#### State *v*. Antonio.

From Craven.

An alien is not entitled to a jury *de medietate lingua,*in North-Carolin*.

This vras an indictment for murder, tried below before Norwood, Judge. The prisoner, upon his arraignment, pleaded not guilty, and suggested to the Court that he was an alien, and prayed that he might have a jury *de medietate linguse;*it was admitted on the part of the state that the prisoner was an alien. The Court overruled the motion for a jury *de medietate,*and the prisoner was convicted, and sentenced to death.

*201Tiie prisoner moyed, before judgment, *to*set aside the verdict, and have a new *venire*because of the denial of his prayer for a jury *de medietate,*which' being refused, and judgment pronounced, the prisoner appealed.

*Gaston,*for the prisoner,

contended, that the stat. 28 *Ed.*S. *ch.*IS. giving a jury *de medietate*in England, and yet in force there, was unquestionably the law which our ancestors brought with them. That it was, before the revolution, the law of North-Carolina; for it was not *“*incompatible with our way of living and trade.” Act of *1715, ch. 5.*See also the act of 1746, *ch.*2. § 23. § 10.

It has been allowed also in several of the states; in New-York (2 *Johns. Rep.*S81.) and in Pennsylvania, (1 *Balias*73.) and seems to have been used in the colonies of Maryland, Virginia and South-Carolina. (Mr. *Gas-ton*here read letters from professional gentlemen of the before named states, on the subject of allowing a jury *de medietate*in those states.)

The bill of rights of North-Carolina declares, that« no freeman shall be convicted of any crime but by the unani'mous verdict of a jury of good and lawful men in open Court, as heretofore used.” And the act of 1778, *ch.*133. JY. *Rev.*re-enacts “ all such statutes as were heretofore in force and use within this territory,” which are not repugnant to, or inconsistent with, our political institutions and form of government.

The act of 1779, directing the mode of procuring juries in this state, cannot be construed a repeal, for the instructions there given can only be viewed as *directory,*and are subsidiary to the well known and established principles, and the general statutes in England prescribing the qualification of jurors have not been held to take away, by implication, the right to a jury *de medietate.*Then why should they here? The general regulations in Pennsylvania, also, are as strong as ours, and yet the right itf there allowed.

*202In 1793, it was decided at Wilmington (as I have heard,) by the highest judicial authority known to the country at that time, that an alien was entitled to a jury *me¿letate.*

Henderson. — Judge *Williams*informed me, that he allowed it at a Court of Oyer and Terminer held at Wilmington many years ago for the trial of some prisoners who were aliens and natives of France.

*Gaston.*— It seems, then, to have been considered the law; the legislature has not since altered it.

In 1817, the legislature appointed commissioners to enumerate and specify the British statutes in force in North-Carolina, and they have declared this of 28 *Ed.*3. to be one. (1 *JVkw Rev.*88.) In 1819, the legislature adopted their report, and ordered copies to be delivered to the Courts for their guidance: six years have since elapsed, and the legislature have not Seen fit in any way to alter it.

The *Attorney General,*for the state.

— Upon an examination of the subject, it will be found to be at least a questionable point whether, even in England, at the prey sent day, a jury *de medietate*would be allowed. (3 *Bl.*361.) But be that as it may, it ought clearly to be shown that such a jury was allowed, or in use here, when our act of 1778 was passed: It should be shown that while we were *colonies*it was the law and practice of North-Carolina.

The true inquiry here is this, haye our acts regulating juries as to qualification, &c. operated a-repeal of the stat. of *Ed.*3. According to the rules laid down for the construction of statutes, *(Bac.M. “Statute” G.*ll *Co.*63.) it would seem to me that the directions given by our law for obtaining juries, and suited to the construction of our Courts, must operate a repeal of all other modes (supposing their previous existence to be undoubted,) which were inconsistent with the constitution of our Courts.

*203If this be true, it will follow that an alien cannot claim a jury *de medietate:*for it does not seem to have been in the contemplation of our legislature to permit a Superior Court to issue a *venire*in any case, or under any circumstances; and the power given the Court to direct the sheriff to summon in certain cases *tales de circumslantibus,*plainly shows that it has no general power to have a jury summoned. Now, how does the motion for a jury *de medietate*operate? *Hawkins*says, as a challenge to the array, and that the Court must issue a new *venire*for the whole array; but, says our statute, the *County*Court alone shpll issue a *venire,*for it alone can determine as to competency in point of freehold.

The sister states haye been resorted to. I can only say, that the practice or statutes of the sister states cannot affect a matter on which (as I contend) we have legislated for ourselves. But it may be remarked, that in Pennsylvania the practice rests entirely on *usage,*and the Court will not examine the right there because of such usage. In South-Carolina, an act of assembly gives an alien the right: if, ás has been contended for the prisoner, he had it by virtue of the stat. of *Ed.*why should a law be made to give it again? As to the phrase *“*good and lawful men,” in the bill of rights, it does not include *aliens;*they are not deemed such by the law'.

Of the case at Wilmington I know nothing; but I apprehend it must either have been a conceded point by the prosecutor; or the Court, not having an opportunity of examining the point, felt unwilling to withhold from a prisoner a right which might possibly be his, more especially when the prosecuting officer made no objection. But how'ever this may be, if circuit decisions are available, the point has more than once been ruled on the circuit against the alien’s claim.

As to the report which has been made to the legislature by the commissioners, that the act of *Ed. 3.*is here in force, it seems to me that it can be viewed as nothing *204more than the opinions of professional gentlemen on the point- The legislature has done nothing, that I know of, to directly sanction or disapprove of the report. When, jj0wever, it means to give its sanction to such a compilation, it has commonly heretofore said so; its silence, therefore, on this occasion, would load my mind to results different from those of the prisoner’s counsel.

The Court differed in opinion, Haie and Henderson holding that the prisoner was not entitled to a jury *de medietaie,*and the Chief Justice that he was, and they delivered their respective opinions *seriatim,*as follows:

Hare, Judge. —

The privilege extending to aliens the right to a jury *de medieta'te linguae*was granted by stat. 28 *Ed.*3. *ch.*13. re-enacted by the 8th *Hen.*6. *ch.*29. It is contended that those statutes are in force in this state, and that that privilege has been improperly withheld from the prisoner in this case. It is said that the act of 1715, New *Rev. ch.*5. enforces those statutes. That act declares, that all statute laws of England, providing for the privileges of the people, limitations of actions, preventing vexatious law-suits, immorality and fraud, confirming inheritances and titles to land, shall be in force. It is farther argued, that the act of 177 8, *New Rev. ch.*133. embraces them. That act declares, that all such statutes and such parts of the common law as were in force and use as are not destructive of Or repugnant to the freedom and independence of this state, &c. and which have not been provided for, in whole or in part, &c. are declared to be in full force.

If those British statutes were in force before the revolution, I do not think the latter act of assembly excluded them; but I do not think they were in force by the first recited act. That act, so far as relates to this question, enforces such as provided for the privileges of the people; the statutes in question provides for the privilege of aliens. I admit, however, that many statutes of Great Bri» *205tain had become the Raw of this state before the time of passing that act. When "the state was first settled as a colony of Great Britain, the colonists brought with them, as their birth-right, the laws of the mother country, namely, such parts of the common law, and statutes that were incorporated with it, as were suitable to their situation at the time of their migration; such as the statute 4 *Ed. 3. ch. 7. de honis asportatis in vita testatoris,*the statute of uses, and the statutes of *Elia,*against fraudulent conveyances to defraud creditors, &c. And if the statutes we are Sow considering were suitable and proper for the government and well being of the colonists at *that*time, and were not afterwards repugnant to or inconsistent with the freedom and independence of the state and form of government therein established, I admit tliey are in forcfe at this time. But it seems to me that those statutes were in their nature local; they were founded more in commercial policy than in general principles calculated to answer alone the ends of justice and reach the objects of criminal law. They both speak for themselves. The statute of *Hen.*6. premises, that for want of such regulations “many merchant aliens have withdrawn, and daily do withdraw them, and eschew to come and be conversant on this side the sea, and likely it is that, all the said merchant aliens will depart out of the same realm of England if the said last statute be not more fully declared, and the said merchant aliens ruled, governed and demeaned in such inquests according to the first ordinance aforesaid; to the great diminishing of the king’s subsidies, and grievous loss and damage of all his said realm of England; and our lord the king, willing therein to provide for the weal and profit of him and all his realm, and to eschew the damages and inconveniences which may easily happen in this behalf; and also to give the said merchant aliens the greatest courage and desire to come with their wares and merchandizes into this realm: by advice of the lords, &c. it is declared, &c.” It will be kept in view that this *206statute was re-enacting the statute of *Ed. 3.*which first gave the privilege to aliens, which statute it was supposed had been repealed by the statute of *Hen. 5.*in the precet]jng reign.

In the infancy of the settlement of this country, the habits of the colonists were agricultural; their trade and commerce were altogether in the hands of the mother country; a quite different policy prevailed from that which dictated the statutes *oí Ed.*S. and lien. 6.; and the question which we have now to decide is, not whether such a law extending the privilege to aliens would be suitable to our *present*situation, as it seems many of the states have thought it would be, but whether it was suitable to our situation as an infant colony at that time; for if that was not the case, and on that account it was not adopted at that time, it is not the law at this day, for it has never been enforced by any positive law.

I therefore think, as the reasons which induced the parliament in England to enact those statutes, were not good reasons why they should be enforced by the colonists, as not being applicable to their then situation, the Court below gaye a correct judgment in refusing the prisoner the jury he prayed for.

Henderson, Judge. —

I concur in the opinion given by Judge Hat.x, and for the reasons given by him. The policy which induced the parliament of England to pass the statutes of *Edward,*was to encourage foreign merchants, and possibly artists, to come and trade with and reside among them. This policy is not only declared in the act itself, but in the act of *Hennj*6. complaining of the construction given to an act of *Henry 5.*respecting the qualifications of jurors. In the colonial system, the policy was certainly inverted. Foreign merchants were prohibited from trading with us; and artists were certainly not encouraged, for it was the policy of the mother country to supply the colonists with manufactures of her *207own production, and to keep the colonists engaged in the cultivation of the earth, to grow the raw materials for the manufactures of the mother country. As to those to-reigners who were mere cultivators of the soil, and who might possibly have been invited to settle among us, as we find frequently bodies of Germans, Swiss, and French, settling among us, the moment they arrived here for that purpose they were considered as colonists, having no intention to return; and therefore, having no interests sepc-rate and distinct from other colonists, they lost their alien character. A few years residence here was required only to ascertain their character, and to show that their object was a permanent residence; and then they becarnb entitled to all the rights and privileges of colonists from the mother country. Our ancestors, therefore, did not bring with them the statute of *Edward.*This law, I think, was territorial, and confined to England; it was unsuitcd to the situation of the colonists. If it was not brought with our ancestors, there is no act either of the colonial government, the mother country, or of our present government, which imposes it. The last act upon the subject enforces such acts of the British government as had been in force and use here, and were compatible with our form of government. If, therefore, it had not been in force before, that act did not enforce it. I am at a loss to declare the meaning of the words *in use,*as used in that act; I am now, and heretofore have been, much perplexed to ascertain its meaning; but I am satisfied that it, produces no such effect, as enforcing the act in question-I would mention, also, the various acts of our legislature on the subject of the qualification and appointment of jurors, as affording some evidence, although, I admit, not conclusive, that the law of *Edward*was not considered as being in force. I do not mean to say, that had the act of *Edward*been in force, that these provisions would repeal it, for I think that they might be made to stand together; but only as affording gome evidence that the law was not *208in use, and'sufficiently strong to repel the evidence of its ^cing *a ,,scj arising from its having been used by Judge *Williams*once or perhaps twice at Wilmington; if such partial and' solitary inctances of its being in use would satisfy that word in the act of 1778.

I place no reliance on the report of the getlemen on the subject, who lately revised our statutes. That report was not either sanctioned by law or disapproved; it was simply ordered to be published. And if the question was dependant on its having a legislative sanction by such order of publication, I would say, that it was rather evidence that it had not. This subject ivas brought before the legislature by the report, and it was simply ordered that it should be published, without expressing any opinion thereon. It ivas saying, that it must depend on its own merits, we will neither giyc it our sanction or disapprobation.

I, therefore, concur with Judge Hah, that there should be judgment for the state.

Tayxoh, Chief Justice. —

It is difficult, perhaps impossible, to arrive at exact demonstration on a subject that involves the question whether an ancient British statute, passed nearly five hundred years ago, is now in force in this state. There are no certain guides to direct us in an inquiry of this sort; for the darkness that hangs over the early legislation and judicial history of this state, the dearth even of traditional knowledge, has left us little to resort to but general principles and reasoning, and no confidence that more can be done than grouping together the strongest probabilities. It is a matter of the highest duty, however, to make an honest effort to investigate the subject, in a case of such awful interest as the one before us, where, in all human probability, the life of a fellow being depends on our decision.

In order to ascertain whether the prisoner has been legally convicted, I shall consider two questions; 1st, *209whether the statute of 28 *Ed.*3. allowing to aliens a trial *de medietate linguse,*forms a portion of that statute law of Great Britain, which the first settlers of this state brought with them from the mother country; 2dly, if it does, then, whether it has been repealed, or superseded by any legislative act of our own.

It seems to be agreed by the writers on the subject, that colonists who settle a new and uninhabited country, carry with them the laws of the parent country as their birth-right, so far as such laws are applicable to their situation, and the condition of an infant colony; or in the language of an early act of assembly, the laws of England were, at the first migration of our ancestors, the law’s of this proyince, <•' so far as they were compatible with our way of living and trade.” (1715, *sec.*1.)

The policy of the 28 *Ed.*3. was, to encourage foreigners, merchants and others, to resort to that country, under an assurance that justice should be impartially administered to them; and that such a liberal mode of trial’ should be practised, in all controversies in which they were parties, as would prevent the operation of prejudice, and place them under no disadvantage, to be apprehended from their ignorance of the customs and manners of the people among whom they fount! themselves.

There is the highest evidence of the wisdom of this policy in relation to England; for when the statute of 2 *Henrtj*was afterwards enacted, that no person should pass on any inquest, unless he had lands and tenements to the yearly value of forty shillings, and a construction was put on this act which excluded aliens from the privilege of a trial *de medietate*linguse, the parliament interposed, and by the declaratory act of 8 *Hen.*6. after reciting the mischiefs suffered from aliens leaving the kingdom in consequence of this construction, they declare, that the statute of *Hen.*2. did not intend to change the mode of trial where an alien was a party; but was meant to prescribe the qualification of jurors? between de» *210nizen and denizen. The act expresses an anxiety to give to the said merchant aliens *“*the greatest courage and desire to come with their wares and merchandize into this realm.”

As the wealth of the parent state would increase with the prosperity of the colonies, any British statutes having a tendency to promote that object, were applicable to the circumstances of the new settlers. Immense forests were to be cleared, lands to be reclaimed and cultivated, -and various labours to be performed, to which capital, cnterprize and industry, were essential; and these were likely to be drawn from other sources besides the parent state, in the degree in which foreigners could be assured that they would enjoy a certainty oflegal protection.

The statute of 28 *Ed.*may have been supposed to have been a mere commercial regulation, from the words of 8 *Hen.*6. « merchant aliens;” but the act itself says *“*merchants and *others.”*It is true that more of the trading profession of persons resorted to England at that period, than others, yet no distinction was made between them and other classes of aliens: all were equally *entitled to*the privilege.

The mechanic arts, and the sciences, were then struggling into a feeble existence; and of course few foreigners could bring any improvements, or discoveries, into a country where they received their first and strongest impulse. But in after ages, it became the interest of Great Britain to introduce foreigners from states which rival-led or exceeded them in many of their manufactures; and it was equally important that this mode of trial should be allowed to all descriptions, as the means of extending their commerce through their manufactures, and of en - riching their country by the diffusion of useful knowledge. But at the present day, aliens are to be found in every state; some, impelled to leave their native country by religious proscription, or political intolerance; many inspired with the hope of improving their fortunes, or be*211ing relieved from tbe anxiety of providing for their posterity, by the new and ever improving prospects opened to mankind by the salutary influences of a perfectly free government. All, however, bring with them, in a greater or less degree, the arts and industry that multiply the resources of man, or discoveries in science that give strength to his character, or embellishment to his existence.

But recurring to the early history of our own state, ft may be thought, that the system of commercial monopoly established by tbe navigation act, and which, probably, went into full operation about the time the first permanent settlements were made here, would prevent the access of foreign merchants, and thus render useless ami inapplicable the mode of trial now in discussion. That the colonial system would, in a very great degree, prevent an intercourse with merchant aliens, must be admitted; but it is evident, that the policy of that system was ■best promoted by giving encouragement to foreign agriculturists, and others, who would add to those productions of the soil which were exported to the mother country. The most advantageous employment of any capital to the country to which it belongs, is that which maintains there the greatest quantity of productive labour, and increases, in the greatest degree, the annual produce of the labour and land of that country. All the surplus produce of the colonies, which consisted in' what were-called enumerated commodities, could only be sent to England; and other countries must afterwards buy them of her.*

The policy of encouraging foreign settlers was invariably pursued by tbe mother country, particularly as to these *thwi*colonies. By this she was a great gainer, without any diminution of her own inhabitants. In Pennsylvania, upwards of four thousand Germans w ere imported in the year 1750.† The French Protestant refugees fled to Carolina in great number’s, from and after the re*212vocation of the edict of *Nantx******in 1685,* which was before the division of the colony into North and South-Carolina. Many years before the revolution, a considerable p0{jy 0f Palatines† migrated hither, and settled upon lands of which many of their descendants are, at this day, respectable cultivators. Swedes and Dutch from N. York, French from the line of posts on our frontiers, and Spaniards from our southern borders at St, Augustine, must often have found their way to this state, and, in the vicissitudes of human affairs, required the advantage of this mode of trial.

The colonies (says an elegant historian‡) which now form the U. States, may be considered as Europe transplanted. Ireland, England, Scotland, France, Germany, Holland, Switzerland, Sweden, Poland, and Italy, furnished the original stock of the present population, and are supposed to have contributed to it in the order they are enumerated.

But this position may be farther maintained by authority of the British parliament; for by the act of 13 *Geo.*2. foreigners residing seven years in the American colonies, were naturalized; and by 2 *Geo.*2. foreign protestants, serving in royal American regiments for two years, were naturalized. Still those foreigners might require the allowance of this mode of trial, until their right to naturalization was complete by the prescribed term of residence; and I think it probable, that the demands and necessity of it, would be not less frequent here than in England, in proportion to the difference of population.

For it is a well known fact in the history of national manners, that the mass of the population of the two rival nations, England and France, was formerly nurtured in inveterate prejudices against each other; and we cannot suppose that the minds of our ancestors were purified from the taint of the parent hive by a transatlantic *213voyage. It may well be believed, that a Frenchman, tried for his life in N. Carolina, before the revolution, would as earnestly invoke the protection of the stat. of 28 *Ed. S.*as if he were tried in England; and when we look at the habits and rank in life of the early settlers, who were to form his jury, would stand in equal need of it. *“*For a long time it was but ill inhabited, and by an indigent and disorderly people, who had but little property and hardly any law or government to protect them in what they had.”* Happily, these prejudices are now no more than matters of history; they haye been dispelled by the lights of knowledge and the genius of our institutions. Hut though an alien of any description, has at this day nothing to fear from the operation of malignant passions, he might labour under many disadvantages, from our ignorance of his language and the customs of his nation. If these may be obviated by allowing him a portion of his countrymen, or foreigners, upon his jury, in case of life or death; if by these means he will be better enabled to bring forward his defence to the consideration of the Court and jury; and if there is no positive law directing us, in plain and intelligible language, to disallow the claim, it appears to me safer to follow in the footsteps of our forefathers.

In a case of this importance, I cannot overlook what has been the practice of our predecessors, men who belonged to the profession before the revolution, and maybe supposed to have practical knowledge of what was then the course of criminal trials. These venerable persons formed a sort of connecting link between the present age and the past; and, as they have always allowed the claim of a jury *de medietate linguae,*whenever it was demanded, it is reasonable to suppose that such was the custom before their time.

The statute in question, though seldom called into action, appears to me, from these several views of the sub*214ject, to have been in the number of those which our ancestors brought with them: not less so than many others which influence our daily transactions, and to doubt the existence of which would throw rights and property into the utmost confusion.

2. No inconsiderable light is reflected on this question by what has been already mentioned relative to the stat. of *lien. 5.*for that made a general, law for tiie qualification of all jurors, in terms as comprehensive as any of our acts of assembly; yet the parliament afterwards declared, that they were not, and did not intend, legislating upon the special case of a jury *de medieiaic lingnse.*

Farther, the statute of *27 Eliz. ch.*6. requires the jurors to have an estate of freehold of the yearly value of *41.*The words are, *“*that in all cases where any jurors are to be returned;” yet it was held, that this statute did not extend to this mode of trial. *[Cro. Eliz.*841.)

To ascertain whether a later statute repeals a former one, it is necessary to inquire whether the later statute is couched in negative terms, or whether its matter is so clearly repugnant that it necessarily implies a negative. None of the acts on this subject relate to any cases, but those between the state and a citizen, or between citizens. When they prescribe or alter the qualifications of jurors, the acts must be supposed to speak with a retrospect to those cases where *some*qualification in point of property was necessary to a juror, and not to those cases where no such qualification ever had been required.

A freehold qualification of some sort, was always necessary to a juror by the common law, *(Litt. sec. 464. C. Litt. 157*a.) and it would seem to do violence to the intent of the legislature, to construe acts making provision for general and ordinary cases, as repealing laws made for peculiar cases and wholly of an anomalous character, most probably liot within their contemplation at the time. The course of judicial exposition fortifies this idea; for by the 32 *Hen.*8. inhabitants of corporate towns, *215■worth 40s. in goods, may try felonies in sessions and jail deliveries for such towns, and this is not repealed by subsequent acts concerning jurors. There is nothing, in any of our acts, which prevents them from being carried into complete execution, in perfect harmony with the law relative to aliens. Nor do I perceive that the force of this general reasoning is impaired by the statute of *5 W.*cj* *M.*having introduced an exception of this mode of trial, in an act prescribing the qualifications of jurors. This was done from abundant caution, and to avoid the danger of misconstruction which had formerly arisen under the statute of *iTen.*5. But, doubtless, without this exception, the courts would have made a like exposition, according to the cases before cited. I am therefore of opinion, that the prisoner is entitled to a new trial.

By a majority of the Court,

Judgment ateirmer.

*

 Smith’s Wealth of N tions

†

 2 ‘Settlements in America, 201.

*

 1 Eamsay’s Hist. U. States.

†

 1709, Williamson’s Hist. N.Carolina,

‡

 1 Ramsay’s Hist, of the U. States.

*

 Settlements in Amerita, *3S6.*