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

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

versed, I fear the public, with too much truth, will apply the lines of the Roman satirist on the drunken Marias to the present occasion; and they will say of governor Mostyn, as was formerly said of him,

Were the bill of exceptions less absurd than it is, yet I should contend, that the governor, by pleading in chief, and submitting his cause to the decision of an English jury, has precluded this Court from enquiring into the oriLord chief justice de Grey in the solemn ginal jurisdiction. Were it possible that this opinion which he gave upon the motion for a ground should fail me, when supported by so new trial, has been explicit on these two heads. many great authorities, yet I should be very "One of the witnesses in the cause (said his easy about the event; for, as an action of treslordship) represented to the jury, that in some pass can be brought in England for injuries particular cases, especially in criminal matters, abroad, and as every subject can bring that acthe governor resident upon the island does exer- tion, and as governor Mostyn (being a subject) cise a legislative power. It was gross igno- must answer to it, I have no doubt but the rance in that person to imagine such a thing:judgment will be affirmed. Should it be reI may say, it was impossible, that a man who lived upon the island, in the station he had done, should not know better, than to think that the governor had a civil and criminal power in him. The governor is the king's servant; his commission is from him, and he is to execute the power he is invested with under that commission, which is to execute the laws of Minorca, under such regulations as the king shall make in council. It was a vain imagination in the witnesses to say, that there were five terminos in the island of Minorca. I have at various times seen a multitude of authentic documents and papers relative to that island; and I do not believe, that, in any one of them, the idea of the arraval of St. Phillip's being a distinct jurisdiction was ever started. Mahon is one of the four terminos, and St. Phillip's, and all the district about it, is comprehended within that termino; but to suppose, that there is a distinct jurisdiction, separate from the government of the island, is ridiculous and absurd."

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

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

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

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

At tu victrix provincia ploras.

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

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

supposition and quaint legal fiction, which otherwise would avail, that it was in London or England, was absurd, and the plaintiff could not support his action. It was the same in the case in Latch; for that was not on a plea to the jurisdiction, but the objection arose long after, and in a subsequent period of the cause: the judges there agreed, that if it appeared on the record, that the case was plainly and evidently out of their jurisdiction, they were bound to take notice of it.

ted to it. Saying, that at the trial we should have insisted upon a non-suit, is saying we should have insisted upon what we could not demand; for it is at all times at the option of the plaintiff, whether he will submit to a nonsuit or not. If the defendant can avail himself of the objection at all, it must be by entitling himself by that means to a verdict; for it is in the power of the plaintiff to get up and say, I will not be non-suited. It was impossible for us to insist upon the objection in any other way than it is now done: the objection arises out of the facts of the case, and what was proved at the trial. It was there proved, that Mr. Mostyn was the governor; that what he did was in that character; and therefore, says he, these facts being proved, I insist I am not answerable in a court of justice in England, for what I have done in this character: therefore the objection would have been improper, if it had come at any other time; it could only come when these facts appeared in evidence upon which this objection was founded. As to the many cases that have been cited, I believe I may safely give this general answer to them all: they are cases where an action has been brought in a court in England, for a transaction arising in England, but, on account of a charter or statute, the jurisdiction of the superior court has been excluded. Where that is so, and this Court has a general superintendent jurisdiction, but it is taken away by a particular law, in such case it is necessary to plead to the jurisdiction: but when the question arises upon a transaction happening in foreign parts, and where the courts of England cannot have any controul whatsoever, suppose, for instance, in France, where the king or par-country is different from the law of this kingliament of England can make no laws to bind the inhabitants, it is just the same as a court of inferior record in England, where it holds plea of a thing done out of their jurisdiction. In that case, if it appears upon the proceedings that the cause of action arose out of the jurisdictions, the whole proceedings are void; they are coram non judice; and an action will lie against the party, the officers and the judges, for what is done under them.

In this case, as I submit to your lordship, the question is the same; because it is not on a transaction happening within the limits, or within the country where this Court resides or has a jurisdiction, but on a transaction arising in foreign dominions. I beg leave to mention too, that if these cases were so very general as Mr. Peckham wishes to have them understood, it is not possible that the case in Latch, or the case iu Lutwyche, ever could have existed; because, if it was to hold as a general rule, that where the cause of action arises out of the kingdom you must plead to the jurisdiction, it would have been a sufficient answer in those cases to say, it was not so pleaded. In the case in Lutwyche, there was a plea in bar, and demurrer to that plea; but it appearing, that the cause of action did not arise in this kingdom, but in foreign parts, the Court agreed, that the

Mr. Peckham has divided his argument into three heads: first, whether a transitory action is capable of being brought in England, if the cause of that action arise beyond the seas: secondly, whether the plaintiff is capable of bringing such action: and, in the third place, whether the defendant is a proper object of it. On the first of these questions it has been insisted, that an action of false imprisonment is a transitory action; and some cases cited, where transitory actions, arising abroad, are holden to be maintainable here. An action of false imprisonment certainly is a transitory action: but, my lord, the cases cited from 12th Co. and Co. Lit. were not cases of action for false imprisonment, but debt upon bond. These cases were where the law, in the different countries, was the same; and they therefore come within the distinction laid down in the case before lord Camden. For, where the law of the different countries is the same, this Court may hold plea; it may do as much justice as the foreign courts, and can be involved in no difficulty with respect to the rules by which they are to decide. But in the case of transactions arising in foreign dominions, where the law of the foreign

dom, this Court has no way of informing themselves what the foreign law is, nor can they know what rules to decide by; and therefore every inconvenience arises against their entertaining such a suit. Mr. Peckham then cited the case of Parker against lord Clive, in this court, and observed, that there never was any objection taken there, that the action would not lie. That case is different from the present. That was a case between English subjects, and a case that was to be determined, not by the law of the East Indies, (for that was not set up as a defence, or at all intermixed with the case) but by the law of England; and therefore is still within the distinction I have laid down and endeavoured to support. Then the second question Mr. Peckham has made is, whether the plaintiff can maintain this action? The plaintiff, he says, is not an alien, but a naturalborn subject, and as such he owes allegiance, and is entitled to protection; and that the king of England can protect only by the laws of England, and therefore this man has a right to bring his action here. The proposition will itself shew how enormous it would be, if it were to hold in this case. How is the king to rule by the laws of England? Is it meant that this case is to be determined by the laws of England? If so, that would be injustice in the most

glaring light; because it would be condemning | tion of the governor of Minorca, or the power the defendant by one law, when he was bound or jurisdiction he has there. Then it is said, to regulate his conduct by a different. But it it does not appear on the record, that the deis not true that the king of England can protect fendant did act as judge. This also must be by the laws of England only; for, in other decided by the record; and it is there stated, places, a transaction must be tried by the laws that the defendant was governor, and so being of that place where it arises; and the king can, governor he caused the plaintiff to be taken, in other places, govern by other laws than imprisoned, &c. The case of Dutton v. those of England: and I contend, this question Howell has been much observed upon, and the must be determined by such laws, and not by printed reasons given in that case particularly the laws of this country. Mr. Peckham has stated; but I do not perceive the case has then insisted, that this is a case between subject been distinguished from the present. Some of and subject. If he means it is between subject the reasons alledged for the defendant there, and subject, speaking of the king of England, are equally strong in favour of the present deit is true; but Fabrigas is not a subject of this fendant. It is said, there never was such an realm, nor subject to be governed by the laws action maintained before; and if a governor of this country, and therefore shall not avail beyond sea be charged here, he cannot defend himself of the laws of this country. The case himself, because all the records and evidence in Salkeld, 404, was then cited, where the Court are there. Mr. Peckham has not been able to of Chancery proceeded against a foreigner; produce one case, in which such an action as and the reason there given for so doing is, be- this has been maintained before. But then cause that Court acts in personam. But, my another distinction he endeavoured to avail lord, that case does not appear to be at all himself of is, that, in the case of Dutton and blended with foreign law; nor is any thing Howell, the action was for an act done in counthere stated, which called on the Court to de- cil, and therefore varied from this case, betermine that case by any other law than the cause here there was no council at all. I canknown laws of this country, and the rules of not see how that difference will at all avail Mr. their own court. The case in the 4th Insti- Peckham's client. In the first place, in Bartute was then endeavoured to be distinguished badoes, there was a council, and the governor from the present, by insisting, that the subject- had no power without the council; but is that matter of that case was local: but that answer the case here? In Minorca, there is no council cannot hold. If it had been an action in a at all; and therefore, in this case, the gocourt of law, the answer would have been a vernor stands in the same situation as the good one; because an action of dower is local, governor and council of Barbadoes. As to the and can only be tried in the county where the necessity of pleading in abatement to the jurisland lies; but that was a suit in Chancery, diction, it is very observable, that in the case of and not an action; and, as is said in the case Dutton v. Howell, the counsel who argued in cited from Salkeld, the Court of Chancery that case do not venture to rely upon that obdon't proceed against the thing, but against the jection. But they insist further, that the jurisperson. diction cannot be examined in the Exchequer Then the last question that has been made is, chamber, because both the statute and writ of whether the defendant in this case is the proper error expressly provide against it: and theresubject of an action? My lord, Mr. Peckham fore, say they, it is questionable, whether it has observed, I said the governor was absolute; can be insisted upon in the House of Lords: but that he insists is impossible, because there and it is admitted by them, that a question is no person who could delegate such an autho- might have been made on the trial of an issue, rity to him; that if he derived such authority if one had been joined. However, that quesfrom any one, it must be from the king ; but the|tion was gone into in the House of Lords, and king, not being absolute himself, could not grant such authority to Mr. Mostyn. If it be meant only, that the king is not absolute in this country, I most readily accede to the proposition; but what the constitution of this country is, can be no argument to prove what is the state or constitution of Minorca. That Minorca is of a different constitution, and is governed by different laws from what prevail in this country, is stated in the record; which record is decisive upon that point, for the Court cannot depart from it. It is there stated, that the arraval of St. Phillip's is subject to the immediate order of the governor, and to his order and direction only; for no judge, either criminal or civil, can interfere, or has any jurisdiction there, unless under his express leave: therefore the argument, as to the authority or power of the king here, is totally foreign to the situa

the final decision of the cause appears from the book; namely, that the judgment in that case was for the defendant, and that the action could not be maintained. Then the words of lord chief justice de Grey, in this present cause, upon a motion for a new trial, have been much relied upon; and his lordship is made to say, that if the governor had secured the present plaintiff, merely for the sake of a trial, it would be a different affair. In this case, I apprehend it would be quite sufficient for me, if the governor bad a power of committing at all; for if he had, that is sufficient to prevent the defendant's being a trespasser by such commitment: and the reasonableness of the time for which he was committel, would be a very different question; for, if the governor had a power of committing, he has pursued that power, and then this action cannot be main

[226 tained. The next case that has been cited, is authority to imprison. That authority appears lord Bellamont's case in 2d Salkeld, which was upon the face of the record; for it is there an action against a governor for what he did in stated that he was governor, and had every that character: but that is simply a motion for power, civil and military, and that all he did a trial at bar. The merits of the case, or the was in the character of a governor. These propriety of the action, were not before the facts being proved, I submit are a sufficient bar Court, or at all entered into; nor was any ob- to this action, and the Court cannot go into the jection made to the jurisdiction of the Court; question, whether the plaintiff was innocent or and where a thing is not objected to, the case guilty. The last argument that has been relied can never be an authority on the point: there upon by Mr. Peckham is, some other expresis not one syllable said about it; and therefore sions of lord chief justice de Grey, in the that case cannot have the least weight whatso- course of this cause; in which his lordship ever respecting this question. Then Mr. Peck-said, that the witnesses must have been misham cited the statute of the 12th of William taken in the account they gave of the constithe third: but that was admitted by him to ex-tution and law of the island. Here it is imtend only to criminal prosecutions at the king's suit, and therefore can have nothing to do with the present question. The case of Conner against Sabine is as different from this case, as any one case can be from another. There the defence was put upon the ground, that the plaintiff was amenable to a court-martial. The fact turned out otherwise: they stated a limited jurisdiction, and it appeared the plaintiff was not the object of that jurisdiction. Then it is said, that Minorca is not a military camp, but that there are judges both criminal and civil. Here again I must have recourse to the record itself; for there it is stated, that within the arraval of St. Phillip's, where this transaction occurred, there is no judge either criminal or civil; there is no power but that of the governor. Mr. Peckham observed, that it is stated in the record, that the inhabitants sometimes claim protection from the law of England, as well as the law of Spain. It is so stated; but what is said further? Not that they ever have it allowed to them, or that they are governed by it; but it is expressly stated, that they are in general governed by the law of Spain: therefore the record does not prove, that the people in Minorca are governed by the same laws as the people here; but it does prove, that they are governed by laws which are totally different, and that within the arraval of St. Phillip's, the will of the governor is the law. Mr. Peckham then attacks the veracity of the record with respect to the different districts which there are within the island; and has insisted, that though in the execution of process, &c. the law-officers may consult the governor, or inform him what they are going to do, yet that they are not bound by law to do so. My lord, the record must, in these respects, also decide for us. It is there stated what the districts are; that the arraval of St. Phillip's is distinct from the others; and that no magistrates can come there, nor can

any process be executed there, without the governor's particular leave. Mr. Peckham asks, where is the authority that enables a governor to banish an innocent man? In the first place, as to his being an innocent man, it is not competent to this Court to enquire whether he was innocent or not, or whether the governor was strictly justifiable or not; but it is sufficient to prove, that the governor had an VOL. XX.

possible for the Court to go out of the record: but these observations of lord chief justice de Grey go certainly a great way towards proving the impropriety of maintaining such an action here as the present. If the account given by lord chief justice de Grey of the island be true, and I make no doubt it is, the consequence is this: that even though all the evidence was obtained in this cause that could be had ; though persons were called as witnesses, who, from their situation, and the departments they had officiated in, were most likely to be conversant with the law and constitution of the island; yet that all the accounts that have been given are imperfect, erroneous, and unworthy of credit. That is the strongest evidence of the impropriety of maintaining such an action as this in England. For if, as lord chief justice de Grey says, the evidence that has been given of the foreign law in this case is not to be relied upon, but is all a mistake; it may happen, and it must naturally be expected, that in every case which is brought here from foreign dominions, where the cause of action arises abroad, all the evidence is abroad, and the Court can get no other evidence of the law of the place than the loose opinions of those who have occasionally been there; and the courts here having no established legal mode of obtaining certificates from such country, properly authenticated, to say what the law there is, the same mistakes and inconvenience will arise.

Therefore, on the whole, I trust the Court will be of opinion, that this action is improper, and ought not to be maintained here.

Lord Mansfield. Let it stand for another argument. It has been extremely well argued

on both sides.

On Friday the 27th January, 1775, it was very ably argued by Mr. Serjeant Glynn, on the part of Mr. Fabrigas, and by Mr. Serjeant Walker, on behalf of governor Mostyn: but as no new cases were cited, we shall proceed to give the Judgment of the Court of King'sbench, which was in substance as follows:

Lord Mansfield. This was an action for an assault and false imprisonment by the defendant upon the plaintiff. And part of the com

jury immediately to have found for the defendaut. Why? There are three reasons given. One of them insisted upon in the first argument (but abandoned to-day) is, that the plaintiff is a Minorquin, born in the island of Minorca, To dispose of that objection at once, I shall only say that it is wisely abandoned to-day. A Minorquin; what then? Has not a subject of the king, born at lino.ca, as good a right to apply to the king's courts of justice, as a person born within the sound of Bow-bell, in Cheapside? If there is no other objection to him, would that make any? To be sure not. But it is abandoned, so I shall lay it out of the

case.

plaint being for banishing him from the island of Minorca to Carthagena, in Spain, it was necessary for the plaintiff to take notice in the declaration of the real place where the cause of complaint arose; which he has stated to be at Minorca, with a videlicet in London, at St. Mary-le Bow. Had it not been for that particularity, he might have stated it to have been in the county of Middlesex; but part of the complaint making the locality, where the cause of action arose, necessary to be stated, being a banishment from Minorca to Carthagena, he states it with this videlicet. To this declaration the defendant put in two pleas; first, Not Guilty; and then he pleads, that he was governor of Minorca, by letters patent from the crown, and The other two grounds which are enforced that the defendant was raising sedition and to-day are, if I take them right-but I am mutiny; in consequence of which he did im- under some difficulties, because they are such prison him and send him out of the island, propositions that you may argue as well whewhich he alledges he had an authority to do, ther there is such a court existing as this which for that sedition and mutiny that he then was I am now sitting in-the first is, that he was raising. To this plea the plaintiff does not governor of Minorca, and therefore for no indemur, nor does he deny that it would be a jury whatsoever that is done by him, right or justification, in case it was true; but he denies wrong, can any evidence be heard, and that the truth of the fact, and puts in issue whether no action can lie against him; the next is, that the fact of the plea was true. The plea avers, the injury was done out of the realm: I think that the assault for which the action was these are the whole amount of the questions brought arose in the island of Minorca, out of that have been laid before the Court. Now as the realm of England, and no where else. To to the first, there is nothing so clear as that this the plaintiff has made no new assignment, in an action of this kind, which is for an asand therefore by his replication he admits the sault and false imprisonment, the defendant, locality of the cause of action. Thus then it if he has any justification, must plead it; stood upon the pleadings. When the trial and there is nothing more clear than that, if • came on, the plaintiff went into the evidence of the Court has not a general jurisdiction of the his case, and the defendant went likewise into matter, he must plead to that jurisdiction, and his evidence. But, upon the part of the de- he cannot take advantage of it upon the gefendant, evidence different from any fact al- neral issue: I therefore, upon that ground, at ledged in his plea of justification was given; once lay out of the case every thing relative to and witnesses were called to prove that the the arraval; for if he acted as a judge, it is district in Minorca called the arraval, where synonimous to a court of record: and though the injury complained of was done, was not it arises in a foreign country, where the techwithin either of the four precincts, but that it is nical distinction of a court of record does not in the nature of a peculiar liberty, more imme-exist, yet if he sat in a court of justice, and diately under the power of the governor, and that no judge of the island can exercise jurisdiction there without an appointment from him. That is the substance of their evidence.

The judge left it to the jury upon the facts of the case; and they found for the plaintiff. The defendant then tendered a bill of exceptions, upon which bill of exceptions it comes before us. And the great difficulty I have had upon both these arguments is, to be able clearly to comprehend what question it is that is meant seriously to be brought before the Court for their judgment. If I understand the counsel for governor Mostyn right, what they say is this: the plea of Not Guilty is totally immaterial, and the plea of justification is totally immaterial, for it appears on the plaintiff's own shewing that this matter arose in Minorca; and the replication to the plea admits it: and it likewise appears that the defendant was governor of Minorca; and as the imprisonment arose in Minorca by the authority of the defendant, the judge ought to have stopped all evidence whatsoever, and have directed the

subject to a superior review, it is within the reason of the law of England, which says, that shall be a justification, and he would, if he had acted according to the law of the land, be entitled to a justification in the fact that is complained of; but that must be pleaded. If an action is brought against a person who is a judge of record, he must lay it before the court, by way of plea and justification, that he was a judge. I don't lay a stress upon the word record, but there is no colour upon the evidence that he acted as a judge of a court of justice; therefore every thing stated relative to the arraval, which is stated in the bill of exceptions, is nothing at all to the purpose. The first point that I shall begin with is the sacredness of the person of the governor. Why, if that was true, and if the law was so, he must plead it. This is an action of false imprisonment: prima facie, the Court has jurisdiction. If he was guilty of the fact, be must shew a special matter that he did this by a proper authority. What is his proper authority? The king's commission to make him