Orange Riots No207 25sep1847
We understand that the Court of Oyer and Terminer, lately held at Woodstock, for the trial of the rioters on the 12th July last, was abruptly terminated, in consequence of doubts entertained by the learned Judges on the effect of a challenge to the array of the Jury on the part of seventy-seven of the rioters, against whom the Solicitor General was then proceeding to trial. It appears that the Court had been [busily] occupied with the trial of two cases of Burglary – on both which the prisoners Skidgell and DeCourcy, were convicted and sent to the Penitentiary – and sending an immense number of witnesses before the Grand Jury to identify the rioters, when at length, after four days investigation, the Grand Jury found a true bill against eighty-eight out of the ninety-one included by the Solicitor General in the first Indictment. – At the same time a [ ] judgement was made against [fifty-one] others [charged] with being concerned in the same riot, on which a [second] bill was prepared and sent before them, and found a true bill. It took one day to procure a copy of the Indictment, which was very long, containing ten counts, and each count repeating the eighty-eight names as in the first, and making preparations for the arraignment and trial on Wednesday morning, as on that morning seventy-seven of the defendants having appeared, and the Solicitor General having moved for trial, the defendants’ Counsel tendered, as before stated, the challenge to the array, the first ground being on the defective state of the Sheriff’s Jury list ; the second on partiality in rejecting Roman Catholics from his panel. The Solicitor General demurred to the first ground, and replied to the second, the substance of which was, that in leaving out the Roman Catholics, he also had left out all Orangemen, so as to obtain an impartial Jury. This was admitted by a demurrer from the Defendants’ Counsel, and after a very lengthy argument by Messrs. Wilmot and Ritchie for the Defendants’ on one side, and the Solicitor General on the other, and the Court taking time to consider, on Saturday, their Honors Judge Parker, and Judge Street decided there was no ground whatever for imputing partiality to the Sheriff, and therefore the Solicitor General’s plea was good ; but as they entertained grave doubts whether the defective list of the Jurors was not a cause of challenge, and if they were to reject the challenge and allow the cause to proceed, and the Defendants were convicted, should they eventually be wrong, the parties would escape punishment altogether; and consider the ends of justice would be best attained by allowing the challenge and waiting for a new Court to try them, to be commissioned after the first of January next, when the Sheriff would have an opportunity of amending his Jury List according to the strict requirements of the act. It was stated to have been the first instance every known in the Province of a challenge on that account, although, from the extreme particularity of the provisions of the act, it was considered that no Sheriff’s list ever yet returned could have been without some defect, and therefore a like subject of challenge.
We have also been informed that it was stated, that the Solicitor General proceeded by Indictment for a riot, to avoid the effect of peremptory challenges to the number of twenty, which each offender would have had in case of a proceeding for felony; the necessity of calling most of the witnesses in each case which would have taken six months to get through with all the cases, and the punishment in felony and for a riot being of the [of the] same general character, and other good reasons, which appeared quite satisfactory to the Court and Grand Judy, and that the difficulty respecting the Sheriff’s book was impossible to be obviated under the Act of Assembly until the commencement of the year, or by an Act of the Legislature ; and it seemed that, upon the whole, greater confidence and a much better tone of feeling pervades the community in consequence of the sitting of the Court than had hitherto obtained. — Fredericton Head Quarters.
We have been favored with the following report:
W. J. RITCHIE, for the Challenge. – This argument divides itself into two parts: 1st. The irregularity and illegality of the Sheriff in empannelling a jury contrary to the express requirements of the statutes of the Province. 2. The Sheriff’s claiming to exercise a discretion which the law has not given to him, by which he has improperly reduced the number of qualified persons from amongst whom the law intends that jurors shall be selected.
Trial by jury, as known to the British law, is coeval with the foundations of the State, and has been continued beyond all memory to the present day. By the policy of the Common Law the jury was to come de viceneto from the neighbourhood of the place where the cause of action arose, being considered most conversant with the peculiar facts they might be [empannelled] to try; but now by statutory provisions the jury is [empannelled] to try all issues, and is returned from the body of the County at large and not from any particular neighborhood. With the commencement of the administration of justice in this Province, trial by jury was regulated by several Acts of the Assembly, the first July Act, 26 Geo. 3, c, 6, intituled, “An Act for regulating Juries and declaring the qualifications of Jurors” expressly defines the qualifications and state of Grand and Petit Jurors, and allows the right of challenge if any person of lesser estate be returned. At this period the Sheriff of each County exercised his discretion in selecting jurors from all persons in his county who were qualified under the Act, subject also too the existing state of the Common Law. The law was not, however, allowed long to continue in this state. By Statute 31 Geo. 3, c, 6, the Legislature thought proper to introduce very stringent rules for the guidance of Sheriffs in the [emplannelling] of jurors. By this Act Sheriffs are required on or before 1st May to make up annual lists of persons qualified to serve on juries, and to return the same into the office of the Clerk of the Peace to be there entered in a book and kept among the records of the Sessions of each County, and the Act in express terms declares that the Sheriff shall return any persons as a juror, to try any issue in any Court of Record, who shall not be named in such list. This Statute imposes upon the Sheriff the performance of a specific duty, restrains him in the exercise of his former discretion, and confines his selection to the persons mentioned in such list; and although it annexes a penalty on the Sheriff for neglect of duty, it also goes further, adding another check, and declares that the Sheriff shall not [empannel] any juror not named in the required list. For whose benefit then were these Acts passed? Certainly for the benefit of these seventy-eight defendants, and all persons necessarily resorting to the courts of justice in this country. These Acts are not intended for the benefit of the Crown, or of Sheriffs, but were passed for the benefit and protection of the subject. The Legislature having in view that before these tribunals come as well the rich and influential as the friendless and the poor, and desiring that all should equally claim and receive a fair and impartial hearing, has hedged round the trial by jury with wholesome and salutary rules; and we find in these statutes a minuteness of expression rarely met with in Acts of Parliament. Thus stood the law until 1836, when the provisions of the former Acts were extended by 6 Wm. 4, c, 47 to juries on writs of inquiry and other inquests. This Act does not, however, after or repeal the former Acts, except as to the qualifications of petit jurors, which it increased to the value of fifty pounds; neither does the Act 4 Vic. c. 1 alter the law as to the duty of the Sheriff in empannelling juries, but solely makes a provision as to the mode of summoning the jury. Under this Act the Judges are empowered to issue their precepts for summoning petit juries, duly qualified, for the Courts of Oyer and Terminer; the expression “duly qualified’ contained in this Act, denotes that the persons so returned in obedience to the precepts should be duly qualified under the requirements of the previous jury enactments. All these statutes, therefore, being in pari materia must be taken together as the basis upon which the superstructure of our jury system is established. The Common Law authority of the Sheriff is restrained by certain specific grounds, and any proceeding of the Sheriff not in]accordance with these statutory directions [must be …tive], if objected to in due time and season. The Court cannot travel out of the law, and [misuse a] power not given – the Sheriff cannot say, “I found the law insufficient to meet the exigency of a particular case, and therefore I will alter the law,” The Sheriff has no more authority to alter the law than the Court has authority to supply a clause in a statute omitted by the Legislature. If the provisions are too stringent, the Legislature alone have the power to alter or modify them.
As to the inconvenience which may arise from this challenge being allowed, this Court must be [totally regardless]. The Judges come to administer the law, reckless of all consequences, and they cannot trim their sails and [shape] their course to […] the difficulties and inconvenience constantly arising from various […]; it is their duty to administer the law according to the intent of the Legislature, leaving to others the task of devising […] […] for […] and difficulties.
The charge of partiality, contained in this challenge, against the Sheriff, is most important, and seriously effects the well-being of all denominations. What affects Roman Catholics to-day, may equally affect Churchmen and Methodists and Baptists to-morrow. The Sheriff here has attempted to introduce a system of [empannelling] juries which, if sustained, must sap the foundations of justice in the Courts of this country. What becomes of the boasted toleration of our laws, if Sheriffs have power to shut the doors of the Courts against any portion of Her Majesty’s subjects on account of their religious belief? T he British law recognizes no such distinction, – the liberal spirit of the present age repudiates all intolerance so destructive to the rights and liberties our fellow-subjects. This plea admits that there are four hundred good and lawful men of the Roman Catholic religion in this County qualified to serve on juries, who are not interested in this issue to be tried, who are not of kin to any of the defendants, and who are in every respect qualified to try this issue, who have been purposely and intentionally excluded from this panel by the Sheriff. Does the precept which has been directed to the Sheriff order him to select the Protestants and to exclude the Catholics? Is he required to form an ecclesiastical tribunal, and, having the precept in one hand and the bible in the other, to discover the peculiar religious tenets of persons, and by a scrape of his pen proscribe all those, however otherwise duly qualified, whose religious views do not accord with his own? Would not such a system lead to feuds, faction-fights, and intolerance throughout the land? Suppose the Sheriff in the present instance had been a Roman Catholic, and had summoned a full jury of Catholics to try this issue, – would not suspicion be at once aroused, and the charge of partiality at once be fixed upon him? If in the one case such a course of proceeding would have been improper, why is it not equally so in the present case? The administration of the laws should be above all shadow of suspicion, and no law or precedent can be found to countenance the conduct of the Sheriff in this case. All the authorities are uniform that where there is any partiality of default in the [empannelling] of the jury, the only remedy is by challenging the array. It was indeed a matter much to be regretted that the course pursued by the Crown Officers had rendered the present discussion necessary; but the important question was now before the Court, where he (Mr. Ritchie) felt confident it would receive at the hands of their Honors a full and impartial investigation.