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1-249 (Text)

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These were two rules for a Mandamus. The first of them calling upon the above named justices, or any other two of his Majesty's justices of the peace in this colony, to issue a fresh warrant to the chief constable to return true lists of jurors to serve at the next Quarter Sessions; the other, calling upon the chief constable himself to obey a former warrant which the above named justices had previously directed to him, and which it appeared he had not complied with in due form of law. These two rules, however, were substantially the same, and intended only to present the same question to the court under a double aspect. 
The Attorney General against the rules said that he would confine himself to one formal objection, viz. that the various Acts of Parliament which provided for the making of jury lists were to be considered as mere municipal acts, contemplating only English arrangements, and therefore not in force in this colony. He contended that it was a general proposition of law, that Acts of Parliament did not extend to the colonies, unless they contained specific words of reference, and as the acts in question were confined by the letter of them to England and Wales, they could not for that reason be construed as extending to this colony: and they furthermore did not extend to it, as being altogether inapplicable to its state and condition. It was upon this ground that Sir William Grant, when Master of the Rolls, held that the statutes of mortmain did not extend to the colonies. It was clear therefore that the applicants for these rules had mistaken the summoning officer. The rules should have been against the sheriff, to whom the returning of juries belonged at common law. The justices of the peace in this colony had no thing to do with this duty. They could not be considered in any another light than mere individuals. For this reason the learned gentleman prayed that the opinion of the court might be given on this point in the first instance, and if that opinion should be against him, that a future day might be named for entering upon the merits of the question, whether those persons who now prayed for these writs were as they termed themselves in their affidavits, really good and lawful men, and as such qualified to act as jurors. Their qualification in any other respect would not be disputed.
The Solicitor General conceived the question to be this Is a mandamus to be granted in this particular case? He would lay it down as a general proposition, in every sense of the word incontrovertible, that a mandamus could not be granted by that court, when another specific remedy could be obtained elsewhere; and such a remedy he concluded might be had at the Quarter Sessions, either by subjecting the chief constable to the penalties created by the statute of Ann, or by indicting him at common law. This writ, it would be recollected, was a high prerogative remedy not to be granted on every slight and trivial occasion. If the applicants for it felt themselves aggrieved by the omission of their names in the jury lists, why had they not complained to the Sessions? why had they not punished the chief constable in the manner before mentioned? He would tell that court the reason. They, or rather their counsel, wished by this mode of proceeding to give an importance and cast a dignity around this question, to which it was not intrinsically entitled. Their clients were considered by them as personages of too much consequence to crave redress at so humble a tribunal as that over which he had the honor to preside as chairman. The sheriff was obviously in this case the returning officer, and not the magistrates, who could only be regarded as individuals. In a legal point of view they were mere friends of the sheriff, and had voluntarily intermeddled in a matter which did not in the slightest degree concern their office. It could not be disputed that the Acts of Parliament relating to juries did not apply in the early stages of the colony, and if they did not apply then, he would beg to enquire when did they begin to apply? Again, if the legislature had meant the jury acts to be in force here, would they have altered the qualifications as they have done in those cases where juries are permitted? This innovation in so material a point, shewed that it was not contemplated by the legislature that the statutes of 7 and 8 William III. 3 and 4 Ann, and 3 Geo II. extended beyond the precincts of England. He therefore submitted that this rule must be discharged.
Dr. Wardell in reply stated, that the line of argument adopted by the Attorney and Solicitor-General was the same as he himself had adopted on a former occasion, when a writ of mandamus was applied for against the Sheriff. He, at that time contended, that the Acts of Parliament relating to the returns of jurors did not apply, and that therefore it was necessary to look to the Sheriff as the Common Law Officer. He was then told the Acts of Parliament prescribed a proper remedy, and that the Sheriff was not liable for omissions of the constables. After the Court had so strongly intimated an opinion, that the Acts of Parliament were in force here, he should not presume to argue, that they were not. Whatever might have been his opinion, he certainly did think that when Courts of Quarter Sessions were introduced into the colony, under the 4 Geo. 4, it might properly be concluded that all the requisites for rendering them effective, all the incidents and all the regulations with which they were surrounded, and as they existed in England, were introduced along with them, that the component parts should all be put together by the same law; and that, therefore, the method of reforming juries must be adopted here, the same as in England. If the acts were not in force in this colony, then the application of the former occasion was right, if they were, the present application was right. It had been said, that, if the constable had not performed his duty, he might be punished by indictment; and therefore another remedy existed. He admitted, that the constable might be indicted, and indeed he had been indicted, and a true bill had been found against him, and he no doubt would be punished. But that was not a remedy for the future; it was only a punishment for the past; it would not get the names of the applicants inserted in the panel. The petty constables could not be punished at all, because they had not been required to do any thing. It had been contended by the Solicitor-General, that the parties applying had no legal right; but, if it were considered what was the origin of juries, it was evident that to exercise the office of juror was a legal right. Every one by the common law had a right to be tried by his peers that right was reciprocal; and the right to be tried by, involved the right to try, his peers. 
The Solicitor-General had also said, that the writ of mandamus was a high prerogative writ, and ought not to be used except on extraordinary occasions, but on the authority of cases almost innumerable it had been granted for very trivial purposes, such as "to compel a justice of the peace to admit a constable;" "to appoint overseers of an extra parochial vill," &c. There was a case, it was true, in term reports, wherein Lord Kenyon was stated to have said, that they might as well issue a writ of mandamus to a constable to compel him to execute a warrant but there was an evident distinction between a common constable and a high constable; between a petty officer and one who even in this colony in all probability would soon become a man of great consequence, with his two or three thousand a year. Besides, it was a general principle regulating the granting of the writ of mandamus, as appeared by the case of Rex v. Everett, that it would be to oblige an officer to do his duty, and even in cases where there was a penalty for his neglect. It was clear then, that there was a legal right; it was clear also, that there was no prospective remedy, however true it might be, that the chief constable might be, and had been indicted in poenam for the past. In concluding, the learned Gentleman begged to refer the Court, and especially the Solicitor-General, to the 11 Henry 4. c. 9, which was a statute declaratory of the common law; and it was equally operative here, whether the statutes relative to impanelling juries were, or were not, in force. By that statute it would appear, that, unless juries were returned according to law, and by the proper officers, and not at the "denomination" of any other persons, all the proceedings in session were coram non judice, and every conviction void. It was evident that the juries had not been properly returned; as neither by the common nor statute law was the chief constable authorised to make out lists for the Sheriff, as he had done either by himself or with the assistance of others. He therefore considered, that all the convictions at every Quarter Sessions in the colony might be quashed, and that the judgments were ipso facto void.
Mr. Wentworth said he should first notice the objection of the Attorney General. That learned gentleman had laid it down as a general proposition of law, that Acts of Parliament were not in force in the Colonies without specific words of reference to the colonies; that upon this principle the jury acts, which might be considered as municipal acts, contemplating only English arrangements could have no efficacy here. Mr. Wentworth said that whatever might be the value of the inference which the Attorney General had drawn from the above premises, the premises themselves were not sustainable; for if all the statutes, which were in all British Colonies recognized to be valid, were examined, it would be found that nine tenths of them took no notice of the colonies whatever. The learned Solicitor General in support of the Attorney General's view of the Acts which relate to the mode of returning juries, after sagely premising that it was clear juries did not exist at the first establishment of this Colony, had pertinently inquired "why did not these Acts of Parliament apply in the early stages of the Colony; and if they do apply now, when did they begin to apply?" He should have no difficulty in helping that learned gentleman out of this legal dilemma. The acts in question did not apply in the early stages of the Colony; because the legislature of the mother country wisely foreseeing that the description of persons who would necessarily form the population of the colony during "the early stages of the colony" would be legally incapacitated to act as jurors, suspended the operation of the jury acts, by an act passed in the 27th year of his late Majesty, and instead of trial by jury which would otherwise have prevailed here, gave the colony a court consisting of a judge advocate and six or seven officers of his Majesty's forces, by sea or land. As for the Solicitor General's second query, the jury acts he begged to inform him began to apply here from the moment the Court of Quarter Sessions sprung into existence. To contend, as the Solicitor General had done, that if the legislature had meant the jury acts to apply here, they would not have altered the qualification as they have done, was completely to beg the question. This was assertion, not argument. It might be that the legislature had made the jury qualification here so high, in order to ensure the respectability of juries. It might be that they were better acquainted with the local circumstances of the colony than the Solicitor General, and meant this qualification to be a substitute for the qualification required in England. It was impossible, however, now to dive into the intention of the legislature; but at all events it was clear that this "altered qualification" did not extend to the juries at the Quarter Sessions; it only referred to juries in that court. 
This was obvious from the place which the clause creating this high jury qualification occupied in the body of the act itself. As to the objection which had been taken to this application for a Mandamus; he would fully concede it to be a general proposition of law that this writ would not lie where there was any other specific remedy for the grievance complained of; and it was because his learned friend and himself had arrived at the conclusion that there was no other specific remedy, that they had adopted the present course of proceeding. It was for this reason, and upon the authority of the cases cited by his learned friend, cases which he could not help thinking were strictly in point that they had applied for this rule. The case cited by the Solicitor General, and so triumphantly relied on by him, was altogether wide of the question. It merely decided that though the King's Bench will grant a Mandamus to compel justices of the peace to do their duty generally; yet that it will not dictate the decision at which they are to arrive; in other words that the judges of the court would not arrogate original jurisdiction in matters which should only come before them by certiorari or other proceedings, in the nature of an appeal. He could not but lament that the principal law officers of the government should have evinced so much antipathy to meet this question fairly. Had he been in their place after the minute and accurate account which had been lately given to the colony, of the proceedings that took place in the various stages of the act, by which this court was constituted, he must confess that he should have observed a very different course. The debates on that act must suffice to satisfy every unprejudiced mind that his Majesty's Ministers had no wish either to encourage or to perpetuate those unhappy distinctions which have grown up in this colony, and which, if not obliterated, must go on increasing in inveteracy until they end in explosion. But unfortunately there was notoriously in this community a sinister and mysterious agency, more powerful as it would seem than the government of the mother country itself. It was through this secret and baneful intervention that the emancipists had hitherto been deprived of that right which they now sought; and through it would they be deprived of it, if possible, for ever. He trusted, however, that justice would at length be done to so large and respectable a class of the colonists; and that the efforts which had this day been made to deprive them of their right, by those, who, if he mistook not the line of their public duty, ought to be arranged on the other side of the question, would no longer prevail.
Chief Justice. "This is an application for a writ of mandamus on the affidavits of Daniel Cooper and Simeon Lord, two inhabitants of the town of Sydney, who complain as a grievance that their names have been omitted in the jury lists returned to the Quarter Sessions; that this omission has had an injurious effect, tending to degrade them in the general estimation of society, and that they are "remediless in the premises," unless this writ be granted to them. In every case of an application of this sort there must be to uphold it a right, and the absence of a specific remedy to enforce that right. That right, in this instance, has not been disputed; and it would be inconvenient and useless, therefore, to moot it at present. A special case might have been framed with that view at the Sessions. Supposing the parties to have the right they claim, the question is whether they are without remedy, unless through the interposition of this court. That is the cardinal point of the argument on which every thing hinges. It appeared to me that the argument of the Attorney General goes much too far. I understood him to say that none of the statutes with regard to the impannelling of juries apply here, and this view of the case he supported by a dictum of a very eminent lawyer certainly, Sir William Grant, in a case where the question was whether the statutes of mortmain were or were not in force in the colonies. He decided that they were not, on the ground that the policy of those statutes was not applicable to the colonies. But the Attorney General in his argument to day has gone much further in his opinion than any of the principles deducible from that case would warrant. The general question of the applicability or non-applicability of Acts of Parliament is a very wide question. The common law is admitted to belong to colonies; but does it altogether apply to the state of all or any of our colonies? It is quite clear that there are some parts of that law which do apply to the colonies, and other parts which do not. Now, if there be some parts of the common law applicable to the condition of our colonies, and some parts not and yet that law be in force there, upon what principle can it be contended that the statute law of the realm is not be used in the same way? The legislative power of the country happens now to belong to King, Lords, and Commons conjointly; but there was a period in our history when it was vested solely in the King. Much of what is termed the common law proceeded from the edicts of the sovereign alone; but it, at all events, is to be presumed to have proceeded from the legislative authority of the day in whomsoever that authority may have been centered. 
I consider the argument of the Attorney General not more objectionable in its principles, than its application; every court has of necessity a power to compel its officers to execute its process. This is a power necessarily incident to the creation of courts. In this case the magistrates, who are the judges of the court of sessions, by their precept directed to the chief constable, an officer of that court, commanded something to be done which has not been done. The statute of 4 Geo. IV. 4 cap. in merely directing courts of Quarter Sessions to be held here, I think necessarily implies that they are to be held as in England. This, at least, is the inclination of my mind; though I will not, at present, be considered as giving on this point a definite decision. If such be the case, the provisions of the statutes of William and Ann without doubt apply here. Upon general principles then the court of sessions having power to act, must also possess the means of acting; and one of those means would be by the intervention of those officers whom the law has made its ministerial agents. Now, in the statutes before referred to, the 7 and 8 William III. and also 3 Geo. II. there is a specific mode of punishing the high and petty constables for not making out proper jury lists. There it will be seen that these acts point out a specific mode of redress for the injury here complained of. Supposing the sessions authorized to enforce this mode; this brings me to the question whether the parties here are really remediless, except through the writ of mandamus for which they now pray. It was clear from all the authorities, and it had indeed been partly conceded by their learned counsel on both sides, that this writ will only lie where there is a want of some other remedy. This principle is clearly deducible from the decision of Lord Mansfield and also from the case of the King v. the Churchwardens of