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

lc onboard a ship bound terEngland." The words did not occur
previousto this Act. It gave to the frov.-Gen. the Governor of
any of the Presidencies, the Chief officer of the Company resident
at any British Settlement, the Company's Council of Super-
cargoes at the factory of Canton, &c. the power " to take, ar-
rest, seize,-and cause to be taken, arrested and seized," persons
withontalicence and to remit and send them to the United
Kingdom " on board of any ship or ships of or belonging to or
in theservice.of the Company.' The power of confining them
until they could be sent on board such ship was, the Learned
Counsel contendedosicessixily implied. If not, how could the
Act be carried into effect ? When a person is ordered to be ar-
rested and.committed to jail, after the officers have laid hold of
him, there must necessarily be some detention before ha can be
put into the prison. If it be at a great distance, perhaps twenty
or thirty miles, they may find it necessary to stop-somewhere
on the road all night. This is imprisonment, but not unlaw-
ful.; because necessary for the person being lodged ultimately
.in theplace-destined,far his confinement. In the present case,
such intermediate confinement was obviously necessary for
.carryingthe purpose of the Act into effect. In the custody of
his (the Advocate-General's) friend, Colonel Vaughan, a gen-
tleman distinguished for the urbanity of his manners, he was
confident Mr. Arnot would receive every indulgence consistent
.with his safe detention. The clause of the Act .(105§) which
the Government hail gone upon, was that which enabled them
to-scald persons home without adopting any further proceedings
.against them, and was evidently. meant as a comparatively-len-
ient measure. And the manner in which it was put in practice
was favourableto the individual ; for if they did not lodge him
in the fort, then they must put him on board a ship where he
'would be less comfortably situated. Now, if the Act con.
ferred no power to detain, what was to be done during the. S.
W. Monsoon, when none of the Company's ships were ever
dispatched I.*
Suppose Mr. Arnot had been put on hoard of the Ogle
' Castle (lately obliged to put back), must he have remained there.
till she was again able to put to sea ? And if the ship was con-
-dernned, what is to became of him ? Must he not be lodged
somewhere ittAafe custody.. Bot if he can only be kept on board
a ship bound for England; a Alip may be bound for England
though in Kyd's dock ; t must Mr. Arnot go there too, and have
hi
pieces—(a l augh
Wo----until e carpenters s head- hammered to
are able to make her sea-worthy ? ul)d he notth be very glad
to-exchange the smell of pitch and tar with the noise of viork-
• men, for a quiet lodging in Fort William with • Lieutenant-
Colonel -Vaughan ? =lry this" view of .the case, the Learned
Counsel considered the mode pursued towards. Mr. Arnot. not
-only necessary for his removal, but the best for himself. The
question. was whether Government were bound to put him im-
.ntediatcly on board a ship. . lie.thought they were not, by the
terms of the Act ; which he'maintained contemplated inter-
mediate imprisonment. For in the 123 d section it expressly
mentioned the word " imprisoning." It saitt---.
"That if any suit of action shall be brought or commenced
against the said United Company,. or any of Cleir servants, or
' any person or persons acting by their authority, for the reco-
very of any costs or datnages for t;:e unlawful taking, arrest-
ing, seizing, imprisoning, sending or bringing into the United
Kingdom, of any person or.persons found in the East Indies,
or other parts aforesaid, within the limits of the said Corn-
pany's Charter, •or as not being authorized to reside or traffic
there," &c.

The words_ " imprisoning, sending," he could
not apply to the captain of the vessel; and must therefore refer
to:the Governor--General, or any others actingon,the same AU.
thority, instrumental in the individual's being sent out of the
country. Ile was ready to. go as tar as Mr. Turton in saying,
that there should be no imprisonment unless necessary for Mr.
Arnot'S conveyance on board ship ; that there, should be no
superfluous delay on the way; but some detention was ob-
viously necessary ; and no attempt had been made to prove
that, in this case, more had taken place than was necessary.
No ship of the description required had sailed since his arrest,
and he was entitled to be sent by the flrst. It it had not been
the intention of the Act that he should be detained in custody
till a ship be prepared for his.reeeption, it would have said, he
shall be " taken, arrested, seized," &e. provided only a ship of
the .proper description be ready to receive 'bins on board and
convey him to England. On these grounds the Learned Coun-
sel concluded that Mr. Arnot's detention was agreeable to the
Act of ParliaMent, and legal; and that he must therefore be
remanded to the Fort in custody of the Town Majoi.
Such was the tenor of the Advocate-General's argument,
according to the notes of it taken by Mr. Turton; and the re-
collection of the persons in Court ; but in reporting Mr. 'l'ur-
ton's reply, we have unfortunately no assistance whatever but
our memory, and the 'account of it we can give, must be
therefore very inadequate to do justice to its merits and to the
side of the argument which he supported. According to the
impression on our minds, it was something to the followino.
effect :

"Mr. Tuturolr.—My Learned Friend has told us he never
entertained any doubt of the legality of Mr. Arnot's imprison-
ment. Well, perhaps not. For I have observed, that in start-
ing on a case he has a wonderful facility. in getting rid of his
doubts : the moment he embarks in it, be immediately heaves
all his doubts overboard, to render his argument the safer.—
Nay, he does not even leave enough of doubts to serve for bal-
last. Ile has also been less courteous than he usually is ; for ,
he has told me my argument is absurd.
The ADVOCATE-tiES'FRAL explained that he did not Mean
to say that, for his Learned Friend, as usual, argued very well;
but in this cake his arguments led to an absurd conclusion.
Mr. TIIItTOX resumed.—lt is very easy for my Learned
Friend to say that such a conclusion is absurd, or that the
power of imprisonment is necessarily implied in the Act of Par-
liament. But .I go upon the well' known principle of the law
of England, known to every one who has ever passed the thre-
shold of an English Court of Justice; that all penal statutes
must be construed strictly ; and that no man must be deprived
of his liberty without an express authority froth an Act of Par-
lianient. In interpreting the sense of an Act, there must be no
stretching of the meaning, no supplying of supposed omissions
in order to trench on the liberty of the Subject, further than is
expressly aushorised. The Advocate-General says, that the
power of imprisoning is necessarily implied. But where is the
authority for saying so? On what acknowledged principle of
law is such a construction put apon the Act? What legal. dic-
tum is there in favour of this latitude of interpretatiOn ? ,We
have heard of none. He has indeed cited a case decided in this
Court in 1791. Ido not care what was decided, unless I know
the grounds and the principles upon which that judgment was
pronounced. Not being made acquainted with these, I must
still rest the question on the broad ground of the law of Eng-
land; according to the principles of which I maintain this im-
prisonment- to be illegal, and not warranted. With all due,
respect to the authority of precedents, JUdges are not infallible,
or wherefore the number of new trials we see granted in Eng-
land ? After decision; the Judges see reason to deliberate fur •
ther on the subject, and the judgments are not unfrequently re-
! versed. Notwithstanding, therefore, the high encomiums passed
by my Learned Friend on Sir it. Chambers, he was by no
means infallible. My Learned Friend, indeed, always has a
very high admiration for those Judges and hawyers4who en-
tertain the same opinions with himself. But I have no doubt'
that in examining that book (in MSS.) he has found many
things to astonish him ; and that lie could put his fingers on
many passages, in the propriety of which be is very far from
coinciding. I do not know what particular notions Sir R.
Chambers may have entertained as to the liberty-of the subject
or the power of the Government. Sir William Jones, who also
sat on the bench, was a great Oriental Scholar.
Sir F. 11.1A.CNAGIITEN.—And a great stickler for liberty.
Mr. Tu RT ON.—Ve.s, my Lord; but apt to be facinated by
talent. NOW all the learning and eloquence of the bar, might
have been in favour of the imprisonment. Ido not know what
arguments Were used on the other side : this I know, that the
decision was contrary to the lawof England, as hereestablished.
The Advocate-General considers the confinement of my client
in the Fort a lenient way-of proceeding.
Anvoc AXE-GEstEnAt.--I expressed no opinion at ali.on
the present case, further than that his imprisonment in such a
ease was legal"; and that in granting a power 'of sending him
home without any further prosecution, the Act intended to be
comparatively lenient ; and that he may be more comfortable
' in the Fort than on board a ship, until the time that the latter
is ready to proceed to sea.
Mr. TunTot.t.--Well, admitting that in the custody of my.
Learned Brother's Friend, Col. Vaughan, my client may be
more comfortable than on board a ship, nevertheless, as in the
, ease of a person taken up by a bailiff', who may be willing to
detain him in his own -house instead of taking hiM to prison,
the person in custody may say, " It is true you have a com-
modious house, with agreeable company and a pleasant pros-
pect, let I don't choose to remain in it. Take me to my legal
prison, for there only. will I be confined, however much it may
be inferior to your house." go my client may say, " Ido not
choose to 'remain in the Fort, I am willing to go on board a
ship bound for England, and there only you are authorised to
confine me." The intermediate confinement, unwarranted by
the Act, is by no means necessary to enable the Government to
send persons on board a ship; but even if It were, the Court
could not authorise what was not warranted In the Act, since
they sit as Judge and not as; Legislators. If a Magistrate
were empowered by the statute to fine a person for a certain
offence, it did not go on to say, that in case of the offender fail-
ing to pay the fine lie shall be imprisoned until he do so—then
the Magistnte would not be warranted to inflict imprisonment