State v. Antonio
| Decision Date | 31 December 1825 |
| Citation | 11 N.C. 201 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. ANTONIO. |
An alien is not entitled to a jury de medietate lingua: in North Carolina.
INDICTMENT for murder, tried in CRAVEN before Norwood, J. 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 linguae. It was admitted on the part of the State that the prisoner was an alien. The court overruled the motion for a jury medietate, and the prisoner was convicted, and sentenced to death.
The prisoner moved, 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.
HENDERSON, J. 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.
The Court differed in opinion, Hall and HENDERSON holding that the prisoner was not entitled to a jury de medietate, and the Chief Justice that he was, and they delivered their respective opinions seriatim, as follows:
The privilege extending to aliens the right of a jury de medietate linguœ was granted by statute 28 Ed. III., ch. 13, reënacted by 8 Hen. VI., 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 lawsuits, immorality and fraud, confirming inheritances and titles to land, shall be in force. It is further argued that the act of 1778, 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 and are not destructive of or repugnant to the freedom and independence of this State, etc., and which have not been provided for, in whole or in part, etc., 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, as far as it relates to this question, enforces such as provided for the privileges of the people; the statutes in question provide for the privileges of aliens. I admit, however, that many statutes of Great Britain had becomethe law 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 birthright, 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 of 4 Ed. III., ch. 7, e bonis asportatis in vita testatoris, the statute of uses, and the statutes of Eliz., against fraudulent conveyances to defraud creditors, etc. And if the statutes we are now 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 they are in force 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. VI. 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 of 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 merchandises into this realm: by advice of the lords, etc., it is declared," etc. It will be kept in view that this statute was reënacting the statute of Ed. III., which first gave the privilege to aliens, which statute it was sup-posed had been repealed by the statute of Hen. V., in the preceding 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 of Ed. III. and Hen. VI.; and the question 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 gave a correct judgment in refusing the prisoner the jury he prayed for.
HENDERSON, J. I concur in the opinion given by Judge Hall, 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 Henry VI., complaining of the construction given to the act of Henry V., 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 own production, and to keep the colonists engaged in thecultivation of the earth, to grow the raw materials for the manufacturers of the mother country. As to those foreigners who were 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 separate 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 became 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, 1 think, was territorial, and confined to England; it was unsuited 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 some evidence that the law was not in use, andsufficiently strong to repeal the evidence of its being in use, arising from its having been used by Judge Williams once or perhaps twice at Wilmington; if such partial and solitary instances of its being in use would satisfy that word in the act of 1778.
I place no reliance on the report of the gentlemen 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 were dependent 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 was brought before the Legislature by the report, and it was simply ordered that it should be published, without expressing any
opinion thereon. It was saying that it must depend on its own merits; we will neither...
To continue reading
Request your trial