The Sun.
London, England, 1839-01-17 00:00:00

;;,71-Nt)N, THURSDAY, JANUARY 17. I8:10.
TIEE SUN.

THE CANADIAN PRISONERS

QUEEN'S B2IN CII.-(YESTERDAY.)

(From our Second Edition of last Night.)
Mr. ROEBUCK, in continuation from our First Edition, slid
—But it is said he is not without remedy. What remedy ?
An action against a man not worth a groat. He ought to have
this remedy—a right to controvert the truth of the return
before it is too late. And I have no doubt in my mind, that
your Lordships, in the due administration of the justice of
this country, will give us a remedy before it is too late, and
permit us to point out to you the falsities of this return.
The ATTORNEY- GENERAL—My Lords, Mr. Hill began by
making an observation about great waste of titre, and I wished
that that had boen borne in mind during the whole course of
his address, for I own that it seemed to mo he travelled into
many topics quite extraneous to the question before
your Lordships. I will not follow his example. With
regard to my own conduct, my Lords, I hops it requires
no defence. I have no hesitation in avowing that having
every reason to believe that these prisoners now seated at the
rnhave been guilty of high treason in Upper Canada—have
engaged in a traitorous conspiracy and rebellion to detach that
province from the Crown of England, that they are guilty of
high treason, and have been mercifully dealt with. I shall do
everything in my power that they may not escape with impunity,
and that the sentence which has been pronounced upon them
upon their own conditions, may be carried into effect ; for I be-
lieve the interests of this country most imperatively require
- that they should not escape with impunity ; and I shall
discharge to the best of my ability my duty to the C:Cnn of
England. My Lords, Mr. Roebuck began with an eb-
servation upon this being a merciful statute. Ac-
cording to his construction it would, indeed, be
a most merciful statute, for he now openly avows
that according to his construction of it the pardon is valid, the
condition void. Therefore all these who have come under it,
and have obtained a pardon from the Crown, and re-
tained the life which has been forfeited, are entitled,
according to him, not only to be discharged, but to go
to what part o the world they
please, and to do what they
may think fit or may be advised to do. My Lords, without
any such construction, or misconstruction of the Act rather, I
say it is framed in the puce spirit of mercy, because it only gives
un opportunity to those against whom the charge is brought,
either to stand a trial before the regular tribunal of the
country, and peril their lives, or to confess their guilt, and
throw themselves on the mercy of the Crown. There is no
compulsion to say—there is no conlessio, forced here—it is
the voluntary spontaneous act of the guilty man. I now
proceed to consider, my Lords, the objections that have
been made, and I shall try to avoid re-stating the ar-
guments I had the honour to address to your Lordships,
having every reason to believe they received the considere-
tion of your Lordships, and will have at your Lordships' hands
all the weight due to them. My Lords, any Learned Friend,
Mr. llill, has pressed his two first objections, that there is no
conviction and no judgment ; and he is followed by Mr. Roe-
buck, who has tried to avail himself of the two Statutes that
are now set out in the return. Now, my Lords, Ido exceedingly
rejoice that those statutes are set out. In the former address
of Mr. Roebuck it was supposed there had been
some law of Upper Canada which showed all these
proceedings to be most illegal and invalid, that
this law was concealed, and that it was in violation
of this law the prisoners had been ordered to be transported.
If lam not mistaken, those two statutes fortify the arguments
which I before addressed to your Lordships, for they show that
transportation was a punishment, and had been a punishment
long known in Canada, and that sentences of transportation
had long been carried into effect. Your Lordships will find
there is not one enactment in any of the statutes that has been
in the slightest violated or departed from. It is the 7th Wil-
liam IV., and it enacts " That there shall be a power of con-
fining the criminals in the common gaol." Then there is the
second section, and then comes the section that Mr.
Roebuck, as I understood said, showed the Governor of
Upper Canada had no power to try for high treason. Now
there is not the smallest pretence for such an asser-
tion. There is nothing in the 14th Geo. 111. to that effect.
There is nothing in the 31st George 111. to that effect.
In the 31st George 111. chap. 31, sec. 30, it is stated
how the Royal Assent is to be given to Bills that are to pass
the Colonial Assembly, but there is no restriction whatever
in the power of the Government to pardon for high treason.
The third section enacts, " That if a person be convicted of
high treason, the Governor may commute the sentence for
transportation either for life or for a term of years." Where
is the restriction on the power of the Governor to pardon for
high treason on condition ? My Lords, it is impossible to say
that this Provincial Act of the 7th William IV. could at
all impair the Provincial Act of the Ist of William IV. Now,
ray Lords, for the 7th chapter, which I am very glad is before
your Lordships. The preamble is, " An Act respecting
the transportation of convicts. Whereas it is expedient to
facilitate the transportation of offenders to such place or places
as may be assigned by his Majesty in Council : that, notwith-
standing anything to the contrary, in the Act of Parliament of
thisprovince, the 14th Geo. 111., it shall be lawful, after the
passing of this Act, to sentence such offenders to transporta-
tion, not only in such cases wherein any law now in force may
provide that such offenders may be transported." My Lord,
this shows that there were laws then existing in Upper Canada
by which persons might be legally transported. And this Act,
the 7th of Will. IV., provides that not only in cases in which,
by existing laws, persons might be transported, but in every
case in which by the provisions of the said Act banishment is
imposed as a punishment, whether transportation before
was a specific punishment, or whether it was banishment,
before this Act was in operation—that no offender under the
authority of this Act shall be transported, except for such
terms as the offender might heretofore be transported. Then,
my Lords, section 2 is the punishment for returning from
transportation. Section 3is the form of sentence. Section 4
is the term of transportation—to be declared by the Governor.
Then there is the fifth section (to which my Learned Friend,
Mr. Roebuck, referred) enacts that in cases where sentence has
been passed, a Judge's warrant must be obtained ; but the
cases contemplated by this Act of Parliament, were not those
who had been convicted by the regularly constituted Courts,
but those who, under the Ist of Victoria, cap.lo, had petitioned
after the indictment ; and when instead of the trial there is a
pardon upon such conditions as the Government might
think proper. The Bth clause provides, that where
the sentence of transportation cannot be carried into effect,
the prisoners may be confined within the province. My
Lords, I have thus brought before you every section of any
importance in the Provincial Act of Parliament, and I am
sure your Lordships must now he surprised that Mr. Roebuck
should have complained that this had been withheld and sup-
pressed, and that if it were brought before the Court, it would
show these proceedings to be contrary to law. On the contrary,
it strengthens most materially our argument that these pro-
ceedings have been sanctioned by law. My Lords, when I
was before suggesting to the Court that transportation was a
sentence known in Canada before the Ist of Victoria was
passed, Mr. Roebuck interposed, and said it did not appear
upon the return. My Lords, it does appear upon the return,
and it appears further, for a long course of years there has
been a practice of sentencing persons to transportation from
the province of Upper Canada.
Mr. ROEBUCK—I beg pardon. It was to your accusations
against the prisoners that I interposed.
The ATTORNEY-GENERAL—When I referred to what had
been done by the Legislature of Upper Canada youinterposed.
Mr. ROEBUCK—No, not in that way.
The ATTORNEY-GENERAL.WeII, it is proved that the Le-
gislature of Upper Canada has long been in the habit
of passing laws, imposing transportation as a punish-
ment. My Lords, what are your Lordships asked
to do ? Nothing short of this. To pronounce your
judgment upon the return to this writ of habeas corpus, that
all these Acts, and everything that has been done under them,
are illegal; and that any persons suffering transportation under
a sentence imposed upon them by the Courts of Upper Ca-
nada, or by any other colonial law, must be released, and com-
pensation made to them for what they have suffered. It is ad-
mitted by my Learned Friends that their main ground is
that there was no authority for enacting such a law,
and that therefore all that is done under it is void and illegal.
My Lords, are you prepared to pronounce such a decision,
and to say that what has been done for a long course of years,
most undoubtedly as it appears from the returns, by
the Legislature of Upper Canada, and which we
have no reason to believe has not been done by
other provincial legislatures, is void. My Lords, I apprehend
that this power of transportation does exist in the Colonial
Legislatures, that it does exist in the Legislature of Upper
Canada, and that it has been recognised by the Imperial Le-
gislature. My Lords, where there is a power of creating a
law, the violation of which is to be punished by death, I say
there is a power of enacting a law which shall be sanc-
tioned by any penalty short of death. It is not dis-
puted that the Provincial Parliament of Upper Canada
might pass a law inflicting death upon any offence specified
in that law, and I apprehend that this allows a penalty short
of death. Your Lordships know that according to the com-
mon law, and the prerogative of the Crown, where a sentence
of death has been pronounced, that sentence may lawfully be
executed, and it may lawfully be commuted for any punish-
ment short of death. This prerogative has been
exercised for a long course of years, and is inhe-
rent in the Crown, and yet it has been exercised
by the Crown without any legislative sanction. My Lords, I
say that the greater includes the less, and that with the power
of sentencing to death there is a power of inflicting any pu-
nishment short of death ; and there is a power in
the Legislative Assemblies of Upper Canada, with the
consent of the Crown, to pass a law whereby when a
party has been convicted he may be transported, awl
your Lordships will observe that if it be necessary for
any thing that appears before your Lordships, there may be a
law passed by the Legislative Council-of the Colony of Van
Diemen's Land to authOrise the detention of these persons.
By the 9th Geo. IV., chap. 83, the Legislative Council of
Van Diemen's Land is vested with the power of passing any
law for the peace and good order of the Colony, and that
Legislative Council would have a power to pass a law
whereby any individual arriving on those shores, confessing
treason, may be lawfully detained for the period to which
the transportation might continue. But, my Lords, as
far as regards the sending a prisoner from the State
where the sentence of transportation has been pronounced,
I say, that upon the law of the country to which the deporta-
tion is to take place, he may be lawfully kept there. These
individuals are now in transitu, and it is not pretended that
I am aware, that if there is a power of sentencing to transpor-
tation, there is not a power of doing anything necessary for
carrying such sentence into effect. Now, my Lords, there is
another ground, upon which I humbly submit there is a
power in the Legislature of Upper Canada to sentence to
transportation, and that is the 14th of George 111.,
chap. 84, whereby the Criminal Law of England

with
.aspect to punishments is introduced and made the law
of Canada, and by the 31st of Geo. 111. a Legislature having
been established in Upper Canada, does it not necessarily follow
that the power was given to that Legislature of sentencing
to transportation, or in other cases where it might be deenwel
expedient to annex the punishment of death to other offences,
which before might not be punishable. The laws introduced
by the 14th of George the Third were not like the
laws of the Medes and Persians, never to be changed. The
sentence of transportation might he changed. Without, there-
fore, considering whether in every colony in Great Britein
there is a Legislature with this power, there is do doubt the
power exists in the Legislature of Upper Canada. My Lords,
there can be no doubt this practice of sentencing to transpor-
tation under the colonial lava, has continued for a long while.
Mr. HILL —How does that appear ? It is not ave red.
Lord DENstaw —By-
expressions in the colonial Acts.
Mr. ROEBUCK—That only shows the power.
The ATTORNEY-GENERAL—My Lords, the Imperial Par-
liament enacts and allow me to ask your Lordships how y, u
arrived at the decision in which I may now state reapectfuily,
teat I concur, as to the right of a single Judge, to grant
tie writ of habeas corpus? It was looking to the practice
for a long course of years, and I think Lord Lyndhurst has
gone farther, and has said that practice makes the law, that
where a practice has gone on for a long course of years,
in the face of the Legislature, and no objection has been taker',
it is to be taken as the law of the land. Now, my Lords,
There is no question that this practice has gone on for a lung
course of years, and that it has never been objected tn,
and your Lordships are now called upon to say tlew
it has been all along illegal. Here it is not pre-
tended that until the sth of George the Fourth there eas
any British Act of Parliament giving such a power ; it was
done without any express authority from the Imperial Legis-
lature, but it was done without being questioned by the
Imperial Legislature. It does not rest there, hoe-
ever, my Lords, for we have an express legislative
recognition of the exercise of this power. In the 17th sec-
tion of the 9th Geo. IV., which does not legalise the brinping
of a prisoner sentenced to transportation to the Co-
lonies through England, it gives no authority f r
it, but it was legal, and so now it sunposcs that
it might be legally done after the Act pasned.
It supposes that if the prisoners cannot be brought directly
from Canada, they may be brought through England. It has
been the practice to send prisoners, sereeeced to transpor-
tation from the colonies, to the Hulks, and that miebt
have been lawfully done bsforc the sth el George I V.,
and it has never been doubted to the present time. N ,w,
my Lords, I must again call your Lordships' attention to the
language here employed—" Whereas, by laws new in
force in some parts of her Majesty's dominions, not
within the United Kingdom"—(and we may now as.
sume Upper Canada to be one of them)—" offenders
convicted for certain offences were liable to transportation be-
yond the seas ; and other persons adjudged to suffer death
have received pardon on condition of transportation ; end
there may be ro means of transporting such persons to the
places appointed by her Majesty in Cour.cil without
bringing them to England."—(this, my Lord, supposes that
without bringing them to England, the transportation weeld
be lawful, because otherwise the Act does not come into op ra-
tion)---" be it therefore enacted that when such persons are
brought to England, they may be imprisoned in such places as
may be provided until they are transported, or until they become
entitled to their freedom." Therefore, my Lords, this has been
for a long course of years the practice, and though
there is no British Act of Parliament expressly autho-
rising it. there is a British Act of Parliament expressif
recognising it as a legal practice; and, after this, can there
be any doubt as to the legality of the practice? and does it not
necessarily follow that the same Colonial Legislature would
have the power to pass such an Act as that upon which
these proceedings are founded, viz., the Ist of Vietci ia,
chap. 10, which enacts that when any person pronounced
guilty of high treason and sentenced, petitions the Governor
of the province, he may grant a pardon to such parson on
such conditions as he may think proper.? And if that be law,
it must be lawful for the Governor to sentence such
a man to transportation. And in what respect does that
differ from the common Provincial Act, imposing upon
a person guilty of larceny, for instance, the penalty of
transportation ? It is impossible to draw a distinc-
tion between this last case and the case of a person
indicted for high treason, and confessing his guilt,
and presenting his petition. Now, my Lords, in the arguments
yesterday it was suggested that transportation would not be
within the contemplation of the Legislature of Upper
Canada, and that it would not be a lawful condition of
a pardon. My Lords, a decisive answer to that ob-
jection is found in the second section of the Act,
which I had inserted in the return for this very purpose, and
that second section enacts that any person sentenced to trans-
portation, who should return without lawful excuse, should
suffer death, as in the case of felony ; and, my Lords, is not
that demonstration that transportation was within the contem-
plation of the Legislature of Upper C eada ? But,my Lords, my
Learned Friend Mr. Hill says, that there is no distinction be-
tween this Act of Parliament and the ordinance that was passed
in Lower Canada when Lord Durham was Governor there.
My Lords, my Learned Friend knows that ordinance was not
passed by the Legislature created under the 31st of George
111. It was created by a Special Council, with particular and
limited powers, which were stated to have been exceeded by
that enactment, for it was said to be beyond the limits of the
province, and that it was not a proceeding in a court
of justice, nor in anything resembling a court of
justice, but it was an Act made against particular individuals.
It was contended, most strenuously, by the Noble and Learned
Lord who introduced the Bill of Indemnity, that the Act of Vic-
toria did not give power to alter the laws from those of England.
It was strongly contended by the Nobleman to whom I have
alluded, that no Act of the Special Council could be
legal that was not in accordance with the laws of England.
It does not appear to me, my Lords, that this is the
proper time to say whether the Bill of Indemnity was neces-
sary or not—that question does not arise now. We
are now considering an Act passed by the Colonial
Legislature, and that alone. My Learned Friends
have taken a distinction between the cases of Watson
and of Wixon. In Watson's case, the condition attached to
the pardon was transportation for life, and that is one
of the conditions expressly named in the Colonial
Act. Transportation is a punishment well known
to the law of England—it is one that has now
existed above a century. It is also a punishment known to
the law of the colony. Yet my Learned Friends say that
even if the Court should feel that they must detain Watson,
still they must discharge Wilcox, because he was transported for
only fourteen years from the time of his landing in Van
Diemen's Land. Now, my Lords, I contend, that any con-
dition is lawful, which is short of life or member. We come
now, my Lords, to the consideration of the manner in
which the sentence has been carried into execution. Now, my
Lords, if the sentence was valid, then everything necessary to
carry it into execution must be valid also. On the face of the return
it is stated that itwas necessary to take Wixon to Lower Canada,
in order to carry his sentence into effect, when there being no
direct means of sending him to his destination from Lower Ca-
nada, the Governor, by the authority vested in him, sent him
to England, and in the course of being carried to his des-
tination Wixon had been brought to England; in the
execution of his sentence he had been brought to this
country, and had been committed to the custody and safe
keeping of the Governor of the Liverpool gaol.
Now, with respect to the Case of Saddis. Saddis was con-
victed at Gibraltar before a military Court-martial, and sen-
tenced to transportation to Botany Bay for seven years. Is
he sent from Gibraltar direct? No; he comes to England in
the custody of Lieutenant Rogers, who delivers him into the
custody of the Governor of Portsmouth, and there he is kept.
Lord DENMAN—To be conveyed.
The ATTORNEY GENERAL—Yes, my Lord, to be conveyed.
There he is without any averment that there was a ship by
which he might be conveyed from Gibraltar to Botany Bay.
If he had gone direct he would have been so
far upon his way, but he is brought to Eng-
land, and there he remains, and the return is
considered sufficient that he was in custody in the execution
of his sentence. But then it is said, Aye, but Saddis was a
soldier. But, my Lords, that had nothing to do with the re-
turn made, or the arguments urged against it. The retur n
was not under any military authority or sentence pronounced
upon him, but he was sent there as a convict to be forwarded
to Botany Bay. That, my Lords, is the fifth objection. I
think my Learned Friend admits that, according to the autho-
rity of " the King v. Clarke," it is only where there is a
warrant that it must be returned,
Mr. Ilinn—My Learned Friend misunderstood me. If it
is a case in which there ought to be a warrant, I say it ought
to be returned ; and if there be no warrant, then it cannot be
returned.
The ATTORNEY- GENERAL--If my Learned Friend had given
me credit for it, I assure him I would have given his whole
answer. He maintains that if there be no warrant he cannot
make it a specific objection that the warant was not returned.
Therefore the argument is, that of necessity there must be a
warrant, and you must show that he was held by
warrant to establish that. Now under circumstances
where the party is held in custody in the execution of
his sentence, I utterly deny that a warrant is necessary.
There was no warrant in Saddis' case. All your Lordships
have to see is, that the sentence was pronounced, and that
which was subsequently done was in execution of that sentence.
Let me suppose this, my Lords (as to the necessity of the
warrant) that a ship which brings this prisoner Randol \Nixon
from Quebec to Liverpool had been wrecked upon the coast of
Lancashire, and that he and the other persons on board under
similar circumstances were saved, and that the captain had
been drowned, shall it be said, my Lords, that if notice cf
this event be communicated to her Majesty's Secretary of
State, and that orders had been given that any peraon, gaoler
or private person, might take these individuals into custody,
and that they were retained in custody, in order to be sent on
their destination to Van Diemen's Land, that that custody was
unlawful ? Why, my Lords, suppose these parties were
trying to make their escape, having saved their lives, and
that they are going on board a ship to carry them to France
or the United States of America, might not they have been
lawfully seized by any of her Majesty's subjects, and detained
in execution of their sentence—nothing more being done than
was indispensably necessary for their detention, and then being
sent on their destination with all possible and practicable speed?
Why would the shipwreck warrant the revocation of their
sentence ? If the argument of my Learned Friend be good
for any thing, being shipwrecked they could not 'be lawfully
detained, and might escape, and go to what part of the world
they pleased. I apprehend, my Lords, that as the
period to which they we.e sentenced to transportation
had net expired, and s - nothing was done but
to carry that sentence :at ; effect, the prisoners have
had no cause of complaint, and the imprisonment could not be
considered illegal. These men are not committed for trial
where a warrant may be necessary and indeed before.a trial

warrant is not always necessstry—*because, my Lords, under
certain circumstances, a constable without a warrant may ap.
prebend a person. That, my Lords., is worthy the Considera-
tion of the Court, Eten before trial a constable may ap.
prebend a person for felony, without a warrant or an
order from a Justice, and for a crime not committed in his own
view. I put that case immediately ; and suppose that the
party applies for a writ of habeas corpus, no warrant could, in
such ease, be returned. What is the constable to do ? Why,
he is to return the truth of the matter as in Barnes'• case
—that the prisoner had committed a felony—that
he apprehended him, and upon that charge he de-
tains him. There is no warrant here. Well, then, my Lords,
suppose these prisoners had been convicted, and had broken
gaol, might not a constable apprehend and detain them with-
out a warrant ; and would it not be. a good return to the writ
of habeas corpus that they had been convicted—that they had
been found at large, and that he had detained them? I
shall put another case, and suppose that, instead of those
men breaking gaol they were in gaol, under sentence of trans-
portation, and that they had attempted to make their
escape, might not a constable apprehend and detain him
without a warrant ? If, then, my Lords, a constable may
apprehend without a warrant a person before trial on a charge
of felony, surely a person may apprehend a convict without
a warrant, and detain him until he is safely returned to gaol
in the execution of his sentence. There is another case
where, upon a writ of habeas corpus, the truth of
the matter may be returned to where no warrant is
necessary. But in such a case, would your Lordships say
that the party should be discharged because he was in the
custody of a constable or a private person, he having bees
previoirsly convicted and his sentence in full force. I sae
that your Lordships would order them to be detained, in order
that they might undergo the sentence of the law. These,
my Lords, ere the various cases in which there might be a lawful
detention without a w irrannsnd e here, on a writ o habeas corps s
being obtained, no difficulty could possibly arise. lam now, my
Lords, arguing on the sui..positton thst this is a legal sentence,
and that it is still in fo -ce, and ought to be carried into exe-
cution. The prisoner is in custody of the keeper of the gaol
of Liverpool, being there necessarily detained, and these
being an express averment on the return that that was the
readiest place in which he could be detained until a ship ha I
been provided.
Mr. Juctice COLERIDGE—Li all those cases it is quite clear
that a warrant could be ultimately obtained, but who is tea
grant a warrant in the Fesent case ?
The ATTORNEY- GENERAL —I really had ietended, my Lord,
before I finished the head of my argument, to remark upon
that, expecting some such question from the Court. Who is
to grant a warrant in, this country ? If this is a legal semcnc-,
there can ha no oljection that no warrant has been pro-
duced. I all' auo,orised in this stage of try argument
to suppose that the sentence and its execution were !alit::{
down to the time the prisoner came to England, then I rids
who is to grant a warrant in this country ? A Justice
certainly could not do it, nor could the Sscretary
of State do it. The Secretary of State, as the organ
of the executive Government might intimate or direct whet
measures might be taken—he might give orders as to the
course to be taken, but he would have no authority to grant
any warrant in respect to what took piece in the
province of Upper Canada. My Lords, this is a case in
which the detention is lawful, and in wh;ell there could be
no warrant. Suppose a warrant had be: n sent with them, and
that the prisoners bad remained on board the ship—if the shill
had remained off' this port, at the month of the Mersey—
no further warrant would have been necessary, but becathe
the custody of these men had been transferred to the keeper of
the gaol of Liverpool, as the most convenient place where they
might be detained, a warrant is said to be necessary. My Lord-,
I really cannot see how the necessity for a warrant arises.
Then, my Lords, I have only to consider my Learned
Friends' sixth and seventh objections, that the documents
are not set out at full length. Now, with respect to
that, I must confess that I du not know bow far the ob-
jection is meant to be carried; I do riot know whether
it is contended that all ought to have been set
cut upon the return. If that is what my Learned Friends re-
quire, all that I can say is, that according to Barnes' case
it is sufficient if the Court can learn from the return
the substance of the matter. My Learned Friends
first say it is impossible for the gaoler to know the
matter they require, and then that he ought to have
set out that which he does not know. Mr. Justice Lawrence,
in the case of the King v. caddis, decided also that it was not
necessary to set out everything in the return. Now,
my Lords, the question is--does the return inform your
Lordship of the substance of the matter. Why, it
gives you the whole of the ordinances ; it avers as a fact that
this party was indicted with high treason, and therefore that
he was charged ; but my Learned Friends say that
the gaoler ought to send your Lordships a copy of the in-
dictment ; but they have cited no authority or case
to justify such a position. Then the petition is sit out; it is
true it is not set out in its precise words, but all the material
parts of it are before the Court. The whole substance •
is set out. Well, then, the pardon is averred, and the whole
of its substance also is set out; and the return states that there
was a pardon, it states that it was granted upon certain
terms and conditions, and it sets out what those terms
and conditions were. ' What else can be required ? I
would ask nothing more titan the execution of the sentence
which is now in progress. I am not aware, my Lord, how
anything can be done, more minutely than it has been in the
return which has, as I humbly contend, set out every thing
that is necessary. I will not go over all the objections
taken by my Learned Friend, but I think it is necessary
to advert to some of the points raised by my Learned Friend,
Mr. Faulkner, especially to that part of his argument where
he relied upon the cases where it was laid down that courts of
justice, in this country, will not recognise the penal laws of a
foreign state. It certainly, my Lords, is true that they will not
do so unless there is some Municipal Act passed by the Legis-
lature to give such a power. There are many states in
Europe which have national conventions, by which criminals
are given up, but there is no such treaty between this country
and any foreign nation, except in the case of murder ; and I
hope my Lords the day is far distant when any Act will be
passed to prevent this country being as it is at the present
moment, the asylum for persecuted men coming from
any part of the globe. Making, as I am willing to do,
every concession to my Learned Friend, Mr. Faulkner, I cannot
see how his arguments apply to the present case : Canada
can never be considered as a foreign nation, for upon its
being conquered by the 'bravery and intrepidity of a
Wolfe, it became part of the British dominions.
Then, with respect to the arguments of my Learned
friend Mr. Roebuck, he, with the exception of the com-
mentaries which he made on the new Statutes now

introduced, travelled over the same ground that he di
yesterday, except that he now says, even if the Statute
of the Ist of Victoria, chapter 10, were valid and
that there has been no excess of authority, still there ought
to have been a trial. I thought that it was for the purpose of
enabling persons 'elm acknowledged themselves guilty of
high treason to do so without a trial, that the present Act
was passed ; and because the Governor pardons bcf.ir:
trial, he is compared by my Learned Friend to Rha-
damanthus. I really think that is going too far. Here
you have the accused party confessing., and therefore
there can be no occasion for trial. This, my Lords, is a spe-
cimen of the arguments to which my Learned Friend, Mr.
Roebuck is obliged to resort. With these observations, my
Lord, I shall conclude. I have brought them within as
short a compass as possible. I have avoided going over the
same ground which I took yesterday. My Learned Friend
will follow me, and I have no doubt, upon mature considera-
tion, your Lordships will find the case free from difficulty, and
do justice to these parties.
The SOLICITOR-GENERAL, followed on the same side. From
the course, my Lord, these proceedings have taken, and from
the present being a similar application to the one addressed
to your Lordships yesterday, of course some of the ar-
guments that took place then must be repeated to-day.
I shall, however, merely direct myself to the discrepancies
between this case and that heard yesterday, of course adverting
to such additional arguments ac may appear to call for obser-
vation. My Learned Friend Mr. Hill, early in his address stated
that the force of what I addressed to your Lordships yesterday,
as to the provision of the Act of George the Fourth, were
to be explained by the 14th of George the Third. Now
I take leave to say that it is not explained at all.
The power exercised by the Colonial Legislature of
making laws for transportation, cannot, as I humbly
contend, be so explained. In 1764 the old French law
was the criminal law of Canada, but afterwards, from
some cause, without any Act of the Legislature, the criminal
law of England was introduced into that country. Then this
ntin r
coaw, power
under
trr a
then -
Act says, that having been done and found beneficial, the
mode and proceedings of the criminal law of England shall
be introduced. What was the law of England at that time
swpiotirit arteigosnr, d
et ox
cterpatn stpoo rttha
et i opnl
a?
c. 56, passed, whereby
country,t e
Ili., Colonies from this
4th George 111., c. 11. Subsequent to that it was, after
ntaTtihoenrseofwaAs
that the o2f4ththGeeorge American
transportation was placed nearly upon its present footing__
that Act authorising, transportation to any place beyond the
seas that his Majesty shall think fit to direct; and subsequently
to that it has beer that the colonies have assumed de facto the
power of passing laws anthorising transportation. Your Lord.
ships will, therefore, see that it was not by virtue of that
limited power given by the 14th George 1 11., but by some-
thing infinitely more extensive. I will now make a few re-
marks with respect to an observation made by one of your
Lordships yesterday, in order to show that the meaning of the
transportation clause is not to give her Majesty the power to
punish, but to transport. I don't build very much upon it. My
argument on this point of the case is this —that in fact
the Colonies had transported, and made Acts authorising
transportation, and that was recognized as a valid practice
by the I7th section of the sth Geo. IV.„ the Transportation
Act. At the instance of Mr. Roebuck yesterday, it was
agreed that two Colonial Acts of Upper Canada should be
added to this return, the 6th and 7th. The 7th Wm. IV" c.
7, is actually entitled " An Act regarding the transporta-
tion of convicts," and states that it shall be lawful to sen-
tence offenders to transportation not only In cases where by
any law in force it is expressly provided such offenders may
be transported, but also in every case where the person con-
nicted shall be liable to such punishment. In fact, in
Upper Canada the Legislature took upon itself to i
enact transportation as a punishment, and carry it into effect,
is put beyond all manner of doubt, and that which was done
by the Canadian Legislature is recognized by the Act of
George IV.

Mr-. ROEBUCK—That passed after.
The SOLICITOR- GENERAL-- yes ;
but it speaks of the whole
thing as the ordinary practice of the colony—extends from
banishment to transportation. Nothing has been said to dis-
place the force of the argument which convinced my mind of
the legality of what has been done in the colonies, de-
rived from the long-continued practice of the colo-

,frit of the lnws of England,
" the sth Geo.

ti!o4 having adoptecs au. eie
ith reference to the punishment Daerignissns
IV. Well, then, my Ltrds, if they had the ttoi,itf, the scasoss
proposition which I had the liberty of suggesting the ()Clef
day was this, that that power for makieg laws for transporta-
tion Which they do possess they exercised by the passieg of
the Ist Victoria cap. 10. When the matter was be-
fore your LordshipS yesterday, I had to rely on what I
called the necessary implication that Was contained in
the first section of the Act, whereby it was to be lawftil
for her Majesty to grant pardon on certain terms and condi-
tions. What I stated as a necessary implication is putiaes mei
all possible controversy by the 2d sect., which enacts that in ease
any person shall be pardoned on condition of being transported, if
be returns to the provinces, he shall he deemed guilty of felony.
it is, therefore, impossible to doubt that the terms and condi-
tions which the Governor is authorised to impose as the condi-
tion of pardon includes transportation. Mr Roebuck, in his
address to-day, stated or suggested that the Governor of the
colony has no power to assent to Acts of Parliament, except
under instructions received from the Crown. That question
is not now before your Lordships. Mr. Roebuck then sug-
gested that, although the A cts of Parliament do not in some
eases prevent him giving his assent, there are certain Acts
which he is not authorised to do. One of these is pardon in
the case of high treason—nothing of that sort is before your
Lordships. But I am willing to argue the case upon that
hypothesis, and I am anxious to do so. So much has been
said, infinitely more by way of declamation than any thing
else, upon the hardship of this Colonial Act, that I think it my
duty to explain every thing, in order to show that this has been
an Act of mercy instead of hardship, and an act of mercy which
the Colonial Legislature was competent to pass. Suppose it
to be true that by the instructions given to the Governor of
the province, he has no power to pardon a person convicted of
I:igh treason. In the case of a province, situated as Upper
Canada the Legislature might find itself under the abso-
lute necessity of providing a summary mode of pardoning per-
sons who had been guilty of high treason. But if it be true
that the Governor had no power of giving such pardon after ciin-
viction,what was the course that presented itself to the Legisla-
!we ? What wi:s the mode of getting out of the dilemma? Why
the Legislature said, because there is not the poser of pardoning
after conviction, therefore we will pass an Act malting it law-
ful, where the party does what is equivalent to pleading
guilty, to grant a pardon. The motive of the Legislature
was anything but harsh, and was intended to meet the very
difficulty on which Mr. Roebuck insisted. It has been suggested
th it the parties who presented the petitions for pardon were mis-
led—that they would not have confessed their guilt and tire-
sented such petition, if they had known the consequence. Your
Lordship sees it was a petition profes,iing his penitence and
praying the merciful consideration of the case, and that her
Majesty's pardon might be extended to him on such conditions
as the Lieut.-Governor of the province should see fit. New
I yesterday asked of rev Learned Friend what were the
terms and conditions lie supposed were meant to be imposed.
which were in the contemplation of the petitioners? Until
I have some answer I must assume they knew the terms
and conditions. Now there was an observation ma,'e
by one of your Lordships, which ought not to pass without
observation—it is this, "by what authority it is now that the
Crown transports for life persons convicted of high treason ?"
I believe that to be the sale prerogative of the Crown ; I
don't think that the Transportation Acts extend to cases of
high treason, but there is no doubt that it can be done.
Mr. Justice Vi'it.LiAms—ln the year 1820 there were not
less than tweivy or thirty cases at York, where all the parties
accepted terms without trial, and were all disposed of in one

was, or the other.
The Soarceroa-GENERAL—I am obliged to your Lordships
for mentioning the circumstance. I roust say, with regard to
the address of Mr. Roebuck, the quotation comparing this
with Rhadamanthus might be very well extra fines, hut I can-
not suppose the argument to have any weight; but as it has been
:.:,'dressed to your Lordships, let us see how far it is borne cut.
I wish to consider gravely, because though from the inode in
which it was brought forward, it had something of point and
ridicule in it—it was meant to lead those that are standing
around me, to believe that the effect of what was done in this
case, was first to punish, next to hear, and finally to compel
he party to confess—why, my Lords, it is exactly the reverse.
The party is first indicted, he is then told that such an Act
has passed, of which he may avail himself if he pleases,
and being thus aware of the Act, first confesses, is then
heard, anti finally punished. sa that the order is exactly the
reverse of what Mr. Roebuck suggested. Instead of being
punisledbnysp tioii, which h'e
losing his life,
i'
r i
s prays punisheda to c accept tin uof
the
I ie mitigated
form
oft transportation, the
higher punishment. In this case, however, the punishment
was nut for life—the transportation was for fourteen
ears, commencing at the time of arrival in the
penal colony, and that brings me to another point,
which is this,--that even supposing there was a power to order
transportation by way of commutation, and supposing that the
Act cannot be impeached, still that the condition here so im-
posed is a condition unknown to the laws of England, and
therefore illegal. Transportation is known—transportation
for life is known—if so, will it not of necesssity embrace
every imaginable period between a moment of time and
a whole duration of life ? My argument is merely this,
that inasmuch as transportation for the whole life would
have been lawful, so any period that cannot endure beyond
life, and may be short of it, roust be lawful also. Give
me leave on this part of the case .to observe on the argument
which was yesterday pressed with great weight by Mr. Wig-ht-
man. If what is contended for be correct, why was not the habeas
corpus applied for in Upper Canada? Why not in Lower Ca.
nada ? If this be an illegal detainer, it was as much so in
Lower and Upper Canada as here. Supposing there was the
power of passing this Act, and supposing this Act did in fact
authorise the Governor to impose transportation, and that
he has exercised that power rightly, the next ques-
tion is, has that sentence been properly conducted ? On that
point I have heard nothing new since the arguments of
yesterday. It is said they were taken through Lower Canada
where Governor Arthur had no authority. That argument is
misplaced, for can it be doubted, if there is the power in
Upper Canada to transport, there must be the power of car-
rying the parties through that province through which it is
necessary they should be carried. It is said what authority
has the Governor of Lower Canada ? None, but that he re-
presents the Executive Power there, and takes charge ofa party
until he can be put on board ship to be conveyed to England.
So much has been laid before your Lordship by my Learned
Friend that I feel it unnecessary to trouble your Lordships
further. [ trust your Lordships will see no distinction between
the present case and that of yesterday, and that your Lordships
will feel it your duty to aid and assist the orders of the Court
which had competent jurisdiction in the colonies.
Sir F. POLLOCK—My Lords, I do assure you, that it is not
my intention upon this, nearly the end of the second day, and
upon the second case, out of ten or twelve, to waste your time
by going over any of the arguments that have been advanced
by my Learned Friends the. Attorney and Solicitor-Generals.
It is now clear by the documents which are before your Lord-
ships, that transportation is punishment that may be lawfully in-
flicted in the colony of Upper Canada, thatis perfectly settled, it
is quite clear that such power is given by the 14th G eo. 111. c. 84.
If the parties had been convicted and were in a prison in thi
country, either out of convenience or of necessity, in order to
carry out the sentence which had been passed upon them, no
doubt that custody would be laivful. Is there any difference, my
Lords, between a conviction in open Court, and a confession
of guilt ? The party now before your Lordships pe-
titioned the Governor of the colony, who was armed
for that purpose with all her Majesty's power, for mercy
under a particular Act of the Colonial Legislature. Will
any one say—will any deny the power of the Crown
to pardon before trial any individual who petitions for such an
Act, and accepts it with conditions. Your Lordships have
now before you an indictment for high treason—a confession
of guils-___an application for a pardon, which was most gra-
ciously granted with conditions. Those conditions were agreed
to by the prisoner, and he is bound by them. I submit that the
prisoner, who now applies to be discharged by your Lordships,
appears before you in transitu from Upper Canada to Van
Diemen's Land, under a lawful order made by a Court of
competent jurisdiction in the country from which he has
come. Most respectfully, my Lords, I say, that your Lord..
ships are bound to respect and give effect to the orders so made
in Canada. Whatever may be the judgment of your Lord-
ships on the points submitted to the Court, certain I am you will
not discharge the prisoners. The one whose case is now before
your Lordship stands as having confessed himself guilty of the
heinous crime with which he was charged. I will ask your
Lordships to look at the case as if it was an English one.
Soopose the prisoner stood before the Court as a confessed
traitor. Surely then, under no circumstances, would your
Lordships grant him his discharge. I apprehend, my Lords,
that it is not necessary there should be an arraignment in open
Court. No one now, surely, will doubt the power of the Crown
to grant a pardon upon a confession without any such formality.
I submit, most humbly to your Lordships, that the prisoner is
not entitled to his discharge. He has already received the
mercy of the Crown upon his own confession, and upon the
confession of the most heinous crime. He is now in transitu,
and I trust that your Lordships will give effect to the law.
Mr. WIGHTMAN said that after the elaborate arguments
that had been addressed to the Court by his Learned Friends,
he would assure their Lordships that his address' would be
very brief. He would, however, take leave to refer
their Lordships to a case in 2d Russell's Reports
which had been alluded to before—the case of Porter.
In that care the original authority failed, and it might bo ad-
m'tted, that if, upon the face of the return, the original au-
thority should appear to your Lordships manifestly to be ille-
gal, that in such a case the foundation failed, and the rest
would fail also, but in that very case the Judge stated how
dangerous it would be if the legality of the custody, or if the
power of continuing imprisonment depended on the regularity
or the conduct of the gaoler. It had been attempted to argue
in the present case, that if there had been any technical
defect in the original warrants under which the intermediate
person held this man, all would fail. He submitted it would
have been sufficient for the return to have stated the original
authority, and then for the gaoler to have said that in the
course of carrying that sentence into effect the prisoner came
into his custody, and remained there by virtue of that
sentence. He rejoiced that the amendment suggested
partly by his Learned Friends, who were with him, and partly
by his Friends on the other side, had been introduced, because
if there was any difficulty in the consideration of the question
it was this—whether or no transportation was a punishment
that was at all known or recognised by the laws of Upper
Canada. But, without referring to other statutes, was rot
the local Act which was partly brought under their Lordships'
attention before, and was now fully brought under their atten-
tion, as the whole was set out, did not that fully warrant the
transportation ? Was it not quite as strong as if the Act
had stated the Governor might grant as he might think a
pardon in her Majasty's name, on condition that he should
be transported to the penal colony of Van Diemen's Land.
Supposing that had been in the enacting part of the statute,
would his friend say that could not be carried into effect, and

it
was illerral on the face? Yet that was the argument of his
Friend. Their Lordships were asked ',heater the Court
‘veuld carry into offset the despotic orders of a Colonial Go
''vie Lordships were not asked to carry into r Elect.
ternment— ' authority whatever ; but the question
tiny orderser'ente eelnmee esu brought into F Deland
Was, whether they etoeSid dis:elvrge e—
ainder the authority of colonial offi e
cees ? That on" the question
—and moreover it Was to be considered on another part v. 010
case, for his friends lied said, what a sentence of traneporta-
tion is this ! It. is uncertain l It does not state when it shall
cornineette because it is begun from the time when the party
shall arrive at Van Diensen's Land. Their Lordships would
not fail to observe the distineOen hetween a sentence and a
condition. This was a condition. The only question
was, whether the statute was legal, passed with all
the regularity with which Acts of Parliament were
passed; and it was said there is no authority
for the Colonial Legislature to transport a person to Van
Diemen's Land ; and it was argued there must not only be the
authority originally to transpoi t, but rdso there must be some
authority to receive. What right had the Governor of Van
Diemen's Land to refuse a person sent under the authority of an
Act. of Parliament. Such a question did not arise—there was
nothing illegal in it. The statute of the sth Geo. IV. said that
after conviction persons might be transported to any place be-
yond the seas from the Colonial Come. If to any place
beyond the seas, why not to Van Diemen's Land, and then
the whole point raised by his Learned Friend entirely faded.
Mr. lime rose and said—My Lords, at this late hour—
Lord DENMAN—Is it intended to bring any more of these
eases before the Court.
Mr. Mee—Will your Lordships allow me till to-morrow
morning ?
Lord DENMAN —We think you ought to determ'ne now.
We have been very anxious to give every facility, and we
wish to know what your determination is, in order to decide
whet course we ought to pursue at present.
Mr. Fliee—My feeling at the present moment certainly
would be not to bring under the notice of tee Court another
of this class of eases.
Mr. Justice LITTLEDALE.--;111e objection is the same in al!.
Lord DENMAN—I understood that these were the casts
selected in tite first instance, but that with regard to the other
class, if these were good, it would follow that the others were
also good ; and that, on the other hand, they arc in a more
favoereble position, as they relate to a conviction and not to a
conditional pardon.
Mr. Htee—My Lords, I freely coefess that that is at pre-
sent the impression eu my mind, that your Lordships should
not he troubled with any mere of these cases. But your
Lordships will see that I am dealing with very large ietcrests,
and I am not asking to postpone my reply till to. morrow
enoreing.
Lord DENMAN—Then I was deciding upon the expedi-
eecy of hearing you upon these cases.
Mr. HILL.—My Lords, my Learned Friends and myself to
clearly of opinion that no advantage is to be gained tantamount
to the taking up the time of the Court. We are also of opi-
niou that after the- very full and patient hearing which your
Lordships have given us, we may, while fulfilling our duty to
our clients in that particular, waive all intention of addreesil g
your Lordships on the other cases, on the footing of the retie n
being null.
The COURT bowed, and
Mr. HILL then rose and said—My Lords, I am sure that I
will not be suspected of abandoning any of the arguments
that I have this day used if I do not repeat them, or
of giving up any ground which I previously maintained,
if I do not allude to them in my present reply. With
respect to the question that has occupied so much of
your Lordships' attention (as to the power of the Colonial
Parliament to enforce the law of transportation infra fines of
another country, or into another colony, or into the mother
country) I shall address one or to two observations to your
Lordships, nod they shall be very short. I have offered arguments
to showy our Lordships that no power exists in the colony to en-
force a sentence of transportation for the offence of high treason.
Many arguments have been edduced upon this point, and with-
out abandoning these, it is quite enough for me if it has not
been shown on the other side that there is a law which can
be inforced in another country. Because, it is very possible
to understand how there can he a law having all the
vigour which a Colonial Parliament can give it, and which
is only stopped in its operation by coming into conflict with
another jurisdiction.
Mr. Justice LITTLEDALE—How would it be if the pro-
vince of Quebec, which was afterwards called Canada, had
not been divided into two districts ? Suppose the whole
province bad been in one district only.
Mr. HlLL—Then I would contend, notwithstanding all I
have heard to the contrary ; and I submit, with great confi-
dence, that no law could be made in that whole province,
empowering the Governor, or any other person, to send trans-
ports into England, and restrain them there, making- that the
limit or terminus, or merely a stage in their proceeding towards
another place.
Mr. Justice LITTLEDALE— You would not dispute the right
if they had gone directly to Van Diemen's Lnnd?
Mr. HILL—I should not dispute the right to send them
there, and if in Van Diemen's Land there was a law which
enabled the Government of that Colony to keep them in re-
straint, then the transportation would be so far good, but I
should say, and my Learned Fr lend (Mr. Roe buck) put that
point very clearly, that without the concurrence of the autho-
rities in Van Diemen's Land, or some Act of the Imperial
Parliament over-riding these authorities, the transport could
not be taken into Van Diemen's Land. This, my Lords, was
my proposition. My Learned Friend, the Solicitor-General,
thinks that by these Acts upon which he has commented, the
Imperial Parliament had given a power of transportation to
a foreign country. It is quite clear, however, that if the Im-
perial Parliament in words had given that power—it is a
power which cannot be exercised. The law in its utmost
vigour may carry the transport as near the point of his desti-
nation as the conflicting jurisdictions will allow, and it
does not follow, that with reference to that conflicting ju-
risdiction, it is a bad law so far as the power
of the country making it will permit to be executed ; for
instance, that is not a bad Act of Parliament, although these
provisions have been hastily introduced. For instance, if a
British Act of Parliament had been hastily introduced sen-
tencing persons to be transported to Paris for fourteen years,
and kept to hard labour, that would be absurd; and it is quite
clear that this country would not have a right to inflict
these persons upon the French Government, and hold them in
restraint by any potency of law not made in France. My Learned
Friends have adverted to the origin from which they date this
power, viz. the preamble of the 17th Section of the sth of
Geo. IV. So many arguments have been offered upon that
point, that I shall not do more than advert to the answer of
my Learned Friend (the Attorney-General), who contended
that there was a conclusive argument arising out of the late
Act of Indemnity, with respect to persons transported to
the Colony of Bermuda. My Learned Friend's argument is,
that the 17th Section of that Act is a legislative recognition
of the power of the colonies to make these laws, by which pri-
soners might be transported to Van Diemen's Land, Bermuda,
or any other place. This is all embodied in the recital, but
if I can show your Lordships in an Act to the contrary, what
force can exist in my Learned Friend's position ? My Learned
Friend, in answer to my citing the case of Lord Durham's or-
dinances, said that Lord Durham and his Council had only a
special authority, and were not a supreme Legislature. They
were not, because no Legislature, and that is my argu-
ment, in the colonies is supreme ; but I submit, my Lords,
that they were as supreme as any former Legislature, and
I will read you a passage in which I found that assertion.
I refer your Lordships to the third section of the last year's
Statute, chap. 9 ; and I find in the 3d section, that from and
after a certain proclamation till a certain time, it shall
be lawful for the Governor of the Province of Lower Canada,
by the advice and with the consent of a majority of his Coun-
cillors, from time to time convened for that purpose—to do
what ? To make such laws and ordinances for the peace,
welfare, and good government of the province of Lower
Canada, as the Legislature of that province, as now
constituted, is empowered to make. My Lords, all
the power is hereby transferred from the former to the present
Legislature, and what my Learned Friend calls the special
Legislature was perfect in all its parts, for there was no proviso
which at all touched or limited that power. My Lord, when
I find that the Governor, acting under this power, sent
transports to Bermuda, what do I find at home ? Why, that
the Act of Indemnity says that that measure was illegal,
and as it is a matter of public notoriety, looking through
the debates, I have the satisfaction of appealing to a Noble
Lord on your own Bench, who knows what took place, and
can correct me if I am wrong, if the only point conceded
at last upon all hands was not this, that the ordinances might
be legal for everything that was directed to be done within
the province; hut that they were illegal, inasmuch as they
sent persons out of the province into another—via. Bermuda.
Lord Deemae—That is not my view. I thought that
they were illegal every way, in consequence of their being
against natural justice. One of them condemned to death
those who had not come in under the warrants. With regard
to the Bermudas, however, the Indemnity Act was founded
upon that few.

Mr. HILL—I regret much that I didi not make myself
understood. All I meant to say was, that there were various
opinions in your Lordships' Noble House on various ques-
tions arising on these Ordinances, but the only point
which seemed to have the general assent of the House,
as to whether they were legal or illegal, was
this that they were illegal with regard to sending pri-
soners to Bermuda, and I apprehend that is now
embodied in the Indemnity Act, and that Act has
declared that so far as sending prisoners to Bermuda
My Lords, fee the application of such a principle to the present
case. A practice grows up from a mistake, probably uninten-
tional on the part of a Legislature which has attempted
to exceed its powers. Now, I will admit, for the sake
of the argument that it is a practice, but then the preamble of
the 17th section does not mention that it is a practice. Now

I say this, that here in England these men are not by any
power which has force in England; and that if I should con-
cede
fur the sake of the argument that they were well dealt
with up to the moment of coming within the law of England,
while they are within that law they are of necessity
out of the power and jurisdiction, which sent them here, and
' therefore that they are free. Now the next point on which my
Friends dwelt was the validity of this—l don't know
what 'to call it—it is conceded that I cannot call it
a conviction, sentence I cannot call it, because it is
said it is a pardon, but the validity of this nonde-
script was the next point made by my Learned Friends.
It was thrown out by the Attorney-General that the King by-
his prerogative, could commute the punishment for treason to
transportation or exile. Now, I say there is no foundation for
such an opinion it is distinctly laid down at common law
that no man, guilty or not, felon or not, could he sent
out of the kingdom, there to remain es a transported
person. Mr. Chitty, in his work on Criminal Law, states
many authorities on the subject ; and by Magna Charta
it was provided that no person should be punished ex-

c,pt by his pears, or the laws of tivt lan It is eleArr
the slog, that the King h:!,t-t oow-r o e-m-
-icitte the vuhisinn, lit at ihe ..f tee teimmal.
The party is not pnished bemuse bfe,,Ass the e(indltion or
his pardon ; lie goes into exile -because he knows that the
punishment or death is still hanging over him, ai d that if he
does Oct behave with good faith, the punishment will b,- exe-
cuted upon him. Seppo-e it was granted that the King
might commute, again-f the consent of the p-isoner,
the punishment of tr-inspory-ttion for death, What Ne sat
here is, that the Go% Cl,2l,eral of Canada it not
the Sovereign. It is x matt s of notoriety, that iw
patents, th-- poker of pardon for ereason and murder Is ex--
eluded. I say that your Loniehips ought to see env
document giving the power to the' Governor, and yew
are not to presume it. This appknears to me to be
all the observations it is necessary for me to make in reply to
what has fallen from my Learned Friends osi that part of the.:
case. Wall regard, however, to the necessity for the warrant, t
must trouble your Lordship wit h one or two obsers-atinne• On that
paint my friends have beers obliged to use incensist eet arguments,
because the facts of their return are inconsistent. Here Go-
vernor Arthur gives a warrant only to take the prisoner
through his own jurisdiction; so that he is left to be picked
up
when he has gone the length of flint jurisdiction, by arty per-
son who may volunteer to do so, and ultimately they might be,
turned up; then they might be taken again, to go through Go
knows how many hands, and ultimately find themselves in Nree
Diemen's Land without any proper authority accompanying'
them. I never heard of such a monstrous proposition AS
Friends arc reduced to. There must either be a warrant,
connecting all these parties, or my Friends ere re-
duced to the extremity to which I have adverted'
I don't say that there is any impropriety in Governor Arelegi
if he had the power, trareporting these men, but I say tbs
there should have been a warrant, so that there might hale
been a document travelling with the prisoners from first to last
in order to show the power by which they were kept in custody'
The ordinances were ill, gal. The Indemnity Act having re-
ceived the assent of both Houses of the Legislature, I base
the highest authority known to the law for saying that the
Legislature of Canada, which had equal powers in ever,'"
sanse of the word with former Legislatures, had not the power
of making a law to transport extra fines, or to speak mac
correctly, to transport intra fines of some other jurisdiction. J.
know, my Lords, that these Acts are now put upon the returrs---
that they will receive the careful attention of your Lora-
ships—and will spare me, the labour of going through thee',
in order to see how they bear upon this case. It has bete
attempted to ground this power upon some sapposcd practice
that must have grown up within a very few years. A dictums
of a Noble Lord, for whose leAel knowledge I have the
highest respect, was cited in proof of such a practice. I al'
lute to something that fell from Lord Lyndhurst. Thal
practice hating been carried on ha the eye of the Le'
gislature for a certain number of yeaes, and the Legit;
lature not having corrected it, made a slew law upon th
subject. With the mast profound respect for the talents
of the Noble Lord, I dissent from such a proposition,
and submit to your Lordships that it is not foundei
upon law, but opposed to every principle of 10'
Now, my Lords, the Attorney-General said that there vas
no necessity for a warrant. And he said this upon the autho-
rity of a case which I cited, and which I still consider as con-
clusive against him—the case of the King v. Clarke. What was
that case ? The Attorney- General says that it was not a commit-
ment in execution. My Lords, it was, most assuredly; for it wse_
a commitment, by the Court of Aldermen, of Mr. Clarke, for
refusing to take upon himself the office of Liveryman. There
are but two modes of commitment—commitment in execution,
and commitment leading to trial. But, in this ell
the Court of King's Bench, upon habeas corpus, set
that this was a commitment in open Court, by a Court, to et;
own officer, which commitment not being made by warrant?
it is absurd to say the warrant must be set forth. All that the
officer could do in that case was to state the fact—to Set forth the
judgment. But, my Lords, the court goes on to say that if the
party was in the hands of any per son but the Court's ow!
officer—the Court having no power, :slit by its own officer,
.05
its own person, to order a person into custody.-that then th
party must have been committed by a warrant; and le
that case I apprehend the warrant mast be set forth
in lime verba ; and the reason given is obvious-."
that otherwise it would be in the power of the gaCler to may
the prisoner's case better or worse, at his plea.mtre•
Lords, take the propositions separately. First, ought there
to be a warrant here ? Most certainly there ought. WI
privity, what connection is there between the Governor
,„.°
Upper Canada and the gaoler of Liverpool ? unless Yu-
complete the link by a warrant. My Lords, I might COe".
cede for the sake of argument that a warrant, calling Ile
some person, naming him, to carry a person to the gaol of Litr.er'.
pool, there to be held till means were obtained for carrying WI
to Van Diemen's Land, that this warrant might have been good'
But that is not the case here. There is a cessor-4 break
of
all authority. The authority of the Governor
Lower Canada, Sir G. Arthur ends in Lower Canadia;
The authority of Sir John Colborne (one does not cleatll
see where it begins) ends in Upper Canada---13
that the gaoler of Liverpool is left without any authority'
My Learned Friends say it is extremely inconvenient; and the!
put the case of a shipwreck, where the warrants are lost;
and they ask, would it be fitting that persons transported
should thus be suffered to obtain their liberty? My Lords, this i 5
a new doctrine. The doctrine of inconvenience has ne°
eII
been held to have any operation on the principles of the rig
of men to their liberty, It may be very inconvenient, when
man loses his title deeds, that his title should be de-
stroyed. But the rights of persons cannot be prejo'
diced thereby. I will put an opposite inconvenience',
I will suppose what frequently happens, that the master,
of a vessel is tyrannical—that he chooses to put one 05
his crew in irons, and on arriving in port, he delivers
him to a gaoler, or brings him to this country to send him to
Van Diemen's Land. On my Learned Friend's doe".
trine, nothing could prevent this man from going to Vary
Diemen's Land. Now, my Lords, though you are sitting
here to decide whether this man is rightfully imprisoned, In!
Learned Friend has assumed throughout, that he is rightful!):
imprisoned. If it is according to law that this man should
be taken to Van Diemen's Land, or to the place of clerk'''.
tion, it must be done, but do not fall into the ab-
surdity of assuming that this is rightfully done wires
you are sitting here to decide whether it is so or not"
My Learned Friend the Attorney-General uses the re-
turn as though it were necessarily true in' all respeete"
for all purposes ; whereas the return is only to be
taken as true for a particular purpose. The facts sq.
only to be considered as binding so long as they are well
pleaded, well returned ; and if there is any vice Fe'
in the return itself, the facts no longer in the.eye of the lawexisr-
But, my, Lords, my Friends say that I have passed over the onlf
case they brought forward on this point—the case of Barnes-';
in which I can see nothing that militates against any doctrine 5,-.
have advanced. In that case there was a judgment, and J•
at once admit that we need not go beyoed a judgment',
Give me the judgment of a Court—l ask no more
will not go beyond it for any ulterior purpose : but our else
here is, that there has been no judgment of any Court. ".!
are not dealing with any judicial proceeding, but, as UV
Learned Friend Mr. Roebuck said, with a purely executive
proceeding—the act of a Government from beginning to
end—not the judgment of a Court; it is the act of power,
not the act of law or justice. This makes all the (14"
ference in the case of Saddis also. The judgment
pronounced by the Judges in that case, was founded upott
the fact of a judgment being pronounced, and e'
judgment is conclusive, excepting in a Court of Error, that
anything up to that point was regular. What is the reason, mY
Lords, that one nation gives effect to the judgments of the
Courts of another nation ? Because it is presumed that there
has been a judicial examination and trial. But, in this case,
there being no judgment, every presumption is in
favour of the prisoner. Now your Lordships have heard.
from one of my Learned Friends, that he hoped thin
country will remain the refuge of the politically persecute
of ail nations. When political refugees come to this country?
there is no enquiry whether they are rightfully or wrongfullf,
condemned, but my Learned Friend, while willing to extenet
this asylum to foreigners, would exclude those who are subjects
of our own country, and speak our own language. My Lords,
whatever may be the result of this investigation, I can only.
on the part of the prisoners, of my Learned Friends,
and for myself, return you our sincere thanks for the
patient attention which you have given to this momentous ease.
Lord DENMAN—We think it right to give some con-
sideration to a case of so much consequence, and we should
wish the prisoners to be brought up again on Monday morning-
-Adjourned.

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