The Sun.
London, England, 1839-01-15 00:00:00

Iritit SUN', LONbON, TTJIESi)AY, JANUARY 15, 1830.

THE CANADIAN PR. I SONER St

QUEEN'S TIENCI-I-(THIS DAY.)
The interest esciterl by the bringing up of the Canadian
prisoners on wr;:ca of habeas corous still continues unabated,
and from an i arly hour all the avenues leading to the Court
were throng, d with persons anxious to obtain admittance. The
prisoners w, :re brought in at nine o'clock, and were placed in
the third re am; of the benches usually appropriated for Counsel.
Although tiaey have been, since their arrival in London, in the
gaol of /4awgate, and nominally in custody of Mr. Cope its
Govern() r, Mr. Batchelor. the keeper cf the borough gaol of
Liverpr jul, is still responsible for them, and has them in charge
until V.lO decision of the Court is pronounced upon the ease.
At. half-past nine the galleries were completely filled, and
atno-ng the auditory were a number of ladies. There was an
unusual display of Counsel in the body of the Court, almost
eve ry seat being occupied.
Justice Halliburten wad on the Bench at an early
hot tr, and appeared to regard I:ne bustle of preparation going
on about him with unusual interest.
;Mr. Flume took up his poz.'ition of yesterday in the Jury box.
!Miss H. Martineau, an.'A several other ladies, were admitted
through the Judges' prir4te room, and were accommodated with
seats under the Bench,
At a few minutes prist ten, the Judges took their scats, and
the doors were then thrown opEna to the public, every corner
beins; immediately r,ccueied.
After the COu'aT had given judgment in an ejectment case,
Lord DENMAY, said the Court has considered the objection
taken on the part of:the Crown yesterday, and they do not think
it necessary to hear you ( Mr. Hill) on thlt objection. We
haver,() dou'ot th,at we are bound by the practice.% hie') has now
Prevailed for B'.) ples, since the year 1758, of granting writs of
labeas corpus before Judges' returnable immediately before '
themsi:lves in time of vacation. In 1758 a bill was introduced
into the Haute of Lords for the purpose of remedying some
'3l the def!cts of the law of habeas corpus as it then stood,
and seven out of the ten Judges gave their opinion in favour of
the law as it now stands, among the rest Chicf-Jus-
tlec Wilmot who has. been referred to. So that
during the last eighty years and probably more, the
lune practise has prevailed, and some cases have been re-
ferred to of even an earlier period. We are aware that we
might be extremely well entertained for several days by anti-
quarian discussions upon the practice of the Courts of Law,
the records of which have been well kept, but it seams too,
that we would be tampering with this great remedy of the
flbject, if we did not say, that we will abide by the practieva
which we have found established in this Court of Law, and
nave
events of this kind to be dealt with as those which
nave been heretofore brought before us, viz., to pro..
card to inquire wlo•ther the return is good, or not.
may state now, that according to Dodd'. 3 interesting
Account in Bacon's abridgement, seven 'of the Judges,-
including the Chief Baron, Mr. Jostler, Wells, and Chief
Justice Wilmot-Concurred in the opinio.
JI have stated. Judge
ostcr was unable to attend by reaso'r of the death of his wife,
but it was well known he was of tb a same opinion—that he
even wished to carry the remedy
0° habeas corpus still further.
Lord Mansfield was a Member
of the House of Lords at that

ime, and his opini may be '..,scertained by his practice at that
period. It appeals that t:,,e opinion of the Judges was taken
as as actual staterbent 'Jf the law as it then existed.

Mr. HILL—May 3 *be allowed to add ►hat Lord Hardwick
delivered his opini'Ai on the same side?

The Arroa'sr.r-GENERAL—I have great satisfaction in find•
ing that it is your Lordships' opinion that you are authorized
to proceed on this writ; but I thought it my duty, the autho-
rities oa the; subject being so contradictory, to bring the mat-
ter before Court.
Mr. 1111.1.—My Learned Friend the Attorney-General hav-
ing oxvessed his satisf: c.ion, I have to express my sorrow that
RnY litt.lo difference about the points upon one side or the
other of this argument should have led her Majesty's Attorney..
‘."lll.tral to attempt a blow at the liberty of the subject, through
that most important writ of habeas corpus. Having said this
rnu,...h. I shall now proceed to move upon the return -which is
nee filed in record.
The ATTORNEY-GENERAL—It is not filed.
Mr. HlLL—Then I move that it lx filed, that is my first
Motion. That return has been road in. Court.
• Lord DENAIAN—The officer said it is filed as a matter of
Course.

The ATTORNEY-GENERAL.—If ...fie officer says it is filed as a
• Matter of course, I must acquiesc a. I shalt merely observe, that
1 understood the practice hAd been not to file a return until
the discussion had termiunte'l Various cases may be cited, in
which amendments were %rade to the return after objections
bad been taken to it, anti
that clearly shows that it was not
Considered a matter of course that the return should be filed
the moment it is re..d. In all those cases it was, after d's-
cussion, and aftex objections had been pointed cut, that the
amendMent wr,s
permitted; and I had imagined that the ob-
jection was t
.o be made to the return in the first instance. I
don't know. whether Mr. Daltrey (the officer) means to say
that it is now filed at this instant. It is uow presented to the
Court in the same state it originally was.
Lora DENMAN—He says be never heard the question agi-
tated 'oefere. It was always understood to be filed when it
niur.e into Court. _

The ATTORNEY-GENERAL—I have every respect for Mr.
tltrey's opinion ; no Court ever had a more valuable officer.
'Some authorities say, that after a return is filed it may not be
amended. If lam to understand that the return is in the
same state as it crigiriany was under these circumstances I
:have no objection.

Mr. HILL—So far as these prisoner; are concerned I can-
not consent to any understanding. The return is filed, and it
is upon that fcoting I am proceeding to argue.
Mr. Justice COLERIDGE— Mr. Attorney, you 'nave been ar-
guing againit the writ issuing.
The ATTORNEY• GENERAL —The return is now berore the
Court.

Mr. Justice WILLIAMS—Why, has the Court less power over
it _when filed than, before?
Wiewresare Counsel for the Crown, cited an autho-
rity to show that a return might be amended in Court.
The ATTCANEY- GENERAL --Ye&. after an objection made.
Lord De.Nmate —I don't think that proves your position at all.
Mr esee—My Lords, I am about to argue this case upon
th, foot;.ng that the return is filed, and I trust the time is not
far
dist Ant when I shall be able to come to the merits of the
ea
',set`sod that the stream of • preliminary objections, however
nge will come to an end.
Lord DEN MAN— W bleb ease are you upon ?
litee—l am moving the discharge of Leonard Watson,
'Yu
arcsreadng the return now filed in this Court. My Lords,
this is se in w hich the prisoner is not 'convicted, nor stated
to be convicted. It. is one of the class of cases in which there
persons, nine persons—the other class of cases consisting of three
•rersu"s• But I shall confine my motion to the case of Leonard
Watson,„le for although it is the wish of my Learned Friends
,-, myself to take up as little as possible the time of this
"art, Yet I must guard myself against being supposed to
argue the case of the whole class in the case of Leonard Wat-
,Bo.rbecause it may be possible that I shall have observations to
efu_ on the other cases, although probably the main argument
`ll'”' arise in this case. Your Lordships have learned from
this. return that a vessel appears in the port of Liverpool—a
113Tivate vessel, under the command of a private person—that
'that vessel contains a large number of persons held by the
ester in a state of confinement—that he elects to put those
Persons under the custody of Mr. Bachelor, the gaoler of
Liverpool—that Mr. Bachelor elects to receive them, and
thatl he returns as the cause of their detention that he holds
1, u`e persons for the purpose of their being transported for
van
Diemen's Land as soon as means shall be prepared
i ohe factsrtbeirtransportation. That, my Lords, is a statement of
so far as the jailer can state them of his own know-
edge. Under these circumstances, the prisoners apply to
Your Lordships for a writ of labeas corpus, and a return is
nade, which return of course, attempts to set forth, as it must,
the cause of the capture and the cause of the detention--
UM is to say, it justifies the preceding statements, to
e'Which I have just alluded, and referred your Lordships.
It has been a matter of very anxious consideration
with My Learned Friends and myself, what is the proper
course, to bring this case before your Lordships. Are we
upon a matter where a private man, or at least a public officer
of very low degree, a gaoler of Liverpool—are we in a case
where such a person makes a statement regarding a great
number of facts occurring in a foreign country, of which he
can have no cognizance at all, to which he hinds himself
merely upon his hearsay and by no oath—are we, upon a state-
ment merely, a piece of pleading of no more authority in the
shape of evidence than a plea to a declaration, or the declare-
: 'Con itself—are we to be satisfied with that statement—are we
• to be concluded, as my learned friend the Attorney-General
gays we are, by the statement of Mr. Bachelor, as to
What occurred in Upper or Lower Canadas, or else-
Where ; or are we to attempt to go into the real
facts of this case, and show your Lordships how
• repugnant they were, as I believe them to be, to the return
made. My Lords, there are very high authorities for saying
that we have a right to go into the real facts of the case, and
by some means or other to bring them under the considera-
. bon of the Court ; and as I think the prine!ple of the writ
Ke!, by his. Judges has a right
Ifhabeas corpus is, that the
• to know why any en, of his subjects is in prison, it
should seem that that right to know and judge must
• of necessity draw after it the treens, by some eiay
or other, of having the facts before the Court, not
a mere unaut'aorised statement, but the facts upon
Which that judgment is to be founded. I shall lose nothing
• before your Lordships on behalf of my clients if I admit that
this doctrine, so reasonable in itself, and supported by the high
authority of Mr. Justice Foster and others, is nevertheless en-
cumbered with many difficulties, but if even it becomes neces-
sary, in the course cf this investigetion, I shall find it my duty
to prefer these facts to your Lordships, and I shall sustain my
. right to prefer them by authorities neither few nor unim-
portant in till> case ; hut for the present moment I am to con-
tend that that return is so bad, legally speaking, both nega-
tively from what it omits, and affirmatively. from what it offers
to your Lordships, that it will not be necessary at the present
moment to do more than to call your Lordships' attention to the
return itself. Considering it, es I will,
by those legal prin-
t"es. el-1a ever. ,hey. A! C important, must ha most so in
#eases of this k,,nd, k -a , that lour Lordships, who for the pre-
sent moment, I eell admit, cannot travel out of the return.
must see with absolute certainty that every fact is to be found
there stated recording to legal principles with sufficient per-
spicuity to enable you to judge and draw your own inferences
frem the facts stated by the gaoler of Liverpool. The first
. objection which I shall male to this le turn is, that there is no
conviction either set forth or averred against the prisoner
• Leonard Watson. He is here in the course of transportation
for life to Van Diemen's Land, and there is no conviction
stated upon which he is sentenced. It will be admitted
by my Learned Friend the Attorney-General that there
is no conviction, and his answer to me will be that
there is something equivalent to a conviction. The return

arts forth, that by statutes patted in 'the first year of the reign
of Victoria, a provincial statute, intituled " An Act to enable
the Government of this Province to extend a conditional par-
don to persons concerted in the late insurrection," and after
reciting that it is advisable to extend the mercy of the Crown
to certain persons, it goes on to enact, that upon the petitlen
of any person charged with high treason, and in Custody,
pref,rred to the Lieutenant-Governor before arraign-
ment, and praying to be pardoned, it Would be
lawful' for him, if it seemed fit, to grant a ptirdwi in her
Majesty's name, on such terms and conditions as might
appear proper, which firclon Was to be granted under the
Great Seal of the Province, and after reciting in stibstan'a,
the prayer of such petition, it states that it stintl have the same
effect as an attainder of the
.sperson for the crime of high
treason, so far as regards the forfeiture of all his estate and
property, real an'l personal—that is so much of the statute as

• _
seemed advisable to Mr. Bachelor's legal adviser to set forth
on the present occasion. The return goes on to say that the
prisoner did petition the Governor, that he confessed his
guilt, that a pardon was granted on condition of his being
transported for life. I understand it is to be urged that that
state of things is equivalent to a conviction. First, in order to
proceed by steps, I will show to your Lordships that a convic-
tion is necessary. Perhaps I am stating the law too s:rcngly
against myself; there is no onus on me, and it is for my
Learned Friend, the Attorney-General, to show that a convic-
tion is not necessary. I understand he intends to show that there
is something equivalent to a conviction, and that he reste Upon
the statute of 5 Geo. IV. as applying to this ease. We are
now inquiring by what authority the gaoler of Liverpool holds
those persons, however they Came to him in custody. His
authority mu-A be an English authority—it must be a power
conferred by the Imperial Parliament, and not by any pro-
vincial authority. Now, my Lords, the only statute that re-
fers to this is the sth of Geo. IV., and that statute, as if it
contemplated the present ease, is drawn up in the most
guarded and careful manner, for the purpose of securin&the
-liberty of the subject. I refer your Lordships to the lath of Geo.
IV., c. 84, s. 17. That section begins by reciting that in
parts of his Majesty's dominion not within the United Kingdom
persons were liable to be punished by transportation, and that
others upon whom sentence of death had been passed, might
receive pardon in consideration of transportation beyond the
seas; and there being no means to transport them without
first bringing them to England, it was enacted, that whenever
any one was convicted and adjudged to transportation under
such circumstances, and was brought to England in order to
be transported, it might be lawful to imprison any such offen-
der in any place of confinement until he had been transported.
Now what description of persons does that Act apply to ?—to
convicts, and convicts only. The name convict is a
term perfectiy well and thoroughly defined in our law
and yet the Act, anticipating as it were some such case as the
present, goes on to say, " convicted by any Court or Judge."
It is, therefore, quite necessary that this person should be con-
victed. I shall presently show that that is net all that is ne-
cessary ; but it,is one of the necessary renditions that be should
be convicted. Is that persona convict? How can it be
maintained that he is? Why, by my Learned Friend telling
me that there is something equivalent to a conviction. The
levy of England knows nothing of the doctrine of equivalents
in penal laws. It is nothing if the prisoner be greater
or less than a convict. The law of England says
that he must be that particular identical person, a convict, acid
it is unnecessary what else he be if he be but that. I need not
take up the time of the Court, be telling your Lortiships'
attention to the legal defiritiott a the term convict. You
well know what it is. The Act has here supplied it to be
logically in favour of lihcrty and annexes the definition, " con--
I-Teed by a Couto.. Judge." What Coute—what Judge has
interfered here?
.lelow is the man a convict in any sense of the
term ? Your Lordsleps see that ho is seat here by virtue of
preceedirega which, I am stile I n ed not tell your Lordships,
ree:eires to be watched with vigilant scrutiny, not unmixed
with suspicion—proceedings unknown to, and abhorent to the
principle of the English law. It appears by the return that the
prisoner was in gaol —it appears by the return that he present, d
something which the gaoler of Liverpool calls a petition—that it
contains something which the gaoler of Liverpool takes open
himself to affirm was a confession of guilt, and that upon
these matters before arraignment—for the statute is particular
in saying it must be before arraignment—all care is taken,
my Lords, that the prisoner shall never be seen in a public
court of justice for any purpose. It is a private proceeding,
and must be done before arraignment ; there being, there-
fore, no power in the prisoner ever to be brought into a
public court. And then upon this petition, and what is
called a confession of guilt, pardon is to issue. To your
Lordships it seems to have been done in p, ison, where a man
is anything but master of his own actions. Your Lordships
know that even in the most unimpoita tit of civil contracts the
law looks with great .suspicion on everything done while a
party is in prison, the validity of which depends on his own
will, as it does here, whether appearing on it or net,
and what matter may have been put into that petition.
What, then, is this statute ? It is a statute to
enable the Government to send its agents into a
prison, and to obtain something then to be called
an assent to any punishment short of death. That is the be-
nefit conferred on the prisoner by this statute. It is quite
clear that any punishment short of death can be inflicted—it is
by no means clear that the punishment ma) or necessarily
must be short of death. I don't know what is the legal defi-
nition of pardon, I don't know that Lord Russell was not •
pardoned when that portion of his sentenca which saved
him from being cut down alive and disemboweled, and all
the other horrible mutilations of our treason laws were
not carried into effect. And I don't know that
Governor Arthur under this statute may not have construed
it into a pardon, because he simply and mercifully, and in the
shortest way, executed those men, taking from them those
enormities of the law which the wisdom of our ancestors added
to execution. Does this lock like a conviction? Does it
look like a trial—does it appear that these men had
any of the benefits of the English laws, or the
laws of any other civilized country ? It is a law
which perhaps may be justified by the necessity of
the case. I make no political remarks whatever—l am
here to argue the point of law ; but, as a lawyer, I submit to
your Lordships there is nothing here which for one moment
can he assimilated to proceedings in Courts of Law. It is a
libel on the term conviction, and on anything like a trial. So
you call a man who acts under the Statute a Judg. ? It is •
degrading the authority of the Judge throughout the world to
place upon the footing of a Judge any person who acts uns
der this Statute. But if this is , a conviction, must it
not have something on the face of it, or equivalent
to a conviction ? These are new terms to penal I
law—the liberty of the subject is to be abridged by these
proceedings, so far as they can. The bringing this man's
case before your Lordships is to be restricted between the
narrowest limits; it can only be done in term time, so that
according to the Learned Attorney-General's argu-
ment, if these men come here during the vacation,
they must be sent away without seeing your Lord- I
ships' faces ; but when we come to the doctrine of
punishments,
my Learned Fri.•nd transfers his liberality. The I
liberty of the subject is to be confined within the strictest
limits, while the power of punishment is to be widely and
broadly extended. These wholesome provisions, by which
penal exactmeets are to bo strictly construed, are put aside.
My Learned Friend not only perverts but reverses them, and,
instead of being construed narrowly, they are to be construed
broadly—instead of being construed according to the strict
letter of the Legislature, they are to be taken in their widest
sense. Let us see whether the subject could use this
as a conviction. if it is a conviction wrongfully obtained,
could he have a writ of error upon it? How is he to act?
What is he to do with this monster, which my Learned Friend
calls an equivalent to a conviction ? Suppose it is all wrong,
how is lie to sue out a writ of error ? What power has he?
None. Suppose this pardon should turn out ineffectual, and
suppose the pardon should he indited afresh—is this supposed
conviction to bar him from pleading Not Guilty to the
offence with which he is charged. Try it by any of
the legal incidents that attach to the term convic-
tion, and your Lordships will find that it answers to
none of them. I therefore, submit humbly to your Lordships,
that this not a conviction ; that, my Lords, is my first point of
objection to this return. My second point is this, that there
is no judgment of transportation to be found in the return. It
is a well-known and old-established principle of our law, and
I rather think the authorities will run far enough back to dates
by even the antiquarian researches, against the liberty of the
subject, of my Learned Friend the Attorney-General.
It will be found to be a sufficiently ancient principle that
no man can suffer punishment by his own consent, or by
contract. That principle is broadly laid down by Lord
Hubbard among others, but it is a principle not only of our
law, but of all laws of the civilized world, and founded upon
justice. No man has that command over his person—a wan
consenting to be hanged would not remove the guilt legally,
or morally incurred by the person doing it who was not legally
authorised. That principle was well understood at the time
the, principle of the commutation of punishments was I
adopted. The King would have aright to execute for treason,
but the King would have no right to commute the punishment
of treason for one of transportation, and therefore, when it
became in the increasing lenity—the slowly advancing lenity
of the law—common to commute the punishment of death for
imprisonment or transportation, it became necessary that there
should be authority for doing it, independent of the consent of
the prisoner. Your Lordship will find it provided, that in all the
Acts which give the power of commuting the punishment of
death for transportation, that the Judges when that power was
about to be exercised, were empowered to enter a judgment of
transportation upon the record. The question then was, was
the prisoner in the present case legally convicted of treason.
The second objection, therefore, he should present, independent
of the first., must prevail, for that power is absent which ens-
titles any authority, adversely to the wishes of the prisoner, to
change his punishment to transportation ; that, my Lord, is my
second objection, Had the Governor any legal power to
award transportation, that is to say, to take the first step towards
it? Supposing the man to be properly convicted, is there, I would
ask your Lordships, any thing like a record upon which
to enter up judgment of transportation. My humble propo-
shion to your Lordships is, that there is no proof here ; and
I believe the contrary to be the Pict, that the Governor has
any such power. If lie had, he must derive it front the pro-
vincial Statute, for if it had been derived by letters patent,
they are not set cut or referred to. The Court is aware that
by an old Statute of Henry the Eighth that the power of par-
doning was in communicon. It has been held upon doubtful
authority that the King or Quern can communicate that
power in the Colonies ; hut if it must be communicated, it
must be from the power contained ie the letters patent consti-
tuting the Governor. Now, the Governor has not a power
known to the law as your Lordships have. The moment
any of your Lordships are appointed Judges you
have certain powers given to you ; but a Governor
if any of the Colonies is merely the attorney of the
King, created by letters patent, and into, those letters
patent-your Lordship must look for his authority. Some

Governors have most extensive p were, as, for instance, the
Governor-General of India; but the Governor of St. Helena
has very small powers indeed; we meet thereNee look to see
what the power of the Goeetnor here is. But previously to
doing that, there is a prelintinary qneetitie which must be in-
quired, into, vit.; can the. Governer, by the 'Convent of the
Provisibenl,.Patliineent, give himself a power which the Crown
has not conferred upon him? I merely throw that out for the
consideration of your Lordships. lam supposing the, Stew. e
to be well passed and this power well eltgrhised ; but I appre-
bend, when your, Lordships coihe to look into this Statute,
you will find that it gives no such powers as have been
exercised in the present case. 'I he only attempt to confer
the power is this—to say, as in these cases, where the Go-
vernor is entitled to grant a pardon; hL tnay impose such
conditions upon that pardon as seems to him proper. Now
without stopping at the present moment to consider the force
of that, let me ask whether it is according to the law of
England, whether it is according to the great principles of
legislation and jurisprudence exercised in this, sountre, that
a power could b., contrived In seth a manner? Is this Go-
vernor to heee the power to invent any punishment be
pleases ? Suppose, my Lords, I concede it, that he could
go up to the punishment of death, are the words in the Statute
sufficient to give a power to the Governor which the Kings
of this country never exereised ih the worst of times ?
Suppose the (3oeerhor had said, I grant a pardon to you
Leonard Watson, upon the condition that you submit to certain
punishment, that you have your hand cut off in the Market-
place of Toronto—what is th- re to limit him in his power?
If he has the. power, to• transport for life, and the argu-
ments of the other side are to be held as good, I say
there is nothing whatever to limit him from exercising any
caprice he ma) think proper. He might say, I will not
pardon you unless you submit to the torture of the tack.
And in short, if such a porter at; is contended for exists
in the Govettor, he may invent punishments for every
dtly in the week. Now, how is all this attempted to be met by
those who had framed the return ? Why, there are averment!
that the erisoner assented to the pardon. Is it to be said that
the power given to a thiVetnor is to be exercised only upon
consent being given by the prisoner? Of what use is such an
averment ? The moment that you find the punishment de-
pends upon the contract between the patties, that moment it
becomes illegal. My Learned Friends ate, therefore, in this
dilemma, that thd rievernor has invented a punishment—he has
chosen to give a pardon to the prisoner, which he has accepted,
and, therefore, it is said that he is stopped from complaining.
Now I next submit to your Lordships, that suppoSitig there was
such power—supposing the prlscinet to be cognitant of it—and
supposing this to be a judgment of transportation—l ask
my Learned Friend to explain how it is, and by what means
the Governor obtains the paver of transporting the prisoner
beyond thti limits of his own government ? I wish to know
hew it is he can seed him either to Calcutta or Bermuda? My
Learned Friends must not refer me, in answer to that ques-
tion, to the Statute of George IV., for that Statete only
amounts to this—that *beta; there is the antece-
dent power, to transport extra
,fines, the authorities
in Ergland, shall be aiding in carrying that antecedent autho-
rity into effect. The Statute assumes it was tight to bring
these men to England, tecattse in Van Dietnen's Lend there
is no authority,ln the first instance, to treat them as convicts.
M. htkt objnction, my Lords, is, thet of assuming a legal au.
thority to transport up to the moment of the reception of the
transportation. My next objection is, that the transportation
has not been legally conducted. The return avers that, in
order to carry the condition of pardon into effect, it was ne-
cessary; in thb first place, to send the prisoner to Quebec.
I That averment was mace by Mr. Batchelor, the gaoler of
Liverpool. The return, then, is to the Governor of Upper Canada)
and by his authority and warrantthe prisoner is sent to bower
C nada, and there, my Lords, all notice—all hint of authority
on the part of the Government of tipper Canada-ends. As
far as we can learn, from the return, the Governor of Upper
Canada never exercised any authority, but to send the pri-
soners to Lower Canada. It would appear that Governor
Arthur thought he had executed his power by that, for,
from all that appears, the prisoners might have been turned
up. The next statement in the return is that the
Governor of Lower Canada, without any communication with
the Governor of Upper Canada, without any warrant or
authority, if he thinks proper, put the prisoner into the cus-
tody of the Sheriff of Quebec, and then there comes another
averment of Mr. Batchelor, who says that he found out that
it was necessary to send the prisoner from Quebec to England,
previous to his being transported to Van Diemen's Land.
Now, my Lords, I am at a loss to know what
authority the Governor of Lower Canada has in this mat-
ter at all. If he has any authority, it must be
given him by the law of England, and we have no document
whatever upon this record showing any such authority. The
Governor of Lower Canada, having put these persons into
the hands of the Sheriff of Quebec, 1111 that we know is, that
the gaoler of Liverpool having found out. that it was necessary
that they should be brought to England, they arc put on board
the barque floss for that purpose. Such being the circum-
stances, I am at a loss, my Lords, to know
how the Go-
vernor of Lower Canada had any right to interfere at
all. If it were necessary to scud the prisoners to England,
one would have thought the'. the Governor of Upper. Canada
would have been the proper person to interfere. But that
was not the case, but the Governor of Lower Canada had
taken up the autho-ity. Now, is the Governor of Lower
Canada allowed to adopt such a course? The Governor of
Nova Scotia, or any of the other colonies, might with equal
justice have done the same thing. By what rules, my Lords,
are we to find out the authority, or to test its limits, if such
things as I have adverted to are allowed to take place with
impunity? For all that appears to the contrary, it might have
been intended by this warrant of Governor Arthur, that this man
was to be taken at once to Van Diemen's Land. We are
told, my Lords, in the report that it is matter of necessity.
I think, my Lords, that your Lordships have seen enough to
consince you that it is a mere matter of convenience. if a
vessel could go from Quebec to England, it could go equally
as well from there to Van Diemen's Land. It appears to me,
my Lords, that the Governor of Lower Canada had no more
to do with it than the Governor of Ceylon. Some of
these prisoners were transported for fourteen years from their
arrival at Van Diemetes Land ; so that increasing the length
of their voyage increased the term of their punishment. It
appears, from the terms of the averment of Batchelor, that
her Majesty had thought it fit that they should be brought to
Liverpool. Now, I should like to know how Mr. Batchelor
knew that her Majesty expressed her pleasure upon it ? If
she has, it must have been done by some document, and some
of her Ministers must have been responsible for its correct-
ness. All that we know about the matter is, that Mr.
Batchelor says it seemed fit to the Queen that they should be
broueht to Liverpool. Now, supposing the m to be there, I risk,
What right has Mr. Batchelor to do what he has done ?
That right is not set forth. All that is stated is by Mr.
Batchelor himself, that he was the proper person to have their
custody. He acts without warrant, and as I understand it, his
acts are to be justified. This brings me, my Lords, to the
last objection, which is that none of the documents or aver-
ments which are referred to in the return are set
out so as to answer the exigencies of the law upon the
subjec. What is the use, my Lords, of this writ of
habeas corpus? Why, it is that your Lordship-. may judge
whether the parties are or are not duly detained in custody.
I would only ask of your Lordships to look at the first aver-
ment. There it is stated that the prisoner petitioned the Go-
vernment. If that is so, why should not your Lordships see
the petition ? Is it to be contended that it is enough to state
the fact? But the averment goes on to say it was a petition,
confessing his guilt—guilt which your Lordships are not in-
formed of the nature of. It is true, that your Lordships are
told that guilt is treason, but your Lordships know nothing of
that further than what this jailor chooses to state. I, there-
fore, respectfully ask of your Lordships whether this case be
considered a proper averment. Guilt is to be derived, my
Lords, from facts, and, if the facts were before your Lord-
ships, you could draw the inference whether guilty or not.
But then, it is said, that the prisoner assented to the par-
don. Indeed ! If he did, how did he do so ? Was it by writing, or
what ? Why, upon that, the Court is left completely
in the dark. Then it is said that there was this pardon. If
there was, I apprehend that that pardon should have been set
out. I will admit, that where a conviction is properly set out,
it may not be necessary to set out the steps. Here an attempt
has been made to set out the steps, and the course that has been
adopted, in my opinion, was clearly unnecessary. In order to
prove that it was so, I will cite the case of the King and Salkeld
which took place in the reign of William 111. That was a
case of a habeas corpus, directed to the Governor of Newgatc,
to bring up the body of a person named Clarke. It was
there stated that Clarke ought to have taken upon himself the
office of Alderman, and there was decided that where a party
was committed by a warrant in writing, that warrant must
be returned to the Court, otherwise it would be in
the power of the gaoler to alter the state of the prisoner,
and constitute himself to the office of judge. If the case was
otherwise, as Justice Fortescue had said, " it would be giving
to our children baubles for bread, when they asked for a writ
of habeas corpus." Now, my Lords, I want to know why
the gaoler of Liverpool has not returned tee only writ which is
in his possession. I can prove to your Lordships that he showed
us a writ, which he said was the may one he had, but that writ
is not here, and then it becomes a question in my mind whe-
ther that gaoler has not been induced between Liverpool and
London to keep back that writ. Farther than this, my Lords,
I am prepared to show that in that writ the name of Leonard
Watson was not included.

The ATTORNEY-GENERAL—My Lords, I do object to my
Learned Friend showing any such thing. He must keep
within the return.

Lord DENMAN—WC cannot hear you upon anything, ex-
cept it is in the return.
Mr. HILL—My Lords, I bow to the decision of Court.
In Crowley 's case Sir Samuel Romilly had said that the
Habeas Coipus Act was not to give new rights, but to make
it imperative upon all parties to do their duty. Judges arc
by that Act made liable in the amount of 5001. to do their
duty, and gaolers, and • all other officers under them, were
placed under similar restriations. NVhen, therefore, my
Lords, I find, that in pursuance of the general
spirit of the provisions of the Act, it is made
imperative upon the gaoler to give a copy of the warrant,
unless I receive an intimation to the contrary from your Lord-
ship', I must conclude that in some shape or other the war-
rant has been before the Court.
Lord DENMAN—We are not saying that the warrant is not
before the Court, but we. are only saying that you must con-
fine yourself to the return.
Mr. HILL—My Lords, I have now concluded the observa-
tions I have considered it necessary to offer to our
Lordships, and it would not be reasonable on my part to offer
any apology to the Court for the length of time I have taken
in addressing you, because the vast interests that have been
confided to my care justify the course I have adopted. No doubt,
my Lords, more able men than myself would have conveyed
more intelligence to your Lordships in a less period of time ; but
no man, I can assure your Lordships, could exercised a greater

determination than myself to labour strenuously, if possible, to
give to this unfortunate individual that which I firmly believe
he has been illegally deprived of—the rights of a British sub-
ject. Although, my Lords, he Was born abroad—although he
might have been an Hindoo—ealthough Afric's scorching sun
had changed the colour ot his skin—still, city LOrda, he It a man;
his foot has been placed upon the shores of England, and he
is entitled to have his case determined by the constitutional
tribunals of this cbUtitry:
Mr. RoaneCK—My Lords, I also appear at dounscl
for Leonard Watson, and although I have felt, and
leeply fe:t, the responsibility that attaches to me in
the task I have undertaken, WI! I must congra-
tulate your Lordships and the people of this country
hat at length, after somewhat more than twelve months im-
orisonment, Leonard Watson does see the face of the Jelges.
It is supposed to be the peculiar characteristic of the English
law that every man shall be tried at the'earliest possible oppor.
unity after his incarceration—ahat he shall not be punished
%NI( ut trial—that he shall not be punished without an
eeportunity of making an answer to the charge brought against
eim—without being heard either by himself or his Couesel—
vithout witnesses being examined on his behalf—and a ithout
lr
antmenacne
punishedfrom Judges
after
onebut imprisonment,
my Lords, we have a case
o
year's without
eeeing a Judge—without any sentence—without a trial—
:Jed without any arraignMent. And how does it ha?per,
my Lords, thet we may become aware of these feels ? Why,
because it has en happened, by a Most fortunate chance for
:his man, that he has at length appeared upon the soil of
England, where he may be reached by the arm of the Eaglisit
'aw, and not committed to the tender mercies of th,
Colonial Legislature. A man comes here before you
my Lords, and asks why he is detained ? He s tys he
is imprisoned illegally, and that he has been brought from
one of the territories of Great Britain against his will, and
against the law. He asks the man that detains him upon what
grounds he does so ? and he cann )t tell him. Has the law
been so thoughtless that it has let to the gaoler of a prison
hether a man shall be punished or not? No such
thing. But that is the eve in the present in-
stance. Here, my Lords, you have nothing to act
upoti but the assertions of this gaaler of Liverpool.
The la* in this cathify has provided certain safeguards fe • the
man who is in custody. They ace, that when he appears upon
the British soil there shall i.e a certain set of vital forms, in
order to prove that he has been legally detained. Have
your Lordships any such forms in the present case ?
Not a shadow of one—anot the appearance of a dettiment
or the copy of a *arrant. You have nothing upon
which you cab ant, but the asservetion of the gaoler
of Liverpool, stating certain facts, but not telling you
how these facts came to his knowledge. Your Lordships
are no doubt aware of the situation ita Which the country
from which this prisoner comes is placed. I am not,
my Lords, going to enter into its history; but I only call your
Lordships' attention td the Snlyjeciti fur the purpose of dis
abusing your minds of all that has been Said id path-
phlets, books, and newspapers, against these men. Thank God,
My Lords, we have now a legal tribunal to decide whether
they ate ghilty dr net; and whoa Is the document be
tote yob, my Lords, upon which you ate to pro-
nounce that decision ? Why the only document is the return
to a writ of habeas corpus made by the gaoler of Liverpool.
Now, how does that arise Why, certain men appear iti this
country, detained forcibly—prima facie—that is, illegal.
guppesing they cAnie from 4apahl, they could not be elt ta'ned an
hour; if they are detained in England it nitist be by the forte
of the law. Now what is the law as applied to their.
case. Why, if the party came from the Colonies, app:•aring
to be properly transported, it would be sufficient to give the
Court jttrisdictioh that he *is a Convict ; but then evidence must
be given that the sentence of transportation had been awarded:
Where, I would ask, is that evidence in this case? No
w here. I object to this return upon two grounds :—first.
upon its affirmative propositions, that it is improper;
and secondly, negatively from its want of sufficiency of form.
I am not able to show you what the law of Upper Canada
but I am ;hie to show you what the law of England is as
regards Upper Canada. By the 14th of George 111., chap.
83, sec. 11, it is enacted, " 'that whereas the certainty and
lenity of the criminal law of triglatid, and the benefits and
advantages resulting from the use of it, have been sensibly
felt," &c., &c. In that Act there was included both
Upper and Lower Canada, "as well in the description
and quality of the offence as in the method of prosecution and
trial." Upon this return, my Lords, you have no proof
shown to you that there is any alteration of that law of Eng-
land which enacts that in Upper Canada all offences shall be
tried according to the law of England, that the law shall be
administered, and shall be observed as law, accord-
ing to the forms of England, " as well in the description
and qu ility of the offence, as i.a the method of
prosecution and trial," and the punishment and forfeiture
thereby inflicted, to the exclusion of every other rule of cri-
minal law. Where is the proof that that has been al-
tered ? No, but it may be said there has been a sub-
sequent Act. So there is—the 31st George 111., chap.
41—what does that prove ? [The Learned Gentleman
read the 334 section.] The Act gives Parliament
the power of altering those laws in certain cases ; but as we
arc to be confined to the return, we shall be confined to the
return, and the return does not show to you, in any one case,
that the law of England has been altered as regards the me-
thod of prosecution and trial. All you have set forth in this
return is an act which shuns the pa: don shall have the effect as
regards the forfeiture of a man's effects, as if he had
teen attainied, and that's the only alteration your 'Lordships
have before you. This 31st section of the English Act says,
that all laws and ordinances passed before this law shall have
the effect of law. I submit that that makes it English law,
i,nd therefore I am permitted to read an ordinance made pre-
vious-to that Act, and that ordinance is the 24th of George
111. The Learned Counsel was about to read it, when— I

The SOLICITOR:-GENERAL said that in the absence of the
Attorney-General he would interfere, to ask what use could
be made of this? What he understood was, that Mr. Roe-
buck was reading something which he said was one of the
ord.nAnces unrepeal: d.

Mr. ROEBUCK—You get at it just as you get at any other
part of the law of England.
Lord DEN MAN—It by no means comes within the law of
England.

Mr. ROEBUCK-The fact is, my Lord, I was merely
wing to read a provision which was in reality a pro-
vision of the English law; and, therefore, I will assume
the English law is in force in this country, and that
all the' forms which the law of England requires before
a person be transported were required there. By the 31st of
George 111. also, by the 2d section, powers arc given to the
Parliament there, constituted by that Act, to make laws for
the good of the province, and we have this peculiar quslifiea-
tion, " that these Acts shall be valid and binding, to all in
tents and, purposes whatever, within the province in which
the same shall be so passed ;" that is to say, that a poster
was given to the Parliament of Upper and Lower Ca
nada respectively, to make laws within the province.
and not out of it. The power of the Colon'a;
Legislature was confined within its territories, end, therefo.e,
it follows as a conclusion, that though they might punish they
could not transport. They might say that no man should live
within their territory, but they could not say that he should
live any where out of it. Their powers ceased the moment
he left the territory—they could not touch him the moment
he was over—their powers were gone as far as he was con-
cerned—they did not. exist. He could: not return—no,
because he came within the power of the Colony :
but the moment he had gone out of the Colony
the Colonial power ceased. What was the consequence
of that Act? The consequence was, that the English
Parliament, seeing that persons could not in any
way whatsoever, be transported, and by " transportation" dis-
tinctly meaning being bound to live in a particular place,
under particular lawk, and under particular restrictions—that
is the meaning of the punishment. " Transpot tation" means
going to a particular place, and living after a particular
fashion. Nothing but the Imperial power could give that.
It required the Imperial Act—and what does it say ? Not
that every person may be punished—not that every person who
ray be disagreeable to the ruling powers in the country shall
be. transported to any cf our penal colonies; but that any per-
son convicted before a Judge, and also adjudged to transporta-
tion, may be transported after a particular fashion. I want to
draw a distinction betwen judicial powers and executive powers.
In this case, my Lords, nothing but executive power has been
used. No judicial power has interfered. The Governor is
not a judicial officer. There has been no Court of Criminal
Jurisdiction. It required a special section of an Act of Par-
liament to constitute it a Court at all, and spider certain clr-
cumstmccs it was a Court of Appeal, but not a Cella of
Criminal Jurisdiction. The return itself shows sufficiently
that it is an improper return, and that these parties are
illegally retained, because it shows that these parties
have not been convicted —that these parties have not been
tried that these parties, myLords, have not been adjudged
to transportation. Therefore, my Lords, at once and without
further ado, I say the whole affair is cancelled thereby. It
shows these parties are not subject to transportation—they
might have been subject to punishment for ought we know ;
but they have not been tried by any Court of crimi-
nal jurisdiction, or by any Court at all. They
have been tried and judged—if you can call it judg-
ment, by an executive officer, and an executive officer
alone ; and to-morrow, if it should so please the Government
of Upper Canada, to transport half a dozen prisoners without
setting forth any law at all, they might do it. They might
say they were convicts, and that was enough—they
might, say they were objects fit for transportation, and
that was enough. But, my Lords, the Court will not consider
that enough as I hope I shall show presently. They have
given your Lordships an illegal rcasoa
chosen to say for themselves for what these prisoners are sent
here' they have
they have told you they were not convicts, and yet they send
th.emhcrel
supposingThercfore, my Lords, on that point I think I am
clear. But
they have been convicted, and sup-
posing they have been brought here in consequence
I say the return is bail for insufficiency. It is in-
ofuffin a conviction by a Court of Upper Canada, then
my Lords,i e t
ior informing your Lordships under what law they
s c
have been sent here, and it is insufficient in setting forth
the facts, and authenticating those facts by legal '
esta-
blished
evidence, that the parties have boon convicted •
I say your Lordships can take no legal notice of the
nay
yl‘Lviaooiowluurl
bdoiytnsf:of that proposition. But I ask your Lordships this.
I think, my Lords, there can be na
that law, and just to tell you so much and no more
governor of the gaol of Liverpool to instruct
uUp allowper
tChaenada,,
as he pleases, and that what he shall say shall be taken as
conclusive and irrevocable evidence of everything he does ?
Now, my Lords, your. Lordships would require—knowing
what the law of England is in that colony—know-
ing what the 'imperial statutes are—your Lordships would
require very strong evidence to make you believe that in any
portion of her Majesty's dominions such a law as the one
I am about to describe exists, viz., that a man may be put into

, prison, and that he may there, in duresse, on hit petition to
the Governmeet, make a contract with the Governor to be trans-
portedeto be whipped—to be tortured—t 3 be mutilated.
I say, my Lorda your Lordships would renuire very strong
e+. 'deface to make you believe the low of England had been
altered to that effect in that province, and yet what does it say? It
makes a statement on the face of it which is illegal. It says there
was a contract between the Governor and the prisoner, that he
should be transported fer life, and it does net do what the law
of England requires it to do, viz —to give the Judges adjudi-
cation after the conditional pardon granted, and to make it a
portion of the law that he was adjudged to transportation
by the Court. What is the law of England, we have
a right to supp )50 is the law of Canada also.
Tb rettrn does not show the contTary ; it could not. I know
that pe.-feetly well. If a man is condemned to death, and a
condition it pardon granted, what is done ? The Secretary
of State communicates it to the Judge, the Judge makes it
a portion of the record, and the Judge sentences him to
transportation. Is there anything of this sort here? Do they tell
us first and foremost there was a contract? My Lords, I
say on the face of it is illegal. They tell us again that the
law says a pardon shall be equivalent to an attainder, as far
as tegardstiie forfeiture—they have not shown us sufficient
of the law—they do not show us that in Canada
is sufficient to justify transportation. But, my Lords, sip-
3iag that to have been the case—just suppose my hypothesis
that something of this sort had taken place—then, under the-
circumstances, would you think this warrant sufficient ?
It is s.ey diffieult to draw the line—but a line
tre ba drawn in some way ; and mark I Suppose a person
mss adjudged to transportation—it would be, that with 15 ON
so'cliere at his back, General Arthur would take him up and
send him here ; but then here the law has protected him with
certain safeguards for his liberty Your Lordships ought to be
informed of the law under which he is transported—you have
not that id‘, before you. Your Lordships ought to he in-
formed of the forms by which he ought to be transported—you
have not those forms before you, and I am always supposing
there they are bad. lam asking the Court narrowly to scrutinise
the law as regards this return, which would warrant their
transaottation. What is the ordinary case when a man
comes here convicted in Upper or Lower Canada for fe-
lony? He is brought here with certain papers. With what
papers is he ha ugh t here? Why as ith Vie record of his conviction
ith an and eed c 0,-)y of his pardo. --vith all h's &Fence set
ut—the award of the Court—the warrant of the Judge—the
;errant of the Governor, is all set forth. But there
are no such forms here—there is nothing of the sort. There-
fore, my Lords, I say, even as far as regards the law, this
return is insufficient. My Learned Friend, Mr. Hill, en'ered
i :to a long investigation of the wants of form—of the insuffi-
c7ency of the form—and let me run hastily over t'ds
matter. I win take it either way. Trace them from
't'ofonto here—it may ho of some service to trace
them from here to Toronto. A complaint is made
at Liverpool. Have you the warrant of detainer ?
the question asked of the gaoler. No, but the man says he
has a a 4 arrant ; he says, what he calls letters patent wer.! issu d
by Sir.f.Colaer. c to transport off.cnqacs convicted in Upper Ca-
nada. Now Sir John Colburn had no power to tram sport a con-
vict in Uppe sCanada. If he had it ought to haee been re-
vetsei. lis not averred—n idler is any power L• r ed. Where
could lie get the power? He could only get it from art
Ereglish Act of Parliament. He has no power to transport
convicts in Upper Canada. 'that is the first insufficiency
of fo-m You have not the warrarit—you have not
Sir John Colborne's letters patent—you don't know
wnat M In them--.you don't know that that mail
is mentioned in dierti-ehe la riot. But, my Lords, we
have now got to Sir Joint Colleorne's warrant, that
I say is illegal. It is illegal as state lin the deerreent, be-
Cause they do not set forth the authority. But that Warrant
recites certaiti thitlgs. Sir John Colborne avers there was
a warrant to Sir George Anhui' ; thnt warrant of Sir George
Arthur is not set out. We don't know what it wanee-it does not
say. All it says is, that there was a warrant, to Sir G. Arthur to
tale them to Lower Canada. There might have been a
warrant to tate them to Nova Scotia or Bermuda.
But, my Loris, I now cony to the important portion
of the want of evidence. Where is the Judge's
warrant ;judging these prisoners to transportation ; and
where Is the averment that there is such a warrant? Vor
the first time, when tee heard the return read, we learned
with ho-ror that he was transported. Look at the dates—the
man is put into prison in December.
• 'rue ATTORNEY• GENERAL said he must again interrupt his
Learned Friend. They could know of no proceedings but
tho e on the return, and the return, as it stood, mest be taken
to be true.

Mr. ROEBUCK—Take it this way. treks) the date I
of the pardon. When is Vie pardon? fn OdlOber,
They glee you no date to the petition. When was the peti-
tion presented? What eras the petition? Who tells us what
Ihe petition was? Mr. Ba'clielo There is no authen-
tie document. Will your Lordships believe that there was
a petition of this sort upon such evidence as that—evidencof
that would not go to prove I owed a man tweieace? Will
you, my Lords, believe a petitien has been presented that
should deprive a man of his life—without n date-without a
word as to what the petition was--not making one single stilt&
merit of what the petition was, but merely the general words of
the Act, which Mr. Batchelor never saw in his life, but
welch the
,pleader drew. Mr. Batchelor knew nothing
of that Act. I say, my Lords, there ought to have
been a warrant of the Judge, for that i 5 the law of
of England. There is none yet out. I take it, my Lords,
th that is a fatal error—a fatal insufficiency. There is no
warrant of the Judge, and no man could be le
gaily transported without a warrant of the Judge
Then there is the assent. What evidence have you of the
ass nt? A man in the dungeon of Toronto—a person cemin ;
to him from the Governor to say you will be hanged tomorrow.
Can we under these circumstances believe that the man assented
without formal, grave proof ?—that the man was brought into
Court be ore a Judge, before the public, and that he there as-
seated to the conditions put to him ? It is not proved he knew
the con eitions—l say, my Lords, lie did not know the conditions
ti:l yesterday, yet ail these things are to be taken to be
sufficient to condemn a man fel. life. Your Lordships have
now before you a beautiful specimen of the way in which the
law of that country may be administered—of the way in which
the law of the Governor may be administered—that men may
be transeo-ted in this way,
!which I say is a disgrace to
the English name—a disgrace, r. hich your Lordships
will in no way sanction by your high authority,
but you will show to them and to the world at large how high
is your estimation of the liberty of the subject, and how high is
your estimation of the just and sacred character that surrounds
you. Your Lordships are JudgeF—Judges to administer the law,
and your Lordships will show those men—who are no Judges
—neither in name nor in fact—your opinion of their
Acts by discharging the prisoner. He is here against
la v—he is here, my Lords, without law--3 our Lordships
hive no evidence that he is a Criminal—all the
evidence you have is, that he is unfortunately
a prisoner—you have evidence that he is a prisoner illegally.
Tue ATTORNEY- GENERAL—My Lords, it now becomes my
duty to address von in answer to the arguments which have
been advanc .d by my Learned Friends. First, I must com-
plain that Mr. Roebuck has resorted to topics which, most
certainly, ought not to have any influence with your Lordships.
What effect those topics may have elsewhere, it is not for me to
say, but I sincerely hope, that both here and elsewhere, they
wilrbe properly appreciated, and if so, and I trust most
sincerely such will be the case, in no country in the world
will they have any influence on the minds of the pm-
ple—most certain I am they will have no influence
on the minds of those to whom is entrusted the administration
of the law, more especially in that part of the world from
which the unhappy men before your Lordship's have come.
hive also to complain of the charges brought against me by
my Learned Friend Mr. Hill, in consequence of the applica-
tion I had the honour of submitting to your Lordships yester-
d,y. That application would not have affected the situation
iof the prisoners for more than twenty-four hours—it would not
have retarded the discharge of the prisoners, if they are en-
titled to their discharge, more than the time I have mentioned;
but when I had the authority of Hale, Wilmot, Abercrombie,
of Lord Mansfield and of De Gray, when I had the authority
of what I have no doubt was the intention of the Legislature
la the time of Charles the Second, surely, I cannot be blamed
.--surely, I am not open to the censure of my Learned Friend,
for submitting such a point for the consideration of your
Lordships. Your Lordships have decided the point, and
I submit to your Lordships' decision with pleasure—from the
bottom of my heart do I rejoice at your Lordship's decision,
but it is the first time that the point has been decided by the
Court, and I do not feel that I am at all liable to the censure
of my Learned Friends on this point. My Learned Friends
have represented this Leonard Watson es a man who had
heeno mat hars!ily and unjustly deprived of his liberty—that he,
one of her Majesty's subjects, without having committed
any offence, was deprived of his liberty, the dearest
lirthright of man—he was sent for life to the opposite side of
the globe without knowing for what offence, without knowing
fhr what he was punished. My Lords you will take the
return as true ; I have no doubt of its truth ; I have no
doubt it is true in every particular. We aro now arguing
the return as true. Should it be false there is a
remedy by action. But my Learned Friends have as-
! smiled that it is true—they have been arguing that it is
true upon the face of it. Then, my Lords, what
does it show? It shows that the innocent, the ill used, the
illegally transported Lawrence Watson, humbly petitioned
the Lieutenant-Governor of Upper Canada, he having been
indicted for treason ; and being so indicted, and being about
to take his trial where he could have shown his
! innocence—instead of taking his trial, and so showing
his innocence he humbl titid th Lieutenant—
Governor,ggg,gsp,
and praying for her Majesty's gracious pardon through
! the Lieutenant-Governor in any manner he thought fit.
Being indicted, and having confessed his crime, and having
thrown himself upon the mercy of the Crown—in the merciful
spirit in which the law has been administered, his petition is
granted—a pardon is extended to him by the Lieutenant-
Governor on condition that he be transported for life.
Leonard Watson had forfeited his life to the laws of his
country--he confessed that he had done so ; his life is spared
—he agrees to the conditions which were proposed to him.
It is asserted upon the return, and it must be taken
to be the fact, that he assented to the sentence passed upon
him. In the execution of that sentence to which he
was an assenting party, he is now in this country in (ran-
situ to Van Diemen's Land ; and now, by his counsel,
he complains of great grievances, of unheard-of cruelty,
and he wishes to be discharged by your Lordships, in
order that he and his comrades may return to Ca-
nada to join in or foment another rebellion.

Mr. ROEBUCK—The ''''''''''''' will not find any.-
thing of the kind in the return. I was interrupted, and surely
the same rule ought to apply to both parties.
The ATTORNEY-GENERAL—If the prisouer is entiticd
to your Lordships' interposition, of course be will have it.

Y. u Lords'-tips will do as you bare ever done, enforce the law
with stri,?.tness and impartiality. My Lords, the first and
second objections of my Learned Friend inay he taken con-
jointly, for they bath rest upon the same grounds. The
first is, that there has been no conviction ; the se-
•nd that there has been no judgment. Now, my
Lords, these objections are pressed on the ground,-; furnished
by the Act the .sth George IV., chap. 34, sec. 17. If my
L anted Friends rely upon that Act of Parliament, it
mty be exceedingly material for them to show that
t !era has be It ro conviction—that there has been no
j clime t ; but I, my Lord,, do not seek to bring the case
w:thin that Act of Parliament. My Learned Friends have
mistaken—totally mistaken the object of that Act. During a
lo cf.urse of years the Colonial Legislatures of this immense
en.pire have from time to time passed Acts of colonial legislation,
assented to by the Crown, which gave them all the force of law.
Mr. ROEBUCK —Nly Lords, I hare not alluded to anything
of this kind. Can the Attorney. General so travel out of the
return ?

The ATTORNEY-GENERAL—My Lords, I was reciting
the Act of George the Fourth, which is now a
matter of history, and which I bare a right to refer to.
I: has never been doubted that the Colonial Legislatures
had the right to pass laws inflicting the punishment of death
within the colony. They have also passed laws inflicting-
;ser punishments, and amongst these is the punishment of
transportation ; and no Act of the British Legislature
nas necessary to c irry those laws into execution. By
the Act to which I have alluded, section 10, it is
rendered lawful for the King to provide, that any one tran-
sported from the colonies should he kept in prison, or in any
prisornship, subject to the discipline of those places. It was
thought proper that prisoners coming from the colonies to this
country on their way to the place cf their banishment, that they
slieuld be confined in those prisons, or on board those ships,
and be subject to all the discipline which there prevailed.
Tint was the object of this section to which I have alluded.
There is no British Act of Parliament which gives the power
of transportation to any Court in the Colonies. It rests
entirely upon the Acts of the Colonial Assemblies after
these Acts have had the approval of the Crown. Now,
my Lords if this prisoner had been sentenced to the hulks,
and hal been subjected to the discipline that prevails there—
had been compelled to work in a gang, or had been sub-
jected to any duresse beyond what is necessary for confining
him cn his way to transportation, he might have complained
that he wes illegally used, because he might have said he had
not been convicted, no judgment had passed against him, he
did not come within the provision of the 17th Section of the
fith George IV., c. 84. But he makes no such complaint.
Ile was in her Majesty's gaol at Liverpool, where there is no
complaint of any ill-treatment, and there be was merely
subjected to confinement that he might be sent on to Van Die-
men's Land, in execution of the sentence of which he com-
plained, and which he had received. My Lords, that would
dispose of the first and second objections. Now, as to the Act
of the Legislature of Upper Canada, which is an Act averred
upon the face of the return to have been lawfully passed, to
have received the lawful assent of the Crown, and to the vali-
dly of which, with the exception of some sarcastic observa-
tions that were now and then thrown out, I do not find that
any serious objection is made. My Learned Friend
( Mr. Roebuck), referred to the statute of the 14th of
George 111.. but he does not mean to say that that statute
is not overruled by the Statute of the 31st Geo. 111., whereby
the province of Canada was divided into two, Upper and
Lower Canada, with a separate and independent Legislature
for each. My Lords, by this Act of Parliament, which is the
,3 ha chapter of the 31st Gen. W., there is a Legislature ap-
pointed for the province of Upper Canada. And here we have
no &spute as to the powers which may be conferred upon any
Legislature by the Crown without the intervention of Parlin-
mont—in some cases, perhaps, a subject of considerable diffi-
culty. This Legislature in Upper Canada is established by
the Imperial Parliament of Great Britain, and it is a su-
preme Legislature, having the power to make all
Act«, with the consent of the Crown. It, therefore,
min lit make any Act with the consent of the Crown, whether
th .t Art were conformable or were not conformable to any
enactment of the 14th Gen. 111. My Lords, the Supreme
Legislature having the power to make all such laws as the
Crown shall assent to, makes the Act of the Ist of the reign
of Victoria, c, 10, and thereby reciting that there is reason to
believe that among tile persons concerned in the treasonable
insurrectios in the provinces, there are some to which the
lcaity of the Government may not be improperly extended,
en I it is therefi,re enacted that it shall and may be lawful
for the L'eafenent-Governor of this province, by and with
tin advice of the Executive Council, to grant pardon to such
parsons upon certain terms, provided—
Mr. ROEBUCK—You have no evidence that this is really in
fie Act. There is esilenee that the Act is passed, and a cer-
tain portion of it is before your Lordships ; but you have no
evidence that any other portion of it is in the Act.
Tile ATTORNEY GENERAL—I understand that is not set out.
Why, then, my Lords, I will, in the first place, suppose that
this store an Act of the Imperial Parliament of Great Britain,
applicable to Great Britain, or to be put in execution in
Canada. Now, my Lords, if there were such an Act of Par-
liament in Great Britain—or it would, perhaps, make the thing
more plain and simple, if I suppose there is an Act
of Parliament in these words, passed in the Imperial Perlin.
merit of Great Britain and Ireland, saying that so and so may
be done in Canada—an Act of Parliament so passed by the
eperial Parliament, which says, that upon the petition of any
persons charged with high treason, committed it this pro-
Vince,' preferred to the Lieutenant-GoNerner, before the
Irrai,..!nment of such person, and praying pad= for his offence,
it shsli and may be lawful for the Lieutenant-Governor of the
TO BE CONCLUDED IN A
SECOND EDITION.