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drawn and engrossed. In the interval Mr. Curran and Mr. Plunket came into court, and apologized for their absence. A plea was then put in and read, in substance as follows:

That the said Henry and John Sheares say, that they ought not to be compelled to answer said indictment, because that John Decluzeau is an alien, and not a natural born subject, he having been born in the kingdom of France, &c.

On the part of the crown, a replication was filed to the following purport, viz. That John Decluzeau is not an alien, but is, by statute in that case made and provided, deemed and adjudged a natural born subject of our said lord the king, &c. : Mr. Curran then moved the court to adjourn, in order to give time to consider of the case, as it was in its nature so entirely novel; but the court refused to do so. He then moved to quash the replication on the ground that in criminal cases the parties were not perınitted to plead double.*

Lord Carleton. In civil cases certainly, the right of pleading double arises from an act of parliament. As to the objection you now make, you must avail yourself of it in some other way. We will not quash the replication upon motion.

The following rejoinder was then filed on the part of the prisoners, viz. They demur to the replication, and pray the judgment of the court, whether they shall be bound to the indictment, &c.

To this the Solicitor-General answered and said, that the matters. contained in the indictment are sufficient in law to put the said John and Henry Sheares on their trial, and prays the judgment of the court, &c.

Mr. Curran. My lords, it is my duty to suggest such reasons as occur to me in support of the demurrer filed here on the part of the prisoners. My lords, the law of this country has declared, that, in order to the conviction of any man,

* See 5 Bac. Abr. 447. 4 Term Rep. 701.

2 Stra. 90S.

not only of any charge of the higher species of criminal of. fences, but of any criminal charge whatsoever, he must be convicted upon the finding of two juries; first, of the grand jury, who determine upon the guilt in one point of view; and, secondly, by the corroborative finding of the petty jury, who establish that guilt in a more direct manner; and it is the law of this country, that the jurors who shall so find, whether upon the grand, or whether upon the petty inquest, shall be probi et legales homines omni exceptione majores. They must be open to no legal objection of personal incompetence; they must be capable of holding freehold property; and, in order to have freehold property, must not be open to the objection of being born under the jurisdiction of a foreign prince, or owing allegiance to any foreign power. Because the law of this country, and, indeed, the law of every country in Europe, has thought it an indispensable precaution to trust no man with the weight or influence which territorial possession may give him contrary to that allegiance which ought to flow from every man having property in the country. This observation is emphatically forcible in every branch of the criminal law; but in the law of treason, it has a degree of force and cogency that fails in every inferior class of offence; because, the very point to be inquired into in treason is, the nature of allegiance. The general nature of allegiance may be pretty clear to every man. Every man, however un. learned he may be, can easily acquire such a notion of alle. giance, whether natural and born with him, or whether it be temporary and contracted by emigration into another country -he may acquire a vague, untechnical idea of allegiance for his immediate personal conduct. But I am warranted in sayo ing, that the constitution does not suppose that any foreigner has any direct idea of allegiance but what he owes to his original prince. The constitution supposes, and takes for granted, that no foreigner has such an idea of our peculiar VOL. I.


and precise allegiance, as qualifies him to act as a juror, where that is the question to be inquired into; and I found myself upon this known principle, that, though the benignity of the English law has, in many cases, where strangers are tried, given a jury half composed of foreigners and half natives, that benefit is denied to any man accused of treason, for the reason I have stated; "because," says Sir W. Blackstone, “ aliens are very improper judges of the breach of al. legiance."* A foreigner is a most improper judge of what the allegiance is, which binds an English subject to his constitution. And therefore upon that idea of utter incompetency in a stranger, is every foreigner directly removed and repelled from the possibility of exercising a function that he is supposed utterly unable to discharge. If one Frenchman shall be suffered to find a bill of indictment between our lord the king and his subjects, by a parity of reasoning, may twenty-three men of the same descent be put into the box, with authority to find a bill of indictment. By the same reason that the court may communicate with one man whose language they do not know, may they communicate with twentythree natives of twenty-three different countries and languages. How far do I mean to carry this? Thus far: That every statute or means by which allegiance may be shaken off, and any kind of benefit or privilege conferred upon an emigrating foreigner, is for ever to be considered, by a court of justice, with relation to that natural incompetency to perform certain trusts, which is taken for granted, and established by the law of England. I urge it with this idea—that, whether the privilege is conferred by letters patent, making the foreigner a denizen, or whether by act of parliament, making him as a native subject, the letters patent, or act of parliament, should be construed secundum subjectam materiam, and a court of justice will take care that no privilege be supposed to be granted incompatible with the original situation of the party to whom, or the constitution of the country in which it is conferred. Therefore, my lords, my clients have pleaded, that

* 4 Black. Com. 352.


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the bill of indictment to which they have been called upon to answer, has been found, among others, by a foreigner, born under a foreign allegiance, and incapable of exercising the right of a juror upon the grand or the petty inquest. That is the substance of the plea in abatement. The counsel for the crown have replied, and we have demurred to the second and third parts of the replication.

My lords, I take it to be a rule of law, not now to be queso tioned, that there is a distinction in our statute laws; some are of a public, some of a private nature. That part of the legislative edict which is considered as of a public nature, is supposed to be recorded in the breasts of the king's judges, As the king's judges, you are the depositaries and records of the public law of the country. But, wherever a private indulgence is granted, or a mere personal privilege conferred, the king's judges are not the depositaries of such laws, though enacted with the same publicity; you are not the repositories of deeds or titles which give men franchises or estates, nor of those statutes which ease a man of disability, or grant him a privilege.

With regard to the individual to whom they relate, they are mere private acts, muninients, or deeds, call them by what name you please ; they are to be shown as private deeds to such courts as it may be thought necessary to bring them before. Therefore, if there be any act of parliament by which a man is enabled to say he has shaken off the disability which prevented him from intermeddling in the political or judicial arrangement of the country; if he says, he is no longer to be considered as an alien, he must show that act specially to the court in his pleading. The particular authority, whether by letters of denization, or act of parliament, must be set forth, that the court may judge of them —that, if it be by act of parliament, the court may see whether he comes within the provisions of the act. This replication does no such thing. The second and third parts were intended to be founded upon the statute of Charles

II. and also, I suppose, upon the subsequent statute made to give it perpetuity, with certain additional requisites.

The statute of Charles recites, that the kingdom was wasted by the unfortunate troubles of that time, and that trade had decreased for want of merchants. After thus stating generally the grievances which had afflicted the trade and population of this country, and the necessity of encouraging emigration from abroad, it goes on and says, that strangers may be induced to transport themselves and families to replenish the country, if they may be made partakers of the advantages and free exercise of their trades without interruption and disturbance. The grievance was the scarcity of men; the remedy was the encouragement of foreigners to transport themselves, and the encouragement given was such a degree of protection as was necessary to the full exercise of their trades in dealing, buying and selling, and enjoying the fullest extent of personal security. Therefore it enacts,

that all foreigners of the protestant religion, and all merchants, &c. who shall within the term of seven years," transport themselves to this country, shall be deemed and reputed as natural born subjects," and may implead and be impleaded, and prosecute

and defend suits.” The intention was, to give them protection for the purposes for which they were encouraged to come here; and therefore the statute, instead of saying generally they shall be “subjects to all intents and purposes," specifically enumerates the privileges they shall enjoy. If the legislature intended to make them subjects 6 to all intents and purposes,” it had nothing more to do than to say so.

But not having meant any such thing, the statute is confined to the enumeration of the mere hospitable rights and privileges to be granted to such foreigners as come here for special purposes. It states, that he may im. plead and be answered unto that he may prosecute and defend suits. Why go on, and tell a man, who is “to all intents and purposes," a natural born subject, that he may implead and bring actions? I say it is to all intents and pur

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