The Sun.
London, England, 1849-11-07 00:00:00

meaning of the Act, the words, " she shall enjoy the
rights end privileges of a natural born subject," must
be taken with considerable limitations. But their
Lordships would perceive that the Act itself dis-
tinctly specified, that a woman married to a British
born subject should be deemed and taken to be
naturalized ; and the position he wished humbly, but
earnestly, to urge upon their Lordships was, that this
woman, by ;her marriage, acquired certain rights and
privileges awarded to naturalized subjects ; but
did not deprive her of the rights and privi-
leges she was entitled to before the
Act passed. That was the proposition
he wished to place before their Lordships, and upon
looking both at the provisions and the preamble of the
Act it was quite clear that the intention of the Legis-
lature was to confer certain rights and privileges
upon aliens—to enable foreigners at a much smaller
expense than formerly, and in a much more convenient
manner, to become citizens of this country, but not
to deprive them of any of the rights and privileges
which they enjoyed before the passing of the Act.
If the Legislature had intended to do this, at all events
it would have given a foreign woman coming to this
country some warning upon the subject; but he
believed their Lordships would be of opinion that had
the Legislature taken away the privileges which she
already possessed, it would have done it in a
direct manner. Rights and privileges conferred
by an Act of Parliament could only be removed
by a statute ; it could not be done by drawing an in-
ference from a clause in an Act of Parliament passed
for entirely different purposes. He would now, with
their Lordships' permission, direct the attention of the
Court to " Comyn's Digest," vol. 1. title Alien, c.
which states, no alien charged with enormous crimes
or offences, such as murder, are liable to be
punished in the ordinary course of justice, by being
tried under a local statute, and accordingly a foreigner,
who had been indicted under such a statute for
stealing from a shop, was directed to be acquitted of
that offence, and found guilty of larceny only. That
was the case of Molere.
Mr. Justice CRESSWELL—Is not that case men-
tioned with a remark in " Foster."
Mr. BALLANTINE was not aware that it was.
Mr. Justice CRESSWELL—I rather think it is to
be found there with some observation upon the statute.
The ATTORNEY-GENERAL—Yes, my Lord. I
think the observation is this—" The Learned Judge
showed more humanity than discretion in giving that
direction."
Mr. BALLANTINE continued—Now, the statutes
repealed by this Act are the 12th and 13th Wm. 111.,
chap. 2 ; George 1., section 1, chap. 4; 14th George
111., chap. 84; but there was the statute of James 1.,
statute 2, which did not appear to be repealed by this
Act of Parliament, nor was he aware that it had ever
been repealed at all. By that statute no person can
be naturalized unless he has taken the sacrament
within the previous month, and subscribed to certain
oaths ; and if their Lordships agreed with the dictum
of the other side, that aliens can be naturalized and
oaths got rid of in this wholesale manner,
there would be an end to any necessity
for struggling to do away with certain oaths and
disabilities, which at one time were considered to
be of vast importance fbr the subjects of this Protes-
tant kingdom. It seemed to him, however, that the.
object of this Act only had reference to the rights of
property, and, therefore, he apprehended, upon con-
sidering the whole tenor of the Act, it would he im-
possible for their Lordships to say that it took im-
portant personal rights away. He submitted to their
Lordships that the question involved in this case was
one of great importance, and he certainly did feel some
anxiety as to the result. He trusted that be had placed
before their Lordships sufficient grounds, though not
to have made the case of disnaturalization, if he
might so use that expression, at least to convince
them that the Attorney-General, on the part of the
Crown, was not justified in depriving this woman of
the important right to be tried by a jury de media-
tate lingua.
The LORD CHIEF JUSTICE—Does any counsel
appear on behalf of Manning?
Mr. SAUNDERS said he appeared on behalf of
Manning.
The ATTORNEY-GENERAL agreed with his Learned
Friend on the other side that the question
in dispute was certainly one of considerable
importance, but he apprehended that Maria Manning,
not being an alien, the trial would have miscarried
had it taken place before a tribunal constituted as his
Learned Friend contended it ought to have been.
Mr. Justice CRESSWELL—As against her or Man-
ning ?
The ATTORNEY-GENERAL said against her, and he
had authorities to show that sbe could not waive or
consent to anything.
The LORD CHIEF JUSTlCE—Supposing the point
had been pleaded and not denied ?
The ATTORNEY-GENERAL said, of course, and
that was his answer to his Learned Friend's observa•
tion, that if a party alleges she is an alien, and it is
not denied, it cannot be a mistrial. Besides, there
was an admission on the record, so to speak, that she
was not an alien ; and not having been so stated, in
law and in fact had the court granted her a in:l'Y !le
medietate linguae, the whole trial " would have ints•
carried. He made this observation not for
the purpose of the argument, but because
several learned persons—or persons who were con-
sidered learned by courtesy—had made observations
and written opinions that this right ought to have
been conceded to the woman as a matter of fairness.
The LORD CHIEF JUSTICE—It would have appeared
by the record not simply that she was admitted to be an
alien, but the matter of fact would have shown that
she could not have been an alien.
The ATTORNEY-GENERAL—Just so. Having dig"'
posed of that matter he would now, with their Lord-
ships permission, take the arguments of his Learned
Friend in the form and order that he advanced
them. Although the great point depended upon,
the construction of the statute, he
take Barr's case in the first instance, because that
was the first point his Learned Friend touched uPc'';
Well, then, he apprehended their Lordships would
be of opinion, from what he should hereafter state;
that that case was properly decided. It was quite
clear, however, that the Alien Act did not apply °
this case. It did not contemplate two parties being
indicted for the same offence, one an alien and the
other a denizen, but the case it did contemplate
was where either of the two sides to a case was all
alien. Whether this case of Barr was a civil actieli
or a criminal prosecution he could not then say. be
Mr. Baron PLATT—Have you caused search to
made for that information ?
The ATTORNEY. GENERAL said he had sent for itt
but it could not be four .d It could not be found
the Rolls' Chapel, but it was just possible it might u°
dug up in the Tower.
Air. Baron PLATT—Because it makes all tlll
difference whether it was a civil claim or a cricnia'
prosecution.
The ATTORNEY-GENERAL said, no doubt. - esTo ari,
although his Learned Friend had read to their Let!' a
ships Barr's case, it was in an abridged form, but he tifir,
a fuller report, and by that it appeared that the att°to
ney of the Queen brought Barr and other merchan
into court, of whom some were foreigners and °theo 0
English, and it was decided that each of the t1;0
parties, aliens and denizens, were not entitled to n
tried by separate juries. Had the defendants berg
all aliens, then they would have been entitled t° to
mixed jury. True, a peer claiming the privilege,ia
be tried by his peers would be allowed, but that
.“_ea
not stand upon the same principle. The law re qttlieet
that all parties should be tried by their peers. A Pllig
by peers, and.a commoner by commoners ; but Iv
case rested upon a different principle, and of
decision on it was perfectly warranted in point
law. The statute of Estaples, 27 Edward 3d, chair;
8, statute 2, it is provided that where two parties aeo
strangers, it shall be tried by strangers, and it.°o3
party he denizens or natural born subjects, lit'gif
the other party aliens, then the issue aenif
be tried by a jury composed of one "
strangers and the other half English. 03
took no notice of the case of one side being Lithe
and foreign, and if their Lordships would look at4nci
French part of the statute they would
the terms " entre " between aliens and de
an
zees," clearly indicating that the deePtho
in Barr's case was correct, and that .4
statute did not confer the privilege of a mixed iiefe
where one of two or three defendants was an
But: the question here was, what is an alien rip
denizen of this country could be naturalizeethio
France so as to escape his allegiance to
ear
kingdom as some people had suPP cot,
while it was clearly laid down in Bacon's abridgul de'
in the part entitled "Denizens and Aliens," that t, s 0
nizens were those who were made so by patenroed
well as those who were English born. His Leflhe
Friend, therefore, misconstrued the statute '0713.e_0 aeo
supposed that it extended a law de medietate
to this case. But, said his Learned Friend, a tber
conferred by statute could not be taken away,° the
wise than by statute. it is clear, however, low
meaning in the text-books, and the statutes_ t act
selves, that no such right was conferred here bfross:
of Parliament, unless the parties were aliens; a.,0.",„1:,5ed
ing over Molere cases, which he had already al,r„pof,
of, he would observe it was a mistake to s``liTiee
that the term de medietate linguae I"n'el
that the jury should he composed of half stn!n
from the district where the prisoner had e , aDe.
of half Englishmen. A Frenchman rdigo tit
tried by six Englishmen end six Russians,
-L`
term used in the statute was " l'estranger.
_llO5
ioii
was all very well to talk about there being no‘u't
there
in the Alien Act to trial by jury, seeeiveo
were many cases were parties were (
,tfc
of their rights without any ally,iech 0 1
the jury, the most familiar illustration of tVe
the statute of William HI , which pray o
_ones
e c 0
simple treason should be tried according d that „
of common law. His Learned Friend Sa%__ toLeP
right conferred by the statute could only be
to tb