to effectuate that intention; but the bill was dismissed on argument, and the governor was at length driven in the subsequent sittings to trial. When the cause came on, the defendant's counsel did not object to the jurisdiction, they did not request the learned judge to nonsuit the plaintiff; but they suffered us to go into our case, they cross-examined our witnesses, and finding that we had made good our declaration by evidence irrefragable, they then went into their justification, and called many witnesses in support of it. But a verdict being found for the plaintiff, they tendered a bill of exceptions; and in last Michaelmas Term, they applied to the court of Common Pleas for a new trial; first, for excess of damages; secondly, because the Court had no jurisdiction -the most extraordinary reason perhaps that ever was given; to desire a second trial because the Court had no jurisdiction to try it at all. in that case, "that the party should never be received to assign for error, that it was out of the jurisdiction, but it must be pleaded.” I have in vain endeavoured to find this case; but it is sufficient for my purpose to observe, that lord chief justice Hale would not have cited it unless it had been law. If therefore the opinion of that great man, solemnly given in the court of King's-bench, is authority, I am bold to say, that governor Mostyn not having pleaded to the jurisdiction, cannot now assign it for error. In a few years after, lord chief justice Hale was again called upon to consider this question in the case of Mandyke and Stint, 2 Modern 273, 22 Car. 2. There was a prohibition to the sheriff's court of London: the suggestion was, that the contract was made in Middlesex, therefore the cause of action did not arise within their jurisdiction. The chief justice and justice Wyndham were of opinion," that after the defendant had admitted the jurisdic tion by pleading to the action, especially if verdict and judgment pass, the court will not examine whether the cause of action did arise Governor Mostyn having in so many instances admitted the jurisdiction of the Court, I must beg leave to state some authorities to your lordship, which prove that he is now too late to take any advantage of a defect of juris-out of the jurisdiction or not;" on which a diction. The first case I shall mention to your lordships is to be found in the year books in the 22d H. 6, f. 7, where therewas a special imparlance, 'salvis 'omnibus allegationibus et exceptionibus, tam 'ad breve quam ad narrationem'; and the Court would not allow the defendant's privilege, because, says the case, by imparling he has admitted the jurisdiction of the Court. This doctrine is confirmed by lord Coke, in his comment on the 195th section of Littleton, where speaking of a personal action he says, three parts are to be considered; first, when the defendant defends the wrong and force, he maketh himself a party to the matter; secondly, by the defence of the damages he affirmeth, that the plaintiff is able to sue and to recover damages upon just cause; and by the last part, viz. all that which he ought to defend when and where he ought,' he affirmeth the jurisdiction of the Court. The case of Barrington and Venables, 13 C. 2, reported in sir Thomas Raymond, 34, is very clear on this head. The defendant after imparlance pleaded to the jurisdiction; the plaintiff demurred: the judgment was, that he should answer over, for such plea cannot be pleaded after imparlance. The next case in order of time is reported in 1 Modern, 81, Cox and St. Alban's, 22 Car. 2. A prohibition was prayed for the city of London, because the defendant had offered a plea to the jurisdiction which had been refused. Lord chief justice Hale said," in_transitory | actions, if they will plead a matter that ariseth out of the jurisdiction, and swear it before imparlance, and it be refused, a prohibition will go." There was a case, said his lordship, in which it was adjudged that the jurisdiction must be pleaded and the plea sworn, and it must some in before imparlance. It was also agreed VOL. XX. prohibition was denied, and judgment was given for the plaintiff. I cannot distinguish this from the present case; for as the Court will not examine whether the cause of action did arise out of the jurisdiction, there can be no difference whether it was in Middlesex or in Minorca; and that question cannot now be asked, because verdict and judgment have passed. Lord chief justice Holt, in the case of Andrews and Holt, 2 lord Raymond, 884, said, that he was counsel in the case of Denning and Norris (reported in 2 Levintz, 243) and that the Court held there, "that since the defendant had admitted the judge to be a judge by a plea to the action, he was estopped to say, that he was not a judge afterwards." If then a defendant, by having submitted the decision of his cause to a judge, precluded himself from objecting to him afterwards, how much stronger is the present case, where the defendant has submitted his cause to the determination of a court which has cognizance over all transitory actions. It is again laid down by lord chief justice Holt," that there ought to be no plea to the jurisdiction after imparlance, and that a special imparlance admits the jurisdiction." Holt's Reports, Pasch. 5 W. and M. I must trouble your lordships with the case of Trelawney and Williams, to shew, that there has been but one opinion on both sides of the hall respecting a plea to the jurisdiction; and that equity and common law have united in saying, that if the jurisdiction is not pleaded to, it must be afterwards admitted. This case is reported in 2 Vernon 483, Hil. 1704. The plaintiff prayed an account relative to a tin-set : the defendant insisted that he ought to have been sued in the Stannary-court. The lordkeeper decreed an account; and as to the objection that the plaintiff ought to have sued in the Stannary-court, he said, " to oust this court Р of its jurisdiction, the defendant must plead to the jurisdiction, and not object to it at the hearing." 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 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 injunction, 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. 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 himself from objecting to it. To state them all, after the great authorities I have mentioned, would be to multiply the wit-doubted but that the action did lie. Even at this nesses 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 defendant 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 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, requested 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 consequence of that decision, the question now is, whether Mr. Fabrigas, a man perfectly innocent, can bring an action against governor 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, Littieton says, to be incapacitated 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. Mr. Fabrigas was born in Minorca subsequent to the cession of Spain, consequently he is a natural-born subject; every natural-born subject, according to lord Coke, owes allegiance to the king; allegiance implies protection, the one is a necessary consequence of the other; the king of England can protect only by his laws; by the laws of England there is no injury without a remedy; the remedy for false imprisonment and banishment is an action of trespass, which is a transitory action, and may be brought any where, therefore rightly brought | in the city of London, where this action was actually tried, and Mr. Fabrigas recovered 3,000l. damages. I hope your lordships will justify me in saying, that this is a fair deduction from established principles. Coke (Co. Litt. 150), mentions three things whereby every subject is protected, rex, lex, 'et rescripta regis;' and he adds, "that he that is out of the protection of the king, cannot be aided or protected by the king's law, or by the king's writ." The natural inference to be drawn from thence is, that he who is under the king's protection may be aided by the king's law. Mr. Fabrigas is under the king's protection, because he owes him allegiance, therefore he may be aided by the king's laws; consequently is warranted in bringing this action, the only aid the laws of England can afford him for that injury. because he was not an alien; certainly Fabrigas may bring a transitory action, as he is a subject, being born in a country that was conquered by the state of Great Britain. There is an anonymous case in 1 Salkeld, 404, 4 Ann. A bill was brought in Chancery to foreclose a mortgage of the island of Sarke: the defendants pleaded to the jurisdiction of the court, viz. that the island of Sarke was governed by the laws of Normandy; and it was objected, that the party ought to sue in the courts of the island, and appeal. On the other side, it was said, that if the person be here, he may be sued in Chancery, though the lands lie in a county palatine, or in another kingdom, as Ireland, or Barbadoes. Lord-keeper Wright over-ruled the plea, saying, "that the Court acted against the person of the party and his conscience, and there might be a failure of justice if the Chancery would not hold plea in such a case, the party being here." How much stronger then is the present case? for this is a transitory action that may be brought any where; Mr. Fabrigas on the spot to bring it, and governor Mostyn in England to defend it. The case Mr. Buller has cited, of the East-India Company and Campbell, admits of a short answer; for had the defendant confessed the matter charged, he would have confessed himself to be guilty of a felony; and the humanity of the laws of England will not 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 has 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 Ätkyns, 51, where 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 lord Camden's opinion ever will be, yet it was only the opinion of a judge at Nisi Prius. And according to Mr. Buller's owu state of the case, he makes lord Camden confess, that an action might lie in a transaction between subject and subject. That concession is sufficient for me; for I have your lordship's own words to prove, that Mr. Fabrigas, being born in a conquered country, is a subject. In the king and Cowle, 2 Burr. 858, your lordship, speaking of Calvin's case, said, "the question was, whether the plaintiff Calvin, born in Scotland after the descent of the crown of England to king James the first, was an alien born, and consequently disabled to bring any real or personal action for any lands within the realm of England;" and your lordship added, "but it never was a doubt whether a person born in the conquered dominions of a country is subject to the king of the conquering country." From this two points are gained: first, that Calvin, though born in Scotland, was not an alien, and might bring a real action; and that there never was a doubt, but that a person born in a conquered country was subject to the conqueror. As therefore the twelve judges determined that Calvin could bring a real action, alien infidel, and therefore could have no suit here: but lord Hardwicke said, as the plaintiff's was a mere personal demand, it was extremely clear that he might bring a bill in this court; and he over-ruled the defendant's plea without hearing one counsel of either side. As therefore lord Hardwicke was of opinion, that by the laws of England an alien infidel, a Gentoo merchant, the subject of the great mogul, could claim the benefit of the English laws against an English governor for a transaction in a fo reign country; I trust that your lordships will determine, that Mr. Fabrigas, who is neither an infidel nor an alien, but a subject of GreatBritain, may bring his action here for an injury received in Minorca. The case of the countess of Derby, Keilway 202, does not affect the question; for that was a claim of dower, which is a local action, and cannot, as a transitory action, be tried any where. The cases, mentioned by Mr. Bulier, from Latch and Lutwyche, were either local actions, or questions upon demurrer, therefore not applicable to the case before the Court; for a party may avail himself of many things upon a demurrer, which he cannot by a writ of error. Mr. Buller's endeavouring to confound tran 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, and 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 Jand, because it is a local action. 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 governs 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 1 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 bas 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 volunias' 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 else where. 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 Governor Dutton sat with his council, to bear and enquire in the supreme court of judicature in Barbadoes: | but slightly touched on, that the assertion of governor of New-York, for matter done by him the counsel for the defendant in error, affirm- as governor, and granted, because the king deing the jurisdiction, is as good authority for fended it." I collect from this case, that the me, as the denial of it by sir Richard Dutton's | attorney-general knew the Court had jurisdic counsel is for Mr. Buller. The report is silent tion, or he would not have 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 to try it. not one word that the action could not be The legislature, in the same year (12 W. 3, maintained. But I venture to affirm, that this cap. 12,) enacted, that governors beyond the case has not the least resemblance to the pre- sea should be tried in the King's-bench, or in sent. 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 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 legisla ture 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. 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 | 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 7002. 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. 1 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; Cientadella, 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, |
