The Sun.
London, England, 1839-01-16 00:00:00

THE CANADIAN PRISONERS'

QUEEN'S BENCH.-(THIS DAY•)

The Court was by no means so crowded this morning
during the two previous days. The Judges took their seats 8
a few minutes past ten o'clock, and
Lord DENMAN said that for the information of the bar,
to
would state that they would give the whole of neat week
new trials, and what remained of the term to motions and t
peremptory paper.
The ATTORNEY-GENERAL said that there was the cased

Stockdale v. Hansard, and that only one dayVwas alloy
for the special paper.
Lord DENMAN said, if the Court came to it on Friday the/
would put off the Crown paper and finish it on 'Saturday.
The ATTORNEY-GENERAL said the case would occrtbe
great deal of time, and with all his anxiety to husban _to
time of the Court he could not finish his argument in less n'
two days.
Lord DENMAN said they would say nothing more on Shij
subject at present. Now, then, call on another return.
..A
Mr. Hite—l propose to read the return to the writ Si""
out by Randol Wixon.
The officer then proceeded to read the return. vs,
Mr. HlLL—Read the date of the indictment, if it is g
and the condition of the party.
The officer then read the date of the indictment, which op
at a Special Session of oyer and terminer, held at Toronto
0,
Thursday, the Bth of March, before John Beverley Rehltel
Chief Justice, and others ; that Randol Wixon was in°
for the crime of high treason, and before arraignment he fi;s.
tioned the Court, acknowledging his guilt, and that his ply.
ment was commuted to 14 years' transportation to Van libel
men's Land, commencing from the date of his arrival ie
colony.
red'
Mr. HILL—It now becomes my duty to move, on the die
ing of this return, that the prisoner Randol Wixon bie
charged. My Lords, what I shall address to your Lornssof
on this motion will be in effect a reply to the observationoch
my Learned Friend on the case of Leonard Watson, with 'et.
other matter, and it will be very short, as results froni dol
difference in the two cases of Leonard Watson and 11,811 It
Wixon, the return to whose writ has just been rend
must always be a matter of pain to me, when the novo
which I have been compelled to conduct a case is pain or
the feelings of any Learned Gentlemen who are so
posed to me; and, my Lords, this is the rnereeyel
when after a very careful consideration of , bits
word that fell from me in addressing your Lords
I cannot feel myself permitted to retract any one observ_sos
which I then and now thought it my duty to make. I C3;101
see what possible object has been attained, except that ractiop
husbanding the time of the Court by the preliminary ohiee .04
which was made by my Learned Friend. My Learned rribieli
told your Lordships that the authorities on that point
he brought before you were contradictory. ,My Lords, °beg
years there has been nothing like a contradiction-4149t 1
I,d,
,
like the slightest interference with the practice; and
style
before I leave this topic, as I trust for ever, t° old
that my Learned Friend eas led into an inacer ribs
when he said that in 1758 it was only a majority
„e est
Judges who were of opinion that the law as it then stoon,be
powered them to grant writs at common-law in vacation 'OO
My Lords, it was all the Judges ; they were unanimonos
that point, but there was a difference of opinion on anot' beS
point which was this—whether that had always been tb!,,ei
and upon that there was a difference of opinion. But that
the law in 1759, was the unanimous resolution of all the 4,1;00
present, in number 10. As your Lordships said, Mr. jitjll
Foster was strongly of that opinion ; and Lord Mansfieitit
other of the twelve Judges, gave his opinion in favour of oick,
the House of Lords. He was supported by Lord flard,, fel
and the House acted on it by throwing out the Bill whiece
then proposed, as being unnecessary to the justice of theopet
My Lords, in answer to some observations which had
or
from me on the monstrous hardship of supposing againn or
prisoners that it was only necessary for somebody WP:e,.Ol
pened to have the custody of them—obtain it how he may
he who he may—he might be the most infamous of trio V
be might be a beggar, or a person against whom it err
a mockery, as Mr. Justice Foster says, to suppose that no,
could be any remedy by bringing an action for false 'lbil
sonment ; yet my Learned Friend thinks to get rid °VP
that hardship by calmly telling me that all these men :01%
it is proposed to send to the other side of the ,°0
may bring an action against Mr. Batchelor for ,s
imprisonment. Mr. Batchelor may be a most respectableo sol
I know nothing against him, 1 know nothing of hitt?
the rule would be the same if he was a rot of
whom nobody would believe either upon his staterneer ,e 0 •
upon his oath, if he was put to it—if ho was Po
convicted of perjury, or the lowest or most infanieu 001 mankind. My Lords, this is no remedy at all. I sleseile4
my own opinion ; and I would cite to you, if I could ree"
the observations of that great constitutional lawyer, or
Justice Foster, on that subject. He, using the argurnenw
cordirg to him, of the frivolous and illusory nature of tsscet
medy, as the ground on which he believed there must he 6014
mears of bringing the whole facts of the case before the njot
ifr
and enabling the Court to judge, not on unauthorised angle
way responsible statements, hut upon evidence in sso.
way or other given upon oath, on which your LordsiPO4
judge. My Lords, the penal consequences to the erisotse,
are sufficiently high_ I Lint a•-•skurdte them by bgehiptl
sis. But suppose this power which my Learned Friend rtd,
is inherent in the Legislature of the Colonies, hadbeen exe„tlot
not to send the prisoners here on their way to transper`t;teli
to a penal Colony, but to send them here to be execsr
why may not the Colony do that if it can do the other•
pose your Lorships were sitting there in judgment undertco
circumstances on which two men sat on these benehesort
years ago--I mean Garside and his companion, who,ers'
guilty of a murder at Chester, and were sent up for r" cet
lion. Suppose your Lordships were called on to pronoti:oie
rule, consigning those men, under some such law of the orcl,
,
nies, to execution, I ask, would it be possible for your of
ships to sit there and pronounce a rule for the executletite,
those men upon that return—upon that unauthorised 60is0t
ment of a person acting as the prison-keeper of those c'
right or wrong, as my Learned Friend the Attorneys' it
ral contends, and upon facts only to be learned from that
statement himself—of matters of which he cannot be °V
zant—of matters of which he must necessarily be iglinLrav-gb
My Lords, the legal consequences are the same, altler
somewhat less appalling in the one case than in the °t"-si
have stated. But suppose all the other difficulties in tbe_,
of an action for false imprisonment have been got rid of;:,,tel
The ATTORNEY-GENERAL—I am sure my Learned rr"
r,
will forgive me for interposing. I wish to ask him, is be $
guing this upon the return ? iye
Mr. HILL—I don't know why my Learned Friend ass-feet
that question. I don't think ]shave travelled out of the opt 4
corners of the return—l have merely used such argottitli
as occurred to me to show how important it is thate 'el
the little light my Learned Friend has let in bie
this case, confining it to the return, your Lords
v
should look at it with eyes of the strictest scrutiny, and in el
of it by the rules of the strictest legal scrutiny. My Lear:nd
Friend says there is no hardship to these men in being h°; io
by the return. My Learned Friend says that if they Some
exile they can have an action for false imprisonment. '''
p.
of them, he says, are convicted of treason ; but if they be Id
victed of treason, will my Learned Friend tell you how two
are to maintain an action? The authorities and the ste'so
invalidate the whole, if these men be convicted of treason. .
toe
says my Learned Friend, using the very terms of the sect
in answer to the points of objection I sent him.
Sir F. POLLOCK-That was a private commutication. ,0
Mr. HILL—I beg my Learned Friend's parlon ; am sine
he means it kindly, but they are not a privatecommunicatien
they were given under the direction of the Court. If, the?'
some of these men are convicted, or to be 7eld in a state Olt'
velem to conviction, let my Learned Fried tell me how I
to maintain an action. But, as I said bsOre, the man agalest
whom the action is brought may be a bggar, or, as Mr. .111;.;
tice Foster says, not worth a groat. .le may die, the OD°
may abate, there may never be a mode of joining issue,
coming before a Jury to try th.: real facts of the case.
My Lords, nothing is so cruel a mrekery—entle
excites °id"
feeling of indignation of my mind so strongly as to be t°'.
take your remedy, and the morrent we come to examine it it
turns out to be a mockery and a delusion. Better say at once
submit to the arm of power—don't think b better your condo'
tion—suffer, patience is your only remed)--bet ter say this tll2ll
point to something which only excites, lupes the more cruellf,
to disappoint them. My Lords. I was agood deal astonish'
n
to find from my Learned Friends, that I
,ad been in utter MIP
take in supposing that the statute of the all Geo. IV. had any
bearing, in so far as it is an enactment, nen this case. I der'. .''
find the slightest trace of any such answe to my objections in
the communication of my Learned Frind. The commoni"
cation says, when they are convicted, t in a state espies'
lent to it—..
The ATTORNEY-GENERAL—If my Leaned Friend make%
any use of that communication, it should st be read.
Mr. Elll.L—My Lords, I shall read it a instantly. These
objections were furnished to my Learn( Friend after I re-
ceived your Lordships' direction. The fit is that there is no
conviction. What is my Learned Friend'answer, the sth of
George IV?
The ATTORNEY GENERAL—There is I reference to the
sth of George IV.
Mr. I-Itee—The Court will see what retence there is when
I read the whole. Ist objection—there is i conviction. An-
swer. There is a conviction, or what is equilent to a conviction.
Is that a repudiation of the sth of Geon IV ? 2d. That
theres is no judgment to warrant transpoation. The same
asto
judgment. Now, the argument oft)? Learned Friend
was—

IThe ATTORNEY-GENERAL—You had later read the whole.
Mr. HILL—.I beg my Learned Frierwould allow me to
take my own course, and if I comment ton these answers as
Igo along, surely I have a right to do 1 With great de-
ference to my Learned Frier d and the Ott, I cannot submit
to conduct the case if I am to be put in arness, and driven
by my opponent with his bit and reins my mouth. 2d.
That there is no judgment to want transportation.
The answer is the same. 3d. That a Governors had
no legal powers to warrant transportab. Ansvrer_The
Governor had legal power to make tisportation a con-
dition of pardon. 4th, That the transptation was not le-
gally conducted. Answer—lt was, and It the prisoners are
here in the execution of their sentence. h. That the gaoler
had no warrant, authorising him to rece and detain the
prisoners. Answer—No warrant was 'weary for the gaoler
6th. That the various documents referreo in the return are
not set out with sufficient particularity. inswer—They are.
And this is what my Learned Friend cakiving me informa-
tion. 7tb. That the averments contain in the return are
unauthorised, and that the return is bsfor vagueness and
generality. Answer—They are sufficily set out. And
then my Learned Friend adds, of I own free grace,
We contend, with respect to the nine, t they are liable t