R v George Manning and Maria Manning
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1849 |
| Date | 01 January 1849 |
| Court | Court for Crown Cases Reserved |
English Reports Citation: 169 E.R. 330
Crown Cases
S. C. 2 Car. & Kir 887; T & M 155, 19 L. J. M. C. 1, 13 Jur 962; 4 Cox C. c. 31. Referred to, R v. Faderman, 1850, 4 Cox C C 359
1849 eegina v. george manning and mabia manning. (M M., a native of Switzerland, in 1847 became the wife of F. M., a natural born subject of this realm. In 1849 the husband and wife were indicted jointly for murder. Held, that under the stat 7 & 8 Viet. c. 66, s. 16, M M was by her marriage naturalized to all intents and purposes, and therefore was not entitled to be tried by a jury de medietate lingucB ) [8. C. 2 Car. & Kir. 887 ; T & M 155 , 19 L. J. M. C. 1 , 13 Jur 962 ; 4 Cox C. C. 31. Referred to, R v. Faderman, 1850, 4 Cox C C 359 ] At the October sessions of the Central Criminal Court, 1849, Frederick George Manning, and Maria, his wife, were jointly indicted for the murder of Patrick O'Connor. Both prisoners pleaded Not Guilty, but the female prisoner claimed a jury de medtetate hnguce. She was born at Lausanne, in Switzerland, and in the year 1847 was married to the male prisoner, a natural born subject of this realm The prisoner's counsel referred to the statute 28 Edw III. c. 13, and 6 Geo IV c 50, s. 47. [468] The Attorney General for the prosecution relied upon the stat 7 & 8 Viet c 66, s. 16, and upon Bane's case, Moore, 557 The Judges, the Lord Chief Baron, Mr. Justice Maule, and Mr. Justice Cresswell, decided that the prisoner was not entitled to a jury de medietate hnguce, and the trial of both prisoners proceeded in the ordinary course, and they were both convicted The following question was reserved for the opinion of this Court ò Was the female prisoner entitled to a jury de medietate linguce ? On 7th November, 1849, this case was argued before Wilde C. J , Pollock C B., Coleridge J , Rolfe B , Cresswell J., Platt B The Attorney General, Bodkin, Clarkson, and Clerk appeared for the Crown ; Ballantine and Parry for the prisoner ; Saunders for F. G. Manning, her husband. Ballantine. The prisoner's claim rests on the atat 28 Edw. III. c. 13, s 2. " And that in all manner of inquests and proofs which be to be taken or made amongst aliens and denizens, be they merchants or other, as well before the mayor of the staple as before any other justices or ministers, although the King be a party, the one-half of the inquests or proof shall be denizens, and the other half of aliens, if so many aliens and foreigners be in the town or place where such inquest or proof is to be taken, that be not parties, nor with the parties in contracts, pleas or other quarrels, whereof such inquests or proofs ought to be taken ; and if there be not so many aliens, then shall there be put in such inquests or proofs as many aliens as shall be found in the same towns or places which be not thereto parties, nor with the parties, as afore is said, and the remnant of denizens, which be good men, and not suspicious to the one party nor to the [469] other." The stat 6 Geo. IV c. 50, s. 47 (Jury Act), only recognises and confirms the right given by the above statute. " Provided always, and it is hereby further enacted, that nothing herein contained shall extend or be construed to extend to deprive any alien indicted or impeached of any felony or misdemeanor of the right of being tried by a jury de medietate hnguce, but; that on the prayer of every alien so indicted or impeached, the sheriff or other proper minister shall by command of the Court return for one-half of the jury a competent number of aliens, if so many there be in the town or place where the trial is had, and if not then, so many aliens as shall be found in the same town or place, if any , and that no such alien juror shall be liable to be challenged for want of freehold, or of any other qualification required by this Act , but every such alien may be challenged for any other cause in like manner as if he were qualified by this Act." The stat 7 & 8 Viet c 66, s 16, provides " that any woman married, or who shall be married to a natural born subject, or person naturalized, shall be deemed and taken to be herself naturalized, and have all the rights and privileges? of a natural born subject." It is therefore immaterial whether the marriage took place before or after the statute And as the Jury Act preserves the right of an alien to a jury de medietate, an alien woman on becoming the wife of a British subject, cannot contemplate the loss of so important a privilege, but on the contrary, must suppose that ahe still retains it. Had the stat 7 & 8 Viet c 66, h 16, been intended to affect the Jury Act, it would have referred to it expressly as it does to the other 1 DEN. 170. BEGIN A V. GEORGE MANNING AND MARIA MANNING 331 Acts recited in the preamble , but it does not refer to it at all. The language of stat. Edw III. c. 28, s. 2, is peculiar. " In all manner of [470] inquests, &e. &c., amongst aliens and denizens," not " between " ; it would seem, therefore, to include both aliens- and denizens in the right, (see 1 Chitt. Criminal Law, 525) ; and as at the time of the passing of that statute, the distinction between aliens and denizens was probably not very clearly marked, the statute may well have intended to give the right to all persona born abroad It is true that the word denizen does not occur in the stat. 6 Geo. IV. c. 50, s. 47 ; but the Legislature seems clearly to have intended to give to all persons born abroad under another allegiance, habituated to other customs, and probably speaking another language, a jury de medietate hnguce, some of whom might comprehend the customs, and understand the tongue of the country of which the prisoner was a native. All foreigners have been in the habit of claiming and obtaining such a jury, and it is not unimportant to observe the mode in which that is done. By the statute 6 Geo IV. c. 50 no means are pointed out of trying the question whether a party is an alien or no, though in many other cases of collateral issues a definite mode of trying them is provided. The practice is, that if a party has a foreign name, the officer asks him if he will have a mixed jury, and upon his prayer it is granted to him. He is not asked whether he is an alien or naturalized, but his mere claim is sufficient. 2 Hale, P. C. 271, says, " If upon an indictment for felony against an alien, he pleads not guilty, and a common jury be returned, if he doth not surmise his being an alien before any of the jury sworn, he hath lost that advantage . but, if he allege that he is an alien, he may challenge the array for that cause, and thereupon a new precept or venire facias shall issue, or an award be made of a jury de medietate hnguce. But it is more [471] proper for him to surmise it upon his plea pleaded, and thereupon to pray it " Thus, upon claim made, the mixed jury is awarded as a matter of course. It was urged for the Crown, that if a mixed ]ury had been granted in this case, it would have been a mis-trial; but, that is clearly not so. Is then the prisoner deprived of her privilege by the stat. 7 & 8 Viet, c 66 , or if not, by the fact of being indicted jointly with her husband ? On this latter point, Batre'a case, Moore, Rep. 557, was cited for the Crown, an abstract of which is given in 4 Bacon's Abridgement, tit. Junes, p. 568. That case seems only to shew, that under some circumstances, a foreigner would be ousted of his right, but under what circumstances does not seem clear ; moreover, the correctness of the decision seems questionable. If a person might be ousted of his right by being pined with another in an indictment, the statates conferring the right would virtually be repealed. There is no practical difficulty in trying two prisoners by different juries , and it is more just, as then neither prisoner could be prejudiced by evidence which related solely to the other. Here too, the indictment was joint and several, and both or either might have been found guilty Is then the right taken away by stat. 7 & 8 Viet, c 66. Now, it is clear, that an alien wife cannot necessarily by marriage " have all the rights and privileges of a natural born subject," as is provided by s. 16. For by s. 6, it is provided, that the husband of a naturalized alien may have such rights in a qualified and partial manner ; and the wife could only take by marriage such rights as the husband could impart. It cannot be contended, that she would have greater rights than her husband. The correct construction of s. 16 seems to be, that although the wife is to be deemed a natural born subject, as to [472] her rights and privileges, she is not to lose any rights which she enjoyed as an alien ; that the statute was passed to enable aliens, with less cost and inconvenience, to become naturalized, but not to deprive them of any of their existing rights, or to entail upon them any disabilities. A man who is naturalized under the statute, may be assumed to know the law, and to give up his privileges as an alien voluntarily, but that is not so wkh a woman who might have married previously to the statute, and then by its indirect operations, would be deprived of her privileges as an alien, without notice or option. Moliere's case (Foster, C. L. p. 188, note), shews how careful the Judges have been not to deprive foreigners of their rights without the fullest notice. Cresswell J.-Woodesson (vol. 1, 381, ed. 1792) makes the following comment on that case . " The Judge's humanity is at least more conspicuous than the soundness of the principle as a point of mere law." 332 REGINA V. GEORGE MANNING AND MARIA MANNING 1 DEN. 473. Saunders, for F. G Manning, offered no further argument. The Attorney General, after premising that if the prisoner, not being entitled to a jury de medietate had been so tried, it would have been a mis-trial as to her, for it appeared on the record that she was not an alien, contended, First, that according to the true construction...
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R v George Manning and Maria Manning
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R v George Manning and Maria Manning
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