The Sun. — London, England, 1839-01-17 00:00:00

;; ,7 1- Nt)N, THURSDAY, JANUARY 17. I8: 1 0. TIEE SUN. THE CANADIAN PRISONERS QUEEN'S B2IN CII.-(YESTERDAY.) (From our Second Edition of last Night.) Mr. ROEBUCK, in continuation from our First Edition, slid —But it is said he is not without remedy. What remedy ? An action against a man not worth a groat. He ought to have this remedy—a right to controvert the truth of the return before it is too late. And I have no doubt in my mind, that your Lordships, in the due administration of the justice of this country, will give us a remedy before it is too late, and permit us to point out to you the falsities of this return. The ATTORNEY- GENERAL—My Lords, Mr. Hill began by making an observation about great waste of titre, and I wished that that had boen borne in mind during the whole course of his address, for I own that it seemed to mo he travelled into many topics quite extraneous to the question before your Lordships. I will not follow his example. With regard to my own conduct, my Lords, I hops it requires no defence. I have no hesitation in avowing that having every reason to believe that these prisoners now seated at the rnhave been guilty of high treason in Upper Canada—have engaged in a traitorous conspiracy and rebellion to detach that province from the Crown of England, that they are guilty of high treason, and have been mercifully dealt with. I shall do everything in my power that they may not escape with impunity, and that the sentence which has been pronounced upon them upon their own conditions, may be carried into effect ; for I be lieve the interests of this country most imperatively require - that they should not escape with impunity ; and I shall discharge to the best of my ability my duty to the C:Cnn of England. My Lords, Mr. Roebuck began with an eb servation upon this being a merciful statute. Ac cording to his construction it would, indeed, be a most merciful statute, for he now openly avows that according to his construction of it the pardon is valid, the condition void. Therefore all these who have come under it, and have obtained a pardon from the Crown, and re tained the life which has been forfeited, are entitled, according to him, not only to be discharged, but to go to what part o the world they p lease, and to do what th e y may think fit or may b e advised to do. My Lords, without any such construction, or misconstruction of the Act rather, I say it is framed in the puce spirit of mercy, because it only gives un opportunity to those against whom the charge is brought, either to stand a trial before the regular tribunal of the country, and peril their lives, or to confess their guilt, and throw themselves on the mercy of the Crown. There is no compulsion to say—there is no conlessio, forced here—it is the voluntary spontaneous act of the guilty man. I now proceed to consider, my Lords, the objections that have been made, and I shall try to avoid re-stating the ar guments I had the honour to address to your Lordships, having every reason to believe they received the considere tion of your Lordships, and will have at your Lordships' hands all the weight due to them. My Lords, any Learned Friend, Mr. llill, has pressed his two first objections, that there is no conviction and no judgment ; and he is followed by Mr. Roe buck, who has tried to avail himself of the two Statutes that are now set out in the return. Now, my Lords, Ido exceedingly rejoice that those statutes are set out. In the former address of Mr. Roebuck it was supposed there had been some law of Upper Canada which showed all these proceedings to be most illegal and invalid, that this law was concealed, and that it was in violation of this law the prisoners had been ordered to be transported. If lam not mistaken, those two statutes fortify the arguments which I before addressed to your Lordships, for they show that transportation was a punishment, and had been a punishment long known in Canada, and that sentences of transportation had long been carried into effect. Your Lordships will find there is not one enactment in any of the statutes that has been in the slightest violated or departed from. It is the 7th Wil liam IV., and it enacts " That there shall be a power of con fining the criminals in the common gaol." Then there is the second section, and then comes the section that Mr. Roebuck, as I understood said, showed the Governor of Upper Canada had no power to try for high treason. Now there is not the smallest pretence for such an asser tion. There is nothing in the 14th Geo. 111. to that effect. There is nothing in the 31st George 111. to that effect. In the 31st George 111. chap. 31, sec. 30, it is stated how the Royal Assent is to be given to Bills that are to pass the Colonial Assembly, but there is no restriction whatever in the power of the Government to pardon for high treason. The third section enacts, " That if a person be convicted of high treason, the Governor may commute the sentence for transportation either for life or for a term of years." Where is the restriction on the power of the Governor to pardon for high treason on condition ? My Lords, it is impossible to say that this Provincial Act of the 7th William IV. could at all impair the Provincial Act of the Ist of William IV. Now, ray Lords, for the 7th chapter, which I am very glad is before your Lordships. The preamble is, " An Act respecting the transportation of convicts. Whereas it is expedient to facilitate the transportation of offenders to such place or places as may be assigned by his Majesty in Council : that, notwith standing anything to the contrary, in the Act of Parliament of thisprovince, the 14th Geo. 111., it shall be lawful, after the passing of this Act, to sentence such offenders to transporta tion, not only in such cases wherein any law now in force may provide that such offenders may be transported." My Lord, this shows that there were laws then existing in Upper Canada by which persons might be legally transported. And this Act, the 7th of Will. IV., provides that not only in cases in which, by existing laws, persons might be transported, but in every case in which by the provisions of the said Act banishment is imposed as a punishment, whether transportation before was a specific punishment, or whether it was banishment, before this Act was in operation—that no offender under the authority of this Act shall be transported, except for such terms as the offender might heretofore be transported. Then, my Lords, section 2 is the punishment for returning from transportation. Section 3is the form of sentence. Section 4 is the term of transportation —to be declared by the Governor. Then there is the fifth section (to which my Learned Friend, Mr. Roebuck, referred) enacts that in cases where sentence has been passed, a Judge's warrant must be obtained ; but the cases contemplated by this Act of Parliament, were not those who had been convicted by the regularly constituted Courts, but those who, under the Ist of Victoria, cap.lo, had petitioned after the indictment ; and when instead of the trial there is a pardon upon such conditions as the Government might think proper. The Bth clause provides, that where the sentence of transportation cannot be carried into effect, the prisoners may be confined within the province. My Lords, I have thus brought before you every section of any importance in the Provincial Act of Parliament, and I am sure your Lordships must now he surprised that Mr. Roebuck should have complained that this had been withheld and sup pressed, and that if it were brought before the Court, it would show these proceedings to be contrary to law. On the contrary, it strengthens most materially our argument that these pro ceedings have been sanctioned by law. My Lords, when I was before suggesting to the Court that transportation was a sentence known in Canada before the Ist of Victoria was passed, Mr. Roebuck interposed, and said it did not appear upon the return. My Lords, it does appear upon the return, and it appears further, for a long course of years there has been a practice of sentencing persons to transportation from the province of Upper Canada. Mr. ROEBUCK—I beg pardon. It was to your accusations against the prisoners that I interposed. The ATTORNEY-GENERAL —When I referred to what had been done by the Legislature of Upper Canada youinterposed. Mr. ROEBUCK—No, not in that way. The ATTORNEY-GENERAL.W e II, it is proved that the Le gislature of Upper Canada has long been in the habit of passing laws, imposing transportation as a punish ment. My Lords, what are your Lordships asked to do ? Nothing short of this. To pronounce your judgment upon the return to this writ of habeas corpus, that all these Acts, and everything that has been done under them, are illegal; and that any persons suffering transportation under a sentence imposed upon them by the Courts of Upper Ca nada, or by any other colonial law, must be released, and com pensation made to them for what they have suffered. It is ad mitted by my Learned Friends that their main ground is that there was no authority for enacting such a law, and that therefore all that is done under it is void and illegal. My Lords, are you prepared to pronounce such a decision, and to say that what has been done for a long course of years, most undoubtedly as it appears from the returns, by the Legislature of Upper Canada, and which we have no reason to believe has not been done by other provincial legislatures, is void. My Lords, I apprehend that this power of transportation does exist in the Colonial Legislatures, that it does exist in the Legislature of Upper Canada, and that it has been recognised by the Imperial Le gislature. My Lords, where there is a power of creating a law, the violation of which is to be punished by death, I say there is a power of enacting a law which shall be sanc tioned by any penalty short of death. It is not dis puted that the Provincial Parliament of Upper Canada might pass a law inflicting death upon any offence specified in that law, and I apprehend that this allows a p ena lt y s h ort of death. Your Lordships know that according to the com mon law, and the prerogative of the Crown, where a sentence of death has been pronounced, that sentence may lawfully be executed, and it may lawfully be commuted for any punish ment short of death. This prerogative has been exercised for a long course of years, and is inhe rent in the Crown, and yet it has been exercised by the Crown without any legislative sanction. My Lords, I say that the greater includes the less, and that with the power of sentencing to de a th there is a power of inflicting any pu nishment short of death ; and there is a power in the Legislative Assemblies of Upper Canada, with the consent of the Crown, to pass a law whereby when a party has been convicted he may be transported, awl your Lordships will observe that if it be necessary for any thing that appears before your Lordships, there may be a law passed by the Legislative Council-of the Colony of Van Diemen's Land to authOrise the detention of these persons. By the 9th Geo. IV., chap. 83, the Legislative Council of Van Diemen's Land is vested with the power of passing any law for the peace and good order of the Colony, and that Legislative Council would have a power to pass a law whereby any individual arriving on those shores, confessing treason, may be lawfully detained for the period to which the transportation might continue. But, my Lords, as far as regards the sending a prisoner from the State where the sentence of transportation has been pronounced, I say, that upon the law of the country to which the deporta tion is to take place, he may be lawfully kept there. These individuals are now in transitu, and it is not pretended that I am aware, that if there is a power of sentencing to transpor tation, there is not a power of doing anything necessary for carrying such sentence into effect. Now, my Lords, there is another gro un d, upon w hi c h I h um bly submit there is a power in the Legislature of Upper Canada to sentence to transportation, and that is the 14th of George 111., chap. 84, whereby the Criminal Law of England with .aspect to pu n i s h ments i s i ntro d uced and made the law of Canada, and by the 31st of Geo. 111. a Legislature having been established in Upper Canada, does it not necessarily follow that the power was given to that Legislature of sentencing to transportation, or in other cases where it might be deenwel expedient to annex the punishment of death to other offences, which before might not be punishable. The laws introduced by the 14th of George the Third were not like the laws of the Medes and Persians, never to be changed. The sentence of transportation might he changed. Without, there fore, considering whether in every colony in Great Britein there is a Legislature with this power, there is do doubt the power exists in the Legislature of Upper Canada. My Lords, there can be no doubt this practice of sentencing to transpor tation under the colonial lava, has continued for a long while. Mr. HILL —How does that appear ? It is not ave red. Lord DENstaw —By expressions in the colonial Acts. Mr. ROEBUCK —That only shows the power. The ATTORNEY -GENERAL—My Lords, the Imperial Par liament enacts and allow me to ask your Lordships how y, u arrived at the decision in which I may now state reapectfuily, teat I concur, as to the right of a single Judge, to grant tie writ of habeas corpus? It was looking to the practice for a long course of years, and I think Lord Lyndhurst has gone farther, and has said that practice makes the law, that where a practice has gone on for a long course of years, in the face of the Legislature, and no objection has been taker', it is to be taken as the law of the land. Now, my Lords, There is no question that this practice has gone on for a lung course of years, and that it has never been objected tn, and your Lordships are now called upon to say tlew it has been all along illegal. Here it is not pre tended that until the sth of George the Fourth there eas any British Act of Parliament giving such a power ; it was done without any express authority from the Imperial Legis lature, but it was done without being questioned by the Imperial Legislature. It does not rest there, hoe ever, my Lords, for we have an express legislative recognition of the exercise of this power. In the 17th sec tion of the 9th Geo. IV., which does not legalise the brinping of a prisoner sentenced to transportation to the Co lonies through England, it gives no authority f r it, but it was legal, and so now it sunposcs that it might be legally done after the Act pasned. It supposes that if the prisoners cannot be brought directly from Canada, they may be brought through England. It has been the practice to send prisoners, sereeeced to transpor tation from the colonies, to the Hulks, and that miebt have been lawfully done bsforc the sth el George I V., and it has never been doubted to the present time. N ,w, my Lords, I must again call your Lordships' attention to the language here employed—" Whereas, by laws new in force in some parts of her Majesty's dominions, not within the United Kingdom"—(and we may now as. sume Upper Canada to be one of them)—" offenders convicted for certain offences were liable to transportation be yond the seas ; and other persons adjudged to suffer death have received pardon on condition of transportation ; end there may be ro means of transporting such persons to the places appointed by her Majesty in Cour.cil without bringing them to England."—(this, my Lord, supposes that without bringing them to England, the transportation weeld be lawful, because otherwise the Act does not come into op ra tion)---" be it therefore enacted that when such persons are brought to England, they may be imprisoned in such places as may be provided until they are transported, or until they become entitled to their freedom." Therefore, my Lords, this has been for a long course of years the practice, and though there is no British Act of Parliament expressly autho rising it. there is a British Act of Parliament expressi f recognising it as a legal practice; and, after this, can there be any doubt as to the legality of the practice? and does it not necessarily follow that the same Colonial Legislature would have the power to pass such an Act as that upon which these proceedings are founded, viz., the Ist of Vietci ia, chap. 10, which enacts that when any person pronounced guilty of high treason and sentenced, petitions the Governor of the province, he may grant a pardon to such parson on such conditions as he may think proper . ? And if that be law, it must be lawful for the Governor to sentence such a man to transportation. And in what respect does that differ from the common Provincial Act, imposing upon a person guilty of larceny, for instance, the penalty of transportation ? It is impossible to draw a distinc tion between this last case and the case of a person indicted for high treason, and confessing his guilt, and presenting his petition. Now, my Lords, in the arguments yesterday it was suggested that transportation would not be within the contemplation of the Legislature of Upper Canada, and that it would not be a lawful condition of a pardon. My Lords, a decisive answer to that ob jection is found in the second section of the Act, which I had inserted in the return for this very purpose, and that second section enacts that any person sentenced to trans portation, who should return without lawful excuse, should suffer death, as in the case of felony ; and, my Lords, is not that demonstration that transportation was within the contem plation of the Legislature of Upper C eada ? But,my Lords, my Learned Friend Mr. Hill says, that there is no distinction be tween this Act of Parliament and the ordinance that was passed in Lower Canada when Lord Durham was Governor there. My Lords, my Learned Friend knows that ordinance was not passed by the Legislature created under the 31st of George 111. It was created by a Special Council, with particular and limited powers, which were stated to have been exceeded by that enactment, for it was said to be beyond the limits of the province, and that it was not a proceeding in a court of justice, nor in anything resembling a court of justice, but it was an Act made against particular individuals. It was contended, most strenuously, by the Noble and Learned Lord who introduced the Bill of Indemnity, that the Act of Vic toria did not give power to alter the laws from those of England. It was strongly contended by the Nobleman to whom I have alluded, that no Act of the Special Council could be legal that was not in accordance with the laws of England. It does not appear to me, my Lords, that this is the proper time to say whether the Bill of Indemnity was neces sary or not—that question does not arise now. We are now considering an Act passed by the Colonial Legislature, and that alone. My Learned Friends have taken a distinction between the cases of Watson and of Wixon. In Watson's case, the condition attached to the pardon was transportation for life, and that is one of the conditions expressly named in the Colonial Act. Transportation is a punishment well known to the law of England—it is one that has now existed above a century. It is also a punishment known to the law of the colony. Yet my Learned Friends say that even if the Court should feel that they must detain Watson, still they must discharge Wilcox, because he was transported for only fourteen years from the time of his landing in Van Diemen's Land. Now, my Lords, I contend, that any con dition is lawful, which is short of life or member. We come now, my Lords, to the consideration of the manner in which the sentence has been carried into execution. Now, my Lords, if the sentence was valid, then everything necessary to carry it into execution must be valid also. On the face of the return it is stated that itwas necessary to take Wixon to Lower Canada, in order to carry his sentence into effect, when there being no direct means of sending him to his destination from Lower Ca nada, the Governor, by the authority vested in him, sent him to England, and in the course of being carried to his des tination Wixon had been brought to England; in the execution of his sentence he had been brought to this country, and had been committed to the custody and safe keeping of the Governor of the Liverpool gaol. Now, with respect to the Case of Saddis. Saddis was con victed at Gibraltar before a military Court-martial, and sen tenced to transportation to Botany Bay for seven years. Is he sent from Gibraltar direct? No; he comes to England in the custody of Lieutenant Rogers, who delivers him into the custody of the Governor of Portsmouth, and there he is kept. Lord DENMAN—To be conveyed. The ATTORNEY GENERAL—Yes, my Lord, to be conveyed. There he is without any averment that there was a ship by which he might be conveyed from Gibraltar to Botany Bay. If he had gone direct he would have been so far upon his way, but he is brought to Eng land, and there he remains, and the return is considered sufficient that he was in custody in the execution of his sentence. But then it is said, Aye, but Saddis was a soldier. But, my Lords, that had nothing to do with the re turn made, or the arguments urged against it. The retur n was not under any military authority or sentence pronounced upon him, but he was sent there as a convict to be forwarded to Botany Bay. That, my Lords, is the fifth objection. I think my Learned Friend admits that, according to the autho rity of " the King v. Clarke," it is only where there is a warrant that it must be returned, Mr. Ilinn—My Learned Friend misunderstood me. If it is a case in which there ought to be a warrant, I say it ought to be returned ; and if there be no warrant, then it cannot be returned. The ATTORNEY- GENERAL--If my Learned Friend had given me credit for it, I assure him I would have given his whole answer. He maintains that if there be no warrant he cannot make it a specific objection that the warant was not returned. Therefore the argument is, that of necessity there must be a warrant, and you must show that he was held by warrant to establish that. Now under circumstances where the party is held in custody in the execution of his sentence, I utterly deny that a warrant is necessary. There was no warrant in Saddis' case. All your Lordships have to see is, that the sentence was pronounced, and that which was subsequently done was in execution of that sentence. Let me suppose this, my Lords (as to the necessity of the warrant) that a ship which brings this prisoner Randol \Nixon from Quebec to Liverpool had been wrecked upon the coast of Lancashire, and that he and the other persons on board under similar circumstances were saved, and that the captain had been drowned, shall it be said, my Lords, that if notice cf this event be communicated to her Majesty's Secretary of State, and that orders had been given that any peraon, gaoler or private person, might take these individuals into custody, and that they were retained in custody, in order to be sent on their destination to Van Diemen's Land, that that custody was unlawful ? Why, my Lords, suppose these parties were trying to make their escape, having saved their lives, and that they are going on board a ship to carry them to France or the United States of America, might not they have been lawfully seized by any of her Majesty's subjects, and detained in execution of their sentence—nothing more being done than was indispensably necessary for their detention, and then being sent on their destination with all possible and practicable speed? Why would the shipwreck warrant the revocation of their sentence ? If the argument of my Learned Friend be good for any thing, being shipwrecked they could not 'be lawfully detained, and might escape, and go to what part of the world they pleased. I apprehend, my Lords, that as the period to which they we.e sentenced to transportation had net expired, and s - nothing was done but to carry that sentence :at ; effect, the prisoners have had no cause of complaint, and the imprisonment could not be considered illegal. These men are not committed for trial where a warrant may be necessary and indeed before.a trial warrant is not always necessstry—*because, my Lords, under certain circumstances, a constable without a warrant may ap. prebend a person. That, my Lords., is worthy the Considera tion of the Court, Eten before trial a constable may ap. prebend a person for felony, without a warrant or an order from a Justice, and for a crime not committed in his own view. I put that case immediately ; and suppose that the party applies for a writ of habeas corpus, no warrant could, in such ease, be returned. What is the constable to do ? Why, he is to return the truth of the matter as in Barnes'• case —that the prisoner had committed a felony—that he apprehended him, and upon that charge he de tains him. There is no warrant here. Well, then, my Lords, suppose these prisoners had been convicted, and had broken gaol, might not a constable apprehend and detain them with out a warrant ; and would it not be. a good return to the writ of habeas corpus that they had been convicted—that they had been found at large, and that he had detained them? I shall put another case, and suppose that, instead of those men breaking gaol they were in gaol, under sentence of trans portation, and that they had attempted to make their escape, might not a constable apprehend and detain him without a warrant ? If, then, my Lords, a constable may apprehend without a warrant a person before trial on a charge of felony, surely a person may apprehend a convict without a warrant, and detain him until he is safely returned to gaol in the execution of his sentence. There is another case where, upon a writ of habeas corpus, the truth of the matter may be returned to where no warrant is necessary. But in such a case, would your Lordships say that the party should be discharged because he was in the custody of a constable or a private person, he having bees previoirsly convicted and his sentence in full force. I sae that your Lordships would order them to be detained, in order that they might undergo the sentence of the law. Th ese , my Lords, ere the various cases in which there might be a lawful detention without a w irrannsnd e here, on a writ o habeas corps s being obtained, no difficulty could possibly arise. lam now, my Lords, arguing on the sui..positton thst this is a legal sentence, and that it is still in fo -ce, and ought to be carried into exe cution. The prisoner is in custody of the keeper of the gaol of Liverpool, being there necessarily detained, and these being an express averment on the return that that was the readiest place in which he could be detained until a ship ha I been provided. Mr. Juctice COLERIDGE—Li all those cases it is quite clear that a warrant could be ultimately obtained, but who is tea grant a warrant in the Fesent case ? The ATTORNEY- GENERAL —I really had ietended, my Lord, before I finished the head of my argument, to remark upon that, expecting some such question from the Court. Who is to grant a warrant in, this cou n t r y ? If this is a legal semcnc-, there can ha no oljection that no warrant has been pro duced. I all' auo,orised in this stage of try argument to suppose that the sentence and its execution were !alit::{ down to the time the prisoner came to England, then I rids who is to grant a warrant in this country ? A Justice certainly could not do it, nor could the Sscretary of State do it. The Secretary of State, as the organ of the executive Government might intimate or direct whet measures might be taken—he might give orders as to the course to be taken, but he would have no authority to grant any warrant in respect to what took piece in the province of Upper Canada. My Lords, this is a case in which the detention is lawful, and in wh;ell there could be no warrant. Suppose a warrant had be: n sent with them, and that the prisoners bad remained on board the ship—if the shill had remained off' this port, at the month of the Mersey— no further warrant would have been necessary, but becathe the custody of these men had been transferred to the keeper of the gaol of Liverpool, as the most convenient place where they might be detained, a warrant is said to be necessary. My Lord-, I really cannot see how the necessity for a warrant arises. Then, my Lords, I have only to consider my Learned Friends' sixth and seventh objections, that the documents are not set out at full length. Now, with respect to that, I must confess that I du not know bow far the ob jection is meant to be carried; I do riot know whether it is contended that all ought to have been set cut upon the return. If that is what my Learned Friends re quire, all that I can say is, that according to Barnes' case it is sufficient if the Court can learn from the return the substance of the matter. My Learned Friends first say it is impossible for the gaoler to know the matter they require, and then that he ought to have set out that which he does not know. Mr. Justice Lawrence, in the case of the King v. caddis, decided also that it was not necessary to set out everything in the return. Now, my Lords, the question is--does the return inform your Lordship of the substance of the matter. Why, it gives you the whole of the ordinances ; it avers as a fact that this party was indicted with high treason, and therefore that he was charged ; but my Learned Friends say that the gaoler ought to send your Lordships a copy of the in dictment ; but they have cited no authority or case to justify such a position. Then the petition is sit out; it is true it is not set out in its precise words, but all the material parts of it are before the Court. The whole substance • is set out. Well, then, the pardon is averred, and the whole of its substance also is set out; and the return states that there was a pardon, it states that it was granted upon certain terms and conditions, and it sets out what those terms and conditions were. ' What else can be required ? I would ask nothing more titan the execution of the sentence which is now in progress. I am not aware, my Lord, how anything can be done, more minutely than it has been in the return which has, as I humbly contend, set out every thing that is necessary. I will not go over all the objections taken by my Learned Friend, but I think it is necessary to advert to some of the points raised by my Learned Friend, Mr. Faulkner, especially to that part of his argument where he relied upon the cases where it was laid down that courts of justice, in this country, will not recognise the penal laws of a foreign state. It certainly, my Lords, is true that they will not do so unless there is some Municipal Act passed by the Legis lature to give such a power. There are many states in Europe which have national conventions, by which criminals are given up, but there is no such treaty between this country and any foreign nation, except in the case of murder ; and I hope my Lords the day is far distant when any Act will be passed to prevent this country being as it is at the present moment, the asylum for persecuted men coming from any part of the globe. Making, as I am willing to do, every concession to my Learned Friend, Mr. Faulkner, I cannot see how his arguments apply to the present case : Canada can never be considered as a foreign nation, for upon its being conquered by the 'bravery and intrepidity of a Wolfe, it became part of the British dominions. Then, with respect to the arguments of my Learned friend Mr. Roebuck, he, with the exception of the com mentaries which he made on the new Statutes now introduced, travelled over the same ground that he di yesterday, except that he now says, even if the Statute of the Ist of Victoria, chapter 10, were valid and that there has been no excess of authority, still there ought to have been a trial. I thought that it was for the purpose of enabling persons 'elm acknowledged themselves guilty of high treason to do so without a trial, that the present Act was passed ; and because the Governor pardons bcf.ir: trial, he is compared by my Learned Friend to Rha damanthus. I really think that is going too far. Here you have the accused party confessing., and therefore there can be no occasion for trial. This, my Lords, is a spe cimen of the arguments to which my Learned Friend, Mr. Roebuck is obliged to resort. With these observations, my Lord, I shall conclude. I have brought them within as short a compass as possible. I have avoided going over the same ground which I took yesterday. My Learned Friend will follow me, and I have no doubt, upon mature considera tion, your Lordships will find the case free from difficulty, and do justice to these parties. The SOLICITOR-GENERAL, followed on the same side. From the course, my Lord, these proceedings have taken, and from the present being a similar application to the one addressed to your Lordships yesterday, of course some of the ar guments that took place then must be repeated to-day. I shall, however, merely direct myself to the discrepancies between this case and that heard yesterday, of course adverting to such additional arguments ac may appear to call for obser vation. My Learned Friend Mr. Hill, early in his address stated that the force of what I addressed to your Lordships yesterday, as to the provision of the Act of George the Fourth, were to be explained by the 14th of George the Third. Now I take leave to say that it is not explained at all. The power exercised by the Colonial Legislature of making laws for transportation, cannot, as I humbly contend, be so explained. In 1764 the old French law was the criminal law of Canada, but afterwards, from some cause, without any Act of the Legislature, the criminal law of England was introduced into that country. Then this n t i n r c o a w , power under t r r a then - Act says, that having been done and found benefi c i a l, t h e mode and proceedings of the criminal law of England s h a ll be introduced. What was the law of England at that ti me s w p i o ti r i t arteigosnr, d e t o x c t e r p a t n s t p o o r t t h a e t i o p n l a ? c. 56, passed, whereby country,t e Ili., Colonies fr om t hi s 4th George 111., c . 11. Subsequent to that it wa s , a f ter nta T ti h o e n r s e of wa A s that the o2f4ththGeeorge American transportation was placed nearly upon its present footing__ that Act authorising, transportation to any place beyond the seas that his Majesty shall think fit to direct; and subsequently to that it has beer that the colonies have assumed de facto the power of passing laws anthorising transportation. Your Lord. ships will, therefore, see that it was not by virtue of that limited power given by the 14th George 1 11., but by some thing infinitely more extensive. I will now make a few re marks with respect to an observation made by one of your Lordships yesterday, in order to show that the meaning of the transportation clause is not to give her Majesty the power to punish, but to transport. I don't build very much upon it. My argument on this point of the case is this —that in fact the Colonies had transported, and made Acts authorising transportation, and that was recognized as a valid practice by the I7th section of the sth Geo. IV.„ the Transportation Act. At the instance of Mr. Roebuck yesterday, it was agreed that two Colonial Acts of Upper Canada should be added to this return, the 6th and 7th. The 7th Wm. IV" c. 7, is actually entitled " An Act regarding the transporta tion of convicts," and states that it shall be lawful to sen tence offenders to transportation not only In cases where by any law in force it is e xpressly provided such offenders may be transported, but also in every case where the person con nicted shall be liable to such punishment. In fact, in Upper Canada the Legislature took upon itself to i enact transportation as a punishment, and carry it into effect, is put beyond all manner of doubt, and that which was done by the Canadian Legislature is recognized by the Act of George IV. Mr - . ROEBUCK—That passed after. The SOLICITOR- GENERAL-- y es ; but it speaks of the whole thing as the ordinary p ract i ce of the colony—extends from banishment to tr ans p or t at i on. Nothing has been said to dis place the force of the argument which convinced my mind of the legality of what has been done in the colonies, de rived from the long-continued practice of the colo- , frit of the lnws of England, " the sth Geo. ti!o4 having adoptecs au. e i e ith reference to the punishm e nt Daerignissns IV. Well, then, my Ltrds, if they had the ttoi,itf, the scasoss proposition which I had the liberty of suggesting the ()Clef day was this, that that power for makieg laws for transporta tion Which they do possess they exercised by the passieg of the Ist Victoria cap. 10. When the matter was be fore your LordshipS yesterday, I had to rely on what I called the necessary implication that Was contained in the first section of the Act, whereby it was to be lawftil for her Majesty to grant pardon on certain terms and condi tions. What I stated as a necessary implication is putiaes mei all possible controversy by the 2d sect., which enacts that in ease any person shall be pardoned on condition of being transported, if be returns to the provinces, he shall he deemed guilty of felony. it is, therefore, impossible to doubt that the terms and condi tions which the Governor is authorised to impose as the condi tion of pardon includes transportation. Mr Roebuck, in his address to-day, stated or suggested that the Governor of the colony has no power to assent to Acts of Parliament, except under instructions received from the Crown. That question is not now before your Lordships. Mr. Roebuck then sug gested that, although the A cts of Parliament do not in some eases prevent him giving his assent, there are certain Acts which he is not authorised to do. One of these is pardon in the case of high treason—nothing of that sort is before your Lordships. But I am willing to argue the case upon that hypothesis, and I am anxious to do so. So much has been said, infinitely more by way of declamation than any thing else, upon the hardship of this Colonial Act, that I think it my duty to explain every thing, in order to show that this has been an Act of mercy instead of hardship, and an act of mercy which the Colonial Legislature was competent to pass. Suppose it to be true that by the instructions given to the Governor of the province, he has no power to pardon a person convicted of I:igh treason. In the case of a province, situated as Upper Canada the Legislature might find itself under the abso lute necessity of providing a summary mode of pardoning per sons who had been guilty of high treason. But if it be true that the Governor had no power of giving such pardon after ciin viction,what was the course that presented itself to the Legisla !we ? What wi:s the mode of getting out of the dilemma? Why the Legislature said, because there is not the poser of pardoning after conviction, therefore we will pass an Act malting it law ful, where the party does what is equivalent to pleading guilty, to grant a pardon. The motive of the Legislature was anything but harsh, and was intended to meet the very difficulty on which Mr. Roebuck insisted. It has been suggested th it the parties who presented the petitions for pardon were mis led—that they would not have confessed their guilt and tire sented such petition, if they had known the consequence. Your Lordship sees it was a petition profes,iing his penitence and praying the merciful consideration of the case, and that her Majesty's pardon might be extended to him on such conditions as the Lieut.-Governor of the province should see fit. New I yesterday asked of rev Learned Friend what were the terms and conditions lie supposed were meant to be imposed. which were in the contemplation of the petitioners? Until I have some answer I must assume they knew the terms and conditions. Now there was an observation ma,'e by one of your Lordships, which ought not to pass without observation—it is this, "by what authority it is now that the Crown transports for life persons convicted of high treason ?" I believe that to be the sale prerogative of the Crown ; I don't think that the Transportation Acts extend to cases of high treason, but there is no doubt that it can be done. Mr. Justice Vi'it.LiAms—ln the year 1820 there were not less than tweivy or thirty cases at York, where all the parties accepted terms without trial, and were all disposed of in one was , or the other. The Soarceroa-GENERAL—I am obliged to your Lordships for mentioning the circumstance. I roust say, with regard to the address of Mr. Roebuck, the quotation comparing this with Rhadamanthus might be very well extra fines, hut I can not suppose the argument to have any weight; but as it has been :.:,'dressed to your Lordships, let us see how far it is borne cut. I wish to consider gravely, because though from the inode in which it was brought forward, it had something of point and ridicule in it—it was meant to lead those that are standing around me, to believe that the effect of what was done in this case, was first to punish, next to hear, and finally to compel he party to confess—why, my Lords, it is exactly the reverse. The party is first indicted, he is then told that such an Act has passed, of which he may avail himself if he pleases, and being thus aware of the Act, first confesses, is then heard, anti finally punished. sa that the order is exactly the reverse of what Mr. Roebuck suggested. Instead of being punisledbnysp tio i i, which h ' e losing his life, i' r i s prays punisheda to c accept tin uof the I ie mitigated form of t transportation, the higher punishment. In this case, however, the punishment was nut for life—the transportation was for fourteen ears, commencing at the time of arrival in the penal colony, and that brings me to another point, which is this,--that even supposing there was a power to order transportation by way of commutation, and supposing that the Act cannot be impeached, still that the condition here so im posed is a condition unknown to the laws of England, and therefore illegal. Transportation is known—transportation for life is known—if so, will it not of necesssity embrace every imaginable period between a moment of time and a whole duration of life ? My argument is merely this, that inasmuch as transportation for the whole life would have been lawful, so any period that cannot endure beyond life, and may be short of it, roust be lawful also. Give me leave on this part of the case . to observe on the argument which was yesterday pressed with great weight by Mr. Wig-ht man. If what is contended for be correct, why was not the habeas corpus applied for in Upper Canada? Why not in Lower Ca. nada ? If this be an illegal detainer, it was as much so in Lower and Upper Canada as here. Supposing there was the power of passing this Act, and supposing this Act did in fact authorise the Governor to impose transportation, and that he has exercised that power rightly, the next ques tion is, has that sentence been properly conducted ? On that point I have heard nothing new since the arguments of yesterday. It is said they were taken through Lower Canada where Governor Arthur had no authority. That argument is misplaced, for can it be doubted, if there is the power in Upper Canada to transport, there must be the power of car rying the parties through that province through which it is necessary they should be carried. It is said what authority has the Governor of Lower Canada ? None, but that he re presents the Executive Power there, and takes charge ofa party until he can be put on board ship to be conveyed to England. So much has been laid before your Lordship by my Learned Friend that I feel it unnecessary to trouble your Lordships further. [ trust your Lordships will see no distinction between the present case and that of yesterday, and that your Lordships will feel it your duty to aid and assist the orders of the Court which had competent jurisdiction in the colonies. Sir F. POLLOCK—My Lords, I do assure you, that it is not my intention upon this, nearly the end of the second day, and upon the second case, out of ten or twelve, to waste your time by going over any of the arguments that have been advanced by my Learned Friends the. Attorney and Solicitor-Generals. It is now clear by the documents which are before your Lord ships, that transportation is punishment that may be lawfully in flicted in the colony of Upper Canada, thatis perfectly settled, it is quite clear that such power is given by the 14th G eo. 111. c. 84. If the parties had been convicted and were in a prison in thi country, either out of convenience or of necessity, in order to carry out the sentence which had been passed upon them, no doubt that custody would be laivful. Is there any difference, my Lords, between a conviction in open Court, and a confession of guilt ? The party now before your Lordships pe titioned the Governor of the colony, who was armed for that purpose with all her Majesty's power, for mercy under a particular Act of the Colonial Legislature. Will any one say—will any deny the power of the Crown to pardon before trial any individual who petitions for such an Act, and accepts it with conditions. Your Lordships have now before you an indictment for high treason—a confession of guils-___ an application for a pardon, which was most gra ciously granted with conditions. Those conditions were agreed to by the prisoner, and he is bound by them. I submit that the prisoner, who now applies to be discharged by your Lordships, appears before you in transitu from Upper Canada to Van Diemen's Land, under a lawful order made by a Court of competent jurisdiction in the country from which he has come. Most respectfully, my Lords, I say, that your Lord.. ships are bound to respect and give effect to the orders so made in Canada. Whatever may be the judgment of your Lord ships on the points submitted to the Court, certain I am you will not discharge the prisoners. The one whose case is now before your Lordship stands as having confessed himself guilty of the heinous crime with which he was charged. I will ask your Lordships to look at the case as if it was an English one. Soopose the prisoner stood before the Court as a confessed traitor. Surely then, under no circumstances, would your Lordships grant him his discharge. I apprehend, my Lords, that it is not necessary there should be an arraignment in open Court. No one now, surely, will doubt the power of the Crown to grant a pardon upon a confession without any such formality. I submit, most humbly to your Lordships, that the prisoner is not entitled to his discharge. He has already received the mercy of the Crown upon his own confession, and upon the confession of the most heinous crime. He is now in transitu, and I trust that your Lordships will give effect to the law. Mr. WIGHTMAN said that after the elaborate arguments that had been addressed to the Court by his Learned Friends, he would assure their Lordships that his address' would be very brief. He would, however, take leave to refer their Lordships to a case in 2d Russell's Reports which had been alluded to before—the case of Porter. In that care the original authority failed, and it might bo ad m'tted, that if, upon the face of the return, the original au thority should appear to your Lordships manifestly to be ille gal, that in such a case the foundation failed, and the rest would fail also, but in that very case the Judge stated how dangerous it would be if the legality of the custody, or if the power of continuing imprisonment depended on the regularity or the conduct of the gaoler. It had been attempted to argue in the present case, that if there had been any technical defect in the original warrants under which the intermediate person held this man, all would fail. He submitted it would have been sufficient for the return to have stated the original authority, and then for the gaoler to have said that in the course of carrying that sentence into effect the prisoner came into his custody, and remained there by virtue of that sentence. He rejoiced that the amendment suggested partly by his Learned Friends, who were with him, and partly by his Friends on the other side, had been introduced, because if there was any difficulty in the consideration of the question it was this—whether or no transportation was a punishment that was at all known or recognised by the laws of Upper Canada. But, without referring to other statutes, was rot the local Act which was partly brought under their Lordships' attention before, and was now fully brought under their atten tion, as the whole was set out, did not that fully warrant the transportation ? Was it not quite as strong as if the Act had stated the Governor might grant as he might think a pardon in her Majasty's name, on condition that he should be transported to the penal colony of Van Diemen's Land. Supposing that had been in the enacting part of the statute, would his friend say that could not be carried into effect, and it was illerral on the face? Yet that was the argument of his Friend. Their Lordships were asked ' , heater the Court ‘veuld carry into offset the despotic orders of a Colonial Go ''vie Lordships were not asked to carry into r Elect. ternment— ' authority whatever ; but the question tiny orderser'ente eelnmee e su b rought into F Deland Was, whether they etoeSid dis:elvrge e— ainder the authority of colonial offi e cees ? That on" the questi on —and moreover it Was to be considered on another part v. 0 10 case, for his friends lied said, what a sentence of traneporta tion is this ! It. is uncertain l It does not state when it shall cornineette because it is begun from the time when the party shall arrive at Van Diensen's Land. Their Lordships would not fail to observe the distineOen hetween a sentence and a condition. This was a condition. The only question was, whether the statute was legal, passed with all the regularity with which Acts of Parliament were passed; and it was said there is no authority for the Colonial Legislature to transport a person to Van Diemen's Land ; and it was argued there must not only be the authority originally to transpoi t, but rdso there must be some authority to receive. What right had the Governor of Van Diemen's Land to refuse a person sent under the authority of an Act. of Parliament. Such a question did not arise—there was nothing illegal in it. The statute of the sth Geo. IV. said that after conviction persons might be transported to any place be yond the seas from the Colonial Come. If to any place beyond the seas, why not to Van Diemen's Land, and then the whole point raised by his Learned Friend entirely faded. Mr. lime rose and said—My Lords, at this late hour— Lord DENMAN—Is it intended to bring any more of these eases before the Court. Mr. Mee—Will your Lordships allow me till to-morrow morning ? Lord DENMAN —We think you ought to determ'ne now. We have been very anxious to give every facility, and we wish to know what your determination is, in order to decide whet course we ought to pursue at present. Mr. Fliee—My feeling at the present moment certainly would be not to bring under the notice of tee Court another of this class of eases. Mr. Justice LITTLEDALE.--;111e objection is the same in al!. Lord DENMAN—I understood that these were the casts selected in tite first instance, but that with regard to the other class, if these were good, it would follow that the others were also good ; and that, on the other hand, they arc in a more favoereble position, as they relate to a conviction and not to a conditional pardon. Mr. Htee—My Lords, I freely coefess that that is at pre sent the impression eu my mind, that your Lordships should not he troubled with any mere of these cases. But your Lordships will see that I am dealing with very large ietcrests, and I am not asking to postpone my reply till to. morrow enoreing. Lord DENMAN—Then I was deciding upon the expedi eecy of hearing you upon these cases. Mr. HILL.—My Lords, my Learned Friends and myself to clearly of opinion that no advantage is to be gained tantamount to the taking up the time of the Court. We are also of opi niou that after the - very full and patient hearing which your Lordships have given us, we may, while fulfilling our duty to our clients in that particular, waive all intention of addreesil g your Lordships on the other cases, on the footing of the retie n being null. The COURT bowed, and Mr. HILL then rose and said—My Lords, I am sure that I will not be suspected of abandoning any of the arguments that I have this day used if I do not repeat them, or of giving up any ground which I previously maintained, if I do not allude to them in my present reply. With respect to the question that has occupied so much of your Lordships' attention (as to the power of the Colonial Parliament to enforce the law of transportation infra fines of another country, or into another colony, or into the mother country) I shall address one or to two observations to your Lordships, nod they shall be very short. I have offered arguments to showy our Lordships that no power exists in the colony to en force a sentence of transportation for the offence of high treason. Many arguments have been edduced upon this point, and with out abandoning these, it is quite enough for me if it has not been shown on the other side that there is a law which can be inforced in another country. Because, it is very possible to understand how there can he a law having all the vigour which a Colonial Parliament can give it, and which is only stopped in its operation by coming into conflict with another jurisdiction. Mr. Justice LITTLEDALE—How would it be if the pro vince of Quebec, which was afterwards called Canada, had not been divided into two districts ? Suppose the whole province bad been in one district only. Mr. HlLL—Then I would contend, notwithstanding all I have heard to the contrary ; and I submit, with great confi dence, that no law could be made in that whole province, empowering the Governor, or any other person, to send trans ports into England, and restrain them there, making- that the limit or terminus, or merely a stage in their proceeding towards another place. Mr. Justice LITTLEDALE— You would not dispute the right if they had gone directly to Van Diemen's Lnnd? Mr. HILL—I should not dispute the right to send them there, and if in Van Diemen's Land there was a law which enabled the Government of that Colony to keep them in re straint, then the transportation would be so far good, but I should say, and my Learned Fr lend (Mr. Roe buck) put that point very clearly, that without the concurrence of the autho rities in Van Diemen's Land, or some Act of the Imperial Parliament over-riding these authorities, the transport could not be taken into Van Diemen's Land. This, my Lords, was my proposition. My Learned Friend, the Solicitor-General, thinks that by these Acts upon which he has commented, the Imperial Parliament had given a power of transportation to a foreign country. It is quite c lea r , h owever , t h at if t h e Im perial Parliament in words had given that power—it is a power which cannot be exercised. The law in its utmost vigour may carry the transport as near the point of his desti nation as the conflicting jurisdictions will allow, and it does not follow, that with reference to that conflicting ju risdiction, it is a bad law so far as the power of the country making it will permit to be executed ; for instance, that is not a bad Act of Parliament, although these provisions have been hastily introduced. For instance, if a British Act of Parliament had been hastily introduced sen tencing persons to be transported to Paris for fourteen years, and kept to hard labour, that would be absurd; and it is quite clear that this country would not have a right to inflict these persons upon the French Government, and hold them in restraint by any potency of law not made in France. My Learned Friends have adverted to the origin from which they date this power, viz. the preamble of the 17th Section of the sth of Geo. IV. So many arguments have been offered upon that point, that I shall not do more than advert to the answer of my Learned Friend (the Attorney-General), who contended that there was a conclusive argument arising out of the late Act of Indemnity, with respect to persons transported to the Colony of Bermuda. My Learned Friend's argument is, that the 17th Section of that Act is a legislative recognition of the power of the colonies to make these laws, by which pri soners mi g ht be transported to Van Diemen's Land, Be r m u d a , or any other place. This is all embodied in the recital, but if I can show your Lordships in an Act to the contrary, what force can exist in my Learned Friend's position ? My Learned Friend, in answer to my citing the case of Lord Durham's or dinances, said that Lord Durham and his Council had only a special authority, and were not a supreme Legislature. They were not, because no Legislature, and that is my argu ment, in the colonies is supreme ; but I submit, my Lords, that they were as supreme as any former Legislature, and I will read you a passage in which I found that assertion. I refer your Lordships to the third section of the last year's Statute, chap. 9 ; and I find in the 3d section, that from and after a certain proclamation till a certain time, it shall be lawful for the Governor of the Province of Lower Canada, by the advice and with the consent of a majority of his Coun cillors, from time to time convened for that purpose—to do what ? To make such laws and ordinances for the peace, welfare, and good government of the province of Lower Canada, as the Legislature of that province, as now constituted, is empowered to make. My Lords, all the power is hereby transferred from the former to the present Legislature, and what my Learned Friend calls the special Legislature was perfect in all its parts, for there was no proviso which at all touched or limited that power. My Lord, when I find that the Governor, acting under this power, sent transports to Bermuda, what do I find at home ? Why, that the Act of Indemnity says that that measure was illegal, and as it is a matter of public notoriety, looking through the debates, I have the satisfaction of appealing to a Noble Lord on your own Bench, who knows what took place, and can correct me if I am wrong, if the only point conceded at last upon all hands was not this, that the ordinances might be legal for everything that was directed to be done within the province; hut that they were illegal, inasmuch as they sent persons out of the province into another—via. Bermuda. Lord Deemae—That is not my view. I thought that they were illegal every way, in consequence of their being against natural justice. One of them condemned to death those who had not come in under the warrants. With regard to the Bermudas, however, the Indemnity Act was founded upon that few. Mr. HILL—I regret much that I didi not make myself understood. All I meant to say was, that there were various opinions in your Lordships' Noble House on various ques tions arising on these Ordinances, but the only point which seemed to have the general assent of the House, as to whether they were legal or illegal, was this that they were illegal with regard to sending pri soners to Bermuda, and I apprehend that is now embodied in the Indemnity Act, and that Act has declared that so far as sending prisoners to Bermuda My Lords, f ee the application of such a principle to the present case. A practice grows up from a mistake, probably uninten tional on the part of a Legislature which has attempted to exceed its powers. Now, I will admit, for the sake of the argument that it is a practice, but then the preamble of the 1 7th section does not mention that it is a practice. Now I say this, that here in England these men are not by any power which has force in England; and that if I s h ou ld con cede fur the sake of the argument that they were well dealt with up to the moment of coming within the law of England, while they are within that law they are of necessity out of the power and jurisdiction, which sent them here, and ' therefore that they are free. Now the next point on which my Friends dwelt was the validity of this—l don't know what 'to call it—it is conceded that I cannot call it a conviction, sentence I cannot call it, because it is said it is a pardon, but the validity of this nonde script was the next point made by my Learned Friends. It was thrown out by the Attorney-General that the King by his prerogative, could commute the punishment for treason to transportation or exile. Now, I say there is no foundation for such an opinion it is distinctly laid down at common law that no man, guilty or not, felon or not, could he sent out of the kingdom, there to remain es a transported person. Mr. Chitty, in his work on Criminal Law, states many authorities on the subject ; and by Magna Charta it was provided that no person should be punished ex c,pt by his pears, or the laws of tivt lan It is eleArr the slog, that the King h:!,t - t o ow-r o e-m -icitte the vuhisinn, lit at ihe ..f tee teimmal. The party is not pnished bemuse bfe,,Ass the e(indltion or his pardon ; lie goes into exile -because he knows that th e punishm en t or d ea th i s s till h ang i ng o v er him, ai d that if he does Oct behave with good faith, the punishment will b ,- exe cuted upon him. Seppo-e it was granted that the King might commute, again -f the consent of the p-isoner, the punishment of tr-inspory-ttion for death, What Ne sat here is, that the Go% Cl,2l,eral of Canada it not the Sovereign. It is x matt s of notoriety, that iw patents, th-- poker of pardon for ereason and murder Is ex -- eluded. I say that your Loniehips ought to see env document giving the power to the' Governor, and yew are not to presume it. This appknears to me to be all the observations it is necessary for me to make in reply to what has fallen from my Learned Friends osi that part o f the . : case. Wall regard, however, to the necessity for the warrant, t must trouble your Lordship wit h one or two obsers - atinne• On that paint my friends have beers obliged to use incensist eet arguments , because the facts of their return are inconsistent. Here Go vernor Arthur gives a warrant only to take the prisoner through his own jurisdiction; so that he is left to be picked up when he has gone the length of flint jurisdiction, by arty per son who may volunteer to do so, and ultimately they might be, turned up; then they might be taken again, to go through Go knows how many hands, and ultimately find themselves in N r ee Diemen's Land without any proper authority accompanying' them. I never heard of such a monstrous proposition AS Friends arc reduced to. There must either be a warrant , connecting all these parties, or my Friends ere re duced to the extremity to which I have adverted' I don't say that there is any impropriety in Governor Arelegi if he had the power, trareporting these men, but I say tb s there should have been a warrant, so that there might hal e been a document travelling with the prisoners from first to last in order to show the power by which they were kept in custody' The ordinances were ill , gal. The Indemnity Act having re ceived the assent of both Houses of the Legislature, I base the highest authority known to the law for saying that the Legislature of Canada, which had equal powers in ever , '" sanse of the word with former Legislatures, had not the power of making a law to transport extra fines, or to speak mac correctly, to transport intra fines of some other jurisdiction. J. know, my Lords, that these Acts are now put upon the returrs--- that they will receive the careful attention of your Lora ships—and will spare me, the labour of going through thee' , in order to see how they bear upon this case. It has bete attempted to ground this power upon some sapposcd practice that must have grown up within a very few years. A dictums of a Noble Lord, for whose le A el knowledge I have the highest respect, was cited in proof of such a practice. I a l ' lute to something that fell from Lord Lyndhurst. Thal practice hating been carried on ha the eye of the Le' gislature for a certain number of yeaes, and the Legit; lature not having corrected it, made a slew law upon th subject. With the mast profound respect for the talents of the Noble Lord, I dissent from such a proposition , and submit to your Lordships that it is not founde i upon law, but opposed to every principle of 1 0 ' Now, my Lords, the Attorney-General said that there va s no necessity for a warrant. And he said this upon the autho rity of a case which I cited, and which I still consider as con clusive against him—the case of the King v. Clarke. What wa s that case ? The Attorney- General says that it was not a commit ment in execution. My Lords, it was, most assuredly; for it wse_ a commitment, by the Court of Aldermen, of Mr. Clarke , for refusing to take upon himself the office of Liveryman. Ther e are but two modes of commitment—commitment in execution, and commitment leading to trial. But, in this ell the Court of King's Bench, upon habeas corpus, se t that this was a commitment in open Court, by a Court, to et; own officer, which commitment not being made by warrant? it is absurd to say the warrant must be set forth. All that t he officer could do in that case was to state the fact—to Set forth the judgment. But, my Lords, the court goes on to say that if the party was in the hands of any per son but the Court's ow! officer—the Court having no power, :slit by its own officer, . 05 its own person, to order a person into custody.-that then th party must have been committed by a warrant; a nd le that case I apprehend the warrant mast be set f orth in lime verba ; and the reason given is obvious-." that otherwise it would be in the power of the gaCler to may the prisoner's case better or worse, at his plea.mtre• Lords, take the propositions separately. First, ought there to be a warrant here ? Most certainly there ought. WI privity, what connection is there between the Governor ,„.° Upper Canada and the gaoler of Liverpool ? unless Yu complete the link by a warrant. My Lords, I might CO e " . cede for the sake of argument that a warrant, calling Ile some person, naming him, to carry a person to the gaol of Litr.e r ' . pool, there to be held till means were obtained for carrying WI to Van Diemen's Land, that this warrant might have been go o d ' But that is not the case here. There is a cessor-4 break of all authority. The authority of the Governor Lower Canada, Sir G. Arthur ends in Lower Canadia; The authority of Sir John Colborne (one does not clea tll see where it begins) ends in Upper Canada ---13 that the gaoler of Liverpool is left without any authority' My Learned Friends say it is extremely inconvenient; and the! put the case of a shipwreck, where the warrants are lost; and they ask, would it be fitting that persons transport ed should thus be suffered to obtain their liberty? My Lords, this i 5 a new doctrine. The doctrine of inconvenience has ne ° e II been held to have any operation on the principles of the rig of men to their liberty, It may be very inconvenient, wh en man loses his title deeds, that his title should be de stroyed. But the rights of persons cannot be prejo' diced thereby. I will put an opposite inconvenience', I will suppose what frequently happens, that the master, of a vessel is tyrannical—that he chooses to put one 05 his crew in irons, and on arriving in port, he delivers him to a gaoler, or brings him to this country to send him to Van Diemen's Land. On my Learned Friend's d oe". trine, nothing could prevent this man from going to Vary Diemen's Land. Now, my Lords, though you are sitting here to decide whether this man is rightfully imprisoned, In! Learned Friend has assumed throughout, that he is rightful!): imprisoned. If it is according to law that this man s hould be taken to Van Diemen's Land, or to the place of cler k ''' . tion, it must be done, b u t do not fall into the ab surdity of assuming that this is rightfully done wires you are sitting here to decide whether it is so or no t " My Learned Friend the Attorney-General uses the re turn as though it were necessarily true in' all respeete" for all purposes ; whereas the return is only to b e taken as true for a particular purpose. The facts sq . only to be considered as binding so long as they are we ll pleaded, well returned ; and if there is any vice Fe' in the return itself, the facts no longer in the . eye of the lawexisr- But, my, Lords, my Friends say that I have passed over the onlf case they brought forward on this point—the case of Barnes-'; in which I can see nothing that militates against any doctrine 5 ,-. have advanced. In that case there was a judgment, and J• at once admit that we need not go beyoed a judgment', Give me the judgment of a Court—l ask no more will not go beyond it for any ulterior purpose : but our els e here is, that th ere h as b een no j u d gment o f any Court. ".! are not dealing with an y j u di c i a l p rocee di ng , b u t, a s UV Learned Friend Mr. Roebuck said, with a purely executive proceeding—the act of a Government from beginning to end—not the judgment of a Court; it is the act of power , not the act of law or justice. This makes all the ( 14 " ference in the case of Saddis also. The judgment pronounced by the Judges in that case, was founded upott the fact of a judgment being pronounced, and e' judgment is conclusive, excepting in a Court of Error, that anything up to that point was regular. What is the reason, mY Lords, that one nation gives effect to the judgments of the Courts of another nation ? Because it is presumed that there has been a judicial examination and trial. But, in this case , there being no judgment, every presumption is in favour of the prisoner. Now your Lordships have heard. from one of my Learned Friends, that he hoped thi n country will remain the refuge of the p o liti ca lly p erse cute of ail nations. When political refugees come to this country? there is no enquiry whether they are rightfully or wrongfullf, condemned, but my Learned Friend, while willing to extenet this asylum to foreigners, would exclude those who are subjects of our own country, and speak our own language. My Lords, whatever may be the result of this investigation, I can only. on the part of the prisoners, of my Learned Friends , and for myself, return you our sincere thanks for the patient attention which you have given to this momentous ease. Lord DENMAN—We think it right to give some con sideration to a case of so much consequence, and we should wish the prisoners to be brought up again on Monday morning -Adjourned. FLAT GOLD WATCHES, NINE GUINEAS EACH.—Some fine horizontal flat Sold Waistcoat Watches, jewelled in four holes, silver dials, hand t a mark the seconds, and double-back to the cases, war'ranted to perform correctly, Nine Guineas each ; or with gold dials, Ten Guineas each. A. B. SAVORY and SONS, Watchmakers, No. 9, Cornhill, London, opposite the Bank of England. PATENT LEVER WATCHES. Price, at T. COX SAVORY'S, 47, Cornkill, London. SILVER CASES. With double-bottom cases £6 6 0 With hunting cases COLD CASES. Size for ladies, with elegant gold dial Size for gentlemen, with enamel dial This celebrated construction (the most accurate on which 3 watch can be made) is now offered at the above price, with the latest improvements, i. e., the detached escapement, jewelled in four holes, capped, hand to mark the seconds, and maintaining power to continue going while winding up. T. COX SAVORY, Working Silversmith, Goldsmith, and Watchmaker, 47, Cornhill London (Seven Doors from Gracechurch-street). iii.- RRIED On the 10th inst., at Cricklade Church, Wilt s , th e R ev . J am es Young Beecher, to Mary, third daughter of the late Rev. William Read, of Store East, Somerset. On the 15th inst., at St. Andrew's Church, Enfield, the Rev. William Woodhouse, to Mrs. Hughes, widow of the late Rev. Thomas Hughes, and only daughter et William Wilson, Esq., of Lincoln's House, Ponder's End. ir[r,u On the 12th inst., Mr. D. W. N. Tuck, of St. Martin's-court, Leicester-square, aged 44. On the 15th inst., at Edinburgh, Mary Stuart second daughter of Captain Trotter, of Ballindean. On the 14th inst., in Harley-street, John Maclean, Esq., late of Calcutta, aged 42. _ On the 14th inst., at Camberwell-green, Mrs. Nora Wale, for merly of Okingbain, Berlcs, aged 80. On Cie I 4th inst., at South Parade, Brompton, Miss Sophia Ann Sala, late of Lissnn-street, :New-road. _ __—• London: Printed and Published by MURDO YOUNG, •f Ni• 112, Strand, at The Sun Office, N. 112, Strand, in the coati) of Middlesex.—Thurs4ay, January 17, 111339. qN Despatel The L Seven, i) those at Borough, -1.11., ar 'Orlic: an Close for Letters a! I-1 rev m perials, highly -fin la) H way hetwe Tn hddit Callill 7 % past 1 ( i past Or . /4 ! past Fn payt l'hos4a I 07c: At a GE at the Lon( January, It Resolved the miuu•.es That' t s hares, N - 20 shar es , I vectors of t: firmed, and Pursuant to " That th to the provi viz., C. R. Hodgson ; " That th hereby give' exertions fu: " That th trick for his position of t: L•ndcn a, T_ 4 ONL C oprrNi A grh, rptt L ,irociane i e f n l O t doi r ß e sr ° l l ,; Per SHADE Paid on or be ii ndermentiol Liver col B ank, on ace Brighton_ Ler ces __A Glas gow Dublin—P accordingly. Lond on an Thro STEA T Lieut.E Sail from I i nstant, OA 1‘ will leave Cui And during follows: Fr( Fares to Nc Sitt4.te Specie, if c under that an Parties wh caged) are ini it can be rec•i Shippers e 1 Certificates rm not b. shippec For inform M. Ward, 4 'n ; Messrs. 411 ton, Broth ' 4ll elle °M ee, nristol Passengers In large l etters lot required la' rei h collected F in g N pou nd Sterlin, No Pa L Greai bringing Mere they are res P ( ina nteau or C of bona fide Li quantity for Cl pies brought o ga,,ed room fi Shillings per f sPunsible although I,PECYTEASCLI: In t 7'toll has attain n ife i The E Many years' ens (the meni, them as decide' b re3e ntations, been safely all" l t'g Public•• b it I) hoves one signat ures hare ?ferneet untruth Lenses," ' wine glasses of a pi “snment, at I -Jr.l E's. V( are worn unP d nulual usin '‘jih.ll the sem, lESTIIIONI ELIA sot est ern Fr om Sir Anth lele of Sur; Itospital, tk:t Air. Elia So' additional aids refracting p ow' d new reso ANT Flll m Dr. J I have D een e ,Peetaclestisses Which ] r.rorn Bransby that,i t t : 3 r G vi I Itithon From e r°fitNht x h n ty:he l 3 n see: E sil I am much neY relieve ti I have exam niuos, and I an Purpose for wh leak and irrita whose sight is COPLA , From an cis Lo conclude tha erdinary Glass They are al praatitioners :- Sir C. A J. S( C. J. Sir J Mars w. ( Tis C"Ler: tat2sUYY:ll:::haPtheaenaNnEir s taff A N eCI ed tha hai TO Ai e: NO