CANADIAN PRISONERS. (Hansard, 13 June 1839)

Lord Brougham

rose to present a petition from nine very unfortunate individuals, who had been subject to imprisonment for eighteen months, and who were in imminent danger of being transported to a penal colony. Some collateral matters respecting their case had come before the Courts of 166 Queen's Bench and the Exchequer; hence it became more important, that he should call the attention of the House to their situation. He had never seen a more clear, lucid, and impressive statement of fact than was presented in their petition; therefore he did not think he could do better for the petitioners than to present that statement to the House. He had had correspondence with Mr. Parker, one of the petitioners, and had made it his business to make some inquiries respecting him. In the result he found, that Mr. Parker had been in a most respectable station of life, and was universally admitted to be an honest and upright man. As to the others, he had been assured they were generally respectable. They were committed to prison in Upper Canada towards the end of 1837, on a charge of high treason, which was before the treasonable outbreak took place in that colony, so that they could not have been, parties to it. Mr. Parker's offence was that of having written a letter containing treasonable expressions. Some of the petitioners had surrendered from the terms of the proclamation, which offered a free pardon to all who should surrender, except to the six persons named in that proclamation. The Governor was not then in a situation to grant a pardon for treason, whereupon an act was passed in the province of Upper Canada, enabling the Executive to grant pardons to those who should confess their offence, and petition for the same, with such conditions as the Governor should think fit to annex to such pardons. The petitioners then stated this important fact—that when in prison, under duress of imprisonment, suffering great distress from the rigour of their confinement and the great severity of a northern winter, they were informed that an act had been passed—an act of which they knew nothing, except from the information afforded to them in their confinement—an act which they were led to suppose was an act to enable the Governor to pardon treason; but they positively averred and of that averment they challenged the contrary proof, if contrary proof could be produced—that they were not informed of the conditions which the said act enabled the Governor to connect with the act of pardon. They proceeded to state, that having been informed if they would confess the crime whereof they were charged they would receive an unconditional pardon, 167 and be set at liberty, they were induced to petition the Governor for such pardon, but were totally uninformed of the penal consequences of such a step. It was to be observed here, that the suppression of important information on this point of fact was equal to the suppression of information in point of law. Listening to these garbled statements—lending an ear to the partial statements which were made to them in their close confinement—both equally false—the prisoners did petition the Governor, and did confess the offences for which they had been committed to gaol; but instead of receiving, as they had been led to suppose, a free pardon, they had been subjected to conditions of the most severe and arbitrary description—conditions against which they now protested—conditions to which they maintained no British subjects could properly be made amenable. And when was it that they were first informed of the conditions which were to be annexed to the pardon offered to them? Was it in Upper Canada? Was it in Quebec? Was it in the passage to England? Was it on the landing in Liverpool? Was it in London? Was it in Newgate? No. The first time that they heard anything of those conditions was when they were upon the floor of the Court of Queen's Bench. The consequence of those conditions was, that they were now threatened with transportation to one of the penal colonies of this country. This was the leading feature and outline of their case. The petitioners proceeded to state, that they had never been arraigned—never tried—never convicted—never sentenced, and, indeed, it was admitted by the Attorney-general, in the Court of Queen's Bench, that they could not be regarded as convicts. That admission on the part of the Attorney-general ran through the whole argument which had taken place upon the subject, both in the Court of Queen's Bench and in the Exchequer. The noble and learned Lord then proceeded to read the petition at length. It set forth the whole case of the petitioners from their first commitment to prison in Upper Canada to the final adjudication of their cases in the Courts of Westminster Hall. It asserted, that this was the first case in modern times in which the Government of this country had taken advantage of a voluntary confession—a confession void in law, in consequence of having been obtained under false repre- 168 sentations, and under the duress of confinement—to entail ulterior punishment upon prisoners; and it finally prayed, that their Lordships would take into consideration the defects of the law as regarded the return of writs of Habeas Corpus, with the view of affording a more adequate remedy to persons whom it was the clear and almost avowed object of the Government forcibly to remove from this country without having been arraigned, without having been tried, and without the order or sanction of any court of law. The noble and learned Lord proceeded to state, that he could answer for the accuracy of the statements contained in the petition as far as they related to matters upon documents, for he had bestowed much attention upon the subject. The circumstances under which the confession was obtained—the duress of imprisonment under which it was extorted—the misrepresentations by which the prisoners were betrayed—these were facts which the petitioners prayed might be inquired into, and the contrary proof of which they boldly and fearlessly challenged. He was released, and so were the petitioners, of all necessity of asking that any further declaratory act should be passed to explain the meaning and construction of the Act of Habeas Corpus, by the unanimous and immediate decision promptly given by the Court of Queen's Bench; when, to the astonishment, be believed, of the whole profession—he would venture to say, to the astonishment of the court itself, and he would add, to the surprise of every person out of the court, an attempt was made by the law officers of the Crown, for the first time since the passing of the Act in the reign of Charles the 2nd, to throw a gloss upon the motive and construction of the Act of Habeas Corpus—a gloss which, if once admitted, would go at once to tear up by the roots the liberty of the subject in every part of the British dominions. He was still more astonished when he bore in mind that now, in the nineteenth century—after all the judges, for a century and a half, (whether sitting singly at chambers, or distributing justice at Nisi Prius, or presiding over the law more solemnly in Banco) had uniformly sustained this Act—after all the text lawyers, the civil and criminal lawyers, and the writers on the Constitution and liberties of England had countenanced it by their authority, nay, had panegyrised it, and 169 taken it as the glory of our name and nation, that our possession of liberty had proceeded from the rights which we enjoyed under the Habeas Corpus Act—it should be attempted by the Attorney-general of a Whig Government to tear up by the roots, or at least by one of the roots (the top root, if he might so say—that by which liberty sunk into the soil of England, and which supplied the shade under which it flourished), the inalienable rights of a British subject. That attempt met with the fate which it so well deserved. The Attorney-general was heard; (for there was no proposition so monstrous, that could be made—no doctrine so tyrannical that could be broached—no point of law, so utterly in the face of all law, that could be attempted to be raised—that the judges were not doomed to hear argued and bound to listen to). But the court never was guilty of the gross absurdity—when they heard this doctrine, this new-fangled despotic doctrine ventilated for the first time in the year 1839—of calling on the counsel for the prisoners to answer that argument. The court at once, without a moment's delay—without the adjournment of a quarter of an hour to look into the statutes, much less to look into their books—on the shewing of the Crown counsel themselves, unanimously rejected the Crown counsel's gloss on the law, decreed that the law should stand as it had hitherto stood, and all with one voice resolved that there was not a shadow of foundation for this new, unheard-of, tyrannical, and monstrous interpretation. Therefore, these prisoners did not, happily, find it necessary to call on their Lordships to declare, that the Act of Habeas Corpus, hitherto deemed the bulwark of our personal liberties, was no longer waste paper, for such it would have been if that gloss were allowed to be put upon it. The Court of Queen's Bench saved their Lordships, he might say, from the ignominious and humiliating duty of announcing, at the end of a century and a half after the Act passed, that a statute of the time of Charles the 2nd, for securing the liberty of the subject, was not available in the present reign to secure and keep entire that personal liberty. Undoubtedly he had laid before them a case well deserving the consideration, he was going to say of Parliament, but, at all events, of the Government; and he hoped the latter would think well before they listened to a 170 construction on other Acts of Parliament coming from the same quarter as that by which the doctrine was broached, which met with such a signal discomfiture in the Queen's Bench, before whom the Attorney-general had the confidence, the boldness (he would use no stronger terms) to put forward the opinion to which he had alluded. He would have his noble Friends well consider, before they allowed a construction to be made, unsanctioned by a shadow of authority on the part of the court—all the authority of the court, if it went in any direction, going the other way. It was, then, on the opinion of the Crown lawyers, and chiefly on the opinion of the common-law Crown lawyer—(because the Chancery lawyer had little to do with the matter)—on the opinion, in fact, of the Attorney-general—the discomfited inventor of a doctrine that would overturn the Habeas Corpus; he against whom the Court of Queen's Bench gave an unanimous, instant, not to say somewhat indignant, judgment—on his authority it was, if at all, that they were now about to decide that they were in law entitled to transport these nine prisoners. He would, therefore, have his noble Friends think, not twice, but many times, before they adopted such a construction of the law. He had said, that they would find no judicial authority in favour of it. He had reason to believe that they would get none. He had reason to think that they would get an opinion to the contrary from that quarter, if they had any means of ascertaining it. He had reason to suspect, that if the Court of Exchequer had been pressed to decide on the case (for they could not do so voluntarily, and it would have been irregular to force them to an opinion in the way in which the question was brought before them), the Crown lawyers would not have obtained an opinion which would legalise that transportation. He had still more reason to suspect that they would not get anything like a large proportion of the judges to favour such an interpretation of the law. But these were conjectures, the grounds of which he should give no account of at present, further than to state, that so far as he had examined the case, and so far as some learned Friends with whom he conferred, but who had nothing whatever to do with it, (that is, who were neither parties nor counsel in it), could see, the Government had no right to transport these men; and if they did 171 transport them, an act utterly illegal, and in the teeth of the law, would be perpetrated by them. It was possible, however, notwithstanding the opinion of the Crown lawyer having been discomfited so recently and so signally, and in such an extraordinary attempt, that the Government might be disposed to receive it in the present instance with deference, and might consider it prudent and safe to act upon it. If so, then he had to remind the Government of another circumstance, and that was the last to which he should call their attention and that of their Lordships. There were many men taken under arms in open rebellion, fighting against the subjects—ay, against the troops of the Crown. Every one of those had received the benefit of an amnesty. Two or three of the present petitioners had come in under Sir Francis Head's amnesty on the general promise of pardon, and they complained that a condition of transportation had been annexed to it, which, if they were aware of in the first instance, they would have remained in the woods, or stood their trial and taken their chance. And what they now said was this: "We did not ask a pardon, the qualification of which was added behind our backs, but let us go before a jury (we don't care whether English or Canadian), and let them decide on our case." Why, then, should these nine poor men be sent to New South Wales, when every one of them, with one or two exceptions, was physically incapable of taking part in this insurrection, being in prison at the time on charges of a seditious, or, if they would, of a treasonable nature; and when those who were really guilty, who were engaged flagrante bello civile, went unpunished, and received the full benefit of the amnesty? With their Lordships, who composed the highest court of judicature in the kingdom, and with his noble Friend at the head of the Government, he left the case for the present.