The following extract from a despatch of the Marquis of
Normanby to Sir George Arthur, states an important opinion of the Law Officers of the Crown respecting the Canadian prisoners vrbb were lately released—namely, that a criminal law of the province of Upper Canada cannot be executed in this country, or in a penal colony, unless sanctioned by or within the terms of an English statute, or within the terms or sanc- tioned by the law of the penal colony in which it is directed to be executed. It took six days of argument in Westminster Dail, and cost the friends of the Canadian prisoners a large sum of money, to obtain this ac- knowledgment of the limited authority of Colonial Legislatures in criminal matters : and the fact of the formal acknowledgment is hardly known in England to this hour. We found the extract in a New York paper ; one of the benefits of steam communication with America being, the first authentic promulgation of neWS from the English Colonial Office in Downing Street.
Extract front a Despatch of the 23d July 1839, from the Marquis of Normanby to Sir Georye Arthur.
"The decisions of the Courts of Queen's Bench and Exchequer ascertained, that the prisoners were held in lawful custody in this kingdom. But those Courts did not determine i ithcr of the two ulterior questions, namely, whether their compulsory removal from this kingdom, or thew compulsory detention as convicts in Van Diemen's Land would be lawful. The Judges studiously de- clined the expression of any opinion on either of those points of law, because they had not then actually arisen, and they strictly confined their judgment to the precise and single question in controversy before them. It was, however, inferred by those who attehded the discussions and heard the judgments, that the Judges cetertaitied a very grave doubt whether the Government could law- fully proceed further agaimt the prhioners, unless they could bring them to iii n this taindry for their treaions. " tridsr OE se mentristences, I eonsulted the Attorney and Solicitor-General on the ytestion ‘iladher, if the prisoners should be sent to Van Diemen's Land, they could be lawfully held in custody there as convicts or prisoners of the Crown. The Law-Officers reported, that 'hey could not be so detained or dealt with in that colony, unless either an art of Parliament or a Colonial or- dinance were made to justity that course of proceeding. " Bert: then arise a cihclusiue and insuperable difficulty. Tier Majesty's Government could not propose such an enaetment either to the Imperial or to the Local Legislature with any prospect of success.
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Amongst objections to such a law, it was not the least weighty, that the Goveremeut are not in possession of the evidence by which the offences of the prisoners, or any of therm are t,tablished. We have, indeed, their peti- tions for pardon, in which their guilt is acknowledged in general terms; hut under the peculiar eircumstanees id the case, it us as impossible that such an acknowledgment could be admitted as a sufficieet basis 11,r legislation against them : we have also the reports of the Comniissiohers by whom the cases were investigated ; but on ti hat proofs the Commissioners proceeded, it is not in our power ti explain. An act of Parliament, or an ordinanee of a nature so totally new and unialcedented, could scarcely have been obtuitied, even on the most complete es elence of the flirts. In the absence of such evidence, it was mani- festly uniattainahle. To have s,..nt the prisoners to Van I tietiten's Land, on the mere chance that a law night be. passed there for their detention, was a proceeding which it would in been impossible to liazard or to justitY. " It tilos became necessary, either to bring these men to trial in this coun- try, for high treason, or to discharge them from further iiiiprisonment. A trial, I need hardly say, must have resulted in their acquittal ; because we have no produciLle witnesses of their guilt; • and because, after all that had oc- curred, sorb a prosecution would have been justly regarded with the utmost disfavour by I !w Court and Jury. " The re -nit is, that they have been released on the conditions mentioned in the letter ftont the Home Office. Iler Majesty's Government have used every exertion in their power to avoid a result which they lament ; as it may prove embarrassing to your nchninistration, and perhaps to the tranquillity of 'Upper Canada. 1 trust, however, that when the real state of the case is known in the province, any excitement which may have been raised by this decision will subside ; and that it will be in your power to disabuse the public mind of' the Opinion, that her Majesty's Government regard with indifference, or are dis- posed to treat with a misplaced lenity, such crimes as those of which the pri- soners in question are self-convicted."
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