1783.
know, however, that many ſtatutes for near a century, have been practiſed under in the late province, which were 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 ſtatue 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. 3. 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 linguæ, 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.
On the ground, however, of the precedent which has been ſhewn, we hold ourſelves bound, on this occaſion, to allow the challenge, and to grant a trial per medietatem linguæ.
