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![handle is hein.slavery/ssactsengr0076 and id is 1 raw text is: LEONARD WATSON'S 'CASE
of the society, barred any claim after seven. We cannot help seeing that'the enquiry
would be one which could have no result.
Littledale, Williams, and Coleridge Js. concurred.
Rule discharged.
[731] CASE OF LEONARD WATSON AND OTHERS. 1839. At common law, a Judge
of the Court of King's Bench may grant in vacation a writ of habeas corpus ad
subjiciendum, returnable immediat6 at chambers, to bring up the body of a party
in custody in execution of a criminal sentence. After the return to the habeas
corpus has been put in and read, it is considered as filed ; but the Court has never-
theless power to amend it. The return to a habeas corpus, directed to the gaoler
of Liverpool, set out a statutd of Upper Canada (passed after stat. 5 G. 4, c. 84),
to enable the Government thereof to extend a conditional pardon to persons
concerned in the late insurrection, whereby it was enacted that, on the petition
of any person charged with high treason there committed, preferred, before
arraignment, to the Lieutenant Governor, confessing such person's guilt, and
praying for pardon, the Lieutenant Governor might grant a pardon on such
conditions as might appear proper, which pardon was to have the effect of an
attainder for high treason, so far as regarded realty and personalty ; and that,
where a person, pardoned on condition of transportation or banishment from the
province, should return, contrary to the condition, this should be a capital felony ;
the return also set out other statutes (passed after stat. 5 G. 4, c. 84), whereby
it appeared that both transportation and banishment were inflicted in certain
cases by the criminal law of Upper Canada, arid that they were also imposed
as commutations for the punishment of death in cases of capital conviction ; the
place of transportation, in either case, to be declared under the sign manual of
the Lieutenant Governor. The return then statdd that the prisoner, having
been indicted for high treason, had, before arraignment, petitioned, confessed,
and prayed for pardon, and had been pardoned on condition of being trans-
ported for his life to Van Diemen's Land, to which he had assented; that, there
being no means of transporting him thither directly from Upper Canada, it was
necessary to take him to Quebec, in Lower Canada, being the most convenient
place for the purpose; and that he was conveyed, by warrant of the Lieutenant
Governor of Upper Canada, to Lower Canada; and, on his arrival there, was, by
warrant of the Governor of Lower Canada, delivered into the custody of the
Sheriff of Quebec, for safe keeping till he could be transported ; that, there
being no means of conveying the prisoner directly from Lower Canada to Van
Diemen's Land, it was necessary to convey him to England, to be taken thence
to Van Diemen's Land ; and that, by letters patent of the Queen under the Great
Seal of Lower Canada, the master of the bark C. was commanded to receive
the prisoner from the Sheriff of Quebec, and carry him to such part of Great
Britain as should seem fit to the Queen, that he might be thence transported to
Van Diemen's Land, and to deliver him, in England, to the custody of such person
as should be authorized to receive him; that the master received him from the
sheriff, and carried him to Liverpool, which place seemed fit to the Queen, and
was the most convenient in that behalf; and, there not being means ready
to convey him to Van Diemen's Land, it was necessary to place him in safe
custody till means could be provided ; and that, the gaol of Liverpool being the
most fit custody, the master delivered him to the gaoler, who kept him in
custody, while such means were preparing: Held, a good return. For (1) The
Provincial Legislature, under stat. 31 G. 3, c. 31, had the power to pass laws for
transportation extra fines, which power is recognized in stat. 5 G. 4, c. 84, s. 17 ;
and they might empower the governor to pardon on such conditions as might
appear proper. Therefore (2) The condition of transportation might here be
legally annexed to the pardon, with the prisoner's assent. (3) The Crown had
a right to enforce the condition ; and the Queen's subjects, without the province
of Upper Canada, were justified in assisting, the province not being a foreign
country. (4) It was not necessary that the return should specially set out the
documents referred to. (5) The Crown might appoint Van Diemen's Land as
a place of transportation, and the Court would presume that proper steps had
9 ,AD. & E. 732,
1389](ViewImageLocal?handle=hein.slavery/ssactsengr0076&div=1&collection=&method=preview&ext=.png&size=3)