Sivut kuvina

who was then and now is, commander of the before all the judges, as is usual, for obvious above vessel, then and now lying iu the river reasons, on a return to a Habeas Corpus. The of Thames, did the said negro, committed to only question before us is, whether the cause his custody, detain ; and on which he now on the return is sufficient? If it is, the negro renders him to the orders of the Court. We must be remanded ; if it is not, he must be pay all due attention to the opinion of sir Philip discharged. Accordingly, the return

states, Yorke, aod lord chancellor Talbot, whereby that the slave departed and refused to serve ; they pledged themselves to the British planters, whereupon he was kept, to be sold abroad. Só for all the legal consequences of slaves coming high an act of dominion must be recognized by over to this kingdom or being baptized, recog- the law of the country where it is used. The nized by lord Hardwicke, sitting as chancellor power of a master over bis slave has been exou the 19th of October, 1749, that trover would tremely different, in different countries. The lie: that a notion had prevailed, if a negro state of slavery is of such a nature, that it is came over, or became a Christian, he was incapable of being introduced on any reasons, emancipated, but no ground in law: that he moral or political, but only by positive law, which and lord Talbot, when attorney and solicitor- preserves its force long after the reasons, occa. general, were of opioion, that no such claim for sion, and time itself from whence it was created, freedom was valid; that though the statute ofte- is erased from memory. It is so odious, that nures bad abolished villeios regardapt to a manor, nothing can be suffered to support it, but posiyet be did not conceive but that a man might still tive law. Whatever inconveniences, therefore, become a villein in gross, by confessing himself may follow from the decision, I cannot say this soch in open court. We are so well agreed, case is allowed or approved by the law of that we think there is no occasion of having it England; and therefore the black must be argued (as I intimated an intention at first,) discharged.

549. Proceedings in an Action by Mr. Anthony FABRIGAS, against

Lieutenant-General Mostyn, Governor of Minorca, for False Imprisonment and Banishment; first in the Common-Pleas, and afterwards in the King's-Bench: 14 GEORGE III. A. D 1773—1774.*

[The following Case is taken from the Trial, The Court being sat, the jury were called

wbicb was printed from the Notes in short- over, and the following were sworn to try the hand of Mr. Gurney, soon after the hearing. issue joined between the parties.

JURY. From the Address to the Bookseller, which preceded the Trial, it is plain, that Mr. Gur- Thomas Zachary, esq. Mr. Thomas Bowlby,

Mr. John Newball, ney was employed to take notes for the Thomas Ashley, esq.

David Powel, esq.

Mr. John King, plaintiff, and that the Trial was published by

Walter Eaver, esq.

Mr. James Smith, the plaintiff or his friends :t Former Edi- Mr. William Tomkyn, William Hurley, esq. tion.]

Mr. Gilbert Howard, Mr. James Selby.
In the Common Pleas, Guildhall.

Mr. Peckham. May it please your lordANTHONY PABRIGAS, gent. Plaintiff. JOAN ship, and you gentlemen of the jury, this is an Mostyn, esq. Defendant.,

action for an assault and false imprisonment,

brought by Anthony Fabrigas against John Counsel for the Plaintiff: – Mr. Serjeant Mostyn, esq. The plaintiff states in his declaGlynn, Mr. Lee, Mr. Grose, Mr. Peckham.

ration, that the defendant, on the 1st of SepCounsel for the Defendant.—Mr. Serjeant tember, 1771, with force and arms, made an Dary, Mr. Serjeant Burland, Mr. Serjeant assault upon him at Minorca and then and Walker, Mr. Buller.

there imprisoned bim, and caused him to be • See 2 Blackstone, 929. Cowp. 161. against lieutenant-general John Mostyn, go

+ The title of the proceedings first published, vernor of the island of Minorca, colonel of the being only the trial of the cause at Nisi Prius first regiment of dragoon guards, and one of the before Mr. Just. Gould, who sat for the chief grooms of his majesty's bed-chamber ; for justice of the Common Pleas, was thus ex False Imprisonment and Banishment from Mipressed :

norca to Carthagena in Spain. Tried before ** The Proceedings at large, in a Cause on Mr. Just, Gould, in the Court of Commonan Action brought by Anthony Fabrigas, gent. Pleas, in Guildhall, London, on the 18th of


carried from Minorca to Carthagena in Spain. to his damage at 10,0001. To this declaration There is a second count in the declaration, for the defendant has pleaded, Not Guilty; and an assault and false imprisonment, in wbich the for further plea, has admitted the charges in banishment is omitted. These injuries he lays the declaration mentioned, but justifies wbat be July, 1773. Containing the evidence derbatim siderable number of inbabitants, in a country as delivered by the witnesses; with all the governed by law, and which is part of the dospeeches and arguments of the counsel and of minions of the crown of Great Britain, should the court."

have had soine very urgent and apparent cause Before the Trial there was the following Ad- to make necessary that slavery wbich Englishdress to the Bookseller.

men abhor, and if it exists, must bave been es"I am very glad to find you are going to tablished by some particular provision. If it publish the trial between Fabrigas and Mostyn, had been said, that in the fort of St. Phillip's, as the knowledge of the particulars of this in- in time of actual siege, an absolute military goteresting cause must be wortby the attention vernment must prevail, the objects and the reaof the public.

sons could easily be understood. But to say " As I have passed a great part of my life that in time of profound peace not only the inin Minorca, and bave some knowledge of the habitants of fort St. Phillip's, but all

those of parties, I was induced from curiosity with many the arraval, which contains a large district of others to attend this trial at Guildhall

, where I country, with many hundred inhabitants, living was greatly surprised to hear the account given out of all reach of ibe garrison, should be subby governor Mostyn's witnesses, Mess. Wright ject not to military government, for that bas its and Mackellar, of the constitution and form of written laws and forms of trial, but to the abgovernment of that island.

solute will of the governor, without any law or “I did indeed expect that Mr. Fabrigas's trial

, is in itself so absurd, and so contradictory counsel would have called witnesses to contra- to every idea of reason, justice, and the spirit dict the very extraordinary account those gen- with which this country governs its foreigo dotlemen had given, which they might easily minions, tbat, I trust, my countrymen will not have done by any person who had the least believe such a monster exists in any part of knowledge of the matter. I suppose they this empire, without better proof than the indid not, either from thinking the subject im- formation of these gentlemen, material to their case, or perhaps to preserve

" I would not bave the reader think that this to Mr. Serj. Glynn the closure of the trial by strange idea originated in the brain of Mess. that most eloquent and masterly reply with Wright and Mackellar, for I know it is a fawbich it was concluded.

vourite point, which tbe governor of Minorca “ Whatever the motives of Mr. Fabrigas's has endeavoured to establish ; not so much, I counsel might be for leaving this account un believe, for the pleasure of exercising, absoluto contradicted, I think it very material that the authority, as on account of some good perquiworld should pot now be misled, as they would sites, which he enjoys, and which can be debe, should they read the evidence of these gen- fended on no other ground. tlemen, and not be informed of their mistakes ; “ To establish this, it has been endeavoured I call them mistakes, for bowever extraordinary to alter the ancient distribution of the districts some parts of their depositions may appear to or terminos of the island from four to five. an observant reader, I am unwilling to charge

“ The four terminos Cieutadella, Alayor, them with any other crime than ignorance. Marcadal, and Mahon, have their separate

“ I am therefore induced to trouble you with magistrates and jurisdictions, and comprehend this letter, that (if not too late) you may pub- the whole island. The arraval of St. Phillips lish it with the trial; my sole object is, that the was always a part of the termino of Mahon; public may be apprized of the misinformation in order therefore to establish the governor's given by these gentlemen. I do not expect claim, it became necessary to set up the arrathat the bare contradiction of an anonymous val of St. Phillip's as a separate and distinct person should overset the declarations upon oath termino. If this could be done, it ceased to be of two gentlemen given in open court

. All I within the jurisdiction of the magistrates of the mean is, to apprize the public of the truth, and island, who have power only in their four ter. to leave them to make such farther inquiry as minos, and accordingly, Mess. Wright and they shall think fit.

Mackellar advance, that there are five terminos • The purport of that part of the evidence instead of four ; but those wbo are acquainted given by those gentlemen, which I mean to with the island well know, that this is a inodern dispute, was, that a part of the island called invention; that in the records of the country, the arraval of St. Phillip's is not under the juris. there is not the least foundation for such an diction of the magistrates, nor governed by the idea ; on the contrary, that every proof of the same laws which prevail in the rest of the reverse exists. The inhabitants of the arraval island, but is under the sole authority of the are subject to the particular jurats of Mahon, governon, and has no law but his will and they differ in no respect from the other inhabipleasure.

tants of that termino, and the judges possess " It should seem that so very extraordinary and exercise the same jurisdiction and autho• constitution as absolute despotisma for a con- rity in the arraval, as they do in the other parts

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has done, by alledging that the plaintiff endea- | not guilty of those injuries; in the next, he has
voured to create a matiny among the inhabi. offered this justification for himself, that the
tanls of Minorca, whereupon the defendant, as plaintiff, Mr. Fabrigas, was guilty of practices
governor, was obliged to seize the plaintiff, to tending to sedition, and that Mr. Mostyn, for
confine bim six days in prison, and then to ba- such misbehaviour, by his sole authority as
nish bim to Carthagena, as it was lawful for governor, thought proper to inflict upou bid as
him to do. To this plea the plaintiff replies, a punishment, what Mr. Fabrigas, io bis de-
and says, that the defendant did assault, impri- claration, complains of as a grievance. This
son, and banish bim of his own wrong, and Mr. Mostyn takes upon him to insist, in an
without any such cause as he has above al- | English court of justice, is the justifiable ex-
- ledged, and thereupon issue is joined. This

, ercise of an authority derived from the crown gentlemen, is the nature of the pleadings. Mr. of England. And the facts which he underSerjeant Glyon will open to you the facts on takes thus to justify, are, in the first place, à · which our declaration is founded, and if we length of severe imprisonment upon a native of support it by evidence, we shall be entitled 10 the island of Minorca, a subject of Great Bri. your verdict, with such damages as the injury tain, living under the protection of the English requires.

laws; and, secondly, by his sole authority,

without the intervention of any judicature, the Serj. Glynn. May it please your lordship, sending bim into exile into the dominions of a and you gentlemen of the jury,

1 am of coun- foreign prioce. Gentlemen, some observations -sel in this cause for the plaintiff

. Gentlemen, must strike you upon the very state of this this is an action that Mr. Fabrigas, a native and plea ; they must alarm you, and you must be inhabitant of the island of Minorca, has brought anxious to know the particulars of that case, to against the defendant, Mr. Mostyn, bis majesty's which, in the sense of any man who bas regovernor in that island, for assaulting, false im- ceived' his education in this country, or ever prisoning, and banishing him to a foreign coun conversed with Englisbmen, it can be applied try, the dominions of the king of Spain. Mr.

, ,

will Mostyn has, in the first place, pleaded that he is shortly state to you :-Mr. Fabrigas is a gen

tleman of the island of Minorca, of as good a
of the island, which could not be the case, if condition as any inhabitant of that island, of as
the claim set up by the governor really existed. fair and uoblemished a character too as that

“ No proof whatever has been or can be island produces. It is however enough, for
produced that this claim has any foundation;
por indeed did Mess. Wright and Mackellar at- England has not given them others, it is true
tempt to give any but their own assertions. the Spanish laws do prevail in Minorca, both in
The only thing that bad the least similitude to civil and criminal matters, among themselves :
proof, was their saying, that in one instance but it is equally true that they have the pro-
the officer acting as coroner to examine a tection of the English laws against their go-
corpse that bad met with a violent death in the vernor, who cannot be ameoable to their local
arraval, asked the governor's leave before be laws, and that however despotically a Spanish

governor may formerly have acted, it cannot
“ This fact I do not pretend to dispate; it be the law of Spain, or of any country (because
proves nothing; and was evidently only a mark it is contrary to natural justice) that a man
of respect, which it is no wonder magistrates should be condemned and punished without
in that island pay to a governor who really has either trial or hearing:
so much power. But to have made this amount “ It would have been easy for governor
to any thing like proof, it should have been Mostyn, if Mr. Fabrigas bad committed a
shewo, that the like attention was not paid to crime, to have followed the mode of proceed-
the governor at Mabon, and in other parts of ing established there in criminal cases, which
the island. The truth is, that the inhabitants is for the advocate fiscal to prosecute in the
are so dependant on the military, that I have court of royal government, where the chief
known the same civility shewn in another part justice criminal is the judge.
of the island to the officer who happened to “If I was not afraid of swelling this letter
command there, but certainly without any in- to too great a length, I should make more re-
tention of surrendering to him their authority marks on what passed at this trial, and point
as magistrates.

out many more instances of power wujustifiably
“ Mess. Wright and Mackellar also said, assumed by tbe governors. But I hope that
that the Minorquins claimed to be governed what appears from this publication will be suf-
sometimes by the English, and sometimes hy ficient to induce administration to consider the
the Spanish laws, as suited best for the mo state of this island, and give the inhabitants
ment; but insinuated that the Spanish laws some better security for the safety of their per-
prevailed, and that by them the governor had sons, and enjoymeot of their property ; for,
a right by bis sole authority to banish. exclusive of the meanpess there is in ill using

“ The fact most undoubtedly is, that Mic those who cannot resist, it is undoubtedly the borca, a conquered country, preserves its an best policy, for the honour aud stability of our cient (the Spanish) laws, till the conqueror empire, to make all its dependencies bappy." cbuses to give them others; and therefore as Former Edition.

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this present purpose, to say that Mr. Fabrigas , sufferings determine with it; bis removal from is a descendant of the antient inhabitants of the dungeon was only a substitute of one speMinorca : that he lived there under the capitu- cies of cruelty in the place of another: for ihe lated rights: that, as such, the national faith was instant he was taken from prison, he was carpledged for his enjoyment of those rights that his ried by the same arbitrary and despotic power ancestors capitulated for; but what is of more on board a ship, without any previous notice, consideration, being born in Minorca since its without any time allowed him to prepare for subjection to the crown of England, he was a his departure, without the ordinary visit or free-born subject of England, and claimed, as comfort of friends and acquaintavce, from his birth-right, the privileges due to that cha- whom he was probably to be separated for ever. racter, and the protection of the English laws. Thus was this man taken from his native counThere was a particular stipulation upon the try, and the insupportable hardships of a dunsurrender of the island, that every occupier or geon were followed by an entire expulsion from possessor of land should be intitled, under cer- his country, and every thing that was dear to tain regulations and restrictions, to the produce him : he was sent instantly on board a ship by of his lands, and to such profit as by 'bis in- force, and carried to Carthagena, a foreign dustry he could make of them. Úpon that country, under the dominion of the crown of ground a dispute arose, to which alone can be Spain. This is the nature of Mr. Fabrigas's imputed the displeasure of Mr. Mostyn to case. Now, gentlemen, for a moment, let me wards the plaintiff, and the treatment be re remind you of the pretence under which this ceived from bim, in the progress of it. Mr. imprisonment is inflicted. It is said Mr. FaMostyn, as governor, was appealed to, and his brigas excited sedition, or attempted to excite good-nature appeared to be so serviceable to sedition ; that he acted or spoke in a turbulent the adversary of Mr. Fabrigas, that early in and mutinous manner; and therefore that the the morning Mr. Fabrigas was suddenly taken governor, as his plea states he was well authofrom bis house by a file of soldiers, and by rized to do, committed him to prison, and them conducted to a dungeon, unaccused, un banished him out of the island; or rather comtried, unconvicted. Thus, without any form mitted bim to prison for the purpose of banishof judicial proceedings, this gentleman, who ing him out of the island, for I believe that is then lived in esteem in the island, finds him the true state of his plea. Gentlemen, you self all of a sudden committed to a dungeon, a would justly accuse me of a great and wanton dungeon that was made use of only for the waste of your time, if I should say a great deal most dangerous malefactors, and that only for the purpose of exculpating Mr. Fabrigas when they were ready to receive the last of from the charge and imputation that is thrown punishments. In this gloomy, damp, dismal, upon him in this place, because I am persuaded and horrid dungeon, was this man detained that you, an English jury, if you were sitting without any previous accusation, without any in judicature upon the case of confessedly the call upon him to make his defence, or being vilest of offenders, you would not suffer the informed there was any crime or offence that atrocity of the offence to mitigate that censure was alledged against him, and without any and animadversion wbich is due to a behaviour 'notice either to him or his family. When he like this of the governor's. In private justice found himself in prison, there was humanity to the character of Mr. Fabrigas, and not as the enough in the breast of the keeper of that pri- least relating to any question here to be tried, son to accommodate him with a bed ; but it gentlemen, I will state to you upon what seems that accommodation was by the power grounds and pretence this mutiny is alleged of that island thought too much for him, and against Mr. Fabrigas. Mr. Fabrigas, as I have the bed was taken from bim; a check' was told you, claimed, among all the other in babigiven to the lenity of the keeper. No notice tants and possessors of lands in the island, a having been given to his family that they right of selling the produce of his lands, under might visit or administer comfort to him; he certain restrictions.' The produce of the lands did, by humble request, desire that bis wife is chiefly wine: Mr. Fabrigas had a considermight be permitted to visit him; that consola- able quantity. His majesty, by his proclamation too was denied bim. In this manner was tion, bad given free liberty to the inhabitants Mr. Fabrigas deprived of his liberty for a con of that part of the island where Mr. Fabrigas siderable time.

It is unnecessary for me to lived, to sell their wines, the price being first state, particularly the precise time that this settled by the authority of the governor :-that imprisonment continued ; that you will bear price is called the afforation price. Notwithfrom the witnesses. Nor does a case like this standing his majesty's proclamation, by an act depend upon minutes, hours, or days, but this and order, not of governor Mostyn, but of his is the nature and kind of imprisonment that lieutenant-governor, there was a prohibition Mr. Pabrigas endured: so closely watched that no wine should be sold without the immethat no man could bare access to him, deprived diate authority of the mustastaph. An appliof the consolation of bis family, severed from cation therefore, by Mr. Fabrigas, was made all communication with bis friends, relations, or to this officer, either to permit him to sell his acquaintance, that could administer the least wines under the afforation price, which would confort to him. For several days did this man be for the general relief and benefit of the continue under this imprisonment, nor did his islanders, and of the garrison, or that be him

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self would buy it at a fixed price. This officer / gentlemen, we 'now presume to treat as the refused to comply with either : Mr. Fabrigas acts of governor Mostyo; and the governor therefore was reduced to the necessity of mak- says, be is justified in so doing, as governor of jog an humble application to governor Mostyo, Minorca. I should be glad to know upon what to permit him this alternative, either to sell his idea of justice the governor grounds that prewine under a certain afforation and regulated tence. I conceive, that in this case, there canprice, or that the government would buy his not be the least colour or pretence of any judi. wide of him for their use, or the use of the garcial examination, or the least form of judicial rison. This petition was thought reasonable at proceedings. Governor Mostyn, after having first, and bad a kind answer; it was received, been guilty of this outrage to the plaintiff, and it appears to bave been taken into consi. would have acted much better, if he had not deration, but nothing was done in consequence added this insult to the laws of bis country, by of it. Mr. Fabrigas therefore repeats his ap- assuming an authority incompatible with the plication, and he receives encouragement to least possible idea of justice that can be enterexpect that the reasonableness of his petition tained in this or in any country whatsoever. would be taken into consideration, and ibat he Gentlemen, if governor Mostyn complains that should be at liberty to sell the produce of his justice is not done to his defence by bis plea, land. But, gentlemen, at last this answer was ibat he is fettered and embarrassed by it, and given to Mr. Pabrigas: that if it appeared to could now justify his conduct upon better be the sense of a considerable pumber of the grounds, we will freely give him the opportuiobabitants of the island, that it was for their vity of doing it; he shall do it in what chabenefit that such permission should be given, racter he thinks proper. If he bas acted under bis application should be complied with. Mr. the colour of any judicial proceedings in civil Fabrigas tben prepares such a petition; he gets judicature, let those proceedings be produced, it signed, and be presents it to governor Mostyn. Let him desert and abandon the shameful plea that Now, gentlemen, here it is impossible to state he has presented; be bas even our liberty to do what passed between the parties. If it can be it. If the governor means to be justified in his pretended that there was any thing mutinous, military character, I need not tell you, gentlemenacing, or improper, in this last petition, Í men, that it is necessary in that character, that presume that petition will be produced to you, there should be judicial proceedings likewise and it will speak for itself; but some indigna- of a military court of justice. I will be bold tion was conceived by governor Mostyn against to say, that the idea governor Mostyo bas the plaintiff, Mr. Fabrigas, which produced adopted, tbat the lives, fortunes, and being of that strange, unaccountable, unwarrantable, the inhabitants of the island of Minorca are at and alarming conduct, which we now, by evi- his mercy, and that by his sole authority he dence, iinpute to Mr. Mostyn. For gentle can inflict bonds and imprisonment on any men, instantly upon this, Mr. Fabrigas is con inhabitant of that island, is the single idea of ducted in the manner before-mentioned to that governor Mostyo ; and I say the governor horrible dungeon, where he continues for a does not, in this case, talk like a military man, considerable time under such orders as I have for his ideas are as foreign to the potions of a Kated to you, till he was hurried on board a soldier, as of a lawyer. Gentlemen, this is ship, and was conveyed to Carthagena in Spain. the nature of the case that we shall offer to Here, for the first time, he receives intelli- you, and which we shall produce in proof to gence of what was the provocation that he you against governor Mostyn: an imprisongave, what was the ground of such treatment ment, if it had been attended with all the cirof bim, what charge was imputed to him, by cumstances of comfort that could have been what authority he was so detained and so administered to a person in that situation, untreated : for here appears a letter under the justifiable, and without colour or pretence of hand of governor Mostyn, avowing this act, legal authority, sufficient to entitle ihis gentleand telling bim that he thought it necessary man to call for considerable damages from a and expedient, for the punishment of his of verdict of a jury: a banishment into a foreign fence, to send him into exile, and to direct him country of a subject of England, intitled to be to be conveyed to Carthagena in Spain. Here protected, to whom the laws cannot be denied then you find the governor avowing the whole; without breach of public faith, and a dan. and if be did not arow the whole, you could gerous wound to the general system of our have no doubt onder what authority these things constitutional liberties. Thus, by the sole auwere done; because you will hear from all, thority of governor Mostyo, without pretence that they cannot be done but under the author of judicial examination, was Mr. Fabrigas sent rity of the governor. Then, gentlemen, the into banishment. If all other circuinstances inprisonment, and the sending this man into were away, the being sent out of his native exile, are the acts of governor Mostyn. The country by an arbitrary act of the governor of imprisonment under such strange aggravating that island, is surely ground enough to call for circumstances of horror and ignomioy, and the the most considerable damages. But, gentlesending bim without notice, without time for men, you are to add to it every

circumstance preparation, without giving bim the opportu- of discomfort. He was, during the whole nity of paying the least attention to the con time of his imprisonment, kept in a gloomy cerns of his estate and family, into exile; these, dungeon ; no circumstance o ignominy that

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