The Sun.
London, England, 1839-01-21 00:00:00

EAST INDIES.

The India Overland Mail, via Marseilles, has arrived thi.
morning, bringing letters avid papers from Bomb iy to thy sth
December, Calcutta 23d November, and Madras 24th Nov.
The camp at Kurnaul broke up on the Bth of No.
vember. A letter from that quarter of the same date
says " Major. General Duncan marched yesterday
morning with Brigadier Roberts' brigade. This morning the
camp' broke up, and that vast plot of ground, which only two
days ago was instinct with life and animation, sending forth the
hum of a hundred thousand human beings, is now a dreary
plain scarcely diversified by broken kedgeree pots, big holes,
broken bottles, and deserted cooking places. The corps
which marched this day were the 3d Buffs (thirty-three
officers, and 608 men strong)—the 42d, 43d, 2d,
sth, and 53d Regiments of Native Infantry, and a company
of Sappers. They proceed by Pehvah and Khytul, according
to the divisions to which they respectively belong.
Acounts from Agra state that the 28th N. 1., while on
march, mutinied, and they have consequently been ejected
from the army of the Indus. and the 20th Regiment substituted.
A report prevailed at Umbalah that 30,000 Dooranees from
Cabool had reached Shikarpoor, with the view of opposing the
progress of our army to the northward.
Mr. Stocqueler, the enterprising editor of the Englishman
Newspaper, had left Calcutta, to join the grand army destined
for Cundahar, for the purpose of being present at the projected
interview between Lord Auckland and Runjeet Singh, and sup-
plying authentic accounts to the public of the progress of eur
troops against the rulers of Candahar and Cabool.
The agent to the Governor-General had applied for a rein-
forcement of 2,000 men, and a battering train, to proceed
against the Fort of Jhansi. Major-General Sir Thomas
Aubury proposed to command the force in person.
Accounts from Rangoon to the 3d of November state that
our affairs with the Burmese were not of the most satisfactory
nature. Up to the 25th October Colonel Benson had
not been publicly acknowledged nor permitted to deliver his
credentials, although he had been three weeks at Amera-
poora ; and his suite had also been treated with marked neglect
and insult.

The Portuguese Governor of Goa, the Baron Sabroza,
died at that city on the 14th October, from the effects of an
accident which happpened to him a short time before. This
event, it is supposed, will be the signal for a general dis-
turbance at the settlement, as there were several claimants
to the Governorship.

THE PRISONERS.

QUEEN'S BE --Cif. 1) -4 V.)

The Canadian prisoners were again brought up this morn-
ing. and, at the sitting of the Court, it was densely crowded"
in every part.
Lord DENMAN—We are now to pronounce our judgment
on the validity of the return to the writ of habeas corpus for
bringing up the body of Randall Wixon, in custody of the
Keeper of her Majesty's gaol of Liverpool. The writ ses
issued by Mr. Justice Littledale, returnable forthwith before
himself at Chambers in vacation ; but the term being so nee=
at hand, it was thought expedient to hear the argument to
full Court. Every point that could arise on the facts of the
case, has been amply discussed ; and as some doubt was
ex-
pressed at the time relative to the right of my Learned fire;
titer to issue this writ, we desire to state now again our deliberata
opinion that he has done no more than the law justifies en
requires. We deserve herein neither praise on the one Ina°d,
nor censure on the other. We have introduced no innoCet-
tion, and have been merely abiding by established practices
Lord Coke, Lord Hall, and Chief Baron Cumming, in the °.
rules upon the subject, appear to assign to Chancery th
officia justiciw—the power to issue writs of habeas corpus 1°
vacation ; but in Hale's Pleas of the Crown there are cases cow
taining four writs of the very same form as that now brougbthr
fose us, some of them earlier than the Act of the 31st Ctrs. I'4
and one of them as early as the 43d of Elizabeth. Mr. Jr*
tice Wilmot in his answer refers to other cases previous t°
the passing of the Habeas Corpus Act, and observes that the
great men by whom it was formed would not allow such 1!°
anomaly to remain in existence. His and their judgment to
1758 affirmed that power' and the Maintaining Bill introduce
into the House of Lords was suffered to fall to the
ground, probably because it was considered unnecessat
In 1765 we have Blackstone's valuable testimony of the genere'
operation of the law at that time, and the practice that he°
since prevailed has been uniform and invariable. True, in decid-
ing Croley's case Lord Eldon, expressed an opinion upon the
power of the Judge in vacation to issue such writs, observing
that there was much good principle for it, but very little powf
tiee—that doubt assisted his Lordship's argument in favour 0
overruling the objections. Lord Nottingham, in Jenks' eeso:
in page 65 of the same report, enters fully into this case, an°
holding that the Lord Chancellor had power to issue writs in time
of vacation, enters fully into the whole argument, and states that
without that power the remedy would fail. But we have to obi
serve that the same ill consequences would follow in crimin°
cases, notwithstanding the power of issuing writs in vacatloo
by the Chancellor, unless the Judges also had the power,:
restrain the interference which might take place with
liberty of the subject. Lord Nottingham, in his judgrne°„
which is reported by Swanston, refers to precedents actual
brought before him, and says that Charles Justin Rainsfo
had refused the writ of habeas corpus in Jenks' case, but 00t
because he had not the power to do so, but because he did 0",
like to grant it in opposition to a warrant issued under the
authority of the Privy Council. In fact, there. had been °°
decision against the doctrine ; and in its favour there is gre',
authority, principle, necessity, early precedence, and custo.'
down to the present time. I now proceed to examine this .re-
turn, which in substance is, that after the late insurrection"!
Upper Canada last year, an Act was passed by the Legislature
which authorized the granting of a pardon by the Governor tut
such persons guilty of high treason as should before arraigntnen.
confess their guilt and petition for pardon ; on such CO°,l
ditions as might seem fit, that Randall Wixon was so pardon!,
on condition of being transported Van Dieman's Land, and
that for want of the means of conveying him there direct, ced
was transmitted first to Quebec, and thence to England, an
there kept in safe custody in the Liverpool borough gaol, beleg
a secure place to detain him, until a conveyance was ready, 'I/
order that he might fulfil the conditions of his pardon. The:
are some general observations, which are material to make 1,
this point. The return must necessarily be received as true,..l
all the particulars which appear on it in the present state $
which it is to be examined. We arc sitting here on it as te
general demurrer, or, indeed, as upon a writ of error upon
judgment pronounced in some other Court. We must Ow
bear in mind, that the matter for our decision is not to he,
decided by the code under which th,e laws of that other
country require its Ministers to proceed in certain cases. The
question is whether, under the circumstances, the prisoner
unjustly complains that he is injured, and has a right to ba
set free. The difficulty of having to decide upon laws frame
in a foreign country is excluded from this case, because the.
province of Upper Canada is neither a foreign State
province independent of this country in its Legislation. '-
relation of master and slave is not recognised in that country
as legal, but the acts of Parliament recognise that the law
England and nono other shall there prevail. The consei
quence is that we can take judicial notice of their legs
proceedings—we can understand the language in which then
are couched, and in all the forms and practices we must. 014,
every reasonable intentrnent in support of their validity. gt
pardon is said to be void for two important vices; first, Th,
by the law of England no man can contract lu'
his own imprisonment. This dictum of Mr. Justice
Hubbard is founded on an old authority, and te
cited by Hailey, in his case of James Somerset, v"e'd
this point was made out, that even if a slave never ,
his freedom, the law would hold the bargain to be void ;
it has no application to the present, which is the case of a may
tried for crime, and enabled to obtain a pardon by which hl''
life would be spared, binding himself by conditions to undergo
a less severe punishment. The second objection was t° ate
enactment that the prisoner may be pardoned on such On,
tions as may seem fit, as if this introduced a power of pun's
ment before unheard of, and even legalised torture. Bat
olon
are of opinion that these are implicitly excluded from
enactment, unless so expressed. No doubt transportation W
intended to be substituted for that mode of punishmeT6
and it appears from former acts that that system h`
been in force in Canada. In the Act of the sth 0(
George IV., there is a provision for the transportation c'
criminals to penal settlements for offences committed in the
Co:onies belonging to his Majesty, while it is notorious, that
the substitution of that punishment for loss of life, has been
the established practice of that country. Another objection
drawn from a different provision of the Act is, that the pardel
had tha same effect as an attainder, and implied a forfeiture°
property, but could not affect the person. Objections We/
then raised to the conditions of the pardon, and the time en,
place of transportation, that term of fourteen years. heilt
reckoned from the arrival of the prisoner in Van Diemen(-1
Land, and this depending upon accident, or being postpone
for wilful delay, was void for uncertainty. The answer to h,et
given to that is, that as the transportation may be for lifc, 1,
may a fortiori, be for a shorter period. It is then said, the
the power to remove convicts to Van Diemen's Land 61'111
Canada to their place of destination should appear in the
letters patent granting pardon. We don't think that neer*
sary. Her Majesty has the power to make that place are'
ceptacle for persons transported for certain offences, and We
must presume that all due preparations are made for that Puti
pose. The return is challenged for the want of every one of
the numerous documents from whence the gaoler derived bie
right to imprisonment—that it should set forth the indictment
for high treason, the petition, confession, pardon, and assent'
although the assent is not required by the Act. We are too
that it is our duty to obtain these papers and to inspect tber°'
but that we are not to receive their description from a W'
who knows nothing of them, that we might judge whether
the description be correct, and
,whether they are subjea
to those manifold objections. One answer has served
for all. The authority is stated to the Court, a°4
we are bound to receive it as true. The par',
who makes the return has probably never seen the documents,
but at his peril he places confidence in the captain of the vee-
sel who brought the prisoners, or some other person, and he
is bound by the assertions which he has made on their credit.
The last head of objection is that the authority to transmit
the prisoners to the various successive custodies does not ar
pear. The prisoners were charged with treason committed iv
Upper Canada, and on their confession a pardon was granted.
It was asked how then could the Government of Lower Ca'

nada receive them and transmit them to England, and bow
could the gaoler of Liverpool restrain them in this country,
more especially as Sir John Colborne's letters patent
are directed to such persons in England as are authorized
to receive them; and there was no warrant to the gaoler-
So soon as the petition had been presented, and a pardon
granted, the Crown had a right to enforce the conditions of
that pardon, and to take the necessary steps for that purpose.
He had sufficient authority, and no warrant could enlarge it,
Sir John Colborne had no more authority to remove those
persons than the person who now detains them, and as it was
physically impossible to embark them at once from Upper Cs-
nada to Van Diemen's Land, in every stage of the proceed-
ings in which the prisoners were confined, under the condi-
tions of the pardon by which they had lawfully bound them-
selves, they were lawfully bound. In the statute of the sth
of Geo. IV., the section before quoted shows that transports
from the colonies under a commuted sentence have been pre-
viously received in England on their passage to a penal settle-
ment,. and the result is that the person making the return is justy
fied in rendering assistance to the captain of the vessel by whom
the prisoners were brought from Lower Canada, and detaining
them in custody in order thst their sentence might be carried
into effect. We have selected in the present instance the case
most open to object 'on, a d the consequence of our deci-
sion is, that the cas s of Finlay Maleclm, John G. Packer,
Robert Walker, Paul Bedford, Leonard Watson, James
Brown, Ira Anderson, and William Alves must be dis-
posed of in the same manner, and for substanfially the same
reasons, the objections not appearing so strong in those cases
as they do in the present. Then there are three other pri-
soners, John Grant, William Reynold, and Lynus Wilson
Miller, who have not been pardoned under the Legislative
Act, but having been cony cted some of them of treason ow°
others of felony, we have anxiously considered whether the
allegations with respect to them were sufficient on the prin-
ciples already cited, and we think that they are. In coming
to this opieien we hare principally relied on Barnes' case, and
also the case of th,. King v. Saddis. These three persons,
therefore must also be remanded.
Mr. M. D. Htee—My Lords, your Lorships having deter-
mined that this return is sufficient, it now becomes my duty to
submit to the Court, that the sufficiency of the return, sup-
posing it to be true, does render it necessary, on the part of
the Crown, to show that it is true. My Lords, lam about to
submit observations to your Lordships, and also to make a
motion which I trust will have the effect of convincing your
Lordships that the law is so ; and moreover, I will put the
Court into a mode of calling upon the gaoler of Liverpool, or
whoever represents him, to prove the truth of his return. My
Lords, I need hardly say to your Lordships, that this parch-
ment that has been read—and which is called a return--is in
plain iang:lstft, tn,,ro than the un,uppurted statement
;,t !,c1..-‘n is a v,,luare'r in thi.,; matter, as far as it ap-
pears betur, tile Court—in revert of whom, as to his con-
nection with the prisoners, the Court knows nothing
more than that he is detaining the subjects of the Queen