The Sun. — London, England, 1839-01-15 00:00:00

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DCK•<b3l` Per " 79 91 6 16 1 ,2 10 ' 1 111. 13 11 0' Lnd to t o b o vill E ° p t t ace° e f [lre p )er lay in tre A 10 92i of liolo 65 3ondS' cr. gett ll6, 53 ,1 3 4f, 1 t: neb l 0-an(V ....... ........ ....... ...... .... 8 ... :68 ...... •••. !co t.. 3.04 ,• ..... ....... ...... ...... 174, ...... .... f - .5 4 ...... 0'27 , ...... )AY) I ritit SUN', LONbON, TTJIESi)AY, JANUARY 15, 1830. THE C ANADIAN PR. I SONER St QUEEN'S TIENCI-I-(THIS DAY.) The interest esciterl by the bringing up of the Canadian prisoner s on wr;:ca of habeas corous still continues unabated, and from an i arly hour all the avenues leading to the Court were throng, d with persons anxious to obtain admittance. The prisoners w , :re brought in at nine o'clock, and were placed in the third re am; of the benches usually appropriated for Counsel. Although tiaey have been, since their arrival in London, in the gaol of /4awgate, and nominally in custody of Mr. Cope its Govern() r, Mr. Batchelor. the keeper cf the borough gaol of Liverpr jul, is still responsible for them, and has them in charge until V.lO decision of the Court is pronounced upon the ease. At . half-past nine the galleries were completely filled, and atno - n g the auditory were a number of ladies. There was an unusual display of Counsel in the body of the Court, almost eve ry seat being occupied. Justice Halliburten wad on the Bench at an early hot tr, and appeared to regard I:ne bustle of preparation going on about him with unusual interest. ;Mr. Flume took up his poz.'ition of yesterday in the Jury box. !Miss H. Martineau, an.'A several other ladies, were admitted through the Judges' prir4te room, and were accommodated with seats under the Bench, At a few minutes prist ten, the Judges took their scats, and the doors were then thrown opEna to the public, every corner beins; immediately r,ccueied. After the COu'aT had given judgment in an ejectment case, Lord DENMAY, said the Court has considered the objection taken on the part of:the Crown yesterday, and they do not think it necessary to hear you ( Mr. Hill) on thlt objection. We haver,() dou'ot th,at we are bound by the practice.% hie') has now Prevailed for B'.) ples, since the year 1758, of granting writs of l abeas corpus before Judges' returnable immediately before ' themsi:lves in time of vacation. In 1758 a bill was introduced into the Haute of Lords for the purpose of remedying some ' 3 l the def!cts of the law of habeas corpus as it then stood, and seven out of the ten Judges gave their opinion in favour of th e law as it now stands, among the rest Chicf-Jus tlec Wilmot who has. been referred to. So that during the last eighty years and probably more, the lune practise has prevailed, and some cases have been re ferred to of even an earlier period. We are aware that we might be extremely well entertained for several days by anti quarian discussions upon the practice of the Courts of Law, the records of which have been well kept, but it seams too, that we would be tampering with this great remedy of the flbject, if we did not say, that we will abide by the practieva which we have found established in this Court of Law, and nave events of this kind to be dealt with as those which nave been heretofore brought before us, viz., to p ro .. card to inquire wlo•ther the return is good, or not. may state now, that according to Dodd' . 3 interesting Account in Bacon's abridgement, seven 'of the Judges,- including the Chief Baron, Mr. Jostler, Wells, a nd Chief Justice Wilmot - Concurred in the opinio. JI have stated. Judge ostcr was unable to attend by reaso'r of the death of his wife, but it was well known he was of tb a same opinion—that he even wished to carry the remedy 0° habeas corpus still further. Lord M ans fi e ld was a M em b er of the House of Lords at that ime, and his opini may be '..,scertained by his practice at that period. It appeals that t:,,e opinion of the Judges was taken as as actual staterbent 'Jf the law as it then existed. Mr. HILL—May 3 * be allowed to add ►hat Lord Hardwick delivered his opini'Ai on the same side? The Arroa'sr.r-GENERAL—I have great satisfaction in find• ing that it is your Lordships' opinion that you are authorized to proceed on this writ; but I thought it my duty, the autho rities oa the; subject being so contradictory, to bring the mat ter before Court. Mr. 1111.1.—My Learned Friend the Attorney-General hav ing oxvessed his satisf: c.ion, I have to express my sorrow that RnY litt.lo difference about the points upon one side or the other of this argument should have led her Majesty's Attorney.. ‘." lll .tral to attempt a blow at the liberty of the subject, through that most important writ of habeas corpus. Having said this rnu , ...h. I shall now proceed to move upon the return - which is nee filed in record. The ATTORNEY-GENERAL—It is not filed. Mr. HlLL—Then I move that it lx filed, that is my first Motion. That return has been road in. Court. • Lord DENAIAN—The officer said it is filed as a matter of Course. The ATTORNEY-GENERAL.—If ... f ie officer says it is filed as a • Matter of course, I must acquiesc a. I shalt merely observe, that 1 understood the practice h A d been not to file a return until the discussion had termiunte'l Various cases may be cited, in which amendments were %rade to the return after objections bad been taken to it, anti that clearly shows that it was not Considered a matter of course that the return should be filed the moment it is re..d. In all those cases it was, after d's cussion, and afte x objections had been pointed cut, that the amendMent wr, s permitted; and I had imagined that the ob jection was t .o be made to the return in the first instance. I don ' t know. whether Mr. Daltrey (the officer) means to say that it is now filed at this instant. It is uow presented to the Court in the same state it originally was. Lora DENMAN—He says be never heard the question agi tated 'oefere. It was always understood to be filed when it niur.e into Court. _ The ATTORNEY-GENERAL—I have every respect for Mr. tltrey's opinion ; no Court ever had a more valuable officer. 'Some authorities say, that after a return is filed it may not be amended. If lam to understand that the return is in the same state as it crigiriany was under these circumstances I :have no objection. Mr. HILL—So far as these prisoner; are concerned I can not consent to any understanding. The return is filed, and it is upon that fcoting I am proceeding to argue. Mr. Justice COLERIDGE— Mr. Attorney, you 'nave been ar guing againit the writ issuing. The ATTORNEY• GENERAL —The return is now berore the Court. Mr. Justice WILLIAMS—Why, has the Court less power over it _when filed than, before? Wiewresare Counsel for the Crown, cited an autho rity to show that a return might be amended in Court. The ATTCANEY- GENERAL --Ye&. after an objection made. Lord De.Nmate —I don't think that proves your position at all. Mr esee—My Lords, I am about to argue this case upon th, foot;.ng that the return is filed, and I trust the time is not far d ist Ant when I shall be able to come to the merits of the ea ', se t`sod that the stream of • preliminary objections, however nge will come to an end. Lord DEN MAN— W bleb ease are you upon ? litee—l am moving the discharge of Leonard Watson, 'Yu arcsreadng the return now filed in this Court. My Lords, this is se in w hich the prisoner is not 'convicted, nor stated to be convicted. It. is one of the class of cases in which there persons, nine persons—the other class of cases consisting of three • rersu "s• But I shall confine my motion to the case of Leonard Watson,„le for although it is the wish of my Learned Friends ,-, myself t o ta k e u p as little as possible the time of this " ar t , Yet I must guard myself against being supposed to argue the case of the whole class in the case of Leonard Wat ,Bo.rbecause it may be possible that I shall have observations to e fu_ on the other cases, although probably the main argument ` ll '”' arise in this case. Your Lordships have learned from this . return that a vessel appears in the port of Liverpool—a 1 13Ti vate vessel, under the command of a private person—that 'that vessel contains a large number of persons held by the ester in a state of confinement—that he elects to put those Persons under the custody of Mr. Bachelor, the gaoler of Liverpool —that Mr. Bachelor elects to receive them, and t hat l he ret urns as the cause of their detention that he holds 1, u`e persons for the purpose of their being transported for v an Diemen's Land as soon as means shall be prepared i ohe facts r tbeirtransportation. That, my Lords, is a statement of so far as the jailer can state them of his own know edge. Under these circumstances, the prisoners apply to Your Lordships for a writ of labeas corpus, and a return is n ade, which return of course, attempts to set forth, as it must, the cause of the capture and the cause of the detention- - UM is to say, it justifies the preceding statements, to e'Which I have just alluded, and referred your Lordships. It has been a matter of very anxious consideration with My Learned Friends and myself, what is the proper course, to bring this case before your Lordships. Are we upon a matter where a private man, or at least a public officer of very low degree, a gaoler of Liverpool—are we in a case where such a person makes a statement regarding a great number of facts occurring in a foreign country, of which he can have no cognizance at all, to which he hinds himself merely upon his hearsay and by no oath—are we, upon a state ment merely, a piece of pleading of no more authority in the shap e of evidence than a plea to a declaration, or the declare : 'Con itself—are we to be satisfied with that statement—are we • to be concluded, as my learned friend the Attorney-General gays we are, by the statement of Mr. Bachelor, as to What occurred in Upper or Lower Canadas, or else- Where ; or are we to attempt to go into the real facts of this case, and show your Lordships how • repugnant they were, as I believe them to be, to the return made. My Lords, there are very high authorities for saying that we h ave a right to go into the real facts of the case, and by some means or other to bring them under the considera . bon of the Court ; and as I think the prine!ple of the writ Ke!, by his. Judges h a s a r i g ht Ifhabe as corpus i s , t h a t th e • to know why any en , of his subjects is in prison, it should seem that that right to know and judge must • of necessity draw after it the treens, by some eiay or other, of having the facts before the Court, not a mere unaut 'a orised statement, but the facts upon Which that judgment is to be founded. I shall lose nothing • before your Lordships on behalf of my clients if I admit that this doctrine, so reasonable in itself, and supported by the high a uthority of Mr. Justice Foster and others, is nevertheless en cumbered with many difficulties, but if even it becomes neces sary, in the course cf this investigetion, I shall find it my duty to prefer these facts to your Lordships, and I shall sustain my . right to prefer them by authorities neither few nor unim portant in till> case ; hut for the present moment I am to con tend that that return is so bad, legally speaking, both nega tively from what it omits, and affirmatively. from what it offers to your Lordships, that it will not be necessary at the present moment to do more than to call your Lordships' attention to the return itself. Considering it, es I will, by those legal prin t"es. el-1a ever. ,hey. A! C important, must ha most so in # ease s of this k, , nd, k - a , that lour Lordships, who for the pre sent moment, I eell admit, cannot travel out of the return. must see with absolute certainty that every fact is to be found there stated recording to legal principles with sufficient per spicuity to enable you to judge and draw your own inferences frem the facts stated by the gaoler of Liverpool. The first . objection which I shall male to this le turn is, that there is no conviction either set forth or averred against the prisoner • Leonard Watson. He is here in the course of transportation for life to Van Diemen's Land, and there is no conviction stated upon which he is sentenced. It will be admitted by my Learned Friend the Attorney-General that there is no conviction, and his answer to me will be that there is something equivalent to a conviction. The return arts forth, that by statutes patted in 'the first year of the reign of Victoria, a provincial statute, intituled " An Act to enable the Government of this Province to extend a conditional par don to persons concerted in the late insurrection," and after reciting that it is advisable to extend the mercy of the Crown to certain persons, it goes on to enact, that upon the petitlen of any person charged with high treason, and in Custody, pref , rred to the Lieutenant-Governor before arraign ment, and praying to be pardoned, it Would be lawful' for him, if it seemed fit, to grant a ptirdwi in her Majesty's name, on such terms and conditions as might appear proper, which firclon Was to be granted under the Great Seal of the Province, and after reciting in stibstan'a, the prayer of such petition, it states that it stintl have the same effect as an attainder of the .s person for the crime of high treason, so far as regards the forfeiture of all his estate and property, real an'l personal—that is so much of the statute as • _ seemed advisable to Mr. Bachelor's legal adviser to set forth on the present occasion. The return goes on to say that the prisoner did petition the Governor, that he confessed his guilt, that a pardon was granted on condition of his being transported for life. I understand it is to be urged that that state of things is equivalent to a conviction. First, in order to proceed by steps, I will show to your Lordships that a convic tion is necessary. Perhaps I am stating the law too s:rcngly against myself; there is no onus on me, and it is for my Learned Friend, the Attorney-General, to show that a convic tion is not necessary. I understand he intends to show that there is something equivalent to a conviction, and that he reste Upon the statute of 5 Geo. IV. as applying to this ease. We are now inquiring by what authority the gaoler of Liverpool holds those persons, however they Came to him in custody. His authority mu - A be an English authority—it must be a power conferred by the Imperial Parliament, and not by any pro vincial authority. Now, my Lords, the only statute that re fers to this is the sth of Geo. IV., and that statute, as if it contemplated the present ease, is drawn up in the most guarded and careful manner, for the purpose of securin&the -liberty of the subject. I refer your Lordships to the lath of Geo. IV., c. 84, s. 17. That section begins by reciting that in parts of his Majesty's dominion not within the United Kingdom persons were liable to be punished by transportation, and that others upon whom sentence of death had been passed, might receive pardon in consideration of transportation beyond the seas; and there being no means to transport them without first bringing them to England, it was enacted, that whenever any one was convicted and adjudged to transportation under such circumstances, and was brought to England in order to be transported, it might be lawful to imprison any such offen der in any place of confinement until he had been transported. Now what description of persons does that Act apply to ?—to convicts, and convicts only. The name convict is a term perfectiy well and thoroughly defined in our law and yet the Act, anticipating as it were some such case as the present, goes on to say, " convicted by any Court or Judge." It is, therefore, quite necessary that this person should be con victed. I shall presently show that that is net all that is ne cessary ; but it,is one of the necessary renditions that be should be convicted. Is that persona convict? How can it be maintained that he is? Why, by my Learned Friend telling me that there is something equivalent to a conviction. The levy of England knows nothing of the doctrine of equivalents in penal laws. It is nothing if the prisoner be greater or less than a convict. The law of England says that he must be that particular identical person, a convict, acid it is unnecessary what else he be if he be but that. I need not take up the time of the Court, be telling your Lortiships' attention to the legal defiritiott a the term convict. You well know what it is. The Act has here supplied it to be logically in favour of lihcrty and annexes the definition, " con - - I-Teed by a Couto.. Judge." What Coute—what Judge has interfered here? . l elow is the man a convict in any sense of the term ? Your L or d s le ps see t h at h o i s seat here by virtue of preceedireg a which, I am stile I n ed not tell your Lordships, ree:eires to be watched with vigilant scrutiny, not unmixed with suspicion—proceedings unknown to, and abhorent to the principle of the English law. It appears by the return that the prisoner was in gaol —it appears by the return that he present, d something which the gaoler of Liverpool calls a petition—that it contains something which the gaoler of Liverpool takes open himself to affirm was a confession of guilt, and that upon these matters before arraignment—for the statute is particular in saying it must be before arraignment—all care is taken, my Lords, that the prisoner shall never be seen in a public court of justice for any purpose. It is a private proceeding, and must be done before arraignment ; there being, there fore, no power in the prisoner ever to be brought into a public court. And then upon this petition, and what is called a confession of guilt, pardon is to issue. To your Lordships it seems to have been done in p, ison, where a man is anything but master of his own actions. Your Lordships know that even in the most unimpoita tit of civil contracts the law looks with great .suspicion on everything done while a party is in prison, the validity of which depends on his own will, as it does here, whether appearing on it or net, and what matter may have been put into that petition. What, then, is this statute ? It is a statute to enable the Government to send its agents into a prison, and to obtain something then to be called an assent to any punishment short of death. That is the be nefit conferred on the prisoner by this statute. It is quite clear that any punishment short of death can be inflicted—it is by no means clear that the punishment ma) or necessarily must be short of death. I don't know what is the legal defi nition of pardon, I don't know that Lord Russell was not • pardoned when that portion of his sentenca which saved him from being cut down alive and disemboweled, and all the other horrible mutilations of our treason laws were not carried into effect. And I don't know that Governor Arthur under this statute may not have construed it into a pardon, because he simply and mercifully, and in the shortest way, executed those men, taking from them those enormities of the law which the wisdom of our ancestors added to execution. Does this lock like a conviction? Does it look like a trial—does it appear that these men had any of the benefits of the English laws, or the laws of any other civilized country ? It is a law which perhaps may be justified by the necessity of the case. I make no political remarks whatever—l am here to argue the point of law ; but, as a lawyer, I submit to your Lordships there is nothing here which for one moment can he assimilated to proceedings in Courts of Law. It is a libel on the term conviction, and on anything like a trial. So you call a man who acts under the Statute a Judg. ? It is • degrading the authority of the Judge throughout the world to place upon the footing of a Judge any person who acts uns der this Statute. But if this is , a conviction, must it not have something on the face of it, or equivalent to a conviction ? These are new terms to penal I law—the liberty of the subject is to be abridged by these proceedings, so far as they can. The bringing this man's case before your Lordships is to be restricted between the narrowest limits; it can only be done in term time, so that according to the Learned Attorney-General's argu ment, if these men come here during the vacation, they must be sent away without seeing your Lord- I ships' faces ; but when we come to the doctrine of punishments, my Learned Fri.•nd transfers his liberality. The I liberty of the subject is to be confined within the strictest limits, while the power of punishment is to be widely and broadly extended. These wholesome provisions, by which penal exactmeets are to bo strictly construed, are put aside. My Learned Friend not only perverts but reverses them, and, instead of being construed narrowly, they are to be construed broadly—instead of being construed according to the strict letter of the Legislature, they are to be taken in their widest sense. Let us see whether the subject could use this as a conviction. if it is a conviction wrongfully obtained, could he have a writ of error upon it? How is he to act? What is he to do with this monster, which my Learned Friend calls an equivalent to a conviction ? Suppose it is all wrong, how is lie to sue out a writ of error ? What power has he? None. Suppose this pardon should turn out ineffectual, and suppose the pardon should he indited afresh—is this supposed conviction to bar him from pleading Not Guilty to the offence with which he is charged. Try it by any of the legal incidents that attach to the term convic tion, and your Lordships will find that it answers to none of them. I therefore, submit humbly to your Lordships, that this not a conviction ; that, my Lords, is my first point of objection to this return. My second point is this, that there is no judgment of transportation to be found in the return. It is a well-known and old-established principle of our law, and I rather think the authorities will run far enough back to dates by even the antiquarian researches, against the liberty of the subject, of my Learned Friend the Attorney-General. It will be found to be a sufficiently ancient principle that no man can suffer punishment by his own consent, or by contract. That principle is broadly laid down by Lord Hubbard among others, but it is a principle not only of our law, but of all laws of the civilized world, and founded upon justice. No man has that command over his person—a wan consenting to be hanged would not remove the guilt legally, or morally incurred by the person doing it who was not legally authorised. That principle was well understood at the time the, principle of the commutation of punishments was I adopted. The King would have aright to execute for treason, but the King would have no right to commute the punishment of treason for one of transportation, and therefore, when it became in the increasing lenity—the slowly advancing lenity of the law—common to commute the punishment of death for imprisonment or transportation, it became necessary that there should be authority for doing it, independent of the consent of the prisoner. Your Lordship will find it provided, that in all the Acts which give the power of commuting the punishment of death for transportation, that the Judges when that power was about to be exercised, were empowered to enter a judgment of transportation upon the record. The question then was, was the prisoner in the present case legally convicted of treason. The second objection, therefore, he should present, independent of the first . , must prevail, for that power is absent which ens titles any authority, adversely to the wishes of the prisoner, to change his punishment to transportation ; that, my Lord, is my second objection, Had the Governor any legal power to award transportation, that is to say, to take the first step towards it? Supposing the man to be properly convicted, is there, I would ask your Lordships, any thing like a record upon which to enter up judgment of transportation. My humble propo shion to your Lordships is, that there is no proof here ; and I believe the contrary to be the Pict, that the Governor has any such power. If lie had, he must derive it front the pro vincial Statute, for if it had been derived by letters patent, they are not set cut or referred to. The Court is aware that by an old Statute of Henry the Eighth that the power of par doning was in communicon. It has been held upon doubtful authority that the King or Quern can communicate that power in the Colonies ; hut if it must be communicated, it must be from the power contained ie the letters patent consti tuting the Governor. Now, the Governor has not a power known to the law as your Lordships have. The moment any of your Lordships are appointed Judges you have certain powers given to you ; but a Governor if any of the Colonies is merely the attorney of the King, created by letters patent, and into, those letters patent - your Lordship must look for his authority. Some Governors have most extensive p were, as, for instance, the Governor-General of India; but the Governor of St. Helena has very small powers indeed; we meet thereNee look to see what the power of the Goeetnor here is. But previously to doing that, there is a prelintinary qneetitie which must be in quired, into, vit.; can the. Governer, by the 'Convent of the Provisibenl,.Patliineent, give himself a power which the Crown has not conferred upon him? I merely throw that out for the consideration of your Lordships. lam supposing the, Stew. e to be well passed and this power well eltgrhised ; but I appre bend, when your, Lordships coihe to look into this Statute, you will find that it gives no such powers as have been exercised in the present case. 'I he only attempt to confer the power is this—to say, as in these cases, where the Go vernor is entitled to grant a pardon ; hL tnay impose such conditions upon that pardon as seems to him proper. Now without stopping at the present moment to consider the force of that, let me ask whether it is according to the law of England, whether it is according to the great principles of legislation and jurisprudence exercised in this, sountre, that a power could b., contrived In seth a manner? Is this Go vernor to heee the power to invent any punishment be pleases ? Suppose, my Lords, I concede it, that he could go up to the punishment of death, are the words in the Statute sufficient to give a power to the Governor which the Kings of this country never exereised ih the worst of times ? Suppose the (3oeerhor had said, I grant a pardon to you Leonard Watson, upon the condition that you submit to certain punishment, that you have your hand cut off in the Market place of Toronto—what is th - re to limit him in his power? If he has the. power, to• transport for life, and the argu ments of the other side are to be held as good, I say there is nothing whatever to limit him from exercising any caprice he ma) think proper. He might say, I will not pardon you unless you submit to the torture of the tack. And in short, if such a porter at; is contended for exists in the Govettor, he may invent punishments for every dtly in the week. Now, how is all this attempted to be met by those who had framed the return ? Why, there are averment! that the erisoner assented to the pardon. Is it to be said that the power given to a thiVetnor is to be exercised only upon consent being given by the prisoner? Of what use is such an averment ? The moment that you find the punishment de pends upon the contract between the patties, that moment it becomes illegal. My Learned Friends ate, therefore, in this dilemma, that thd rievernor has invented a punishment—he has chosen to give a pardon to the prisoner, which he has accepted, and, therefore, it is said that he is stopped from complaining. Now I next submit to your Lordships, that suppoSitig there was such power—supposing the prlscinet to be cognitant of it—and supposing this to be a judgment of transportation—l ask my Learned Friend to explain how it is, and by what means the Governor obtains the paver of transporting the prisoner beyond thti limits of his own government ? I wish to know hew it is he can seed him either to Calcutta or Bermuda? My Learned Friends must not refer me, in answer to that ques tion, to the Statute of George IV., for that Statete only amounts to this—that *beta; there is the antece dent power, to transport extra ,fines, the authorities in Ergland, shall be aiding in carrying that antecedent autho rity into effect. The Statute assumes it was tight to bring these men to England, tecattse in Van Dietnen's Lend there is no authority,ln the first instance, to treat them as convicts. M. htkt objnction, my Lords, is, thet of assuming a legal au. thority to transport up to the moment of the reception of the transportation. My next objection is, that the transportation has not been legally conducted. The return avers that, in order to carry the condition of pardon into effect, it was ne cessary; in thb first place, to send the prisoner to Quebec. I That averment was mace by Mr. Batchelor, the gaoler of Liverpool. The return, then, is to the Governor of Upper Canada ) and by his authority and warrantthe prisoner is sent to bower C nada, and there, my Lords, all notice—all hint of authority on the part of the Government of tipper Canada-ends. As far as we can learn, from the return, the Governor of Upper Canada never exercised any authority, but to send the pri soners to Lower Canada. It would appear that Governor Arthur thought he had executed his power by that, for, from all that appears, the prisoners might have been turned up. The next statement in the return is that the Governor of Lower Canada, without any communication with the Governor of Upper Canada, without any warrant or authority, if he thinks proper, put the prisoner into the cus tody of the Sheriff of Quebec, and then there comes another averment of Mr. Batchelor, who says that he found out that it was necessary to send the prisoner from Quebec to England, previous to his being transported to Van Diemen's Land. Now, my Lords, I am at a loss to know what authority the Governor of Lower Canada has in this mat ter at all. If he has any authority, it must be given him by the law of England, and we have no document whatever upon this record showing any such authority. The Governor of Lower Canada, having put these persons into the hands of the Sheriff of Quebec, 1111 that we know is, that the gaoler of Liverpool having found out. that it was necessary that they should b e b roug h t to E ng l an d , t h ey arc put on b oar d the barque fl oss f or t h at purpose. S uch b e i ng the circum stances, I am at a loss, m y L or d s , to k now how the Go vernor of Lower Canada had any right to interfere at all. If it were necessary to scud the prisoners to England, one would have thought the'. the Governor of Upper. Canada would have been the proper person to interfere. But that was not the case, but the Governor of Lower Canada had taken up the autho-ity. Now, is the Governor of Lower Canada allowed to adopt such a course? The Governor of Nova Scotia, or any of the other colonies, might with equal justice have done the same thing. By what rules, my Lords, are we to find out the authority, or to test its limits, if such things as I have adverted to are allowed to take place with impunity? For all that appears to the contrary, it might have been intended by this warrant of Governor Arthur, that this man was to be taken at once to Van Diemen's Land. We are told, my Lords, in the report that it is matter of necessity. I think, my Lords, that your Lordships have seen enough to consince you that it is a mere matter of convenience. if a vessel could go from Quebec to England, it could go equally as well from there to Van Diemen's Land. It appears to me, my Lords, that the Governor of Lower Canada had no more to do with it than the Governor of Ceylon. Some of these prisoners were transported for fourteen years from their arrival at Van Diemetes Land ; so that increasing the length of their voyage increased the term of their punishment. It appears, from the terms of the averment of Batchelor, that her Majesty had thought it fit that they should be brought to Liverpool. Now, I should like to know how Mr. Batchelor knew that her Majesty expressed her pleasure upon it ? If she has, it must have been done by some document, and some of her Ministers must have been responsible for its correct ness. All that we know about the matter is, that Mr. Batchelor says it seemed fit to the Queen that they should be broueht to Liverpool. Now, supposing the m to be there, I risk, What right has Mr. Batchelor to do what he has done ? That right is not set forth. All that is stated is by Mr. Batchelor himself, that he was the proper person to have their custody. He acts without warrant, and as I understand it, his acts are to be justified. This brings me, my Lords, to the last objection, which is that none of the documents or aver ments which are referred to in the return are set out so as to answer the exigencies of the law upon the subjec. What is the use, my Lords, of this writ of habeas corpus? Why, it is that your Lordship - . may judge whether the parties are or are not duly detained in custody. I would only ask of your Lordships to look at the first aver ment. There it is stated that the prisoner petitioned th e Go vernment. If that is so, why should not your Lordships see the petition ? Is it to be contended that it is enough to state the fact? But the averment goes on to say it was a petition, confessing his guilt—guilt which your Lordships are not in formed of the nature of. It is true, that your Lordships are told that guilt is treason, but your Lordships know nothing of that further than what this jailor chooses to state. I, there fore, respectfully ask of your Lordships whether this case be considered a proper averment. Guilt is to be derived, my Lords, from facts, and, if the facts were before your Lord ships, you could draw the inference whether guilty or not. But then, it is said, that the prisoner assented to the par don. Indeed ! If he did, how did he do so ? Was it by writing, or what ? Why, upon that, the Court is left completely in the dark. Then it is said that there was this pardon. If there was, I apprehend that that pardon should have been set out. I will admit, that where a conviction is properly set out, it may not be necessary to set out the steps. Here an attempt has been made to set out the steps, and the course that has been adopted, in my opinion, was clearly unnecessary. In order to prove that it was so, I will cite the case of the King and Salkeld which took place in the reign of William 111. That was a case of a habeas corpus, directed to the Governor of Newgatc, to bring up the body of a person named Clarke. It was there stated that Clarke ought to have taken upon himself the office of Alderman, and there was decided that where a party was committed by a warrant in writing, that warrant must be returned to the Court, otherwise it would be in the power of the gaoler to alter the state of the prisoner, and constitute himself to the office of judge. If the case was otherwise, as Justice Fortescue had said, " it would be giving to our children baubles for bread, when they asked for a writ of habeas corpus." Now, my Lords, I want to know why the gaoler of Liverpool has not returned tee only writ which is in his possession. I can prove to your Lordships that he showed us a writ, which he said was the may one he had, but that writ is not here, and then it becomes a question in my mind whe ther that gaoler has not been induced between Liverpool and London to keep back that writ. Farther than this, my Lords, I am prepared to show that in that writ the name of Leonard Watson was not included. The ATTORNEY-GENERAL—My Lords, I do object to my Learned Friend showing any such thing. He must keep within the return. Lord DENMAN—WC cannot hear you upon anything, ex cept it is in the return. Mr. HILL—My Lords, I bow to the decision of Court. In Crowley 's case Sir Samuel Romilly had said that the Habeas Coipus Act was not to give new rights, but to make it imperative upon all parties to do their duty. Judges arc by that Act made liable in the amount of 5001. to do their duty, and gaolers, and • all other officers under them, were placed under similar restriations. NVhen, therefore, my Lords, I find, that in pursuance of the general spirit of the provisions of the Act, it is made imperative upon the gaoler to give a copy of the warrant, unless I receive an intimation to the contrary from your Lord ship', I must conclude that in some shape or other the war rant has been before the Court. Lord DENMAN—We are not saying that the warrant is not before the Court, but we . are only saying that you must con fine yourself to the return. Mr. HILL—My Lords, I have now concluded the observa tions I have considered it necessary to offer to our Lordships, and it would not be reasonable on my part to offer any apology to the Court for the length of time I have taken in addressing you, because the vast interests that have been confided to my care justify the course I have adopted. No doubt, my Lords, more able men than myself would have conveyed more intelligence to your Lordships in a less period of time ; but no man , I can assure your Lordships, could exercised a greater determination than myself to labour strenuously, if possible, to give to this unfortunate individual that which I firmly believe he has been illegally deprived of—the rights of a British sub ject. Although, my Lords, he Was born abroad—although he might have been an Hindoo—ealthough Afric's scorching sun had changed the colour ot his skin—still, city LOrda, he It a man; his foot has been placed upon the shores of England, and he is entitled to have his case determined by the constitutional tribunals of this cbUtitry: Mr. RoaneCK—My Lords, I also appear at dounscl for Leonard Watson, and although I have felt, and leeply fe:t, the responsibility that attaches to me in the task I have undertaken, WI! I must congra tulate your Lordships and the people of this country hat at length, after somewhat more than twelve months im orisonment, Leonard Watson does see the face of the Jel g e s . It is supposed to be the peculiar characteristic of the English la w that every man shall be tried at the'earliest possible oppor. unity after his incarceration—ahat he shall not be punished %NI( ut trial—that he shall not be punished without an eeportunity of making an answer to the charge brought against eim—without being heard either by himself or his Couesel— vithout witnesses being examined on his behalf—and a ithout lr antmenacne punishedfrom Judges after one but imprisonment, my Lords, we have a case o year's without eeeing a Judge—without any sentence—without a trial— :Jed without any arraignMent. And how does it ha?per, my Lords, thet we may become aware of these feels ? Why, because it has en happened, by a Most fortunate chance for :his man, that he has at length appeared upon the soil of England, where he may be reached by the arm of the Eaglisit 'aw, and not committed to the tender mercies of th, Colonial Legislature. A man comes here before you my Lords, and asks why he is detained ? He s tys he is imprisoned illegally, and that he has been brought from one of the territories of Great Britain against his will, and against the law. He asks the man that detains him upon what grounds he does so ? and he cann )t tell him. Has the law been so thoughtless that it has let to the gaoler of a prison hether a man shall be punished or not? No such thing. But that is the eve in the present in stance. Here, my Lords, you have nothing to act upoti but the assertions of this gaaler of Liverpool. The la* in this cathify has provided certain safeguards fe • the man who is in custody. They ace, that when he appears upon the British soil there shall i.e a certain set of vital forms, in order to prove that he has been legally detained. Have your Lordships any such forms in the present case ? Not a shadow of one—anot the appearance of a dettiment or the copy of a *arrant. You have nothing upon which you cab ant, but the asservetion of the gaoler of Liverpool, stating certain facts, but not telling you how these facts came to his knowledge. Your Lordships are no doubt aware of the situation ita Which the country from which this prisoner comes is placed. I am not, my Lords, going to enter into its history; but I only call your Lordships' attention td the Snlyjecit i fur the purpose of dis abusing your minds of all that has been Said id path phlets, books, and newspapers, against these men. Thank God, My Lords, we have now a legal tribunal to decide whether they ate ghilty dr net; and whoa Is the document be tote yob, my Lords, upon which you ate to pro nounce that decision ? Why the only document is the return to a writ of habeas corpus made by the gaoler of Liverpool. Now, how does that arise Why, certain men appear iti this country, detained forcibly—prima facie—that is, illegal. guppesing they cAnie from 4apahl, they could not be elt ta'ned an hour; if they are detained in England it nitist be by the forte of the law. Now what is the law as applied to their. case. Why, if the party came from the Colonies, app:•aring to be properly transported, it would be sufficient to give the Court jttrisdictioh that he *is a Convict ; but then evidence must be given that the sentence of transportation had been awarded: Where, I would ask, is that evidence in this case? No w here. I object to this return upon two grounds :—first. upon its affirmative propositions, that it is improper; and secondly, negatively from its want of sufficiency of form. I am not able to show you what the law of Upper Canada but I am ;hie to show you what the law of England is as regards Upper Canada. By the 14th of George 111., chap. 83, sec. 11, it is enacted, " 'that whereas the certainty and lenity of the criminal law of triglatid, and the benefits and advantages resulting from the use of it, have been sensibly felt," &c., &c. In that Act there was included both Upper and Lower Canada, "as well in the description and quality of the offence as in the method of prosecution and trial." Upon this return, my Lords, you have no proof shown to you that there is any alteration of that law of Eng land which enacts that in Upper Canada all offences shall be tried according to the law of England, that the law shall be administered, and shall be observed as law, accord ing to the forms of England, " as well in the description and qu ility of the offence, as i.a the method of prosecution and trial," and the punishment and forfeiture thereby inflicted, to the exclusion of every other rule of cri minal law. Where is the proof that that has been al tered ? No, but it may be said there has been a sub sequent Act. So there is—the 31st George 111., chap. 41—what does that prove ? [The Learned Gentleman read the 334 section.] The Act gives Parliament the power of altering those laws in certain cases ; but as we arc to be confined to the return, we shall be confined to the return, and the return does not show to you, in any one case, that the law of England has been altered as regards the me thod of prosecution and trial. All you have set forth in this return is an act which shuns the pa: don shall have the effect as regards the forfeiture of a man's effects, as if he had teen attainied, and that's the only alteration your 'Lordships have before you. This 31st section of the English Act says, that all laws and ordinances passed before this law shall have the effect of law. I submit that that makes it English law, i,nd therefore I am permitted to read an ordinance made pre vious-to that Act, and that ordinance is the 24th of George 111. The Learned Counsel was about to read it, when— I The SOLICITOR:-GENERAL said that in the absence of the Attorney-General he would interfere, to ask what use could be made of this? What he understood was, that Mr. Roe buck was reading something which he said was one of the ord . nAnces unrepeal: d. Mr. ROEBUCK—You get at it just as you get at any other part of the law of England. Lord DEN MAN—It by no means comes within the law of England. Mr. ROEBUCK-The fact is, my Lord, I was merely wing to read a provision which was in reality a pro vision of the English law; and, therefore, I will assume the English law is in force in this country, and that all the' forms which the law of England requires before a person be transported were required there. By the 31st of George 111. also, by the 2d section, powers arc given to the Parliament there, constituted by that Act, to make laws for the good of the province, and we have this peculiar quslifiea tion, " that these Acts shall be valid and binding, to all in tents and, purposes whatever, within the province in which the same shall be so passed ;" that is to say, that a poster was given to the Parliament of Upper and Lower Ca nada respectively, to make laws within the province. and not out of it. The power of the Colon'a; Legislature was confined within its territories, end, therefo.e, it follows as a conclusion, that though they might punish they could not transport. They might say that no man should live within their territory, but they could not say that he should live any where out of it. Their powers ceased the moment he left the territory—they could not touch him the moment he was over—their powers were gone as far as he was con cerned—they did not. exist. He could: not return—no, because he came within the power of the Colony : but the moment he had gone out of the Colony the Colonial power ceased. What was the consequence of that Act? The consequence was, that the English Parliament, seeing that persons could not in any way whatsoever, be transported, and by " transportation" dis tinctly meaning being bound to live in a particular place, under particular lawk, and under particular restrictions—that is the meaning of the punishment. " Transpot tation" means going to a particular place, and living after a particular fashion. Nothing but the Imperial power could give that. It required the Imperial Act—and what does it say ? Not that every person may be punished—not that every person who ray be disagreeable to the ruling powers in the country shall be . transported to any cf our penal colonies; but that any per son convicted before a Judge, and also adjudged to transporta tion, may be transported after a particular fashion. I want to draw a distinction betwen judicial powers and executive powers. In this case, my Lords, nothing but executive power has been used. No judicial power has interfered. The Governor is not a judicial officer. There has been no Court of Criminal Jurisdiction. It required a special section of an Act of Par liament to constitute it a Court at all, and spider certain clr cumstmccs it was a Court of Appeal, but not a Cella of Criminal Jurisdiction. The return itself shows sufficiently that it is an improper return, and that these parties are illegally retained, because it shows that these parties have not been convicted —th at these p arties ha ve not been tried that these parties, myLords, have not been adjudged to transportation. Therefore, my Lords, at once and without further ado, I say the whole affair is cancelled thereby. It shows these parties are not subject to transportation—they might have been subject to punishment for ought we know ; but they have not been tried by any Court of crimi nal jurisdiction, or by any Court at all. They have been tried and judged—if you can call it judg ment, by an executive officer, and an executive officer alone ; and to-morrow , if it should so please th e Government of Upper Canada, to transport half a dozen prisoners without setting forth any law at all, they might do it. They might say they were convicts, and that was enough—they might , say they were objects fit for transportation, and that was enough. But, my Lords, the Court will not consider that enough as I hope I shall show presently. They have given yo ur L or d sh i ps an illegal rcasoa chosen to say for themselves for what these prisoners are sent here' they have they have told you they were not convicts, and yet they send th.emhcrel supposingThercfore, my Lords, on t h at po i n t I thi n k I am clear. But they have been convicted, and sup posing they have been brought here in consequence I say the retur n i s b ail for insuff i c i ency. I t i s in ofuffin a conviction b y a Court of Upper Canada, then my Lords, i e t ior informing your L or d s hi ps un d er w h a t l aw th e y s c have been sent here, and it is insufficient in setting forth the facts, and authenticating those facts by legal ' esta blished evidence , that the parties have boon convicted • I sa y your Lord s hi ps can take no legal not i ce o f the nay yl‘ L viaooi o wluu r l b do iy t n sf :of that proposition. B u t I as k y our L or d s hips this. I think, my Lords, there can be na that law, and just t o te ll you so muc h an d no more governor of the gaol of Liverpool to instruct uUp allowper tChaenada,, as he pleases, and that what he shall say shall be taken as conclusive and irrevocable evidence of everything he does ? Now, my Lords, your. Lordships would require—knowing what the law of England is in that colony—know ing what the 'imperial statutes are—your Lordships would require very strong evidence to make you believe that in any portion of her Majesty's dominions such a law as the one I am about to describe exists, viz., that a man may be put into , prison, and that he may there, in duresse, on hit petition to the Governmeet, make a contract with the Governor to be trans portedeto be whipped—to be tortured—t 3 be mutilated. I say, my Lorda your Lordships would renuire very strong e+. 'deface to make you believe the low of England had been altered to that effect in that province, and yet what does it say? It makes a statement on the face of it which is illegal. It says there was a contract between the Governor and the prisoner, that he should be transported fer life, and it does net do what the law of England requires it to do, viz —to give the Judges adjudi cation after the conditional pardon granted, and to make it a portion of the law that he was adjudged to transportation by the Court. What is the law of England, we have a right to supp )50 is the law of Canada also. Tb rettrn does not show the contTary ; it could not. I know that pe. - feetly well. If a man is condemned to death, and a condition it pardon granted, what is done ? The Secretary of State communicates it to the Judge, the Judge makes it a portion of the record, and the Judge sentences him to transportation. Is there anything of this sort here? Do they tell us first and foremost there was a contract? My Lords, I say on the face of it is illegal. They tell us again that the law says a pardon shall be equivalent to an attainder, as far as tegardstiie forfeiture—they have not shown us sufficient of the law—they do not show us that in Canada is sufficient to justify transportation. But, my Lords, sip 3iag that to have been the case—just suppose my hypothesis that something of this sort had taken place—then, under the circumstances, would you think this warrant sufficient ? It is s.ey diffieult to draw the line—but a line tre ba drawn in some way ; and mark I Suppose a person mss adjudged to transportation—it would be, that with 15 ON so'cliere at his back, General Arthur would take him up and send him here ; but then here the law has protected him with certain safeguards for his liberty Your Lordships ought to be informed of the law under which he is transported—you have not that id‘, before you. Your Lordships ought to he in formed of the forms by which he ought to be transported—you have not those forms before you, and I am always supposing there they are bad. lam asking the Court narrowly to scrutinise the law as regards this return, which would warrant their transaottation. What is the ordinary case when a man comes here convicted in Upper or Lower Canada for fe lony? He is brought here with certain papers. With what papers is he ha ugh t here? Why as ith Vie record of his conviction ith an and eed c 0, - )y of his pardo. - - vith all h's &Fence set ut—the award of the Court—the warrant of the Judge—the ;errant of the Governor, is all set forth. But there are no such forms here—there is nothing of the sort. There fore, my Lords, I say, even as far as regards the law, this return is insufficient. My Learned Friend, Mr. Hill, en'ered i :to a long investigation of the wants of form—of the insuffi c7ency of the form—and let me run hastily over t'ds matter. I win take it either way. Trace them from 't'ofonto here—it may ho of some service to trace them from here to Toronto. A complaint is made at Liverpool. Have you the warrant of detainer ? the question asked of the gaoler. No, but the man says he has a a 4 arrant ; he says, what he calls letters patent wer.! issu d by Sir.f.Colaer. c to transport off.cnqacs convicted in Upper Ca nada. Now Sir John Colburn had no power to tram sport a con vict in Uppe sCanada. If he had it ought to haee been re vetsei. lis not averred—n idler is any power L• r ed. Where could lie get the power? He could only get it from art Er e glish Act of Parliament. He has no power to transport convicts in Upper Canada. 'that is the first insufficiency of fo - m You have not the warrarit—you have not Sir John Colborne's letters patent—you don't know wnat M In them--.you don't know that that mail is mentioned in dierti-ehe la riot. But, my Lords, we have now got to Sir Joint Colleorne's warrant, that I say is illegal. It is illegal as state lin the deerreent, be- Cause they do not set forth the authority. But that Warrant recites certaiti thitlgs. Sir John Colborne avers there was a warrant to Sir George Anhui' ; thnt warrant of Sir George Arthur is not set out. We don't know what it wanee-it does not say. All it says is, that there was a warrant, to Sir G. Arthur to tale them to Lower Canada. There might have been a warrant to tate them to Nova Scotia or Bermuda. But, my Loris, I now cony to the important portion of the want of evidence. Where is the Judge's warrant ;judging these prisoners to transportation ; and where Is the averment that there is such a warrant? Vor the first time, when tee heard the return read, we learned with ho-ror that he was transported. Look at the dates—the man is put into prison in December. • 'rue ATTORNEY• GENERAL said he must again interrupt his Learned Friend. They could know of no proceedings but tho e on the return, and the return, as it stood, mest be taken to be true. Mr. ROEBUCK—Take it this way. t reks) the date I of the pardon. When is Vie pardon? fn OdlOber, They glee you no date to the petition. When was the peti tion presented? What eras the petition? Who tells us what Ihe petition was? Mr. Ba'clielo There is no authen tie document. Will your Lordships believe that there was a petition of this sort upon such evidence as that—evidencof that would not go to prove I owed a man tweieace? Will you, my Lords, believe a petitien has been presented that should deprive a man of his life—without n date-without a word as to what the petition was--not making one single stilt& merit of what the petition was, but merely the general words of the Act, which Mr. Batchelor never saw in his life, but welch the ,pleader drew. Mr. Batchelor knew nothing of that Act. I say, my Lords, there ought to have been a warrant of the Judge, for that i 5 the law of of England. There is none yet out. I take it, my Lords, th that is a fatal error—a fatal insufficiency. There is no warrant of the Judge, and no man could be le gaily transported without a warrant of the Judge Then there is the assent. What evidence have you of the ass nt? A man in the dungeon of Toronto—a person cemin ; to him from the Governor to say you will be hanged tomorrow. Can we under these circumstances believe that the man assented without formal, grave proof ?—that the man was brought into Court be ore a Judge, before the public, and that he there as seated to the conditions put to him ? It is not proved he knew the con eitions—l say, my Lords, lie did not know the conditions ti:l yesterday, yet ail these things are to be taken to be sufficient to condemn a man fel. life. Your Lordships have now before you a beautiful specimen of the way in which the law of that country may be administered—of the way in which the law of the Governor may be administered—that men may be transeo - ted in this way, ! which I say is a disgrace to the English name—a disgrace, r. hich your Lordships will in no way sanction by your high authority, but you will show to them and to the world at large how high is your estimation of the liberty of the subject, and how high is your estimation of the just and sacred character that surrounds you. Your Lordships are JudgeF—Judges to administer the law, and your Lordships will show those men—who are no Judges —neither in name nor in fact—your opinion of their Acts by discharging the prisoner. He is here against la v—he is here, my Lords, without law --3 our Lordships hive no evidence that he is a Criminal—all the evidence you have is, that he is unfortunately a prisoner —you have evidence that he is a prisoner illegally. Tue ATTORNEY- GENERAL—My Lords, it now becomes my duty to address von in answer to the arguments which have been advanc .d by my Learned Friends. First, I must com plain that Mr. Roebuck has resorted to topics which, most certainly, ought not to have any influence with your Lordships. What effect those topics may have elsewhere, it is not for me to say, but I sincerely hope, that both here and elsewhere, they wilrbe properly appreciated, and if so, and I trust most sincerely such will be the case, in no country in the world will they have any influence on the minds of the pm ple—most certain I am they will have no influence on the minds of those to whom is entrusted the administration of the law, more especially in that part of the world from which the unhappy men before your Lordship's have come. hive also to complain of the charges brought against me by my Learned Friend Mr. Hill, in consequence of the applica tion I had the honour of submitting to your Lordships yester d,y. That application would not have affected the situation iof the prisoners for more than twenty-four hours—it would not have retarded the discharge of the prisoners, if they are en titled to their discharge, more than the time I have mentioned; but when I had the authority of Hale, Wilmot, Abercrombie, of Lord Mansfield and of De Gray, when I had the authority of what I have no doubt was the intention of the Legislature la the time of Charles the Second, surely, I cannot be blamed .--surely, I am not open to the censure of my Learned Friend, for submitting such a point for the consideration of your Lordships. Your Lordships have decided the point, and I submit to your Lordships' decision with pleasure—from the bottom of my heart do I rejoice at your Lordship's decision, but it is the first time that the point has been decided by the Court, and I do not feel that I am at all liable to the censure of my Learned Friends on this point. My Learned Friends have represented this Leonard Watson es a man who had heeno mat hars!ily and unjustly deprived of his liberty—that he, one of her Majesty's subjects, without having committed any offence, was deprived of his liberty, the dearest lirthright of man—he was sent for life to the opposite side of the globe without knowing for what offence, without knowing fhr what he was punished. My Lords you will take the return as true ; I have no doubt of its truth ; I have no doubt it is true in every particular. We aro now arguing the return as true. Should it be false there is a remedy by action. But my Learned Friends have as ! smiled that it is true—they have been arguing that it is true upon the face of it. Then, my Lords, what does it show? It shows that the innocent, the ill used, the illegally transported Lawrence Watson, humbly petitioned the Lieutenant-Governor of Upper Canada, he having been indicted for treason ; and being so indicted, and being about to take his trial where he could have shown his ! innocence—instead of taking his trial, and so showing his innocence he humbl titid th Lieutenant— Governor,ggg,gsp, and praying for her Majesty's gracious pardon through ! the Lieutenant-Governor in any manner he thought fit. Being indicted, and having confessed his crime, and having thrown himself upon the mercy of the Crown—in the merciful spirit in which the law has been administered, his petition is granted—a pardon is extended to him by the Lieutenant- Governor on condition that he be transported for life. Leonard Watson had forfeited his life to the laws of his country--he confessed that he had done so ; his life is spared —he agrees to the conditions which were proposed to him. It is asserted upon the return, and it must be taken to be the fact, that he assented to the sentence passed upon him. In the execution of that sentence to which he was an assenting party, he is now in this country in (ran situ to Van Diemen's Land ; and now, by his counsel, he complains of great grievances, of unheard-of cruelty, and he wishes to be discharged by your Lordships, in order that he and his comrades may return to Ca nada to join in or foment another rebellion. Mr. ROEBUCK —The ''''''''''''' will not find any.- thing of the kind in the return. I was interrupted, and surely the same rule ought to apply to both parties. The ATTORNEY-GENERAL—If the prisouer is entiticd to your Lordships' interposition, of course be will have it. Y. u Lords'-tips will do as you bare ever done, enforce the law with stri,?.tness and impartiality. My Lords, the first and second objections of my Learned Friend inay he taken con jointly, for they bath rest upon the same grounds. The first is, that there has been no conviction ; the se •nd that there has been no judgment. Now, my Lords, these objections are pressed o n the ground, - ; furnished by the Act the .sth George IV., chap. 34, sec. 17. If my L anted Friends rely upon that Act of Parliament, it mty be exceedingly material for them to show that t !era has be It ro conviction—that there has been no j clime t ; but I, my Lord , , do not seek to bring the case w:thin that Act of Parliament. My Learned Friends have mistaken—totally mistaken the object of that Act. During a lo cf.urse of years the Colonial Legislatures of this immense en.pire have from time to time passed Acts of colonial legislation, assented to by the Crown, which gave them all the force of law. Mr. ROEBUCK —Nly Lords, I hare not alluded to anything of this kind. Can the Attorney. General so travel out of the return ? The ATTORNEY-GENERAL—My Lords, I was reciting the Act of George the Fourth, which is now a matter of history, and which I bare a right to refer to. I: has never been doubted that the Colonial Legislatures had the right to pass laws inflicting the punishment of death within the colony. They have also passed laws inflicting ;ser punishments, and amongst these is the punishment of transportation ; and no Act of the British Legislature nas necessary to c irry those laws into execution. By the Act to which I have alluded, section 10, it is rendered lawful for the King to provide, that any one tran sported from the colonies should he kept in prison, or in any prisornship, subject to the discipline of those places. It was thought proper that prisoners coming from the colonies to this country on their way to the place cf their banishment, that they slieuld be confined in those prisons, or on board those ships, and be subject to all the discipline which there prevailed. Tint was the object of this section to which I have alluded. There is no British Act of Parliament which gives the power of transportation to any Court in the Colonies. It rests entirely upon the Acts of the Colonial Assemblies after these Acts have had the approval of the Crown. Now, my Lords if this prisoner had been sentenced to the hulks, and hal been subjected to the discipline that prevails there— had been compelled to work in a gang, or had been sub jected to any duresse beyond what is necessary for confining him cn his way to transportation, he might have complained that he wes illegally used, because he might have said he had not been convicted, no judgment had passed against him, he did not come within the provision of the 17th Section of the fith George IV., c. 84. But he makes no such complaint. Ile was in her Majesty's gaol at Liverpool, where there is no complaint of any ill-treatment, and there be was merely subjected to confinement that he might be sent on to Van Die men's Land, in execution of the sentence of which he com plained, and which he had received. My Lords, that would dispose of the first and second objections. Now, as to the Act of the Legislature of Upper Canada, which is an Act averred upon the face of the return to have been lawfully passed, to have received the lawful assent of the Crown, and to the vali dly of which, with the exception of some sarcastic observa tions that were now and then thrown out, I do not find that any serious objection is made. My Learned Friend ( Mr. Roebuck), referred to the statute of the 14th of George 111.. but he does not mean to say that that statute is not overruled by the Statute of the 31st Geo. 111., whereby the province of Canada was divided into two, Upper and Lower Canada, with a separate and independent Legislature for each. My Lords, by this Act of Parliament, which is the ,3 ha chapter of the 31st Gen. W., there is a Legislature ap pointed for the province of Upper Canada. And here we have no &spute as to the powers which may be conferred upon any Legislature by the Crown without the intervention of Parlin mont—in some cases, perhaps, a subject of considerable diffi culty. This Legislature in Upper Canada is established by the Imperial Parliament of Great Britain, and it is a su preme Legislature, having the power to make all Act«, with the consent of the Crown. It, therefore, min lit make any Act with the consent of the Crown, whether th .t Art were conformable or were not conformable to any enactment of the 14th Gen. 111. My Lords, the Supreme Legislature having the power to make all such laws as the Crown shall assent to, makes the Act of the Ist of the reign of Victoria, c, 10, and thereby reciting that there is reason to believe that among tile persons concerned in the treasonable insurrectios in the provinces, there are some to which the lcaity of the Government may not be improperly extended, en I it is therefi,re enacted that it shall and may be lawful for the L'eafenent-Governor of this province, by and with tin advice of the Executive Council, to grant pardon to such parsons upon certain terms, provided— Mr. ROEBUCK—You have no evidence that this is really in fie Act. There is esilenee that the Act is passed, and a cer tain portion of it is before your Lordships ; but you have no evidence that any other portion of it is in the Act. Tile ATTORNEY GENERAL—I understand that is not set out. Why, then, my Lords, I will, in the first place, suppose that this store an Act of the Imperial Parliament of Great Britain, applicable to Great Britain, or to be put in execution in Canada. Now, my Lords, if there were such an Act of Par liament in Great Britain—or it would, perhaps, make the thing more plain and simple, if I suppose there is an Act of Parliament in these words, passed in the Imperial Perlin. merit of Great Britain and Ireland, saying that so and so may be done in Canada—an Act of Parliament so passed by the eperial Parliament, which says, that upon the petition of any persons charged with high treason, committed it this pro- Vince,' preferred to the Lieutenant-GoNerner, before the I rrai , ..!nment of such person, and praying pad= for his offence, it shsli and may be lawful for the Lieutenant-Governor of the TO BE CONCLUDED IN A SECOND EDITION. COURT CIRCULAR. The Qur.en gave audiences yes'erday to Viscount Melbourne and Llrd Miss Birch had the honour of singing before her Majesty, accompinied by Sir George Smart. The Queen was much pleased with one of the songs, entitled " The Wreck," expres sive of the courageous conduct of Grace Darling. The Royal dinner party at the Pa:ace last evening included Viscount Melbourne, Lord Glenelg. the Chancellor of ti e Exchequer, the Right Hon. G. S. Byng-, and the Horn, W. Cooper. The Duke of Cambridge visited the Royal Military Asylum at Chelsea yesterday. Prince Edward of Saxe Weimar arrived in town on Sunday night from the Hague. His Serene Highness remained at Marlborough-house, and yesterday morning paid visits to the Duchess of Gloucester, at Gloucester-house, and to the Duke and Duchess of Cambridge, at Cambridge-house. His Serene Highness afterwards left town for the Royal Military College at Sandhurst. Viscount Falkland had an interview with Viscount Melbourne yesterday in Downing- street. Major Macgregor bad an interview with Lord Gieneig yes t:rday at the Colonial-office. IRELAND. MR. PURCELL'S EXPULSION FROM THE PRE CURSOR SOCIETY. Mr. O'Connell, at the adjourned meeting of the Precursor Society, on Friday, did not spare Mr. Purcell, whose letters, of course, have occasioned a feeling of disgustful and deep displeasure to the former gentleman ; he, however, forgives the calumniator, and " he did appeal to Peter Purcell, in the presence of the God that would judge them both, and he called on him to make compensation to the public and to him (Mr. O'Connell) by en honest, manly, Christian retractation. He had now the opportunity, and let him take it. The slander of the base press would follow. Let Peter Purcell throw himself between that necessary consequence of his calumny on hint ( Mr. O'Connell) and its effects. No man could save Peter Purcell's character but Peter him Self. For himself ho ( Mr. O'Connell) had a pleasure in suffering for Ireland. If he had used one single unnecessary harsh word; if he had pressed any topic beyond its natural bearing he wished to retract it. Let no man go out with any other feeling but that of conscious pride that the attack had fallen harmless. He had now done with the subject he hoped for ever. If there were mo?e letters there might ne cessarily be more replies. For his part, it was a question whether he should reply again. It was really a sad topic. Let it never be heard in Ireland again, that friend embraced friend and then turned his calumniator.—( Cheers.) Peter Purcell walked to Saunders's to leave his letter at the office, with a particular friend of his (Mr. O'Connell's) and without the slightest intimation of its contents. Vicious things were long banished from their isle; let this, too, be forgotten in the generous oblivion of an indulgent people." After a vote of thanks to Mr. Callaghan for bis report, moved by Mr. O'Connell, and adopted by the meeting, Mr. Redmond addressed the meeting, and proposed the following resolution, which was seconded by Mr. Morgan, and carried unananimously :—" Resolved, That Mr. Peter Purcell having, with a reckless disregard to the interests of this Society, made a weak and mischievous attempt to assail its founder and to injure the public cause, his name be erased from the roll of Precursors, and that the secretary be directed to return him, Mr. Peter Purcell, the sum of one shilling, being his personal subscription ; and also one shilling each for every blank ticket of the one thousand tickets taken by him, and paid for on the Ist of November last, which he shall restore to the secretary." The amount of the rent was stated to be 3341. 9s. sd. George Robins's professional labours are not con fined, it should seem to England alone. He is about to seduce from the wealthy class of society in England, some one who dislikes not the comforts connected with an Italian Paradise, The qualifications are very many, but the enre»zble is summed up in the following most welcome terms :—" The produce includes Corn, Wine, and Oil, in great abundance." We may look in vain for a correspond ing case in England, and the purchase money is limited to a moderate sum. • CORN-LAWS.—DUBLIN, JAN. 13.—The general impression here is, that the repeal of the Corn-laws, or the establishment of a fixed duty, will form a prominent topic in the Queen's speech ; and that, in all likelihood, Minis ters may dissolve Parliament on that question.—Times Correspondent. The ltiseholme Estate near to the City of Lincoln, which has been so many years in the family of the Chaplins, is, by means of the lamented death of the Reverend owner, about to change hands, through the instrumentality of Mr. George Robins. It is said .that the domain includes some of the best land in Lincolnshire, and that comfort in the most comprehensive form, is conspicuous throughout the mansion.