Sivut kuvina

does be claim that power? When process is sentence, he insists that the plaintiff ought to executed wiibin St. Phillip's, or its environs, be barred his said action, although it is stated the civil magistrate usually pays the governor in the bill of exceptions, that “ the Minorquins the compliment of acquainting him with it; plead sometimes the English laws.". but the same compliment is paid to the com Were the bill of exceptions less absurd than manding officer at Cieutadella, where an ex it is, yet I should contend, that the governor, clusive jurisdiction is not even pretended. In by pleading in chief, and submitting bis cause fact, it is a matter of civility merely, but never to the decision of an English jury, bas prewas a claim of right.

cluded 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 tria), has been esplicit 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 tresJordship) 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 acibe governor resident upon the island does exer- tion, and as governor Mostyo (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 re

may say, it was impossible, that a man who versed, I fear the public, with too much truth, lived upon the island, in the station he bad will apply the lives of the Roman satirist on done, should not know better, than to think the drunken Marias to the present occasion ; that the governor bad a civil and criminal and they will say of governor Mostyn, as was power in himn. The governor is the king's ser- formerly said of him, vant; his commission is from him, and he is Hic est damnatus inani judicio; to execute the power he is invested with under and 10 the Minorquins, if Mr. Fabrigas should that commission, which is to execute the laws be deprived of that satisfaction in damages of Minorca, under such regulations as the king which the jury gave him, shall make in council. It was a vain imagination in the witnesses to say, that there were

At tu victrix provincia ploras. five terminos in the island of Minorca. I have at various times seen a multitude of authentic Bir. Buller. 1 beg leave to trouble the documents and papers relative to that island; Court with a few words by way of reply: and I do not believe, that, in any one of them, and though Mr. Peckham lias thought fit to the idea of the arraval of St. Pbillip's being a declaiin so much upon the particular facts of distinct jurisdiction was ever started. Malon this cause, yet I was confident at first, and do is one of the four terminos, and St. Phillip's, not now find I was deceived in thinking, I and all the district about it, is comprehentieil should not be contradicted in what I said about within that termino ; but to suppose, that there the propriety of governor Mosiyn's couduct; is a distinct jurisdiction, separate from the that he had taken every precaution that a man government of the island, is ridiculous and in his situation could do, bad consulted many absurd.”

persons there, civil and military, and that they These were the words of lord chief justice were all unanimous in advising the governor to de Grey; to which, I am confident, this Court do what was done. will pay a proper attention.

The first objection made by Mr. Peckham The bill of exceptions then states, that geve- bas been, that Mr. Mostyn should be precluded ral Mostyn was appointed governor by the from contending that this Court hath not a juking's commission, which gives him all the risdiction, because he has submitted to the jupowers belonging to the said office. I wish to risdiction of the Court in so many instances ask Mr. Buller, whether to persecute the innon during the whole of these proceedings. He cent, and to banish those subjects committed to has stated the whole proceedings during the his care, is a power incident to or springing out stages of this cause, by which he supposes Mr. of the office of governor? If it is not, the go- Mostyn bath done such acts as shall be convernor cannot justify himself under bis com- strued into a submission to the jurisdiction of mission.

the Court, and is therefore now precluded from It is then stated, that the king ordered “ all entering into the question. Further, Mr. bis loving subjects in the said island to obey Peckham has insisted upon it, that at the trial him, the said John Mostyn;" but nothing in we did wrong in making a defence; because, particular is mentioned of the arraval. Had it if we meant to go into the question, whether been a peculiar district, under the despotic will the Court bas jurisdiction or not, we sbould have of the governor, there must have been some then insisted upon a non-suit, and not gone potice taken of it, either in the commission, or into the merits of the cause. I do not appre. in bis majesty's orders. The governor then hend any of the cases he has cited will come confesses in bis bill of exceptions, " that be up to the present: and as to the different pebanished Mr. Fabrigas without any reasonable riods of the cause, where he supposes we have or probable cause, or any oiber maiter alledged submitted to the jurisdiction of the Court, if in his plea, or any act tending thereto.” Not this Court bath no jurisdiction at all, I do not withstanding which admission, in the very next know how it can then be said we have submit

[ocr errors]

ted to it. Saying, that at the trial we should supposition and quaint legal fiction, which have insisted upon a non-suit, is saying we otherwise would avail, that it was in London or should have insisted upon what we could not England, was absurd, and the plaintiff could demand; for it is at all times at the option of not support his action. It was the same in the the plaintiff, whether he will submit to a non- case in Latch ; for that was not on a plea to suit or not. If the defendant can avail bimself the jurisdiction, but the objection arose loog of the ohjection at all, it must be by entitling after, and in a subsequent period of the cause : himself by that means to a verdict ; for it is in the judges there agreed, that if it appeared on the power of the plaintiff to get up and say, I the record, that the case was plainly and evi. will not be non-suited. It was impossible for dently out of their jurisdiction, they were bound us to ipsist upon the objection in any other to take notice of it. way than it is now done: the objection arises Mr. Peckham has divided his argument into out of the facts of the case, and what was three heads: first, whether a transitory action proved at the trial. It was there proved, that is capable of being brought in England, if the Mr. Mostyn was the governor; that what he cause of that action arise beyond the seas : sedid was in that character ; and therefore, condly, whether the plaintiff is capable of says he, these facts being proved, I insist I bringing such action : and, in the third place, am not answerable in a court of justice in whether the defendant is a proper objeci of it. England, for what I have done in this charac. On the first of these questions it has been inter : therefore the objection would have been sisted, that an action of false imprisonment is a improper, if it had come at any other time; transitory action; and some cases cited, where it could only come when these facts appeared transitory actions, arising abroad, are holden to in evidence upon which this objection was be maintainable here. An action of false imfounded. As to the many cases that have been prisonment certainly is a transitory action : but, cited, I believe I may safely give this general my lord, the cases cited from 12th Co. and Co. answer to them all: they are cases where an Lit. were not cases of action for false imprisonaction has been brought in a court in England, ment, but debt upon bond. These cases were for a transaction arising in England, but, on where the law, in the different countries, was account of a charter or statute, the jurisdiction the same ; and they therefore come within the of the superior court has been excluded. Where distinction laid down in the case before lord that is so, and this Court bas a general super-Camden. For, where the law of the different intendent jurisdiction, but it is taken away by a countries is the same, this Court may hold particular law, in such case it is necessary to plea; it may do as much justice as the foreign plead to the jurisdiction: but when the ques-courts, and can be involved in no difficulty with iion arises upon a transaction happening in respect to the rules by which they are to de. foreign parts, and where the courts of England cide. But in the case of transactions arising in cannot have any controul whatsoever, suppoşe, foreign dominions, where the law of the foreign 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 dom, this Court has no way of informing them. the inhabitants, it is just the same as a conrt selves what the foreign law is, nor can they of inferior record in England, where it holds know what rules to decide by; and therefore plea of a thing done out of their jurisdiction. every inconvenience arises against their enter. In that case, if it appears upon the proceedings taining such a suit. Mr. Peckham then cited that the cause of action arose out of the juris- the case of Parker against lord Clire, in this dictions, the whole proceedings are void ; they court, and observed, that there never was any are coram non judice; and an action will lie objection taken there, that the action would not against the party, the officers and the judges, lie. That case is different from the present. for what is done under them.

That was a case between English subjects, and Jo this case, as I submit to your lordship, a case that was to be determined, not by the the question is the same ; because it is not on a law of the East Indies, (for that was not set up transaction happening within the limits, or as a defence, or at all intermixed with the case) within the country where this Court resides or but by the law of England ; and therefore is has a jurisdiction, but on a transaction arising still within the distinction I have laid down in foreign dominions. 1 beg leave to mention and endeavoured to support. Then the second too, that if these cases were so very general as question Mr. Peckham has made is, whether Mr. Peckham wishes to have them understood, the plaintiff can maintain thi

action ? The it is not possible that the case in Latch, or the plaintiff, he says, is not an alien, but a naturalcase iu Lutwyche, ever could have existed; born subject, and as such he owes allegiance, because, if it was to hold as a general rule, and is entitled to protection; and that the king that where the cause of action arises out of the of England can protect only by the laws of kingdom you must plead to the jurisdiction, it England, and therefore this man has a right to would have been a sufficient answer in those bring bis action bere. Tbe proposition will itcases to say, it was not so pleaded. In the case self shew bow enormous it would be, if it were in Lutwyche, there was a plea in bar, and de- to hold in this case. How is the king to rule murrer to that plea; but it appearing, that the by the laws of England ? Is it meant that this cause of action did not arise in this kingdom, case is to be determined by the laws of Eng. but in foreign parts, the Court agreed, that the land ? If so, that would be injustice in the inost glaring light; because it would be condemning tion of the governor of Minorca, or the power the defendant by one law, when be was bound or jurisdiction he bas 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 otber_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 pot by printed reasons given iu that case particularly the laws of this country. Mr. Peckham has stated; but I do not perceive the case bas 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 tendant. "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, 40-4, was then cited, where the Court are there. Mr. Peckbam 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 personań. 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 hadoes, 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. Peckbam 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 ques from 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 the final decision of the cause appears from such authority to Mr. Mostyn. If it be meant the book ; namely, that the judgment in that only, that the king is not absolute in this coun- case was for the defendant, and that the action try, I most readily accede to the proposition ; could not be maintained. Then the words of but what the constitution of this country is, lord chief justice de Grey, in this present cause, can be no argument to prove what is the state upon a motion for a new trial, have been much or constitution of Minorca. That Minorca is relied upon; and his lordship is made to say, of a different constitution, and is governed by that if the governor bad secured the present different laws from what prevail in this coun- plaintiff, merely for the sake of a trial, it would try, is stated in the record ; which record is be a different affair. In this case, I apprebend decisive upon tbat point, for the Court cannot it would be quite sufficient for me, if the godepart froin it. It is there stated, that the arra- vernor bad a power of committing at all; for if val of St. Phillip’s is subject to the immediate he had, that is sufficient to prevent the deorder of the governor, and to his order and di- fendant's being a trespasser by such commitrection only; for po judge, either criminal or ment: and the reasonableness of the time for civil, can interfere, or bas any jurisdiction which he was committel, would be a very difthere, unless under his express leave: there- ferent question; for, if the governor had a fore the argument, as to the authority or power power of committing, he bas pursued that of the king here, is totally foreign to the situa- power, and then this action cannot be main

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 & 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 bave the least weight whatso- course of this cause; in which bis 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 consti. the 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 possible for the Court to go out of the record : suit, and therefore can have nothing to do with but these observations of lord chief justice de the present question. The case of Conner Grey go certainly a great way towards proving against Sabine is as different from this case, as the impropriety of maintaining such an action any one case can be from another. There the bere as the present. If the account given by defence was put upon the ground, that the lord chief justice de Grey of the island be true, plaintiff was amenable to a court-martial. The and I make no doubt it is, the consequence is fact turned out otherwise: they stated a limited this : that even though all the evidence was jurisdiction, and it appeared the plaintiff was obtained in this cause that could be had ; not the object of that jurisdiction. Then it is though persons were called as witnesses, who, said, that Minorca is not a military camp, but from their situation, and the departments they that there are judges both criminal and civil. had officiated in, were most likely to be conHere again I'must have recourse to the re- versant with the law and constitution of the cord itself; for there it is stated, that within island; yet that all the accounts that have been the arraval of St. Phillip's, where this trans- given are imperfect, erroneous, and unworthy action occurred, there is no judge either cri. of credit. That is the strongest evidence of minal or civil; there is no power but that of the impropriety of maintaining such an action the governor. Mr. Peckham observed, that as this in England. For it, as lord chief jus. it is stated in the record, that the inbabitants tice de Grey says, the evidence that has been sometimes claim protection from the law given of the foreign law in this case is not to of England, as well as the law of Spain. It be relied upon, but is all a mistake ; it may is so stated; but what is said further? happen, and it must naturally be expected, that Not that they ever have it allowed to them, in every case which is brought bere from foor that they are governed by it; but it is reign dominions, where the cause of action express!y stated, that they are in general go- arises abroad, all the evidence is abroad, and verned by the law of Spain : therefore the re- the Court can get no other evidence of the law cord does not prove, that the people in Minorca of the place than the loose opinions of those are governed by the same laws as the people who bave occasionally been ibere ; and the here, but it does prove, that they are governed courts here having no established legal mode of by laws which are totally different, and that obtaining certificates from such country, prowithin the arraval of St. Phillips, the will of perly authenticated, to say what the law there the governor is the law. Mr. Peckham then is, the same mistakes and inconvenience will attacks the veracity of the record with respect arise. to the different districts which there are within Therefore, on the whole, I trust the Court the island; and has insisted, that though in the will be of opinion, that this action is improper, execution of process, &c. the law-officers may and ought not to be maintained here. consult the governor, or inform him wbat they

Lord Mansfield. Let it stand for another are going to do, yet that they are not bound by law to do so. My lord, the record must, in argument. It has been extremely well argued these respects, also decide for us.

on both sides.

It is there slated what the districts are ; that the arraval of St. Phillip's is distinct from the others; and On Friday the 27th January, 1775, it was that do magistrates can come there, por can very ably argued by Mr. Serjeant Glynn, on any process be executed there, without the the part of Mr. Fabrigas, and by Mr. Serjeant governor's particular leave. Mr. Peckham Walker, on behalf of governor Mostyn : but as asks, where is the authority that enables a

no new cases were cited, we shall proceed to governor to banish an innocent man? lu the give the Judgment of the Court of King'sfirst place, as to his being an innocent man, it bench, which was in substance as follows: is not competent to this Court to enquire whether he was innocent or not, or whether the Lord Mansfield. This was an action for an governor was strictly justifiable or not; but it assault and false imprisonment by the defenis sufficient to prove that the governor had an dant upon the plaintiff. And part of the com.


plaint being for banishing bim from the island jury immediately to have found for the defenof Minorca to Carthagena, in Spain, it was dant. Why? There are three reasons given, necessary for the plaintiff 16 take notice in the One of them insisted upon in the first argument declaration of the real place where the cause (but abandoned to-day) is, that the plaintiff is of complaint arose; which he has stated to be a Minorquin, born in the island of Minorca, at Minorca, with a videlicet in London, at St. To dispose of that objection at once, I shall Mary-le Bow. Had it not been for that par- only say that it is wisely abandoned to-day. ticularity, he might have stated it to have been A Minorquin ; what then? Has not a subject in the county of Middlesex; but part of the of the king, born at, as good a right complaint making the locality, where the cause to apply to the king's Courts of justice, as a of action arose, necessary to be stated, being a person born within the sound of Bow-bell, in banishment from Minorca to Carthagena, he Cheapside? If there is no other objection to states it with this videlicet. To this declaration him, would that make any? To be sure not. the defendant put in two pleas; first, Not Guilty; But it is abandoned, so I shall lay it out of the and then he pleads, that he was governor of case. 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 wbewhich he alledges he bad 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, por 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, Jocality 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 bis case, and the defendant went likewise into matter, he must plead to that jurisdiction, and bis 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 bis 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 be sat in a court of justice, and diately under the power of the governor, and subject to a superior review, it is within the that no judge of the island can exercise juris- reason of the law of England, which says, diction there without an appointment from him. that shall be a justification, and he would, if That is the substance of their evidence. he had acted according to the law of the land,

The judge left it to the jury upon the facts be entitled to a justification in the fact that is of the case; and they found for the plaintiff. complaived of; but that must be pleaded. If The defendant then tendered a bill of excep- an action is brought against a person who is tions, upon which bill of exceptions it comes à judge of record, he must lay it before the before us. And the great difficulty I have had court, by way of plea and justification, that he upon both these argumects is, to be able clearly was a judge. I don't lay a stress upon the to comprehend what question it is that is meant word record, but there is no colour upon the seriously to be brought before the Court for evidence that he acted as a juilge of a court their judgment. If I understand the counsel for of justice; therefore every thing stated regovernor Mostyn right, what they say is this : lative to the arraval, which is stated in the bill the plea of Not Guilty is totally immaterial, of exceptions, is nothing at all to the purpose. and the plea of justification is totally imma- The first point that I shall begin with is the terial, for it appears on the plaintiff's own sacredness of the person of the governor. sbewing that this matter arose in Minorca ; Why, if that was true, and if the law was so, and the replication to the plea admits it: and he must plead it. This is an action of false it likewise appears that the defendant was go- imprisonment: primâ facie, the Court has vernor of Minorca ; and as the imprisonment jurisdiction. If he was guilty of the fact, be arose in Minorca by the authority of the de- must shew a special matter that he did this by fendant, the judge ought to have stopped all a proper authority. What is his proper au, evidence whatsoever, and have directed the thority ? The king's commission to make him

« EdellinenJatka »