NBC – 1847.09.25 – Orange Riots – Woodstock Court – #207 – F12219
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.
NBC – 1844.02.17 – Orange Order – Suppression – #163 – F12218
MR. EDITOR, – Sir, you would oblige me much by giving a place in your respectable journal to the following communication, on a subject of great importance and to which I would earnestly call the attention of the public in general, and the Members of the House of Assembly in particular.
If there is any thing which is […] than another calculated to destroy the peace and harmony of a community, it is the introduction of Orange and Ribbon societies.
Now, it is notorious that Orange associations have already been formed in this City, and are spreading with fearful rapidity through all parts of the Province ; and as association naturally begets counter association, there is much reason to apprehend that unless measures be speedily taken to smother this monster at once, and so [effectually] that it shall never again resuscitate, Ribbon societies will be called into existence, in order, as will be alleged, to protect their members from Orange aggression.
As the natives of this country know but little of the malignant spirit that [characterises] these antagonist confederacies, it may be useful to make them acquainted with its ruinous tendency, and the pernicious consequences that have resulted from its operations in Ireland, where the fatal system was first established. About the year 1795, a number of persons of superior rank and order, in the north of Ireland, having determined to exterminate the Catholics from the Province of Ulster, formed themselves into a society of “ Orangemen.” Their design they first put in force in the County of Armagh, out of which they banished more than seven hundred Catholic families, destroyed their properties, pulled down or burned their houses, and murdered some of them who refused to abandon their homes and quit the Province. This, then, was the first great act which the Orangemen felt called upon to perform, after having sworn loyalty to the crown and strict obedience to the laws!
If I were to state, upon my own bare testimony, that the only offence of the parties upon whom this outrage was committed was their professing the Catholic faith, it might, perhaps, be doubted by Protestants who are not aware of the fact. I will therefore give corroborative evidence, which will not for a moment be questioned.
Lord Gosford, a Protestant nobleman, who entertained strong anti-Catholic feeling, and who was then Governor of the County of Armagh, having witnessed this merciless persecution, convened a meeting of the magistrates of the county, on the 28th of December, 1795, for the purpose of forming some plan to check the ferocious cruelties of this “ lawless banditti.” In his address on opening the business he says “ Neither age, nor even acknowledged innocence as to the late disturbances, is sufficient to excite mercy, much less afford protection. The only crime which the wretched objects of this merciless persecution are charged with, is a crime of easy proof ; it is simply a profession of the Roman Catholic faith.”
After pointing out in strong language the manner in which the Catholic inhabitants were driven from their homes in the midst of an inclement winter, and robbed of the fruits of their industry, he continues – “ This is no exaggerated picture of the horrid scenes now acting in this county, yet surely it is sufficient to awaken sentiments of indignation and compassion in the coldest breast. Those horrors are now acting, and acting with […]. The spirit of impartial justice (without which law is nothing better than tyranny) has for a time disappeared from this County ; and the [supineness] of the magistracy of this County is a topic of conversation in every corner of the kingdom. * * I have the honour to hold a situation in this County which calls upon me to deliver my sentiments, and I do so without fear or disguise. I am as true a Protestant as any man in this room, or in this kingdom. I inherit a property which my family derived under a Protestant title ; and, with the blessing of God, I will maintain that title to the utmost of my power. * * * * Conscious of my sincerity in this public declaration, which I do not make unadvisedly, but as the result of mature deliberation, I defy the paltry insinuations that malice or a party spirit may suggest. I know my own heart and should despise myself if, under any intimidation, I could close my eyes against the complaints of a persecuted people.
When Mr. Grattan was in Parliament, at this same period, he painted the origin of Orangeism and in detailing the first persecution of the Catholics by the Orangemen, he said, “ These insurgents call themselves Orangemen, or Protestant Boys ; that is, a banditti of murderers, committing massacre in the name of God.” I will only trouble you, Mr. Editor, with one other extract on this painful subject, which I take from Judge Fletcher’s address to the Armagh jury, on a subsequent occasion. “ From personal inspection I know nothing of your county, this being the first time I have borne his Majesty’s commission in it ; but I cannot be supposed ignorant of the unhappy state of society which it presented at a period not remote. You, gentlemen, must know, much better than I possibly can, the extent of the mischief locally. You must have witnessed the misery inflicted upon thousands of the King’s unoffending subjects, by the ruthless persecution which drove a large portion of the population of this county from all the dear (however humble, still dear) delights, sympathies and associations of home, to wander where they could, or in the language of the ruffian faction, to wander to hell or Connaught! But, gentlemen , if you have had better opportunities of viewing the deserted or destroyed habitation – the melancholy and desponding family bereft of its little all, and flying with hasty and disordered steps from the spoiler ; you have not had better opportunities than I have had, of tracing the fearful consequences of this persecution. The emigrants from this county carried into every district in the island, a fearful tale of the cruel [inflictions] of your Orangemen or Break-of-day-men!” From such unquestionable evidence there can be no doubt as regard the spirit of Orange institutions from their beginning.
In the year 1899, the Orange societies became more violent than ever ; and as they had not been restrained or [panished] by the law, the Catholics imagined they had been sanctioned by the Government. The Catholics had long been exposed to danger and outrage, and, as was natural, at length formed themselves into counter associations, under the denomination of “ Ribbonmen,” for the purpose of defence against the attacks of the Orangemen. The scenes of tumults, riots and bloodshed which had taken place between these antagonist societies, from that time until they had been finally put down by the Government, were innumerable, and productive of the most disastrous consequences to the country.
I think I have now stated enough, and from the very best authority, to convince the well-disposed portion of this community that it is the duty as well as the interest of all good men, no matter of what creed or country, to use their best efforts in order to suppress a system which experience has shown to be productive of incalculable evil without any good whatever.
Many young men, natives of New-Brunswick, have become connected with Orange societies. – This is wrong ; but yet they are not so much to blame as others ; they have been deceived – grossly deceived – by those Irishmen who have introduced the demon of discord into the country, – Irishmen, whose fathers had been prominent actors in the horrid and bloody tragedies I have been describing. They are the guilty parties who, instead of trying to bury the recollection of t he crimes of their fathers in oblivion, would desire to take a part in similar atrocities themselves. Let the young men of New Brunswick be aware of such dangerous men, who, while they profess loyalty to the crown, are encouraging a faction, which from its evil tendency had to be suppressed by the Government in Ireland and Great Britain. – Let them also keep aloof from those hypocrites, who are in the practice of attending Orange meetings, and offering insult to the Deity by singing psalms and making long prayers in such unholy places, – such men have neither regard for religion, nor Christian charity.
Our judges have had occasion more than once to touch upon this unpleasant subject, and condemned all such associations in the strongest language. Has this diminished the numbers of Orangemen? No – quite the contrary – they themselves boast of a flourishing increase. His Worship the Mayor would gladly put them down, but he has not the power. In fact, they will not be overawed by any other authority than the strong arm of the law. This is the only remedy ; and now is the time to apply for it, while the Provincial Legislature is sitting. Let, then, a number of our influential citizens, both Protestant and Catholic, get up a petition, numerously signed, praying for the immediate suppression of all secret societies, and let their example be followed in all the other towns throughout the Province ; and, by thus calling the attention of our legislators to the subject, in time, the evil may now be easily removed. But if, through negligence or otherwise, this be overlooked, it would be painful to calculate upon the fearful consequences.
I am your obedient servant,
ARGUS.
NBC – 1842.07.16 – Orangemen – Riot – #155 – F12218
RIOTING. – Our City and the Parish of Portland, we regret to state, were the scenes of tumultuous and riotous proceedings on Tuesday last, occasion as we are informed, by the display of what was considered party badges on that day, being the anniversary of the battle of the Boyne; but as the provocation was not contrary to any law or order and was only made use of by two or three imprudent persons, it by no means justified the mob-like and highly reprehensible conduct which was resorted to, in attacking and beating, without mercy, individuals who might be obnoxious to some of the ruffians who set law and order at defiance on the occasion, and maltreated all who attempted to stop them in their demon like career, from His Worship the Mayor to the poorest citizen. We are glad, however, that some of the ringleaders have been secured, and committed to jail for trial ; and we trust that our authorities will be active an vigilant in apprehending and bringing to punishment every one, particularly Freemen of the City, who may have been guilty of exciting, aiding, or abetting, the disgraceful proceedings ; for it is now sufficiently evident, that unless the strong arm of the law is maintained and supported among us, we are not certain at what moment our lives and properties may be endangered by the caprice of a ruthless and blood-thirsty mob.
NBC – 1840.08.01 – Orangemen – #125 – F12217
Mr. CHUBB, -Sir, – I regret that my communication of the 18th ult. has been the means of imposing on you the unpleasant task of inserting in your respectable paper, Mr. J. Nethery’s scurrilous, intemperate, and uncharitable effusion, which he calls a ” reply.” Yet, I rejoice to learn, that the City authorities have taken notice of it, and are about to adopt measures in order to crush party spirit in whatever shape it may appear.
With regard to Mr. Nethery, I will neither outrage the feelings of your readers, nor disgrace myself so far as to bandy epithets with that gentleman. In fact, I can observe that I would have no chance with him on that tack, as, in his “reply,” he exhibits an extraordinary familiarity with “infidels,” “Devils,” “Demons,” &c. &c.
In my former communication, I endeavoured to point out the necessity of adopting measures for the suppression of Orangeism, and if the reasons I urged on that occasion are not sufficiently strong, I have only to direct the attention of the community to Mr. Nethery’s letter, which furnishes a more forcible argument for the necessity of such measures, than could a whole volume written by me on the subject.
Party spirit has been the bane of Ireland for many years, and will have equally pernicious effects here, if tolerated ; I therefore beg and beseech of all good men to co-operate with the authorities in putting it down; and, however they may differ in religious matters, to unite in propagating in its stead, universal charity, so that we may all be elevated above narrow prejudices, enjoying the sweets of society, and as on family, be firmly united together in the bonds of affection.
A CATHOLIC.
St. John, 29th July, 1840.
NBC – 1840.07.25 – Orangemen – #124 – F12217
Mr. CHUBB, —
Sir, – Having read in the Courier of last Saturday some fiendish assertions of a person calling himself “ A Catholic,†but who, from the bitter irony of his lying production, should rather be termed an infidel – for his statements are false and rebellious, – and rebellion and lies belong to devils and infidels ; – I feel called upon to make a few remarks in reply to that effusion. Sure I am that there is not a worthy, enlightened, or liberal Catholic in this community who would not deprecate the author of such a flagitious and party-stirring production as the one alluded to. This infidel as I may call him, acknowledges to have seen a piece in the Courier, about two months ago, deprecating even the usual custom of our interring and dead ; – even the solemnity and silence of the grave, it would seem, cannot escape the malignity of this infuriated demon. He had wished to acknowledge the truth, he would have called himself the author of that unnoticed effusion ; – but what has he to do with truth ? – and since he attacks my house with his falsehoods, I wish to show to the public the whole truth.
The funeral referred to, took place as has been stated, to the no small annoyance, it seems, of this worthy, unhappy raver. I was absent from home at the time, but was happy to hear that my friends made themselves comfortable at my establishment.
On the 13th of July, a party of Freeholders and Freemen, together with old Orangemen to the number, in all, of seventy-four, assembled and dined at my house; and though in commemoration of a glorious victory obtained one hundred and fifty years previously, yet they all separated and left the room before one o’clock. The malicious disposition of this croaker, however, wishes to make it appear that all who were able went away at two o’clock, and that they behaved with impropriety in the streets ; whereas, it is well known, that had any of them been in the state which this nocturnal eavesdropper would have the public believe, or guilty of the charge alleged, he and his associate pimping spics would have taken advantage of the circumstances, and visited them with their usual charity and forbearance in such cases. The nightly ramifications of this well-known sharer shall be made public if he ever dares to attempt putting his [base] threats in execution – of opposing force to peace – or disaffection to loyalty; – threats which well merit, for their author, a permanent situation in the Provincial Penitentiary, and which in better regulated communities would not go unpunished.
In conclusion, Sir, I would inform this infidel scribe, that I keep a House of Public Entertainment, and shall always be happy to accommodate such orderly and loyal men as were those whose conduct I had the satisfaction of witnessing on the 13th July, 1840.
JAMES NETHERY.
Church-street, July 23.