The Sun.
London, England, 1839-01-23 00:00:00

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their Lerdships cbd not even know that shat was
set cut upon . the return was his knowledge. He
(Mr. Hill) could not but think that this case would be so far
beneficial, as it would show that in those forms, which in mo-
dern times were so much slighted, was in reality substantial
justice. If the warrant had been set out in the return, con-
silerable discussion would have been saved. He challenged
his Learned Friends to point t ut a single case in which it had
beta held, ihat where there was a warret2t 't eneie net to be
set rut in. the return in Leo verlia. TheKis•gn.
Saddis, which had het e ssfer,-, d to for ties pie pose, was net
in point, for it appeared that there was no warrant ; and so in
another case, which had been discovered at the eleventh hour.
If it was not necessary to set out Sir John Colborne's warrant,
why set out the others ? What was it necessary to set out?
He wished his Learned Friends, in their great ardour for the
liberty of the subject, would have been kind enough to give
their Lordships some definition and test of what was sufficient
or what was insufficient, in setting out documents or averments
upon a return. The course of their argument went to
this, that if the return had said Leonard Watson was
in due course of law sentenced to transportation to Van
Diemen's Land, that it was necessary to send hihn to Eng-
land, and that inc held him in pt icon in pursuance of such
sentence, it would have been perfectly good. According
to these arguments it might be reduced to a nutshell. Then,
how were their Lordships to know the cause of this imprison-
ment, unless they saw with other men's eyes, heard with other
men's ears, and adopt the judgment of the gaoler of Liver-
pool as their own ? The doctt ine of his Learned Friends was
not only not affirmed, but it was disaffirmed, by the case of
Rich and Doughty, 3 Salkeld, 149. Were the prisoners in
a stete of legal restraint in crossing the Atlantic? If not,
this came was a conclusive authority against the gaoler of Liver-
pool receiving them. His Learned Friend said the warrant was
net necessary at all. Did he really mean to say that a verbal
direction by somebody in Upper or Lower Canada, to take
these men to Liverpool on their way to 'Van Diemen's Land,
was a letse'al execution of a sentence of transportation ? Would
they bind themselves to this—that if Leonard Watson had
risen upon the captain in the high seas and put him to death,
that such putting to death would have been murder, he having
no warrant ? It was impossible to believe that could be the law
of England. It was supposing a degree of looseness and irro-
gulan ity concerning the dearest interests of man, which was not
permitted even in the course of trade or commerce. If this•
had been a consignment of twelve beavers to the Zoological
Gardens they would have come with a better bill of lading ;
and he would venture to say that if in any well-conducted
house of business in the City, errors had crept in such as
had been found in these proceedings, every clerk would have
been cashiered by his master before night. Mr. Wightman
complained of not having been treated with a proper
degree of candour. His Learned Friend would ex-
cuse him (Mr. Hill) if he replied to that statement, and
he would do it in this way. He (slr. Hill) thought
even upon the discussion of the sufficiency of the return, he
had a right to use the warrant, seeing it had been delivered to
the goaler as the warrant on which he had detained them.
He had the warrant in his hand, and his object was to show
the very blot upon it which he now pointed out, but the At-
torney-General interposed, and their Lordships agreed that he
had no right to use it. After he had been prevented from
doing that in the early part of the proceedings, which he had
now done, it was:too much for Mr. Wightman to accuse biro
of want of candour. Were they to struggle against letting its
Ft single ray of light es long as they could, and when he was
about to show the Court a little glimpse of the case were they
to say it was uncandid, because it had not been done at first.
It was not his (Mr. Hill's) fault that the whole of these do-
cuments were not before their Lordships. Only one docu-
ment was produced, and that was the pardon. But the f.oun-
dation of ail, the petition and the indictment, were net pro-
duced. Their Lordships were bound, even now, to take it
upon the erring and fallacious statement of Mr. Batchelor,
that this man did petition and confess his guilt, and was indicted
for high treason, notwithstanding proof had been given of the
fallacy of his statement. How dared Mr. Batchelor to take
upon himself to swear that he-believed all the statements to be
true ? What evidence had been offered to him that he should
pledge his oath that these matters taking place in Canada were
true ? It was an allegation that after the pardon these prisoners
consented 'to the condition of it. He asked Mr. Batchelor,
and those who had put the affidavit before him, how he colifd
swear that these men did assent to these conditions. His
(Mr. Hill's) belief was that they did not assent—hie belief
was that when Mr. Dealtry read the official return, that was.
the first time they heard the dreadful sentence, that they were
transported for life. It was said, why not bring affidavits Of
this? He had received a severe lesson during these proceed-
ings, of what was the duty of' an Advocate. He had found
cases deciding important points, Where the Advocates
did not raise those points—he had found that because Mr.
Erskine did not raise that point in the case of " King I/.
Saddis," therefore it must be taken to have decided by the
assent of all men in a particular way. It became the duty
of an advocate to take care that no precedent should be
drawn from any proceedings of his. Mr. Erskine would
have done his client no service by it, and that might be
his reason for not taking up the time of the Court. But he
trusted their Lordships would feel it a pernicious maxims to
take a case for authority for anything that was not arguet).
not decided in that particular case. He was addressing their
Lordships with no want of that real respect which he, felt for
the Court, when he said that all men—Judger, not ex-
cepted, were prone to error—that it should be a fair
inference that anything that VMS not well considered could not
be well decided. They found, too, many mistakes on all oc-
casions where the liberty of the subject—wtere his life, his
happiness, all that was dear to him in the world, were at stake
—and he trusted their Lordships would never consider that
liberty as narrowed by the omission of any advocate.
Let him now call their Lordships' attention to the state
in which the proceedings were. He had made a motion for
an attachment—a rule was granted—that rule had nosy'
been discussed, and was ripe for their Lordships' judgment,
but, as stated before, that was a subsidiary proceed-
ing. He was still on his original motion to discharge
these prisoners. He could only discharge them by quash-
ing the return, and part of his motion was to quash the return.
Suppose that a witness here had been contradicted els to facti
which tcok place in Canada—facts which took place within
his own knowledge—suppose that he was to be contradicted
as to facts which took place in England, would the Court
put the slightest confidence in any evidence given by such a wit-
ness. The warrant was a mass of absurdities. There was not the
slightest connection between the recital and the; enacting part
of it. It was neither grammar, English, nor common sense.
It was totally contemptible. The Great Seal had been dis-
graced by being put to such a document. His Learned
Friends on the other side had called this a ch rical error.
Why the names of the prisoners were recited no less than six
times in the warrant, and every time the name of Leonard
Watson si studiously omitted. The Solicitor General coming
from another Court had introduced' into that Court a new
term, In speaking of criminal law be talked of a quasi con-
viction. It was th first time he had ever beard the term, and
he trusted that it would be the last. if a man could, be trans
ported .for life on a quasi conviction why might he
not be hanged ? He (Mr. Hill) would advise the
Solicitor-General to keep to ;his own Court, and if he must
exercise his ingenuity, in finding out some equitable means in
punishing criminals. There was much of quasi in this 'case,
but ve,y little of conviction, and he trusted that the Court
would ice'
Lerpose its power between these poor prisonejrs and
r"...'.nless power.
Mr. FAULKENER followed on the same side. -fe said the
only fact which the gaoler could lay
.lAfore the Court,
was the authority he had to keep 'those prisoners in
custody, and that he had stated fte.Sely to their Lord-
ships. The prisoners were not convicts—there were
only two modes of conviction known to the English
law. The first was, when upon arraignment a prisoner
pleaded guilty the second was, when upon verdict he was
found guilty. Neither of those ordeals had the prisoners gone throrgh
therefore, they were not convicts, according to the laws of .Engiand.
The Learned Counsel for the Crown had endeavolared to show that the
warrant was a document of no consequence;_ he would endeavour to
show to the Court that that document was very material in the care.
If, at Common law.pardon had been granted, upon condition Vast
the party should transport himself, there was no law in England by Welch
thoseconditions could be carried into effect. For-that proposition lie h•Ad the
authority of Coke, in his " Commentaries upon Littleton." 'de had
also the authority of the case of Newsom agaiast Boyer,
in 3 Pere WO-
P. 37, in which the Lord Chancellor decided that there was no
transporl ation, the party having voluntarily exiled himself according to
the condition of a pardon, which had been granted tr, him. For that
proposition, also, he had the authority of Blackstor,.. Then came the
transportation Act of 5 Geo. IV., but that only irepe,sed transportation
on pardon, with conditions in certain cases. The words of the
Act were specific ; they limited the power of transportation
to persons who had been pardoned, on conditions, after conviction.
That was not the case with the parties here, for they had never been
convicted—they bad never been arraigned—t hey had not bean called
upon to plead—no witnesses had been called against them—th ey had ne-
ver been asked what they had to say why sentence should no t be passed
against tlnens—they had never been sentenced. Where, Linen, in the
law of England was the power to carry into execution this pardon, as
it was called ? Where the authority for tine detention of f.hese prison-
ers ? The party not being in execution under the authority of a Court
of law, and not being detained under a warrant of committal, he was
free. Could it therefore be said that ;to injury had been 'inflicted by the
course pursued by the gaoler ? H 2 had stated circumstances in his re-
turns that were not true—while, at the sake time, he had
boldly stated that all the assertions inn his ac.fidavits were true.
Such being the case, he submitted that he had reredered himself liable to
the severest punishraent tine law could inflict.
Mr. ROBDUCK was on tine same side. His Friends and himself were
placed in a novel position; they were the advocates in an English Court
of Justice, who were endeavouring to shield a man not from convic-
tion, not from the process of law, gat from what the lay(
coatemplated as a sentence, but from the determination of an execrn.
tive officer, which has been determined for the first time in ;In
Eniglish Court of justice to be equivalent to the sentence of a Court, e.nd
to dispense with the necessity of trial. Such being the position in
which they stood, he should offer a few arguments in addition to tr,sose
already urged for the purpose of protecting Leonard Watson frora the
array of power brought against him, and not from the strong arm of the
law. It was not against law they were fighting but power. Now, Iv., would
propound as lie understood it, the law as laid down by the',r Lord-
ships on Monday last. 'I heir Lordships had, as he une,,erstood in
the first place, determined, that under the Upper TJanade Act,
the Governor had the power upon petition, without tria:n, to pardons per-
sons guilty of treason upon their confession of the fae.t, and that upon
that confession he could inflict any punishment Wort of death. Their
Lordships had further determined that upon petition the Governor
could transport for life, that the law ofEngland would recognize that semr
tence, and that the English Courts would enforce it. Their Lordships had
determined, 3dly, that the bare affirmations of a gaoler should have the
effect of proving, to the exclusion of all supporting evidence, tine follow-
ing facts t—lst, That the prisoner was arrested upon the charge of high
treason; 2dly, That an Act had passed in Upper Canada ; idly, "'hat
under that Act the Governor had the power to pardon yson
confession of guilt ; atUny, That he Could sentence to transports lion
for life without trial. 5,14. That the prisoner had been brought to
England .un4or Lho warrant, of Sir George Arthur; and 61h1y, and