of its jurisdiction, the defendant must plead to the jurisdiction, and not object to it at the bearing."

There are a great variety of cases tending to establish this position, that when a defendant has once submitted to the jurisdiction, he has for ever precluded bimself from objecting to it. To state them all, after the great authorities I have mentioned, would be to multiply the witnesses without strengthening the testimony: I shall therefore only cite a few passages from lord chief baron Gilbert's History of the Common Pleas, which are decisive upon this part of the argument. In page 40, speaking of the order of pleading, he says, "the defendant first pleads to the jurisdiction of the Court; secondly, to the person of the plaintiff; and thirdly, to the count or declaration. By this order of pleading, each subsequent plea admits the former. As, when he pleads to the person of the plaintiff, he admits the jurisdiction of the Court; for it would be nugatory to plead any thing in that court which has no jurisdiction in the case. When he pleads to the count or declaration, he allows that the plaintiff is able to come into that court to implead him, and he may be there properly impleaded." He lays it down in a subsequent part of his treatise (p. | 148,) as a positive rule of law, that, "if a dcfendant pleads to the jurisdiction of the Court, he must do it instanter on his appearance; for if he imparls, he owns the jurisdiction of the Court, by craving leave of the Court for time to plead in, and the Court shall never be ousted of its jurisdiction after imparlance." When I find this doctrine in our old law-books, when I see it ratified in modern times, and stamped with the authorities of Coke, Hale, Holt, and Gilbert, I am warranted in saying, that governor Mostyn cannot now agitate the question of jurisdiction: and if he cannot, the judgment must be affirmed.

Notwithstanding which, I have no objection to follow Mr. Buller through the grounds of argument that he has adopted; and I shall endeavour to prove,

That an action of trespass can be brought in England for an injury done abroad:

That Mr. Fabrigas is capable of bringing such action:

And, that governor Mostyn may be the subject of it.

It cannot be contended, but that an action of trespass is a transitory action, and may be brought any where: "all personal actions," says lord Coke," may be brought in any county, and laid any where." Co. Litt. 282.

In the earl of Derby's case, 12 Coke, the chancellor, the chief justice, the master of the Rolls, and justices Dodderidge and Winch, resolved, "that for things transitory, although that in truth they be within the county palatine, the plaintiff may by law alledge them to be done in any place within England; and the defendant may not plead to the jurisdiction of the Court, that they were done within the county palatine." This doctrine is not con

fined to counties palatine; for lord Coke, in his comment on Littleton, 261, b, says, "that an obligation made beyond the seas at Bourdeaux, in France, may be sued here in England in what place the plaintiff will." Captain Parker brought an action of trespass and false imprisonment against lord Clive, for injuries received in India, and it was never doubted but that the action did lie. Even at this moment there is an action depending between Gregory Cojimaul, an Armenian merchant, and governor Verelst, in which the cause of action arose in Bengal. A bill was filed by the governor in the Exchequer for an injuuc. tion, which was granted; but on appeal to the House of Lords, the injunction was dissolved, The supreme court of judicature, by dissolving the injunction, acknowledged that an action of trespass could be maintained in England, though the cause of action arose in India.

The next point to be considered is, whether there is any disability attending the person of Mr. Fabrigas, that incapacitates him from bringing this action. But it will be requisite for me first to state, that governor Mostyn pleaded not guilty, and then justified what he had done by alledging, that the plaintiff had endeavoured to create mutiny among the troops; therefore he, as governor, had a right to imprison and banish him. Your lordship observes, that, according to his own plea, he does not pretend to justify what he has done as governor merely from the plenitude of his power, but from the necessity of the act, because the plaintiff had endeavoured to create mutiny and sedition. The learned judge who tried the cause, foreseeing the importance of this justification, re. quested the jury, at the same time they brought in their verdict, to find whether the governor's justification had been proved. The jury found a verdict for the plaintiff, with 3,000l. damages, and, that the plaintiff had not endeavoured to create mutiny or desertion, or had acted in any way tending thereto.

In cousequence of that decision, the question now is, whether Mr. Fabrigas, a man perfectly innocent, can bring an action against gover nor Mostyn for this wanton and unparalleled injury?

As the law grants redress for all injuries, so it is open to all persons, and none are excluded from bringing an action, except on account of their crimes or their country. Littleton says, there are six manner of persons who cannot bring actions: Mr. Fabrigas is not included in either of those descriptions. The only person that can bear the least resemblance to him is an alien, who, Littleton says, to be incapacìtated from bringing an action, must be born out of the ligeance of the king. Lord Coke, in his comment on that passage, observes, that “ Littleton saith not, out of the realm, but out of the ligeance; for he may be born, says Coke, out of the realm of England, yet within the ligeance, and shall be called the king's liegeman, for ligeus is ever taken for a natural-born subject." Co. Litt. 129.

sitory with local action, must be my apology for mentioning another case in support of the distinction. The case I allude to is Mr. Skinner's, which was referred to the twelve judges from the council-board. In the year 1657, when trade was open to the East-Indies, he possessed himself of a house and warehouse, which he filled with goods at Jamby; and he purchased of the king of Great Jamby the islands of Baretha. The agents of the EastIndia company assaulted his person, seized his warehouse, carried away his goods, and took and possessed themselves of the islands of Baretha. Upon this case, it was propounded to the judges, by an order from the king in council, dated the 12th April 1665, whether Mr. Skinner could have a full relief in any ordinary court of law? Their opinion was, "that his majesty's ordinary courts of justice at Westminster can give relief for taking away and spoiling his ship, goods, and papers, aud assaulting and wounding his person, notwithstanding the same was done beyond the seas: but that as to the detaining and possessing of the house and islands, in the case mentioned, he is not relievable in any ordinary court of justice."

Your lordships will collect from this case, that the twelve judges held that an action might be maintained here for spoiling his goods, and seizing his person, because an action of trespass is a transitory action; but an action could not be maintained for possessing the house and land, because it is a local action.

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I trust I have proved that an action of trespass may be brought here for an injury received in Minorca; and that Mr. Fabrigas, a natural-born subject, is capable of bringing such action. The only remaining question is, whether Mr. Mostyn, as governor, can tyrannize over the innocent inhabitants within his government, in violation of law, justice, and humanity, and not be responsible in our courts to repair by a satisfaction in damages the injury he has done? Mr. Buller has contended, that general Mostyn goverus as all absolute sovereigns do, and that stet pro ratione voluntas' is the only rule of his conduct. I did not expect to hear such an assertion advanced in this court., From whom does the governor derive this despotism? Can the king delegate absolute power to another, which he has not in himself? Can such a monster exist in the British dominions as tyranny uncontrouled by law? Mr. Buller asserts, that the governor is accountable to God alone; but this Court I hope will teach him, that he is accountable to his country here, as he must be to his God hereafter, for this wanton outrage on an unoffending subject. Many cases have been cited, and much argument adduced, to prove that a man is not responsible in an action for what he has done as a judge. I neither deny the doctrine, nor shall endeavour to impeach the cases; but I must observe, that they do not affect the present question. Did governor Mostyn sit in judgment? Did he hear any ac

cusation? Did he examine a witness? Did he even see the prisoner? Did he follow any rule of law in any country? Stet pro ratione voluntas' was his law, and his mercy was twelve months banishment, to an innocent individual.

As Mr. Buller has dwelt so much upon the case of Dutton and Howell, it will be expected that I take some notice of it. I need not go over the case again, as it has been already very accurately stated; but I must beg leave to read the reasons which were given with the printed case to the Lords, before it came on to be argued in the House of Peers. It is stated, that sir Richard Dutton ought to have the judgment that was obtained against him below, reversed; for

1st, That what he did, he did as chief governor, and in a council of state, for which he ought not to be charged with an action. If he shall, it may be not only the case of sir Richard Dutton, but of any other chief governor or privy-counsellor in Scotland, Ireland, or elsewhere.

2. What was done, was in order to bring a delinquent to justice, who was tried in Barbadoes and found guilty; and if for this he shall be charged with an action, it would be a discouragement to justice.

3. What was done, was done in court; for so is a council of state, to receive complaints against state delinquents, and direct their trials in proper courts. What a judge acts in court, as sir Richard Dutton did, no action lies against him for it.

4. There never was such an action as this maintained against a governor for what he did in council; and if this be made a precedent, it will render all governments unsafe.

5. If a governor of a plantation beyond the seas shall be charged with actions here, for what he did there, it will be impossible for him to defend himself: first, for that all records and evidences are there: secondly, the laws there differ in many things from what they are here.

Though the first part of this reason seems to operate in favour of governor Mostyn, yet it goes no farther than this; that if an action is brought here, it will be impossible for him to defend himself. The latter part shews the meaning of the whole; that is, if an action is brought here against the governor for any thing done by him in his judicial capacity, then he will not be able to defend himself, because all the records and evidences are there. This clearly proves, that it refers to what he did as judge, otherwise there could have been no occasion to have mentioned the records being there.

These reasons must have been the ground of the counsel's argument, and the whole is bottomed in sir Richard Dutton's having acted with his council in a judicial capacity. I take no notice of the arguments of counsel, as reported by Shower, because it can be no authority for this court. I shall only observe, that in respect to the jurisdiction, which was

but slightly touched on, that the assertion of the counsel for the defendant in error, affirming the jurisdiction, is as good authority for me, as the denial of it by sir Richard Dutton's counsel is for Mr. Buller. The report is silent as to the grounds of the judgment: it only says, "that the action was reversed;" but not one word that the action could not be maintained. But I venture to affirm, that this case has not the least resemblance to the present. My duty calls on me to draw the invidious parallel.

Governor Dutton sat with his council, to hear and enquire in the supreme court of judicature in Barbadoes :

Governor Mostyn sat neither as a military nor a civil judge.

Mr. Fabrigas was not brought before him, neither was he accused by any man:

Sir John Witham was publicly accused before the governor and council of state:

Mr. Fabrigas was thrown into a dungeon, and treated with the most unheard-of severity: Sir John Witham was only confined for the purpose of securing his person.

Mr. Fabrigas was banished for twelve months to the Spanish dominions:

Sir John was kept in custody for 14 days, till he could be brought to his trial:

Mr. Fabrigas, on the governor's justification, was found to be innocent:

Sir John Witham, when brought before the court of general sessions, was found guilty, and recommitted:

The governor of Barbadoes followed the laws of Barbadoes:

The governor of Minorca acted in diametrical opposition to all laws, and in violation of the natural dictates of humanity:

Sir Richard Dutton let the law take its course against a criminal:

But governor Mostyn went out of his way to persecute the innocent.

Having shewn the difference between the two cases, permit me to mention an observation of lord chief-justice de Grey, in his opinion on the motion for a new trial. "If the governor had secured him," said his lordship, "nay, if he had barely committed him, that he might have been amenable to justice, and if he bad immediately ordered a prosecution upon any part of his conduct, it would have been another question: but the governor knew he could no more imprison him for a twelvemonth, (and the banishment for a year is a continuation of the original imprisonment) than that he could inflict the torture."

Lord chief-justice de Grey then undoubtedly thought that governor Mostyn had acted illegally if so, I hope I shall be able to shew, that he is amenable to the courts of law in England.

Lord Bellamont's case, in 2 Salkeld 625, B. R. Pasch. 12 W. 3, evinces, that a governor abroad is responsible here. "The attorney-general moved for a trial at bar the last paper-day in the term, in an action against the

governor of New-York, for matter done by him as governor, and granted, because the king defended it." I collect from this case, that the attorney-general knew the Court had jurisdiction, or he would not have made the motion; and the Court would not have granted it, if they had not been legally impowered to try it. The legislature, in the same year (12 W. S, cap. 12,) enacted, that governors beyond the sea should be tried in the King's-bench, or in such county as shall be assigned by his majesty, by good and lawful men, for offences committed in their governments abroad against the king's subjects there. As, by the common law, an indictment could be preferred only in that county where the offence was committed, governors abroad were not criminally amenable till this act had passed. When the legislature so carefully provided to bring governors to justice for the offences they might commit in their governments, they would indisputably, by the same law, have protected the subjects from civil injuries, had they not known that such provision was unnecessary, and that, by the common law, all personal actions might be brought in England; of which lord Bellamont's case was a recent instance.

In Michaelmas-term, 11 Geo. 2, 1737, Stephen Conner brought an action against Joseph Sabine, governor of Gibraltar: and he stated in his declaration, that he was a master carpenter of the office of ordnance at Gibraltar; that governor Sabine tried him by a court-martial, to which he was not subject; and that he underwent the sentence of receiving 500 lashes, and that he was compelled to depart from Gibraltar, which he laid to his damage of 10,000l. The defendant pleaded Not Guilty, and justified by trying him by a court-martial. There was a verdict for the plaintiff, with 7007. damages. A writ of error was brought, and the judgment affirmed. No distinction can be made between the governor of Gibraltar and the governor of Minorca ; except only, that the one tried Conner by a court-martial, and punished him by military law; while the other, without any trial, banished Mr. Fabrigas, contrary to all ideas of justice and of law.

I must now beg leave to advert to the bill of exceptions; in which it is alledged, that " Minorca is divided into four districts, exclusive of the arraval, which the witnesses always understood to be distinct from the others, and under the immediate order of the governor.”

I am well aware, that I am not at liberty to go out of the record; if I was, the fact warrants me in saying, that the evidence is most untrue.

It is notorious that Minorca is divided into four terminos only; Cieutadella, Alayor, Marcadel, and Mahon, which latter includes the arraval of St. Phillip's. This is known to every man who has been at Minorca, and to every man who has read Armstrong's history of that island. That the governor has a legislative authority within the arraval, is too absurd to dwell on. By what law, by what provision,

does he claim that power? When process is executed within St. Phillip's, or its environs, the civil magistrate usually pays the governor the compliment of acquainting him with it; but the same compliment is paid to the commanding officer at Cieutadella, where an exclusive jurisdiction is not even pretended. In fact, it is a matter of civility merely, but never was a claim of right.

Lord chief justice de Grey in the solemn opinion which he gave upon the motion for a new trial, has been explicit on these two heads. "One of the witnesses in the cause (said his lordship) represented to the jury, that in some particular cases, especially in criminal matters, the governor resident upon the island does exercise a legislative power. It was gross ignorance in that person to imagine such a thing: I may say, it was impossible, that a man who lived upon the island, in the station he had done, should not know better, than to think that the governor had a civil and criminal power in him. The governor is the king's servant; his commission is from him, and he is to execute the power he is invested with under that commission, which is to execute the laws of Minorca, under such regulations as the king 'shall make in council. It was a vain imagination in the witnesses to say, that there were five terminos in the island of Minorca. I have at various times seen a multitude of authentic documents and papers relative to that island; and I do not believe, that, in any one of them, the idea of the arraval of St. Phillip's being a distinct jurisdiction was ever started. Mahon is one of the four terminos, and St. Phillip's, and all the district about it, is comprehended within that termino; but to suppose, that there is a distinct jurisdiction, separate from the government of the island, is ridiculous and absurd."

These were the words of lord chief justice de Grey; to which, I am confident, this Court will pay a proper attention.

The bill of exceptions then states, that general Mostyn was appointed governor by the king's commission, which gives him all the powers belonging to the said office. I wish to ask Mr. Buller, whether to persecute the innocent, and to banish those subjects committed to his care, is a power incident to or springing out of the office of governor? If it is not, the governor cannot justify himself under his commission.

It is then stated, that the king ordered "all his loving subjects in the said island to obey him, the said John Mostyn;" but nothing in particular is mentioned of the arraval. Had it been a peculiar district, under the despotic will of the governor, there must have been some notice taken of it, either in the commission, or in his majesty's orders. The governor then confesses in his bill of exceptions, "that he banished Mr. Fabrigas without any reasonable or probable cause, or any other matter alledged in his plea, or any act tending thereto." Notwithstanding which admission, in the very next

sentence, he insists that the plaintiff ought to be barred his said action, although it is stated in the bill of exceptions, that "the Minorquins plead sometimes the English laws."

Were the bill of exceptions less absurd than it is, yet I should contend, that the governor, by pleading in chief, and submitting his cause to the decision of an English jury, has precluded this Court from enquiring into the original jurisdiction. Were it possible that this ground should fail me, when supported by so many great authorities, yet I should be very easy about the event; for, as an action of trespass can be brought in England for injuries abroad, and as every subject can bring that action, and as governor Mostyn (being a subject) must answer to it, I have no doubt but the judgment will be affirmed. Should it be reversed, I fear the public, with too much truth, will apply the lines of the Roman satirist on the drunken Marius to the present occasion; and they will say of governor Mostyn, as was formerly said of him,

Hic est damnatus inani judicio ; and to the Minorquins, if Mr. Fabrigas should be deprived of that satisfaction in damages which the jury gave him,

At tu victrix provincia ploras.

Mr. Buller. 1 beg leave to trouble the Court with a few words by way of reply: and though Mr. Peckham has thought fit to declaim so much upon the particular facts of this cause, yet I was confident at first, and do not now find I was deceived in thinking, 1 should not be contradicted in what I said about the propriety of governor Mostyn's conduct; that he had taken every precaution that a man in his situation could do, had consulted many persons there, civil and military, and that they were all unanimous in advising the governor to do what was done.

The first objection made by Mr. Peckham has been, that Mr. Mostyn should be precluded from contending that this Court hath not a jurisdiction, because he has submitted to the jurisdiction of the Court in so many instances during the whole of these proceedings. He has stated the whole proceedings during the stages of this cause, by which he supposes Mr. Mostyn hath done such acts as shall be construed into a submission to the jurisdiction of the Court, and is therefore now precluded from entering into the question. Further, Mr. Peckham has insisted upon it, that at the trial we did wrong in making a defence; because, if we meant to go into the question, whether the Court has jurisdiction or not, we should have then insisted upon a non-suit, and not gone into the merits of the cause. I do not apprehend any of the cases he has cited will come up to the present: and as to the different periods of the cause, where he supposes we have submitted to the jurisdiction of the Court, if this Court hath no jurisdiction at all, I do not know how it can then be said we have submit