governor. Why then, he certainly must plead it: but, however, I will not rest the answer upon that. It has been singled out, that in a colony that is beyond the seas, but part of the dominions of the crown of England, though actions would lie for injuries committed by other persons, yet it shall not he against the governor. Now I say, for many reasons, if it did not lie against any other man, it shall most emphatically lie against the governor. In every plea to the jurisdiction, you must state a jurisdiction; for if there is no other method of trial, that alone will give the king's courts jurisdiction. If an action is brought here for a matter arising in Wales, you must shew the jurisdiction of the court in Wales: and in every case to repel the jurisdiction of the king's courts, you must shew a better and a more proper jurisdiction. Now in this case no other jurisdiction is shewn, even by way of argument; and it is most certain, that if the king's courts cannot hold plea in such a case, there is no other court upon earth that can do it: for it is truly said, that a governor is in the nature of a viceroy, and, of necessity, part of the privileges of the king are communicated to him during the time of his government. No criminal prosecution lies against him, and no civil action will lie against him; because, what would the consequence be? Why, if a civil action lies against him, and a judgment obtained for damages, he might be taken up and put in prison on a Capias; and therefore, locally, during the time of his government, the courts in the island cannot hold plea against him. But in this peculiar case, it is said to have happened in the arrava!. Why, it is stated in the evidence, that no judge can sit there at all without his leave. If he is out of the government, he leaves it; he comes and lives in England, and he has no effects there to be attached: then there is no remedy whatsoever, if it is not in the king's courts. But there is another very strong reason alluded to by Mr. Serjeant Glynn, which would alone be decisive. This is a charge against him, which, though a civil injury, has a mixture of criminality in it: it is an assault; which is criminal by the laws of

England, and is an abuse of that authority given him by the king's letters patent under the great seal. Now, if every thing within a dominion is triable by the courts within that dominion, yet the consequence of the king's letters patent, which gives the power, must be tried here; for nothing concerning the seigniory can be tried in the place where it is. In the proprietary governments in America, they cannot try any question concerning the seigniory, in their own courts; and therefore, though questions concerning lands in the isle of Man are triable in the courts of the isle of Man, yet wherever there is a question concerning the seigniory, it must be tried in some courts in England. It was so held by the chief justice and many of the judges in the reign of queen Elizabeth, upon a question arising concerning the seigniory of the isle of Man. Or whenever there is a question between two provinces in America, it must be tried in England by analogy to what was done with respect to the seigniories in Wales being tried in English counties; so that emphatically the governor must be tried in England, to see whether he has exercised legally and properly that autho. rity given him by the king's letters patent, or whether he has abused that authority, contrary to the law of England, which governs the letters patent by which he is appointed. It does not follow from this, that, according to the nature of the case, let the cause of action arise where it may, that a man is not entitled to give every justification that ought to be a defence to him. If by the authority of that capacity in which he stood has done right, he is to lay that before the Court by a proper plea, and the Court will exercise their judgment whether that is not a sufficient justification. In this case, if the justification had been proved, perhaps the Court would have been of an opinion that it was a sufficient answer, and he might have moved in arrest of judgment, afterwards, and taken the opinion of the Court; but the Court must be of opinion that it is a sufficient answer, and that the raising a mutiny in a garrison, though in time of peace, was a reason for that summary proceeding, in taking bim up and sending him out of the island. I could conceive cases in time of war, in which a governor would be justified, though he acted 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 jurisdiction where the cause of action happens, if it is subject to the king's jurisdiction; if the king has no jurisdiction in that place, this necessarily gives the king's courts a jurisdiction within, which it is brought, by the known fiction of laying the venue in some county of England. This is explained by lord Mansfield with his usual clearness and ability." Mr. Butler refers to Phillybrown v. Ryland, Stra. 624. Lord Raym. 1988, and 8 Mod. 354.

* As to this, see the Case of the hon. Robert Johnson, 6 East, 583. See also the Case of the Kinlochs, vol. 18, p. 395.

island, and that he did this really acting for the best: or suppose, upon a general suspicion, he should take people up as spies: why, upon proper circumstances laid before the Court for their judgment and opinion, it would be very fit to see whether he had acted as the governor of the garrison ought, according to the law of England and the justice of the case. But it is said, if there is a law in the garrison, or if he acts as the Spanish governor might have done before, how is that to be known here?-How?

Why, there are ways of knowing foreign laws as well as our own, but in a different manner: it must be proved as a fact, and in that shape the court must assist the jury in finding out what the law really is. Suppose there is a French settlement (there is a case in point of the sort I am stating) which depends upon the custom of Paris; why, we must receive witnesses with regard to it, to shew what the custom is, just as you receive evidence of a custom with respect to trade.

in

The judges in the courts of England do determine all cases that arise in the plantations, all cases that arise in Gibraltar or Minorca, in Jersey or Guernsey, and they must inform themselves by having the law stated to them. As to suggestions with regard to witnesses, the plaintiff must prove his case, and the court must take care that the defendant is not surprised, and that he has a fair opportunity of bringing his evidence, if it is a case proper other respects for the jurisdiction of the court. There may be some cases arising abroad, which may not be fit to be tried here; but that cannot be the case of a governor injuring a man, contrary to the duty of his office, and in violation of the trust reposed in him by the king's commission. If he wants to send for witnesses to prove his justification, and applies to the court, they will do what this court did in a case of a criminal prosecution which arose in Scotland. This court forced the prosecutor (and would have put off the trial from day to day if he had not submitted to it) to suffer the witnesses to be examined by a commission where the cause arose, who could not be compelled to come here. The court obliged them to come into these terms; or, if they did not, it is a matter of course, in aid of a trial at law, to apply upon a real ground, and not upon a fictitions pretence of delay, to a court of equity to have a commission and injunction in the mean time; and the court will certainly take care that justice shall be done to the defendant as well as to the plaintiff, who must come with witnesses to prove his case: and therefore, in every light in which I see this matter, it holds emphatically in the case of a governor, if it did not hold in respect of any other man within the colony, province, or garrison. But to make questions upon matters of settled law, where there have been a number of actions determined, which it never entered into a man's head to dispute to lay down in an English court of justice such monstrous propositions as that a governor, acting by virtue of letters patent under the great seal, can do what he pleases; that he is accountable only to God and his own conscience-aud to maintain here that every governor in every place can act absolutely that he may spoil, plunder, affect their bodies and their liberty, and is accountable to nobody-is a doctrine not to be maintained; for if he is not accountable in this court, he is accountable no-where. The king in council has no jurisdiction of this matter; they cannot do it in any shape; they cannot

give damages, they cannot give reparation,
they cannot punish, they cannot hold plea in
any way. Wherever complaints have been
before the king in council, it has been with
view to remove the governor; it has been with
a view to take the commission from him which
he held at the pleasure of the crown. But
suppose he holds nothing of the crown, sup-
pose his government is at an end, and that he
is in England, they have no jurisdiction to
make reparation to the party injured; they
have no jurisdiction to punish in any shape the
man that has committed the injury: how can
the arguments be supported, that, in an empire
so extended as this, every governor in every
colony and every province belonging to the
crown of Great Britain, shall be absolutely de-
spotic, and can no more be called in question
than the king of France? and this after there
have been multitudes of actions in all our me-
mories against governors, and nobody has been
ingenious enough to whisper them, that they
were not amenable.

In a case in Salkeld, cited by Mr. Peckham,
there was a motion for a trial at bar in an ac-
tion of false imprisonment against the governor
of New-York; and it was desired to be a trial
at bar, because the Attorney General was to
defend it on the part of the king, who had taken
up the defence of the governor. That case
plainly shews that such an action existed; the
Attorney General had no idea of a governor's
being above the law. Justice Powell says, in
the case of Way and Yally, in 6 Modern, that an
action of false imprisonment had been brought
here against the governor of Jamaica for an
imprisonment there; and the laws of the
country were given in evidence. The gover-
nor of Jamaica in that case never thought
He defended him-
that he was not amenable.
self. He shewed, I suppose, by the laws of
the country, an act of the assembly which justi-
fied that imprisonment; and the court received
it, to be sure, as they ought to do. Whatever
is a justification in the place where the thing is
done, ought to be a justification where the case
is tried. I remember (it was early in my time;
I was counsel in it) an action against governor
Sabine, and he was very ably defended. No-
body thought the action did not lie against him.
He was governor of Gibraltar, and he barely
confirmed the sentence of a court-martial,
which tried one of the train of artillery by
Governor Sabine affirmed the
martial law.
sentence. This plaintiff was a carpenter in the
train. It was proved at the trial, that the
tradesmen that followed the train were not
liable to martial law; the court were of that
opinion; and therefore the defendant was guilty
of a trespass in having a share in that sentence
which punished him by whipping. There is
another case or two, but they don't occur to
me at present.

Let us see now what the next objection is, with regard to the matter arising abroad; and that is a general objection, that as the matter arose abroad, it cannot be tried here in Eng

jection. Why then, it all amounts to this: that where the action is substantially such a one as the Court can hold plea of, as the mode of trial is by jury, and as they must be called together by process directed to the sheriff of the county, matter of form is added to the fic

whole of the inquiry is, whether it is an action that ought to be maintained. But can it be doubted, that actions may be maintained here, not only upon contracts, which follow the persons, but for injuries done by subject to subject; especially for injuries where the whole that is prayed is a reparation in damages, or satisfaction to be made by process against the person or his effects within the jurisdiction of the Court? We know it is within every day's experience. I was embarrassed a great while to find out whether it was really meant to make a question of it. It is so in sea-batteries; but is it to be supposed that the judge thought it happened in Cheapside, when the party proves where the place was? In sea-batteries, the plaintiff often lays the injury to have been done in Middlesex, and then proves it to be done a thousand leagues distant, on the other side of the Atlantic. There are cases of offences on the high seas, where it is of necessity to lay in the declaration, that it was done upon the high seas; as the taking of a ship as a prize. A case of that sort occurs to my memory:-the reason I remember it is, because there was a question about the jurisdiction. There likewise was an action of that kind before lord chief justice Lee, and another before me, in which I quoted that determination, to shew that when the lords commissioners of prizes have

tion. I will mention a case or two to shew that is the meaning of it. There is a case in 6 Modern, 208, of Roberts and Harnage. The plaintiff declares, that the defendant became bound to him at Fort St. David's in the East Indies at London, in such a bond. Upon demurrer 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 St. David's in the East Indies, and therefore the date made it local; and, by consequence, the declaration ought to have been of a bond made at Fort St. David's in the East Indies, viz. at Islington in the county of Middlesex, or in such a ward or parish in London; and of that opinion was the whole Court. You see how this case is stated. But I will state it from another book, where it is reported more truly; I mean in lord Raymond, 1042. There it is stated thus. It appeared by the declaration, that the bond was made at London, in the ward of Cheap. Upon oyer, the bond was set out, and it appeared on the face of it to be dated at fort St. George in the East Indies. The defendant pleaded the variance in abatement, and the plaintiff demurred, and it was held bad; but the Court said, that it would have been good, if laid at Fort St. George in the East Indies, to wit, at London, in the ward of Cheap. What was the objection there? Why, they had laid it falsely. They had laid the bond as made at London. The bond is produced, and appears to be made at another place: that is a variance. You must take the bond as it is. Then how do you get to trial? Why, introduce a fiction, and the formality gives you the trial in that county by the vide licet, and the bond is truly described. A case 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 mention a case posterior in point of time, where the Court took it up upon the true ground, where both these cases were cited, and no regard at all was paid to them; and that is the case of Parker and Crook, 10 Modern 255. This was an action of covenant upon a deed indented. It was objected to the declaration, that the defendant is said in the declaration to continue at Fort St. George in the East Indies; and upon the oyer of the deed it bears date at Fort St. George; and therefore the Court, as was pretended, had no jurisdiction. Latch, fol. 4. Lutwyche, 56. Lord chief justice Parker said, that an action will lie in England upon a deed dated in foreign parts, or else the party can have no remedy; but then, in the declaration, a place in England must be alledged, pro forma, Generally speaking, the deed, upon the oyer of it, must be consistent with the declaration; but in these cases propter necessitatem, if the inconsistency be as little as possible, not to be regarded as here, the contract, being of a voyage which was to be performed from Fort St. George to Great Britain, does import, that Fort St. George is different from Great Britain and after taking time to consider of it, in Hilary term the plaintiff had his judgment, notwithstanding the ob

and likewise, when they have given judgment, it is conclusive as to the costs, whether they have given costs or not. But how is that action laid? It is necessary to be laid, that his ship was taken or seized on the high seas, videlicet, in Cheapside. Now is it seriously contended, that the judge and jury, and counsel, who tried the cause, fancied that ship was sailing in Cheapside? No; it is plain sense; the ship was taken upon the high-seas, for which an action lies in England; and you say in Cheapside, which is saying no more than that, I pray this action may be tried in London; it is plainly understood: but if you offer reasons of fact contrary to the truth of the case, there is no end of the embarrassment. At the last sittings, there were two actions brought by the Armenian merchants for assaults and trespass in the East-Indies, and they are very strong authorities. Serjeant Glynn said, that the defendant, Mr. Verelst, was ably assisted. So he was; and by men who would have taken the objection, if they thought it had been maintainable: and that was after this case had been argued once; yet the counsel did not think it could be supported. Mr. Verelst would have been glad to have made the objection: he would not have left it to a jury, if he could have stopped them short, and said, "You shall not try it at