[convict discipline – women defendants in crime – habeas corpus – appeals – supervision of inferior courts – criminal procedure]

In re Morgan

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., in banco, 10 February 1843

Source: Hobart Town Advertiser, 14 February 1843

            Mr. Rowlands moved for a writ of Habeas Corpus, to release from the jail of Hobart Town, Harriet Morgan, the following circumstance. - “The applicant was tried at Richmond, on the 13th of January, before Major Schaw, and Dr. Coverdale, for “neglect of work, and other misconduct” in the hired service of her master, Mr. Guy; for this she was sentenced to be imprisoned six months in the common jail of Hobart Town, and mulcted of the wages due to her. Mr. Rowlands, now contended, that the warrant of committal was defective in several respects; the conviction was for “neglect of duty”; but the warrant ought to have stated, that such neglect was manifested, after the work had been ordered by her employer, and the warrant ought to follow the words of the act of council, as closely as possible. Then, the warrant did not state when and where the offence took place; and he would enquire, why the applicant was not committed to Richmond jail, which was the nearest, instead of that of Hobart Town? She was committed on the 13th of January, but did not reach the jail till the 16th.

            Chief Justice. Does the act say the nearest jail?

            Mr. Rowlands. No; the “common” jail.

            After the Judges had referred to the acts of council, and consulted for some time. His Honor the Chief Justice said, the writ would issue, and a writ of certiorari to the magistrates to return their proceedings, by Tuesday next.

            Mr. Justice Montagu observed, that as some gentlemen at the bar would appear for the magistrates, he would mention several points, which would require to be argued. By the words “common jail” he understood them to mean the nearest jail in the County or District; “common” could only mean “nearest;” that as to the “neglect of work, and other misconduct,” what did that mean? was it one act or two? This should have been specified, if not in the conviction, yet in the warrant - the charge was vague altogether; it should have been stated, also, that the neglect of work was after it had been ordered by the master or mistress. The was bad in other respects; and in being addressed to the jailor, instead of the Sheriff, the jailor being directed to carry out the sentence, a part of which was the mulcting of the servants wages. The magistrates had no power to commit to jail - they could commit to imprisonment and hard labour in the house of correction, but they could not divide the sentence upon the face of the warrant, there was nothing to shew, that either of the committing magistrates were police magistrates of the district; and if they were not, they had no jurisdiction in the warrant, and they would require to be argued; some of them were so palpable, that if the magistrates were present, his honor would have directed their attention to them, and discharged the woman in half an hour.

Pedder C.J. and Montagu J., in banco, 14 February 1843

Source: Hobart Town Advertiser, 17 February 1843 [1]

            After two or three motions of course, Mr. Rowlands presented affidavits of service, in the case of Harriet Morgan, in whose behalf he had moved for a writ of habeas corpus on Friday last.

            Mr. Capon produced the return to the writ of habeas corpus and brought up the prisoner, Harriet Morgan; and the Crown Solicitor, who appeared in support of the Magistrate’s conviction, produced the return to the Certiorari.

            Mr. Stoner now appeared to support the commitment, on behalf of Major Schaw and Dr. Coverdale.