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to effectuate that intention; but the bill was in that case, “that the party should never be dismissed on argument, and the governor was received to assign for error, that it was out of at leogth driven in the subsequent sittings to the jurisdiction, but it must be pleaded." I trial. When the cause came on, the defendant's have in vain endeavoured to find this case ; but counsel did not object to the jurisdiction, they it is sufficient for my purpose to observe, that did not request the learned judge to nonsuit lord chief justice Hale would not have cited it the plaintiff; but they suffered us to go into unless it had been law. If therefore the opiour case, they cross-examined our witnesses, nion of that great man, solemnly given in the and finding that we had made good our decla court of King's-bench, is authority, I ana bold ration by evidence irrefragable, they then went to say, that governor Mostyo not having pleadinto their justification, and called many wit- ed to the jurisdiction, cannot now assign it for nesses in support of it. But a verdict being error. found for the plaintiff, they tendered a bill of In a few years after, lord chief justice Hale exceptions; and in last Michaelmas Term, was again called upon to consider this question they applied to the court of Common Pleas for in the case of Mandyke and Stint, 2 Modern a new trial; first, for excess of damages ; 273, 22 Car. 2. There was a prohibition to the secondly, because the Court had no jurisdiction sheriff's court of London: the suggestion was, the most extraordinary reason perhaps that that the contract was made in Middlesex, erer was given ; to desire a second trial be- therefore the cause of action did not arise cause the Court had no jurisdiction to try it within their jurisdiction. The chief justice at all.
and justice Wyndham were of opinion, “ that Governor Mostyn having in so many in- after the defendant had admitted the jurisdic. stances admitted the jurisdiction of the Court, tion by pleading to the action, especially if I must beg leave to state some authorities to verdict and judgment pass, the court will not your lordship, wbich prove that he is now too examine whether the cause of action did arise late to take any advantage of a defect of juris- out of the jurisdiction or not ;" on wbich a diction.
probibition was denied, and judgment was given The first case I shall mention to your lordships for the plaintiff. I cannot distinguish this is to be found in the year books in the 22d H. 6, from the present case ; for as the Court will f.7, where therewas a special imparlance, salvis not examine whether the cause of action did
omnibus allegationibus et exceptionibus, tam arise out of the jurisdiction, there can be no difa * ad breve quam ad narrationem'; and the Court ference whether it was in Middlesex or in Miwould not allow the defendant's privilege, be- norca ; and that question cannot now be asked, cause, says the case, by imparling he has ad because verdict and judgment have passed. mitted the jurisdiction of the Court. This Lord chief justice Holt, in the case of Andoctrine is confirmed by lord Coke, in his com- drews and Holt, 2 lord Raymond, 884, said, ment on the 195th section of Littleton, where that he was counsel in the case of Denning and speaking of a personal action he says, three Norris (reported in 2 Leviotz, 243) and that parts are to be considered; first, when the de- the Court held there, “ that since the defenfendant defends the wrong and force, he maketh dant had admitted the judge to be a judge by a himself a party to the matter; secondly, by plea to the action, he was estopped to say, thaj the defence of the damages he affirmeth, that he was pot a judge afterwarıls.” If then a dethe plaiotiff is able to sue and to recover da- fendant, by having submitted the decision of mages upon just cause; and by the last part, bis cause to a judge, precluded himself from viz. . all ihat which be ought to defend when objecting to him afterwards, how much stronger and where he ought,' be affirmeth the juris- is the present case, where the defendant has diction of the Court.
submitted his cause to the determination of a The case of Barrington and Venables, 13 c. court wbich has cognizance over all transitory 2, reported in sir Thomas Raymond, 34, is actions. It is again laid down by lord chief very clear on this head. The defendant after justice Holt, “ that there ought to be no plea imparlance pleaded to the jurisdiction; the to the jurisdiction after imparlance, and that a plaintiff demurred: the judgment was, that special imparlance admits the jurisdiction.” he should answer over, for such plea cannot be Holt's Reports, Pasch. 5 W. and M. pleaded after imparlance.
I must trouble your lordships with the case The next case in order of time is reported in of Trelawney and Williams, to sbew, that there 1 Modern, 81, Cox and St. Alban's, 22 Car. 2. has been but one opinion on both sides of the A prohibition was prayed for the city of Lon-hall respecting a plea to the jurisdiction; and don, because the defendant had offered a plea that equity and common law hare united in to the jurisdiction which had been refused. saying, that if the jurisdiction is not pleaded to, Lord chief justice Hale said, “ in transitory it must be afterwards admitted. This case is actions, if they will plead a matter that ariseth reported in 2 Vernon 183, Hil. 1704. The out of the jurisdiction, and swear it before im- plaintiff prayed an account relative to a tin-set : parlance, and it be refused, a prohibition will ihe defendant iosisted that he ought to have go.” There was a case, said his lordship, in been sued in the Stannary-court. The lordwhich it was adjudged that the jurisdiction must keeper decreed an account; and as to the obbe pleaded and the plea sworn, and it must jection that the plaintiff ought to have sued in some in before imparlance. It was also agreed the Stannary-court, he said, “ to oust this court VOL, X.
of its jurisdiction, the defendant must plead to fined to counties palatine; for lord Coke, in bis the jurisdiction, and not object to it at the comment on Littleton, 261, b, says,
" that an hearing."
obligation made beyond the seas at BourThere are a great variety of cases tending to deaux, in France, may be sued bere in establish this position, that when a defendant England in what place the plaintiff will." has once submitted to the jurisdiction, he has Captain Parker brought an action of trespass for ever precluded himself from objecting to it. and false imprisonment against lord Clive, for To state them all, after the great authorities 1 injuries received in India, and it was never have mentioned, would be to multiply the wit. doubted but that the action did lie. Even at this nesses without strengthening the testimony: 1 moment there is an action depending between shall therefore only cite a few passages from Gregory Cojimaul, an Armenian merchant, lord chief baron Gilbert's History of the Com- and governor Verelst, in which the cause of mon Pleas, which are decisive upon this part action arose in Bengal. A bill was filed by of the argument. In page 40, speaking of the governor in the Exchequer for an injunc. the order of pleading, he says, “ the defendant tion, which was granted; but on appeal to the first pleads to the jurisdiction of the Court; House of Lords, the injunction was dissolved. secondly, to the person of the plaintiff; and The supreme court of judicature, by dissolving thirdly, to the count or declaration. By this the injunction, acknowledged that an action order of pleading, each subsequent plea admits of trespass could be maintained in England, the former. As, when he pleads to the person though the cause of action arose in India. of the plaintiff, he admits the jurisdiction of the The next point to be considered is, whether Court; for it would be nugatory to plead any there is any disability attending the person of thing in that court which has no jurisdiction in Mr. Fabrigas, that incapacitates him from bringthe case.
When he pleads to the count or ing this action. But it will be requisite for me declaration, he allows that the plaintiff is able first to state, that governor Mostyn pleaded not to come into that court to implead him, and he guilty, and then justified what he had done by may be there properly impleaded.” He lays alledging, that the plaintiff bad endeavoured to it down in a subsequent part of his treatise (p. create mutiny among the troops; therefore he, 148,) as a positive rule of law, that, “ if a de. as governor, had a right to imprison and bafendant pleads to the jurisdiction of the Court, nish bim. Your lordship observes, that, ac. he must do it instanter on his appearance;cording to his own plea, he does not pretend to for if he imparls, he owns the jurisdiction of justify what he has done as governor merely the Court, by craving leave of the Court for from the plenitude of bis power, but from the time to plead in, and the Court shall never be necessity of the act, because the plaintiff bad ousted of its jurisdiction after imparlance.” endeavoured to create mutiny and sedition. Wben 1 find this doctrine in our old law-books, The learned judge wbo tried the cause, fore. when I see it ratified in modern times, and seeing the importance of this justification, re. stamped with the authorities of Coke, Hale, quested the jury, at the same time they brought Holt, and Gilbert, I am warranted in saying, in their verdict, to find whether the governor's that governor Mostyn cannot now agitate the justification bad been proved. The jury found questiou of jurisdiction : and if he cannot, the a verdict for the plaintiff
, with 3,0001. damages, judgment must be affirmed.
and, that the plaintiff had not endeavoured to Notwithstanding which, I have no objection create mutiny or desertion, or had acted in any to follow Mr. Buller through the grounds of way tending thereto. argument that he has adopted; and I shall In consequence of that decision, the question endeavour to prove,
now is, whether Mr. Fabrigas, a man perfectly That an action of trespass can be brought in innocent, ean bring an action against goverEngland for an injury done abroad:
nor Mostyn for this wanton and unparalleled That Mr. Fabrigas is capable of bringing injury? such action :
As the law grants redress for all injuries, so And, that governor Mostyn may be the sub- it is open to all persons, and nove are excluded ject of it.
from bringing an action, except on account of It cannot be contended, but that an action of their crimes or their country.' Littleton says, trespass is a transitory action, and inay be there are six manner of persons who cannot brought any where: * all personal actions,” bring actions : Mr. Fabrigas is not included in says lord Coke, “ may be brought in any either of those descriptious. The only person county, and laid any where." Co. Litt. 282. that can bear the least resemblance to him is
In the earl of Derby's case, 12 Coke, the an alien, who, Littielon says, to be incapacichancellor, the chief justice, the master of the tated from bringing an action, must be born out Rolls, and justices Dodderidge and Winch, re- of the ligeance of ihe king. Lord Coke, in his solved, “ that for things transitory, although comment on that passage, observes, that “ Litthat in truth tbey be within the county pala. tleton saith pot, out of the realm, but out of time, the plaintiff may by law alledge ibem to the ligeance; for he may be born, says Coke, be done in any place within England; and the out of the realm of England, yet within the defendant may not plead to the jurisdiction of ligeance, and shall be called the king's liegethe Court, that they were done within the man, for ligeus is ever taken for a natural-born egunty palatine.” This doctrine is pot con- subject." Co. Litt. 129.
Mr. Fabrigas was born in Minorca subse- | because he was not an alien; certainly Fa. quent to the cession of Spain, consequently he brigas may bring a transitory action, as he is is a natural-born subject; every natural-born a subject, being born in a country that was subject, according to lord Coke, owes allegiance conquered by the state of Great Britain. to the king; allegiance implies protection, the There is an anonymous case in 1 Salkeld, one is a necessary consequence of the other ; | 404, 4 Ann. A bill was brought in Chancery the king of England can protect only by bis to foreclose a mortgage of the island of Sarke: laws; by the laws of England there is no in- the defendants pleaded to the jurisdiction of the jory without a remedy; the remedy for false court, viz. that the island of Sarke was governed imprisonment and banishment is an action of by the laws of Normandy; and it was objected, trespass, w bich is a transitory action, and may that the party ought to sue in the courts of the be brought any where, therefore rightly brought island, and appeal. On the other side, it was in the city of London, where this action was said, that if the person be here, he may be sued actually tried, and Mr. Fabrigas recovered in Chancery, though the lands lie in a county 3,000l. damages. I bope your lordships will palatine, or in another kingdom, as Ireland, or justify me in saying, that this is a fair deduc- Barbądoes. Lord-keeper Wright over-ruled tion from established principles.
the plea, saying, “ that the Court acted against Coke (Co. Litt. 150), mentions three things the person of the party and his conscience, and whereby every subject is protected, “rex, lex, there might be a failure of justice if the Chanet rescripta regis ;' and he adds, “ that he cery would not hold plea in such a case, the that is out of the protection of the king, cannot party being here." How much stronger then be aided or protected by the king's law, or by is the present case? for this is a transitory acthe kiog's writ." The natural inference to be tion that may be brought any where; Mr. Fa. drawn from thence is, that he who is under the brigas on the spot to bring it, and governor kiog's protection may be aided by the king's Mostyn in England to defend it. law. Mr. Fabrigas is under the king's pro- The case Mr. Buller bas cited, of the tection, because he owes him allegiance, there- East-India Company and Campbell, admits of fore he may be aided by the king's laws; con- a short answer; for had the defendant consequently is warranted in bringing this action, fessed the matter charged, he would have conthe only aid the laws of England can afford him fessed bimself to be guilty of a felony; and the for that injury.
humanity of the laws of Englaud will vot Mr. Buller has mentioned the case of Pons oblige a man to accuse himself: but this is not and Johnson, lieutenant-governor of Minorca, a public crime, but a civil injury. As Mr. Buland seems to rely on what was said by lord ler bas gone to the East-Indies for a case, I Camden on that occasion. If my memory does shall be excused mentioning the case of Ramnot mislead me, the plaintiff could not make kissenseat and Barker, 1 Atkyns, 51, wbere good his case, being unable to prove Mr. John the plaintiff filed a bill against the representason's hand-writing to the order for the fiscal to tives of the governor of Patna, for money due commit him, and the question of jurisdiction to him as his banyan. The defendants pleadwas not agitated; but if it had, however re-ed, that the plaintiff was an alien born, and an spectable Jord Camden's opinion ever will be, alien infidel, and therefore could have no suit yet it was only the opinion of a judge at Nisi here : but lord Hardwicke said, as the plaintiff's Prius. And according to Mr. Buller's owu was a mere personal demand, it was extremely state of the case, he makes lord Camden con- clear that he migbt bring a bill in this court; fess, that an action might lie in a transaction and he over-ruled the defendant's plea without between subject and subject. That concession hearing one counsel of either side. As thereis sufficient for me; for I have your lordship’s fore lord Hardwicke was of opinion, that by the own words to prove, that Mr. Fabrigas, being laws of England an alien infidel, a Gentoo merborn in a conquered country, is a subject. chant, the subject of the great mogul, could
In the king and Cowle, 2 Burr. 858, your claim the benefit of the English laws against lordship, speaking of Calvin's case, said, " the an English governor for a transaction in a fo. question was, whether the plaintiff Calvin, born reign country; I trust that your lordships will in Scotland after the descent of the crown of determine, that Mr. Fabrigas, who is neither England to king James the first, was an alien an infidel nor an alien, but a subject of Greatborn, and consequently disabled to bring any Britain, may bring bis action here for an injury real or personal action for any lạnds within the received in Minorca. realm of England;" and your lordship added, The case of the countess of Derby, Keilway “ but it never was a doubt whether a person 202, does not affect the question ; for that was a born in the conquered dominions of a country claim of dower, which is a local action, and canis subject to the king of the conquering coun- not, as a transitory action, be tried any where. try.” From this two points are gained : first, The cases, mentioned by Mr. Bulier, from that Calyin, though born in Scotland, was not Latch and Lutwycbe, were either local actions, an alien, and might bring a real action; and or questions upon deinurrer, therefore not apthat there never was a doubt, but that a person plicable to the case before the Court; for a "born in a conquered country was subject to the party may avail himself of many things upon a conqueror. As therefore the twelve judges de demurrer, which he canpot by a writ of error. termined that Calvin could bring a real action, Mr. Buller's, endeavouring to confound transitory with local action , must be my apology | cusation ? Did he,examine a witness ? Did he for mentioning another case in support of the even see the prisoner? Did he follow any rule distinction. The case 1 allude to is Mr. Skin- of law in any country? Stet pro ratione poner's, which was referred to the twelve judges lunias' was bis law, and his mercy was twelve from the council-board. Jo the year 1657, months banishment, to an innocent individual. when trade was open to the East-Indies, he As Mr. Buller has dwelt so mucn upon the possessed bimself of a house and warebouse, case of Dutton and Howell, it will be expected which he filled with goods at Jamby; and he that I take some notice of it. I need not go purchased of the king of Great Jamby the over the case again, as it has been already very islands of Baretha. The agents of the East accurately stated; but I must beg leave to Jodia company assaulted his person, seized read the reasons wbich were given with the bis warehouse, carried away bis goods, and printed case to the Lords, before it came on to took and possessed themselves of the islands of be argued in the House of Peers. It is stated, Baretha. Upon this case, it was propounded that sir Richard Dutton ought to bave the to the judges, by an order from the king in judgment that was obtained against him below, council, dated the 12th April 1665, whether reversed ; for Mr. Skiuper could have a full relief in any or- 1st, That what be did, he did as chief godinary court of law? Their opinion was, " that veroor, and in a couneil of state, for which he his majesty's ordinary courts of justice at ought not to be charged with an action. If he Westminster can give relief for taking away shall, it may be not only the case of sir Richard and spoiling his ship, goods, and papers, aud Dutton, but of any other chief governor or assaulting and wounding his person, notwith- privy-counsellor in Scotland, Ireland, or elsestanding the same was done beyond the seas: where. but that as to the detaining and possessing of 2. What was done, was in order to bring a the house and islands, in the case mentioned, delinquent to justice, who was tried in Barbahe is not relievable in any ordinary court of does and found guilty ; and if for this be shall justice.”
be charged with an action, it would be a disYour lordships will collect from this case, couragement to justice. that the twelve judges held that an action might 3. What was done, was done in court; for be maintained here for spoiling his goods, and so is a couucil of state, to receive complaints seizing his person, because an action of tres against state delinquents, and direct their trials pass is a transitory action ; but an action could in proper courts. What a judge acts in court, not be maintained for possessing the house and as sir Richard Dutton did, no action lies against Jand, because it is a local action.
him for it. I trust I have proved that an action of tres- 4. There never was such an action as this pass may be brought here for an injury re- maintained against a governor for what he did ceived in Minorca ; and that Mr. Fabrigas, a in council; and if this be made a precedent, it natural-born subject, is capable of bringing will render all governments unsafe. such action. The only remaining question is, 5. If a governor of a plantation beyond the whether Mr. Mostyo, as governor, can tyran- seas shall be charged with actions here, for nize over the innocent inbabitants within his what he did there, it will be impossible for him government, in violation of law, justice, and to defend himself: first, for that all records humanity, and not be responsible in our courts and evidences are there: secondly, the laws to repair by a satisfaction in damages the injury there differ in many things from what they are he has done ? Mr. Buller has contended, that bere. general Mostyn governs as all absolute sove- Though the first part of this reason seems reigns do, and that .stet pro ratione voluntas' to operate in favour of governor Mostyn, yet is the only rule of his conduct. I did not ex- it goes no farther than this; that if an action pect to hear such an assertion advanced in this is brought bere, it will be impossible for bim court. From whom does the governor derive to defend himself. The latter part shews the this despotism ? Can the king delegate abso- meaning of the whole; that is, if ap action is lute power to another, which he has not in brought here against the governor for any bimself? Can such a monster exist in the thing done by him in his judicial capacity, British dominions as tyranny uncontrouled by then he will not be able to defend himself, belaw? Mr. Buller asserts, that the governor is cause all the records and evidences are there, accountable to God alone; but this Court This clearly proves, that it refers to what he hope will teach him, that he is accountable to did as judge, otherwise there could have been his country here, as he must be to his God no occasion to have mentioned the records hereafter, for this wanton outrage on an upof- being there. feoding subject. Many cases have been cited, These reasons must have been the ground and much argument adduced, to prove that a of the counsel's argument, and the whole is man is not responsible in an action for what he bottomed in sir Richard Dutton's having acted bas done as a judge. I neither deny the doc- with his council in a judicial capacity. I take trine, por shall endeavour to impeach the no notice of the arguments of counsel, as recases; but I must observe, that they do not ported by Shower, because it can be no auaffect the present question. Did governor ihority for this court. I shall only observe, Mostyn sit in judgment? Did be hear any ac- that in respect to the jurisdiction, which was
but slightly touched on, that the assertion of governor of New-York, for matter done by bim the counsel for the defendant in error, affirm- as governor, and granted, because the king dejog tbe jurisdiction, is as good authority for fended it.” I collect from this case, that the me, as the denial of it by sir Richard Duiton's attorney-general koew the Court bad jurisdic. counsel is for Mr. Buller. The report is silent tion, or be would not bave made the motion ; as to the grounds of the judgment :, it only and the Court would not have granted it, if says, “ that the action was reversed;" but they had not been legally impowered 10 try it. not one word that the action could not be Tbe legislature, in the same year (12 W. 3, maintained. But I venture to affirm, that this cap. 12,) evacted, that governors beyond the case has not the least resemblance to the pre- sea should be tried in the King's-bench, or in sept. My duty calls on me to draw the invi- such county as shall be assigned by his madious parallel.
jesty, by good and lawful men, for offences Governor Dutton sat with his council, to committed in their governments abroad against bear and enquire in the supreme court of ju- the king's subjects there. As, by the coinmou dicature in Barbadoes :
law, an indictment could be preferred only in Governor Mostyn sat neither as a military that county where the offence was committed, por a civil judge.
governors abroad were not criminally amenaMr. Fabrigas was not brought before bim, ble till this act bad passed. When the legislaneither was he accused by any man :
ture so carefully provided to bring governors to Sir Jobo Witham was publicly accused be justice for tbe offences they might commit in fore the governor and council of state : their governments, they would indisputably,
Mr. Fabrigas was thrown into a dungeon, by the same law, have protected the subjects and treated with the most unheard-of severity: from civil injuries, had they not known that
Sir John Witham was only confined for the such provision was unnecessary, and that, by purpose of securing bis person.
the common law, all personal actions might be Mr. Fabrigas was banished for twelve months brought in England; of which lord Bellato tbe Spanish dominions :
mont's case was a recent instance. Sir Joho was kept in custody for 14 days, In Michaelmas.term, 11 Geo. 2, 1737, Ste. till be could be brought to bis trial:
phen Conner brought an action against Joseph Mr. Fabrigas, on the governor's justification, Sabine, governor of Gibraltar: and he stated was found to be innocent:
in his declaration, that he was a master carSir John Witham, when brougbt before the penter of the office of ordnance at Gibraltar; court of general sessions, was found guilty, and that governor Sabine tried him by a court-marrecommitted:
tial, to which he was not subject; and that he The governor of Barbadoes followed the laws underwent the sentence of receiving 500 lashes, of Barbadoes:
and that he was compelled to depart from GibThe governor of Minorca acted in diame- raltar, wbich he laid to bis damage of 10,0001. trical opposition to all laws, and in violation of The defendant pleaded Not Guilty, and justified the patural dictates of bumanity:
by trying bim by a court-martial. There was Sir Richard Dutton let the law take its a verdict for the plaintiff, with 700l. damages. coarse against a criminal:
A writ of error was brought, and the judgment But governor Mostyn went out of his way to affirmed. No distinction can be made between persecute tbe innocent.
the governor of Gibraltar and the governor of Having shewn the difference between the Minorca ; except only, that the one tried Contwo cases, permit me to mention an observa- ver by a court-martial, and punished him by tion of lord chief justice de Grey, in his opi- military law; while the other, without any pion on the motion for a new trial. “ If the trial, banished Mr. Fabrigas, contrary to all governor had secured bim,” said bis lordship, ideas of justice and of law. “pay, if he bad barely committed him, that he I must now beg leave to advert to the bill of might have been amenable to justice, and if he exceptions; in which it is alledged, that “ Mibad immediately ordered a prosecution upon porca is divided into four districts, exclusive of any part of his conduct, it would have been the arraval, which the witnesses always underapother question: but the governor knew he stood to be distinct from the others, and under could po more imprison bim for a twelvemonth, the immediate order of the governor.”. (and the banishment for a year is a continuation I am well aware, that I am not at liberty to of the briginal imprisonment) than that he go out of the record ; if I was, the fact warcould inflict ibe torture.”
rants me in saying, that the evidence is most Lord chief-justice de Grey then undoubtedly untrue. thought that governor Mostyo bad acted ille- It is notorious that Minorca is divided into gally: if so, I hope I shall be able to shew, four terminos only; Cieutadella, Alayor, Mar. that he is amenable to the courts of law in cadel, and Mahon, which latter includes the ar. England.
raval of St. Phillip's. This is known to every Lord Bellamont's case, in 2 Salkeld 625, man who has been at Minorca, and to every B. R. Pasch. 12 W. 3, evinces, that a go- man who has read Armstrong's history of that vernor abroad is responsible here. “ The at-island. That the governor has a legislative torney-general moved for a trial at bar the last authority within the arraval, is too absurd to paperday in the term, in an action against the dwell on. By what law, by what provisions