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

THE SUN, LONDON, WEDNESDAY, JANITARt' Id, NV.

Isportatioie according to the terms of the conditional par-
don, and that the law authorises all that is necessary to carry
the sentence into execution ; and with respect to the three,
that they are liable to conviction, and might lawfully
be detained in the custody of the gaoler of Li-
verpool, if necessary ; and, if necessary, we shall ask
the Court to amend the return. My Learned Friend says,
as an enactment, the sth of George IV. is material to this
question, and therefore the restriction of the sth of George
IV, to the reception of convicts has nothing to do with this
case. They say, however, that the sth of George IV. is very
Material to their case ; because, if I understand my Learned
Friend, his argument is certainly very ingenious, and he says
that the recital in the preamble to the 17th section is a legisla-
tive recognition of the validity of the laws, which are thus de-
scribed :—" Whereas, by the laws in force in some parts of his
Majesty's dominions, not within the United Kingdom, offen-
ders convicted of certain offences are liable to be punished by
transportation beyond the seas, and others convicted and ad-
judged to suffer death may receive a pardon on condition of be-
ing transported,and there being no means of transporting them to
the place of banishment without being first brought to England,
be it therefore enacted." My Friend's use of the statute
begins and ends with this recital. Now, I will first observe,
that there is nothing so weak as evidence of facts as the mere
recital in an Act of Parliament. It is every day's knowledge
that these facts are unfounded. A case was lately before Mr.
Justice Coleridge, in which it was quite clear that the most im-
portant fact on which a large claim made by the. Baron de
Bode depenied, was entirely forgotten in the recital.
In that recital it was averred that all the claimants were
registered, whereas the principal claimant was not registered
at all. Therefore, when my Learned Friend says that this
recital is to be evidence, nay more, proof of the fact that there
Were such foreign laws, I say it is the worst of all means of
Prov -
int,. it. But my Leerned Friend's argument is not com-
plete there, because it might he that the colonies had the power
to make these laws not proprie frigore, but by virtue of some
Power conferred by the Imperial Parliament, but then he
*531 he has been examining the statute carefully, and
to such power exists. Therefore, there being no such
Power, and it being recognised by the sth of Geo. IV.,
it must be inherent in it. I believe I have stated the
argument of my Learned Friend correctly and fairly.
Now, my Lords, in the first place, my Learned Friends have
assumed that the power which they say is recognised as a
Power to transport from a colony is not ad fines, but mire fines of some other jurisdiction. That is their assumption. Not
that it is a power to transport out of a colony so far as the
prisoners may be taken without coming into another
countre, over which the colony has no controul ; but
they have assumed that the power which they say is
recognised is a power to go into another country.
Now, in the first place, what is there in the recital
Which my Learned Friends rely upon to prove their proposi-
tion. The Act says that the offenders are liable to trans-
portation beyond the seas, and therefore the fact fails them.
But not only the fact fails them, but the law also, as I think I
shall be enabled to show your Lordships. They call upon
Your Lordships to suppose what I submit is a legal absurdity,
bow can there be a law in Lower Canada enabling that
country to thrust its convicts upon any other colony__
Bermuda for instance, of which I shall have a word or
two to say shortly, because that is a case that has
been legislated upon. Is the colony of Lower Canada
inflict its convicts on Bermuda, has it the right to bring
persons to Bermuda, and hold them there in that species of
restraint which is part of the punishment of transportation ? I
apprehend it to be a principle not only of our municipal law,
a general principle in the law of all civilised nations,
that no man can be held in restraint in any country ex-
cept by virtue of the laws of that country that have
ordered him to be subject to that restraint. Do, my
Learned Friends mean to say, that before the sth of Geo. IV.
the colony of Upper Canada could have sent convicts to Eng-
land under a sentence of punishment which they were to re-
ceive there? Suppose, for instance, that some of the convicts
Were sentenced to work in chains in the streets, will my
Learned Friend contend that we are to be subject to that in-
fliction in England from a colonial sentence ? I should appre-
hend my Learned Friend would contend for no such proposition.
I soy that it requires a positive law of the countr into whh an
Person comes that he should be kept there anddetained;
that is not only the law of all countries, but especially so of Eng-
land. The case put by my Learned Friend Sir F. Pollock yes-
terday appears to me to have no bearing whatever upon the
case. He asked whether it could be seriously argued that if
a vessel laden with convicts put into our waters by stress of
Weather those convicts would have a right to a writ of habeas
corpus, to that I say they would ; and there is a case in point
upon that subject. Some time since there was a ves-
sel laden with convicts wrecked off Boulogne, many of the
convicts were saved, but I never heard that they went back to
England, er were detained on the French shores. It would have
been contrary to the law of nations if they had been. Is it
contrary to the law of nations that one country is the recep-
tacle of the exiles of another ? Certainly not. Can the reception
of the Huguenots here be said seriously to be a violation of the
law of nations? My Lords, if it can, my only hope is that the
law will be violated every day in the week, and every year in
thecentury. There is no pretence for saying any such thing; the
Practice ofChristianity is against it, and has been so for centuries.
Can it be contended for a moment that the Emperor of Russia
e"su ever complained of the Poles being received in this
ac°d IhtrY, as contrary to the laws of nations ? Certainly not ;
1117 therefore say it is a legal absurdity to suppose there is
, recognition of any such law. The proposition sub-
,`ted to the Court is this,—it may be the law that a
emon
Y may have the power, by its Legislative Assem-
off'T.,to make a law sending out a convict to the shores
the England, or to the shores of any other country, but
Lee. moment the convict is in the country, that moment
s infra fines, and then the power over his personal liberty
therel'sffered a devolution from the authority that sent him
eto the law of the country into which he has come. My
Learned Friend thought they had cited an authority against
Th_a by citing the authority of the Imperial Parliament ; now,
5 Pposing they had been right in the use of that authority, it
awould have been open to this remark, that the power of imperial
Must be looked at with great jealousy, because
n
I_s ower over wch there is superidence. The
.:preaiaPrl Parliamenthi exercises every speciesnten of power, and
the
own sense of right and
ha g• The Imperial Parliament never attempts, and never
trio attempted, to hold persons in transportation in e,oun-
„_s in which they have no authority. Now, with respect to
rea term banishment, I believe that term really to
itse II this, that the banishing country sends forth
übj
of a eet, either setting him free at the confines
an
is °WO territory, or taking him to the confines of
be-9toer; that, I believe, is the banishment that at present exists,
indeed it would be nugatory if it were not so. It may
a severe punishment or it may not. It may be a severe
punishment to banish an Englishman into Scotland, but it
;
aat? not be a severe punishment to banish a Scotsman to
gland.--(Great laughter.) Transportation to a countrya
laprelseee .
to ee to mean this—not only a power to send a person
ir:a particular place, but a power to hold him in
8 attraint, and deal with him for penal purposes when he
e2Psuch place. I, therefore, say that it is against all prin.
clteoftensuppose that this loose recital in the preamble of
eon, 'ornament, can show the existence of a power chiwhs
nis irar-
to all principle, and which, however much recog-
thee"' Can never be exerted. As I said, nay Lords, before,
the recital does not make out my Friend's proposition, that
convictre i any such power as will enable one country to send a
into another. What my Friends contend for is the
aexistence of an inherent power in the Legislature in the
shinve Acts of Parliament. Now, my Lords, I deny
pa.; thof e present instance there is an absence of Acts of
t parliament ; there are Acts called the Canada Acts, by which
h -
nte law of this country, as I contend, was imported wholesale
the Canada. It may happen that some of the laws may give
_ power of transportation for a particular offence, and it may
be 7a that the recital has reference to that state of things ;
'nay be so, but don't let my Friends fall
in-
which inhere the fallacy
of supposing that that shows an
!alierent power to make laws. I negative the in-
co ppower, by showing you an Act of Parliament
er the law ready made. It is exceedingly strange,
n'Y Lords, to my mind that when my Friend was arguing this
question he forgot a great controversy on this oint which
Was agitated in Parliament during the last Sessiopn, in which,
that Learned Friend took a prominent part. Now, how
to trans
uestion differs from whether a certain ordinance
port to Bermuda is correct or not, I cannot tell.
I arilat a loss to know the difference. My Learned Friend
is of opinion that that transportation to Bermuda was
hi.
liegal; that was my Learned Friend's opinion. Others of
toger authority (and I say, without any want of deference
I,.my Learned Friend, "of higher authority," because
hi lily
in station) were of a different opinion. But what
!aras the opinion of the Parliament of England? That opinion
's to be collected from the Indemnity Act. My Lords, the In-
demnity Act of last year recites that an Act was made this
Present session entitled " An Act to make temporary provision
ef oir the Government' of Lower Canada, and that whereas
"yr or ordinance hath been made and published by the Go
e-
vernor of the said province, by and with the consentofth
said Special Council, which ordinance cannot be justified by
4w, but which was intended for the security of the said pro-
to ,e, it is expedient that all persons acting in obedience
the same, should be indemnified by Parliament in the manner
ered to the extent hereafter provided for." My Lords, I
Marvel that my Learned Friend did not at the time of
t•lthaet
sthdebate,of
stand upon the preamble to his 17th section of
George the Fourth. Is this an after thought?
Is this a discovery made under the exigencies of the present
duifefirceu, my Lords,
or is it a well-known and established authority ?
Lords, however, we have something more than a
recital. We have an enactment founded upon that view of
the law by the whole Legislature-of the country—the highest
authority—the Imperial Parliament, deciding and going to the
itngth of this great proposition, that one Colony cannot
transport into another Colony. I wish that my Learned Friend,
I trust that my Learned Friend when he comes to ansvrer me, will
b 1 kind enough to .tell the Court plainly what could have
been done with transported persons in England before the sth
of Oeorge IV. My question is, how could they have been
held in restraint before the sth of George IV.—any convicted
person of any kind ? That is my question, because if they
Could not be held in restraint, then their case is exactly the
same as that on which I am putting the case of the present
Prisoner. What your Lordships want is en English authority to
hold that man in restraint in England—that is the question.
I say there is no pretence for saying he could be held in re-
straint, except by the sth Geo. IV., the enacting part of it;
and he is not within the enacting part of it. as is now practi-
cally conceded, because he is not convicted by any Court or
:judge, nor adjudged to transportation. My Lords, that then
18 my reply 'o my Learned Friend's answer to my principal
objections
Mr. Justice COLERIDGE—Have you considered, Mr. Hill,
under what authority it is the Crown grants a pardon for the
co fission of high treason ?

tram

Mr. have not considered it, my Lord, but the
Crown has for many years assumed the power of granting a
pardon upon conditions, but it has not assumed the power of
enforcing those, except by the natural and obvious mode of
saying, if the conditions are not fulfilled, then the sen-
tence remains in force. Perhaps your Lordships are
aware that my Lord Chief Justice, keeping in his
reports, gives a sort of history of the rise of this power.
I am not speaking of the ease of treason, but of commutation.
Mr. Justice COLERIDGE—The Habeas Corpus Act extends
to felony.
Mr. HILL—I think, my Lord, I can throw light upon it by
reading an extract from " Keeling's Report of Cases on
Pleas of the Crown." Speaking of a Session at the Old
Bailey, h 3 says— '• At the same Session, one Edward Parrot
was in the place where the pri-oners used to stand, at gaol de-
livery, for murder, for which he had afterwards judgment, and
while there, one Copeland, a Scotsman, being in very good
clothes—( Laughter)—being in very good clothes, went in
under colour to see him, and after staying some time, came
out, and the prisoner followed him." They were afterwards
retaken. Copeland was indicted for the felony, for rescuing
Parrott. Copeland said, "He had done nothing but what he
ought to do, to help his friend to save his life ;" and on the
evidence he was found guilty. " And on his request
he being to have clergy it was allowed to be put into the
King's pardon among those prisoners of that nature, who were
to be sent beyond the sea, it having been lately issued that
for felonies within Clergy, if the prisoner desire it, not to
give his book, but to procure a conditional pardon from
the King, and send them beyond the sea, to serve
five years in some of the King's plantations, and then to
have land assigned them according to the size of those plan-
tations, with a condition in the pardon to be void if they do
not go"--of course, my Lords, if they do not go—" or if
they return into England within seven years, or after,
without the King's license." What did that come
to? Why, that there was a provision made, tran-
sportation being more in the nature of service for hire
and reward to be afterwards paid to them in the shape of an
assignment of lands to their benefit ; but if they would not ac-
cept of this, or if they repented of what they had done, they
were under the peril of a judgment, arid so far as it depended
on contract having no legal force, but as, as is perfectly clear

from the extractss-I have read, they being at liberty to put
an end to that contract whenever they pleased, it only being
in force by their fear of the peril of the judgment which might
thereupon ensue. My Lords, it is that practice, I apprehend,
that the section referred to yesterday by my Learned Friend,
this 14th section of the Habeas Corpus Act, applies; and, my
Lords, what is the true construction of that section ? First of
all, the 13th section should be referred to. What does that
section mean ? It means the subject shall not use the remedy
given by the Habeas Corpus Act to do a wrongful act
as regards his own contract; that is to say, to obtain the
earnest, under pretence that he was willing to serve
in a foreign land, and then to say " a contract to serve
beyond the sea is not a valid contract, to be enforced

against my will, I will sue out my writ of habeas corpus."
" No (says the Legislature), you must depend on the old
remedies for that. This Act is intended for different pur-
poses, and shall not be abused for such a purpose as that."
See, my Lords, the next section—" Provided always and be
it enacted, that if any person lawfully convicted of any felony."
Your Lordships will mark the safeguards to the liberty of the
subject that were thought necessary in the reign of Charles
11., but which, in the reign of Victoria, are begin ing
to be thought too great a license for the subjects of this realm.
Your Lordships will observe that it applies to persons " law-
fully convicted under any felony ; and if they shall afterwards
pray to be transported beyond the sea," &c. &c." That
leaves it as it was before. The transportation is to be en-
forced by the peril of the judgment, of which care is taken
here that there shall be the judgment, in order that
that judgment may be the compelling power to the
prisoner to go abroad, and being abroad, there to remain.
My Lord, this is the second great point,—that the provincial
statute of the Colony does not justify compulsory transporta-
tion. I speak upon this point under some disadvantage, for
we have not been able to procure a copy of the Act. We were
told there was but one copy iu England, which was in the pos-
session of the Attorney- General.
The ATTORNEY-GENERAL-There are five hundred copies
to be had within a yard or two of this Court.
Mr. HlLL—Then we have been misinformed, my Lords, for
we applied at the Colonial-office and we were told there was
but one copy in England.
The ATTORNEY-GENERAL—The Act was returned to both
Houses of Parliament.
Mr. ROEBUCK-Not that one.

Mr. HILL—WeII, my Lords, in this case, as in every other,
I must do the best I can. The objections to the Statute, with
respect to which this question arises, I am now submitting to
your Lordships, is this,—the Statute gives to the Governor,
under certain circumstances, the power of granting conditional
pardons. Suppose the Statute, as it is set out in the return,
I would ask this question, does it create a power in the Go-
verrirr to invent a new punishment, or must not the condition
be that the party shall do something to which be legally bound
himself by contract ? Your Lordships see that one very
heavy punishment is imperative—the forfeiture of all the pri-
soner's property, real and personal. My Learned Friends
rely on another clause, " that in case any person pardoned
under this Act, on condition of being transported, or banish-
ing himself from this province, shall afterwards voluntarily return
to the said province without lawful excuse, before the expira-
tion of the term of his transportation, he shall suffer death, as
in case of felony." Now, my Lords, first let us consider that
statute without this second clause. And then, upon the mere
recital of that, it amounts to no more than a mere general enact-
ment that the Governor shall be empowered to institute con-
ditions. But will the Court push it further, and say that be
is empowered to create new punishments to any extent ? I
think the Court will not. I will consider the effect of the other
clause presently. My Learned Friends felt that the words of
the statute were quite too large. They said that the statute
must receive a more limited construction. They say that
though the punishment be unlimited in words, it must be
limited by law, as I understood—that is to say, that the
Governor must not impose punishments unknown to the
law. My Learned Friends give no authority for that being
the test. But I will suppose it so. In the present case,
however, my Lords, the Governor has gone beyond those
limitations—he has invented a punishment. And lam bound
to say, a punishment more unjust never was invented by the
perverted sagacity of man, than has been imposed in the case
of the prisoner on whose case I am now addressing your Lord-
ships. What is that punishment? It is fourteen years' trans-
portation—not from the time of granting the conditional par-
don, not from any definite or certain period, but from an un-
certain period, a period in futuro—from the time of their
landing in Van Diemen's Land. Is there any connection be-
tween such a punishment and the offence ? No. It is a punish-
ment dependant on the accidents of the winds and waves, un-
influenced by the necessity or non-necessity of coming to Eng-
lend. For it does not appear by this return, that when the prosoner
set out from Canada there was any intention of coming to Eng-
land. There may have been a vessel ready at Quebec to take
the prisoners to Van Diemen's Land. Considering the mild
manner in which, according to the Attorney- General, the
laws are administered in Upper Canada, a vessel might have
been chartered for the purpose, that the length of the punish-
ment might not be increased by the duration of the voyage.
I say, my Lords, this is a punishment unknown to the law of
England ; and unrecognized by any principle of law, of
justice, or equity. But, my Lords, I repudiate such a test as
twat. My Learned Friends say that there must not be a pu-
nishment unknown to the law. The law remains the same,
whether the punishment inflicted be severe or merciful. lam
not at this stage of the proceedings objecting to the extent of
the punishment, or the particular nature of it ; lam con-
tending that your Lordships will not so construe those loose
words in a highly penal act, as to give the Governor of Upper
Canada the power of doing (what the Imperial Sovereign
cannot), creating new punishments. Let us now consider the
next claim. My Learned Friends say that as this clause
by implication mentions a punishment from transportation,
transportation may be the condition imposed by the governor.
Is not that monstrous?—that any punishment short of death
—perhaps death itself—may, " by implication," be inflicted
by the Governor? My Lords, the doctrine of "implication"
does not (if it arises in the criminal law), apply here. The
L( gislature says not—" You shall be transported against your
will ;" bur, " your sentence is transportation, and ifyou choose
to come back you shall suffer the punishment which would
otherwise have been inflicted." Therefore, my Lords, I say
there is no power in the provincial Act to compel persons to
be transported against their will. Now, my Lords, my
Learned Friends on the other side say that if the
condition is void, the pardon is necessarily gone, also.
My Lords, I apprehend not. The statute gives the power of
granting pardon ; and on some condition. It may be, how-
ever, that the pardon is good, and the condition void ; that
the pardon may act, but the condition inoperative. Suppose,
my Lords, in this country a pardon to be granted on some
condition inconsistent Ri.h good morals, on a stipulation that
the party pardoned, for instance, should go to some foreign
country, and assassinate its Prince. I apprehend the pardon
would be good, though the condition would be void. My
Lords, for certain offences the Legislature of Upper Canada
have inflicted the punishment of transportation. But it is
curious to observe how little their opinions agree with
the statements of my Learned Friend. The Legislature
of Upper Canada did not claim any power before
the sth George IV. ; but they say that since the sth of
George IV. was passed they may transport through England
to the penal colonies, and then they make laws for suet trans-
portation.
Mr. Justice LITTLEDALE_[Iow does the Act run, after
direct'ng the criminal law to be administered as in England,
subject to conditions ? Suppose a person indicted for an
offence which according to the law of England would be
subject to transportation.
Mr. HILL—Your Lordship means convicted.
Mr. Justice LITTLEDALE—Yes.
Mr. HILL—Not for this offence?

Mr. Justice LITTLEDALZ—No : for felony, for stealing or
for receiving stolen goods.
Mr. HlLL—This would be the consequence, my Lord :
Upper Canada being a country having no communication with
the sea, the prisoner could not be transported directly from
that province ; but under 5 Geo. IV. the means of trans.
portation were given through England.
Mr. Justice LITTLEDALE-Then a law of Canada has passed
since the Act of Geo. 111., commuting to transportation as a
punishment ?
Mr. HILL—Yes, my Lord ; but my friend Mr. Roebuck
will call your attention to these points, being more versed in
them than I am.

Mr. Justice CoLeinue—How would the ability to transport
through England vary the case as regards Upper Canada,
which was still an inland country?
Mr. HILL_I consider the object of your Lordship's ques-
tion to be this, that if the Act of Parliament gave the power of
transporting through England, perhaps ex oteceasitate, it may

give the power of another mode of transit—it may, or it may
not, I cannot tell.
Mr. Justice COLERIDOE—It gives the power to transmit the
prisoners to Van Diemen's Land, through one country; perhaps
ex necessitate, it may give it through another—why nut two
steps as well as one ?
Mr. HILL—Your Lordship is talking of sth George IV.
Mr. Justice COLERIDGE—No, I speak of Ist Victoria,
chap. 10.
Mr. firm—That is the Provincial Act.
Mr. Justice COLERIDGE—YeS.
Mr. HILL—My Lord, this is not within the sth Geo. IV.
If the Ist Victoria dealt with the same persons as arc men-
tioned in the sth Geo. IV., then the difficulty which you Lord-
ship is pointing out might arise. But at present the Ist Vic-
toria deals with another class of persons—the persons who are
transpOrted by virtue of the Ist Victoria, if they are to be
trans} orted at all, are not convicted.
Mr. Justice COLERIDGE —I am assuming that the Ist Vic-
toria empowers those persons who come within it to be tran-
sported to Van Diemen's Land. Then does:it not authorise ex
necessitate the transporting through L0....er Canada and
through England, if it be necessary?
Mr. HILL.—It may be so, my Lord.

I am not pre

pared at the present moment to say whether it is so or
not. I should apprehend, however, that it is not so.
I should apprehend, that the principles of law to
which I have called your Lordships' attention, as to the
impossibility of one State interfering with another, would
rather show that there may be some want of power to trans-
port from Upper Canada, because see what the consequence
would be. It might be to hold persons in restraint in this
country in opposition to the laws of this country. Sup-
pose there should be a law' there to transport for
a corpmon assault, would it not be monstrous that
in this country persons should be restrained from
their liberty and treated as convicts (for they are to be so by
the sth George IV.) put among the class of convicts for mat-
ters which the law of England does not think worthy of such
treatment. I have not felt bound to argue that there is any
power in Upper or Lower Canada to transport—not because
I concede it, but because it was not necessary to my argument
to controvert it. But I see many difficulties in the way of
those who are to make out the affirmative of their proposition,
that there is sufficient authority. The decision in respect to
Bermuda was since the sth Geo. IV. That was the very last
year. My Lord, the next great point was this. Suppose the
transportation to have been well awarded—that is to say, sup-
pose in its inception it was good, and good till it came

to the extent of the warrant of Governor Arthur,
was it good beyond ? My Lord, this is a point
of immense importance to the liberty of the subject. Gover-
nor Arthur seems to have given a warrant, which expired on
the party coming into Lower Canada. Your Lordships will
find by the return that Governor Arthur does not affect to do
anything with the prisoner after be leaves the confines of Up.
per Canada. It is averred that by the authority and warrant
of the Governor of Upper Canada the prisoner was sent into
Lower Canada. I believe I have stated the averment cor-
rectly. " After the said pardon the prisoner shall be con-
veyed, by the authority and warrant of the said Lieute-
nar t-Governor of Upper Canada unto' the province,"
and not " into." So that your Lordships will see
that I have stated the case more strongly against myself,
" and was there in Lower Canada by virtue of the warrant
in that behalf delivered into the custody of the Sheriff of
Quebec." My Lords, my Learned Friends have not dealt at
all with the arguments arising from the transfer of authority ;
nay, transfer it is not, for it is the expiration or fulfilment of
the authority of Governor Arthur ; it is the fulfilment of an
authority given by Governor Arthur, and the assumption of an
authority over the prisoner by Governor Colborne—an assump-
which it does not appear is legalised by any authority averred
to be inGovernorColborne. If he had that authority it is not se:
forth, nor is it even simply averred to exist. YourLordsbips are
therefore to collect it,and from what ? Is necessity to be resorted
to again. Why, even that necessity is not averred, and it is
quite clear there could have been no necessity. I should like,
my Lords, an answer to this proposition by my Learned
Friends, that if there was the power to transport from Upper
Canada via England to Van Diemen's Land, ought there not
to be an authority given to Governor Arthur which would
not be expired until the prisoner was landed in Van
Diemen's Land. If, as your Lordships supposed,
there might be the power ex necessitate, to carry the prisoner
through Lower Canada, to whom was that power entrusted?
Is it not a power in the Governor of Upper Canada to carry
his prisoner through Lower Canada. Is that not distinct front
the power to turn him up in Lower Canada, to be caught by
any persons who might choose to catch him and deal with him
as they might think proper, if they make a bold return to the
habeas corpus when he comes to England. Now, I want to
know how it stands upon this return, that Governor Col-
borne had any power. I called your Lordships' at-
tention yesterday to the nature of a Governor's
fice, and not one word of it was confronted by my
Learned Friends. A Governor, I said, was merely an
Attorney for the King. I don't know, therefore, what Go-
vernor Colborne is, except that he is a person who has some
patent from the King to exercise some power which usually
appertains to the Governor of Lower Canada. But is there
anything in the patent empowering him to exercise any autho-
rity over this person when he comes into Lower Canada.
Then, my Lords, his course of transit is changed imme-
diately. Governor Colborne sends him to England upon
an alleged necessity, but alleged by whom? Not by Go-
vernor Colborne. He never pretends that is necessary.
No part of the warrant sets out that he thought
it necessary. It is the gaoler of Liverpool only who says it is
necessary. A most important principle arises on this. The
law is so strict with regard to the dealing of one man with
another, that it is a principle that a person guilty of murder,
condemned for murder, ordered for execution, if executed
by any person but the Sheriff, is a murdered man, and the
person so executing him may be hanged himself for murder.
Can I give a stronger instance to show that it is not because
a man is criminal, though it may be right to transport him,
that any body, therefore, has that power ? Could any
body who found this man in Lower Canada, presume to judge
of the necessity of sending him to Van Diemen's land by way
of England,and put him into a vessel and carry him off that way?.
Could lie assume any dominion over him at ? My Lords,
to these points my Friends have given no answer. They have
not thought them worthy of attention, but I submit they are
points of very grave importance. But, my Lords, I doubt
whether Governor Colborne's authority was to do more than
to take the man on board the vessel, because it merely says he is
to be taken to such part of England as to the Queen may
seem fit ; from which it might be inferred that he was
to wait for some further authority as to what
was to be the destination of the voyage. And it does not appear
that her Majesty ever signified her pleasure in the matter.
My Lords, then he comes to England. Mr. Morton, the pri-
vate master of this private vessel, objects to go to Liverpool and
put the prisoner into the custody of a person who happens to
be the Governor of the gaol. Suppose that Mr. Morton had
kept the prisoner in the vessel or taken him into his own
house, so that the writ of habeas corpus would have been di-
rected to him, what would his answer have been ? Why, that
they were in transitu towards Van Diemen's Land. Would
that have been good ? If Captain Morton could have de-
tained them, could he have handed them over to any other
private person ? How does the gaolor of Liverpool for this pur-
pose differ from any private person ? What authority has he
simply by being the gaolor, to take these persons ? How
does he differ from any person whom Captain Merton might
hive met and transferred them ? Never let it be forgotten
that the terminus is not England. My Learned Friends, if
there was any irregularity in bringing the man here, was it not
cured by his coming here ? No. England for that pnrpose
is no more than a colony. Suppose these men had gone
through Nova Scotia, and had overpowered the master, and
put him to death, would they have been guilty of murder? I boldly
ask my Learned Friends that question ; and if they answer n the
affirmative, I would ask them to show on what authority they
make the assertion ? I assert they were perfectly justified
in obtaining their liberty, if they could do so by the use of
physical force; and I say that England, for that purpose, is
Nova Scotia. They are here, therefore, held by a person who
has committed an act of violence in obtaining them at all—
who has no authority to place them before the Court at all—
who is a person unknown to your Lordships—a self-elected
keeper of those persons upon whose statements your Lordships
are asked to:send these men into exile for life. My Lords, the
fourth point is this. Even supposing all these difficulties to
be overcome, is the return made according to the requisitions
of the law of the land ? It is not enough for Mr. Batchelor to
say that there are such and such documents in existence,
which contain matter which I will put into a nut-shell, and
call so and so, putting my construction upon the facts, and
drawing my inferences, and calling npon your Lordships to
transport these men by virtue of my inferences. My Lords, the
case of the King and Saddis has been referred to, and one of your
Lordships asked my Learned Friends, when commenting on this
ease, whether the want of a warrant was submitted to the
Court as an objection ? It was not. I know it may be said
that the case was argued by Mr. Erskine, for whom
no man has a greater reverence than :myself. But
still doctrines of law are doctrines of law, and the point
which is not made by Counsel, nor adjudged upon, can
receive no weight from that omission, however great the
name of the Counsel who omitted to argue it. But there is
a broad distinction between the case of the King and Saddis and
the present case. Gibraltar is averred to be a military station of
the English army. Saddis was a soldier in the English army. Fe
was a person under the controul of his officer—a person who
had not the perfect controul of his own actions. Saddis might
have been sent from Gibraltar to the Governor of Portsmouth,
who was also a military man, by the Lieutenant who brought
him, without his having been a criminal at all. But, my
Lords, is a principle vital to the liberty of the subject to be
considered as decided in a case where the point was never
adverted to ? I apprehend not. I apprehend, if the King
and Saddis be good law, it is only with reference to the par
ticular circumstance on which it was decided. The case of
the King and Saddis was founded, say the Judges, upon a
judgment. They found words in the return which they found
tantamount to a consideratum est.
Mr. Justice Wieeisms—There was no charge against them.
Mr. HILL—Yes, my Lord.
Mr. Justice WILLIAMS--It is not stated in the return.
Mr. HtLL—There was a judgment. Every thing which is
precedentao a judgment, may for some purposes be consi-
dered as disposed of and got rid of by the judgment, and they
were not to look any further. Lord Kenyon says the pri-
soner in this instance had been tried before a court of compe-
tent jurisdiction at Gibraltar, and sentenced to transportation
for fourteen years. It is not denied but that for the same
corpus debete, the same judgment might have been given in
the Courts here—treating it, therefore, as a judgment
by which it is distinguished from the present case in
that respect also. I humbly submit, my Lords, that it
is necessary the warrant should be set cut from begir.
ning o end, and that your Lordships will give no credit to t 1 •
statement of persons, where either there ought to be a warrat t

and there is none—it is bad for that reason—or, there is, and
the warrant is not set forth. Now, is it possible, according to
the laws of any country, that this man could be brought from
Upper Canada, and delivered to a gaoler here, with-
out a warrant to justify not only his detention, but all
the previous steps which led to that detention ;
and it ought to be set out. I called your
Lordship's attention yesterday to the King and Clarke, in
which it was said there must be a warrant, unless the com-
mitment were to an officer of the Court, in the face of the
Court ; arid if there was a warrant it must be set out. Now,
my Lords, is Mr. Batchelor an officer of any Court in Upper
Canada ? Is this man on his way to Van Diemen's Land,
according to the judgment of any Court ? No. He, there-
fore, is a private person, mentioned in the Act. He
cannot be detained without a warrant; and if he
he should have one, it must be set out. Now, my
Lords, I come to the last point—the parole aver-
ment in this return. It is averred by parole that the prisoner
confessed his guilt. Mark, my Lords, the violation of all
law end all principle which is involved in making such
en averment as this. Suppose Mr. Batchelor were
upon his oath—suppose he had read that document—suppose
he web e present at the signing of the petition by the prisoner
—suppose he knew it all as perfectly as possible, and were
placed in the witness-box upon his oath, and subjected to
cross-examination, would your Lordships allow the
question to be put, " Did the prisoner confess his guilt ?"
Your Lordships could not. Is not that one mode of trying if
the matter is set out with sufficient particularity ? If such a
question as that could not be allowed, how are you to take his
unsupported dictum—he who does not pretend he ever saw
this document, or, if he does pretend it, is a party to the
erossest injustice—a party to the cruellest injustice, by not
nutting it, of his own accord, upon the return. So, my Lords,
it is stated that he assented to the petition—that he assented
io the pardon. My Lords, what act did he do ? How can
your Lordships judge that he assented to the pardon ? Is it
possible your Lordships have the power of judging merely
upon the gaoler using the phrase " assented ?" Should not
the gaoler have told you what it was he did? So of the aver-
ment respecting (" it seemed fit to the Queen,") should it not
have been told how it seemed fit to the Queen, what
her Majesty did, what was said ? All this my Learned
Friends have passed over. They called them minor points.
Minor points I Why, they affect deeply the liberty of the subject.
Your Lordships are called upon here to form a most solemn
precedent—a precedent which may be used by and by to
make the writ of habeas corpus useless to the subject—al-
though your Lordships have protected it from the attack of
my Learned Friend, who wished that the subject might not
have it. But what will your Lordships have done for liberty
:f you allow the writ to run, and then make it thus mockery that
any man taking any other man, who is bold enough to put
upon a return to a writ of habeas corpus that be was con-
victed somewhere, and that he is on the way to Van Diemen's
Land, and that he has taken him to hold him safely until a
ship can be prepared to convey him to his destination ? Any
erson so dealing with any other person, may, according to
the doctrine of my Learned Friends, insure him transportation
for life. My Learned Friends say that is no hardship at all. It
is true, you may be shipped off to Van Diemen's Land, but
you will have the pleasure of bringing your action against the
man who has so shipped you, and who, in order to get out of
the way, may ship himself off to America in the next vessel.
With these observations I shall conclude with moving that your
Lordships discharge the prisoner Randal Nixon. There is one
point which I have net adverted to, and it is this—what shall be
done with the prisoners if your Lordships quash this return ? I am
prepared to offer observations on that point now, but it ap-
pears to me premature. The main question is, is the return
to be quashed ? and, therefore, with your Lordships' per-
mission, I shall reserve any observations on that part of
the case until another opportunity shall arise.
Mr. FAULKNER followed on the same side. The question
was, whether foreign criminal law could without any
aid of an Act of the Legislature of this country,
be carried into execution by this Court. Upon this
point the Learned Gentleman cited the case of Folliot
against Ogden, and read several passages from the third insti-
tute, p. 108. These were an sewer to the objections of Sir
F. Pollock, that this country would carry into execution
foreign criminal law. He presumed, that if persons were
thrown upon the shores of this country by stress of
weather, they might be detained here ; but it was
impossible they could under foreign criminal law.
There might be cases of aliens who had been delivered up
to foreign countries—aliens criminal ; but there were special
Acts of Parliament applying to aliens, and under these Acts
they might be seized by the Secretary of State, and he
might place them under the authority of a foreign country,
where they might be subject to punishment for any offence.
The question then came to this, how far these cases
differed from the case of colonies. Under the 31st
George 111 , c. 2, sec. 2, it was specially set out that
laws which should be passed by the local Legislatures of Up-
per and Lower Canada, shall be valid to all intents and pur-
poses within the province in which the same have been passed.
The law of Upper Canada has no authority out of Up-
ptr Canada. The law of Lower Canada is to have no au-
thority out of Lower Canada. There is a limitation
put upon the authority of the local Legislature,
In order to carry out such a sentence there must be first an
Act of the Colonial Legislature imposing the penalty of
transportation, and when the parties have to be sent to a
foreign country there must also be a concurring jurisdiction
in such foreign country. No doubt the Legislature of Upper
Canada might make laws imposing transportation—no
doubt they might make laws imposing even the penalty
of death—but the sentence under such a law was
of no avail out of the country in which the laws
were made. Even in Lower Canada the sentence
under an Act of the Legislature of Upper Canada could not
be carried into effect, unless there was a law in Lower Canada
concurring with that of Upper Canada. So it must be in
England, and so also in Van Diemen's Land. Supposing
that they were to carry the argument further—supposing that
a higher penalty than transportation had been imposed—sup-
pose they had been sentenced to be hanged, could they be hanged
in Liverpool in place of Upper Canada? That could not be done,
unless the laws of England concurred with those of Upper Canada.
The case of Saddis had been much relied upon by the other
side, but in his opinion it was much in favour of the prisoner. In
the return, in that case, it was set forth that Saddis was tried on
the 19th of May, 1800, at Gibraltar, by a Court-martial regu-
larly constituted by the Governor O'Hara; the return stated
that they were tried, not by the laws of Gibraltar, but under
those of England. In that case the laws of Gibraltar and
those of England concurred, but it is not so in this case. It
had been said, that if their Lordships should set aside
the sentence upon the prisoners then before the Court,
they would, in fact, be annulling all the sentences
passed in all our colonies, in Jamaica, or any other;
But their Lordships had only to look to the law, and not at
the consequence. He said that the case under their Lordships'
consideration did not come under the provisions of the general
Transportation Act. These were a totally new class of cases.
The prisoners had received a sentence which could not be carried
into execution under that Act. The returns which had been
made to the Court did not show that the sentence had been
imposed by a Court of competent jurisdiction. The detention
of the prisoners was clearly illegal, unless the law of England
concurred with the laws under which the prisoners had been
sentenced. The Court might just as well be called upon to
give effect to the laws of confiscation against the refugees of
France as those of the colony of Upper Canada, which
was to all intents and purposes a foreign country.
It was impossible to conceive that these persons, if they had
imagined that the highest penalty next to death would have
t theit i o n
eeffde, c theytof
that
course, not
be
p ard
been awarded, would not have rather taken their chance of an
acquittal, instead of asking for pardon, and receiving such a
punishment. They had no means of knowing that; if they
petohnaetdt—hethleayw khnadewbencon onlythingo-f
passed up two days before they were called upon to petition
the Governor ; and further, it was not to be supposed that
the Government of that coun ry would have had any interest
and that
in the suppression of facts, it would have been anxious
wouldseeing
their case.
Mr. Rosesucx—With your Lordship's permission I will
to get them out of the country without any investigation of
offer a few remarks on the present case. Before Ido so,
however, let me,
if possible, remove from your Lordships'
I have heard fall from my Learned
minds the impression which may have been made by the ob-
servations which
Friend, Mr. Wightinan, respecting the mercifulness and inten-
tion of this Act. In all the books of authority in which I
have looked, I have not been able to find any description of
Court, or any description of judgment, like unto this, except-
ing one, and that is in the 2d Institute of my Lord Coke, who
uses three remarkab'e words—" The philosophical poets de-
scribe the dramatic and damned proceedings of the judges of
hell.
" Gnossius heec Rhadamanthus habet durissima regna;
Castigatque auditque doles, subigitque fatcri,

bit leges pretio atque refixit."
first he punisheth, then he heareth, and lastly he compelleth
to confess—making and marring laws at his pleasure, which
good Judges and Justices abhor." This is the only law autho-
rity which I can find at all applicable to the present case. So
much of
to punish.fetchteioncsa: first objection here is, that
"—The
much for getting rid of all
forms
Passing from that topic I
sha lfor
look to
of lair
in order
the
the return sets out an illegal Act of Canada, and on the face
of the return it is illegal. flow do I prove that ? The return
the
sets forth an Act which gives the Governor of the province
the power of a conditional pardon, and then it says with-
out trial, or further proceeding, this party is trans-
ported. Luckily, my Lords, we have before us some more
of the laws of Upper Canada than we had yesterday. By
certain of the Acts now before your Lordships it appears—l
mean 7th Wm. IV., cap. 7, called the Upper Canada Act,
it is enacted, that whereas it is expedient to facilitate the
transportation of offenders to certain parts of his Majesty's do-
minions—appropriated for the reception of convicts, he it
enacted, by the authority, and so on, as is usually rec'ted in
these Provincial Acts, notwithstanding any thing contained in
a certain Act of Parliament of this Province, the 14th
of George the Third, entitled for the further
execution of the criminal law in these provinces," it shall be
lawful, from and after the passing of this Act, to sentence the
offenders to transportation, provided always that such offen-
ders be persons convicted and liable to be banished from these
provinces. Now, the law of Geo. IV, substituted banishment
for transportation, and this Act brings transportation back
into the law of Upper Canada, and it is dated in 1837—the Im-
perial Act,the general Transportation Act being passed in 1324.
It then goes on to state what the form of transportation shall
be. The third return provides that the period of transporta-
tion is to be mentioned in the sentence, and that the prisoner
shall be sent to such place as the Governor shall approve.
The Act then sets forth that a Judge's warrant shall be neces-
sary, authorizing the conveyance of the prisoner from place to
place, to the sea-port from whence he is to be transported.
Then there is another Act of the same year, chap. 6, which

'en. and the
contemplates the case of a conditional pare._ t% )
third section says (the Act is the 7th of Will. s„'
that it shall be lawful for the Governor to commute
the sentence of death passed upon the prisoner,
for any capital crime " other than high treason or murder;"
and I beg your Lordships to remark that curious exception.
The Governor cannot pardon for high treason or murder in any
case. Under no Act can he do it. He cannot pardon for
treason, and I should be glad to hear the Attorney-General say
he could—" other than high treason or murder, and with the
authority of his Majesty any person convicted of high treason."
Now, what does the other Act, the Ist Victoria? It does not
pardon persons convicted of murder ' • but the lawyers of that
country, being somewhat astute—like ours, having a one-eyed
astuteness—knowing they could not pardon persons convicted
of treason, think they can get rid of the objection by stating
that the Governor may pardon persons " charged" with high
treason ; and then, my Lords, what takes place ? The Gover.
nor not being able to pardon persons guilty of treason, is en-
abled, they say, by this Act—
Mr. Justice COLERIDGE—Is there any difficulty in pleading
pro tanto so much of the former Act ?
Mr. lioseuee—My Lord, the Governor has no power of
himself. He cannot give his assent to an Act passed by the
Provincial Legislature until he receives orders. By the 30th
section of the 31st George 111., he is to give his assent sub-
ject to these instructions, and his instructions are letters
patent, and in this case Sir Francis Head's letters patent
are held under Lord Gosford.
The ATTORNEY-GENERAL—Whether these instructions are
letters patent or not they are not called for.
Mr. ROEBUCK-The 'Court called upon me for the expla-
nation. It appears, however by the statute—it appears by it
that only certain powers—limited powers—were given to him,
and therefore it should be shown that the Governor had au-
thority.
Lord DENMAN-What section is that?
Mr. ROEBUCK-The 30th section which enacts, that when-
ever any Bill shall be passed by the Legislative Council and
the House of Assembly, such Governor, or the person admi-
nistering the Government of the Colony, shall, subject to the
provisions contained in the Act, and such instructions as may
be given him from time to time, give his Majesty's assent to it,
in his Majesty's name, and this, my Lords, gets rid
of the proposition so confidently asserted yesterday, that
this is a supreme Legislature. Here is one of the
limbs of this Legislature actually truncated of its
power, and therefore I humbly submit that it can hardly
be called a Supreme Legislature ; and further, there are in
the Act certain restrictions of the power by which the Gover-
nor can give his Majesty's assent; and there are further re-
strictions to the power of his Majesty, who cannot order
unless the two Houses of Parliament assent. How then
can they pretend to call it a Supreme Legislature ?
By giving a person power to pardon before a party is tried
are we to deduce as a necessary consequence, that the trial
is to be done away with when it is never said in the Act.
Suppose the Act had run thus—upon any petition being pre-
sented to a Lieutenant-Governor by a person confessing his
guilt, lie shall he sentenced, as the Lieutenant- Governor shall
think fit, and if that should have the effect of a conviction,
that would have got arid of the :difficulty, because that would
be saying in so many words that the Governor had the power
of sentencing; but who do your Lordships think would have
petitioned under such circumstances. Here is the mercy of
the Act, it holds forth one thing to one party and another to
another. There is nothing in the Act that says the trial
shall be dispensed with ; now, which is the case here ? why,
that the party is pardoned, he is arraigned before the
open Court, and he pleads his pardon. Now, supposing
there had been a general Act of Parliament, when he
was arraigned he would have pleaded a pardon, and then he
would receive the sentence. Laws were made to protect the
community at large, and the consequence of the Act would
have been that when the party came before the Court he
would clearly show his assenting to the pardon. Is is not,
therefore, my Lords, of great importance that we should have
evidence of that ? We say we have none here ; and we fur-
ther assert, that we never assented to it. If such a course
was open, why was it not, I must ask, adopted by the
an.horities on behalf of the Crown ? The Solicitor-
General admitted yesterday that there were some conditions
that were illegal, and which ought not to be carried into
effect. I assert that this condition is illegal. If I
assent to receive pnnishment by contract and without sen-
tence, that I say is an illegal condition ; it is illegal by the
law of England and by the law of Canada, and therefore,
according to the admission of the Attorney-General, on the
face of the return, I show there was an illegal condition. How
then can it be said that you are carrying into effect a valid
condition ? Although the condition is illegal, the pardon is
good, therefore from both these reasons what has been done
in Canada is a violation of the Law of Canada, and
it is a violent and illegal act on the part of the Gover-
nor. Now I pass from the argument that the Act was
illegal in Canada to another objection which is this—
that for transportation, extra fines, there must be two concur-
rent jurisdictions. This applies to the Imperial Parliament,
just as much as to the Provincial Parliament : suppose the
Parliament of Great Britain chooses to say it will transport
offenders to Calais, there is nothing to prevent it from so say-
ing, but there is a great deal to prevent its being carried into
effect because it cannot be done without the concurrent juris-
diction of France. If France was to say it would aid and
assist in it, then it ought to be done, and so with respect to
Canada. Why do I say the power of the Parliament in
Canada is corifin 4:1 to its own territories ? I say it, because
the Imperial Parliament says it. Now supposing that Upper C-
anada had said there is an island in the St Lawrence, but situated
in the province of Lower Canada, to which we will transport
offenders, could they, I would ask, do that without the con-
currence of the Legislature of Lower Canada ? Certainly
not. The Legislature of that province would have said, " We
know nothing of the Legislature of Upper Canada, and we
have no notion of criminals being sent from there to our pro-
vince.'' Suppose America had said, 44 We will send our con-
victs to Upprr Canada." Could they do so? Certainly not without
the concurrence of tl e Legis'ature of Upper Canada. Sup-
posing that Upper Cansd had said, " We will transport our
offenders to England'—would that be lawful ? Certainly not—
because there was no concurrent jurisdiction of the English
Parliament. What right, therefore, is there to say they shall be at
liberty to send them to Van Diemen's Land without the concur-
rence of the liggislature of England? None at all. Now having
established that point. I come to the next inquiry, how has
the Canadian Parliament been 1, aiding the Imperial Par

liament ? The Attorney-General laboured yesterday ex-
tremely hard to show that he did not rest upon the sth
of George IV., and yet throughout the whole of his
argument, that Statute was the authority upon which he
relied to transport these parties. How is it that the power
of transportation exists ? Not by the power of the
Legislature of Lower Canada, but by the power of the Impe-
rial Parliament. The laws of this country are sent in a lump
to Canada—that is the improper and unjustifiable way in
which the laws of this country are introduced there. So
long as it was simply under the Imperial Parliament,
and in that portion of the territory, without any
law at all but the law of Great Britain, there probably
wi I be the power of transportation ; but it is extremely diffe-
rent, where you bring in aid the power of the Legislature of
that country. Here the party is punished under a Pro-
vincial Act, and how is that aided by the Imperial Par-
liament ? The Imperial Parliament never intended that
parties should be punished without trial, but the Act
of the Canadian Legislature says they shall be.
This is a strange exercise of prudence and mercy ; but strange
as it is, it is true ; and the Imperial Parliament says it will
not aid the Provincial Legislature in punishing a person
without he is convicted. Recollect, the place is assigned for
convicts to be received, and it is said convicts under Act of
Parliament ; that her Majesty will assign certain places to receive
the convicts ; and before that power was given to the Crown
I am not sure the Crown had it. That Act particularly gave
it, and Van Diemen's Land and New South Wales is assigned
for the reception of convicts. They can send them to
no other place than where her Majesty has assigned
them. There are two things required—first, the place to
be assigned by her Majesty, that is, New South Wales or Van
Diemen's Land ; secondly, there is power to send them
through the territories of Great Britain, and beyond the
territories of Upper Canada, and no person is allowed to be
sent but a convict. But now, then, let us see what happens,
or might happen, if your Lordships do not require further
evidence than what appears on the face of this return. The law
of Canada has wisely provided that a person convicted before a
Judge shall be attended with a Judge's warrant—a very neces-
sary piece of evidence to show the world at large that he is a
convict. Why was that required? Because they saw clearly
that under the British Act they could not be carried to Van
Diemen's Land without some evidence of their being con-
vict ; and the law wisely provides that—for this pur-
pose—not one person, but a large number of persons,
shall be responsible, for we know that Governors have done
illegal acts, and have been punished ; and we may live to see
other Governors punished for illegal acts, and some for
murder, as has been the case already. England has already
been disgraced by her Governors in that way, and
it may, ere long, appear that she has been disgraced in
that way again. The law says it shall not depend
on the Governor's will, but they shall be protected by all those
forms which civilized life has discovered, viz„ by the formal
production of documents by judicial officers. This I complain
of ; and I beg of your Lordships attention to this, if I may
ask your attention to any thing, that this is an Executive
proceeding entirely. It is not judicial. I want, my Lords,
some evidence of its being a judicial proceeding. It is
exactly as if the Secretary of State had chosen to
to take me up, and to baaish me, and send me off to
Van Diemen's Land through Jamaica. When I had ar.
rived, if by chance I should arrive at Jamaica, and not
at Van Diemen's Land (for God knows who I might find
there—some very curious people arc to be found there)
—if I had gone to Jamaica, they might have given me
redress. I should have said where is the judicial proceeding
not being an alien, but being a British born subject (as all the
prisoners are, my Lords). I demand to know by what judi-
cial authority I have been turned out of the country. Now, I
want your Lordships to ask that question also in this case. I
want your Lordships to ask what judicial authority has sanc-
tioned the proceedings against these prisoners. Remember, my
Lords, there can be no conviction without judicial authority,
and that without conviction they cannot legally he transported.
These, my Lords, are the reasons for which I should ask your
Lordship to discharge the prisoners. I will not go, however,
as perhaps I might do, and as ulterior proceedings would
compel us to do, to the exceedingly imperfect nature of the
whole evidence. I will not state in this case, my Lords, that we
have not petitioned however true it may be. That is the fact,but I
don't state it now, I will state it in ulterior proceedings. I
press it on your Lordships again. You have not sufficient
evidence of the facts on which these prisoners arc to
be deprived of their liberty for life ; for recollect
what the Solicitor-General said yesterday about our having
an action against Mr. Batchelor. Is not that a mockery

of justice? Is not that under form denying it in substance 7
Is it not something worse than trifling with the law? Is it
• ,„: cruel ? An action against Mr. Batchelor, who perhaps
is keeping :beep in New South Wales, and who may keep sheep
there for the long term of his natural life 1 Now we have no
other remedy; and I would read one passage from what Mr.
Justice Foster says. He remarks there is no other remedy,
and gives reasons which have never been controverted, why we
should inquire into the facts of such a matter. It was the
case of parties who were pressed in 1758 ; and he says, writ-
ing to Lord Chief Baron Parker, " I agree with your Lord-
ship in the truth of the general doctrine, that a return
to a writ of habeas corpus is conclusive in point of
fact. It is very curious that it should be determined
that in a matter respecting the trifling sum of 201. I may
question the truth of Habeas Corpus, but that when life is con-
cerned I may not." Now, my Lords, that is the doctrine, that if
the return had been in a case only relating to a tailor's bill I might
have controverted it, but as it does not, and only relates to the-
trifling circumstance of my life, I may not controvert it. Then
he goes on, " this, I admit, is the general rule, but I think it is
not universally true." There are exceptions, and exceptions do
not, as your Lordships know, destroy, but rather establish a
general rule. The case of a man being pressed is one of
them, that if the party cannot controvert the truth of the re-
turn,he is without a remedy. An ineffectual remedyis no remedy.
It is the offering of a bauble to our children when they are
" crying for bread I" We, my Lords, are crying for bread—
we are crying for life. "He is taken from the Exchange,
hence to the Savoy, or on board the tender," as these men have
been done. Butit is said he is not without remedy. Whatreraedy?

TO BE CONCLUDED IN A
SECOND EDITION.

„
AMY YIAGISTRATES.—The following thirty gen-
tlemen will, it is understood, be recommended to the Secre-
tary of State as Magistrates for the borough of Manches-
ter .—Alexander Bannerman, J. Brotherton, M.P. ; D.
Broadhurst, T. Cook, W. R. Callendar, R. Cobden, J.
Hyde, A. Henry, T. Hilton, J. H. Heron, J. Kershaw,
I. Heywood, J. Murray, H. M'Connell, J. M'Viccar, T.
parkland, W. Neild, H. Newberry, D. Price, T. Potter,
Mayor ; R. Roberts, 'F. Sharp, H. Tootal, J. C. Smith,
J. A. Turner, G. W. Wood, M.P. ; C. J. S. Walker,
and A. Watkin, Esqrs. This list comprises ten Church-
men, nine Unitarians, seven Independents, one Quaker,
one Swedenborgian, one Scotch Kirk, and one doubtful.
CITY BOUNTY.—The foreman, Mr. Henry Levy,
assisted by his colleagues, the Inquest Jury of Billingsgate
Ward, distributed on Monday last, at the Vestry-room of
St. George's, Botolph-lane, upwards of 701. in bread and
coals to the needy of the ward, atnot.l.rst whom were se-
veral of the recently discharged city watchmen, to whom,
being without employment, and having families, the relief
proved highly acceptable. This praiseworthy example of
benevolence ought to be extensively followed by other
bodies.

DAMASCUS, Nov. 23, 1838.—There has been
another insurrection in the mountains of Gioue Dagh, in
the north of Syria. The rebel chieftain has only '20,000
men under his command, but being alarmed at the move-
ments of Ibrahim Pacha, he feigned submission, but a fess
days after he decamped. This naturally exciting the sus-
picions of the Pacha, the Egyptian troops received orders to
march, and some of the secondary chiefs have been seized,
and held as hostages for the preservation of the public tran-
quillity. But that tranquillity is not likely to continue
while the misunderstandings exist between the Suitan and
the Pacha ; each is constantly exciting the subjects of the.
other to revolt. 'We are again menaced with a movement
among the Druses, reports being spread that the European
Powers nre taking part with the Sultan against Mehemet
Ali. In this way the stamina of Syria, Turkey, and
Egypt are exhausted ; and the armed truce, which is called
" Dearo," is almost as ruinous as open war would be.—
(From a Correspondent.)
DRURY-LANE THEATRE.—After the extremely
attractive ballet of The Devil on Two Sticks, in which the
grotesque humour, whimsical capers, and eccentric comi-
calities of Mr. Wieland are as fresh and as laughter-stir-
ring as ever, a new one-act afterpicce, from the pen of Mr.
G. Dance, was last night produced with perfect success.

It is entitled Now or Never, and turns on the stratagems
resorted to by Herman Waldrick (Mr. Balls), a gay
young student, for the purpose of carrying off Rose Blum-
velt (Miss Poole), the wealthy and accomplished ward of
Von Puffenheim (Mr. Compton), the commandant of the,
guards in an imaginary German city ; and, at the same
time, of assisting his friend and fellow-student, Lothaire
Von Blenberg, a sighing shilly-shally lover, without a par-
ticle of enterprising spirit to secure his mistress, Laurine
(Miss Fitzwalter,) the daughter of Mr. Burgomaster Wig-
gendorf. This trifle is very well wrought up. The dia-
logue is neat, the equivoque, in the early part of the drama,
is quaintly amusing, and many of the situations arc plea-
santly comic, especially that at the conclusion of the piece_
The piece was well acted. Mr. Compton was very felici-
tous in his delineation of the pompous ♦anity of the com-
mandant ; and Mr. Hughes hit off the blustering humour
of the burgomaster with commensurate inflation. The
lively Herman was sustained with easy confidence by Mr.
Balls, and his fair idol was represented in a pretty pouting
manner by Miss Poole. Her part, which is very trifling,
would be improved by the introduction of a song. The
piece was announced forrepetition without a dssenting voice.
TAX ON BREAD.—The Manchester Times truly
says, that the movement against the Corn-law proceeds in
a manner which must be highly gratifying to every man
who, taking a wide view of the effects of legislation upon
the happiness of mankind, and, unconfined by the tramme s
of class interests, wishes to see the whole human race freely
interchanging the products of their industry, and thus con-
tributing to individual and collective comfort. To ourselves
the movement is a matter of high exultation.

In the Sheriffs' Court yesterday, Mr. King, boat-
builder, of the Commercial-road, obtained the sum of 4001.
from the Blackwell and Commercial Railway Company for
loss of trade and expense of removal, &c., to which he would
be put in consequence of the Company requiring part of his
premises for the purposes of their railway. The case lasted
the greater part of Satdrday and yesterday.
Yesterday afternoon an illicit still was discovered in
full work at a house in Blackman-street, Borough, from the
circumstance that a portion of the spirit had caught fire
and caused an explosion, which attracted the notice of a
policeman. It had evidently been in very extensive use for
some time. The parties on the premises were secured.
SNOW STORM IN THE NORTH.—Taro London
mails are now due at Inverness—a proof of the severity of
the snow storm in the south. Communication with Edin-
burgh is still open, though the snow lies about two-feet
deep in the neighbourhood of Pitmain, and other places
betwixt this town and Perth. In the counties of Ross,
Sutherland, and Caithness, there has also been a heavy
fall of snow.—lnverness Courier.
TO FIND TIIE VALUE OF A DIAMOND.—
Ascertain the weight in carats, double that weight and
multiply the square of this product by V. Thus a dia-
mond of four carats, 8 by 8 is 64, multiplied by 2, gives
1281. Ure's Dictionary.
NEW MAIL BETWEEN LEEDS AND MANCIIES-
TER.—The deputation from Leeds and Huddersfield have
at length surmounted the difficulties they have had for
some time to contend with, and have succeeded in their
efforts to get a mail-coach established between Leeds and
Manchester, through Huddersfield. By the proposed
mail, the London letters will arrive in Leeds about half-
past twelve o'clock, instead of twenty minutes past two, as
at.present.
At Marlborough-street office yesterday, a barrister,
aged 25, was held to bail for causing a disturbance at the
house of a widow lady, aged 55, and possessing property
to the amount of 30,0001., because the lady refused to
convert friendship into love, and accept him as a husband.
The repulsed swain threw out some insinuations on the
lady's fair fame, which the latter most positively declared
to be without the slightest foundation in truth.
Within the last few weeks a large quantity of coun-
terfeit coin has got into circulation, principally among the
small shopkeepers in the suburbs. The coins are for the
most part counterfeits of the new shillings and fourpenny
pieces, and are tolerably well executed. A large number
of French franc pieces have also got into circulation as
shillings.
In a case which came before the Lambeth-street
Magistrates yesterday, it was stated that complainant, in the
course of a drunken fit, which lasted three weeks without
the slightest intermission, had been supplied with as many
as 38 glasses of rum-and water a day. His " score" for
the period referred to was 25/.
Ever since the fatal morning of Monday last, the
North shore, strewed as it is with wrecked vessels, has
been the scene of great attraction. Yesterday, however,
the whole shore, from the Clarence dock to Crosby-point,
literally swarmed with visitors. Thousands upon thousands
on foot, on horseback, is gigs and coaches, visited it, and
the beach presented a most animated appearance. The
business of discharging the stranded vessels wag carried on,
particularly at low water, wll,ll the tide left the: t dry,
with great activity, and the spectators around them, espe-
cially around the Oxford, were as thick as flies on a lump
of sugar. The weather was rather tempestuous, and about
four o'clock a heavy fall of rain came on, which drenched
and dispersed the multitude. The sands were cleared by
the operation of the rain in an incredibly short space of
time. The visitors to the Cheshire :bore were numerous, .14 KT
but few compared with the number that visited the Lanea-
shire sands.—Liverpool dlbion.
At the Insolvent Court yesterday Mr. James C 4).
cott, commonly known as James Prescott Warde4;-''.-..,/s. pad
actor, of Covent-Garden Theatre, appeared to be admilted.:i
to bail until his hearing, which was granted. The applies.
tion was not resisted by the detaining creditors. The pro- ?t,'*-41.
posed sureties were Mr. John Wilmot and Mr. Henry
Robinson, \4-10'