P.C. 272, it is said, If a person allege that he is an alien," &c. "he may challenge the array." Her being jointly indicted with her husband does not deprive her of her privilege. The statute of Edw. 3. provides, "that in all manner of inquests and proofs which be to be taken or made amongst aliens and deni

66

(3) Foster, 188; s. c. Bac. Abr. tit. 'Alien' (C, 2).

It

zens," &c. the jury shall be half aliens half denizens. The word is 66 amongst," not "between." Barre's case (4), relied on by the Crown, is a case of no authority. appears to have been an information at the suit of the Crown, against several persons of whom some were aliens, and that the aliens prayed to be tried by a jure de medietate linguce, and that the Court refused the request on the ground that the English defendants could not have this kind of trial, but that the alien defendants could be tried by an English jury. It is not stated whether the information in that case was a civil or criminal proceeding. The circumstances of the case are not set forth. The reason assigned by the Court is unintelligible. At any rate it has no application here; for there could have been no legal difficulty in trying Mrs. Manning and her husband by separate juries. To hold the being jointly indicted with an Englishman to bar the claim of the alien, is to repeal in a great measure the statute of Edw. 3. and the provisions of the Jury Act.

The statute 7 & 8 Vict. c. 66. s. 16. does not affect this claim. The intention of the statute, as expressed in its preamble and provisions, is to give, not to take away privileges from aliens, to enable aliens in a simple manner and at small expense to become citizens of this country, without depriving them of any rights they may already possess as aliens. By the construction contended for by the Crown, the act will have the effect of taking away an important privilege from a woman, an alien, who had some years before the passing of the statute married an English subject under the expectation that all her rights as an alien would be preserved to her; and this it will do by an ex post facto enactment made without her consent, and without notice to her. Ordinarily a person is not naturalized without some act of volition on his part. There is not in the statute the least intimation of any intention of affecting the mode of trial by jury. The expression in the section that she shall be deemed to be naturalized cannot be taken to give to the word "naturalized" its full meaning. The context of the act restricts the signification. Section 6. provides for

(4) The case is cited in Bac. Abr. tit. 'Juries,' (E,) 8, 568, as well as in Moor, 557.