Sivut kuvina

governor. Why then, he certainly must plead | England, and is an abuse of that authority it: but, however, I will not rest the answer given bim by the king's letters patent 'under upon that. It has been singled out, that in a the great seal. Now, if every thing within a colony that is beyond the seas, but part of the dominion is triable by the courts within that dominions of the crown of England, though dominion, yet the consequence of the king's actions would lie for injuries committed by letters patent, which gives the power, must be other persons, yet it shall not fie against the tried bere ; for nothing concerning the seigniogovernor. Now I say, for many reasons, if it ry can be tried in the place where it is. In the did not lie against any other man, it shall most proprietary governments in America, they emphatically lie agaiust the governor. In every cannot try any question concerning the seignioplea to the jurisdiction, you must state a juris- ry, in their own courts; and therefore, though diction ; for if there is no other method of trial, questions concerning lands in the isle of Man that alone will give the king's courts juris- are triable in the courts of the isle of Man, yet. diction. If an action is brought bere for a wherever there is a question concerning the matter arising in Wales, you must shew the seigniory, it must be tried in some courts in jurisdiction of the court in Wales: and in England. It was so held by the chief justice every case to repel the jurisdiction of the and many of the judges in the reign of queen king's courts, you must shew a better and a Elizabeth, upon a question arising concerning more proper jurisdiction.* Now in this case the seigniory of the isle of Man. Or whenno other jurisdictiont is shewn, even by way ever there is a question between two provinces of argument; and it is most certain, that if the in America, it must be tried in England by king's courts cannot hold plea in such a case, analogy to what was done with respect to the there is no other court upon earth that can do seigniories in Wales being tried in English it: for it is truly said, that a governor is in the counties ; so that_emphatically the governor nature of a viceroy, and, of necessity, part of must be tried in England, to see whether he the privileges of the king are communicated to has exercised legally and properly that authu. him during the time of his government. No rity given bim by the king's letters patent, or criminal prosecution lies against him, and no whether he has abused that authority, contrary civil action will lie against bim; because, what to the law of England, which governs the would the consequence be ? Why, if a civil ac letters patent by which he is appointed. It tion lies against him, and a judgment obtained does not follow from this, that, according to for damages, he might be taken up and put in the nature of the case, let the cause of action prison on a Capias; and therefore, locally, dur- arise where it may, that a man is not entitled ing the time of his government, the courts in to give every justification tbat ought to be a the island cannot bold plea against him. But defence to him. If by the authority of that in this peculiar case, it is said to have happened capacity in which he stooder has done right, in the arrava!. Why, it is stated in the evi- be is to lay that before the Court by a proper dence, that no judge can sit there at all with plea, and the Court will exercise their judgment out his leave. If he is out of the government, whether that is not a sufficient justification. he leaves it; he comes and lives in England, In this case, if the justification had been and he has no effects there to be attached : proved, perhaps the Court would have been of then there is no remedy whatsoever, if it is an opinion that it was a sufficient answer, and not in the king's courts. But there is another he might have moved in arrest of judgment very strong reason alluded to by Mr. Serjeant afterwards, and taken the opinion of the Court ; Glyon, which would alone be decisive. This but the Court must be of opinion that it is a is a charge against him, which, though a civil sufficient answer, and that the raising a mutiny injary, bas a mixture of criminality in it: it in a garrison, though in time of peace, was a is an assault; which is criminal by the laws of reason for that summary proceeding, in taking

bim up and sending him out of the island. I * As to this, see the Case of the hon. Robert could conceive cases in time of war, in which Johnson, 6 East, 583. See also the Case of a governor would be justified, though he acted the Kinlochs, vol. 18, p. 395.

very arbitrarily, in which he could not be jus+ Speaking of lord Mansfield's judgment tified in time of peace. Suppose in a siege, or in this case, Mr. Butler in his long disquisi- when the French were going to invade Minorca, torial note to Co. Litt. 391 a, says, “ wherever suppose that the governor should think proper a personal injury is done to an English sub- to send a hundred of the inhabitants out of the ject abroad, the remedy must be sought in the island, and that he did this really acting for the jurisdiction where the cause of action happens, best : or suppose, upon a general suspicion, he if it is subject to the king's jurisdiction.; if should take people up as spies : why, apon the king has no jurisdiction in that place, this proper circumstances laid before the Court for necessarily gives the king's courts a jurisdic- their judgment and opinion, it would be very tion within, which it is brought, by the known fit to see whether he had acted as the governor fiction of laying the venue in some county of of the garrison ought, according to the law of England. This is explained by lord Mans-England and the justice of the case. But it is field with bis usual clearness and ability." said, if there is a law in the garrison, or if he Mr. Butler refers to Phillybrown o. Ryland, acts as the Spanish governor might have done Stra. 624. Lord Raym. 1988, and 8 Mod. 354. before, how is that to be known here?-How!

Why, there are ways of knowing foreign laws give damages, they cannot give reparation, as well as our own, but in a different manner: they cannot punish, they cannot hold plea in it must be proved as a fact, and in that shape any way. Wberever complaints bave been the court must assist the jury in finding out before the king in council, it has been with a. what the law really is. Suppose there is a view to remove the governor'; it has been with French settlement here is a case in point of a view to take the commission from him which the sort I am stating) wbich depends upon the he held at the pleasure of the crown. But custom of Paris; why, we must receive wit- suppose he holds nothing of the crown, supnesses with regard to it, to shew what the pose his government is at an end, and that he custom is, just as you receive evidence of a is in England, they have no jurisdiction to custom with respect to trade.

make reparation to the party injured; they The judges in the courts of England do de- have no jurisdiction to punish in any shape the termine all cases that arise in the plantations, man that bas committed the injury: how can all cases that arise in Gibraltar or Minorca, in the arguments be supported, that, in an empire Jersey or Guernsey, and they must inform so extended as this, every governor in every themselves by having the law stated to them. colony and every province belonging to the As to suggestions with regard to witnesses, the crown of Great Britain, shall be absolutely deplaintiff must prove his case, and the court spotic, and can no more be called in question must take care that the defendant is not sur than the king of France? and tbis after there prised, and that he has a fair opportunity of bave been multitudes of actions in all our mebringing bis evidence, if it is a case proper in mories against governors, and nobody has been other respects for the jurisdiction of the court. ingenious enough to whisper them, that they There may be some cases arising abroad, were not amevable. wbich may not be fit to be tried here; but that In a case in Salkeld, cited by Mr. Peckham, cannot be the case of a governor injuring a

there was a motion for a trial at bar in an acman, contrary to the duty of his office, and in tion of false imprisonment against the governor violation of the trust reposed in bim by the of New-York; and it was desired to be a trial king's commission. If he wants to send for at bar, because the Attorney General was to witnesses to prove his justification, and applies defend it on the part of the king, who had taken to the court, they will do what this court did in up the defence of the governor. That case a case of a criminal prosecution which arose plainly shews that such an action existed; the in Scotland. This court forced the prosecutor Attorney General had no idea of a governor's (and would have put off the trial from day to day being above the law. Justice Powell says, in if he had not submitted to it) to suffer the wit- the case of Way and Yally, in 6 Modern, that an nesses to be examined by a commission where action of false imprisonment had been brought the cause arose, who could not be compelled to here against the governor of Jamaica for an come here. The court obliged them to come imprisonment there; and the laws of the into these terms; or, if they did not, it is a country were given in evidence. The govermatter of course, in aid of a trial at law, to nor of Jamaica in that case never thought apply upon a real ground, and not upon a ficti. that he was not amenable. He defended bimtions pretence of delay, to a court of equity to self. He shewed, I suppose, by the laws of have a commission and injunction in the mean the country, an act of the assembly which justitime; and the court will certainly take care fied that imprisonment; and the court received that justice shall be done to the defendant as it, to be sure, as they ought to do. Whaterer well as to the plaintiff, who must come with is a justification in the place where the thing is witnesses to prove his case: and therefore, in done, ought to be a justification where the case every light in which I see this matter, it holds is tried. I remember (it was early in my time; emphatically in the case of a governor, if it did I was counsel in it) an action against governor not hold in respect of any other man within Sabine, and he was very ably defended. Nothe colony, province, or garrison. But to body thought the action did not lie against him. make questions upon matters of settled law, He was governor of Gibraltar, and he barely where there have been a number of actions de confirmed the sentence of a court-martial, termined, which it never entered into a man's which tried one of the train of artillery by head to dispute to lay down in an English martial law. Governor Sabine affirmed the court of justice such monstrous propositions as sentence. This plaintiff was a carpenter in the that a governor, acting by virtue of letters pa- train. It was proved at the trial, that the tent under the great seal, can do what'he tradesmen that followed the train were not pleases; that he is accountable only to God liable to martial law; the court were of that and his own conscience-aud to maintain here opinion; and therefore the defendant was guilty that every governor in every place can act ab- of a trespass in baving a share in that sentence solutely; that he may spoil, pluođer, affect which punished bim by whipping. There is their bodies and their liberiy, and is account another case or two, but they don't occur to able to nobody-is a doctrine not to be main me at present. tained; for if he is not accountable in this Let us see now what the next objection is, court, he is accountable no-where. The king with regard to the matter arising abroad; and in council has no jurisdiction of this matter; that is a general objection, that as the matter ibey cannot do it in any shape; they cannot arose abroad, it cannot be tried bere in Eng

land. There is a formal distinction that pre-county in England, let it be done where it wille vails in our courts, and likewise a substantial the parties had an opportunity of applying to one as to the locality of trials. The substantial the court in time to change the venue. But if distinction is, where the proceeding is in they go to trial without it, that is no objecrem, and where the effect of the judgment tion; and all actions of a transitory nature that cannot be had if it is laid in a wrong place. arise abroad may be laid as happening in an This is the case of all ejectments where pos- English county. But there are occasions which session is to be delivered by the sheriff of the make it absolutely necessary to state in the decounty : and as trials bere are in particular claration, that it really happened abroad; as in counties, the officers are county officers; there- the case of specialties, where the date must be fore the judgment could not have effect if it set forth. When an action is brought upon a was not laid in the proper place and in the pro- specialty which bears a date, if that specialty is per county. But there likewise is a formal set out, or if oyer is prayed of it, by which the distinction, where, perhaps, complete justice place where it was made must appear; if the could be done, let it be laid in wbat county it declaration states it to have been made at Westmight; that is mere matter of form as to cases minster, in Middlesex, and upon producing the that arise within the realm : but even with re. deed it bears date at Bengal, there is a variance gard to matters that arise out of the realm, to between the deed and the declaration, which be sure there is a distinction of locality too ; makes it appear to be a different jostrument. I for there are some cases that arise out of the don't put the case, though there are some in the realm, that ought not to be tried any where but books that seem to me to bave confounded the in the county where they arise, as the case al- statute of the 6th of Richard the second, there. luded to by serjeant Walker. if there is a sort fore I don't put the objection upon the 6th of of fighting in France between two Frenchmen, Richard ibe second; but it goes singly upon this: and ibey happen both casually to be here, and if you don't state the true date or true description an action of assault is brought by the one of the bond, it is a variance. What does the law against the other, which charge a criminality in that case ? (and it has done it for hundreds too, that it is done against the king's peace, of years) Why, the law invented a fiction, and and the laws and customs of England ; in that has said, “You shall set out the description case it may be a very material question whe- truly, and then give a venue only for form for ther that could be maintained here: for though the trial; videlicet, in the county of Middlesex, it is not a criminal prosecution, yet it has that or any other county you please.” Did any sort of criminality that, perbaps, without giving judge ever think that when the declaration an opinion, it ought to be tried by the laws of said, in fort St. George in Cheapside, that the that country where both parties are subjects; plaintiff meant that it was in Cheapside ? No; it may be a substantial objection of locality. Só it is a fiction in form: every country bas its likewise, if it is concerning an estate in a forms: it is for the furtherance of justice tbat foreign country, where it is a matter of title these fictions were invented ; to get rid of forand not of damages, it may be a substantial malities; to further and advance justice. This distinction. There is likewise a question of is a certain rule: you never shall contradict form, and that arises upou the trial; for trials the fiction so as to defeat the end for which it in England being by a jury, and the kingdom was invented, but you may contradict it for being divided into couuties, and every county, every other purpose. Now this fiction is inin respect of trial, considered almost as if a vented barely for the mode of trial; to every separate kingdom or principality, it is absolute- other purpose you shall contradict it, but not Jy necessary that there should be some county for the purpose of saying, You shall not try it

. where the action is particularly brought, that it is just like that question that was long agithere may be a process to the sheriff of that tated and finally determined some years ago, county, to bring a jury from thence to try it; upon a fiction of the teste of writs taken out in and that is matter of form, which goes to all the vacation, which bore date as of the last day cases that arise abroad. But the law makes of the term. That is a fiction of the Couri. a distinction between transitory actions and You never shall contradict that fiction, and go local actions. If the matter which is the into the truth of the case, to destroy the writ, cause of a transitory action arises within the and shew it a bad writ. Why? Because the realm, it may be laid in any county; the place Court invented the fiction to make the writ is not material: and if an imprisonment in good, for the furtherance of justice, that it may Middlesex, it may be laid in Surrey; and appear right in the form ; but for every other thougb proved to be done in Middlesex, the purpose in the world you may contradict it. I place not being material, it does not at all pre- am sorry to observe there are some sayings sent the plaintiff recovering damages: for the which have been alluded to, inaccurately taken place of transitory actions is never material. Jown. Perhaps there were short-hand writers But where, by particular acts of parliament, it in those days, as there are at present, who misis made so, as in the case of churchwardens take every word they hear, and, being unable and constables, and other cases that require the to correct it, bave printed it improperly : but action to be brought in the county; there, by to say, that as men they have one way of thinkthe force of the act of parliament, the objection ing, and as judges they have another, is an abis fatal : but otherwise, it must be laid in any surdity. No; they meant to support tbe fiction. I will mention a case or two to shew that Ijection. Why then, it all amounts to this: is the meaning of it. There is a case in 6 that where the action is substantially such a Modern, 208, of Roberts and Harnage. The one as the Court can hold plea of, as the mode plaintiff declares, that the defendant became of trial is by jury, and as they must be called bound to him at Fort St. David's in the East together by process directed to the sheriff of Indies at London, in such a bond. Upon de the county, matter of form is added to the ficmurrer the objection was, that the bond ap- tion, to say it is in that county; and then the peared to have been sealed and delivered at fort whole of the inquiry is, whether it is an action St. David's in the East lodies, and therefore that ought to be maintained. But can it be the date made it local; and, by consequence, doubted, that actions may be maintained here, the declaration ought to have been of a bond not only upon contracts, which follow the permade at Fort St. David's in the East Iodies, sons, but for injuries done by subject to subject; viz. at Islington in the county of Middlesex, or especially for injuries where the whole that is in such a ward or parish in London; and of prayed is a reparation in damages, or satisfacthat opinion was the whole Court. You see tion to be made by process against the person how this case is stated. But I will state it from or his effects within the jurisdiction of the another book, where it is reported more truly; Conrt? We know it is within every day's exI mean iu lord Raymond, 1042. There it is perience. I was embarrassed a great while to stated thus. It appeared by the declaration, find out whether it was really meant to make that the bond was made at London, in the ward a question of it. It is so in sea-batteries; but of Cheap. Upon oyer, the bond was set out, is it to be supposed that the judge thought it and it appeared on the face of it to be dated at happened in Cheapside, when the party proves fort St. George in the East Indies. The de. where the place was ? In sea-batteries, the fendant pleaded the variance io abatement, and plaintiff often lays the injury to have been done the plaintiff demurred, and it was held bad; in Middlesex, and then proves it to be done a but the Court said, that it would have been thousand leagues distant, on the other side of good, if laid at Fort St. George in the East the Atlantic. There are cases of offences on Indies, to wit, at London, in the ward of the high seas, where it is of necessity to lay Cheap. What was the objection there? Why, in the declaration, that it was done upon they had laid it falsely. They had laid the the high seas; as the taking of a ship as a bond as made at London. The bond is pro- prize. A case of that sort occurs to my meduced, and appears to be made at anoiber mory :-the reason I remember it is, because place: that is a variance.- You must take the there was a question about the jurisdiction. bond as it is. Then how do you get to trial? There likewise was an action of that kind before Why, introduce a fiction, and the formality lord chief justice Lee, and another before me, in gives you the trial in that county by the video which I quoted that determination, to shew that licet, and the bond is truly described. A case when the lords commissioners of prizes buve was quoted from Latch, and a case from Lut- given judgment, that is conclusive in the action ; wyche, on the former argument; but I will and likewise, when they have given judgment, mention a case posterior in point of time, where it is conclusive as to the costs, whether they the Court took it up upon the true ground, have given costs or not. But how is that action where both these cases were cited, and vo re- laid ? It is necessary to be laid, that his ship was gard at all was paid to them; and that is the taken or seized on the high seas, videlicet, in case of Parker and Crook, 10 Modern 255. Cheapside. Now is it seriously contended, that This was an action of covenant upon a deed the judge and jury, and counsel, who tried the indented. It was objected to the declaration, cause, fancied that ship was sailing in Cheapthat the defendant is said in the declaration to side?' No; it is plain sense; the ship was continue at Fort St. George in the East Indies ; taken upon the high-seas, for which an action and upon the oyer of the deed it bears date at lies in England ; and you say in Cheapside, Fort St. George; and therefore the Court, as which is saying no more than that, I pray this was pretended, had no jurisdiction. Laich, action may be tried in London; it is plainly fol. 4. Lutwyche, 56. Lord chief justice Par- understood: but if you offer reasons of fact ker said, that an action will lie in England contrary to the truth of the case, there is no upon a deed dated in foreign parts, or else the end of the embarrassment. At the last sittings, party can bave no reinedy; but then, in the there were two actions brought by the Armedeclaration, a place in England must be al- nian merchants for assaults and trespass in the let!ged, pro forma. Generally speaking, the East-Indies, and they are very strong authodeed, upon the oyer of it, must be consistent rities. Serjeans Glynn said, that the defendant, with the declaration ; but in these cases prop- Mr. Verelst, was 'abiy assisted. So he was; ter necessitatem, if the inconsistency be as little and by men who would have taken the objecas possible, not to be regarded : as here, the tion, if they thought it bad been maintainable: contract, being of a voyage which was to be and that was after this case had been argued performed from Fort St. George to Great Bri- once ; yet the counsel did not think it could tain, does import, that Fort St. George is dif- be supported. Mr. Verelst would have been ferent from Great Britain : and after taking glad to have made the objection : he would not time to consider of it, in Hilary term the plain- have left it to a jury, if he could have stopped tiff had his judgment, notwithstanding the ob- them short, and said, “You shall not try it at al).” I have had some actions before me, go- when they had a right to it. It was a dispute iog rather further than these transitory actions; between them and the fishermen in England. that is, going to cases which in England would The cause went on a great way: the defendant be local actions: and I remember one, I think would bave turned it short at once, if he could it was an action brought against captain Gam. have made that objection ; but that objecbier, who by order of admiral Boscawen bad tion was not made. There are no local courts pulled down the houses of some suttlers who among the Esquimaux ludians upon that part supplied the pary and sailors with spirituous of the Labrador-coast. Whatever injury had liquors; and whether the act was right or been done there by any of the king's officers wrong, it was certainly done with a good in- would have been altogether without redress, if tention on the part of ihe admiral, for ihe sai. that objection of locality would have held: and lors' health were affected by it. They were the consequence of that circumstance shews, pulled down. The captain was inattentive that where the reason fails, even in actions enough to bring the gentleman over in his own which in England would be local actions, yet ship, who would never have got to England that does not hold to places beyond the seas otherwise ; and as soon as he came here, he within the king's dominions. That of admiral was advised that he should bring an action Palliser's went off upon a proposal of a reagainst him. He brought his action, and one ference, and ended by an award. But as to of the counts in the declaration was for pulling transitory actions, there is not a colour of doubt down the houses. The objection was taken to but that every action that is transitory may be the count for pulling down the houses ; and laid in any county in England, though the the case of Skinner and the East India Com matter arises beyond the seas : and when it is pany was cited in support of the objection. On absolutely necessary to lay the truth of the the other side, they produced, from a manu- case in the declaration, there is a fiction of law script note, a case before lord chief justice to assist you, and you shall not make use of the Egre, where be over-ruled the objection ; and truth of the case against that fiction, but you I over-ruled the objection upon this principle, may make use of it to every other purpose. I that the reparation here was personal, and am clearly of opinion not only against the obfor damages; that there would be a failure of jections made, but that there does not appear a justice, for it was upon the coast of Nova question upon which the objections could arise. Scotia, where there were no regular courts of

The other judges declared themselves of the justice, but if there had been, captain Gambier might never go there again ; and that the rea, the judgment should be affirmed."

same opinion, and the Court ordered, “ That son of locality in such an action in England did not hold in this case. I quoted a case of In consequence of the above judgment, on an injury of that sort in the East-Indies, where Saturday the 4th day of February 1775, the eren in a court of equity lord Hardwicke had gentlemen who were bail for governor Mostyn, directed satisfaction to be made in damages. to prevent his being taken in execution and That case was not fully argued; but this was carried to prison, were obliged to pay to Mr. argued, and there were large damages given i Fabrigas the sum of 3,0001. for his damages, against Gambier. I do not quote it for the and 1591. which the Court amerced the goopinion I was of' there, because that opinion is vernor in costs. very likely to be erroneous; but I quote it for this reason, that there were large damages I have not ventured to alter the nonsepsical given against captain Gambier: and though he was not at the expence, for he acted by the or- passages in the former report of this case. The ders of admiral Boscawen, yet the admiral's case in Shower, which is alluded to in p. 115, representatives paid the expence, therefore their I suppose to be that of sir Richard Dutton inclination was to have got rid of that verdict if 0. Howell and others, executors of Witham, they could ; but there wever was any motion for a new trial. I recollect another cause that caine on before me: that was the case of ad- See the Case of Louisa Calderon v. General miral Palliser; there the very gist of the ac- Picton, B. R. A.D. 1809. tion was local. It was for destroying fishing- See, also, the following Case of the Island of huts upon the Labrador coast. It was a nice Grenada (Campbell o. Hall), and the Canadian question; when the Canadians settled, and Freeholder, as therein cited.

p. 24.

« EdellinenJatka »