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

THE SUN, LONDON, WEDNESDA Y, JANUARY 23, r 39.

THE CA NACANADIAN PRISONERS.

• -

CiUt:EN'S BLNCH%-(THIS DAY.)

The Court was again crowded in the expectation that the
Canadian prisoners would be brought up, but they were disap.
pointed as only one, Leonard Watson, whose case is at pre-
sent the only one before the Court, was brought up in a
private manner.
The ATTORNEY-GENERAL said he had to show cause against
a rule'obtained 6y •Fs I earr ed Friend Mr. Hill, who had la-
boured at great length to show that the return to the writ of
habeas corpus might be contradicted, but he offered no affi-
davit in order to contradict any one single part of any one of
the twelve returns. With respect to those who had been
pardoned on conditions, he did not for a moment attempt to
deny that they bad been indicted for high treason; that they
had petitioned, confessing their guilt and pleading penitence.
He did not attempt to deny that they had prayed' for pardon,
and that they were now in England, necessarily, on their
way to transportation in pursuance of that pardon.
With respect to the three who had been sentenced to death
be made no attempt to show that they had not been regularly
tried and sentenced, and that they were not now in this coun-
.

try on their way in the execution of the conditions attached to
the pardon which had -been granted to them. But a grave
complaint is made that there is an allegation in the return,
which is untrue. He (the Attorney-General) would nyt for
one moment question the jurisdiction of their Lordships—he
concurred most heartily in what had fallen from his Learned
Friend on that point, and he prayed most earnestly that that
jurisdiction would be most rigorously and jealously exercised.
He would go further and say that for the remedy for the li.
berty of the subject, their Lordships not only had the power to
inquire into the truth of a return, in which it was suggested
there was fraud, but he would say that the Court bad a clear

jurisdiction to quash a return on the ground of fraud. That
was the safeguard which the law allowed for the liberty of the
subject. A return made knowingly fraudulent was a contempt
of Court, and their Lordships had a right to quash it. But
according to all the cases even down to that of Swallows,
their might be a confession and avoidance, but still the return

'emained." conclusive. His Learned Friend had supposed that L.
- • - •

Watson might have obtained a free pardon, and he asked tri-
umphantly why, then, should he be sent for life to a penal
colony ? Had there been an affidavit setting forth that Leo-
nard Watson had obtained a free pardon, their Lordships
would of course have discharged him. There was no such
affidavit, and notwithstanding Leonard Watson was still in
custody, the liberty of the subject was not in that deplorable
condition which his Learned Friend represented it to be. The
rule called upon Mr. Batchelor to show cause why a writ of
attachment should not issue against him, for making a false
return to a writ of habeas corpus issued by a Judge of that
Court. It was obtained upon the single affidavit of a Mr.
Waller, a clerk to the solicitors for the prisoners. It set forth
that on the 2911 of December he had received from Mr. Bat-
chelor a copy of Sir John Colborne's warrant, which he said
was the only document under which he held the prisoners in
custody—that Mr. Batchelor told him that be purposed to
make a return to the writ setting forth the warrant—that he
saw the original return, which merely set out the warrant,
which warrant contained the name of Leonard Watson in one
place only, and that it was not referred to subsequently. That
was the ground, the only ground from which his Learned Friend
drew the inference that Mr. Batchelor well knew that the
name of Leonard Watson was not in the warrant—that the
warrant had been wilfully kept from the view of the Court, in
order to conceal that fraud—that he knew he had no au-

thority to detain him in custody, and that be made the return
with a full knowledge that he was committing a fraud. His
Learned Friend had ii..iauated that Leona:d Watson
was an innocent man—that he was now in England under
the most grossly tyrannical orders, and therefore he craved the
interference of the Court. He (the Attorney-General) would
be able to show that Leonard Watson bad been in no possible
degree prejudiced—that he was not in the slightest degree ag-
grieved ; be would show that not the slightest degree of blame
attached to Mr. Batchelor; be would show that the omission
of Leonard Watson's name was a mere clerical error, and that
it was not known until after the return was put upon the file of
the Court. For that purpose be would begin with the affi-
davit of Samuel Jasper Blunt, of the Colonial-office, Downing-
street. That affidavit set forth the pardon granted to Leonard
Watson and others, which was then in the Colonial-office—

that the seal affixed to that pardon was the Great Seal of
Upper Canada, and that the writing attached to it was the
handwriting of the Lieutenant-Governor, Sir George Arthur.
. .

It first recited that Leonard Watson, of the Home
District of York, had been legally indicted before
the Chief Justice of the Province for high treason,
that before his arraignment he had humbly petitioned, con-
fessing his guilt, pleading his penitence, and praying for
pardon. It also set forth, the conditions under which the

Governor had granted her Majesty's pardon, according to the
powers vested in him, which were transportation for life to the
penal settlement of Van Diemen's Land, and that they were
now in England on their way to such penal colony. He ap-
prehended that was abundant evidence of the proceeding enu-
merated. The next statement was that with respect to the
execution of the sentence, or conditional pardon with respect
to Leonard Watson ; and with respect to that Mr. Blount
said that on the 6th of November, 1838, a despatch was re-
ceived by Lord Glenelg from Sir J. Colborne, dated October
1838, acquainting his Lordship that some of the traitors con-
cerned in the rebellion would be forthwith removed to Eng-
land for the purpose of transportation, together with the
convicts tried and convicted for the insurrection in Niagara and
the Western Districts. In another despatch of the same date
was transmitted a list of certain convicts who had been par-
doned upon condition, and such list contained the name of
Leonard Watson, together with 24 others, whose names were
mentioned in the warrant of Sir J. Colborne, addressed to Digby
Morton, the master of the barque Captain Ross, and that
Leonard Watson was one of the prisoners, described as trans-
ported under the Provincial Act for life. There could, there-
fore, be no doubt of Watson being transported on condition ;
and that lie was sent to Quebec, and from thence to England,
in order to carry that sentence into execution. There was,
then, the affidavit of Win. Batchelor, the keeper or the gaol
of Liverpool, and he said that, on the 17th of December, he
received from Digby Morton, the commander of the barque
Captain Ross, the bodies of thirty-four persons, whom he
stated were state prisoners, brought by him to England from
Canada, with a view to be transported. That he received
them into his custody by the direction of the Mayor of Liver-
pool, and the other Magistrates of that town ; that the names
of the prisoners were called over by Captain Morton ; and
that among them was Leonard Watson. Mr. Batchelor had,
therefore, no reason to doubt that Watson had been regularly
sent there, or that there was any distinction between his case
and that of the other thirty-three prisoners. That he bad
no warrant or other document delivered to him at the
time, but that in the course of the day be received a war-
rant from the Town-clerk, purporting to be under the seal of
Sir John Colborne, and the seal of the province of Lower
Canada. He left that warrant with the Town-clerk, but had
occasionally possession of it, and that he finally received it
from the Town-clerk the night before he came to London with
the prisoners ; and that he brought the warrant, the writ of
habeas corpus, and the other documents, with the prisoners to
London on the 9th of January, with directions to keep the
prisoners in safe custody, and to deliver the documents to the
agents of the Town-clerk of Liverpool on his arrival in Lon-
don; that he lodged the prisoners in Newgate, and delivered
the papers according to his instructions; that on the 14th of
January he signed certain returns, which he understood had
been prepared by Counsel, and that he was not aware until
such returns had been made and filed, that the name of Leo-
nard Watson did not occur in each of the places among the
other prisoners in the warrant of Sir John Colborne, or that
his case differed from those of the other prisoners ; that he
was fully aware that the solicitors for the prisoners were
in possession of a copy of the warrant, and that• he had
no intention whatever of stating that anything was in
the warrant that was not. Mr. Batchelor further stated
that he believed all the matters stated by him were
true, with the exception of that part with respect to L.
Wataon's case, which stated that the warrant of Sir
John Colborne directed the captain of the ship to bring him
into England. Mr. Betel elm- further stated that the return
was not withdrawn, end another substituted, with the view of
deceiving the Court ; so that, at the time Mr. Batchelor signed
the return, contrary to the inference of Mr. Hill, he ware-whole,
ignoraet that the name of L. Watson had not occurred in
every part of, the warrant. The reason why the return was
withdrawn was, that it was false in fact, arid bad in point of
law. Mr. Batchelor stated that he Leld the prisoners by vir-
tue of Sir John Colborne's warrant. That was not the case,
because its virtue was exhausted upon the arrival of the priso-
ners in England ; and if lie had made a return that he held
them by that warrant, it would have been discharged. There
was then the affidavit of Mr. Radcliffe, the clerk to Messrs.
Adlington and Gregory, the ao-ents for the Town-clerk of
Liverpool, who steed the receipts of the draft returns, toge-
ther with the writs of habeas corpus, with directions to show
them to Mr. Maule, and to consent to any alterations that he
might desire, which should be approved of by Mr. Wightman
on behalf of the Governor. Mr. Radcliffe went on to say,
that those returns were laid before Mr. Maule, and that a re-
turn to the writ for bringing
up the body of Leonard Watson
was prepared from a draft applicable to his case and
those of the other prisoners, which, it was presumed,
were alike, and Mr. Batchelor signed those returns. Mr.
Blunt also stated that he verily
believed that the name of
Leonard Watson was omitted in the mandatory part by a
clerical mistake, and Mr. Maule, in his affidavit made a simi-
lar statement. Mr. Maule stated that he was not at first
aware that the name of Leonard Watson was only mentioned
in the reciting part. A draft return was prepared by counsel
fur the Crown in the case of Finlay Malcolm and Robert
Grant, and they were used as precedents for the rest ; the
drafts of the other returns were copied from them, and the
names of the other prisoners inserted in them, they being
varied only by stating the Courts in which the indictments
were prepared and the conditions of the respective pardons,
where there was any difference.
The affidavit further stated
that such drafts were submitted to the counsel for the Crown;
that it did not occur to them that the case of Leonard
Watson differed from those of the other prisoners, and that
it did not appear to them
necessary to alter the tem
of the return in Watson's case in that part where reference
made to the warrant; and that there wasno intention of
stating anything es being in the warrant which was not there.
That the draft return of Ilateheler was submitted to Counsel
for the Crown, who considered it incorrect, and suggested
another return, setting forth the circumstances under which
the prisoners, including Watson, were brought to England ;
that it seemed to them unnecessary to state all the documents
at length, anel that there wits np intention of concealing any-
thing, or at 411 iirP.ii4cliPg the prisong. The AttoTney -
General said, upon the affidavits Which he had thus read, he
submitted the explanation was fully satisfactory. He ask' d
had the slightest injury been done to Leonard Watson? Had

h not been indicted for high treason ? Had not a bill of in-
dictment been found against him? Had he not petitioned for
mercy, cGilf,,:sinq his crime ? Was he nit pardoned ? Was it not

the intention of t-e.: Governor, that he should be sent to Vae Die.
men's Land ? Did not the warrant of Sir J. Colborne, as well
as the despatches of Sir J. Arthur, show that it was the
intention of Government that this sentence should be carried
into execution ? Was Watson at all aggrieved by the clerical
error? According to the solemn decision of the Court, pro-
nounced after long and anxious deliberation, the return would
have been sufficient, stating the ordinance, the indictment, the
petition, the pardon—on condition of transportatiin—and that
the prisoner was delivered to Captain Morton, to be brought
to England in execution cf the sentence. Had not Mr.
Batchelor been completely cleared? Had not he acted
throughout with the most perfect good faith? The writ of
habeas corpus having been served upon him, he communi-
cated with the Town-clerk of Liverpool, his legal adviser, who
prepared the return which he brought to London, and sub-
mitted to the agent of the Town-clerk. That return was
fJund by the Crown Counsel to be incorrect, and another
was, by their advice, prepared, which Mr. Batchelor
rlow swore he believed to be in all respects true, except in the
particular regarding the name of Watson being omitted in the
mandatory part of Sir J. Colborne's warrant, which warrant
the Court had bid to be quite unnecessary. Was any blame
to be imputed to Mr. Nlaule ? None. He had sent all do-
cuments to Mr. Wightman, who for ten years had been
Counsel for the Treasury, and was not aware, or he would have
called to that Learned Counsel': attention that the name of
L. Watson was omitted in part of the warrant. Was it necessary,
he (the Attorney-General) should vindicate his Learned Friend
Mr. Wightman; and could it be said that it was his duty,
every time the names of.the six and twenty prisoners occurred,
to see that every one was included? Was it not enough that
he drew two correct drafts for two "different classes of returns?

He (the Attorney7General).quite acceded to the doctrine of
his Learned Friend Mr. Hill, that if any person advised a
gaoler to make an erroneous return, be his station however
high—whether at the bar or in the state—be he the Prime
Minister himself, it would be the jurisdiction and the duty of
the Court to sentence him to punishment. He declared upon
his honour, and was ready to make affidavit of the fact, that
befor.: Mr. Hill made his motion, he was ignorant that the
name of Leonard Watson did not occur in the mandatory
part of the warrant. He avowed that he superintended
these returns ; that he saw the drafts. which were used and
approved of them ; and, whatever censure might be justly at-
tached to those returns might strictly be pronounced against
him; but could it be said that, when there were prisoners who
had either been found guilty or confessed themselves guilty of
high treason, whose lives had been spared, and who bad been
sentenced to transportation, and were in custody of one of her
Majesty's gaolers, that it shall depend upon the return which
such gaoler himself may make to the writ of habeas corpus
whether those prisoners should be discharged or suffer the
sentence of the law ? Yet here were many prisoners in that
position • some of them, as in the case of L. Watson, having
been taken in arms against her Majesty—to whom the mercy
of the Crown had been extended, on condition of a certain
term of transportation ; and it was now asked that they should
be discharged and suffered to return to Canada again to excite
rebellion against the Queen, merely because a gaoler made an
insufficient return. Laws are made for the protection of the
innocent ; but they were not less made for the punishment of
the guilty; and it would be a mockery to say that per-
sons were to escape entirely from punishment be-
cause_ a gaoler was incompetent to make a suffi-
cient return. A return, in fact, which was not prepared
by the gaoleriliimself, but by the Town-clerk of Liverpool, and
which was found to be incorrect in point of fact and invalid in
point of law. Was it not then the duty of the Counsel for
the Crown to see that such a return was nut made, and that a
proper return was presented. He (the Attorney-General)
would again say that it was the duty of the Court jealously to
watch such return, and if any material fact was omitted in one
of them to quash that return. There was abundant remedy
for any person who was lawfully imprisoned, for if the return
to the writ of habeas corpus was incorrect. he might upon
affidavit show that was incorrect, and the return would be
Quashed, and he would thus recover his liberty. This course
was open to the meanest of the Queen's subjects ; but it
was the duty of her Majesty's Counsel to see that the law
was not invaded and destroyed. Ha would now state
that when this question was disposed of he should move
that the return be amended, for he did not wish it to
remain a single moment on the files of the Court, with even
an immaterial error in point of fact, and without referring to
the warrant, would merely frame the return, so as to state that
Leonard Watson having been transported from Upper Canada
to Van Diemen's Land, was, in execution of that sentence,
brought to England, and placed .in custody of the gaoler of
Liverpool. The return would then be strictly and literally
true and correct ; if any advantage could be taken of it in its

amended form, it would be open-to the person to except to it
when it was made, according to the very letter, conformable
to the truth. He hoped that this explanation, which he
thought due to their Lordships and the public, would be per-
fectly satisfactory, and that nothing had been done which they
ought not to have done in the discharge of their public duty.
The SOLICITOR-GENERAL had a very few words to add to
the statement of his Learned Friend the Attorney- General, for
the statement in the affidavits went far to exhaust the subject.
The only question really material was, whether or not Leonard
Watson had been in any respect injured by what had been
done. How had he been injured ? Suppose the return, in-
stead of stating the warrant from Sir John Colborne had stated
nothing of the sort, but had stated simply the quasi conviction
in Upper Canada, the transfer of the prisoners to Lower
Canada, and the subsequent removal of them from Lower
Canada, had omitted the warrant altogether, did it not neces-
sarily follow that the gaoler held him by lawful authority ?
If Leonard Watson had not been injurei, then the question
was, whether Mr. Batchelor had duly discharged his duty.
He stated that he bad received the prisoner by direction of the
Mayor and Magistrates of Liverpool—that the names were
called over, and that amongst them was the name of Leonard
Watson. In the course of the same day he received a warrant
under the hands of Sir John Colborne, which was placed in the
possession generally of the Town-clerk for the purpose of
communicating with the Government. Having thus put him-
self in communication with the Counsel for the Crown, the re-
sult of the affidavits was that he produced that which he in-
tended to have made his return, simply that he had received
the prisoners by virtue of in warrant of which he annexed a
copy, and detained them by virtue of that warrant.' If the legal
authorities of the Crown had permitted him to make such return
they would have justly incurred censure for the course which
they took ; for to permit him to say that he held the prison-
ers by virtue of that warrant would not only have been incor-
rect in point of law, but false in fact. He received them be-
cause they were necessarily in transitu from Upper Canada to
New South Wales, and because of necessity they should be
confined somewhere, and the gaol of Liverpool happened to be
the most convenient place. The returns were framed stating the
facts, according to their very truth in every particular as it was
supposed, and according to the very truth in every partigilar ex•
cept the error of the omission of the name of Leonard Watson,
which arose from the circumstances already stated. He would
not occupy the time of the Court by any further observati tns,
except that he felt himself bound in conformity with what had
been said by the Attorney-General, to state that in concur-
re oi with him, he 0-aye his full sanction to the course pursued,
and tcok his full share' of the responsibility ; and he would
also state, that not only until Mr. Hill made his motion on
Monday, but until he was near his close, he had not the most
distant conception that any error existed. He trusted their
Lordships would ne of opinion, not merely that there was no
error on the part of Mr. Batchelor, but none on the part of

any one else.
Sir F. Poatocx would trouble their Lordships very
shortly. He apprehended, as far as the mere ques-
tion of attachment was concerned, the moment it
turned cut that on the part of Mr. Batchelor there
was no possible intention of misleading the Court,
that as a ministerial officer he had placed himself in commu-
nication with those whose duty it was to make the return, and
his to adopt it—the moment that appeared there was end r f
this rule. He certainly concurred in the view which his
Learned Friend the Attorney-General had taken, not merely
that it became the Court by every possible form to exercise
the most vigilant jealousy with regard to
.any return that
might be made to the writ of habeas corpus, but further to
express his coneurrenceat a member of the bar. He was ccr-
taietly not quite of so many years' standing as his Learned
Friend, but nearly so.
The ATTORNEY GENERAL--We were called the same day.
—( Laughter.)
Sir F. Pueeoce felt bound to express his concurrence pub-
licly that there was no foundation for any imputation on the
law or the practice with respect to writs of habeas corpus; that
the subject had no remedy, and that any person of no credit
might make a return, and carry away a person out of the juris-
diction of the Court, and that there are no means known to
the law by which flagrant falsehood may be instantly detected
and punished. That it might be detected and punished the
present proceeding abundantly showed. Any person who was
injured by the fraud or falsehood of a return might imme-
diately have redress by calling on your Lordships to quash the
return and discharge the prisoners. He should have expected
his Learned Friend, after the able and eloquent appeal which
he had made on the unhappy condition of these persons, that
there would have been some affida'it from some one or all of
them, showing that there was no toundationeitherfor the fact of
their crime as alleged, or the granting of the pardon upon con-
dition, or of the fact of having been convicted and sentenced.
Mr. Roebuck had suggested that one of them did not know
he was pardoned. If there were any foundation for that sug-
gestion, he (Sir F. Pollock) marvelled that there had been
no intimation of it in any affidavit. But the application was
confined to this single point, that the name of L. Watson,
which occurred in the first instance, which occurred again by
implication, but which was omitted by mistake in the rest of the
warrant, and therefore their Lordships ought to grant an at-
tachment against the gaoler who made the return. It was
impossible not to admit that there had been blame some where.
Those who prepared the warrant ought to have taken care
that the names were correctly repeated, but did any blame
attach to any person in this country ? It could not be known
here under what circumstancs the warrant issued, or how the
party making it could exculpate himself, but he asked their
Lordships, did any blame attach to any individual connected
pith the discharge of a public duty in assisting to prepare this
return ? Surely, when a document came under the Great
Seal of the Colony, containiag the whole of the names in
the earlier part of it, scarcely any one would be expected
to anticipate that a name should be omitted in any other
part of the warrant, but certainly it turned out to be so.
He had then the writ before him, and it commanded the gaoler
to bring up the body of Wotan. Jt was at once sup-
posed tlrae it could Mean only Leonard Watson, and therefore
at once be was brought up. Was there anything like con-
cealment in that. They brought up Leonard Watson, when
Weston was called for, because he was the only one to
whom they thought it could apply. It would not for a motneet

be contended that a gaoler was to make out a return himself, 1
without having communicatian with the--

,se w

_ he the praetice the gz,,,eler r.i,ld
a return as would eter;re the ‘ll-,enterge
of a prisoner at any time. The gaoler communicated with tee
Town-clerk of Liverpool, who advised a certain return ; he
came to London, and as was his duty, he laid the papers before
the solicitors for the Crown, and a return was made,
which he signed, at the time not one of them know-
ing that the name of Leonard Watson was omitted
in any part of the warrant. There was a reason, and a good
one, why that document was not set rut, it referred to many
other documents which were important—it was not; the indict-
ment was an inii:ortant document to set forth, but there was
not a copy of it in this country—the only thing known of it
was contained in the pardon. All parties were perfectly un-
aware of the omission of the name of L. Watson in any part of
the document, until the motion of his Learned Friend Mr.
Hill ; the Counsel for the Crown, were puzzled to find out
why it was that the case of L. Watson had been selected—
they thought it was peculiar only from the writ calling for
Weston, and his name was Watson. Such being the ease,
could it be said that the gaoler was in fault. If the
return was faulty, he prayed the Court to amend it
and give Watson all the benefit he could derive from
such an alteration, and let him have it instanter. Batchelor
said that he had acted in good faith, and he proved it by his
conduct. He kept back no document; he gave a copy of the
only document upon which he acted, and he stated explicitly
that it was the only document he had in his possession. That
document, the warrant, could not in any sense be considered a
legal document. It was a public document, sealed with the
great seal of the province, and countersigned by a public
officer. It gave directions, hut in no sense could it be con-
sidered a legal document. It gave directions, however, that
were binding on all public officers to whom it was either
directed, or into whose possession it came. It was the duty
of the Commander of the barque, and of the gaoler of Liver-
pool, to receive the prisoners; and it would have placed either
of them in a situation of great peril, had they, finding the
name of L. Watson in the first part of the document, and, by
mistake, omitted in the mandatory part—it would have placed
them in extreme peril, had they taken it upon themselves to
discharge him out of custody. He trusted that the rule would
be discharged. It, at all events, would have one good, and a
most important, effect. It would satisfy the country and the
whole world• that the imputations upon the great bul-
wark of our liberties, which had been thrown out
by his Learned Friends, were totally wishout foundation.
It was proved that the Court not only possessed the
power instantly to review a return, if thete was suffi-
cient reason to suppose that there was the slightest mala
fides in the making of it ; that Court would instantly open
the door of inquiry, and would not shut it until the minds of
their Lordships were perfectly satisfied as to the truth of all
its allee'ations, if not the Court would instantly quash it.
Mr. 1Y the length to which the
arguments had gone be felt it incumbent upon him to address a
few observations to the Court. If the gaoler had falsified the
document he had committed one of the most stupid pieces of
iniquity that he had ever heard of, because it was known from
himself that was the only document which he had—
the only document upon which he was acting, and
of which he had given a copy to the other side.
He thought it would have been mere candid if the other side
had told them that there was a mistake in the returns, on ac-
count of the name of Leonard Watson not being contained in
the mandatory part of it. Their attention would then have
been drawn to the subject, and the mistake would have been
remedied. Had the gaoler came up with a return prepared,
he had no interest in the matter, for it was immaterial to him
whether the prisoner was discharged or not; not so with the
Crown— to it the matter was of the greatest moment. It ap-
peared, from the statement of the Attorney-General, that the
return was not only insufficient, but false in fact, for the war
rant was good for nothing the moment the prisoners landed
at Liverpool. Now, as he had been greatly instrumental in draw-
ing up these returns, he was willing to take the full responsibility
that would fall upon him. In drawing up the return the
Crown bad gone to far greater length than it was hound to
do, and he thought he should ba able clearly to show the
Court that it was in one of the most immaterial parts where
the mistake had been committed. It was clear that the error
was merely clerical, arising probably from the disturbed
state of Canada. Then came the question, was the mistake
of any importance to the prisoner ? Certainly not. Was it
necessary to set out the warrant clearly ? Not if the case of
the King v. Caddis, and that of exparte Cain was law.
Would the Court have discharged Leonard Watson, in con-
sequence of the omission ? Certainly not. And, therefore,
that man had lost nothing by the omission. It
was not necessary to state more than that the man
was delivered to Morton to be conveyed to England in pur-
suance of the sentence, and that had been done in the present
instance. If the slightest detriment had taken place with re-
spect to Watson, he ought to have the benefit of it, but he
greatly mistook the judgment of the Court if such was their
opinion. Unless it was made out that this was a malicious at-
tempt to keep Leonard Watson in custody, he trusted the
Court would have no hesitation in discharging the rule. It
was greatly to be regretted that any mistake had occurred,
but it was clear it was not a wilful one, and had done no
injury to the party with respect to whom it was made.
Mr. HILL then rose to support the rule. His Learned
Friend (the Attorney- General) had said that it would be sa-
tisfactory to the Court and the public that there should be a
complete admission made by the Counsel for the Crown, that
there was a remedy for a party in prison who was brought be-
fore the Court under a writ of Habeas Corpus, by means of
affidavits, to smpeach the returns so made upon that writ.
The ATTORNEY-GENERAL—You go a little too far.
Mr. HILL hoped that his Learned Friend was not going
to narrow and cut down the admission. Because, Ist, it was
an admission made broadly, openly, and in good faith, for if
it was not the Counsel for the Crown could not congratulate
themselves upon it as they had done. He joined in the con-
gratulation, because it would be some reparation to the public
for the time the case had occupied, that such an admission had
been drawn from his Learned Friends on the other side. In
the first instance, they had referred him to a remedy by an ac-
tion for a false return, as the only mode that could be
adopted, and he had wasted much time in endeavouring
to show that the proposed remedy added injury to in-
sult, and mockery to injustice. He was, however, glad
. to have the high authority of the law officers of the Crown
that there was another remedy ; and he could not but congra-
tulate them on the discovery they had made in their legal
voyage into the law of Habeas Corpus, as well as that relating
to the liberty of the subject. Now, with respect to the rule
before the Court he denied the doctrine of his Learned Friends
that the first; and only question was, whether an error had
been committed ; and if there had, whether that error affected
the interests of Leonard Watson. He utterly denied that
that was the only question before their Lordships. It was
only one of the many that might be brought forward.
It was laid down in all the law books that if a
prisoner had been found guilty of a capital offence,
sentenced to be hanged and ordered by the judge for execu-
tion ; that if that man was executed by any other person and
under any other authority than the sheriff appointed to carry
the sentence into execution, that that man was murdered, and
his executioner might be found guilty of murder, and punished
as a murderer. Now, :according to his Learned Friend's mode
of viewing the case, there could be no difference. He would
say to the man who was to be executed, whether he would be
hung by the regular executioner or by a volunteer, because he
would say the man could only be hung, and that the
'volunteer executioner might be as great an adept in
' fixing the halter, or putting the knot under the left ear, as the
man who was appointed to carry the sentence into execution.
But the law declared the voluntary executioner to be a
derer. The first question to be considered was wln.'fler
the
officers of the Court had done their duty
the course of
public justice? Whether the error whit had been committed
, might or might not by accider:r. have turned out to be harm-
less, was quite immaterial. It appeared from the affidavit of
Batchelor that he received these prisoners first without
any warrant at all, merely by their names being read
over; that ho afterwards had the warrant, but that it
was principally in the hands of the Town-clerk of Liverpool.
the inference from which was, that he saw very little of it.
Now, a word as to the relation subsisting between tbo Town
clerk arid Mr. Batchelor. He (Mr. Hill) had called the at-
- tentiotnof the Attorney-General to the mistake.3ve hag's fallen
into in stating that•the gaoler. was under the controul of the
Town-clerk of Liverpool. On the affidavits that did not ap-
pear. But it did appear very clearly that th,e Town-clerk
was the attorney for the gaoler—communicating with Messrs.
Adliegton, Gregory, and Faulkner, his London agents; and
he ( Mr. Hill) must complain that, whereas, whenever it was
required that Mr. Batchelor should have authority to injure the
prisoners, he was all potent then, but when it was asked that a
corresponding responsibility should be cast upon him, then the
blame was diluted by being separated among so many persons
that the small portion attached to Mr. Batchelor was not to
be sufficient to justify the Crown in making this rule absolute;
but Mr. Batchelor was the person before the Court,
and had consented to throw his shield over all
who stood behind him. It might be that it
would have been better that Mr. Batchelor should
have thus been put in the front of the battle. It seemed
to be reversing the classical precedent, and instead of Teucer
standing behind the shield of Ajax, there was Ajax crouching
and cowering behind the tiny buckler of Teucer. But, my
Lords, very probably Mr. Batchelor has been indemnified, as
it would be very easy to effect by the persons who really made
this return. The Learned Counsel went on to say that these
unfortunate prisoners had no vindictive feelings to indulge—
that at least they had learnt by this misfortune, deserved
or unmerited, how to forgive injuries, and he tendered
their forgiveness to all parties concerned ; and if his
Learned Friends on the other side would accept it he
tendered it to them (The Attorney-General gravely
bowed.) He tendered to them an unconditional pardon
—(Laughter)_a pardon unclogged by such a tremendous
condition as disgraced the English language, when applied to
the instrument now before the Court. He did not ask that
the Attorney-General should be sent to Van Diemen's Land,
even for a single month.—( Renewed laughter.) He did
not wish to visit with any censure the parties now be-
fore the Court for the error, which he now dismissed
for ever; but there was a question which to these prisoners
was of the utmost importance. Ho understood their Lordships
to have decided that the return was to be accredited until im-
peached by the party complaining. He had argued against
that doctrine until it was laid down by their Lordships, be-
cause he bad always understood it to be the law of England
that no person was to be presumed guilty—that the presump-
tion was the other way—that no person was to be called
on to prove his own innocence. He bad mistakingly fallen into
that error. He now stood corrected. But the return was now
impeached, and that impeachment ran throngtreat the whole,
and the degree of credit which had been attached to it was
utterly gone. It did not appear that Mr. Batchelor had ever
read the returns I on the contrary, it appeared that they were
. .

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