THE CARL CASE.

Evening Star, Issue 3309, 27 September 1873, Page 3

THE CARL CASE.

(From the AudraUman of the 20th.)

An application was on Thursday made to the Supreme Court on behalf of H. C Mount and W. C. Morris, convicted of manslaughter on board the brig Carl, for a writ of habeas corpus requiring the inspector general of penal establishments to show by what warrant he detains them at Pentridge. The Court granted the writ, returnable on Tuesday. The application for the discharge from custody of the prisoners Mount and Morris was heard on Tuesday in the (Supreme Court. Mr Duncan, the inspector-general of penal establishments, had been directed by a writ of habeas to bring up the prisoners, and show by what authority be detained them. He returned that they had been sentenced at the Criminal Sessions of the Supreme Court to fifteen years’ penal servitude for manslaughter on the high seas, and that he held them in Custody in gaol under that sentence. The Attorney-General and Mr Adamson appeared to support the sufficiency of the return, while Mr Ireland, Mr M’harland, and Mr Molesworth contended that the return was bad. It was argued that it was insufficient, because it did not mention the gaol where the prisoners were detained ; because it did not appear that the gaol was one proclaimed under the Gaols Statute; because ihe prisoners having been formerly in the custody of the sheriff there was nothing to show how they left his custody and passed into that of Mr Duncan. But the principal ground of objection was that the punishment of penal servitude can only be undergone in some place appointed for the purpose by the Secretary of State, and there was nothing to show that the gaol where the prisoners were detained had been so appointed. Against this view it was argued that penal servitude pnnld be pn,pried into execution in the Colony without any direction from the Secretary of State ; that the offence was a local one, and the administration of the punishment could bo carried out by local laws. As to the other points, it was submitted that it was unnecessary to mention the name of the gaol, and that from the moment the sentence was passed the prisoners were ip the custody of the inspector-general of penal establishments. The Coupt resprved its decision. The prisoners appeared to have suffered greatly since their incarceration, although the change is more noticeable in Morris, whose face is absolutely colorless.

There waa a groat crowd at the Supreme Court on Wednesday to bear the decision of their Honors on the application to discharge the prisoners Mount and Morris as being in illegal custody at Pentridge. The crowd was so great that many were unable to obtain oven standing room. The Judges took their seats on the bench shortly after 12 o’clock, and judgment was delivered by Mr Justice Barry. Three objections had been urged against the validity of the authority under which the prisoners were detained—that it did not appear they were kept in any gaol proclaimed as such under the Gaols (statute ; that Mr Duncan, the inspector-general of penal establishments, showed no warrant by which he obtained possession of them from the Sheriff; aud, lastly aud principally, that, as the sentence _ on the prisoners was one of penal servitude, it should be shown either that they were detained in -omc place appointed for the purpose by one of the Secretaries of (State, or that they were being kept in gaol pending their being sent to some such place, It was on this latter point the Court decided, It considered

the objection fatal, and observed that, as it appeared that no application would be made to the Secretary of State for the appointment of a place of detention, it would be oppressive to remand the prisoners, They were therefore discharjcd. So soon as judgment was pronounced, the ciowd began to cheer, but were soon stopped, and they then made a rush to gain the outside of the building, so as to obtain another view of the prisoners as they left the court. The prisoners were then taken into one of the rooms off the courr, and here a number of their relatives and friends shook hands with them. Mount was the first to leave and he had not gained the outside of the building when he was surrounded by several detectives The crowd began to cheer again, this time dieting not merely the prisoner, but the prisoner’s counsel. A number of the general police now appeared on the scene, and took their stand beside the detectives. A general hustling began, which ended, in a few moments, in the whole crowd being thrust down the embankment and into Russell street. The detectives still stuck by their man, and as he gained the footpath in Russell street, they formally arrested him, and took him to the police barracks on the opposite side of ‘the street. A few minutes afterwards, Morris appeared at the door of the court, and he, also, was taken possession of by the police, and removed to the police barracks. Of course no resistance was attempted by anybody, although the prisoners’ friends were a good deal disappointed, as they bad provided a cab to take Morris away, and a horse for Mount, and they were rather loud in their condemnation of what they considered the harsh character of the proceedings towards the prisoners. Mr Ireland complained to the Judge that the prisoners had been arrested within the precincts of the court immediately after they had been discharged, and asked the Court to interfere. Mr Justice harry told him there must be an affidavit of the fact, -and when that was made, the Court would consider the matter. Mr Ireland promised to renew the application at a later period of the day, but did not do so. The prisoners were kept in one of the rooms at the police barracks for some minutes, and were then brought out in guard of a number of constables, placed in a waggonette, and taken to the Swanston street lock-up, where a charge was preferred against them of being illegally at large without lawful excuse before the expiration of their sentence. In the lock-up they were visited by some friends who had obtained orders from the police magistrate. There was some excitemeut among the people outside, and for two or three hours a number of persons bung about the premises expecting to see something unusual happen. It was intended to apply to the police magistrates for bail at three o’clock, but ultimately it was decided that the prisoners should be allowed to remain in the watch-house till Thursday morniag, when the magistrates would hear arguments as to the release of the prisoners on bail or otherwise. The charge upon which the prisoners are now detained is based upon the Imperial act of 5 Geo. IV., cap. 84, sec. ‘22, read in conjunction with the acts relating to the substitution of penal servitude for the punishment of transportation. By the Act of 5 Geo. IV., cap. 84, referring to transportation, it is enacted in sec. 22, “ If any . ffmder who shall have been, or who shall be so sentenced or ordered to be transported or banished, or who shall have agreed or who shall agree to he transported or banish himself or herself on certain conditions for life, or for a number of years, under the provisions of this or of any former Act, shall bo afterwards at large within any part of His Majesty’s dominions without some lawful cause before the expiration of the term for which such offender shall have been sentenced, or ordered to be transported or banished, or shall have so agreed to be transported or banish himself or herself, every such offender so being at large, being thereof lawfully convicted, shall suffer death as in case of felony, without benefit of clergy.” By a subsequent act of 4 and 5, William IV., cap. 67, the punishment of four years’ imprisonment is substituted for the death penalty. The subsequent acts of 16 and 1/ Viet. ch 99, 20 and 21 Viet,, ch. 3, and 27 and 28 Viet., ch. 47, substituting penal servitude for transportation, make all the provisions as to transportation apply to penal servitude, and it will therefore be contended that the prisoners can be arrested under the powers conferred by 5 George IV., ch. 84, sec. 22. In connection with this matter writs have been issued against Mr Duncan both by Mount ami Morris ; each claims LIOO penalty for not being supplied with the copy of the warrant on which they were detained at Pentridge, and each claims L 2.500 damages for the illegal incarceration at Pentridge,