The Sun.
London, England, 1824-04-20 00:00:00

upon him ; and must content Yiimself with awarding the pecu-
!nary penalty, leaving it to be recovered in the best wayit can.
The above is as much as we cari at present recollect. Mr.
Turton thought it unnecessary to take up their Lordships'
time, by stating the many.latal objections Which lay against
the return, and rested satisfied that on the 'grounds already
stated—on the printiplelaid down by Sir William Blackstone,
and the greatest law-authorities, that penal iftatutes must be
construed strictlythat the personqiilyertY 'cif the subject must
.not be abridged, unless -there is as express warrant for it frOrn
the words of a statute or the • conuilon law of the land—the
Court would order illr. AtuOt's release. _

The Judges, after whispering, together a few moments, theh
retired into another room, Wbere they continued upwards of
half an hour in consultation ; about half-past two they returned
into the Grand Jury room, and delivered their sentiments as
follows :

Sir Fume cts MACNAGHTEN began by regretting that there .
was little hope of a concurrence of opinion between him and
his colleague in office, on the subject before them. But (said
his Lordship) I think there must be something plain and dis-
tinct—something clear and express in the Act of Parliament._
something which admits of no other construction; before the
subject can be deprived of his liberty. if this principle be not
adhered to, and preserved without any reservation or admix-
ture of any thing else whatever, then I know of no security
from the laws on which the subject can place reliance. lam
well aware that, if the Governor-General acting under the 33d
of George 111., or the 53d, send to England British subjects
found here without a licence, we have no right to interfere:
HE is authorised to do so by Act of Parliament; and whether
that be a constitutional or unconstitutional Act, with that—
sitting hire as Judges—we have no concern. Nor have we any
thing to do with the discretiOn or Indiscretion, with which he
may exercise that authority ; nor with his regard to liberty or
his regard, to tyranny. Therefore, I put this entirely out of
the question. But tile Act of Parliament, conferring such au-
-thority, gives no power of imprisonment. The word is not
found, nor the idea conveyed in it at all. If the word "detain"
even had, been used, it might have afforded some shadow of
an argument for this imprisonment, but we do not find even
such a word in .the Act. Therefore the obvious and neces-
sary conclusion is, that the Act has only one object : it gives
-the power to seize and- remit to England persons. found
here without a license, but confers no power whatever of
imprisoning them. Many things have been introduced which -
were not necessary for the argument; as the 104th section of
the 53d George 111. (on which the warrant of commitment is,
founded) is alone necessary; and must by itself. decide the ques.
tion. - I do not ckny that other acts may be referred to for
illustration or analogy ; but on this the question. depends.
It may be said, that if the Government has not a right to
imprison,.until a ship be ready, than a dangerous ntan may
go abroad and do mischief in the intermediate time. So he
may; and supposing .the worst case, :hat he has the means and
the desire of doing mischief, I say he may do. all the mischief
he can, subject always to the contrail of the laws, and to be
punished for every illegal act he
,may commit, but no person
has a right to prevent him by any precautionary measure.—
Such, I say, was the intention of tle Legishiture in passing
the Act. . For although, sitting here as Judges, We have no
right to enquire whether an act be constitutional or unconsti..
tutional ; yet we are bound, as British Judges, to put upon it
a constitutional rather than an unconstitutional interpretation ;
and were it liable to two constructioss,.Where the right of the
subject. is concerned, we are bound to give it an interpretation
in favour of liberty. -
.On this point I wish to be clearly understood. To say that
we enjoy here ihe.full.privileges of the British constitution, is
absurd. We enjoy no such thing.. .lhe:idea of such liberty is
absurd—is ridiculous.: How can any man in his genies say, I
will act as I choose, subject only to the laws, when. he' knows
that lie may be told, "You shall do nothing—you have no
right to be here at all." To speak of British liberty; then, ex-
isting here as at home, would be little .less than frenzy. But•
the fewer the privileges we do enjoy, the, more numerous and
heavy the restraints imposed upon us,—the more our liberty is
narrowed,: the more, I say, does it become incumbent on. the
Judges to guard with greater strictness that portion of liberty
which remains to us—for we have the less to spare. -
With regard to the pretended-necessity of guarding against
the mischief a party may do, before a vessel is ready for his con-
veyance to England, let ys see what the Legislature has done
in another case very_nearly related to this. When a person is
residing in the country with a licence, it can of course only be
recalled on account of his own misconduct. Therefore, in
such case, it is to be preaumed; that there must be some cause
which renders his removal a matter of public expedience. But
even then, did the Legislature empower the Governor-Gene-
ral to seize and immediately imprison this public enemy, to
keep' him from doing more extensive mischief until he could be
conveyed out of the country ? No such thing t—He is allowed
sa tnhda t.a
to roam at large tor two months ! Then in the other case, if
gthPeetrria'app,
any idle pevsoh happen to have come here from
.England, with-
olitnnthsciakwainsgucaebeostLtrtyh,e
atint matter, i
sorb
cncluo t kgriinn
or-
dered out of the country without, . RI pe aps, having committed
any offence, or what is a mere parliamentary offence--can it be
contended, with any shadow of reason, that he is to be impri-
soned without any, express authority ? * . I say .without
having
committed any- offence not with reference • tar the particular
circumstances. at' this case, which have induced the Govern-
ment to order Mr. Arnot's removal from the country; for I
declare I know nothing, about them, . and have nothing to dO
with them. But the Government, by this mode of proceed.
ing, have declined prosecuting him for at misdemeanour, and,
rested-satisfied with Ids being removal. It.is to be presumed,
therefore, that he has committed no offence which calls for pro-
secution, and is removed merely for not having a license. In
such a case, are we justifi,-d in considering him a dangerous.
man, wild must be secured right or, wrong, legally in illegally ?
Am I sitting here as a British Judge to put words in au Act
of Parliament, and supply its suPpoiled deficiencies ? And for
what ? why, to invade the liberties of the subject. Am I to
say that such an expression was inadvertently omitted, or such
.a power was meant to be given ; and, on such grounds, agree
to this person's being imprisoned, without any express autho-
rity from the statute ? Sitting, here as a.liritish Judge, (and I
hope -I am not obliged to lay aside my feelings as a man), and
viewing the ease, as I hope I do, both as an English lawyer
and as a gentleman—l declare that my understanding and my
conscience will, not suffer me to send back this person to the
cell or prison, or whatever it may be, in the Fort, where they
have confined him. I hope Judges of this Court will never be
swayed in their divisions by any respect of persons ; nor if, in,
construing the laws, they find two roads, pursue that most
agreeable orconvenient to men-in power, merely because they.
know it to be so. I trust they will never, in any case, truckle
to the GOvernment, as -I fear those. Judges have done.: [As
his Lordship pronounced these words', in a very emphatic-man-
ner, he laid his hand upon the MS. book of cases from which
the Advocate-General had quoted that of Mr. Duhan. t] If
such ever were the case, it, would MR:ord. a cloak for every spes
cies of oppression. -I would infinitely rather -see the Court
abolished, for it would then be a nuisance rather than It.pro--
,tection to the subject. Ldeclare I should hope,. in such a
case, to see a public meetingof the inhabitants of Calcutta,
to join inn Petition :to Parliament, to recall its charter, and
put an end: to it at once. This Court is supreme, and. the
moment one particle of this supremacy is forfeited, I trust the
Court will be annihilated. • • •
SoppoSe we were to remand this gentleman again to the Fort,
I should like to know how long he is to be kept in custody ?
By this Return, on the extraordinary nature of which I must
now . remark, the Government assumes a power to act as it
pleases—to - imprison him with any one it likes; and by what
authority ? I know of none. Theiwords, "to detain or im-
prison," are not once used in the Act ; and ant I to put a word
.in the Act to construe it by implication ? I confess it would
be some comfort, some sort of satisfaction, to me to find it
stated in this. Return, how long be •is to bo kept in durance,
and whether for weeks or months ? But thejteturn does not
favour us with any information on this subject • it,does not say
when he is to be put on. board a ship, or how long he is to re-
main confined in the Fort. Lord Iloit refused to know that
the City of 'London returned. Members to Parliament; and on
the same grounds, the Judges of this -Court have no right to
know that a ship will ever sail to England, and thus he may be
. confined for any indefinite length of time. Good God ! is it to be
tolerated that a British subject, after being shut up in this man-
ner without any authority to be kept all this time, and as long
as the Government may think proper to keep him, in prison;
without bail or mainprize ? Can this be done under English