The Sun.
London, England, 1839-01-29 00:00:00

VICE-CHANCERY.-(THIS DAY.)

His Honour the Vics-CuiaswELLoa proceeded with the hearing of
petitions today, none of which were of any public interest.

QUEEN'S BENCH.-(THIS DAY.)

THE QUEEN V. DODSON ►ND orirEns,

In this case a rule was granted last Term, calling on the defendants
(four magistrates of the county of Oxford) to show cause why a crimi-
nal information. sbould.not, be filed against them for having improperly
convicted and imprisoned a cottager named William Kenne, for cutting
a white maple in Bagley Wood, he alleging it to have been done in the
exercise of a right. Tie rule was argued a few days ago, and this
morning •

Lord DENMAN gave judgment, discharging the rule with costs.
THU QUEEN V THE RECORDER OC DAM

Mr. KINGLAKE showed cause against a rule calling on the Recorder
of Bash to show cause why a mandamus should not issue, directing him
to hear an, appeal of the Churchwardens and Overseers of Mansfield,
against the parishes of Linscombe and Whitscombe, respondents.
Mr. Silica was heard in support of the rule, after which
The COURT took time to consider.

COMMON PLEAS:-(THIS DAY.)

IMPORTANT TO PARENTS-INTERESTING TO TAILORS.

BAGSHAW V. EATON,

In this case, a tailor had brought his action for clothes supplied to
defendant, to the amount of 101. The action was tried in the Sheriffs'
Court, and the defence was, that when the clothes were supplied de.
fendant was a minor; that the articles were not required, because his
mother had supplied him with every necessary; and that the plaintiff
had made no inquiry as to the situation and resources of the young man,
who it appeared was articled to an attorney.
Mr. JAMES had obtained a rule to show cause why there should not
be nonsuit, against which Sergeant Wilde yesterday shcieNl cause.

Mr. JAM es this morning supported the rule. lie cited various cases,
tending to show that where infants were dealt with, it was necessary
that the tradesman who supplied them with any articles, do make in-
quiries as to their circumstances. In this case, bad the slightest enquiry
been made, the mother of the defendant would at once have informed
the plaintiff, as she stated at the trial, that the articles were by no
means necessary, for that she herself had supplied him with every
thing needful.
Mr. Justice VAUGHAN observed that there was certainly a prima facie
case for clothing.—(Laughter.)
Mr. JAMES said hecertainly did not contend that the defendant had a
right to walk about in purls naturaiibus._(Renewed laughter.) But he
submitted to the Court that it was important that this Court should
uphold rules of law, which Juries in inferior Courts were too much in
the habit, especially in cases like the present (in which the very fact of
a plaintiff citing a rule of law would tend to create a prejudice against
him), to violate.
Lord Chief Justice TTSDAL said the question for the Court to decide
was whether it was to be maintained as a rigid and unbending rule of
law that no plaintiff could recover for goods furnished to an infant
unless he had first made inquiries. Now, he could not certainly say that,
although he quite agrced that it was important to pre.erve the just pro-
tection which the law threw around infants ; and that it was most de-
sirable that tradesmen, before supplying infants, should make inquiries.
He could not say that it was a necessary precedent condition to the
right of recovery in such cases that the tradesmen should have in-
quired, because, even if he ihad inquired, and could get no informa-
tion, the question whether the articles were or were not necessary still
remained open, and so it did if no inquiry had been made. The ques-
tion of necessaries was for the Jury, and he did not see any reason for
disturbing their verdict.
The rest of the COURT concurred in the opinion,
Mr. Justice VAUGUAN stating that he could not but think a great
coat, which was one of the articles supplied, a necessary article.—Rule
dismissed.

EXCHEQUER COURT-(THIS DAY.

THE CANADIAN PRISONERS.

At the sitting of the Court this morning Mr. HILL said the prisoner
Parker, whose case was under• the consideration of the Court, was very
anxious to be present in Court.
The COURT said the whole of the prisoners had a right to be present
in Court ; but of what use they would be for the purposes of the argu.
ment they could not see. However, if they wished it, they might be
brought up.
The ATTORNEY-GENERAL then resumed his argument. He said a
doubt had been suggested yesterday that the parties connected with
the rebellion of 1745 had not received their pardon without a trial.
He had now been informed, by Mr. Daltry, that there could be no
doubt upon the matter, as the Patents of Pardon were jn his office, and
they clearly set out that Use parties, having been indicted for high
treason, confessed their crime, and received a pardon on condition that
they should suffer themselves to be transported to the plantations in
America. He was now also fortified with an Act of Parliament, the
20th George 11., chap. 46, which was passed expressly for the purposes
of the pardons Mr. Daltry referred him to, and which created a new
offence if the parties returned to this country without the leave of the
Crown.

Mr. Him. was very anxious to see those pardons. They were under
thecare of the Attorney-General, therefore there could be very little
difficulty in the matter.
The ATTORNEY-GENERAL was not aware before that officially he
had the care of these documents ; but there would certainly be no
difficulty in his Learned Friend seeing the documents. The act to which
he had referred made it treason for any party to return to this country
after accepting the conditions attached to the pardon. Mr. Hill had
challenged him to point out the limits of the authority of the Legis-
lature of Upper Canada. He was not aware that it was necessary for
him to do so, but he might say that with the limitation of allegiance to
the Crown, they were supreme. The Assembly cou!d do nothing with-
out the assent of the representative of the Crown, and he was obliged
to act upon his responsibility according to the orders he received from
the Queen.
Lord ABINGER—That was a very good political argument. The
question to be argued was a very narrow one. Supposing the 31st
Geo. 111. gave them power to transport to America, was there any law
of this country which gave them power to transport to any other
place, which was binding out of Canada ?
The ATTORNEY-GENERAL—The Legislature of Canada was supreme,
and had the power of passing laws inflicting death; they therefore had
the power of imposing transportation for offences, and it was legal in
Canada. The sentence could be carried into effect in any part of the
dominions of the Crown. That had been acted upon for fifty years, and
had never before been questioned, and very frequently had received
legislative recognition, from the Imperial Legislature.
Lord ABlNGER—Suppose they were to pass a law imposing the
pealty of transportation to England, could they give authority to any
one in England to keep the convict in custody ?
The ATTORNEY- GENLRAL --That would be transportation to the
mother country, which is totaliy against all precedent.

Lord A BINGER put the case by ihust-ation. If it were so, by the
same reason they would have no power to transport to any colony over
which they had no controul.
The ATTORNEY GENERAL—But the laws of this country provide

for such a case. By the sth Gee. 111. the King in Council has the
power to appoint the place of transportation ; of course that power was
vested in his representatives in the Colonies. There could be no doubt

that the sentence was legal in Canada, and if it were so there it ought
and could be legally carried into eff,!ct in all parts of her Majesty's do.
minions. Suppose the prisoners had made an application to the Court
of Queen's Bench, in Upper Canada, on the day after they had received
the pardon, for a writ of habeas corl us, and that a return had been made
setting out the indictment for high treason, a confession of guilt and the
conditional pardon, would the Judges there have discharged them ?
Clearly not; nor would their Lordships, as the sentence upon them
was le,ral in Canada, and they were now legally in this country in
the execution of their sentence. Suppose a party were to receive
a conditional pArdon, and the condition was that he should be trans_
.ported to America. Suppose that on the voyage from some cause or
other the vessel he was in was obliged to put in at Jamaica, would
the Court there grant a habeas ? Certainly not, if the sentence were
legal in this country, and that was a parallel ca,ze to the one before
the Court. The pardon upon conditions would lar clearly legal in
England, and therefore the conditions could be enforced in

any part of the dominions of the Queen. It was per-
fectly clear ,that the Court would not interfere with
the prisoner ifi Jamaica in the execution of his sentence, nor could
he maintain any action against the captain of the ship, or any
one engaged in the act of transporting him. There could be no doubt
of the power of the Crown to pardon upon conditions—it had been
frequently exercised—it had been often recognized by the Legislature,
and had never been questioned before. No man, in his sober senses,
except one with the strong feelings of an advocate, would for a moment

contend that a person, after receiving such a pardon, should also be
tried. Suppose there was a verdict of acquittal, in what situation would
the party stand ?—he would still be in the situation of a traitor ; his
property was forfeited. If the pardon were granted there was to be no

trial; if the pardon were refused, the Act carefully and very humanely
provided that the petition should not be used against the party upon his
trial. The other point is that the sentence is bad, because the term of
the transportation does not commence till the arrival of the prisoner in
Van Diemen's Land.

Mr. Baron PARKE—You contend that the Crown has a right at corn.
mon law to grant such a conditional pardon, and that the conditions
having been once assented to, can be legally carried into effect through-
out the whole of her Majesty's dominions.
The ATTORNEY-GENERAL—Certainly. At common law by the prero.
gative of the Crown the Queen could pardon any offence without trial, on
condition that the party consent to remain in prison for three years.
That would be a good pardon, and though the party might wish to set
it aside, no Court would grant a writ of habeas corpus, and die.
charge him.

Mr. Baron ALDERSON—If so, the consequence would be, that he would
be taken and hanged the moment after.

Mr. Baron PARKE--That is the question. In the case supposed,
would the Court remand him to his original custody, or would they re-
mand him for trial for his offence?

The ATTORNEY-GENERAL—The Court would remand him to fulfil
the conditions to which he had assented. In the case before the Court
should the parties be discharged they might be tried in England for
high treason, or they might he sent back to Canada, where they would
be guilty of felony under the terms of their pardon.
Mr. Baron ALDERSON remarked—Arc you quite certain, Mr. Atter-
ney.General, that the intention of the Statute 31 Charles IL, is not that
the person is to be at liberty to transport himself ?
Mr. ATTORNEY-GENERAL said that he thought the words in the
Statute to which the Learned Judge in that observation would seem to
refer, alluded to a practive very common in the reign of Charles IL, of
persons agreeing, with the sanction of the Court, to remove to the
Colonies, and had no reference to convictions by law, or to commutations
of capital punishments. The Learned Attorney. General went on to
refer to the Canadian Acts 7th William IV., chapters 6 and 7, which
had been introduced into the returus, and which, he contended, clearly
showed that transportation was a punishment usual and legal in Canada;
and thee was nothing in the Act let Victoria, chap 10; at all incon-
sistent with these statutes. He now came to the manner in which the
sentence of transportation had been carried into effect. The Counsel
for the prisoner had objected that there was no authority to send them

to Lower Canada or .Enatid. Lut, he (the Attorney tietie-
rat); arguing as he did on the supposition that the sen-
tence was legal, contended that every thing was equally legal
which was necessary to carry it'into execution. Them w, ua sea-port

in Upper Canada; therefore, priboners were convi,yed to Lower
Canada. Na vessels sailed from [Amer Canada to Van Dicineh',
Land, therefore they were transmitted to England.. Wl,at wai to
be done with them when they arrived on the shor,s of thii e,mo: ty, acid
till a ship could be found to convey them to their

nation ? Were they to float on the waters of I Mrr,ey,
till such ship was found Or wart it not rea,onable th,y
should be in the meantime kept coidi,cmcnt in prison,
until, with all posSible expedition, the vcshei wa, made ready to ran y
them to Van Diemen's-Land, Then as
A felon, or suspected felon, could

necegs'

f a warrar

holt a warral

so with a person who had broken gaol and Ives rs.taken. t ;iei.i ;I'
then be argued that after s:•ntence a warrant was in all cases 11CeCit.ty ?
Suppose the vessel containing these prisoners had been wrecked en the
coast of Lancashire, 'might they not have been detained ?or
put the ease of an English convict ship wrecked on EOM
part of the coast of this country, and the prison, rs escaping, and being
retaken and detained by some private persons; would it not be a good
return to a writ of habeas corpus, that these prisoners had been taken,
in attempting to fly from the sentence of the law ? And, was not the
case before the Court substantially the same ? .111 the case of the King v.
Saddis, where a similar return was made, it was not merely to be noticed
that the eminent Counsel, Mr. Erskine, did not on helialf of the
prisoner, object to the absence of a warrant; but, that Lord Kenyon
expressly ruled that a person legally sentenced might be he'd in custody,
in order to carry the sentence into effect, even without a warrant.
There was another case, of ex parte Crantz, in 1 Barnewall and Cres.
well, it was laid down that a person might be lawfully detained, without
warrant, before trial. In that case there had been an engagement be.
tween a smuggling vessel and a revenue cutter, in whirls one of the
Government men was killed; and the smugglers being afterwards taken,
were kept in custody on the charge of murder; and on habeas
corpus the Court decided that persons charged with 'felony might,
without a warrant, be detained, till taken before a Magistrate.
Now, in the case before the Court, the Counsel for the prisoner had,
while objecting that the gaoler, an ignorant •persoa , should
have made a return, been so inconsistent as to object that he
did not in that return state the facts with sufficient • minute-
ness. Undoubtedly, in point of law. the gaoler was bound to make
the return; and though, of course, he ought to have assistance in
making it, he should net state upon it any facts of which Ise could not be
supposed to bave cognizance or belief. In Scale's case the gaoler returned
that the prisoner was in custody by commitment from the Privy Conn.
cil, and that return was properly held to be bad, not from its own
insufficiency, but because the cause of detention stated was illegal.
And various similar cases which had been cited by the prisoners' Coun-
sel merely proved that where an Act of Parliament was returned as the
cause of detention, the case must clearly come within the terms of that
Act. But the return in the present case distinctly brought the prisoner
within the Act of the Ist Victoria, cap. 10, for the conditional, and
lawfully conditional, pardon in the terms of that Act was set
forth. The Learned Attorney-General said he had now gone
over the whole of the objections which had been made to
the return. If he had the slightest apprehension that the
judgment of the Court would be different from that of the Queen's
Bench—which apprehension he had not—he would remind their Lord.
ships, that even admitting the return to be insufficient, the prisoner was
not entitled to his discharge. In a case in which an Irishman was de-
tained in this country on a charge of stealing an heiress, in Ireland, and
the return was held to be bad, the prisoner was not discharged,
hut sent to Ireland to be tried. The prisoners in this case had
been guilty, on their own confession, of high treason. Were
they to be discharged ? He trusted that their Lordships
would think the return to be valid. But even should they not, he
hoped they would remand the prisoners, to be dealt with according to
law. He had only, in conclusion, to advert to the unanimous judg-
ment of the Court of Queen's Bench on this very return, affirming its
sufficiency. He was aware that this judgment could not be binding on
their Lordships as to their decision now. But he cited it as an
authority entitled to great respect He flared the writ of habeas
corpus— that great bulwark of our liberties—was in danger of being
perverted to objects for which it could never have been intended. lie
earnestly hoped that their Lordships would not, by their judgment, al.
low it to be perverted to the delay or frustrating of justice. Lament.
able would be the result of discharging the prisoners. He rejoiced that
their lives had been spared; but deeply should he regret that, by some
technical objections, they should obtain their liberation, and thus not
only the ends of-justice frustrated, but the administration of mercy
discouraged.

The Learned Attorney-C;eneral concluded about a quarter to two,

LITERATURE.

LEGEND AND ROMANCE, 3 Vols. •
London. Bentley, 1839.
The author of these volumes is a gentleman named
Johns, a Lieutenant in the Navy, who, from hints supplied
by various European and African legends, has contrived to
weave several very entertaining narratives, fertile in descrip-
tion, and not devoid of stirring incident, and over which the
reader of light works of fictio❑ may pleasantly wile away an
idle hour or sq. The tale in the collection that most
strikes our fancy is,lhat entitled " Sebastian of Portugal,"
which turns upon the well-known expedition of the
chivalrous young LuAtanian monarch into Africa, where,
as our historical readers may remember, he lost his gallant.
army and his life—an incident which has already furnished
Miss Porter with the materials of one of her most popular
romances. Mr. Johns's sketch of this ill-fated expedition
is not less vigorous than his fair predecessor's ; and his de-
tails, in particular of the last sanguinary decisive conflict,
are far superior in vividness and energy of description. In
dramatic tact, too, he has the advantage over Miss Porter,
as his conception and execution of the character of the lin-
passioned Momish girl Zuma, evince in every linament.
We shall look forward to Mr, Johns's next appearance as a
novelist with some interest.

BABYLON, OR THE CONSERVATIVE SYS-
TEM IN
.CHURCH AND STATE.
London, Dinnis, 1839.
Th;s is a pamphlet in which a great many good things are
to be found. The author is a member of the Established
Church, but an uncompromising denouncer of its manifold
abuses, the greatest of which—the root, indeed, of all—he
considers the union between it and the State. This unholy
alliance, with its necessary consequence of wide-spreading
corruption of all sorts, is, according to the writer, the Ba-
bylon of the Revelations—the second Beast doomed to an
awful destruction. This being his opinion, fortified by the
authority of Scripture, at least as he and others interpret
it, we are not surprised at the earnestness with which he
advocates a speedy dissolution of the alliance, and a return
to the purity and simplicity of the Gospel dispensation. " I
wish," says the author in a spirited dedication to the Queen,
" to impress upon your Majesty, what rests upon my own
mind, with a fullness of persuasion which does not admit of a
doubt, that there is no safety for any state or potentate in
the present day, but by an immediate dissolution of part-
nership with the Church. She -has become, indeed, a
most dangerous ally. She is doomed to-destruction herself ;
and, like the ivy-mantled tower, will carry all along with
her, that cling to her ruins—or, like a drowning courpa
nion, will drag to the bottom even the dearest friend that is
within the reach of her fatal embraces." The pamphlet is
published at a happy moment, and is well calculated to
erve the public cause.

LIGHTS AND SHADOWS OF SCOT TISH
LIFE.
Blackwood, Edinburgh, 1839.
The triumphant-success of this work which was first pub-
lished about twelve years ago, and has, we understand,
been translated into almost every European language, led
the way to a variety of imitations, with which for many
years the Press has teemed, but none of which come within
a hundred degrees of the original, and are now therefore as
completely forgotten as if they had never existed. But this
—the original " Lights and Shadows"—is a work which
still lives, and is likely long to do so ;.and no wonder, for it
overflo..vs with eloquence and feeling, and such vivid de-
scriptions of external nature as no other living author has
equalled. As a piece of pathetic writing, the tale entitled
" Consumption" has all the tenderness and delicacy of
Mackenzie's " Laroche" and " Louisa Venoni."

SIR JOHN' BARROW AND IAVAII"

lAIPRESS:\IENT.

• ,
.; 1,, IC, i cor1;)',.:11).'01r1
cnapttr 1.1:- 1,c1.1 Anson, "n tb6
t! NfoicS.

T fr

Jan.
clFeet c:f a thirty-veers' laborious, weir
lc of a suLoidinatc exec.:wive -fiie
e modetatelc. exprided intelleel•
inference of his desk ; direcn7e
for ail time are to be found in clic: minute books,ortal,
Lords of the Admiralty ; and his elucidations of prim
ciples never extend beyond the mouldering, dus'-iii`ti,
dePosits which reward the labour of pioeon-hole auto
quarians. Tbis is especially manifest in the sec,!'ie
of 1 his `halite r, entitled " Manning the Nia.Y, ,e,
which the barbarous system of impressment is
fended as not only constitutional hut indispensable
ms
constitutional begause a judge decided it to be legal,
and indispensable because it has prevailed in the seai„
service from time immemorial" That on the firstbreOr
ing out of hostilities," gravely states Sir John E 4
row, " recourse must be had to the legal and constito,
tional measure of impressment, no doubt can be eater
tamed by any unprejudiced man ; without it the shirr,
of- war for a long: time must continue to repose °t,
their' shadows, while those of the enemy are rear
ing a rich harvest undisturbed. That it is both 1t
and constitutional has been so clearly shown by t,so
able lawyer, Judge. Foster, as not to be controverts
Now
cision of Blackstone, who in his comm a
entries, quoteseleo
de Judge 'Foster, is by no means satis'i
that the impressing ,of seamen is altogether so `learn'
e;
constitutional as Sir Min Barrow would haVe usbehe,„l
His words are " the power of impressini,r,segfaring
for the sea' service by the King's Commission b-1.
been a matter of some dispute, and submitted to Wttoi
great reluctance; though it bath been clearly she
learnedly shown by Sir Michael Foster, that At"d,
practice of impressing and granting powers to the .r)
miralty for that purpose is of very ancient date
whence he concludes it to be part 91. the common I°'o'
The difficulty arises from hence, that no statute ,
expressly declared this power to be in the Cre'i
though many of them very strongly imply it."
-A!/„;
in conclusion, Blackstone, .Compelled to admit
the right of. impressment. -only exists somewhere
implication, and that this somewhere is again by ill'
plication in the Crown ; " but that it is only defel!,
sible by public necessity, to which all
private cons'
derations must give way." InTressment then, es,
perly speaking, is neither feral nor 'constitutional, atti
withstanding the high authorities of Judge Fostera.°4,
Sir John, Barrow.. It, is .a,ineasure of extreme necess'''se
and when so resorted to, is legal in the same sel:l,,
that the taking of a loaf by a famishing person with,
out payment or the'consent of the owner, is not
nal, or the pulling down a house to preventliiir
spreading of fire is strictly legal. Necessity, inu're•
dual and civil, is above all law, and the attempt to.ei
concile it by a cool process of 1
-Abstract reason)er
in any case, to legal or constitutional forms, is Who
tinent and preposterous. But if it can he shown toot
impressment may be avoided w.thout detriment t 0
number of men required for ttte naval service---if Pe,
proved practicable and easy to hold out such inati-be
ments to seamen as to render the service on • board tni
Royal Navy as popular as it now is the contrary-le,
if, moreover, this can be done in consonance with tht
strictest regard to the rights, the liberties, and eve"
oe
pecuniary interests of the people
.Of this, counttli
then is impressment not only unconstitutional, hdeci o
direct invasion and violation of those rights guarant
to Englishmen by the. Charter of King John and or
Bill of Rights. All precedents drawn from the reficb
rence of a necessity perish with it ; and all acts "'"be,
invoke necessity in justification of their operation le,
come criminal when such necessity no. longer e%'sti
And sorely nothing short of the direct-State°necessjeg
can justify in the eyes of Englishmen the deprivid
a fellow-subject of his liberty, and, though sous
of no crime, putting his life in the extremest Pr,
against his will ? But to come to the matter.atte',
of-fact view of this question—the one
which will si)3o-ssr
est !Fad us to a right conclusion: Will Sir John vs
•liai
row pretend, that out of a population of thirty Int 0 •
of people, hundreds of thousands of whom are c0:11,j
stoutly in want of employment, one hundred thuns,
able-bodied men would not be found ready at any we,
merit -to join the Fleet, were the conditions of these,
vice such as any but slaves could be. brought to ,
eept ? Will he, or his masters at the
.Adinir2'tvt
il
undertake to affirm that the industry._ which works ,fre
mines—wilich conducts traffic on railways through
bowels of mountains—which leads the adventurer of
search of the means of subsistence to the wilds •
Canada—which embraces any toil rewarding o
the
tio
bourer and his children with bread ; would eschevi
service of the Sovereign and the State, if the con(:„.
tions of that service were not such as no free-born E;s
lishman could voluntarily accept without disgrace - •
is the degrading and bloody lash—the beggarly rennibi,
ration—and the want of all stimulus to a generous° ce
tion which leave the Lords of the Admiralty no reson°ol
in time of danger but impressment. Abolish corro
punishment, cherish the noble ambition of great mind
by throwing open the highest ranks and most covet
honours of the profession equally to the son of the
i
peasant and of the peer, make merit instead of couriid
and official connections, the sure road to wealth no,
distinction—treat seamen not as slaves, but as the lee
'notary servants of their Sovereign, and the brad
defenders of their country, and the sound
a boatswaia's whistle will bring together in e
week more volunteers than would serve to tngl
every ship in the British Navy, all ready to face tie
enemy in any part of the world. But whi!,e the pre,
sent system of naval administration lasts, no English)
man will serve in the Navy if he can avoid it ; 9:0
for the plain reason that the last thing an Englisha',„
will consent to lose is that liberty Wkiich is his
right. He will endure any toil, farce any -,
birht" ot
danger ;
he will not consent to be made b. slave. May snobs;
spirit ever actuate our countrymen. It is our stroogei
and noblest. bulwark against every enemy ; and Yetrat
is one of which Jacks in uffice have aboured -
centuries to deprive us.

re 1):-tir.f)11

tioti to the rooti