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Why, there are ways of knowing foreign laws as well as our own, but in a different manner: it must be proved as a fact, and in that shape the court must assist the jury in finding out what the law really is. Suppose there is a French settlement (there is a case in point of the sort I am stating) which depends upon the custom of Paris; why, we must receive witnesses with regard to it, to shew what the custom is, just as you receive evidence of a custom with respect to trade.

The judges in the courts of England do determine all cases that arise in the plantations, all cases that arise in Gibraltar or Minorca, in Jersey or Guernsey, and they must inform themselves by having the law stated to them. As to suggestions with regard to witnesses, the plaintiff must prove his case, and the court must take care that the defendant is not surprised, and that he has a fair opportunity of bringing his evidence, if it is a case proper in other respects for the jurisdiction of the court. There may be some cases arising abroad, which may not be fit to be tried here; but that cannot be the case of a governor injuring a man, contrary to the duty of his office, and in violation of the trust_reposed in him by the king's commission. If he wants to send for witnesses to prove his justification, and applies to the court, they will do what this court did in a case of a criminal prosecution which arose in Scotland. This court forced the prosecutor (and would have put off the trial from day to day if he had not submitted to it) to suffer the witnesses to be examined by a commission where the cause arose, who could not be compelled to come here. The court obliged them to come into these terms; or, if they did not, it is a matter of course, in aid of a trial at law, to apply upon a real ground, and not upon a fictitious pretence of delay, to a court of equity to have a commission and injunction in the mean time; and the court will certainly take care that justice shall be done to the defendant as well as to the plaintiff, who must come with witnesses to prove his case: and therefore, in every light in which I see this matter, it holds emphatically in the case of a governor, if it did not hold in respect of any other man within the colony, province, or garrison. But to make questions upon matters of settled law, where there have been a number of actions determined, which it never entered into a man's head to dispute-to lay down in an English court of justice such monstrous propositions as that a governor, acting by virtue of letters patent under the great seal, can do what he pleases; that he is accountable only to God and bis own conscience-and to maintain here that every governor in every place can act absolutely; that he may spoil, plunder, affect their bodies and their liberty, and is accountable to nobody-is a doctrine not to be maintained; for if he is not accountable in this court, he is accountable no-where. The king in council has no jurisdiction of this matter; they cannot do it in any shape; they cannot

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give damages, they cannot give reparation, they cannot punish, they cannot hold plea in any way. Wherever complaints have been before the king in council, it has been with a view to remove the governor; it has been with a view to take the commission from him which he held at the pleasure of the crown. But suppose he holds nothing of the crown, suppose his government is at an end, and that he is in England, they have no jurisdiction to make reparation to the party injured; they. have no jurisdiction to punish in any shape the man that has committed the injury: how can the arguments be supported, that, in an empire so extended as this, every governor in every colony and every province belonging to the crown of Great Britain, shall be absolutely despotic, and can no more be called in question than the king of France? and this after there have been multitudes of actions in all our memories against governors, and nobody has been ingenious enough to whisper them, that they

were not amenable.

In a case in Salkeld, cited by Mr. Peckham, there was a motion for a trial at bar in an action of false imprisonment against the governor of New-York; and it was desired to be a trial at bar, because the Attorney General was to defend it on the part of the king, who had taken up the defence of the governor. That case plainly shews that such an action existed; the Attorney General had no idea of a governor's being above the law. Justice Powell says, in the case of Way and Yally, in 6 Modern, that an action of false imprisonment had been brought here against the governor of Jamaica for an imprisonment there; and the laws of the country were given in evidence. The governor of Jamaica in that case never thought. that he was not amenable. He defended himself. He shewed, I suppose, by the laws of the country, an act of the assembly which justified that imprisonment; and the court received it, to be sure, as they ought to do. Whatever is a justification in the place where the thing is done, ought to be a justification where the case is tried. I remember (it was early in my time; I was counsel in it) an action against governor Sabine, and he was very ably defended. Nobody thought the action did not lie against him. He was governor of Gibraltar, and he barely confirmed the sentence of a court-martial, which tried one of the train of artillery by martial law. Governor Sabine affirmed the sentence. This plaintiff was a carpenter in the train. It was proved at the trial, that the tradesmen that followed the train were not liable to martial law; the court were of that opinion; and therefore the defendant was guilty of a trespass in having a share in that sentence. which punished him by whipping. There is another case or two, but they don't occur to me at present.

Let us see now what the next objection is, with regard to the matter arising abroad; and that is a general objection, that as the matter arose abroad, it cannot be tried here in Eng

land. There is a formal distinction that prevails in our courts, and likewise a substantial one as to the locality of trials. The substantial distinction is, where the proceeding is in rem, and where the effect of the judgment cannot be had if it is laid in a wrong place. This is the case of all ejectments where possession is to be delivered by the sheriff of the county and as trials here are in particular Counties, the officers are county officers; therefore the judgment could not have effect if it was not laid in the proper place and in the proper county. But there likewise is a formal distinction, where, perhaps, complete justice could be done, let it be laid in what county it might; that is mere matter of form as to cases that arise within the realm: but even with regard to matters that arise out of the realm, to be sure there is a distinction of locality too; for there are some cases that arise out of the realm, that ought not to be tried any where but in the county where they arise, as the case alJuded to by serjeant Walker. If there is a sort of fighting in France between two Frenchmen, and they happen both casually to be here, and an action of assault is brought by the one against the other, which charge a criminality too, that it is done against the king's peace, and the laws and customs of England; in that case it may be a very material question whether that could be maintained here: for though it is not a criminal prosecution, yet it has that sort of criminality that, perhaps, without giving an opinion, it ought to be tried by the laws of that country where both parties are subjects; it may be a substantial objection of locality. So likewise, if it is concerning an estate in a foreign country, where it is a matter of title and not of damages, it may be a substantial distinction. There is likewise a question of form, and that arises upon the trial; for trials in England being by a jury, and the kingdom being divided into counties, and every county, in respect of trial, considered almost as if a separate kingdom or principality, it is absolutely necessary that there should be some county where the action is particularly brought, that there may be a process to the sheriff of that county, to bring a jury from thence to try it; and that is matter of form, which goes to all cases that arise abroad. But the law makes a distinction between transitory actions and local actions. If the matter which is the cause of a transitory action arises within the realm, it may be laid in any county; the place is not material: and if an imprisonment in Middlesex, it may be laid in Surrey; and though proved to be done in Middlesex, the place not being material, it does not at all prevent the plaintiff recovering damages: for the place of transitory actions is never material. But where, by particular acts of parliament, it is made so, as in the case of churchwardens and constables, and other cases that require the action to be brought in the county; there, by the force of the act of parliament, the objection is fatal: but otherwise it must be laid in any

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county in England, let it be done where it will: the parties had an opportunity of applying to the court in time to change the venue. But if they go to trial without it, that is no objection; and all actions of a transitory nature that arise abroad may be laid as happening in an English county. But there are occasions which make it absolutely necessary to state in the declaration, that it really happened abroad; as in the case of specialties, where the date must be set forth. When an action is brought upon a specialty which bears a date, if that specialty is set out, or if oyer is prayed of it, by which the place where it was made must appear; if the declaration states it to have been made at Westminster, in Middlesex, and upon producing the deed it bears date at Bengal, there is a variance between the deed and the declaration, which makes it appear to be a different instrument. I don't put the case, though there are some in the books that seem to me to have confounded the statute of the 6th of Richard the second, therefore I don't put the objection upon the 6th of Richard the second; but it goes singly upon this: if you don't state the true date or true description of the bond, it is a variance. What does the law in that case? (and it has done it for hundreds of years) Why, the law invented a fiction, and has said, "You shall set out the description truly, and then give a venue only for form for the trial; videlicet, in the county of Middlesex, or any other county you please." Did any judge ever think that when the declaration said, in fort St. George in Cheapside, that the plaintiff meant that it was in Cheapside? No; it is a fiction in form: every country has its forms: it is for the furtherance of justice that these fictions were invented; to get rid of formalities; to further and advance justice. This is a certain rule: you never shall contradict the fiction so as to defeat the end for which it was invented, but you may contradict it for every other purpose. Now this fiction is invented barely for the mode of trial; to every other purpose you shall contradict it, but not for the purpose of saying, You shall not try it. It is just like that question that was long agitated and finally determined some years ago, upon a fiction of the teste of writs taken out in the vacation, which bore date as of the last day of the term. That is a fiction of the Court. You never shall contradict that fiction, and go into the truth of the case, to destroy the writ, and shew it a bad writ. Why? Because the Court invented the fiction to make the writ good, for the furtherance of justice, that it may appear right in the form; but for every other purpose in the world you may contradict it. I am sorry to observe there are some sayings which have been alluded to, inaccurately taken down. Perhaps there were short-hand writers in those days, as there are at present, who mistake every word they hear, and, being unable to correct it, have printed it improperly: but to say, that as men they have one way of think ing, and as judges they have another, is an absurdity. No; they meant to support the fic

tion. I will mention a case or two to shew that | jection. Why then, it all amounts to this: is the meaning of it. There is a case in 6 that where the action is substantially such a Modern, 208, of Roberts and Harnage. The one as the Court can hold plea of, as the mode plaintiff declares, that the defendant became of trial is by jury, and as they must be called bound to him at Fort St. David's in the East together by process directed to the sheriff of Indies at London, in such a bond. Upon de- the county, matter of form is added to the ficmurrer the objection was, that the bond ap- tion, to say it is in that county; and then the peared to have been sealed and delivered at fort whole of the inquiry is, whether it is an action St. David's in the East Indies, and therefore that ought to be maintained. But can it be the date made it local; and, by consequence, doubted, that actions may be maintained here, the declaration ought to have been of a bond not only upon contracts, which follow the permade at Fort St. David's in the East Indies, sons, but for injuries done by subject to subject; viz. at Islington in the county of Middlesex, or especially for injuries where the whole that is in such a ward or parish in London; and of prayed is a reparation in damages, or satisfacthat opinion was the whole Court. You see tion to be made by process against the person how this case is stated. But I will state it from or his effects within the jurisdiction of the another book, where it is reported more truly; Court? We know it is within every day's exI mean in lord Raymond, 1042. There it is perience. I was embarrassed a great while to stated thus. It appeared by the declaration, find out whether it was really meant to make that the bond was made at London, in the ward a question of it. It is so in sea-batteries; but of Cheap. Upon oyer, the bond was set out, is it to be supposed that the judge thought it and it appeared on the face of it to be dated at happened in Cheapside, when the party proves fort St. George in the East Indies. The de- where the place was? In sea-batteries, the fendant pleaded the variance in abatement, and plaintiff often lays the injury to have been done the plaintiff demurred, and it was held bad; in Middlesex, and then proves it to be done a but the Court said, that it would have been thousand leagues distant, on the other side of good, if laid at Fort St. George in the East the Atlantic. There are cases of offences on Indies, to wit, at London, in the ward of the high seas, where it is of necessity to lay Cheap. What was the objection there? Why, in the declaration, that it was done upon they had laid it falsely. They had laid the the high seas; as the taking of a ship as a bond as made at London. The bond is pro- prize. A case of that sort occurs to my meduced, and appears to be made at another mory:—the reason I remember it is, because place: that is a variance. You must take the there was a question about the jurisdiction. bond as it is. Then how do you get to trial? There likewise was an action of that kind before Why, introduce a fiction, and the formality lord chief justice Lee, and another before me, in gives you the trial in that county by the vide which I quoted that determination, to shew that licet, and the bond is truly described. A case when the lords commissioners of prizes have was quoted from Latch, and a case from Lut-given judgment, that is conclusive in the action; wyche, on the former argument; but I will mention a case posterior in point of time, where the Court took it up upon the true ground, where both these cases were cited, and no regard at all was paid to them; and that is the case of Parker and Crook, 10 Modern 255. This was an action of covenant upon a deed indented. It was objected to the declaration, that the defendant is said in the declaration to continue at Fort St. George in the East Indies; and upon the oyer of the deed it bears date at Fort St. George; and therefore the Court, as was pretended, had no jurisdiction. Latch, fol. 4. Lutwyche, 56. Lord chief justice Parker said, that an action will lie in England upon a deed dated in foreign parts, or else the party can have no remedy; but then, in the declaration, a place in England must be alledged, pro forma. Generally speaking, the deed, upon the oyer of it, must be consistent with the declaration; but in these cases propter necessitatem, if the inconsistency be as little as possible, not to be regarded: as here, the contract, being of a voyage which was to be performed from Fort St. George to Great Britain, does import, that Fort St. George is different from Great Britain: and after taking time to consider of it, in Hilary term the plaintiff had his judgment, notwithstanding the ob

and likewise, when they have given judgment, it is conclusive as to the costs, whether they have given costs or not. But how is that action laid? It is necessary to be laid, that his ship was taken or seized on the high seas, videlicet, in Cheapside. Now is it seriously contended, that the judge and jury, and counsel, who tried the cause, fancied that ship was sailing in Cheapside? No; it is plain sense; the ship was taken upon the high-seas, for which an action lies in England; and you say in Cheapside, which is saying no more than that, I pray this action may be tried in London; it is plainly understood: but if you offer reasons of fact contrary to the truth of the case, there is no end of the embarrassment. At the last sittings, there were two actions brought by the Armenian merchants for assaults and trespass in the East-Indies, and they are very strong authorities. Serjeant Glynn said, that the defendant, Mr. Verelst, was ably assisted. So he was; and by men who would have taken the objection, if they thought it had been maintainable: and that was after this case had been argued once; yet the counsel did not think it could be supported. Mr. Verelst would have been glad to have made the objection: he would not have left it to a jury, if he could have stopped them short, and said, “You shall not try it at

when they had a right to it. It was a dispute between them and the fishermen in England. The cause went on a great way: the defendant would have turned it short at once, if he could have made that objection; but that objection was not made. There are no local courts among the Esquimaux Indians upon that part of the Labrador-coast. Whatever injury had been done there by any of the king's officers would have been altogether without redress, if that objection of locality would have held: and the consequence of that circumstance shews, that where the reason fails, even in actions which in England would be local actions, yet that does not hold to places beyond the seas within the king's dominions. That of admiral Palliser's went off upon a proposal of a reference, and ended by an award. But as to transitory actions, there is not a colour of doubt but that every action that is transitory may be laid in any county in England, though the absolutely necessary to lay the truth of the case in the declaration, there is a fiction of law to assist you, and you shall not make use of the truth of the case against that fiction, but you may make use of it to every other purpose. I am clearly of opinion not only against the objections made, but that there does not appear a question upon which the objections could arise.

all." I have had some actions before me, going rather further than these transitory actions; that is, going to cases which in England would be local actions: and I remember one, I think it was an action brought against captain Gambier, who by order of admiral Boscawen had pulled down the houses of some suttlers who supplied the navy and sailors with spirituous liquors; and whether the act was right or wrong, it was certainly done with a good intention on the part of the admiral, for the sailors' health were affected by it. They were pulled down. The captain was inattentive enough to bring the gentleman over in his own ship, who would never have got to England otherwise; and as soon as he came here, he was advised that he should bring an action against him. He brought his action, and one of the counts in the declaration was for pulling down the houses. The objection was taken to the count for pulling down the houses; and the case of Skinner and the East India Com-matter arises beyond the seas: and when it is pany was cited in support of the objection. On the other side, they produced, from a manuscript note, a case before lord chief justice Eyre, where he over-ruled the objection; and 1 over-ruled the objection upon this principle, that the reparation here was personal, and for damages; that there would be a failure of justice, for it was upon the coast of Nova Scotia, where there were no regular courts of justice, but if there had been, captain Gambier might never go there again; and that the reason of locality in such an action in England did not hold in this case. I quoted a case of an injury of that sort in the East-Indies, where even in a court of equity lord Hardwicke bad directed satisfaction to be made in damages. That case was not fully argued; but this was argued, and there were large damages given against Gambier. I do not quote it for the opinion I was of there, because that opinion is very likely to be erroneous; but I quote it for this reason, that there were large damages I have not ventured to alter the nonsensical given against captain Gambier: and though he passages in the former report of this case. The was not at the expence, for he acted by the orders of admiral Boscawen, yet the admiral's case in Shower, which is alluded to in p. 115, representatives paid the expence, therefore their I suppose to be that of sir Richard Dutton inclination was to have got rid of that verdict if. Howell and others, executors of Witham, they could; but there never was any motion P. 24. for a new trial. I recollect another cause that came on before me: that was the case of admiral Palliser; there the very gist of the action was local. It was for destroying fishinghuts upon the Labrador coast. It was a nice question; when the Canadians settled, and

The other judges declared themselves of the same opinion, and the Court ordered, "That the judgment should be affirmed."

In consequence of the above judgment, on Saturday the 4th day of February 1775, the gentlemen who were bail for governor Mostyn, to prevent his being taken in execution and carried to prison, were obliged to pay to Mr. Fabrigas the sum of 3,000l. for his damages, and 159/. which the Court amerced the governor in costs.

See the Case of Louisa Calderon. General Picton, B. R. A. D. 1809.

See, also, the following Case of the Island of Grenada (Campbell v. Hall), and the Canadian Freeholder, as therein cited.

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550. The Case of the Island of Grenada; in relation to the Payment of Four and one-half in the Hundred of Goods exported therefrom; between ALEXANDER CAMPBELL, esq. Plaintiff, and WM. HALL, esq. Defendant, in the Court of King's-Bench, before Lord Chief-Justice Mansfield: 15 GEORGE III. A. D. 1774. [The following account of this Case is com- he the said William would well and truly pay piled from the Reports of Mr. Lofft and Mr. Henry Cowper, together with the short-hand writer's report of the Arguments of Mr. Macdonald (now Lord Chief Baron of the Exchequer), and Mr. Hargrave. Both those learned persons have assented to the publication of this Manuscript, which was imparted to me by Mr. Hargrave, with his accustomed kindness of assistance in the im-year aforesaid, and often afterwards, at Lon

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Trinity-term, in the 13th year of the reign of

'king George the third.

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' and satisfy the said Alexander the said sum of money whenever he the said William should be thereunto afterwards required. Yet the 'said William, not regarding his said promise and undertaking, but contriving and fraudu lently intending craftily and subtilly to deceive the said Alexander in this behalf, hath not 'paid the said Alexander the said sum of money, or any part thereof, (although the said William afterwards, to wit, on the same day and

'don aforesaid, in the parish and ward aforesaid, was by the said Alexander required so to do) but to pay the same, or any part thereof, to the said Alexander he the said William hath bitherto altogether refused, and still 'doth refuse, to the damage of the said Alexander of 201. And thereof he brings his 'suit, &c.'

"And now on this day, to wit, on Friday next after the morrow of the Holy Trinity, in this same term, (to which said day the said William had leave to imparle to the said bill, and then to answer, &c.) before our lord the

London to wit, Be it remembered, that 'heretofore, that is to say, in Easter-term last 'past, before our lord the king at Westmins-king at Westminster, comes as well the said ter, came Alexander Campbell, esq. by Ben Alexander, by his attorney aforesaid, as the 'jamin Rosewell, his attorney, and brought in said William, by Robert Want, his attorney; the court of our said lord the king then there, and the said William defends the wrong and his bill against William Hall, esq. being in injury. When, &c. and says he did not the custody of the marshal of the Marshalsea undertake and promise in manner and form as of our said lord the king, before the king him- the said Alexander Campbell above complains 'self, of a plea of trespass on the case; and against him. Aud of this he puts himself upon there are pledges for the prosecution, to wit, the country; and the said Alexander doth the John Doe and Richard Roe. Which said like. bill follows in these words, to wit, London, to wit, Alexander Campbell, esq. complains of William Hall, esq. being in the custody of the marshal of the Marshalsea of our lord the king himself, of a plea [of trespass on the and also] for that whereas the said William, on the first day of January, in the year of our Lord 1773, at London aforesaid, to wit, in the parish of St. Mary-le-Bow, in the ward of Cheap, was indebted to the said Alexander in the sum of 201. of lawful money of Great Britain, for the like sum of money by the said William before that time had and received, for and to the use of the said Alexander and being so indebted, be the said William, in consideration thereof, afterwards, to wit, on the same day and year aforesaid, at • London aforesaid, in the parish and ward 'aforesaid, undertook, and to the said Alex' ander then and there faithfully promised, that

" case;

"Therefore let a jury thereupon come before our lord the king on Wednesday next after three weeks of the Holy Trinity, by whom the truth of the matter may be better known, [and who neither are of kin to the aforesaid Alexander nor to the aforesaid William] to recognize the truth of the issue between the said parties, because as well the said Alexander as the said William, between whom the issue is, have put themselves upon the said jury. The same day is given to the party aforesaid.

"Afterwards the process being continued between the parties aforesaid, of the plea aforesaid, by the jury between them being respited (before our lord the king, at Westminster, until Saturday next after the morrow of All Souls then next following, unless the king's right trusty and well beloved William, lord Mansfield, his majesty's chief justice assigned to hold pleas before our lord the king himself,

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