Evidence Type: Newspaper Report
10 March 1829
A most important case, in the way of precedent, was mooted before the three learned Judges, who sat together in banco, in the Supreme Court last Saturday. It was on a motion by Mr. FRANCIS STEPHEN, for a write of habeas corpus, on behalf of a woman named JANE NEW, then detained in the Female Factory, at Parramatta.
The learned Counsel grounded his application on the facts, that his client, after being tried, the Criminal Session antecedent to the present one, for, and convicted of receiving stolen goods, had been, subsequently, on the learned Judges reviewing their decision and ascertaining the justice of the case, recommended to be discharged from the Hulks, whither she had been removed after conviction. From the Hulks the learned Counsel’s client was accordingly discharged; but, this was only a removal from one place of durance to another. His client was shut up in the Factory, of which was first placed in the third, and next advanced to the first class, and whence she them moved for her habeas corpus.
The learned Counsel brought many arguments in support of this motion, and, likewise, to prove it was never the design of the New South Wales Act of Parliament (the new Act), under the section of the IXth clause of which this transfer was effected, to vest in the Governor an unmodified power over the person of a prisoner of the Crown. The clause in question the learned Counsel contended, only gave the Governor the power of exercising his prerogative of MERCY—for instance, that the Governor had authority to revoke or alter a sentence to better the prisoner’s condition, not to alter it for the worse. Two of the learned Judges appeared to coincide in this just and liberal interpretation of the clause in question, but deferred pronouncing an immediate decision. The matter involves a most important point, that is to say, whether or not the Act vests in the Governor an unlimited control over the persons of prisoners, whether assigned servants, holding tickets of leave, or in the service of the Crown; but as the whole affair is to be re-mooted on Saturday, we shall abstain from prejudging its merits by any arguments of ours.
See Original: “THE AUSTRALIAN. MARCH 10, 1820,” The Australian (Sydney, NSW: 1824 – 1848), Tuesday 10 March 1829, p.2
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