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COURT OF OYER AND TERMINER, AT PHILADELPHIA.

SEPTEMBER SESSIONS, 1783.

Respublica v. Mesca et al.

X foreigner, indicted for a criminal offence, is entitled to a jury de medietate linguae ; the statute of 23 Edw. III., c. 13, extends to this state.

This was an indictment against four Italians for the murder of Captain Pickles; and, upon the arraignment of the prisoners, the court assigned Tngersoll and Swift as counsel for them. These gentlemen then challenged the array, and moved for an award of a tales de medietate Ungues; but the Attorney-General controverted the propriety of the motion, and it was twice argued, on the 25th and 29th of September.

The counsel for the prisoners urged,

that the Stat. of 3 Edw. III., c. 13, was a beneficial law, encouraging foreigners to come into the country; that, in practice, it had been extended to Pennsylvania, before the revolution, and sound policy justified its continuance. In the course of their argument, the following authorities were cited: 1 Penn. Laws 89;1 28 Edw. III, c. 13; 4 Bl. Com. 352; 2 Hale H. P. C. 271, 272; Dyer 304; Chart, of Ch. II. to Penn; 2 Wils. 75; Salk. 411.

To prove the practice, Thomas Clifford, upon his solemn affirmation, stated, that in February 1764, a burglary was committed in his dwelling-house in Philadelphia; that one Brinkloe, being apprehended upon suspicion, accused William Frederick Ottenreed; whereupon, they were both imprison-*741 ed and tried; and to the best oí *the witness’s recollection, Ottenreed ■* was allowed to have a moiety of foreigners on his jury.

The Attorney-General observed,

that the question turned upon this point — how far the English statutes were extended to Pennsylvania ? and by what authority they could be extended, whether exclusively by an act of the legislature, or, likewise, by the adjudications of the supreme court ? The sentiments of the foreign jurists seemed, he said, to be crude and undigested upon this subject; but certain principles, which had obtained the authority of a general assent, might serve as a directory to form an accurate judgment. He then adverted to several acts of parliament which did not extend, as the act of limitations, 21 Jac. I, c. 16; (a)the 28 Hen. VIII, respecting pirates, &c.; and urged, that, by the royal charter, the common law, and *73statute law, relating to felonies were extended ; but that statutes merely relating to the mode of trial did not extend ; on which account, laws were passed in that respect, soon after the settlement of the province.

With respect to the statute immediately in question, he contended, that it had never been extended by the legislature, because it was thought unnecessary, and might often be greatly inconvenient ; for in every case where foreigners were tried, the humane provision of our laws, which allows them counsel, would then be defeated. A trial per meclietatem linguae was never granted to Indians, or Negroes ; nor is it, indeed, pretended to have taken place in any more than one instance ; and that too rests entirely on the recollection of a single witness.

The Attorney-General cited 2 Hawk. 420; Tri. per Pais 247; Dyer 357 a; Cro. Eliz. 869; Smith’s Hist, of New York 24, 243; 2 Penn. Laws, in App. 318; Votes of Ass. Vol. 1, p. 6, 53, 106; Id. in App. 11; 1 Penn. Laws, 88, 114; Votes of Ass. Vol. 2, p. 22, 211, 234; Robin. View State of Europe 395.

The Chief Justice delivered the opinion of the court as follows :—

McKean, C. J.

The point before the court has been well argued ; and on a full consideration of the subject, we now find little difficulty in pronouncing our decision. The first legislature under the commonwealth, has clearly fixed the rule, respecting the extension of British statutes, by enacting that “ such of the statutes as have been in force in the late province of Pennsylvania, should remain in force, till altered by the legislature ; ” and it appears in evidence, that the 28 Edw. III, c. 13, has been in force in the late province, since a trial per medietatum linguae was allowed in the case of a burglary committed by one Ottenreed, in the mansion-house of Mr. Clifford.

Whether it was intended, by the act to which I have referred, to include only such statutes as were in force by an express extension of the legislature ; or to comprehend, likewise, such statutes, as have been extended by the judgment, of the supreme court, or received there in usage, seems to be, in some degree, uncertain. We *know, however, that many statutes, for near a century, have been practiced under, in the late province, which were L never adopted by the legislature ; and that they might be admitted by usage, and so become in force, was the opinion of the British parliament, declared in a statute passed in the year 1754, enabling legatees to be witnesses to wills and testaments. If, therefore, the statute in question has been, by any means, legally in force, a necessity is, seemingly, imposed upon us, to grant the challenge to the array, which has been made on the behalf of the prisoners.

But if this was a new case, the judgment of the court would be different; for, the reasons which gave rise to the 28 Edw. III. do not apply to the present government, nor to the general circumstances of the country. Prisoners have here a right to the testimony of their witnesses, upon oath, and to the assistance of counsel, as well in matters of fact as of law ; which was not the case in England, in the year 1353, when that statute was enacted. We do not think, indeed, that granting a medietas linguae, will, at all, contribute to the advancement of justice ; and we know it is a privilege which the citizens of Pennsylvania cannot reciprocally enjoy, as, at this day, there are no juries in any part of Europe, except in the British dominions.

*74On the ground, however, of the precedent which has been shown, we hold ourselves bound, on this occasion, to allow the challenge, and to grant a trial per medietatem linguae, (a)

(a)

On the subject of the extension of British statutes to this state, see the remarks of C. J. McKean, in Morris v. Vanderen, ante, p. 67, and the report of the judges in 3 Binn. 595.

In the case of Commonwealth v. La Vinez, MS., at a court of Oyer and Terminer, Philadelphia, May 3d, 1822, before Hallowell, president, and the associate judges, the same motion was made, as in Respubliea v. Mesca, and after argument, a tales de medietate lingum was awarded, on the authority of that case. That part of the stat. 28 Edw. III., c. 13, which gives an inquest de medietate lingum, is said by the judges of the supreme court, in their repoit, to be in force, but Judge Roberts, in his digest of the British statutes (p. 336), well remarks, that “ it is a matter of astonishment how this statute ever became incorporated in our laws.” And in a late case in the mayor’s court of Philadelphia (Com. v. De Mora, Dec. 1824, MS.), an inquest de medietate was refused, the court being equally divided in opinion; those who opposed the tales holding, that the act of 1805, regulating juries, had in effect abolished it.1

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