1783.
the witneſſes 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, Jac. 2. the 28 H. 8. reſpecting Pirates, &c; and urged, that, by the royal charter, the common law, and ſtatute 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 medietatem linguæ was never granted to Indians, or Negroes; nor is it, indeed, pretended to have taken place in any more than once 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. E. 869. Smith's Hiſt. of New-York 24. 243. 2 Pen. Laws. 2. 1 Pen. Laws in App. 318. Votes of Aſſ. Vol. 1. p. 6. 53. 106. id. in App. 11. 1 Pen. 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.
M’Kean, 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. 3. c 13. has been in force in the late province, ſince a trial per medietatem linguæ 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 had been extended by the judgment of the ſupreme court, or received there in uſage, ſeems to be, in ſome degree, uncertain. We