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

THE CANA

RISONERS.

QUEEN'S BEN CH-(YESTERDAY

(From our Second Edition of last night.)
The ATTORNEY-GENERAL in continuation from our First
Edition—lt ;shall and may be lawful for the Lieutenant- Gover-
nor of the province, by and with the advice of the executive coun-
cil thereof, to grant, if he shall think fit, pardon to such person in
ber Majesty's name upon such terms and conditions as may
appear proper. lam now supposing, my Lord, that an Act in
these words is passed by the Imperial Parliament of Great
Britain and Ireland. If such an Act had been passed, can
there be any doubt of the power of the Lieutenant-Governor,
after a party has been charged or indicted, and the prisoner
has petitioned that he may have pardon under this Act of Par.
'lament, to grant a pardon to him upon the condition of his
being transported for life. Now the great objection that my
Learned Friends have taken in this part of their argument,
which I think chiefly arises under the third head of objection
is, that a man cannot be said to do anything against his
will—that he cannot assent to his own death. They might
have gene further, and said, no man can assent to a
eetneeon assault—that is, my Lords, where there is no autho-
riey in law to authorise such a proceeding. But will it be
said that the supreme power of a State cannot create a law
which would enable a person charged with a crime to agree,
without submitting his case to a jury, to a particular punish-
ment, which might be awarded ? I confess at once this could
not be done without the authority of the Legislature; but
can it be doubted that the Legislature can confer such an
authority ? My Lords, in the Habeas Corpus Act itself, in
the 14th section of that Act, your Lordships will find it pro-
vided, that if any person or persons lawfully convicted
of any felony shall, in open Court, pray to be transported,
beyond the seas, and the Court shall think fit, such person or
persons may be transported to any part beyond the seas.
Now here is the case of a person convicted of an offence for
which he was not liable to transportation, because the Act
says, if he agree to be transported then he may be transported.
That is matter of contract—that is matter of assent ; but it is
alone under the authority of the Legislature, and therefore the
proceedings are legal.
Lord DON MAN —You allude to the 31st Charles, I suppose?
The ATTORNEY-GENERAL—Yes, c. 2, s. 14. My Lords,
it would be a very cruel thing upon persons who are guilty,
if such a law might not be enacted, because it might
deprive the Crown of the means of extending mercy to them,
and might render a trial and conviction indispensably neces-
sary. The case to which I have referred in the Habeas
Corpus Act is when after conviction a party prays for trans-
portation, which, without his prayer, could not be lawfully
passed upon him. But, my Lords, if a person be indicted
for an offence, and apply to be transported before trial, and
it should be lawful upon his petition to pronounce sentence
of transportation upon him, and then if the sentence is to be
carried into effect, is he to move for a habeas corpus and say
that he wad unlawfully deprived of liberty, because although true
it is he eAd consent, yet that consent is null and void, because it
is illegal. The 13th section provides that nothing in the Act
shall give benefit to any person who shall, by contract in
writing, &c., agree to be transported to any part beyond the
seas., and receive earnest upon such agreement, although
afterwards such person shall renounce such contract. It is
met for punishment, but liter a man renouncing his liberty : he
enters into a contract not by way of punishment for
crime, but he is to receive certain rewards for services
performed. Now, my Lords, does not this Act of Par-
liament in Upper Canada contemplate that conditions
shall be performed, aye, that all shall be done which
is necessary for carrying that condition into effect. When a
party is charged for high treason he might petition to be par-
doned, and a pardon may be extended to him upon such terms
as are deemed proper. Well, then, is not transportation
clearly within the meaning of that enactment ? My Learned
Friend says, could he agree to some enormous suffering un-
known to the laws of England ? It is quite unnecessary to
ask such a question. The Legislature, in the terms that
were employed, has contemplated punishments known to
the land. They were terms that were to be deemed
proper; and to
,such an act, in point of principle and
an point of humanity, no objection could be made, and
I was really astonished to hear this Statute denounced as
cruel, as tyrannical, and oppressive. It must be supposed that
it is lawfully and properly cart ed into execute:se. If it
be so, I say that It is a merciful and humane law—
it enables the representative of the Crown to extend
mercy to those who may have been seduced by the instigation
of others, and who are much less guilty than those by whom
they are instigated, and who cautiously avoid ,he danger.
But by such a law, when there is treason committed, a
prosecution for treason must proceed—there must be a
conviction, and sentence nsay be passed—that frightful
sentence to which my Leessaesi Friend referred, and which
I should rejoice as touch as he were it to be
no longer pronounced; but is it not a humane act that the
person against ehom, such a charge is brought, and who feels
be is guilty, and ise conscious he has no defence—who may be
taken in arms lighting against the troops of her Ma-
jesty who. may have taken an active part in
trying to dismember the British Empire—is it not a
merciful thing to allow such a person to petition that he
tmay be pardoned upon terms short of suffering the last sen-
tence of the law, in the hope that that mercy may have a
beneficial effect upon him, and upon the community at large ?
Well, then, my Lords, the law says that the party may petition,
it is his own voluntary act—he need not take advantage of this
law—it is introduced for his benefit—he may renounce it if he
pleases ; but if he does seek to take the benefit of it—if he
acknowledges that he has committed high treason—if he acknow-
ledges that his life is forfeited to the law—if he acknowledges
that the sentence, as for high treason might, upon conviction,
be lawfully passed upon him, is there anything contrary in
principle to iellow him to petition for mercy, and that a sentence
sparing his 'life may be lawfully pronounced upon him. My Lords,
the Act of Parliament says that, and no more. Well, then, is that
sentence to be carried into effect ? Is he to be al-
lowed to present his petition, to acknowledge his guilt,
to o:otain a pardon, and then to violate and disregard
the condition upon which that pardon has been granted. If this
Were a statute of the Imperial Parliament, would it not
authorise everything to be done which is necessary to be done
ffor the purpose of carrying it into effect? Well then, my
Lords, it is not a statute of the Imperial Parliament, but it is a
statute made under a statute of the Imperial Parliament—it is
a statute made under the 31st of Geo. 111., chap. 31, which
establishes a supreme legislature in Upper Canada without any
restriction whatever to make such a law. I will not refer to any
thing that is not upon the return, but I believe that the
statute is recited in the beginning of this local Act
and in the beginning of every Act passed by the Legislature
.of Upper Canada. Well new, my Lords, the only question
on this part of the case remains whether this sentence can law-
fully be carried into effect beyond the limits of Upper
Canada, it being under an Act passed by the Legislature of
that province. My Lords, I say that the Legislature of
that province that had the power, and that has the
power, the undisputed power of enacting the punishment
d death to be inflicted on any person found guilty
of any particular offence, has the power of affixing transpor.
tation as a punishment, because it is lower titan death. That
is a punishment which is pronounced in the colony, the liability
to which has been incurred in the colony, The party on
whom that sentence is pronounced is in the colony, and
in the colony he becomes a party sentenced to transportation.
'He being in the colony, a convict sentenced to transportation
may be lawfully transported. My Lords, there is no British
Act of Parliament to authorise transportation from the colonies
to any part of the world. It is done by the Colonial Assemblies
themselves, and it will be a most alarming decision for your
Lordships to come to, that all those sentences which have been
pronounced for a long course of years are illegal—that all who
have been sent from the colonies, in the East or West, have
been sent there contrary to law and unjustly deprived of their
liberty. I apprehend that when a person has been convicted
in a colony, and sentenced to transportation under a
colonial law, that then the Crown by virtue of
its prerogative has a right to carry that sentence
into effect. It is immaterial whether it is carried into execu-
tion beyond the limits of the colony. My Learned Friends
have referred to two statutes, one of which justifies the gene-
ral detention of prisoners that were sentenced to penal colonies.
There is no Act of Parliament authorizing the transportation
of convicts from the Colonies to New South Wales, or Van
Diemen's Land ; that has been invariably done under the Acts
of the Colonial Assemblies, and by the prerogative of the
Crown. And the power to do that is fully recognized by the
lith Section of the sth George 111., which does not give va-
lidity to such transportation, but assumes its validity, and only
says, if parties who are so transported come to this country,
they may be eonfined in the ships that are set apart for the
punishment of offenders, and sublet to the discipline of
these places while they remain in England. The
Legis-
lature has clearly recognized
.the right to transport pri-
soners from the Celoniee to another part of the world.
If there be such a power, can there be a doubt that the Legis-
latur of Upper Canada had a right to pass this Act, which
does not say, that a person convicted of a particular offence
should be traesported to Van Diemen's Land, but it says that
if a person. ehaegecl with treason, petitions the Lieutenant-
Governer, ased admits his guilt, he may receive a con-
("Hostel pardon, upon being transported to Van Diemen's
Land ; that is the substance and effect of this law. Is
there any doubt that it might have been expressly enacted,
that any person charged with high treason, upon petition to
the Lieutenant-Governor, confessing his guilt, might, with
the consent of the Lieutenant-Governor have been transported
to Van Diemen's Land ? That would merely be exercising
the same power which is given by the passing of an Act
whereby transportation is made the substantive penalty for a
specific offence. If, then, transportation is not mentioned in
this section of the Act, as one of the terms which may be
agreed upon, is it not clearly involved and comprehended in
it? The words are, " upon such terms and conditions
as -may appear proper." What was in contemplation of
the Legisls'eare at that time ? Transportation is a penalty
well kr:own to the law of England. It is well known
in tie mother country—it is well known in the Colonies.
There is no occasion for considering whether any punishment.
which is not usual could be inflicted. Transportation is a
known and recognised punishment, and it clearly was one of
the conditions upon which the pardon might have been
granted. Will you, my Lards, if that be so—will you
sanction the objections to the legality of this proceed-
ing ? If a man is convicted at Quebec or any place
in Upper Canada, for larceny,and sentenced to tran-
sportation for that crime, there is no doubt he may lawfully
be sent from that colony to Van Diemen's Land; so it is
clearly and unequivocally enacted by the Legislature itself. If
be may be sent directly, he may come circuitously, supposing
there are no means of sending him directly to his utmost des-
tination. There being such an offence, or such a pardon, or
condition, as we have here, it is impossible to deny that, if the
Legislature has power to affix 'transportation as the punish.

ment for an ofFene, there is a power in the Legislature of Upper
Canada to say that a person charged with the crime
may upon petition, confessing his crime, be made the subject
of transportation. So much, my Lords, for the power of the
Legislature of Upper Canada. My Learned Friends say we
have not shown the power of the Lieutenant- Governor. My
Lords, I rely upon the 31st Geo. 111., and the Act of the Co-
lonial Legislature, which has been returned upon the answer
to the Habeas Corpus writ, and I say that I have shown the
power of the Lieutenant-Governor, in showing an Act,
lawfully passed, vesting him with that power, and
subjecting such persons to transportation as petition
him in the manner I have stated. My Lords, I come
now to consider the fourth objection, which is to the manner in
which this condition has been executed. We are asked, What
right had Sir John Colborne to interfere? lam now arguing
upon the supposition that this is so far a lawful proceeding,
and that by lawful means a person so petitioning might be
sent from Upper Canada to Van Diemen's Laud. Then, my
Lords, I ask, are not all the means necessar) for doing
that legalized by the same Act. The return expressly avers
—and it is to be taken for true—that there were no means
fur transporting these persons from Upper Canada to Van
Diemen's Land. My Lords, I believe we cannot enter into
the facts ; but I think there is no port in Upper Canada—
ns an inland province—whence vessels sail on such distant

voyages.
Lord DENMAN—You are passing over, I think, one argu-
ment drawn from the enactment that the conditional pardon
should have the effect of an attainder upon the personal
and real property of the party.
The ATTORNEY-GENERAL—My Lord, I sincerely thank
you for calling my attention to that. I seek no benefit from
those words, and they will not prejudice the return, nor the right
to carry the condition into effect. The words I rely upon are
these, that upon petition a person charged with high treason,
and praying to be pardoned for his offence, it may be lawful
for the Lieut.-Governor, by and with the advice of the executive
council, to grant a pardon to such person upon such terms as he
may think proper, and it is enacted that if a person charged with
high treason petitions for pardon, that pardon may be granted,
on such conditions as may be thought proper by the Lieut.-
Governor and Council. Does it not follow that the terms upon
elaich the pardon is granted and accepted are to be carried into
effect? Is the prisoner to have all the benefit, and the
Crown and the public no security? Is the pardon, instead
of being conditional to be absolute ? Unless there be a power
of care) leg the condition into effect, it will be so, for
the prisoner is entitled to his liberty, and must
be discharged, to go where he pleases, and conduct
himself as he thinks fit. But, my Lords, the pardon being
granted upon terms and conditions it is a conditional pardon,
and the condition is to be executed—is not that the inten-
tion of the Legislature ? But there being merely a
pardon and a condition of transportation, if the person pos
sessed half the province of Upper Canada, it would have
remained his after he was transported. This was thought not
to be a fit state of things, and it was considered that beyond
the terms that might be prescribed by the Lieu-
tenant-Governor, there should be a forfeiture of lands and
goods, but no corruption of blood, which, upon attainder
would necessarily follow ' • therefore it was enacted that the pe-
tition of a party charged with high treason, as I have stated,
should have the effect of an attainder so far as reg Hs for-
feiture of property, real and personal. But, my Lords,
it does not follow that because a forfeiture is to be
the punishment, that therefore it is to be the only punish-
ment, and that as soon as the pardon is pronounced,
the condition of the pardon is to be neglected ; this
is an additional enactment which leaves the condition
of the pardon still to be observed. My Lords,
when your Lordships drew my attention to this point,
I was adverting to the fourth objection upon the
ground of irregularity, but, my Lords, if there were
an irregularity in the sentence, is there any ground for
discharging the prisoner from his present lawful custody ?
But there is no irregularity—there is a clear right to take all
steps necessary for carrying the sentence into execution. Put
the case of an inland province, where there is no port
at all, how is the sentence to be carried into effect ?
That may be the case in Upper Canada or not ;
although the return does not say specifically that there is no
port in Upper Canada, it does say that these prisoners could
not be sent directly from Upper Canada. How is the sen-
tence to be carried into effect ? Why, he must be transmitted
by the power of the Executive Government from stage
to stage till he reaches the place of his destination.
There can, therefore, be no pretence for the illegality CUM-
plained of. I now come to the fifth objection, that no warrant
has been returned. In many cases a warrant is not neces-
sary--if a person be committed for trial there must be a war-
rant to authorize his detention—but where the prisoner is in
the execution of his sentence, or what amounts to it, there is no
warrant, nor is any required. The case to which my Learned
Friend referred of the King v. Clarke, established the fact
that where there is a commitment by warrant, the officer must
return the warrant ; but. where there is a commitment and
conviction, there is no necessity for the production of a war-
rant, and that makes the very case before us. The Learned
Counsel then referred to the facts of the case, wherein the
defendant being before the Court of Aldermen, the Court
committed him by warranty in writing to Newgate, for re-
fusing to accept a certain office. In such a case no doubt the
warrant should be returned, but when the commitment is in
Court to the proper officer no warrant is necessary, and the
whole truth of the matter, is to be returned on peril of an ac-
tion. My Lords, in this case the gaoler is to return the whole
truth of the matter on peril of an action, and I deny if a man
be sentenced to transportation, that there must be necessarily
a warrant to each person in whose custody he remains until
the execution of his sentence. It is no more necessary
than that there should be a warrant to detain a man in gaol
who has actually been convicted. What is returned? That
the gaol of the borough of Liverpool, to which place the ship
came, was the fittest and most convenient place for retaining
the prisoner until he was sent upon his destination. It was
alleged that he arrived at Liverpool, and there not being the
means of conveying him to Van Diemen's Land, he
was delivered into the custody of the gaoler until the
means were ready for conveying him there. There-
fore, the truth of this matter is alleged, and it cannot be
contested that this is the fittest place for the prisoner. Du
my Learned Friends say that it was necessary to keep him in
the hold of the ship—that it was unlawful to enter the port of
Liverpool, and that he should remain off ;lie mouth of the
Mersey, exposed to the fury of the elements, until a ship was
prepared ? Was it not more humane that the vessel should
come into port, and that the prisoner should be placed in some
convenient place until a vessel had been prepared. My Lords,
these returns show that what was done was imperatively neces-
sary, and was the most convenient course. I have only one
other objection to meet, and I confess it rather surprises me,
that the return is not sufficiently explicit, and that it ought to
set out more at large all the documents to which it refers
This is rather inconsistent with another observation made by
my Learned Friend Mr. 1-1111 again and again, viz., What
does the gaoler of Liverpool know about this? and, I must
say, that to impose upon the gaoler to set cut all the do-
cuments of which he may not be cognizant is very unrea-
sonable. The law which should say if this be not done
by the gaoler the detention is unlawful, would be a
very unjust law, but this is not the law of Eng-
land, which does not require any minute details in a
return to a writ of habeas corpus. I refer your Lordships
to the well-known rule laid down in Barne's case, in
2d Rolls Reports, page 157, where it is said that a re:urn
to a writ of habeas corpus differs from other judicial proceed-
ings and such precise certainty is not required, but it is
sufficient if the Court can learn from the return the circum-
stances of the matter. That rule has been most fully com-
plied with The same rule is laid down in 3d Wilson, page
439, and I venture to say, that I doubt whether ever a return
to habeas c)rpus set out the particulars so fully as the present.
I would refer your Lordships to;the case of the King v. Saddis,
Ist East, page 360; that was a writ of habeas corpus directed
to Sir William Pitt, Governor of Portsmouth, to bring up the
body of John Saddis. The return set out the proceeding
of a Court-martial at Gibraltar, and stated that the
Court having heard evidence in support of the pro-
secution, was of opinion that the prisoner had receivep
certain articles of wearing apparel, knowing them to
be stolen, in breach of the articles of war, and
sentenced him to be transported to Botany Bay for fourteen
years. The return went on to state that the return was ap.
proved of, and in order to carry it into effect the
prisoner was sent to England under charge of Lieu-
tenant Roger, of the 17th Foot. There was no warrant tent
by Lieut. Rogers to Sir Wm. Pitt, nor is any authority set
out ; but the return merely alleges that he was sent by the
Governor of Gibraltar to England, in the custody - o
Lieutenant Rogers, and that he was taken into the custody o
the Governor of Portsmouth, until he was sent to Botany Bay.
My Lord, the Court decided that this was a good return,
and Saedis was remanded in execution of his sentence.
Mr. Justice WlLLtaxs—Was the want of warrant the ob-
jection then ?

- The ATTORNEY- GENERAL-Mr. Erskine was Counsel for the
prisoner, and Mr. Abbot, afterwards Lord Chief Justice
Abbot, on the other side. The case was elaborately ar-
gued, and various objections were taken, but this objection
it was not thought possible to take, and I will read your
Lordships what Lord Kenyon says on that subject. There
were various objections made to the return, but I
think the want of warrant was not one of them. Lord

Kenyon says, " there should always be a leaning in favour of
liberty; but we must take care, however, not to carry it too
far, lest we loosen the bonds of society, which is kept toge-
ther by the hope of reward and the fear of punishment.
I have always considered that a Judge, in our foreign posses-
sions abroad, is not to be bound by the course of proceedings
in our Courts here." And then his Lordship says they were
not sitting as a Court of Error to review the irregularities
of the proceedings abroad ; and that be said that much
for the purpose of removing doubt, and he saw no reason for
saving that the cause returned was not sufficient. Mr. Justice
Gros, who followed him, said that the objection made
was an objection of error, and they did not sit as a
Court of Error. Mr. Justice Lloyd observed that it was
a return to a writ of habeas corpus made by the person in
whose custody the prisoner was placed in execution of his
sentence. He could not be taken to be cognizant of all the
proceedings—it was enough that the Court had authority to pro-
nounce the sentence, and the Governor returns the cause why
he kept the party in custody. Mr. Justice Leßlanc said another
objection taken was, that the return did not state the offence
of which the prisoner had been convicted. The an-
swer was sufficient that this Court had authority to in-
flict such a sentence, and the prisoner was in custody under
that sentence; therefore, according to the four Learned
Judges it was enough for the keeper of the gaol to retnrn
the conditional part of the Act of the Colonial Legislature
to justify him in retaining Mr. Watson in custody on his
way to Van Diemen's Land in the execution of his sentence.
I have now, I believe, gone over the whole of my Learned
Friend's objections, and if I have omitted anything I should