who was then and now is, commander of the above vessel, then and now lying in the river of Thames, did the said negro, committed to his custody, detain; and on which he now renders him to the orders of the Court. We pay all due attention to the opinion of sir Philip Yorke, and lord chancellor Talbot, whereby they pledged themselves to the British planters, for all the legal consequences of slaves coming over to this kingdom or being baptized, recognized by lord Hardwicke, sitting as chancellor ou the 19th of October, 1749, that trover would lie: that a notion had prevailed, if a negro came over, or became a Christian, he was emancipated, but no ground in law that he and lord Talbot, when attorney and solicitorgeneral, were of opinion, that no such claim for freedom was valid; that though the statute of tenures had abolished villeins regardant to a manor, yet be did not conceive but that a man might still become a villein in gross, by confessing himself such in open court. We are so well agreed, that we think there is no occasion of having it argued (as I intimated an intention at first,) before all the judges, as is usual, for obvious reasons, on a return to a Habeas Corpus. The only question before us is, whether the cause on the return is sufficient? If it is, the negro must be remanded; if it is not, he must be discharged. Accordingly, the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged. 549. Proceedings in an Action by Mr. ANTHONY FABRIGAS, against Lieutenant-General MOSTYN, Governor of Minorca, for False Imprisonment and Banishment; first in the Common-Pleas, and afterwards in the King's-Bench: 14 GEORGE III. A. D 1773-1774.* THE Court being sat, the jury were called over, and the following were sworn to try the issue joined between the parties. JURY. [The following Case is taken from the Trial, In the Common Pleas, Guildhall. MOSTYN, esq. Defendant. Counsel for the Plaintiff.-Mr. Serjeant Glynn, Mr. Lee, Mr. Grose, Mr. Peckham. Counsel for the Defendant.-Mr. Serjeant Davy, Mr. Serjeant Burland, Mr. Serjeant Walker, Mr. Buller. • See 2 Blackstone, 929. Cowp. 161. The title of the proceedings first published, being only the trial of the cause at Nisi Prius before Mr. Just. Gould, who sat for the chief justice of the Common Pleas, was thus expressed: "The Proceedings at large, in a Cause on an Action brought by Anthony Fabrigas, gent. VOL. XX. Thomas Ashley, esq. Walter Eaver, esq. Mr. Thomas Bowlby, Mr. Peckham. May it please your lordship, and you gentlemen of the jury, this is an action for an assault and false imprisonment, brought by Anthony Fabrigas against John Mostyn, esq. The plaintiff states in his declaration, that the defendant, on the 1st of September, 1771, with force and arms, made an assault upon him at Minorca and then and there imprisoned him, and caused him to be against lieutenant-general John Mostyn, governor of the island of Minorca, colonel of the first regiment of dragoon guards, and one of the grooms of his majesty's bed-chamber; for False Imprisonment and Banishment from Minorca to Carthagena in Spain. Tried before Mr. Just, Gould, in the Court of CommonPleas, in Guildhall, London, on the 18th of Before the Trial there was the following Address to the Bookseller. "I am very glad to find you are going to publish the trial between Fabrigas and Mostyn, as the knowledge of the particulars of this interesting cause must be worthy the attention of the public. carried from Minorca to Carthagena in Spain. | to his damage at 10,000l. To this declaration There is a second count in the declaration, for the defendant has pleaded, Not Guilty; and an assault and false imprisonment, in which the for further plea, has admitted the charges in banishment is omitted. These injuries he lays the declaration mentioned, but justifies what he July, 1773. Containing the evidence verbatim siderable number of inhabitants, in a country as delivered by the witnesses; with all the governed by law, and which is part of the dospeeches and arguments of the counsel and of minions of the crown of Great Britain, should the court." have had some very urgent and apparent cause to make necessary that slavery which Englishmen abhor, and if it exists, must have been established by some particular provision. If it had been said, that in the fort of St. Phillip's, in time of actual siege, an absolute military government must prevail, the objects and the reasons could easily be understood. But to say that in time of profound peace not only the inhabitants of fort St. Phillip's, but all those of the arraval, which contains a large district of country, with many hundred inhabitants, living out of all reach of the garrison, should be subject not to military government, for that has its written laws and forms of trial, but to the absolute will of the governor, without any law or trial, is in itself so absurd, and so contradictory to every idea of reason, justice, and the spirit with which this country governs its foreign dominions, that, I trust, my countrymen will not believe such a monster exists in any part of this empire, without better proof than the information of these gentlemen. "As I have passed a great part of my life in Minorca, and have some knowledge of the parties, I was induced from curiosity with many others to attend this trial at Guildhall, where I was greatly surprised to hear the account given by governor Mostyn's witnesses, Mess. Wright and Mackellar, of the constitution and form of government of that island. "I did indeed expect that Mr. Fabrigas's counsel would have called witnesses to contradict the very extraordinary account those gentlemen had given, which they might easily have done by any person who had the least knowledge of the matter. I suppose they did not, either from thinking the subject immaterial to their case, or perhaps to preserve to Mr. Serj. Glynn the closure of the trial by that most eloquent and masterly reply with which it was concluded. "Whatever the motives of Mr. Fabrigas's counsel might be for leaving this account uncontradicted, I think it very material that the world should not now be misled, as they would be, should they read the evidence of these gentlemen, and not be informed of their mistakes; I call them mistakes, for however extraordinary some parts of their depositions may appear to an observant reader, I am unwilling to charge them with any other crime than ignorance. "I am therefore induced to trouble you with this letter, that (if not too late) you may publish it with the trial; my sole object is, that the public may be apprized of the misinformation given by these gentlemen. I do not expect that the bare contradiction of an anonymous person should overset the declarations upon oath of two gentlemen given in open court. All I mean is, to apprize the public of the truth, and to leave them to make such farther inquiry as they shall think fit. "I would not have the reader think that this strange idea originated in the brain of Mess. Wright and Mackellar, for I know it is a favourite point, which the governor of Minorca has endeavoured to establish; not so much, I believe, for the pleasure of exercising absolute authority, as on account of some good perquisites, which he enjoys, and which can be defended on no other ground. "To establish this, it has been endeavoured to alter the ancient distribution of the districts or terminos of the island from four to five. "The four terminos Cieutadella, Alayor, Marcadal, and Mahon, have their separate magistrates and jurisdictions, and comprehend the whole island. The arraval of St. Phillip's was always a part of the termino of Mahon; in order therefore to establish the governor's claim, it became necessary to set up the arraval of St. Phillip's as a separate and distinct termino. If this could be done, it ceased to be within the jurisdiction of the magistrates of the island, who have power only in their four ter minos, and accordingly Mess. Wright and Mackellar advance, that there are five terminos instead of four; but those who are acquainted with the island well know, that this is a modern invention; that in the records of the country, there is not the least foundation for such an idea; on the contrary, that every proof of the reverse exists. The inhabitants of the arraval are subject to the particular jurats of Mahon, they differ in no respect from the other inhabitants of that termino, and the judges possess "It should seem that so very extraordinary and exercise the same jurisdiction and authoconstitution as absolute despotism for a con-rity in the arraval, as they do in the other parts "The purport of that part of the evidence given by those gentlemen, which I mean to dispute, was, that a part of the island called the arraval of St. Phillip's is not under the jurisdiction of the magistrates, nor governed by the same laws which prevail in the rest of the island, but is under the sole authority of the governor, and has no law but his will and pleasure. has done, by alledging that the plaintiff endeavoured to create a mutiny among the inhabitants of Minorca, whereupon the defendant, as governor, was obliged to seize the plaintiff, to confine him six days in prison, and then to banish him to Carthagena, as it was lawful for him to do. To this plea the plaintiff replies, and says, that the defendant did assault, imprison, and banish him of his own wrong, and without any such cause as he has above alledged, and thereupon issue is joined. This, gentlemen, is the nature of the pleadings. Mr. Serjeant Glynn will open to you the facts on which our declaration is founded, and if we support it by evidence, we shall be entitled to your verdict, with such damages as the injury requires. This not guilty of those injuries; in the next, he has offered this justification for himself, that the plaintiff, Mr. Fabrigas, was guilty of practices tending to sedition, and that Mr. Mostyn, for such misbehaviour, by his sole authority as governor, thought proper to inflict upon him as a punishment, what Mr. Fabrigas, in bis declaration, complains of as a grievance. Mr. Mostyn takes upon him to insist, in an English court of justice, is the justifiable exercise of an authority derived from the crown of England. And the facts which he undertakes thus to justify, are, in the first place, à length of severe imprisonment upon a native of the island of Minorca, a subject of Great Britain, living under the protection of the English laws; and, secondly, by his sole authority, without the intervention of any judicature, the sending him into exile into the dominions of a foreign prince. Gentlemen, some observations must strike you upon the very state of this plea; they must alarm you, and you must be anxious to know the particulars of that case, to which, in the sense of any man who bas re Serj. Glynn. May it please your lordship, and you gentlemen of the jury, I am of counsel in this cause for the plaintiff. Gentlemen, this is an action that Mr. Fabrigas, a native and inhabitant of the island of Minorca, has brought against the defendant, Mr. Mostyn, his majesty's governor in that island, for assaulting, false im-ceived his education in this country, or ever prisoning, and banishing him to a foreign country, the dominions of the king of Spain. Mr. Mostyn has, in the first place, pleaded that he is of the island, which could not be the case, if the claim set up by the governor really existed. "No proof whatever has been or can be produced that this claim has any foundation; nor indeed did Mess. Wright and Mackellar attempt to give any but their own assertions. The only thing that had the least similitude to proof, was their saying, that in one instance the officer acting as coroner to examine a corpse that had met with a violent death in the arraval, asked the governor's leave before he proceeded. "This fact I do not pretend to dispute; it proves nothing; and was evidently only a mark of respect, which it is no wonder magistrates in that island pay to a governor who really has so much power. But to have made this amount to any thing like proof, it should have been shewn, that the like attention was not paid to the governor at Mabon, and in other parts of the islaud. The truth is, that the inhabitants are so dependant on the military, that I have known the same civility shewn in another part of the island to the officer who happened to command there, but certainly without any intention of surrendering to him their authority as magistrates. "Mess. Wright and Mackellar also said, that the Minorquins claimed to be governed Sometimes by the English, and sometimes by the Spanish laws, as suited best for the moment; but insinuated that the Spanish laws prevailed, and that by them the governor had a right by his sole authority to banish. "The fact most undoubtedly is, that Minorca, a conquered country, preserves its ancient (the Spanish) laws, till the conqueror chuses to give them others; and therefore as conversed with Englishmen, it can be applied as justification; that case, therefore, will shortly state to you :-Mr. Fabrigas is a gentleman of the island of Minorca, of as good a condition as any inhabitant of that island, of as fair and unblemished a character too as that island produces. It is however enough, for England has not given them others, it is true the Spanish laws do prevail in Minorca, both in civil and criminal matters, among themselves: but it is equally true that they have the protection of the English laws against their governor, who cannot be amenable to their local laws, and that however despotically a Spanish governor may formerly have acted, it cannot be the law of Spain, or of any country (because it is contrary to natural justice) that a man should be condemned and punished without either trial or hearing. "It would have been easy for governor Mostyn, if Mr. Fabrigas had committed crime, to have followed the mode of proceeding established there in criminal cases, which is for the advocate fiscal to prosecute in the court of royal government, where the chief justice criminal is the judge. "If I was not afraid of swelling this letter to too great a length, I should make more remarks on what passed at this trial, and point out many more instances of power unjustifiably assumed by the governors. But I hope that what appears from this publication will be sufficient to induce administration to consider the state of this island, and give the inhabitants some better security for the safety of their persons, and enjoyment of their property; for, exclusive of the meanness there is in ill using those who cannot resist, it is undoubtedly the best policy, for the honour aud stability of our empire, to make all its dependencies happy." Former Edition. this present purpose, to say that Mr. Fabrigas sufferings determine with it; his removal from is a descendant of the antient inhabitants of the dungeon was only a substitute of one speMinorca that be lived there under the capitu- cies of cruelty in the place of another: for the lated rights: that, as such, the national faith was instant he was taken from prison, he was carpledged for his enjoyment of those rights that his ried by the same arbitrary and despotic power ancestors capitulated for; but what is of more on board a ship, without any previous notice, consideration, being born in Minorca since its without any time allowed him to prepare for subjection to the crown of England, he was a his departure, without the ordinary visit or free-born subject of England, and claimed, as comfort of friends and acquaintance, from his birth-right, the privileges due to that cha- whom he was probably to be separated for ever. racter, and the protection of the English laws. Thus was this man taken from his native counThere was a particular stipulation upon the try, and the insupportable hardships of a dunsurrender of the island, that every occupier or geon were followed by an entire expulsion from possessor of land should be intitled, under cer- his country, and every thing that was dear to tain regulations and restrictions, to the produce him: he was sent instantly on board a ship by of his lands, and to such profit as by his in- force, and carried to Carthagena, a foreign dustry he could make of them. Upon that country, under the dominion of the crown of ground a dispute arose, to which alone can be Spain. This is the nature of Mr. Fabrigas's imputed the displeasure of Mr. Mostyn to- case. Now, gentlemen, for a moment, let me wards the plaintiff, and the treatment he re-remind you of the pretence under which this ceived from him, in the progress of it. Mr. imprisonment is inflicted. It is said Mr. FaMostyn, as governor, was appealed to, and his brigas excited sedition, or attempted to excite good-nature appeared to be so serviceable to sedition; that he acted or spoke in a turbulent the adversary of Mr. Fabrigas, that early in and mutinous manner; and therefore that the the morning Mr. Fabrigas was suddenly taken governor, as his plea states he was well authofrom his house by a file of soldiers, and by rized to do, committed him to prison, and them conducted to a dungeon, unaccused, un- banished him out of the island; or rather comtried, unconvicted. Thus, without any form mitted him to prison for the purpose of banishof judicial proceedings, this gentleman, who ing him out of the island, for I believe that is then lived in esteem in the island, finds him- the true state of his plea. Gentlemen, you self all of a sudden committed to a dungeon, a would justly accuse me of a great and wanton dungeon that was made use of only for the waste of your time, if I should say a great deal most dangerous malefactors, and that only for the purpose of exculpating Mr. Fabrigas when they were ready to receive the last of from the charge and imputation that is thrown punishments. In this gloomy, damp, dismal, upon him in this place, because I am persuaded and horrid dungeon, was this man detained that you, an English jury, if you were sitting without any previous accusation, without any in judicature upon the case of confessedly the call upon him to make his defence, or being vilest of offenders, you would not suffer the informed there was any crime or offence that atrocity of the offence to mitigate that censure was alledged against him, and without any and animadversion which is due to a behaviour 'notice either to him or his family. When he like this of the governor's. In private justice found himself in prison, there was humanity to the character of Mr. Fabrigas, and not as the enough in the breast of the keeper of that pri- least relating to any question here to be tried, son to accommodate him with a bed; but it gentlemen, I will state to you upon what seems that accommodation was by the power grounds and pretence this mutiny is alleged of that island thought too much for him, and against Mr. Fabrigas. Mr. Fabrigas, as I have the bed was taken from bim; a check was told you, claimed, among all the other inhabigiven to the lenity of the keeper. No notice tants and possessors of lands in the island, a having been given to his family that they right of selling the produce of his lands, under might visit or administer comfort to him; he certain restrictions. The produce of the lands did, by humble request, desire that his wife is chiefly wine: Mr. Fabrigas had a considermight be permitted to visit him: that consola- able quantity. His majesty, by his proclamation too was denied him. In this manner was tion, had given free liberty to the inhabitants Mr. Fabrigas deprived of his liberty for a con- of that part of the island where Mr. Fabrigas siderable time. It is unnecessary for me to lived, to sell their wines, the price being first state particularly the precise time that this settled by the authority of the governor :-that imprisonment continued; that you will hear price is called the afforation price. Notwithfrom the witnesses. Nor does a case like this standing his majesty's proclamation, by an act depend upon minutes, hours, or days, but this and order, not of governor Mostyn, but of his is the nature and kind of imprisonment that lieutenant-governor, there was a prohibition Mr. Fabrigas endured: so closely watched that no wine should be sold without the immethat no man could have access to him, deprived diate authority of the mustastaph. An appliof the consolation of his family, severed from cation therefore, by Mr. Fabrigas, was made all communication with his friends, relations, or to this officer, either to permit him to sell his acquaintance, that could administer the least wines under the afforation price, which would comfort to him. For several days did this man be for the general relief and benefit of the continue under this imprisonment, nor did his islanders, and of the garrison, or that he him self would buy it at a fixed price. This officer gentlemen, we now presume to treat as the refused to comply with either: Mr. Fabrigas acts of governor Mostyn; and the governor therefore was reduced to the necessity of mak- says, he is justified in so doing, as governor of ing an humble application to governor Mostyn, Minorca. I should be glad to know upon what to permit him this alternative, either to sell his idea of justice the governor grounds that prewine under a certain afforation and regulated|tence. I conceive, that in this case, there canprice, or that the government would buy his not be the least colour or pretence of any judiwine of him for their use, or the use of the gar-cial examination, or the least form of judicial rison. This petition was thought reasonable at first, and bad a kind answer; it was received, and it appears to have been taken into consideration, but nothing was done in consequence of it. Mr. Fabrigas therefore repeats his application, and he receives encouragement to expect that the reasonableness of his petition would be taken into consideration, and that he should be at liberty to sell the produce of his land. But, gentlemen, at last this answer was given to Mr. Fabrigas: that if it appeared to be the sense of a considerable number of the inhabitants of the island, that it was for their benefit that such permission should be given, his application should be complied with. Mr. Fabrigas then prepares such a petition; he gets it signed, and he presents it to governor Mostyn. Now, gentlemen, here it is impossible to state what passed between the parties. If it can be pretended that there was any thing mutinous, menacing, or improper, in this last petition, I presume that petition will be produced to you, and it will speak for itself; but some indignation was conceived by governor Mostyn against the plaintiff, Mr. Fabrigas, which produced that strange, unaccountable, unwarrantable, and alarming conduct, which we now, by evidence, impute to Mr. Mostyn. For gentlemen, instantly upon this, Mr. Fabrigas is conducted in the manner before-mentioned to that horrible dungeon, where he continues for a considerable time under such orders as I have stated to you, till he was hurried on board a ship, and was conveyed to Carthagena in Spain. Here, for the first time, he receives intelligence of what was the provocation that he gave, what was the ground of such treatment of him, what charge was imputed to him, by what authority he was so detained and so treated for here appears a letter under the hand of governor Mostyn, avowing this act, and telling him that he thought it necessary and expedient, for the punishment of his of fence, to send him into exile, and to direct him to be conveyed to Carthagena in Spain. Here then you find the governor avowing the whole; and if he did not avow the whole, you could have no doubt under what authority these things were done; because you will hear from all, that they cannot be doue but under the autho. rity of the governor. Then, gentlemen, the imprisonment, and the sending this man into exile, are the acts of governor Mostyn. The imprisonment under such strange aggravating circumstances of horror and ignominy, and the sending him without notice, without time for preparation, without giving him the opportunity of paying the least aftention to the concerns of his estate and family, into exile; these, proceedings. Governor Mostyn, after having been guilty of this outrage to the plaintiff, would have acted much better, if he had not added this insult to the laws of his country, by assuming an authority incompatible with the least possible idea of justice that can be entertained in this or in any country whatsoever. Gentlemen, if governor Mostyn complains that justice is not done to his defence by his plea, that he is fettered and embarrassed by it, and could now justify his conduct upon better grounds, we will freely give him the opportunity of doing it; he shall do it in what character he thinks proper. If he has acted under the colour of any judicial proceedings in civil judicature, let those proceedings be produced, let him desert and abandon the shameful plea that he has presented; he has even our liberty to do it. If the governor means to be justified in his military character, I need not tell you, gentlemen, that it is necessary in that character, that there should be judicial proceedings likewise of a military court of justice. I will be bold to say, that the idea governor Mostyn has adopted, that the lives, fortunes, and being of the inhabitants of the island of Minorca are at his mercy, and that by his sole authority he can inflict bonds and imprisonment on any inhabitant of that island, is the single idea of governor Mostyn; and I say the governor does not, in this case, talk like a military man, for his ideas are as foreign to the notions of a soldier, as of a lawyer. Gentlemen, this is the nature of the case that we shall offer to you, and which we shall produce in proof to you against governor Mostyn: an imprisonment, if it had been attended with all the circumstances of comfort that could have been administered to a person in that situation, unjustifiable, and without colour or pretence of legal authority, sufficient to entitle this gentleman to call for considerable damages from a verdict of a jury: a banishment into a foreign country of a subject of England, intitled to be protected, to whom the laws cannot be denied without breach of public faith, and a dan gerous wound to the general system of our constitutional liberties. Thus, by the sole authority of governor Mostyn, without pretence of judicial examination, was Mr. Fabrigas sent into banishment. If all other circumstances were away, the being sent out of his native country by an arbitrary act of the governor of that island, is surely ground enough to call for the most considerable damages. But, gentlemen, you are to add to it every circumstance of discomfort. He was, during the whole time of his imprisonment, kept in a gloomy dungeon; no circumstance ignominy that |