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From the yarboc Library 




lEUini-SIAIIiflRDaVNKHtVtgVERSnY 






y 



■•-^ 



State Trials. 



VOL. XX. 



COMPLETE COLLECTION 



• •!.•» « •? J r, 



• « s • a a « 



. • --. . ^ . • .-OF : • • • • - -• : !• 






State 




AND 



PROCEEDINGS FOR HIGH TREASON AND 01 

CRIMES AND MISDEMEANORS 



FROM THE 



EARLIEST PERIOD TO THE PRESENT tiME, 



WITH XOTES AKD OTHER ILLUSTRATIO 

COMPILED BY 

T. B. HOWELL, Esq. F.R.S. P.S.A. 



VOL. XX. 

A.D. 1771—1777. 



LONDON: 

PRINTED BY T. C. HANSARD, PETERBOROUGH-COURT, FLEET-STREET : 

FORU)NOMAN, HUROT, REE8, ORME, & BROWN; J.RICHARDSON; BLACK, 
PARRY, & CO.; £. JEFFERY ; J. HATCHARD; £. LLOYD; BUDD 6i 
CALKIN; J. FAULDER; J. BOOKER; CRADOCK & JOY; R. H. EYANi; 
J. BOOTH ; AND T. C. HANSARD. 

1814. 



* • • 



t'^'-.^.-v^ 



.^iL 



ADVERTISEMENT, 



IN this Volume the Cases reported in the last FoUo Mdiiion 
rftke State Trials are brought to a termination; the Case 
•/ Home, p. 651^ being the last contained in that Collection. 
After which commences the New Series of Proceedings, con^ 
Hmung that Edition to the present time. 

In order to render the present Work more applicable to 
Hme Law Books in which references are made to the FoUq 
MUkm, a Table of Paralisl Hmfhrmkcm, exhibiting at 
jtrtl nght the Pages in the present Edition corresponding 
wilk those of the Folio (fries, is now in compilation, and will be 
fublished wUh the next Volume. 

Fm. 1814. 






»-. • « 



TABLE OF CONTENTS 



• • • 



TO 

VOLUME XX. 



^u 



REIGN OP KING GEORGE THE THIRD. 

i&. The Case of JAMES SOMMERSETT, a Negro, on a Habeas 

Corpus, A. D. 1771-1772 1 

Addenda to this Case • « 1369 

H9. Proceedings in an Action by Mr. ANTHONY FABRIQAS, against 
Lieutenant-General MOSTYN, Governor of Minorca, for False 
Imprisonment afad Banishment, a. d. 1773-1774 » 88 

KO. The Case of the Inland of Grenada ; in relation to the Pajrment of 
Four and one-half in the Hundred of Goods exported therefrom ; 
between ALEXANDER CAMPBELL, esq. Plaintiff, and WIL- 
LIAM HALL, esq. Defendant, a.d. 1774 239 

Addenda to this Case •; 1387 

Sbl. The Trial of ELIZABETH, calling herself Duchess Dowager of 

KINGSTON, for Bigamy, a. d. 177(S 355 

SS2. Proceedings against JOHN HORNE, Clerk, on an Information in 

the King 6-Bench by the Attorney-General, for a Libel, a. d. 1777 651 

Addenda to this Case • • 13S9 

*«* This is ike concluding Article of the Folio Edition. 



COMMENCEMENT OF THE NEW- SERIES. 

Si The Trial of JOHN ALMON, Bookseller, upon an Information, 
filed Ex-Officio, by William De Grey, esq. his Majesty's Attor- 
ney-General, for selling Junius's Letter to the King, a. d. 1770... 803 

5M. The Trial of JOHN MILLER, Printer, before Lord Mansfield, 
and a Special Jury of Citizens of London, at Guildhall, for re- 
prioting Junius's Letter to the King, in the London Evening Post, 
of the 19th of December, 1769, a. d. 1770 870 



TABLE OF CONTENTS. 

Page 
Kb. The Caie of HENRY SAMPSON WOODFAIX,^ an InTor- 

matioD, filed bj the Attomej-General, for publishiiig Junius'i 

Letter to the King, ▲. d. 1770 895 

Sb6. The Trial of Maha Rajah NUNDOCOMAR, Bahader, for Forgery. 

At Calcutta, in the Fkrovince of Bengal, a. d. 1775 • 9M 

567. The Trial of JOSEPH FOWKE, FRANCIS FOWKE, Maha 
lajrfi NUNDOCOMAB, aad ROT lADA CHURN, for a 
Conspin^ against Warren Hastings, esq. Governor-General of 
die Presidency of Fort ^TtHliam in BengaL At Calcutta or Fort 
William in Bengal aforesaid, a. d. 1775 • • 1078 

.£58. The Trial of JOSEPH FOWKE, Maha Rajah NUNDOCOMAR, 
and ROT RADA CHURN, for a Conspiracy agakist Richard 
Barwell, esq. one of the MenAers of the Simreme Council for the 
Province of UengaL At Calcutta or Fort Wi&iam, in Bengal 
afinesaid, a. d. 1775 1186 



fl59. The Trials on the Informations whidb, in punuance of an Order of 
the House of Commons, were filed by his M^esty's Attorney 
General against RICHARD SMITH and THOMAS BRAND 
HOLLIS, esqrs. for .having been (haSlij of notorioas Bribery, . ** 
and thereby procuring themselves to be elected and returned 
Burgesses to serve in Pariiament for the Borough of Rindon, 
A. D. 1776 .• 1288 ; 

• 

MO. The Trial of ao ActiM brought by STEPHEN S AYRE» esq. 
against the Right Hon. WILLIAM HENRT Earl of ROCH- 
FORD, one of his Majesty's most Hon. Privy Council, and 
tberetofoie one of hn Majea^'s Princ^al Seeretaries of State, for 
False Imprisonment, a.o. 1776.«. 1286 

661. The Trial of JAMES HILL, otherwise JAMES HINDE, other- 
wise JAMES ACTZEN or AITKEN, (known also by the 
name of John the Painter) for feloniously, wilfully, and malici« 
ously setting Fire to the Rope House in hn Majesty's Dock Yard 
at Portsmouth, A. D. 1777 «.....••...• ^..... 1318 



■ \ 



A COMPLETE COLLECTION 

OF 

STATE TRIALS, 



548. The Case of Jahes Somhersctt, a Negro, on a Habeas 
Corpus,* KingVBench : 12 Geouge III. a. d. 1771-72. 



Of thia Gate only a Statement of the Pacts, 
tnd Mr. HBi^nve's learned Argmnent wen 
inMTted ID the former edition of tkis Work. 
1 biTe here added the olber Aigumeola, aad 
lilt Jud^meut of the Court, from Lofffa Re- 
perls, m which is a Note of the Case noder 
thcnameof Sammenett againat Stewarl. 

0> ibe 3il of December 1771, nffidtTils were 
muk k/ Thomaa Walkhn, Elizabeth Cade, 

„...._ M__i_._. .1... I a ^ J 



* The TCT7 important (natters which thii 
OB iarolTcd, Tiz. fir»t, The rigbia over the 
pnM «f K negro reaident here, claimed by 
MMitr penioo aa the owner of the negro ; 
iW. n|jpo9ing such righta to e)Uat, aecoDilly, 
Tie uicnt of tbem ; and thirdly. The meaua 
•f mfarcing' tbem, were. 1 belieTs, nerer, ex- 
apt in this ea»e, made tile lubjecl of a luit at 
hw in England. But in Scotland two caaa 
of ihi* tort have occurred before the Court ol 
Kmiod ; 1, That of Sheildani^aioit Sbeddtn, 
• a. IT&6 ; 3, That of Knight agwnat Wed- 
4(tli'nni, a. D. 177S— 1778. 

or these two cases the followlne reports are 
fnnied from the > Dictiooary of Decisions,' lit. 
' aare,' *oI. 33, pp. 14,545, e( itq. : 



" * NecTO, who hail been boaght in \ 
fiaia, anil brought to Britain to be tauelit * 
trtde, anit who liad been baptized in Britain, 
biiinif rUimnl his liberty, againit his master 
Rqben Slitd'lan, who had put him on board a 
itiip, to carry hioiback to Virginia, llif Liirds 
a^'pniain) counsel for t\x negfto, and ordered 
BKrnorials, and afterwarila a hearin); in pre 
■vriKc, upon the refpeclive cluima of liberty 
aul >eriitude by the master and Ibe negro. 

>■ But, durintc the hearing in presence, the 
•q[ra died ; *o the point wu not dgteriniiied." 
VOL. 3U. 



mander, lyi , 

Jamaica ; and lord Manstield,aD an apphcation 

supported by these sfiidavits, allowed a wrilr 

iif Habeas Corpot, direoteil to Mr. Knowlea, 

sod re<]uiring bim to return (be body of 8om- 

■nenyett before his lotdsbip, witii the cause of 

itetainer. 

Mr. Rnowlea on the 9th of December pro- 
Jnced the body of Sommeraett before lord 
MansQeld, and relumed for caase of detainer, 
ihat Sommersett was the negro slate of Char 



ihat Sommersett was the n^o slaf t 
SteuBTt, esq. who bad dehrered E 



" Tlie conimaoder of a Tcssrt, in the African 
trade, baring ini|iorted a cargo of negroes into 
Jamaica, sold Joseph Knight, one of tlieoa, aa 
a slave, to Mr. Wedderbum. Kuight was 
then a boy, seemingly about twelve or tbirleea 
years of age. 

" Some time after, Mr. Wedderbum came 
orer to Scotland, and brought (his negro aloi^ 
will) liio), as a personal serrant. 

" The negro continued to serf e bim for seve- 
ral years, without murmuring, and married ia 
the cDuolry. But, afteinardi, prompted to as- 
sert bis freedom, he look the resolution of 
(earing Mr, Wedtlrrburo's service, who, being 
inlbrmed of it, got biih apprehended, on a war- 
rant of Ibe Justices of pe:ice. Knight, un hia 
eiaminaliuD, acknowledged bis puipose. The 
juBlici|f»Hbund ' the petitioner entitled (a 
.'■Amglii's services, and. iliat he must continiM 
' as before.' 

■< Knigiit then appticd to the sheriff of ilie 
county, (Perthshire), by jietilion, selling forth, 

■ Tbst Mr. Wedderburn iuuistcd on bis con- 

■ tinning a personal serranl with him,' iind 
prayed the sheriff lo And, ' Tbnl he cannot bo 

.... 11. ^f slavery, or compelled 

i and lo discbarge Mr. 
yelitiifpfr 



3] 



12 GEORGE III. 



The Negro Case. 



[4 



into Nr. Koowlcs's custody, in order to carry firtnia, and had afterwards brooght him into 
bim to Jamaica, and there sell him as a slave. ! Eng^land, whfre he left bis master's service; 



Affidavits were also made by Sir. Steuart and j and that his refusinfif to return, was the 

two other {rentlemen, to prove that Mr. Stenart j sion of his beings carried onboard Hr. Knowlea'a 

had purchased Sommersett as a slave in Vir- ; ship. 



** Afler some procedure in this process, the ; in all the ancient nations, and in all the modera 
sberiiT found, * That the state of slavery is not European nations, for many at^es. In lonie 

* recognized by the Inns of this kingdom, and is ( of them it still remains; and in none of then 

* inconsistent with the principles thi^eof ; that j has it been abolished by positive enactments, de- 
< the re^rulations in Jamaica, conccrniniif slaves, j clnring it unjust and iilej^al, but gone into dis- 



' do not extend to this kin{;^om ; and repelled 
* the defender's claim to a perpetual service.' 
Mr. Wedderhurn havin{f reclaimed, the sheriff 
found, * That perpetual service, without 
' wa^res, is slavery ; and therefore adhered.* 

** The defender removed the cause into the 
court by advocation. The lord ordinary took 
it to report, npon informations. Beinj; a ques- 
tion of general im|M)rtance, the Court ordered 
a hearin(r in presence, and afterwards informa- 
tions of new, upon which it was adiised. 

«* Pleaded Jor the Master: That be had a 
right either to the perpetual service of the 
negrro in Ibis country, or to send him back to 
tbo plantations from which he was brought. 
His claim over the negro, to this extent, was 
argued on the tbllowing grounds : 

** The productions of the colonies, ever 
since they were settled, have been cultivated 
by the means of negro slaves imported from 
the coast of Africa. The supply ing the colo- 
nies with these slaves has become an extensive 
trade; without which, the valuable objects of 
commerce, now furnished by the plantations, 
could not be cultivated. British statutes have 
given sanction to this trade, and reco^fnized the 
property of the master in such slaves ; lOtli 
W. 3, c. 26 ; 5th Geo. 2, c. 7 ; 23J Geo. 
9, c. 3. 

** The property which, in Jamaica, was es- 
tablished m the master over the negro, under 



use by degrees, in consequence of many difle- 
rent causes. Though, therefore, the maniei- 
pal law of this country does not now admit of 
this state of slavery in the persons of citiacMb 
yet, where for^gners, in that state, are broogfit 
into the conntry , the right of their masters ofW 
them ought not to lie annihilated. 

*' In this case, the master is not insisting §k 
the exercise of any n'cforous |)owef8. He o^f. 
demands, that he sbail be intiiled to the peiso* 
nal services of the negro, in this country, dar- 
ing life. His right to this extent, et lemt, k , 
not immoral or unjust ; nor is it even icfio- 
bated by the municipal law of this coonlry. 
A person may bind himself to a service for life; 
Ersk. Inst, hi! l,t. 7, § 62. 

" But, in the last place, if this is denied, Ihs . 
master roust, at least, be permitted to ooBfd 
the negro to return to the plantations, firM 
whence he was brought; otherwise he is ]Mf 
tirely forfeited of his right. 

" Some cases from the English lav-boohs > 
were adduced to show, tbat, in Englsnd, ths 
master's right of property in his negro remsiH -: 
after be is brought into that country ; BaM 
contra Penny, 1677 ; Keble's Rep, p. S| 
p. 785. Gilfy contra Cleves; 5tli WUEmi , 
and Mary, lord Unymond, Rep. 5, p. I4lf% i 
and the opinion of two very erament UwyoH| i 
in the year 1729, sir Philip Vorke, then aUsi^ '^ 
ney-general, and !\Ir. Talbot, solicitor- geosral^ ;. 
in these words : * >Ve are of opiniooi that IS i 

* slave, by coming from the West-IndiiB^ ' 

* either with or nithout his master, to 



these statutes, and the municipal law there, 
cannot he lost by a mere change of place. On 

Erinciples of equity, rights acquiretl under the 
iws of foreign countries are supported and I * Britain or Ireland, doth not become free ; 
inforced by the courts of law here. A right of * that his master's property or right in I 
property will be sustained in every qountry * not thereby determineil or varied ; and 
where the subject of it may come. 'The status * tisin doth ni»t bestow freedom on bim, 
of |)ersi>ns attend them wherever they go ; | ' make any altenuion in his temporal cood 
Huber, hb. 1, t. 3, c. 12. ! * in these kingdoms. U'e are aJso of oninini, 

*' The law of the colonies is not to be con- | * that the master may legally compel nia H 
sidered as unjust, in authorizing this coudition ' return to the plantations.' 
of slavery. The statutes which encourage the " Anstceredjhr the Negro : The only litlaaB 
African trade show, that the lecislature does which any right of dominion is claiioed Ofsr 
not look on it in that light. The state of ' this African, is the institution of the roaaidpal 
slavery is not contrary to the law of nations. , law of Jamaica, which authoruEea Uieslavwy 
IVriters upon that law have enumerated seve- • of Africans brought into that island, TJuitlr 
ral just and lawful origins of slavery ; such as ■ that law, this negro, a child when brought iola 
contract, conquest in a just war, and punish- ; Jamaica, while he remained there, was wtk^ 
ment of crimes. In cases where slavery is au- fjected to the unjust dominion which itgifcs 
thorizinl by the laws of Jamaica, it must be pre- ! over these foreigners ; but the municipal law 
snnied to* have proceeded on a lawful origin, of the colonies has no authority in thb e ountry u 
The municipal law of no country will be pre- ; On grounds of equity, the Coon, in soow 
sunied unjust. ! cases, gives eflecl to the laws of ether coMh 

** A state of slavery has been universally re- ' tries ; but the law of Jamaica, in this instaKib 
Mived in the practice of natioDS, It took place will not be supported by the Court ; bscamtt 

i 



5] 



The Negro' Case. 



A. D. 1771. 



[6 



Laid Mam$field chniioff to refer the matlar 
tD Ike teermiiMtion of ttie court of King's- 
bdck, SMnmeroett wiib sureties was bi>uoci in 
nisaiiee for his appearsDce there on the 
[day of the next Hilary term ; and his 

■ifyHpiPt to tlie first principles of morality 





•* SabordinattoD, to a certain extent, is ne* 
tmmy ; bat there are certain bounds, beyond 
vbidif if any institution, subjecting one indi- 
fital to anolher, should go, the injustice and 
mlity of It cannot admit of a doubt, 
is tlie institution of slavery, depriving 
of the most essential rights that attend 
ezisieace, and which are of a nature that 
not of any equivalent to be ^iven for 
ibca. The most express consent, given in a 
ffdonlary contract, cannot authoriie tne assum- 
m^ of tliese rights, or bind the consenting party 
Is sidbmit to the condition of a slave. A stipu- 
of tbat kind affords intrinsic evidence of 
judue advantage taken, and is therefore 

It to Toid the contract. 
** Bat, although it were justifiable to admit 
if a sbvery proceeding on a title of contract, 
t, or of punishment, the law of Ja- 
would not be the less unjust. In sub- 
the Africans to slavery, that law re- 
Mcs no title under any of these grounds. 
The drenmstancc, that the negroes are brought 
iats Jamaica, is all that is requisite to fix on 
IbiB indiacrimiuately the condition of slavery. 
It iR, therefore, a slavery established on force 
aad osdrpntion alone, which no writer on the 
k« of nations has vindicated as a justifiable 
of slavery. 
** If the law of Jamaica had made any dis- 
BCtisB, or required any title to the slavery of 
1 ifiian, this negro would never have been 
by it to that state. Being a child 
he was brought into Jamaica, he could 
into DO contract, commit no crime, and 
cannot give a right to kill or enslave 
cwUrcn. 

" The means by which those who carried 
dlii child from his own country got him into 
Ihcir bands, cannot be known ; because the 
bv of Jamaica makes no inquiry into that cir- 
coBsiance. But, whether he was ensnared, 
ar bought from his |>areDts, the iniquity is the 
Siow. — That a state of slavery has been ad - 
nitled of in many nations, does not render it 
ins anjust. Child -murder, and other crimes 
if a deep dye, have been auihorlbed by the 
lavs of different states. Tyranny, and all 
sms of oppression, might be vindicated on the 
Mine grounds. — iNeiiher can the advantages 
pnicured to this country, by the slavery of ihe 
Mfrues, be heai kened to, aa any argument in 
tkii qnention, as to the justice or it. Oppres- 
■Mo and iniquity are not palliated by the gain 
sodadvautage acquired to theauthont of them. 
boi ibe ex|iedieucy of the institution, even for 
Ike subjects of Great Britain, is much doubted 
•f by those who are best acquainted with the 
tttta of the colonies ; and soma culightened 



lordship allowed till that day for settling the 
form of the return to the Halieas Corpus. Ac- 
cordingly on tbat day Sommersett appeared in 
the court of King's- bench, and then the follow- 
ing return was read : 

men of modern times have thought, that augar 
and tobacco might be cultivated without tht 
slavery of negroes. 

*' The dominion, therefore, given by the 
law of Jamaica over the pui-suer, a foreigner 
there, being unjust, can receive no aid from 
the lawa of this country. The modificatiun 
proposed of this claim of alavery, makes no 
difierence on the merits of the question. It is 
plain, that, to give the defender any right over 
the pursuer, the pobitive law of Jamaica muat 
always be resorted to ; consequently, the ques- 
tion recurs, Whether that law ought to be en- 
forced beyond its territory ? But a service for 
life, without wages, is, in fact, slavery. The 
law of Scotland would not support a voluntary 
contract in these terms ; and, even where wages 
are stipulated, such a contract has been voided 
by the Court ; Allan and Mearns contra Skene 
and Burnet, No. 5, p. 9454, voce Pactum 
lllicitum. 

'* The answer was given to the other claim, 
of sending the negro out of this country, with- 
out his consent, tbat it supposes the (fominion 
given over the pursuer by the law of Jamaica 
to be just. The negro is likewise protected 
against this by the statute 1701, c. 6, which 
expressly prohibits the carrying aiiy persons 
out of the kingdom without their consent. 
The words are general, and apply to all per- 
sons witlyn the realm. 

** In support of this argument for the negro, 
authorities of French writers were adduced, to 
show, that formerly, by the lavis of France, 
negroes brought into that couutry from tlie 
plantations became free. This was their law, 
until lately, that, by special edicts, some alter- 
ations were made u|H)n it; Denissrt, tom. 3, 
V. Negro. On the law of England, several 
cases were mentioned, in which different 
judges had expressed opinions, that a negro 
coming into England is free there ; 1 Salk. 
666, Hmhh contra Brown and Cooper ; Shanley 
contra Nalvey, in Chancery 1762 ; Har- 
grave's Arg. p. 58. 

" But the late case of Sommersett, the ne- 
gro, decided in the Kin^'M-beuch, in the year 
1772, was chiefly relied on, and said to be in 
point; at least upon this question. Whether 
the negro could be sent out of England ? 

*' The Court were of opinion, that the do- 
minion assumed over thisi negro, under the law 
of Jamaica, being unjust, could not be sup- 
ported in tliis country to any extent : that, 
therefore, the defender had no right to tlie 
negro's service for any space of time, nor to 
send him out of the country against his con- 
sent : that the negro was likewise protected 
under the act 1701, c. 6. [The * Act for pre- 

* venting wrongous imprisonment, and u{f:iin*(t 

* undue delays in Trials,' more particularly 



7] 



12 GEORGE III. 



The Negro Case, 



t» 



*< I, Jolin Knowleff, cominfuider of the Tessel 
calleil the Ann aud Blary in Uic writ hereunto 
annexed, do inust huiubly certify and return to 
our present mo^t serene so?ereign the king^ ; that 

mentiuued l;elow] from being sent out of the 
country a^aini«t his cousenL^The judgmeuts 
of the dheriff were approved of, and the Court 

* reiuiUed tlie cause simpUciterJ " 

I have been favoured i« iili the use of six 

* Memorials' or ' Informations,' which in the 
course of these tHo litigations were delivered 
into the Court of Session. Five of them appear 
to have been iirepared by men of very high 
eminence in their profession, one for Sbeddan 
the negro by air David Dairy mple, aiWr* 
wanls a jnilge with the title of lord Hailes ; 
two ibr Knight the negro, by Mr. M'Lourin, 
aAer wards lord Dreghom, andMr.Maconochie, 
now lord Mcadonbank, and two for Wedder- 
burn (Knight's maj*ter), by Mr. Ferguson, af- 
terwards lord Pitfonr, and Mr. Cnllen, after- 
wards lord Culleo, res|)ective)y : they display 
a copiousness and variety of curious learning, 
ingenious reasoning, and acute argumentation, 
intimately connected with the case now be* 
fore us. 

With respect to < Memorials' or * Informa- 
tions,' in causes depending in the Court of Ses- 
sion, aud to the general course of proceeding 
in that court, see the Edinburgh Review for 
January J 807. For the alterations which in 
the vear 1808 were made in the constitution 
of that court, see stat. 48 G. 3. c. 151. 

Mr. Barrington, in his Observations on stat. 1 
fitch. 2, (note [j/] in the third edition) mentioned 
tliat ''many of the labourers in the salt- works 
and collieries in Scotland still continue * glebce 
adscriptitii' and cannot be hired without the pro- 
prietor's consent." And as to this he referred to 
a case in the Dictionary of Decisions, vol. 1, 
I). 812. I know not what case that was. In 
Morison*s Dictionary of Decisions there are 
under title Coalier twelve cases, in all of which 
the Ber\ ile condition of the class is recognised. 

In the Memorials which were presented in 
the case of Knight v. Wcdderburn, tho con- 
dition of the coalliers and suiters of Scotland 
was considered. 1 will here insert w hat was 
said of it by lord Me.aduwbank and lord Pitfour. 

*' The defender," observed the first of those 
learned persons, ** has mentioned the situation 
of coalliers and salteiti as an evidence, that the 
law of Scotland is not repugnant to slavery. 
It has bren already shown, that although vil- 
lenage still existed, although this high court 
would even now record an acknowledgment of 
vtlicnage, and alihon^h other kinds of slavery 
were adopted by the* laws of this country, yet 
that the common taw could not be understood 
to favour the defender's claim. As long as the 
common law acknowledges the law of nature to 
be its great principal and rule, so long must it 
reject a claim to a right of property iu a man, 
or in his labour and industry, founded iu his 
being born of a captivt or a criminali or in hit 



at the time herein after-mentioned of bringing 
the said J ameaSomoiersett from Africa, and long 
before, there*wrcre, and from thence hitherto 
there have been, and still are great nambera ^ 

being seized on violently by a third person, and 
sold to the claimant, it has, hqwever, been 
urged, that coalliers and salters arc living prooiii 
of the former prevalence of villenage : it is, 
therefore, not unnecessary to bestow a ftew oIh 
servations on their situation ; the use of pit- 
coal is of so late invention that villenage must, 
at any rate, have disappeared in Scotland long 
before the working of coal could have become 
a profession. Purehas (in vol. 3, p. 88, of hit 
collection) giving an account of Marco Paolo's 
travels, has the follow lug curious passage ex- 
tracted from them : * Throughout the whole 

* province of Katai (China), certain black 

* stones are digged out of the mountains, 
' which, j)ut into the fire, burn like wood, and 
' being kmdied, preserve fire a long time : aa 

* if they be kindled in the evening, they keep 

* quick fire all the night ; and many use thoae 

* atones, because, that though they have store 
*• of wood yet there is such frequent uae of 

* stones and leathes thrice every week that the 

* wood would not serve.' The same observa- 
tion is transcribed into the Histoire G^n^alede * 
Voyages, torn. 9, p. 366. It was one of the 
circumstances, which, at the publication of 
Paolo's travels, was considered as a proof that 
they were fabulous. There is a passage in 
JEneas Sylvius' (afterwards Pius 3.) account of 
Europe, which shows more directly, that the 
use of pit-coal must have been very rare and 
very inconsiderable in his time even in Soot- 
land. Treating of Scothind, he observes, that 
he was here (as a iegnte) in the time of Ja- 
cobus quadratus, and enquired about a roira« 
culous tree, which had been said to grow in 
Scotland : He adds, * De qn& re cum audivimua 

* investigaremus [soinorig.]didicimusmiracula 
' semper remotiiis fugere,famoiiamquearboreu 

< non in S(M>tift, sedT apud Orcades inveniris 

* Illud tamen in Scotid miraculum represen- 
' tatum est ; nam pauperea pen^ uudoa ad 
' tempb mendicantes acceptis lapidibuseleemo- 

* syniB gratis datis latos abiisse conspeximus : 

* id genus lapidis, sive sulphured sive ali4 

< pingui materia, pro ligno, quo regie nuda est, 

* comburitur.' it is plain, from this account, thai 
coals muat have been ifery rare iu Scotland. 
It otherwise would have k!een quite absurd to 
take notice of them only as used by beggara, 
Beskles, he observes, that they were only used 
wliere the country was barren of wood ; and 
it is well known, that Scotland was, durincf 
the reigns of the Jameses, very much covered 
with it ; so there could be very little occasion 
for coals. On the other hand, as there are re- 
gular records extant, from the days of James 
1, it is impossible that villenage could then 
have existed, without sufficient evidence con* 
cerning it appearing in the acta of parliaroentv 
charters, transfers of prapertv, and various 
deeds anxNig indivklMisy vkisk ate bawM 



•' Xhe Nfgro Case. 

.^ kitM m A/ru-a i aoj that (luring all ihe 
^A ft.-- .ii'l Xbtif hvlli been, hikI slill is • 
tn« .rt.-'l <m ky bU mijttiy's Bubjeuls, 
|r<a*>^ !• bu tuBJeity'i colonies or phtii- 

* u iH lilt ihenrur* plain, (bat llie pfii* 
pm J iiijlliias tliiJ uul comiueiKe curly 
«^ lo lute M:cei*e<l tlie rviuuiiia of tl>'e 
W9 nileiiis. Tl>e cireurosliiiCffs of a coal • 
• 4**«c iuilicatc a virjr tlitTerrnt oiigin. 
*(^tfvn >c*> ihM liura adttriptiSii. A coal 
to*«a profeaaion whicti iaTuliialarily eni- 
Ihs^ u>J. Iikr oilier priHviiitiuna, is regulilcil 
lf)*r«coUT laira. Hbicli we more Or leu 
*M. anxiliD^ AS It"- iolerra ut' the public 
a^^t III rv(i>ire. TlivMatjeaofa coallicr. 
•iMh uI lalmurera in any ollirr (irolvsginii, 
.jaij iu Duurif excluKvf!, aie liightr ihiin 
:3ia i>iirL.iiien receive, lit arqiiirei pro- 
-T-, Hd irMDstnita it; wid bas lt(«D tbuiid, 
- « E»c of RutherglM, (l->L-iilea SO Fe- 
ksfj If*7, iniiileil, as well %s toy oilier 
ll^«.(al<B> coansellir ol a burgli ; Uv mim, 
i* i^ul rratun. be capable ol' being rieulcil 
■1^ or parliament. Thesi> purtiuulars 
bwai ctiilmcp, ilial tite condition uf a 
I ■« )>ertecdy di&renl I'roni tliHl of a >il- 
Tlir art ol wurltilig coal auccesst'nlty 
9 iitnig practice lo allaio, and is tirriu- 
Ibe bcaUb ul' tliute wlio lire Dot early 
It WM, iberefure, extremely 
works ttcie beuun to lie set 
lb« pniprwiiin UioulJ, in return 
_ ^. waives ilifv gave ihe workuien, 
Hlfa> boiuiil to continue iu their ser«ice 
^it^rte"" «l' y»'»rs, or forlite) accord- 
^•eBiid, tlial it was at fir«l ciiatomary to 
%vli bouilft fi'om coallien ; Htiil, it it 
h^tttsi tlie practice coniinued arier tbe in- 
^Mn of parhaiueni bad ■upeneiled tbe 

'IhBe'ilNKTvalians.tbe^urtuerliiimbly up- 
M«i)t>, (iifficicitU^ uxpUiu any ibiujf parii- 
nriB ibotaieol ooallirra. la tbe iiifuncy 
*^ni<nticnl inifli are apt tu ailiipl expe- 
na lar inawHifc tbe obtlruciinos it meets 
^ - ' oiUrt Mils «bicli lliry IVfI, but tbe 
L aBcLiual rcmediti uf wlucli ibey itu 
~ ' ' I'bui inewpurations and 
oux lituii, and uu ib« wlier, 
Ml tbp airiulieni cif incorpomliont 
' lis liue (uij^nated, In ibe 
. tery natural lo seek a curb 
orrapiiciouonessof coalliam, 
kiaU uaifM, like ibnw: uf many other 
I af tioHiiueii, disposed ibem m idlfnera, 
- ^i, «v affiicaui^e. AH rettuliiiuos, huw- 
-. Irwmd wiiit such liews, are Btideiitly 
^iWTvial, aail uever can be construed na 
T hraahng liberty ur ulavery. any more 
tbe •<• uf iiavij^atiuni or any otbcr lbloi[ 
' jc laaw iMIura. It Diii;bl Iw pruvd, ibal 
«a» a tlitf n iiiii ihe same princi|ile 
. The acts 163T, c. 61, and I&ST, 





M IIm Mher, iIm ci 



nibe ' 



n pleBjtn W in 



A. D. 1771. HO 

(UionlDrVirg-inin and Jamaica in America, aoil 
Otber coloiiJM ■ml planiativns belongint; lo bis 
iiiajpsly in Aiiierit:a, for ibe ueccaMry aupply- 
in|r ot'ihealiircsaid colonies suil plaataliooa witk 



(lalul«s wvie ever urijed as itittiiulit* of ilaTvry, 
TliF same obw rtalioa* are in ijvneral so appb- 
c~ble lo tlie Mule of sullen, liul ii is uuneccs- 
sarv to consider il." 

On Uie pail of tbe defecder it wot arened lijr 
Mr. Fer|[Uiaii (lord Pit four,) " Tliere still exists 
in this country h species of periwiuil serritude, 
(irxbably llie reuiaiiiH of the oriuiiml ' aiiscrip- 
' lilii glebte,' ur villeins, wbiah is supparle<l by 
Inle sialuies, nuil by daily pmclice. via. TbM 
which takes pluce with regard lo the caallier* 
and sailer*, where, from the »iii((le cireuin- 
siance of enlerini; to work afier puberly, tliej 
are bound In iwrpelual service, and sold along 
with the wurlis ; and indeed, in our law, ibcr* 
are several nlber examplea of persons being 
bound ('> servitude during tbeir lives. Tbe act 
of parhameAl 1597. cap. J7S, eiiacU, ' That 
slark beggars and their bairn* be employed in 
common works, and Jieir serrice, mentioned 
ill the act uf iiarliameal 1S79, to be prurogala 
during ibeir liletimes.' And, ttilboul going 
furiher, it is Ihe case with every soldier aud 
sailor. tb« former of ivhoiii i* shnt, if lie en- 
deatuurs to niube bis escape al any period of 
his life, by express law ; and tlie lador is sub- 
jected, during the same sjiace by a practice 
universally admitted, to be leiied by force, and 
Lent agninst liis uill lo the remotesi corners of 
tbe world. 

" Tbe pursuer is pleased to nr^iic, thai the 
coalliers and sattets ate tiut a remains of *jl- 
lenage ; and bis arfriiment for tbis is. ibat llie 
use of cual in Kcoilaad is sn late a disuovery, 
thai it must have taken place lonir after villen- 
age disappeared : and tu ui'uve thii, he cites a 
passage from Marco Paolo, and annllier from 
£iiGa« Sylvius ; from which it would appear, 
Ihat these aulbors bad been unncquainleJ with 
that mineral, till the former saw it in China, 
and the UitPr in Scotland, And ftbe pursucf 
adds,) £n«iis Sylrius observes, that coal waa 
only Uiied in Scotland where it was barren of 
wudd ; and w it is well known ihst, during the 
reiifii of the Jameses, ticoliund wurery inuoU 
covered wiih wood, there could be very little 

>■ Thii circuiiiKlance seems lo he tillle con- 
neclol wilb Ihe present i|Uestion ; but the pur- 
suer's ui-iioiueolk niipearlo bnve no Tendency to 
prove tii..l lliL- stiile of the e<ialliert in ScntlaDd 
u mil D lUiiliou^Hrin of lite ancient tilleuage. 
By tbe churl, r ubnre reciled. that instilntion is 
irucod dowr. to the year 1368 ; and in all pruba- 
biliiy it continued a cuniiderable time longer. 
Marco Paolo tveut in China abnut 100 year* 
before Ibal ; so turrly no inlereore can be 
drawn from ibe llalitns being unacquiiinled 
wilh cual iu the year tSTO, that ibis mineral 
was not diacoveied iu tJcotland before the year 
1368. 



11] 12 GEORGE III. 

negrro slaves ; ind that negro slaves, brought 
in the course of the said trade from Africa to 
Virginia and Jamaica aforesaid, and the said 
other colonies and plantations in America, by 



The Negro Case. 



p« 



* JEneas Sylvius vras in Scotland in. James 
the Ist's time. The defendtir does not know if 
the pursuer means by the expression of Ja- 
cobus quadratus to insinuate that it was in 
James tne 4th's time ; but if he does so, it's a 
mistake, for £neas Sylvius died pope in the 
5th year of James 3, viz. S3 years before 
James 4 succeeded; and tberr is no doubt 
that his joum^ to Scotland was in James the 
Ist's time, probably about the year 1430. He 
then describes coal to have been in comoion 
use in Scotland ; and it would appear very odd 
if there had been no coal- pits in Scotland 60 
years before that, to which the charter above 
recited brings down the existence of villeins or 
nativi. 

" The quotation therefore from JSneas Syl- 
vius is a proof of the direct contrary of what 
the pursuer endeavours to infer from it. 

** The circumstance of two Italians being 
surprised at seeing pit -coal affords no pre- 
auniption that it had not been used for many 
centuries in Scotland. It happens every day, 
that Englishmen are not believed in that coun- 
try, when they describe our coal to them even 
at present 

'* The defender does not know what the pur- 
suer means by asserting, that it is well known, 
Scotland was very much covered with wood 
during the reignb of the Jameses. As iBneas 
Sylvius, who was an eye-witness, declares, 
that in the time of James 1, it was perfectly 
bare of wood ; and it is exceedingly probable, 
that the immemorial use of pit-coal before that 
period, had induced the inhabitants to cut down 
all the wood, without leaving or providing suf- 
ficiently for that kind of fuel. 

'* It is needless to enter, with the pursuer, 
into the disquisition, whether the state of coal- 
liers be a severe kind of slavery or not ; as it is 
certainly much more so thau that to which the 
defender claims to reduce him." 

It is perhaps worthy of notice in this place, 
that though the memorial of Mr. Maconochie 
(lord Meadowbauk) bears date April S5, 1775, 
and that of Mr. I<erguson (lord Pitfour) bears 
date July 4, 1775, no notice is taken of the 
statute 15 Geo. 3, c. 28, by which aOer recit- 
ing that by the statute law' of Scotlaml, as ex- 
plained by the courts of law there, many col- 
liers and coal bearers, and salters, are in a state 
of slavery or bondage, bound to the collieries 
and salt works, where they work for life, trans- 
ferable with the collieries and salt works, when 
their orifj^inal masters have no farther use for 
them, it is enacted, that colliers, coal bearers, 
and salters, shall not be bound to any colliery 
or salt work, or to the owner thereof, in any 
way or manner different from what is per- 
mitted by tbe law of Scotland, with regard to 
■crvants and labourers. 

Tbb sutute, it sppetiw, by the Lords' Joor* 



the laws of Virginia and Jamaica aforesaid and 
the said other colonies and plantatMMis in Ame- 
rica, during all the time aforesaid, have been, 
and are saleable and sold as goods and chattels, 

nal, was passed on the S3d day of May, 1775. 
After which, it seems (see Mr. Benet's account 
of Dudingston, in the 18th vol.of sir John Sin- 
clair's Statistical Account of Scotlabd, p. 370,) 
that the coal masters strove to insure the de- 
pendenceof their coalliers, and consequently tbe 
perpetuity of their services, by seducing them 
mto their debt: to remedy which, by stat. 39 
Geo. 3, c. 50, among other provisions respect- 
ing colliers in Scotland, it was enacted, « That 
no action shall be competent for ^oney ad- 
vanced by, or on behalf of coal owners or 
lessees to colliers, except for snp|K>rt of their 
families in case of sickness,' in which case a 
specific mode of procedure is provided. 

In the negro case in France, which, under 
the title of ' La Libert^ reclam^e par un n^re 
centre son maitre qui I'a ameoi en France,' is 
reported in tbe ISlh vol. of * Lea Causes G^* 
l^bres,' See, p. 492, edit, of 1747, and which I 
apprehend was determined in the year 1738, or 
soon afterwards, the questions before the Court 
appear to have been, 1st, Whether the party 
claiming the negro was such a person, as, by ' 
the French king's edict of October 1716, was 
permitted,under certain formally prescribe<l con- 
ditions, to bring negro slaves from the French 
West Indian colonies into France, and to retain 
them there : and Sdly, Whether he had per- 
formed those conditions; with respect to which 
it was provided in the edict, that, " faute par 
lea m&itres des esciaves d'observer les forma- 
lity pr^rites par les pr6ced^ns articles, let 
dits esciaves seront libres, eS ne pourront dtre 
reclames." For though M. le Clerc, Pro- 
cureur du Roi, did indeed mention, that nei- 
ther the .edict of March 1685, nor that of Oc- 
tober 1716, had been registered in the parlia- 
ment of Paris, or transmitte<l to the proper 
officer of the court of admiralty, yet it very 
cleariy appears, that he did not lay much stress 
on these topics. 

But tbe eloquence of M. le Clerc and the 
ofher advocates who argued the case expa- 
tiated far beyond the narrow limits of the dry 
and uninteresting quesiiuns of mere positive 
law which I have stated. The powers of their 
learning and of their oratory were called forth ia 
all their vigour, to describe the character and 
narrate the history of slavery, to display its 
incongruity with the benevolent doctrines of 
Christianity, and above all to impress upoo 
their hearers, that slavery was utterly and ir- 
reconcilably opposite to the nature of France 
and of Frenchmen, and to the original principles 
and established administration of their consti- 
tution and government ; insomuch, that to 
touch the soil or to inspire the air of Franca 
was to be free. Thronghout the arguments 
this last position not only was undisputed by 
either party, but was by all parties either as- 
sumed, or admittedi as the inoootrovertibls as- 



13J 



ne Negro Can. 



A. D. 1771. 



[I* 



ud «fMi Ibe sale thereof hare become and 
bRtt, aad are the slaves and property of the 
pmthiri thereof, and hare beea, and are 

1 — - I - - ■! 1 • 

SfftM of a notorious (act. Yet, at the same 
im, A was on all sides propoanded and incul- 
oAil, with a dilin^enee and copioasness of repe- 
MM, which is not commonly expended upon 
tkt owinleDaoce of indisputable truths. I hare 
fitraetcd frono the rp|M>rt the followiogf pas- 
Hirct, whirh, I heliere, will sufficiently con- 
n vhat I bare stated. They may also afford 
HBuwineDt, if not instruction, bv exhibiting 
the complacency— perhaps I should rather say 
the triumph — with which, under the reign of 
Lnrii the 15th, the descendants of the an- 
ciort Franks could rhapsodise concerning li- 
krtr:» 

'*II s^est toojours regard^ comme libre, 
kfm qu'il a mis le pied en France," p. 495. 

** D^ qu*an esclare y*' [se. en France] *< a 
■ii ie pied, it y acquiert la liberty," p. 504. 

" Vig qn'un esclare est entr6 en France, 
i de? ieot hbre,'* p. 504. 

** 11 faot conclure que Pesctare est derenu 
ftrc,«I^ le premier instant de son arrir^en 
Fnoce,'' p. 508. 

** L'eotr^e dans la riUe de Paris assure le 
Busticu, etdevient I'asile, de la liberty.— « £st' 
[k. LntetiaJ * sacro-saocta ciritas, qnie pne- 
*Wt emnibns libertatis atrium quoddam, asi- 
'Iraaqae immanitatis,' " pp. 511. 526. 

^Je ne me propose point ici,de porter la 
■sbdre atteinte ao plus pr6;ieux de nos biPiis : 
je ae pi^tens point enrier, k I'heorenx climat 
^ WNN babitotts, cette pr^rogatire ^minente, 
stocMe a la eeule entree en ce royaume," [this 

Vhnsetecnrs again in n. 5SS.] *' et oui forme 

kfsrele plus assort ae la liberie, Jont nous 
/ssSmas nous-m^mes," p. 512. 

"Je ne craindrai pas d'arouer arec tons les 
ismri, qa*on ne conndtt point d'esclare en 
Friaee, ct que si tcH qn'im esclare Stranger a 
isii le pied sor notre continent, il est g^tifii 
de Is rdiert^," p. 520. 

** On ne conndit point d'esclare en France, 
ctqoicoMioea mis le pied dans ce royaome, est 
ratifi^ de la libert^,'^. 595. 

^ Testator Benedictns, * senros, qui Tholo- 
* nm aufogerant, urbis ingressu ipso, liberos 
'aciosetcires,*'*p. 527. 

** Ups maximea si pr^cienses du droit Fran- 
pb accordent k la seule entr<^e dans ce roy- 
:arop, au seul air qu'on y respire, le droit de 
b lihert^, ledon de la franchise ; j'ai adopts ces 
aaxunes, je leur ai rendu tout IMiommage, 
^'elle« 4§xigent des coeurs rraiment Frau* 
joii," p. 532. 

'* La France se fait gloire de comrouniquer 

* Mr. Dnrke (Reflections on the ReroUition 
n Fnoce, See. 4th ed. p. 93) remarks, that *< it 
*ai is the most patient period of Roman ser- 
*jftDde that tbemes of tyrannicide made the or- 
diaary exercise of boys at school — * ciim pe- 
ns* iceoa classis nnmerosa tyrannos.' " The 
&as is in Jartnalt Sat 7, t. 151. 



saleable and sold by the proprietors thereof aa 
goods and chattels. And I do further certify 
and return to our said lord the king, that Jame« 

le beau privilege d'affrancbisseroent k tous les 
esclares, lorsqu'ils entrent dans ce climat hen- 
reux, dont le seul nom r^paod de toute part la 
bonne odeur de la liberte," p. 539. 

"II n'est point d'esclare en France ;.DOf 
constitutions, nos usages ^tendent la farenr de 
la liberie k tous les hommes en g<Sn^ral qui 
Pbabitent," p. 539. 

** II ne peot y avoir d 'esclares dans ce roy- 
aume, il soffit m6me d'y etre eubli, ou d'r 
faire sa residence, pour acqu^rir le bien pr& 
cieux de la lilwrt^," p. 544. 

'* Nos privileges ont elfar.^ jusqu' ^ I'id^ de 
I'esclarage en France,'* p. 546. 

" II n'y a en France aucuns esclares ; et 
la contume y est telle, que non seulement les 
Francois, mais aussi les etrangers, prenant port 
en France, et criant France et Liberli, sont 
hors de la puissance de celui, qui la poss^doit,** 
p. 549. 

*' La France, m^re de liberty, na permet au- 
cuns esclares," p. 549. 

** Les esclares ont en France le pririlbge de 
se remettre en possession de leur libeni, an 
moment qu'ils sont entr^s dans les terres de ce 
royaume," p. 551. 

*' De terns immemorial Pesclarage n'a 
point lieu en France, et I 'esclare ^tranerer de- 
rient libre, aussitdt qu'il y aborde," p. 551. 

" Donter si en France un homme est libre, 
si un esclare acquiert sa liberty par son entree 
en France, c'est attaquer I'autorit^ aoureraine 
de nos rois, et faire injure ^ la nation,*' p. 498. 

To these may be added the following mors 
early authority : 

'* Toutes pcrsonnes sont franches en ce roy- 
aume, et sitost qu'un esclare a attoint les 
marches diceluv se faisant baptizer, il est af- 
franchi." Institutes Coustumi^reS) (published 
at Paris in 1679) p. 2, cited by Mr. Barringtoa 
in bis Obs. on stat. 1 Rich. 2, where he has col- 
lected some curious particulars, relating to slfl- 
rery. 

Bf . Tribard, who pleaded against the pre- 
tensions of the negro, admitted aud maintain* 
ed the proposition that there were no slaves in 
France, as a general rule ; but contended that 
the case of negroes, belonging to French West 
Indian colonists, was, by the eilict of 1685^ 
specifically excepted from its operation. 

" Si en France," says he, ** on ne conndit 
poiat d'esclares, si la seule arrir^^e dans ca 
rovaume, procure la liberty, ce priril^ge cessa 
k r^rd oes esclares n^gres Fran9ois : quelle 
en est la raison? C'est qu'en France, c'est 
que par une loi de la France meme, les esclares 
n^gies da nos colonies sont constitu^s dans un 
esclarage n^cessaire et autoris^," p. 529. 

After noticing an * Arret' of the parliament 
of Toulouse, reported by Bodio, he proceeds, 
*■ Quel peat 6tra I'effet, quelle peut ^tra Tin* 



I5J 12 GEOnCE III. 

SomineTieU, in the said writ hercDDto nnn«ei] 
named, it a nfCTo, and a niliTe of AtKca ; and 
that the uid Jantcs Kommeraelt, tong^ before 
the coming of llieuiil nnt to me, to wit, on 



n 61itqi]i deux 



The Ncgra Case. f 16 

tbc IDlb day nf March in the year of oor Lord 

waa a ne^ro alart in Africa alnresBid, 

and afterwarilB, to nit, on llie satiie day and 

y^er lait aforeaniil, being siich negro slave, 



duciioD de cet arr6t, r\ 

aitclea aprii, pour k 

<tBl, ]es ta^<^ea ct la piiiissnce de la naliou, » j 

ttabli une leriiiuile uCceMnire car cette parlie 

de» iujetBduroi?" |i. 531. 

Again " Voilii done la teiile induction, uni- 
quement pai: rapporl ani firaugera, el aux 
a»cla<reade« «irangers," p. S97. 
i"'Ituiuiitbe cnnfe«scd tliat llie pleading of SI. 
Trihard wa« not >cry cnutincing. Of the style 
aud co^«Dcy uf bis nrguTnentation the ful- 
loiiinic nbturd faJEc anil despicaUe common 

f laces may siifli(.-e as aatnpleH : " Ceux t|ai 
iul'oriuue de la guerre amuji^issuil nux vain- 
qururs furent appelltii eivlaves, icrci, liien 
UMiiisil leraiendo, qu'ii ttrTnuilo," \i. 514. 

*' Neijue enim libertas tulior ulta est, qiu^m 
Amino serrire bono," |i. UK. 

Judgment ira's giieu fur ihc Negro. 
Tiie 6'oife A'oiV, as it trMscallcd,ir3san edict 
bearing date in Alarcli 1G85, nliicli was Isourd 
by Lewit the 14lh. It coiiliiini varioDs regu- 
laliqiu rfE|irctiuK llie roniiitinn and Irealntcnt, 
the rights and duties of negni sliicii, end freed 
MTgroea, and of tlie Kreocli Wett Indian <.-ol»- 
nieD.* This ' Code Noir' is citetl in llie plead- 
ings ill tlie net^ro case reported in tlie * t'ansea 
Ci:lelires ;' but I do niit pTcnre that it at all 
COiiceruH that particular easr, except in so far 
as it recognizes, nud e.tlabliiJiea the i/(i(uii of 
alavery ; iin wbicli aeenunt indi>eil mucli re- 
liance was placed on it in itic pli'ailiii;;s Ibrihc 
party irliu claimed to be •inneriif thi' lu'gro. 

Ill Oclnlwr iriO, li-wis the l.^ilb pnllisht^l 
■n edict, * conccrnant Ics niclaves nr'^^icsdcs 
eolonifs,' hy wliicli, alter recitin:;, iiiUr alia, 
" conim'' nous avons vid infiirmd^, epic plii- 
■ienrs lialiilans <lo niM isles de TAnitriquc d^- 
rircul enioyer en France <pielques uus de icur* 

* In Air. Ilargrave's Arguii-ent in the text, 
this eilici n said to have been made in Muy 
IGQj. bill ill tlie copy of tlieeilict trliicb ia iii- 
tertcd in the 13tli vuluini: uf the " Causes C^- 
Ifl>res," the date is tn ice iiieiiiioiied to bu Marcli 
1685. Inlliatrntumcihe edict lies n tbe ful- 
Inwing lille, " Le Code Noir ou Kdil du Itui 
•ervant de r£glement pour le uouTciiiemcut et 
radininislrattnndelajiislii'eetikiiolicedcB Isles 
Fraii^'«i$es de I'Anicriqnu. et pour la diKcipline 
et le cuniincrce des no;:reii el esclaien daiiH le 
dil pays." In the preiimbk' tlieobjerla of the 
tdict ar« ststed to be " y mainleiiir la dnciplins 
tie I'iighse ciitliolii|iie, apusl«h<|ue, el rouiaiiie, 
•> y nigler ce iiui oonccrne I'eial el la quslilc 
de nos envlaveii datia nu* diles itiloii." And ac- 
cordingly all its proiistuiis relate to thecnncrros 
of religion, of alaiet, or of freed jierMins. In 
Ibe mnnlb of AugUBt, liiUS, the king issued 
•nolbcr edict fur the eiiuiblhihiueui of courts 
of jutiice in St. Domingo, 



eaclares, ponr lea conflrmcr dana les inslroe- 
liops et dans les fxercicea de nntrc religion, et 
pour lenrfaire apprenih'c q<ielque art et niftier, 
dont li-s colonies recefroient bi'aiicixip d'ulilitd 
par le relour de cea esclaves ; mais que cea 
hiibitans craignent que les csctoTes ne prClen- 
dent tire libres en arrirant en France, cc qui 
pnurrnit causer aux dits haiiitBusnneperle con- 
siderable, atlesd^tounierd'uiiubjet aussi pieux 
et luisi utile ;" 

" Le Itoi ordnnne que *\ quelqucs una dei 
hahitans des colonies, ou ilea officiera employ^ 
dans I'olat veitlent amcner avec cux des es- 
c1avesn<^gret<le I'unondel'iuitTesexe, en qua- 
lity lie iltunestiqueB un antremenl.poiir lc<for- 
lilierdDDsta religiun, ^. leH proprietairecscront 
tcnus d'en olitenir la perinisstiin ite« goiiTerit- 
cnrs g^iit-ruux on rouiinanduiiB daoii chnque 
isle, lr.i{iii'!le permission cuiitiendra. le noin do 
prnprielaire, celuidesescliive«,leur ilge,et leur 
signal emenl. 

~" Lps pmprlf'taircs de* dils eirclaTea veront 
pa rritie merit obliges de fairo ciirpgistrer ladilo 
(lermisiiion an grrtTi- di' la jurisdidion dii lien 
deleiir r(:iidei:i-« iiv.-iiit !eur i'c|<iirl, etencelui 
ite ramimui^ du lieu >hi ri(''i:in>iiement, dans 
huiiaine apiis I<-ut nrrii I'a en I'Vunce." 

Tbe eilict next proceeds to eslabliali corres- 
pondent reguLtinns for the case uf negro hUvea 
whom llii-ir uwuers shall send under the care 
of other pemaiM fi-om llie culoiiiea tu France. 

It iIhiii iinlaini ib.it regrim sci by their 
owners brnngbt or aeot into Franco aliall nut 
by reusou iliurcuf acquire any right to their 
Ir'cedom, but nhall he coinpeUBble lo return lo 
the colonies at the will of their owner* : it in pn>- 
vidnl bowerer, that in case tlio onuers ha*« 
lu^lcclk^ tu comply with tlie prescribed regula- 
IJoiiH, tlie negmeii shall become tree, and Iba 
uwiiera sball lose all property in tbem. 

The remainder uf the edict does doI affect 
the case liclbre ua, 

nir. Baron Maicrcs (Ilislnriie Anglicannj Se- 
lecla Monumenta, pp. 13, 3U1,) oliserrea of a 
passage in the Encomium Bminie that " it plain- 
ly xbeH'stI ml there were at this lime in Uenmnrk 
Kei'iml men in astute of sla>ery, called in tbia 
|Kis>iigeM'7i't .- and otberstbat were I'reed-men, 
firlhni, ufler having been slaves, bnd been mad* 
free, it icnit tilrili ; and a Ibiid sit of men 
nhn liHil alwavH \<rvn tVt-c, but were nut mible, 
and ubo are 'in this pasii^igu cnlleri ignoHletf 
and priibably were the hiitiliiiiTihiieii and tiamly- 
crafisiiien uf the coumry ; aud, liKtJy.a fourlll 
Rcl, who were colteil nolitenien, uubiffi, and 
u bo si'eni til have Ik^cu the warriors, nr mili- 
tary part nl' ihe people, and who niusi hare 
been lery nnoieroiis, since bI) the whn^rurmj 
of Caniile the Daue, it hen he invaded EnglaiM 
after tlie death of Ling Swein, his father. It 
said to have been compoMil of men of this clan, 



TAe yegro Case. 

■ twgfc * in Uie Gouree uf ibe saiJ trade u 
■ MCMMVe from Africa aforesaid to VirginJB 
rfewni^ to be ibere Eold; and aftcrwarda, lo 
«il,MtlM 1st ibjr of Auguu Id the year last 



•■M* wm emit nobilea.' And Ibe people 
rfftgl^nil were, probably, at ihiaperiud dis- 
tifMhvl iaU differenl ciastas of nearly tbe 
■M Iml*- At teail, it it rvrtaio, tbal, before 
•• Ihniui ConqueM aa well ai after It, the 

Sboiltr of the cott«|;en and li a ndy craftsmen 
M fibclumithi, millero, and cart-irrigbla) 
nirj vtllafea were alares, or what our utd 
ba baoln oUled ' rilldtii regardant,' or belong- 
iiftoliie manor, or serviodscriptitii gUia,iud 
«fR alienated, as sucb, by name, togelber 
m4 llieir fatiiiliee, and all tbe goodi anilcbal- 

tranicribed from Ingul- 
|tai ft Branl Dlade by Thorold in tbe year 
Wl to UM «l>b<<y of Crowlaod of >• totum ma- 



, (ud elvvEa others) 
MH, mm omoilius lioois et calaliia,' qiicc 
Mmt m •tidft Tillii, et in campis ejus, ei in 
MOKic, mbsqiK uUo de omnibus rctioemeDio." 
Aru Wales, Rowlanil*, in recnuating the ob- 
Mmtina> respecting tbe " true staLa and con- 
J-|i«*f ibe Brititb gorernmeDt," and of" the 
- -'M Bntieh leiiurea, and the former cus- 
M aad iMHVea thereof," which be bB<1 col- 
• n>d fron Uioio materials uf information, 
vbcJi " our own careleai neglect bad omitted, 
bet, *• • jual reproach to our wretched osci- 
^urj aail nrmiunMi, the covelousnesa of our 
»■» wwchf'iil conqueror* took care lo record 
*Mt fumarte fat us ; that ia ihe Eo^ilish mo- 
aMitl,wtiaii ibry ({otlhemiehea FFlsed of Ihe 
h«fi— iuiwfuur British royalties, and fouod 
u ■aJc lUemteltea intilled or interested by 
4«M ar oviiqueal lo tbe ancient re vena es of 
■e BntUh prineei," says (Mona Antiqua 
BMHsMa. 410. Sd ediliou, London 1766 ; Ihe 
baer vMimm wat pnbhxheil in Dublio, in 
IM, Ih* JFMT of tbe anibor'a dealli :) " We 
r '.J, that Ihe tenants of bond-lands and ill- 
if^ ac tliay were of a qui>lity below and 
'<nar to fraeliolders, so Ibey were obliged tu 
.:>*Mr drailgerirs, anil employed in more 
-•lie work*, and were to be diKjiosed of in 
iitj Uiiagi, at ibeir lords and princes pleased 
jic them. Aud of llicae suiue were free 
-iitia, and anmo pure natirei. The free na- 
Lfi*. I lake lu be Ihoae, ivbo had some degree 
•(fiecJutn, who might ki> where tliey wunid, 
m^t buy anal acll, and had tuany immun* ' 
■ *(s( tbey werecallcd) 

<t a« lliev liste<l. And 
'isenber lu hate mel, in air William Gruf- 
•I's' bewk, with an abstract of a deed, where 

' nawtamU, »peak>i)||i>l 'l>^o1d returns aud 
r^aa which had been mid* by jurors to tbe 
I of coijuiry irilo taourea, 

nuxx. 




aforeaaid, the aaid James Sommer«ell, betiq> 
aod continuing such negro slate, was told io 
Virginia aforesaid to ons Charles Sleuut, enj. 
who then was an inhabitant of Virginia afure- 



ihe natives of tbe lownsbip of Porlhoethwy, 
many years alter the lime of the British 

Ktinces, were sold a^ part of tbeeslnle of those 
inds ihey belonged lo ; and of wbiob, and of 
others of that aiirl I ha*e giren elsewhere large 
inslmoea. And 1 hare by meacopyof iujuoc- 
lion, issued out by Henry the seventh, king of 
England, commanding escheators, end all other 
minisiei'ial oiGcers, to see that Ibe king's nalite 
Icnenla kept wllbin tlieir priiper limili ; and if 
any of them were found to stray and wander 
from tbeir home, to drive iliero back, like 
beasts to their plofolds, with the greatest 
severity." 

And in a book intilled Beauties of Rncrland 
and Wales, toI, irii, by the Rev. J. Evans, 
8vo, IBia, 1 have met with the following pas- 
sage : 

*■ Among the boons bestowed u|H>n tbe cor- 
poration ot Beaumaris, tio late even as tlia 
fourth year of Elizabeth's reigo, the following 
grant appears: ' All and sioKulur tbe king's 
' luiids, lenemetils, and berciliiamenis in Bodi- 
' new, aodhis villagers (culiirelors) in (be same 
' town, if any be, with their offspring.' But 
this was probably no more than an eieinplift- 
calion of a grant, madj lung before, by way 
of conRrmatioa. 

■■ The fallowing is one, out of three docu- 
ments, Bilduoed by Ur. Itowlands. ' Edynfed 
Vychsn ap Edynfed, alias diclus Ednyled ap 
Arihelw 01 Uavydd ap Grutfyd et Howe) ap 
Dsvydd an Ryryd, alias dictus Howel ap Ar- 
ihelw uz Uavydd ap Gryffydd, Ubtri lenentea 
D'ni Regis villcc de Rbandei Gadog, Sec. de- 
dimuB et confirmavimus Wilhmo ap Gryf- 
I'yild ap Gwilim armtgero et libera tenenti de 
Porlbainet, ice. septem nalivos nostroB ; viz. 
Howel ap Darydd Dew, Malln ap Uavydd 
Ui^w, Jevan ap Etau Ddu, Llewelyn ajt 



t ap Sit 



Dew, Howet ap Slatio ap Davydd Dew, et 

Sec. says (p. lao) '* For what light we have 
from these records, wo ought to be much 
obliged to the generous care aud industry of 
that very worthy and deserveitly celebrated 

Cersiin, sir William Grulfydd ot Peoryhon, 
night and charoherlain of Norlh Wales ; 
who preserved these records from perishing, 
by collecting so many ol them ns he could re- 
trieve from moth and corruplton ; and then 
causing those scatlereil rolls and fragmenla 
whichlie oauld meet with, to be tiiirty wriilen 
by one JenkyoGwyn, iu two large booki of 

EiaTchmrut, lor the informalioo of posterity. 
>ne whereof is that bunk, bupl always m the 
Chaniberliiin'* office, cbW by ihe name uf the 
Extent of North Wales ; and the oilier ha 
transinitled into the Auilitor's uffioo at Louden, 
where it is preserved to Ihu day." 



. "^trc 



<«.<. >«*•«> 



IV S'esTo Case, 



[SO 






t 

IW 



• A-i** 



nanaaiiaed, enfrancbisetl, wt free, or du« 

.nia^^vJ ; lod tbat the same James Somroer" 

wu. 90 bciDZ the negro slmve and property of 

«iiv^ 7«f».'a a.m tUc »aid Charles Steuart, and the laid 



^ "^u . '«iK- -'an ?vr-im ^•{UkIia 
. , ..,««..•»• »*»*.•« »iiui» MC 'tiiii/oas 

. .^ -.^. .** X ^W5*v ^ iiiutu t»fuif\d ap 

,•* i,.;v> .•- i>9*:»*i4us *a».afwr]ie- 

^ •.v.tt V, '.Mi x.iJ.i«i..' Ga»i*»C. iO die 

N . :v«: V ye ' i>faii;.ef. 5cc/ it is slated 
*K.. ■ .» :ic ♦■.•N«''x /ans cr'EciiUDd.if some 
«M .t» i -. 9..-.U .*•- '.s^i. xu u^uji coDilitioD is, to 
.4. v.- A.1 'i- j.'K':tJi...vs up<ia them, male and 
MSti:.'.c. ' r. > ici vfT.i^T denominates '-an 
c-.t-cvi ..• i- a j^^erip^ projl' of persons be- 

l>e .»':o!e ot" Mr. Burcott's sixteenth chap- 
1^ ^r.ca';>c- Oh the Criminal Law of Scol- 
1.1 .K-' :3» 1 C'.ni'.inentary, cx'eniliiin' throu«;b 
sc««r.:t% -i'n«* iiopa^.*, upon the ^ Act' (already 
boIavO) * tvr preveLi:in^ wron£;ous imprison- 

* meui, aud a^aiust undue delays in trials' 
(chap. c> « f tite eiirhlh and ninth sessions of king; 
^\ iiliaar:! |-:irliaixic*ut 1701). He says of it 
tb.it it coii>|>i!$t:s(in some respects with (greater 
•tvnritv to the Uberty of the subjects) the pro- 
vi>ion<* of all the several statutes which the 
lekfislaiure of Eusjland has passed for the per • 
•i>nal ht^rty of the subject, and that therefore 
it justly may beteimed the Ma^na Charta of 
K'Oilaiid. Ai d in the case of Andrew against 
AJurdiH-h, the lord justice clerk, Hope (now, 
181'.Mord president) said •* Our Act 1701 is 
grvatly more favourable to the liberty of the 
unhjec't in every respect than the IJalieas Cor- 
|>us .\clof Euj^land." 

Of a law thus celebrateil, the provisions will 
ataturaily excite in the mind of every lover of 
Lis country a warmth of interested curiosity. 

The enactments of this statute are numcrou*, 
•xteuNive, and minute. The statute itself is 
Ihen'fore very lonir. I recollect not any ac- 
count of it in'Mr. Lain&f's History. Mr. Bur- 
uelt exhibits a brit- f history of its origfin, and 
analysis of its provisions ; which I will sub- 
slit nte for the copiousness and particularity of 
the act itself. 

** The ConTenlion of Estates of Scotland, in 
the >(*»<' 1()89, declared, anion^^ other thint^s, 
that,* * exact iif^ exorbitant bail, and imprisoning 

* |M'rson>' wiili'iut ex])ressin^ the reason liieie* 
' of, uii<' !elu3 in^ to put them to trial, an* cnn- 
■ trnry to ihe-kuown laws, statuten, anti freedom 
' of the realm,' and the redress nf this ihry 
claimed as their undoubted rit^ht aud privilege; 
And further, * that no declarations, doiii^fs ur 
' proceed infifN, to the prejudice of the people, 
' m any of the said premises, ought m any 

* ways to be decisive licreafter in consequence 
< or example.' These grievances, in a sub- 
■equentietter to the king (1689» chap. t7.) the 



estates prayed his majesty to redress by whole* 
some laws in his first parliament. 

*- f n the first parliament, accordingly, most 
of these grievances were re«lressed, and parti- 
cularly, the exacting of exorbitant bail, impri' 
i soniog persons without expressing the cause, 
: and delaying to put them to triai,'by the well 
known sutute 1701, cap. 6, which the people 
[ in this part of the united kingdom must view as 
I one of the greatest benefits conferre<l on them 
' by the Revolution, whether it be held as a law 
declaratory only of their fornMr rights; or as 
introducing provisions in f iivour of the subject, 
which had not previously been either so well 
define«l, or observed in practice. 

'* The objects indeed of this statute are of 
the first importance to the security and happi- 
ness of every individual of the community ; 
inasmuch as the injury of unjust and illegal 
confinement, h iiile it is' often the most difficult 
to guard against, is in its nature the most op- 
pressive and the most like!}' to be resorted to 
by an arbitrary government. Some have 
thought that unjust attacks, even upon life or 
property, at the arbitrary will of the magis- 
trate, are less dangerous to the commonwcidthB 
than such as are made upon the personal lilierly 
of the subject. Without accusation or trial to 
bereave a man of life, or by violence to con* 
fiscate his estate, would be so gross and noto- 
rious an act of despotism, as must at once con- 
vey the alarm of tyranny throughout the 
whole kingdom. But coutinement of the per- 
son by secretly hurrying to jail, where the 
sufferings of the party are unknown tir for- 
gotten, is a less public, a less striking, and 
therefore a more dangerous engine of arbi- 
trary government. (Blackst. Comm. book 1, 
chsp. 1.) 

*^ The statute proceeds accordingly on the 
preamble of the previous declaration by the 
Claim of Right, and the interest which all his 
majesty's suhjf cts have, * that ilic liljcrly of 
' their persons be duly sernred ;' and contains 
in its enactnititt almost every proviMon, i«hicb 
has at any period, or almost in any s\steni of 
law, been deemed most conducMve to the per- 
sonal liberty of the subject ; m toe hauie time, 
it inlro«luccs regulations mid » xeeptions, which, 
while they are the best calcubted to ensure 
that object, render it nowise inconsistent with 
the safety of the public. 

'* It sets out by providing arainst the first 
steps towards an illegal confinement, the ap- 
prehending of the |>ersons without a regular 
information and a special warrant, and guards 
against any continemcnt, tbiU is not necessary 
to ensure the attendance of the party on the 
day of trial. In the next place it declares 
what crimes shall be bailable, and directs the 
sneediest mode of finding bail ; and to preYent 
toe possibility of any vsgue discretion being 



81] 



The Negro Case. 



A. D. 1771. 



[S9 



Chakf Steuari baTing^ occasion to traosact 

enuin iffairs and business of bim the said 

Chiriei Sleoart in this kingdom, be tbe said 

Chsrkf Sieuart, before the coming of the said 

writ 10 me, to wit, on tbe first day of October 

bikjearof our Lord 1769, departed from 

Awrica aforesaid, on a voyage for this king- 

km, for the purpose of transacting bis afore- 

■d affairs and business, and with an intention 

aretarn to America, as soon as the said af- 

6in and business of bim the said Cbarlea 

Snart in this kingdom should be transacted ; 



in 6zing its amount, which might 
Mat the whole provisions of the law, it as- 
eotaios the mojclmum of bail in each case, ac- 
cording to tbe rank of tbe person in custody 
|br trial; and imposes biffh penalties on the 
ji^ who shall delay modif^mg the amount, 
m rerose to accept of sufficient bail, when of- 
frrcd. The act, however, would have been 
pally defective bad it stopped here, for of 
vbtt use would have been the precautions al- 
Ridy mentioned, if in cases either where bail 
eoulii not be found by the party entitled to it, 
a* wben it could not be received, owing to the 
Uare of the crime, the person imprisoned 
■i^ be wrongously detained, in consequence 
rf a delay in puttinflf him to trial by a certain 
dij; tbe act therefore directs, that in such 
e»N, the party shall have rij^lit to insist, that 
vilhiD a certain lime a diet shall be fixed for 
\k Irial, and tbe trial carried through and con- 
dsdcd by a determinate day, other%vise he is to 
WkI at liberty, under the |>pnaity of wrongous 
iiayrisooment, anil is not to be again incarcerate, 
aalm nn new criminal letters raised against 
W, before the lords of Justiciary ; in which 
Iw dftf, bis trial must be concluded in ano- 
iIkt dij, iiarticularly fixcil by the enactment, 
<(fr«rvite the prisoner is to be set at liberty, 
lodto be tor ever free from all question or pro- 
CCK for tliat crime. Certain exceptions are 
iben ioiroduced with resfiect to treason, and 
Mtae Cither oflTences more immediately affecting 
t^ public security ; and a provision annexed, 
tlut uii person shall be *■ transporte<l furth of 
'tlii<i kingdom,' except with his own consent, 
fiven before a judge or by legal sentence, 
Boder the certification, that any judge or ma- 
{a^raie, who shall give order for such trans • 
portaiion, or any one, who shall so transport 
taotiier, shall nut imly Im* liable in the pecu- 
aiiry paius of 'wrongous impriKonment, as de- 
dared by the net, but sbaii lose their oflices, 
!&•! be I'f^'hired incanablu of all public trust. 
Tht-«e arc the general outlines of this important 
uaiiite ; the value of which cannot be too 
fcu^nly prized by the people of Scotland, nor 
^ rtUervance too strictly maintained by the 
judjes and magistrates.'* 

B) the act of the 30ih of George S, per- 
KU accused of sedition are excepted from 
aruio pn)vi*fion8 contained in the act against 
*^iD::*lUs imiiiisoniiient. As to this, see the 
Cm of the liiuters against tbe Militia Law, 



and afterwards, to wit, on the lOtb day of No- 
vember in the same year, arrived in this king- 
dom, to wit, in London, that is to say, in the 
parish of St. Mary-1e-Bow in the ward of 
Cheap; and that the said Charles Steuart 
brought the said James Sommersett, his negro 
slave and property, aK>ng with him in tbe said 
voyage, from America aforesaid to this king- 
dom, as the negro slave and property of bim 
tbe said Charles Steuart, to attend and serve 
him, during bis stay and abiding in this king- 
dom, on tbe occasion aforesaid, and with an 
intent to tarry the said James Sommersett 
back again into America, with him the said 
Charles Steuart, wben the said affairs and husi* 
ness of the said Char1e<)' Steuart should be 
transacted ; which said affairs and business of 
the said Charles Steuart are not yet transacted^ 
and the intention of the said Charles Steuart 
to return to America as aforesaid hitherto hath, 
continued, and still continues. And I do fur- 
ther certify to our said lord the king, that tha 
said James Sommersett did accordingly attend 
and serve the said Charles Steuart in this king* 
dom, from the time of his said arrival, until tha 
said James Sommersett*8 departing and absent- 
ing himself from the service of the said Cbarlea 
Steuart herein after- mentioned, to wit, at Lon- 
don aforesaid in the parish and ward aforesaid ; 
and that before the coming of this writ to me, 
to wit, on the first day of October in the year 
of our Lord 1771, at London aforesaid, to wit, 
in the parish and ward aforesaid, the said Jamea 
Sommersett, without the consent, and a^inst 
the will of the said Charles Steuart, and withoul 
any laivful authority whatsoever, departed and 
absented himself from the service of the said 
Charles Steuart, and absolutely refnsed to re- 
turn into the service of the said Charles Steuart, 
and serve the said Charles Steuart, during hia 
stay and abiding in this kingdom, on the occa* 
sion aforesaid : whereupon the said Charles 
Steuart afterwards and before the coming of 
i this writ to me, to wit on the 261 h day of No- 
vember in the year of our l^ird 1771, on board 
I the said vessel called the Ann and Mary, then 
and still lying in the river Thames, to wit at 
London aforesaid, in the parish and ward afore- 
said, and then and still bound upon a voyage 
for Jamaica aforesaid, did deliver the said 
James Sommersett unto me, who then was, 
and yet am master and commander of the said 
vessel, to be by me safely and securely kept 
and carried and conveyed, in the said vessel, m 
the said voyage to Jamaica aforesaid, to be 
there sold as the slave and property of the said 
Charles Steuart ; and that I did thereupon 
then and there, to wit at liondon aforesaid iu 
the parish and ward aforesaid, rccciTeand take, 
and have ever since kept and detaioe<l the said 
James Sommersett in my care and custod}', to 
be carried by me in the said voyage to Jamaica 
aforesaid, tor the purposi? aforesaid. And this 
is the cause of my taking and detaining the 
said James Sommersett, whose body i hare 
now ready as by the said writ I atn com- 
manded." . 



fS] 



12 GEORGE IIL 



The Negro Cue. 



P* 



After the readinn^ of the return, Mr. Ser- 
jeant Dary, one of the counsel for Som* 
mersett the negro, desired time to prepare 
his argunnent against the return ; and on 
account of the importance of the case, the 
Court postponed hearing the objections against 
the return, till the 7th of February, and the 
recognisance for the negro's appearance was 
ouutinued accordingly. On that day Mr. Seij. 
I>avy and Mr. Serj. Glynn argued against the 
return, and the farther argument was post- 
poned till Easter term, when Mr. Mansfield, 
Mr. Alleyne, and Mr. HargraTC, were also 
beard on the same side. Afterwards Mr. 
Wallace and Mr. Dunning argued in support 
of the return, and Mr. Serjeant Dary was 
beard in reply to tbero. The determination of 
the Court was suspended till the following Tri- 
nity term ; and then the Court was nnanimous- 
Iv of opinion against the return, and ordered 
that Sommersett should be discharged. 

Argument of Ma. Harobave for the Negro.* 

Though the learning and abilities of the 
gentlemen, with whom I am joined on this 
•ccasiouy bsTe greatly anticipated the argu- 
■lente prepared liy me ; vet I trust, that the 
importance of the case will excuse mci for dis- 
closing my ideas of it, according to the phm 
and order, which I origindly found it con?e- 
nient to adopt 

The case before the Court, when 
^a!tc£!^^ expressed in few words, is this. 
Mr. Stenart purchases a negro 
alare in Virginia, where by the lav of tlie place 
negroes are slaves, and saleable as other pro- 
perty. He comes into England, and bnngs 
the negro with him. Here the negro leaves 
Mr. fittenart's senriee without his consent; 
and aiUrwards persons employed by him seize 
the negro, and forcibly carry him on board a 
•hip bound to Jamaica, tor the avowed. pnr- 
pcse of transporting him to that island, and 
tliere selling nim as a slave. On an applica- 
tion by the negro's friends, a writ of Habeas 
Corpus is granted ; and in obedience to the 
writ he is i^odnced before this court, and here 
anea for tiM restitution of his liberty. 

The questions, arising on this 

«?&?cm£ ^""^ ^^ '^ merely conceni the 
unfortunate person, who is the 
anlject of it, and such as are or may be under 
like unhappy circumstances. They are highly 
interesting to the whole community, and cannot 
be decided, withoat having the naost general 

* The following Argument, on the behalf 
of the negro, is not to m considered as a speech 
actually delivered : for though the author of 
h, who was one of the counsel for the negro, 
did deliver one part of his Argument in couct 
without tlie assistance of notes ; yet his Aiga- 
meat, as here publishpd, is entirely a written 
^omplfiiition. This drcumstanee is mentioned, 
Icat the author shouhl be thought to daim a 
Merit lo which be has not tbelaaat title Her- 



and important consequences; vritbont extensive 
influence on private happiness and public to- 
curity. The right claimed by Mr. Sleuart to 
the detention of the negro, is founded on the 
condition of slavery, in which he was before 
his master brought him into England ; and if 
that right is here recognised, domestic slaverv* 
with its horrid train of evils, may be lawfully 
imported into this country, at the discretion oif 
every individual foreign and native. It will 
come not only from our own colonies, and 
those of other European nations ; but from 
Poland, Russia, Spain, and Turkey, from the 
coast of Barbery, from the western and eastern 
coasts of Africa, from every part of the world, 
where it still continues to torment and dishonour 
the human species. It will be transmitted to 
us in all its various forms, in all the fi^radationa 
of inventive cruelty : and by an universal re- 
ception of slavery, this country, softmous for 
public liberty, will become the chief seat of pri* 
vate tyranny. 

In speaking on this case, I shall ^^^^^ ^^i^^ 
arrange my observations under two •'^ ^ ^^ 
heads. First, I shall consider the *^*^ 
right, which Mr. Stenart daims in the persoB 
of the negro. Secondly, I shall examine Mr* 
Steuart's authority to enforce that right, if he 
has any, by imprisonment of the negro and 
transporting him out of tiiis kingdom. The 
Court's opinion in fovonr of the negro, on either 
of these points, will entitle him to a dischaigt 
from the custody of Mr. Stenart. 

(Irt.) The first point, concerning ^^ ^^^^ ^ 
Mr. Stenart's right in the person of J!^^'^' 
the ne^, is the great one, and Sieac irA 
that which, depending on a variety f"'^ 
of considerations, requires the peculiar attention 
of the Court. Whatever Mr. Steuart's right 
may be, it s|nings out of the condition of 
slavery, in vihich the negro was before his ar- 
rival in England, and wholly depends on the 
continuance of that relation; the power of im- 
prisoning at pleasure here, and of transporting 
mto a foreign country for sale as a slave, cer* 
Uinly nnt being exerdseaUe over ,^ ^^ 
an ordinary servant. Accordingly <buiid«tioD of 
the return foirly admits slavery ^ ^^^^ «• 
to be the sole loundation of Mr. 
Stenart's daim ; and this brings the question^ 
as to the present lawfulness of slavery in Eng- 
land, directly before the Court. It would have 
been more artful to have asserted Mr. Steuart'g 
daim m terms less explicit, and to have stated 
the stovery of the negro before his coming into 
England, roereljr as aground for claiming him 
beie, in therdation of a servant bound tofollow 
wherever his maater should require his service. 
The case represented in this disguised way, 
though in substance the same, would have been 
less darmiuff in iU first appearance, and 
night have afforded a better chance of evading 
the true question between the partiea. But 
this artifice, howeverconvenient Mr. Steuart'i 
conned may find it in amment, has not been 
adopted in the return; the caae being there 
■tatid M it really is, wiUiinit iny auppriwion 




The Negro Cau. 

. . i «aitoe»1 ttic ([rest extent of Mr. 

■ cfaim, or any calouhnK ot'IanfCiiaei^ 
s reiiures of slsT«ry iu the 
f ttti nrdiunry aemnl. 
^^_ Bejiire I tniep upon Ihe en- 

iHMi m lairy into llic preienl iBwfulnfss of 
J^ alaTcry in Enclnnil, I lliink Jlnf- 

t^esMry la make soDie general ob- 
MTUiavi «ii (Ufery. 1 mein liowefer al- 
nnu kfipp in licw ilavery, Dot as it ia in tlie 
friibanaC* luhjeotloan M«otule prince, but 
mIj m U ia in llie relation of Ihe lowed speciei 
rfMrraM <o lit* maaler, in any aiate, nhetber 
firtvr Mberwiae in in rorm of governmenl. 
QbI coMfamoa lias ensunl from diaennrBing' 
«A«ery, without due altenlion (o tlie ili^ 
fcanee Mween the Jesnoiiitm of a sovereign 
a*«ra vliolt people and tlial of oue subject 
n m ■■■Iber. The former la foreipi li> the 
fnMVl ea>« ; and therefore when 1 am de- 
•oiliiayrfBvery.or obsFrfing upon il, I desire 
•• be nadcrtfood aa ciiiifintng mvEdf tu the 
lalln-t Ikoogh from the conneclion belwecii 
keiiraaubrMU, anmeof myobservaliona may 
farhapa be applicable to butli. 
TT , ^ Slavery hai been attended in 

Maatiu. dilfereiil cnunlries witli circnm- 
*'■ Mancea so larious, aa to render it 

M cnit t9 EtTC u ^^neral description of il. 
TWRmbkii lawyer (a) calls slavery, a couati- 
tmtm of the taw ul' nalinns, by nlilch one is 
■air aiabfMl to anollitr contrary to nature. 
Ibo tlw^ as has heco often observed by the 
maraiuiatiMi, is mistabing ihe law, by which 
ibtfj ta conitituied, for alavery ilaelf, the 
WM fat tha effect ; Ihough il mast he con- 
fBal,Uiat the latter part of the definition nb- 
■Hrfj hiol* at Ihe nature of alavery. OrDtlua 
W fcalrihiaalavery to be, an obligatinn to lerre 
•BsAv for life, in conaideraiion of being aup- 
fW iMi Ihe bars neeeisariet of lile. Di'. 
KaikrfinI (<-) r 



«Am dcininit detuotisni to be an alienable 
ncte ha direct alt the actions of another, frnin 
rta ac ( cMMludea, ihal perfect slavery is an 
r M <p li> w 10 be so directed. Thia last detini- 
tMa any aMte in convey a general idea of 
<lit«fj} but like that by Grolius, and many 
■tbar dafiaUoni which I have seen, if uoder- 
•nud Mricdj, will scarce suit any species of 
slavery, W which it is applied. Besides, il 
avM ottcafalavcry'* severest and most usual 
tadilients t ibcqnaliu, by which it involves all 
Ika ta«e m the iDisfurlune of (he pareut. In 
Iralk, M I have already hinted, the variety of 
fciiwa. in wliieta ilavery ap|>ean, tnakei it al- 
Mat iiBpoaalfale to convey a Jiisl notion of it In 
■lie KBT of drltnilioa. There are however 
- i|>'rii*a, which have accomjiauied 



- 111). 1, 111. S, I. ♦, a. 1, ' Serv'riua 
I iiirujunagvntiuni, ^nft quia duini- 
u evnira ualoram auhjicitur.* 

MJ Jar. B»ll. Kb. 'J. o. i. .. j(T. 

^3 iMt-Nal. L. b. l,e.tn,f. 474. 



A. D. 1771. 
ilavery in mosl placet ; and by altendiD|r ia 
these, we may always distinguish i I, front lh» 
mild speciea of domeatic service so common 
and well known in our own country. I shall 
shortly enumeralethe most remarkable of ihosa 
properlies; |iHrticularly, such as cliaracterize 
ihe specie of slavery adopted in our American 
colooies, being that now under the considera- 
tion of this conrt. This I do, in order thai a 
just conception may be formed, of the propriely 
with which I shall impute to slavery the most 
pernicious effecls. Without such a previous 
explsnation, the most solid objectiona to (be 
permission of slavery will have ibe appearance 
of nnmeening, though s|ie('ious, declainalion. 

Slavery always imports an obli- tmixnia 
gation of perpetual service; an unKjirm- 
ohligation, which only the conaent u^!)^.'' 
of the mailer can dissolve.— It ge- 
nerally gives to the mailer, an arbitrary power 
of ad miaielering every anrt of correction, liow< 
ever inhuman, not immediately afltcliug tbe 
life or limb of Ihe slave : sDmelimes even these 
are leQ exposed to the arbitrary will of tha 
master ; or they are protected liy fines, and 
other slight poniabmeuta, too iocooaiderable to 
reatraio the master's inhnmanity. — It creates 
an incapacity of aeqniriag, except lor the 
roaster's benefit.— Il allows the mailer to alie- 
nate Ihe pei«on of the slave, in the aaiue man* 
ntr as other propeHy.— Lastly, it descenda 
from parent to child, with Jail its setere ap- 
penilages.^ — On the most accurate comparison, 
there will be found nothing exaggerated in this 
repreaentBtion of slavery. The description 
agrees with almost every kind of slavt'ry, for- 
merly or now existing; except only that rem- 
nant of the ancient slavery, which sllll lingers 
in some parts of Europe, but qualified and 
moderate/ in favour of the slave by the hu< 
raane grovisinn of modern times. 

From this view of the condition 
of slavery, il will bo easy to deriie "Ji,*^^." 
ils destructive consequences. — It 
corrupts the morals ol the master, by freeing 
him from those restraints with respect to his 
slave, so necessary for controul of the human 
passions, so beneficial in promoting the prac- 
tice and confirming Ihe habit of virtue. — It is 
dangerous to the master ; because his oppres- 
sion excites implacsble resentment and hatred 
in Ihe slave, and tha extreme minery of his 
condition continually {prompts him to risk tha 
gratification of them, and his situation daily 
fumishea the opporluniiy — To the slave it 
communiuates all the afiliclionw of life, wilhout 
leaving for him scarce any of its nieasurea ; 
and it depressea the excellence of his nature, 
by denying the ordinarv means and motives of 
improvement. Il is dangerous to the state, 
by its corruption of those citizens on whom ila 
prDsperily depends ; and by adnnlling within 
II a multitude of peraotis, wlm being excluded 
from tbe common beneliiB of the conatitution, 
are inlerealed in scheming its destruction. — 
Hence it ia, that slavery, in whatever tighl wa 
view it, may b« deemed ■ most pernicious ia- 



27] 



12 GEORGE III. 



The Negro Case. 



[28 



stitution: immediately so, to the unhappy 
person who suffers under it ; finally so, to the 
master who triumphs in it, and to the state 
which allows it. 

opioiooof However, I m«st confess, that 

aome modem notwithstanding the force of the 
£^"0° the reasons against the allowance of 
miuiy of »ui- domestic slavery, there are civiUans 

TCTf, but un- _ ••/ ■ • • ^ 

derntnyrc- of great Credit, who insist upon 
•iricuoiu. 1^ u^-jjiy . founding themselves 

chiefly, on the supposed increase of rohhers 
and b^gars in consequence of its disuse. This 
opinion is favoured by Puffendorf (d) ai|d 
Ulricus Huberus (e). In the dissertation on 
slavery prefixed to Potgiesserus on the German 
law * de statu servorum,' the opinion is exa- 
mined minutely and defended. To this opi- 
nion I oppose those ill consequences, which I 
have already represented as almost neces- 
sarily flowing from the permission of domestic 
slavery ; the numerous testimonies Sjpainst it, 
which are to be found in ancient ana modem 
history ; and the example of those European 
nations, which have suppressed the use of it, 
after the experience of many centuries and in 
the more improved stale of society. In jus- 
tice also to the writers just mentioned 1 must 
add, *that though they contend for the advan- 
tages of domestic slavery, they do not seem to 
apnrove of it, in the form and extent in which 
it has generally been received, but under limi- 
tations, which would certainly render it far 
more tolerable. Huberus in his Eunomia 
Romana {/) has a remarkable passage, in 
which, after recommending a mild slavery, he 
cautiously distinguishes it from that cruel spe- 
cies, the subject of commerce between Africa 
and America. His words are, * loqoor de ser- 
vitute, qualis apud civiliores populos in usu 
fuit; nee enim exempla barbarorum, vel qua 
nunc ab Africft in Americam fiunt hominum 
commercia, velim mihi quisqiiam objiciat.' 
•ritiaortu. The great ongin of slavery is 
very* f?**^'^ captivity in war, though sometimes 
iuiMrn coui- it lias Commenced by contract. It 
^^' has been a question much agitated, 

whether either of these foundations of slavery 
is consistent with natural justice. It would be 
engaging in too large a field of enquiry, to at- 
tempt reasoning on the general lawfulness of 
slavery. I trust too, that the liberty, tor which 
I am contending, doth not require such a dis- 
quisition ; and am impatient to reach that part 
of my argument, in which I hope to prove 
slavery reprobated by the law of England as 
an inconvenient thing. Here therefore I shall 
only refer to some of the most eminent writers, 
who have examined, how far slavery founded 
on captivity or contract is conformable to the 
law of nature, and shall just hint at the reasons, 
which influence their several opinions. The 
antient writers suppose the right of killing an 

(d) Law of Nature and NaUoDS, b. 6, 0. 3, 
1. 10. 
(t) Prelect. Jur. Cir. p. 16. 
(/) See page 48. 



enemy vanquished in a just war ; and thence 
infer the right of enslaving him. In this opi- 
nion, founded, as I presume, on the idea of pu- 
nishing the enemj for his injustice, they are 
followed by Albericus Gentilis (g), Grotius (A)^ 
Puffendorf (i), Bynkershoek Q), and many 
others. But in < The Spirit of Laws' (k)ihe 
right of killing is denied, except in case of ab- 
solute necessity and for self-preservation. 
However, where a country is conquered, the 
author seems to admit the conqueror's right of 
enslaving for a short time, that is, till the con- 
quest is effectually secured. Dr. Rutherforth, 
(/) not satisfied with the right of killing a van- 
quished enemy, infers the right of enslaving 
him, from the conqueror's right to a reparatioa 
in damages for the expences of the war. I do 
not know, that this doctrine has been exa- 
mined ; but I must observe, that it seems only 
to warrant a temporary slavery, till reparatioa 
is obtained from the property or personal la- 
bour of the people conquered. The lawfulness 
of slavery bV contract is assented to by Grotius 
and Puffendorf (in), who found themselves on 
the maintenance of the slave, which is the con- 
sideration moving from the master. But a 
very great writer of our own country, who is 
now living, controverts (n) the sufficiency of 

(g) De Jur. Gent. cap. de servitute. 

(h) De Jur. Bell. 1. 3, c. 7, s. 5. 

(i) Law of Nature and Nations, b. 6, c. 3, 

8.6. 

(j) Qufest. Jur. Publ. I. 1, t. 3. 

(k) B. 15, c. 2. 

(I) See his Inst. Nat. Law, vol. 2, p. 573, 
and vol. 1, p. 481. 

(m) See Grot. Jur. Bell. 1. 3» c. 5, s. 1, 2, 
and Puff. Law of Nature and Nations, b. 6» 
c. 3, s. 4. 

(n) See Blackst. Comment 1st ed. vol. 1, 
p. 412. 

The authority of Mr. Justice Blackstone 
having been cited both for and against the 
rights of persons claiming to be the owners of 
slaves in Great Britain, 1 have thought it worth 
while to insert together all that I find relating 
to the subject in his Commentaries: 

*' The spirit of liberty is so deeply implanted 
in our constitution, androoted even in our very 
soil, that a slave or a negro, the moment he lands 
in England, falls under the protection of the 
laws, and so far becomes a freeman ; though 
the master's nght to his service may possibly 
still continue." Vol. l, p. 127. 

** I have formerly observed that pure and 
proper slavery does not, nay cannot, subsist in 
England ; such 1 mean, whereby an absolute 
and unlimited power is given to the master over 
the life and fortune of the slave. And indeed 
it is repugnant to reason, and the principles of 
natural law, that such a state should subsist 
any where. The three origins of the nf(i\i of 
slavery, assigned by Justinian, are all ot them 
built upon false foundations. As, first, slavery 
is held to arise ' jure gentium,' from a state of 
captivity in war; whence sltTei are called 



B] The Negro Case. 

inch i oontiderakion. Mr. Locke has framed 
aaoUicr kind of argument against slarery 

« nasftpia, ^aasi mann capti.' The conqueror, 
njike civilians, had a right to the life of his 
o^; and, having spared that, has a right 
bdctl with him as be pleases. But it is an 
Btroe nontion, when taken generally, that, 
if^ the law of nature or nations, a man may 
kill bis enemy : he has only a right to kill him, 
IB particular cases ; in cases of absolute ne- 
ccHity, for 8elf-«1efeDce; and it is plain this 
ibnlute necessity did not subsist, since the 
Ticlor did not actually kill him, but made him 
prisoner. War is itself justifiable only on prin- 
ciples of teif-preser? ation ; and therefore it 
gires no other right over prisoners but merely 
to disable them from doing harm to us, by con- 
fiaiog their persons : much less can it give a 
right to kiU| torture, abuse, plunder, or even to 
cnUve, an enemy, when the war is o?er. 
Saoe tlierefore the righ( of making slaves by 
ctptivity depends on a supposed right of 
daaghter, that foundation failing, theconse- 
^ocnee drawn from it must fail likewise. But, 
SKOiidly, it is said that slavery may begni * jure 
' dvili ;' when one man sells hiipself to ano- 
ther. This, if only meant of contracts to serve 
«r work for another, is very just : but when 
applied to strict slavery, in the sense of the 
laws of old Rome or modem Barbary, is also 
iaipossible. Every sale implies a urice, a 
' ^oid pro quo,' an equivalent given to tne seller 
is lien of what he transfers to the buyer : but 
what equivalent can be given for life, and 
Acrty, both of which (in absolute slavery) are 
hcUio be in the master's disposal? His pro- 
foij slso, the very price he seems to receive, 

devvtrcs ipsojacto to bis master, the instant he 
hKomts his slave. In this case therefore the 
frojff gives nothing, and the seller receives no- 
ibro);: of what validity then can a sale be, 
vkich destroys the very principles upon which 
111 sales are founded? Lastly, we are told, 
that besides these two ways by which slaves 
' 6ant,' or are acquired, they may also lie here- 
diury : * servi nascuntur ;' the children of ac- 
quirecl slaves are, * jure nature' by a negative 
kiul of birthright, slaves also. But this, being 
built on the two former rights, must fall together 
with them. If neither captivity, nor the sale 
of one's self, can by the law of nature and 
reason reduce the parent to slavery, mpch less 
cau they reduce the oflfsiprint;. 

*' Upon thr«e principles the law of England 
abhors, and will not endure the existence of, 
•Uver}' within this nation : so that when an at- 
trcopt was made to introduce it, by statute 
1 £dw. 6, c. 3, which ordained, that all idle 
vi^bonds should be made slaves, and fed upon 
brrad, water, or small drink, and refuse meat ; 
should wear a ring of iron round their necks, 
armig or legs; and should be compelled by 
beating, chaining, or otherwise, to perform the 
work assigned them, were it never so vile ; the 
sphitoftlie nation could not brook thiscondi- 
tiOB, even in tho most abandoned rogues; and 



A. D. 1771. 



[30 



I 



by contract (o) ; and the substance of it is, 
that a right of preserving life is unalienable ; 
that freedom from arbitrary power is essential 
"to the exercise of that right; and therefore, 
that no man can by compact enslave himself. 
Dr. Rutherforth (p) endeavours to answer Mr. 
Locke's objection, oy insisting on various limi- 
tations to the despotism of the master ; parti* 
cularlyi that he has no right to dispose of the 
slave's life at pleasure. But the misfortune of 
this reasoning is, that though the contract can- 
not justly convey an arbitrary power over the 
slave's life, yet it generally leaves him without 
a security against the exercise of that or any 
other power. I shall say nothing of slavery 
by birth ; except that the slavery of the child 
must be unlawful, if that of the parent cannot 
be justified ; and that when slavery is extended 
to the issue, as it usually is, it may be unlawful 
as to them, even though it is not so as to their 
parents. In respect to -slavery used for tho 
punishment of crimes against civil society, it is 
founded on the same necessity, as the right of 
inflicting other punishments ; never extends to 
the offender's issue ; and seldom is permitted 
to be domestic, the objects of it being g^ene- 
rally employed in public works, as the galley- 

therefore this statute was repealed in two years 
afterwards. And now it is laid down, that a 
slave or negro, the instant he lands in Engkiod, 
becomes a freeman ; that is, the law will pro« 
tect him in the enjoyment of his person, and 
his property. Yet, with regard to any right 
which the master may have lawfully acquired 
to the perpetual service of John or Thomas, 
this will remain exactly in the same state as 
before ; for this is no more than the same stato 
of subjection for life, which every apprentice 
submits to for the space of seven years, or 
sometimes for a longer term. Hence too it 
follows, that the infamous and unchristian prac- 
tice of withholding baptism from negro ser- 
vants^ lest they should thereby gain their li- 
berty, is totally without foundation, as well as 
without excuse. The law of England acts 
upon general and extensive principles : it gives 
liberty, rightly understood, that is, protection, 
to a Jew, a Turk, or a Heathen, as well as to 
those who profess the true religion of Christ ; 
and it will not dissolve a civil obligation be- 
tween master and servant, on account of the 
alteration of faith in either of the parties: 
but the slave is entitled to the same |>rotec- 
tion in England before, as aAer, baptism ; 
and, wliatevf r service the heathen negro owed 
of right to his American master, by general 
not hy lociil law, the same (whatever it be) is 
he bound to render when bruoght to England 
and made a Christian." Vol. 1, p. 423. 

In these passages, there appears to be some- 
what of very subtle distinction, if not rather of 
contradictiuii. 

(o) See Locke on Governm. 8vo edit. b. 9, 
c. 4, p. 213. 
(p) See his Inst Nat. Law, vol. 1, p. 480. 



31] 



12 6E0BGB III. 



The Nqpro Case. 



[32 



sltFes are in France. Gonaeqaently ihia kind 
of slavery is not Kable to the principal objeo- 
lions, which occur affainstsbiTefy in giDen\{q), 
Upon the whole of this controFersy concerning 

(g) Some writers there are, who deduce the 
lawfulness of domestic slavery from the prac* 
tiee of it amongst the Jews, ind from some 
passages in the Old Testament which are 
thought to conntenanoe it. See Vinn. in Instit 
Heineoc. ed. 1. 1, t 3, p. 31. There are others 
who attempt to justify slavery by the New 
Testament, because it contains no direct pre- 
cepts against it See Tkyl. Elem. Cir. L. 434. 
I— I shul not attempt to examine either of these 
opinions.— JBargrove. 

In the discussions respecting the African 
■lave trade, which were maintained during se- 
reral years preceding the abolition of that 
traffic (by stat. 46 Geo. 3, c. 58, see also 
c. 119, and 51 0.3, c. 93), the authority of the 
scriptures was appealed to by the oppugners 
and defenders of the trade. On June 24, 1806, 
the learned and eloquent Dr. Horsley, bishop 
of St Asaph, ddiveced in the House of Lords 
upon the subject, every powerful speech, from 
which I have extracted the following passages. 

*' My rev. brother" (the bishop of London) 
*' told your lordships, that perpetual slavery 
was not permitted by the Jewuh law. That a 
native Jew could be held in slavery for seven 
years only, at the longest. For he Lad a right 
to his freedom upon toe first return of the sab- 
batical year. And that a ibrei^ slave pur- 
chased in the market, or captivated in war, 
eould be held in slaveiy for fifty years onljr, at 
the longest. For the foreign slave had a right 
to bis freedom upon the first return of the year 
of Jubilee. And from these premises, my rev. 
tirother concluded, that perpetual slavery was 
unknown among the Jews. 

'* I confess, I was carried away by the fair 
appearance of my rev. brother's aiguments, 
tib, to my great surprise and his utter confu* 
•M>n, the noble earl (of Westmoreland) rose, 
with his Bible in his hand, and quoted chapter 
and Terse against him ! 

** My lords, with respect to the luUive 
Hebrew slave, we have this law, which was 
qaoted by my rev. brother : * If thy brother, 

* an Hebrew man, or an Hebrew woman, be 

< soM unto thee, and serve thee six years, then 

* in the seventh thou shalt let him go free from 

< thc». And when thou sendest nim out free I 

* from thee, thou shalt not let him go away 

* empty. Thou shalt furnish him liberally 
' ont of thy flock, and out of thy flour, and out 

* of thy wine-press. Of that wherewith the 
« Lord thy God hath blessed thee, thoa shalt 

* give unto him.' Dent xv. 19 — 14. 

*< And with respect to the foreign slave, we 
have this law, quoted likewise by my rev. bro- 
ther : * Thou shalt number unto thee seven 

* sabbaths of years, forty and nine years. Then 
■ahaltthon cause the trampet of the jubilee to 

* sound throughout all the land. And ye shall 
' hallow the fiftieth year, and proolaim liberty 



skverr, T think mvsdf warranled in saying, 
that the justice andlawfuhiess of every species 
of it, as it is generally constituted, except the 
limited one rounded on the commission of 

* throughout all the huid, to all the inhabitanti 

* thereof.' Lev. xxv. 8—10. 

« The manumission of the Hebrew slave on 
the seventh year, was provided for by the other 
law. Under the expression, therefore, of all the 
inhabitants, foreign slaves must be eompro* 
bended ; for none but foreign slaves could re* 
main to be manumitted in the fiftieth year. 

** My brds, there is a circumstance not 
touched upon by my rev. brother ; but there is 
a passage in tlie law, which 1 have always 
considered, as a strong argument of the lenity, 
with which slaves vrere treated among the 
Jews, and of the efficacy of the provisions the 
law had made, to obviate the wrongs and iniu* 
ries to which the condition is obnoxious. — ^My 
lords, I am afraid I cannot, by memory, refer 
exactlj^ to the place. But the noble earl there, 
with his BiUe, I am sure will have the good- 
ness to help me out and turn up the passage 
for me. Mj^ lords, it is a passage, in which 
the law provides for the casA. of a slave, who 
should be so attached to his master, that when 
the term of manumission, fixed by the law 
shouM arrive, the slave slionid be disinclined 
to take advantage of it, and wish to remain 
with his master. And the law prescribes the 
form, in such case to be used, by which the 
master and the slave should reciprocally bind 
themselves, the slave to remain with bis master 
for life, and the master to maintain him. This 
I have always considered as a strong inUicatioo 
of the kindness, with which slaves were treated 
among the Jews ; else whence should arise that 
attachment, which this law supposes ?" [Query 
if the bishop had in his mind the begioDing of 
the 21st chapter of Exodus, if so, the words 
are ' he shall serve him for ever.'] 

** But we are all in the wrong, it seems — my 
rev. brother and I*-we reason from specious 
premises, but to false conclusions. The noble 
eari has produced to your lordships a pasMge 
in the Leviticai law, which enacts that the 
foreign slave should be the property of bis 
master for ever. Whence the noble earl con- 
cludes that the perpetual servitude of foreign 
slaves was actually sanctioned by the law. 
But, my lords, I must tell the noble earl, and I 
must Ml your lordsliips, that the noble earl hao 
understanding at all of the technical terms of 
the Jewish law. In all the laws relating to the 
transfer of property, the words ' for ever,* 
signify only * to the next jubilee.' That is 
the longest * for ever' which the Jewish law 
knows with respect to property. And this law, 
which makes the foreign slave the property of 
his master for ever, makes him no louger tho 
master's property than to the next jubilee. 
And, with the great attention the noble earl hao 
given to the laws and hiatory of the Jews, ho 
moat know, that when tboy were carried into 
eaptiviiy, they were loldby thwr prophets, that 




The Negro Cate. 

citil Mriely, ii ai Icasl doublfot ; 
kwfiil, audi circumttancei 
tke it 311, an selJoD) coucur, 
^^ . B jiirt cominencenieDt of 

it M| pooiblr ; sod ihat Ibe oppressive 
■•MI ia whkb it bu geiwrnti)' commeDcei), 
•rcTvd inf«iii ncc^Naty lo enforce ils con- 
■■MM, aod the tnischier* eusuiiit;' fmiD llie 
fOTMNlrMt of il, funub Tery tirnug presump- 
■MJHwuM ill Justtcc. tnil al all erenlBeiiuce 
i* hMDanily aud policy ol' those stales, in 
itith Iha MM of il 19 III) longer tolerated. 
J „f I, But howecer reasonable il may 

• ■^i^w be lo Joobt the justice of domestic 
^5 te ila*ery, linwcTer conrinced we 
^"■^ may be of ils ill effecis, it miiEt be 

tmtmmi, thai ibe practice is aulieni, and has 
Ida ahniMl nniienal. Its begiooing tnay be 
Imd 6vm Ili« retnoleit |ieriad, in which there 
wc »my ItBCM of the history of mankind. It 
— im n I it in ihe harbaroiis slat« of society, 
■ri wM ntalsed, efeu wlieii men were Tar ad- 
wriit in diilizalitin. The nnlinns of anti- 
faiy OMMt fiiiDiiUB for cuunleiiincing the 
MrBof doMTilioalavery were Ibe Jews, the 
OwA*. till! Romans, atxl the antieot Ger- 
MM^r) ; «E)King«i all of whom it preTailed, 
!•■■ Tarioua<le^ee> nrEeTerity. By thean- 
linlG«TniftB* il was conlinued la the connlriM 
tmf «*cr-nRi i and so was trauamitled to the 
j_ rariuua kinird<"ns aud italn, 

Mnaa which arose in Europe out nf the 

■^•^ ruin* of Ihe lliiman em|iire. At 

tm^lli b(M*«*«r it fell into decline in mott 
MS of Knrope ; and amongst Ihe Tarious 



•Mof ibe Crimea which drew down Ihatjudg- 
MM^Mt tbeni, was their gross neglect and 
mJMm of these merciful laws respecting 
^■■MoaiMi. And that, in contempt and de- 
teeraf ibe latr, il had been ihtir practice to 
hMlbcir ForeigD slaves >n lervilude beycnd 
teyMr of jubilee." 

- ■ ■ -My lords, allhottgh ivehare noex- 
(fail prabilHtiun of tho slave trade in the New 
nMMnral, we have a moat express lejirobati on 
If iha Irsd* tn alnves, even in that milder form, 
« •hidh it auhftisled in ancient times. Such 
a nyfrAatiaa of it as leaves no believer al 
Bnty tv a*j. ihat llir shve trade is not coo- 
iSMBgJ by lli« goapel. The rKverend prelate 
a^ Mc'lia* citrd the (Msaags [t Tim. i, 
f— to) ■*> which St. 1*8111 nienlions ' men- 
Milan* Bmnaig tht f[realrst miscreanlt. * Men- 
iailiis' ao «• read in our En^li«h Bilite. 
Rol lh« iBMil ill the original is Attfu-niieatt. 
ttlmrihcir '* Kuraliy a ' date trader,' and 
ki Mbrr tinnl in the Eniflish lauguatie, bul 
daw iraihrr, fireriaely readers it. Il waa I'n- 
^■i4 Mv irchnlMl name for a lUv e trader in 
•■ ttrie h-." 

(r) It apiwara by CKMr and Taciloa, that 
haaacirai Gmaan* had ■ hind at slates be. 
%n th^y rmsitralf^ front tlirir own courilry. 
WC«a.ilc Ball. Gall. lib. 6, cap. 13, el Tac. 
it Mm. (ierman. cap. 114, M Si. et Fulgieaa. 
4«aL avrvttr. af. Cmui. bb. 1, C8[>. I. 

KjroL. XX. 



A. D. 1771. 

caaan, which contributed to this alteration, 
none were probably more effectual, than ex- 
perience of the diaadvanlages of slaiery ; iha 
difficulty of coQijnuing il ; and a persuasion 
that llie cruelly and oppression almost neces- 
sarily incident lo il were irreconcilable with the 
pure morality of the Christian dispensation. 
The history of iu declioo in Europe has lieea 
traced by many eminent writers, parliculsrly 
BodiD(!), Albericus Gentilifi (f), Potgiesserus (u). 
Dr. Itoberlson {b'), and Mr. Millar (.r). It i» 
sufiicienl here to say, thai Ihis great change 
began in Spain, according lo Bodin, about tha 
end of the eighth century, and vras becoma 
general before Ibe middle of the fourteenth 
century. Bartolus, Ihe most famed commen- 
tator CD Ihe civil taw in that period, represents 
slavery as io disuse ; and the succeeding com- 
mentators hold much the sane language. 
However, they must be understood with many 
resLriciboi and exceptions ; and uot to mean, 
that slavery was completely and universally 
nboli.ched in Europe. Some modern civilians, 
nol sufficiently atiendiog to Ihis circum!lance, 
rather too hastily reprehend their predecessors 
for representing slavery as disused ju Europe. 
The truth is, that the ancient species of slavery 
bj| frequent emancipalions became greatly di- 
minished in extent ; the remnant of il was con- 
siderably abated io severity ; the disuse of the 
practice of enilatiog captives taken in the 
wars between Christian powers assisted in pre- 
venting the future increase of ilom est ic slavery ; 
and in some countries of Europe, particularly 
England, a still more effectual method, which 
I shall explain herealler, was thought of toper- 
feet llie BUppressina of il. Such waa the ex- 
piring Blale of domestic slavery in „„;,j, ^,j^ 
Europe at Ibe commencement of chiiIciIi.rt 
the sixteeolh century, when the '° '■'"'""■ 
discovery of Ameiica and of the western and 
eastern coasls of Africa gave occasion lo tb« 
inlroduclion of a new species of slavery. It 
took its rise from the Portuguese, who, in order 
In supply the Spaniards wilb persons able lo 
■uslaio the fatignc of cultivating their new 
poEseabiuns in America, particularly Ihe islands, 
opened a trade between Africa and America 
for the sale nf negro slaves. This ditgraceful 
commerce in Ihe human apecies is said lo have 
beguu in the yeiir 1506, when Ihe fifoi impor- 
tation of negro slaves waa mnde into Hitpaiiiola 
from the Purtagiiese settlements on Ihe western 
ooaslB of Africa (y>. In 1540 llie emperor 
Chariea the tilth endeavoured lo slop the pro- 
gress of the negro slavn-y, by orders that all 



(i) See his book De KepublicA, cap. 5, da 

(t) Jur. Gent, csp.de sertilule. 

(u) Jur. Germ, de statu acrvorum. 

(t/) Life of ibe emperor Charles Ihe Hb, 

TOl. 1. 

(x) Observations on ihe ilistinrliDn ofrankt 
in civil sociely. See alio Tayl. Ekm. Civ. U 
•34 to 4S9. 

(y) Ander. Hist. Comm. T. 1, p> 330. 



S5] 12 GEORGE III. 

ulavef in the American itlee should be made 
free; and ihey were acconiinfriy nannmitted 
by La^fasca the (j^OTeroor of the country, on 
condition of contiouinfif to labour for their nas- 
tert. But this attempt prored umueceesful, 
and on. Lagasca'a return to Spain domestic 
8la?ery re? i?ed anti flourished aa before (2). 
The eipedient of havin§f slaves for labour in 
America was not longf peculiar to the Spaniards ; 
being afterwards adopted by the other Euro* 
peansy as they acc^uired possessions there. In 
consequence of this general practice, negroes 
are become a very considerable article in the 
commerce between Africa and America ; and 
domestic slavery haa taken so deep a root in 
most of our own American colonies, as. well as 
in those of other nations, that there is little 
probability of ever teeing it generally sup- 
pressed. 

hm attempt Here I conclude my observa- 

to^imuxtuGc^^ tions on domestic slavery in ge- 
wttnnSto neral. 1 hare exhibited a view 
ImiD^". "' o^ >(• nature, of iu bad tendency, 
of its origin, of the arguments tor 
and against its jusiice,of its decline in Europe, 
and the introduction of a new slavery by the 
European nations into their American colonies. 
1 shall now examine the attempt to obtrude 
this new slavery into England. And here it 
will be materialto observe, that if on the de- 
clension of slavery in this and other countries 
of £uro|ie, where it is discountenanced, no 
means had been devised to obstruct the ad- 
mission of a new slavery, it would have been 
vain and fruitless to have attempted superseding 
the ancient species. But I hope to prove, 
Arfomeoti to ^^^^ ^^r anccstors at least were 
prate,^tbit Dot aoshort-sighted ; and that long 
EniiaV*in <^ uninterrupted usage has esta- 
blished rules, as effectual to prevent 
the revival of slavery, as their hu- 
manitv was successful in once suppressing it. 
I shall endeavour to abew, that the law of 
England never recognized aoi^ species of do* 
mestic slavery, except the ancient one of vil- 
leoage now expired, and has sufficiently pro- 
vided against tne introduction of a new slavery 
under the name of villenage (a) or any other 
denomination whatever. This proposition I 
hope lo demonstrate from the followmg consi- 
derations. 

1. ArnBCBt ^* ^ apprehend, that this will ap- 
rioi the pear to be the law of England from 

Mktau title the manner of making title to a 
•f • flllelD. ^iii^n. 

The only shvery our law-books take the 
least notice of is that of a -villein ; bv whom 
was meant, not the mere tenant by villein ser« 
vices, who might be free in his person, but the 
villein in blood and tenure; and as the English 

(4) See Bodin de Republic, lib. 1, c 5. 

(a) Villenage is used to express sometimes 
Iha tenure of lauds hehl by villeiii-servicM. and 
■onetimes th* ptnonal bandage of tha viUein ( 
km Uwocfhont thia aigiuBHt it ii appliid ta 



The Negro Cote* 



[36 



not idrait a 

■cv lUrcnr. 



\ I ■ 



1 .1 . 



li 



law has no provisioaa to regulate any othex 
slavery, therefore no slavery can be lawful in 
England, except such as will consistently fail 
under the denomination of villenage. 

The condition of a villein hiul 
most of the incidenU which 1 have ^ ^^ 
before described in giving the idea 
of slavery in general. His service was uncer- 
tain and indeterminate, such as his lord thought 
tit to require; or, as some of our aocieni 
writers {b) express it, he knew not in tlie evening 
what he was to do in the morning, be was 
bound to do whatever he was commanded. He 
was liable to beating, imprisonment, and every' 
other chastisement his lord miffht prescribe, efr 
cept killing and maiming (c). He was incapable 
of acquiring property for his own benefit, the 
rule being * quicquid acquiritur servo, acquiritur 
domino* (d). He was himself the subject o£ 
property ; as such saleable and transmissible. 
If he was a villein regardant, be passed with 
the manor or land to which he was annexed, 
but might be severed at the pleasure of hia 
lord U) If he was a villein in gross, he was an 
hereditament or a chattel real according to his 

(h) See the extracts from them in Co. Litt 
116, b. 

(e) See Terroes de la Ley, edit, of 1567» 
voc Villenage — Old Tenures, can. Villenage— 
Fitzh. Abr. Coron. 17.— 2 Ro. Abr. 1.— S Jnat 
45.— and Co. Lilt. 136, 197. 

(d) Co. Litt 117, a.— The words, in pleads 
ing seizin of villein-service, are very exprcs* 
sive of the lord's power over the villein's pro* 
perty. In 1 £. 2, 4, it is pleaded, that the 
lord was seized of the villein and his ancestors 

* come affaire rechat de char et de ssnk et de 

* fille msrier et de eux tailler haut et has, 5cc.* 
The form in 5 E. 8, ]57i is, * come de nos vi« 

* leynes en fesant de luy notre provost ea 
' p*nant de luy rechat de char et de saunk et 

* redemption pur fille et fits marier de luy el 

* de ces aunc et a tailler haut et haa a notre 

* volente.' In the first of the above fomoe 
there is evidently a misprint ; and the reading 
ahould be * a faire rechat* instead of * affaire 

* rechat.' As to the word * provost' in the 
second form, it seems to signify * plunder,' and 
perhapa the print should be * proie' or ' proye* 
instead of * provost.' I was led to this con- 
jecture by the following proverb iu Cotgrave's 
French Dictionary, * qui a le vilain u a as 

* proye.' See Cotgr. edit, of 1673, voc. proye. 
However, in the Latin Entriea the woni • pro* 

* vest' is translated ' propositum,' which in a 
barbarous sense of the word may be construed 
to signify * will' or * pleasure,' and will make 
the passage intelligible. In aome Entries * prcH 

* vest' is transUted * propositus ;' but this word 
cannot be understood in any sense that will 
make this use of it intelligible. 

The forms of pleading aeisin of villein -aer« 
vieaa in the Latin Entries are very aimilar to 
those 1 ksve sstrsetsd from the ycsr^books. 
8ss RssL Entr. 401. a. 

(%) UttssoLlSa. 



sn 



The N^ro Case* 



M^s inteml ; bein^ detcendible to the heir 

vhcretbe lord wms ibeolote owner, and trans- 

BiMMt to the eieeutor where the lord had 

eoly ■ term of yean in hiro (/). Lastly, the 

way esteDded to the iasne, if both parents 

wet filletBs, or if the father only was a rillein ; 

m kw dcriviosr the condition of the child from 

ia if the father, contrary to the Roman law, in 

fMeh tho rolo wnptuius $equitur ventrem (g^. 

The origin of villenage is princi- 

3^ ^ pally (k) to bederired from the wars 

between our British, Saxon, Danish 

M Nemaii ancestors, whilst they were oon- 

tadiar fi»r the possession of this country. 

isdfeFitsherbert, in his reading on the 4th of 

Uw. 1, stmt. 1. entitled Extenta mttnerUf sup- 

psas fiBeiiage to ha?e commenced at the Con- 

sseit, by the distribution then made of the 

■rfdtod lands and of the vanquished inha- 

lilsnls icsident upon them (j) . But there were 

boDdmeo in England before the Conquest, 

are by the Anglo Saxon laws regulating 

y and therefore it would be nearer the 

Inth to attribate the origin of villeins, as well 

litbe preeediog wars and revolutions in this 

i to the efiects of the Conquest (k). 

After the Conquest many things 

•^ happily concurred, first to check 

the progress of domestic slavery in 

Earlaad, and finally to suppress it. The cruel 

CBStoa c€ enslaving captives in war being abo- 

iiibedv from that time the accession of a new 

nee ef villeios was prevented, and the huma- 

liiy, policy, and necessity of the times were 

— hnallj wearing out the ancient race. 

''nses, DO doubt, manumissions were freely 

; bat they probably were much oftener 



(f) Bro. Abr. Villenage, 60.^^o. Litt. 117. 

ff) Co. Litt. 123. Artieatly our law seems 
It ^ave been very uncertain in this respect. 
8k Gknv. lib. 5, c. C. Nirr. c. 2, s. 38. Britt. 
c 3L Bot the writers in the reign of Henry 
ibe «tb agree, that our law wss as here repre- 
■sted ( and from the plea of bastardy, which 
*M held to bo a peremptory answer to the al- 

Sm of villenage so early as the reign of 
ard the 3d, 1 conjecture, that the law 
vsi settled in the time of his father. See 
Fwteac. Land. Leg. Angl. c. 4^. Lilt. sect. 187. 
—43 E. 3, 4, and Bro. Abr. Villenage, 7. 

(kj I do not say wholly, because probably 
tbcre were some »>laves in England before the 
fins arrival of the Saxons ; and also they and 
the Danes might bring some few from their 
ova country. 

(i) See the extract from Fitzherbert's read- 
■g io Barringt. Observations on Ant. Sut. 2d 
«<a. p. «37.* 

(k) See Spelra. GUms. voc. Lszzi et Servus. 
IwHi. OQ Gavelk. 65, and the index to Wiik. 
Uf. Saxoo. tit. Servos. 

* Cooeeniiog the antiquity of villenage, see 
— '^' -m "A Discourse of Tenures," said 



to be wntieo by sir Walur Raleiffb, published 
• GMli*i CoUoetaiiea Cmu^ ^ ol. l, p. 60. 



A. D. 1771. p8 

extorted during the rage of the civil wars, so 
frequent before the reign of Henry the 7th, 
about the forms of the constitution of the sue* 
cession to the crown. Another cause, which 
greatly contributed to the extinction of villen- 
age, was the disconrsfjement of it by the courts 
of justice. Tbejr always presumed in favour 
of liberty, throwing the ' onus probandi' upon 
the lord, as well in the writ of Homine Reple« 
giando, where the villein was plaintiff, as in 
the Native Habendo, where he was defen- 
dant (/). Nonsuit of the lord after appearanco 

(I) See Lib. Intrat. 176, a. 177, b. 6c Bro. 
Abr. Villenage, 66, It seems however, that if 
after a Native Habendo brought by the lord, 
the villein, instead of waiting for the lord's 
proceeding upon it, sued out a Libertate Pro- 
banda to remove the question of villenage for 
trial before the justices in eyre, on the return 
of it he was to produce some proof of his free 
condition ; and tbi^t if be failed, he and his 
pledges were amerced. But this failure did 
uot entitle the lord to any lienefit from bis Na- 
tive Habendo, and therefore, if be proceeded 
in it, and could not prove the villenage, the 
judgment was for the villein ; or if the lord did 
not proceed, a nonsuit, which was equally fatal 
to tna lord's claim, wa^ the necessary canso> 
qnence. Sea 47 H. 3. It. Dev. Frtz. Abr. 
Villensge, 3^ In truth, the rfqirisition of 
proof from the viliein on the Libertate Pro- 
banda, and the amercement for want of it, 
seem to have been mere form ; for, as Fits* 
herbert vays, in explaining the effect of the 
Libertate Probanda, ** the record shall be sent 
before the justices in eyre, and the lord shall 
declare thereupon, and the villein shall mabo 
his defence and plead thereunto, and the viUvin 
shall not declare upon the writ de Libercato 
Probanda, nor shall any thing be done there- 
upon ; for that writ is but a Supersedeas to 
surcease for the time, and to ailjourn the record 
and the writ of Nativo Habendo, beibre the 
justices in eyre." Fitz. Nat. Br. 77, D. Upon 
the whole therefore it may I think be safely 
asserted, that in all cases of filleoage the 
* onus probandi' wan laid upon the lirrd. 

The several remedies sgainst abd for one 
claimed as a villein are now so little under- 
stood, that perhaps a short account of them 
may be acceptable ; more particularly as, by 
a right conception of them, it will be more easy 
to determine on the force of the argument 
drawn against the revival of slavery from the 
rules conierninflf irillenak^e. 

The lord's remedy for a fugitire villein was, 
either by seizure, or by suing out a writ of 
Nativo Habendo, or Neitty, as it is some- 
times called. 

1. If the lord seized, the villein's most ef- 
.fectual mode of recoveriui; lilierly was liy the 
writ of Homine Keplegiaodu ; m Inch had i;reat 
advantage over the writ of Habeas Corpus. 
In the Habeas Corpus the returu ciuinot be 
contested by pleading agaiost the irutli of it, 
and consequently on a Hftbeaa Corpus the 



Si)] 12 GEORGE IIL 

in a Nalivo Hibendo, which was the writ for 
asserting the title of sUfery, was a bar to an- 
other Nativo Habeodo, and a perpetaal eofran- 
chiaemeot ; but noosuit of the fillein after ap- 
pearaoce id a Libertate Probanda, which was 
one of the writs for asserting the chim of liberty 
against the lord, was no bar to another writ of 
the lilce kind (m). If two plaintifis joined in a 
Nati?o Habendo, nonsuit of one was a nonsuit 
of both ; but it was otherwise in a Libertate 

question of libertv cannot go to a JQiT for trial ; 
though indeed the party making a raise return 
b liable to an action for damages, and punish- 
able by the Court for a contempt; and the 
Court will hear affida? its against the truth of 
the return, and if not satisfied with it restore 
the party to his liberty. Therefore, if to a 
Habeas Corpus villenage was returned as the 
cause of detainer, the person for whom the writ 
was sued at the utmost could only hare ob- 
tained his libertv for the time, and could not 
bare had a regulsr and final trial of the ques- 
tion. But in the Homioe Replegiando it was 
otherwise ; for if villenage was returned, an 
Alias issued directing the sheriff to replevy the 
party on his giving security to answer the 
claim of villenage afWrwards, and the plaintiff 
might declare for false imprisonment and lay 
damages, and on the defendant's pleading the 
villenage had the same opportunitv of contest- 
ing it, as when impleaded by the lord in a 
Natif o Habendo. See Fitzh. N. Br. 66. F. 
et Lib. Intrat. 176, a. 177, b. 

8. If the lord sued out a Nativo Habendo, 
and the villenage was denied, in which case 
Ihe sheriff could not seize the villein, the lord 
vms then to enter his plaint in the county 
court ; and as the sheriff was not allowed to 
try the question of villenage in his court, the 
lord could not have any b^efit from the writ, 
without removing the cause bv the writ of 
Pone itito the King's- bench or Commou Picas. 
[For the count, pleading and judgment in the 
Nativo Habendo afler the remo? al, see Rast. 
£ntr. 436, 437.] It is to be observed, that the 
lord's right of seizure continued notwithstand- 
ing his having sued out a Natifo Habendo, 
unless the Villein brought a Libertate Probanda. 
This writ, which did not lie except upon a 
Natif o Habendo previously sued out, was for 
remofal of the loitl's plaint in the Nativo Ha- 
bendo for trial before the justices in eyre or 
those of the King's -bench, and also for pro- 
tecting the villein from seizure in the mean 
time. This latter effect seems to have been 
the chief reaaon for suing out the Libertate 
Prolmnda; and therefore afler the 85th of 
Edw. 3, Stat. 5, c. 18, which altered the com- 
mon law, and gires a power of seizure to the 
lord, nntwithstaading the pendency of a Liber- 
tate 'Probanda, that writ probably fell much 
into disuse, though subsequent cases, in which 
it was bntught, aie to be found in the year- 
books. ISee Fitzh. Nat. 77| to 79» and 1 1 Ben. 
4, 49. 

(m) Co. U»L 131. 



Z%e Negro Case. 

Probanda (n). The lord could not proeecoli 
more than two villeins in one Nati? o Haben 
but any number of ? illeins of the same b 
might join in one libertate Probanda (o). ] 
numissipns were inferred from the sli^fc 
circumstances of mistake or negligence m 
lord, from every act or omission which h 
refinement could strain into an acknowk 
ment of the villein's liberty. If the lord ve 
the ownership of lands in the villein, rece 
homage from him, or gave a bond to him, 
was enfranchised, goffering the villein tc 
on a jury, to enter into religion and be | 
fessed, or to stay a year and a day in anc 
demesne without claim, were enfranchisemc 
Bringing ordinary actions against him, joii 
with him in actions, answering to his act 
withoot protestation of villenage, iuiparlinf 
them or assenting to his imparlance, or snl 
ing him to be vouched without counter-pleai 
the voucher, were also enfranchisem 
by implication of law {p). Most of the i 
structive manumissions I have mentioned i 
the received law, even in the reign of the 
Edward (y). I have been the more partij 
in enumerating these instances of eztraordii 
fa? our to liberty ; because the anxiety of 
ancestors to emancipate the ancient villeini 
well accounts for the establishment of any r 
of law calculated to obstruct the introdoctio 
a new stock. It was natural, that the s 
opinions, which influenced to discountem 
the former, should lead to the preventioi 
the latter. 

f shall not attempt to follow vil- 
lenage in the several stages of its J^^p 
declme ; it being suflBcient here to 
mention the time of its extinction, wbicfc 
all agree, happened about the latter en< 
Elizaoeth's reign or soon afler the accessio 
James (r). One of the last instances, in wl 
villenage was insisted upon, was Crouch's < 
reportMl in Dyer and other books (s). An 
try having been made by one Butler on si 
lands purchased by Crouch, the question i 
whether he was Butler's villein regardi 
and on two special verdicts, the one in ej 
ment Mich. 9th and lOtb Eliz. and the o 
in assize Easter 11th Eliz. the claim of 
lenage was disallowed, one of the reasons g 
for the judgment in both being the wsn 
seizing of the villein's person within 60 
years, which is the time limited by the 32 
Hen. 8, chap. 8, in all cases of hereditam 

(n) Co. Litt. 139. 

(o) Fiizh. Nat. Br. 78, C. D. 

(p) See Litt. sect 803 to 209, and 3 
Abr. 735, 736, and 737. 

(q) See Britt cap. 31, and Mirr. ca|i 
sect. 38. 

(r) See sir Thomas Smith's Commonwe: 
b. 2, c. 10, and Barringt. Obsery. on Ant. 2 
Sd ed. p. 333. 

(t) See By. 366, pi. 11, and 383, pi. 3^ 

(i) Accord. Bro. Read, on Ibe Stat 
limitit 3S Hm. 8, p8ge ir. 



The Nfgro Case. 

__ ri hfP'B'^P^o'' H- Tbis is generally 
mik H k*T« been the Imi case of villenBge ; 
Ia ttera arc fnar nibnetiiient casea in jirint 
Ohsm in UiUry 18th of Elizabeth (bi); 
^Mfcr WM« a jutlgment in Easter Ist ol 
iMMfi) : Ihc thini, which was nerer deter- 
■M^ h»pp«n«d ia Trinity 8tli ol' James (y) \ 
■<** iiiunhHMsn late as Hilary IMti of 
Jmm (a). From the lath nf James (he Ist, 
lMf«i»n> Ibaa 150 years a^, the claim of 
dwafv hft* not bren beard of in our courts 
•fJMlier ; wiil nntliiog can be mure notorlnua, 
tm Hmt Ibe Tsce of |nnjuHB, trim were onue 
ia rii)eets ol' it, was about lliat time coni- 
Ij v*m out by the continual and united 
thm af dealbi and manumissions. 
■ Iboo^ villenafe itieir is abielete, yet 
bWuiifcity Umm rules, by which the claim of 
Iwani^lated, are iiot yet buried in obliviuo. 
IhtNtllc iBtfastry of our anceatora baa tranS' 
MUri; nor Im us their posterily despise tbe 
Mcnnd leii[Bcy. By a strange progress of 
!■■•■ kAin, the roemory uf slavery expired 
tarn fiiraUtcs ooe of the chief obstacles to the 
(■udMJtien afittvery attempted lo he revived ; 
mi At renffwMK reliijuea of llic learning re- 
Ittt lo vUtma^, so Inn); consigoed lo gratify 
ia ia*Mtig«ting' curiosity of tbe anliquary, ur 
■ari ■■ a vpleodid appendage to lbs orna- 
■oM «f tfa* ochnlar, tnusi oovr be drawn forth 
-•■a Ibartr fsitliful repositories tor a more noble 
r|«a«; to inform and gnide (he sober judg- 
HI af tbio Court, aod as 1 trust 10 preserve 
■ armultty from the miseries ol' domeslic sla- 
wy. 

^^ Littleton (a) aaya, etery lillein 

«M> m either ■ villein by title of pre- 
aJS^ acriptioa, to wit that he and his an> 
oMIora hj*e been f illeius time oul 
^ Faa'ij , or he ia a lillein by his own con- 
■^^ m • court of record. And in another 
fhta ti), bis description of a villein res^rjanl 
Md «l a sUkin in grosa shews, that title can- 
■■!■ nod* in eilhef without prescription or 
csafa^MS. Time whereof no memory runs 
liteaootrary, is on iotepurable incident to 
(•try f«*aon|rttoa (c) ; and therefore, according 
ts LwMod'* account of villenai^, tbe loi^ 
B*M pravc tlie slavery ancient and immemo- 
nl ; 0( ibc 'tlleio must solemnly confess it lo 
I* an io s court of justice. A alill earlier 
"ler Uy» down Ibe rule in terms equally 

:> ) Before this statute of Hen. the 8lh, the 
-iir nf KniiBlioa seems to have lieen the coro- 
i^awuf Hen, 3, asappeara hy the form of the 
Xmv« H*b«iMlo ; though ia oilier nrits of rii;ht 
baHniutimi by 31 E. 1, e. 39. was from the 
«Ma»ae«mrut nf the rrtgu of Uich. tbe 1st. 
(m) 8m Co. Uotr.400, b. 
O) Yrf». «. 

tl} This case is only tu be fnand ia 
"~ ' '• AbHilgment, til. Villenage, pi. S3. 




A. D. I77I. [;« 

strong. No one,)ay« Brition (d), can be a villein 
except of ancient naliviiy, or by acknovrledg- 
menl. All the proceedings to cases of tiltena|re, 
when contested, conform lo this idea of remote 
antiquity in the slavery, and are quite irrecoQ- 
cileable with one of modero coinmenL'emeut. 

1. The villein in alt such suits (r) between 
him and his lord was stileil tialwus ax well os 
villanits; our Bncienl(,/") writers describe a 
female slave by no otber name than that of 
neif; and the technical name of the only writ 
in the law for ihe recovery of a villein is equal- 
ly remarkable, being always called tbe Nativo 
Habcndo, or writ of neitiy. This peculiarity 
of denominalion, wbiuh implies that villenage 
ia a slavery by birth, mi)[bt perbapa of itself Be 
deemed too slight a, founilBlioii tor any solii 
argument ; but when combined with uiher cir- 
cumstances more decisive, surely it is nni 
without very considerable force. 

3. In pleading villenage where il had not 
been confessed on some former occasion, Ihe 
lord always founded bis title on prescrtplion. 
Uur year books, and books of entries, are full 
of the forms used in pleading a tide lo villeins 
regardant. In the Homine Replegiando, and 
other actions where (he plea of villenage waa 
tor the pur|iose of shewing the pluinlilTs dia- 
abiliiy lo sue,. if ihe villein was r^iinlant, the 
delendani alledq[ed, that he was seized of such 
a manor, and that Ihe plainiifFaiid his ancestors 
liad been villeins belonging to the manor lime 
oul of mind, and that Ibe defendanl and hio 
ancestors and all those whose estate he had in 
the manor, had been seized uf the plaiotilTaod 
all his ancestors as of villeins belongiug to ii (g). 
In the Nativo Habendo the form of makiog 
tide to a villein regardanl was in substance the 
aame(A}. In fact, regardancy necessarily im- 
plies prescription, being where one and his an- 
cestors have lieen anneited lo a manor time oul 
ofihememory of man (i). As to rilleinsin gross, 
tbe cases relative lo thera are very few ; and I 
am inclined to think, that there uever was any 
great number of them in England. Tbe au- 
thor of tbe Mirroir {k), who wrote in Ihe reign 
of Edward the 3d, only mentiotis villeins regard- 
ant : and air Thomas Smith, who was secre- 
tary of stale Id tbe reign of Edward the eih, 
says, that in his time be never knew a villein 
in grass thrnugboul the realm (/), However, 



(d) ' Nul ne poit estre villeyn fortque d« 
■ auncienne nalivile ou par recognisance.* 
Britl. Wing. ed. cap. 31, p. 78. 

(e) tSee the form ol ihe wrils of Nalivo Ha- 
bendo and Liberiote Probanda, and also of the 
Alias Homine Keplegiando, where on the Aral 
writ the shentf reiurus the claim of villenage. 

(f) Brit. cap. 31 ic Lilt. sect. 1B6. 

(g) Het Itaat. Entr. til. Homine Reple- 
giando, 373, Ac Lib. Inint. 56. 

(A) See tbe farm in Ub, Intnii. 97, 3c Rast 
Entr. 401. 

CO This ia agreeable lo what Liltleton sayfl 
in sect. IQ'J, (k) Mirr. c. 3, g 38. 

(I) Smiib's Common weal lb, b. 3, c. 10< 



IS GEORGE UL 

after % loof March, I do fiod placet ia tlie year- 
books, where the form ofalledgini^ villenage io 
groM is expressed, not io full terms, but in a 
general ws^ ; and io all the cases I bare yet 
aeen, the villcosge is alledged in the ancestors 
of the person against whom it was pleaded (m), 
and in one of them the words * time beyond 
memory' (n) sre added, lint if precedents bad 
been wsnting, the authority of^ Littleton, ac- 
cording to whom the title to fiJIenage of each 
kind, unleM it has been confessed must be by 
prescription, would not hs?e left the least room 
tor supposing the pleading of a prescription 
less necessary on the claim of ? illeins in gross 
than of thoie regardant 

3. The kind of eridence, which the law re- 
quired to prove villeoage, and allowed in dis- 
£roof of it, is only spplicable to a slavery in 
kiod and family, one uninterruptedly trans- 
mitted through a long line of ancofttors to the 
persfm against whom it was alleged. On the 
lord's part, it was necessar;^ that he shoulil 
prove the slavery against his villein by other 
villnnv of the same blood (o), such as were 
descmded from the same common male stock, 
and would acknowledge themselves t illeins to 
the lord ( p ), or those from whom he derived 

(m) See 1 E. 2, 4.-5 E. S, 15.— 7 £. 8, 
S49, & 11 E. 8, 344. In 13 E. 4, 8, b. pi. 4, & 
3 b. pi. 1 1, there is a case in which villenage in 
groiis is pleaded, where one became a villein in 
gross by severai^ce from the manor to which he 
had been regardant. This being the only case 
of the kind I ha ye met with, I will state mo 
much of it from the year book as is necessary 
to shew the manner of pleading. In trespau 
the defendant pleads, that a manor, to which 
the ptaintifT's father was a villein regardant, 
was given to an ancestor of the defendant in 
tail; and that the manor descended to Cecil 
snd Catharine ; and that on partition between 
them, the villein with some lands was allotted 
to Cecil, and the manor to Catharine ; and then 
the defendant conveyed the villein from Cecil 
to himself as heir. 

(n) UK. 8,344. 

(o) See Hro. Abr. Villenage, 66 Reg. Br. 
117, a. Old Nat. Br. 43, b. Fitz. Abr. Ville- 
nage, 38, 39. A bastard was not receivsble to 
prove villenage, 13 £. 1. It. North. Fitzh. 
Abr. 36, 6c Britt. Wing. edit. 88, a. 

(p) in Fitzlierbert's Natura Brevium, 79. 
B. It is said, that the witnesses must acknow- 
1ed|k:e themselves villeins to the plaintiff in the 
Nativo Habendo ; and there are many autho- 
rities which favour the opinion. See Glanv. 
rd>. .'i, c. 4. Britt Wing. ed. 81, a. 19 Hen. 6, 
3'i, b. Old Tenures, chap. Villenage; and 
the form in which the confession of villensge 
bv the pisintiff's witnesses is recorded, in Rast. 
iSntr. tit. Nativo Habendo, 401, a. However, 
it mini be eoofetscdi that io Fitsberbert the 
opinion tsdeUfertd with a qu^n; aod it is ao 
iiwpaocilaMo wllk Um kiA Mhtof graotioc 
vUWMh* "^ iso.;«Dtl»l, 



The 



Case, 



[*4 



his title ; and at least two witncnes (f) of this 
description were requisite for the purpose. 

(q) Fitzh. Nat. Br. 78, H. & Fitzb. Abr. 
Villenage, b6 5t 37. — Also Briiton says, * no 

* masle sauna plosurs nest mie receivable.' 
Britt. Wingate's ed. p. 88. It is remarkable 
that femalo, whether sole or married, were not 
receivable to prove villenage against men. 
' Sannk de un home ne puit ne doit estre trie 
' par femmes.' Britt. Wing. ed. p. 88. The 
reason ssttigned b more antient than polite. It 
is said to be ' pur lour fira^lte,* and also be> 
cause a man * est pluis digoe person que una 
M'eroe* 13 £. 1. Fitzh. Abr. Villenage, 37.* 

* " Antiently in Scotland the testimony of 
women was not admiited in sny case. * Ano 

* woman may not pass upon assize or be wimess, 

* nather in ony instrument or contract, nor zit 

* for preiving of ane persoun's sge. Neverthe- 

* less gif tliair be ony contraverser tuiching the 

* age of ony persoun, the mother or the nurice 
( may be ressavit as witnessis for preiving thair- 

* of.' " Balfour's Practicks, p. 378. 

« By our constant usage, women are not 
admitted as iostrumentary witnesses, and as 
universal custom is law, so 1 doubt not but it 
will be a nullity in any writing that is attested 
by witnesses, who are both or even one of thena 
women. And though the act 1681, mentions a 
subscribing witness with the masculine particio 
(he), yet that without the aubsequent usage ia 
not exclusive of women/' Bankton's Inst. b. 
1, tit. 1, sect. 7. 

** Of old, women were rejected in most cases, 
but they are for most part admitted, unlets 
where the parties ought to have called wit- 
nesses, for then they have themselves to blame 
that did not make use of others ; and therdToro . 
women are altogether incompetent witnesses to 
deeds of parties, testaments, or instruments of 
notaries.'* Bankton, biNik 4, tit. 33, a. 80. 

So Stair (book 4, tit. 43, s. 9,) says, tba( in 
civil cases women are not to be admitted aa 
witnesses, except necessary. 

Sir George Mackenzie (Probation by Wit- 
nesses) says, ** Women regular iter are not wit* 
nesses, neither in civil or criminal cases with as, 
nor should they make as much faith with ua, •*• 
criminalibut. The reason why women are ex- 
cluded from witnessing, roust be either that 
they are subject to too much compassion, and 
so ought not to be more received in criminal 
cases, than in any civil cases ; or else the law 
was unwilling to trouble them, snd thought 
it might learn them too much confidence, and 
make them suliject to too much familiarity 
with men, and strangers, if they were necessi* 
tated to vsgue up and down at all courts, upoo 
all occasions." See his Criminals, title 86, s. 4. 

Erskine (book 4, tit. 8, sect. 88,) instructs 
OS, that women were rather exempted than de- 
barred from gif iog testimony. 

Of the progr es s of the relaxation of this rule 
I kaov nol or any dreumstantial history. 

Mr* Hont (Gomiii. chap. 13,) and ibr. Bur^ 



«] 



Tke Negro Can* 



A. D. 1771. 



\l» 



Ntj, ID strict wu the Itw in thii respect, diat 
ii the Natiro Habendo the defeo(|aiit was not 
obtigcd to plead to the claim of villenage, un- 
loi the lunl at Ihe time of declaring on his 
tide bfogbt his witnesses with him into court, 
mk iktf acknowledged themselres fillebs, 
istfiwore to their coosangninitv with the de- 
(Wnt (r) ; and if the plaintiff failed in ad- 
Mag such prefioos evidence^ the judgment 
if ibe eoart was, that the defendant should be 
ftef for ever, and the plaintiff was amerced for 
Ui&Jse daim (i). In other actions the pro- 
Awtioa of soit or witnesses by the plaintiff, 
pffvioosly to ihe defendant's pleading, fell into 
dsose some time in the reign of Edward the 
Ibrd; and ever since, the entry of snch pro- 
taioa on the rolls of the court has been mere 
fan, being always with an &c. and without 
MouDgthe witnesses. But in the Natiro Ha- 
hado the actual production of the suit, and 
ilntbe examination of them, unless the defen- 
hal released {t) it in court, continued to be in- 
ifcasalvie CTcn down to the time when vil* 
rage (a) expired.— Such was Ihe sort of tea- 
linoay, by which only Ihe lord could support 
ike liue of slavery ; nor were the means ot de- 
faee on the part of the rillein less remarkable. 
If he eouM prove that the slavery was not in 
kiiUsed and family, heintitled himself to li- 
boty. The atithor of the Mirroir (w) ex- 
|RHly saySi that proof of a free stock was an 
(fccnal iwlence against the claim of villenage ; 
Hd even in the time of Henry the sec<»nd the 
ha of Engfland was in this respect the same, 
by the words of Glan? ille. In his 
of ihe trial (x) of liberty, he says, that 



(f > Fttz. Nat. Br. 78, H. Fitzh. Abr. Ville- 
■STtSt LJb. Intrat. 97. llast. Entr. 401. 
Aqr.fr. 87. 

(i) In Fitzh. Abr. Villenage, 38, there is an 
inUDce of such a judgment, merely for the 
pliialiff*8 failure in the production of bis wit- 
BC8CS at the time of declaring on his title. 

(t) 8ee 19 H. 6, 39 b. a case in which the 
4f(ni«lAot releases the examination of the suit. 

(u) The last entry in print of the proceed- 
is|s in a Native H abendo contains ibe names 
•f cfae secta or suit produced, and their acknow- 
kigairat of villeiiajB^e on oath. See the case 
•f Jemey aflrainst Fmcb, Hill. 18 Eliz. C. B. 
U. Efiir. 406, b. (w) jVlirr. c. 2, § 28. 

(g) Glaov. lib. 5, c. 4. 

Mt (Treatise on tar. branch, of the Crim. Law 

if likasiand, chap. 17,) hare cited several cases, 

isd quoted other authorities, from which it 

ly^cars that the rule was recognized to so late 

t ffnod as the beginoiiig of the 18th century. 

hnaow abrogaled (how or when I have not 

•wa distinctly staled) »» except*' says Mr. Bur- 

••«, •* in ihe case of instruineotary witnesses, 

yWe wofoen are in practice still excluded. 

I kaow of iio case, bowerer. where this point 

wii e»ev mrgoed, or receifed a decision : and it 

•JnjAtful whether such an objecUon wouM 



the iierson cluming it shall produce * plnres de 
prozimis et consanguineis de eodem stipite 
unde ipse ezierat exeuntes ; per quorum liber- 
tates, si fuerint in curift recognitae et probatoe, 
liberabitur it jogo servitutis qui ad libertatem 
prochimatur.' But the special defences which 
the law permitted against villenage are still 
more observable ; and prove it beyond a con* 
tradiction to be what the author of the Mirroir 
emphatically stiles it (y), a slavery of so great 
an antiquity that no free stock can be found by 
human remembrance. Whenever the lord 
sued to recover a villein by a Native Habendo, 
or alledged villenage in other actions as a dis* 
ability to sue, the person claimed as a villein 
might either plead generally that be was of 
free condition, and on the trial of this general 
issue avail bjmself of every kind of defence 
which the law permits against villenage ; or 
he might plead specially any single fact or 
thing, which if true was of itself a legal bar to 
the claim of villenage, and in that case the 
lord was \:ompellable to answer the special 
matter. Of this special kind were the pleas of 
Irastardy and adventif. The former was an al- 
legation by the supposed villein that either him- 
self or his father, grand-father or other male 
ancestor, was bom out of matrimony ; and this 
plea, however remote the ancestor in whom 
the bastardy was alleged, was peremptory to 
the lord ; that is, if true it destroyed the claim 
of villenage, and therefore the lord could only 
support his title by denying the fact of bastardy. 
This appears to have been the law from a great 
variety of the most ancient authorities. The 
first of them is a determined case so early as 
the Idth of Edward the second (x), and in all 
the subsequent cases (dS the doctrine is received 
for law without once being drawn into ques- 
tion. In one of them (6) the reason whv bas- 
tardy is a good plea in a bar against villenage 
is expressed in a very peculiar manner ; for 
the words of the book are, " when one claims 
any man as his villein, it shall be intended al- 
ways that he is his villein by reason of stock, 
and this is the reason that there shall be an an- 
swer to the special matter where he alleges 
bastardy ; because if his ancestor 'was a Imis-» 
tard, he can never be a villein, unless by sub- 

(y) < Est subjection issuant de cy grand an-^ 

* tiquite, que nul franke ceppe purra estre trove 

* per humaue remembrance.' Mirr. c. 2, 
§28. 

(x) 13 E. 2,408. 

(a) Hill. 19 E. 2. Fitzh. Abr. Villenage, 
32.— 39 E. 3, 36.-43 E. 3, 4—19 Hen. 6, 
11 & 12.— 19 Hen. 6, 17.— Old Tenures, 
chap. Villenage.- Co. Litt. 123, a. In the 
case 19 H. 6, 17, there is something on the 
trial of bastardy in cases of villenage, explain- 
ing when it shall be tried by the bishop's certi- 
ficate and when by a jury. See on the same 
subject Fitzh. Abr. Villenage, 32, & Lib. Intrat. 
S5, a. which latter book coatains the record of 
a case where the trial was by the bishop. 

(b) 43 £. 3, 4. 



47] 12 GEORGE III. 

■equent tcknowledgrment io a court of record." 
The force of this reason will sppear fully on 
recollection, that the law of England always 
derives the condition of the issue from that of 
the father, and that the father of a bastard 
bein^ in law uncertain (c), it was therefore im- 

Cible to prore a bastard a slave by descent, 
espect to the plea of adventif, there isaome 
little confusion in the explanation, our year- 
books pre us, of the persons to whom the de* 
scrintion of adventif is applicable ; but the form 
•f toe plea will best shew the precise meaning 
of it. It alledged (cQ, that, either the person 
himself who was claimed as a villein regardant 
to a manor, or one of his ancestors, was born in 
a county different from that in which the 
manor was, and so was free, which was held 
to be a necessary conclusion to the plea. This 
in general was the form of the plea, hut some- 
times it was more particular, as in the follow- 
ing case (e). In trespass, the defendant pleads 
that the plaintiff is his villein regardant to his 
manor of Dale ; the plaintiff replies, that his 
great-grandfather was bom in C, in the county 
of N, and from thence went into the county of 
8, and took lands held in bondage within the 
manor to which the plaintiff is supposed to be 
a villein regardant, and mo after time of me- 
mory his great-grandfather was adventif. It is 
plain from this case, that the plea of adventif 
was calculated to destroy the claim to villenage 
regardant, by shewing that the connection of 
the supposed villein and his ancestors with the 
manor to which they were supposed to be re- 
gardant, had begun within time of memory ; 
and as holding lands by villein-services was 
anciently deemed a mark (y), though not a 
certain one, of personal bondage, I conjecture 
that this special matter was never pleaded, ex- 
cept to distinguish the mere tenant by villein 
services from the villein in blood as well as 
tenure. But whatever might be the cases 
pro|ier for the plea of adventif, it is one other 
incontrovertible proof, in addition to the proofs 
alrcaily mentioned, that no slavery having 
had commencement within time of memory 
was lawful in England ; and that if one an- 
cestor could be found whose blood was nn- 
tarnirhed with the stain of slavery, the title 
of villenage was no longer capable of being 
sustained. 

. (e) Co. Lilt. 123, a. 

(d) 13 E. 1. It. North. Fitz. Abr. Ville- 
oage 36. 19 E. 2. Fitz. Abr. Villenaire 32. 33 
E. 3. Fiiz. Abr. Visne 2.— 39 £. 3, 36. — 
41 E. 3. Fitz. Abr. Villenage 7.-43 K. 3, 31. 
—50 E. 3. Fitz. Abr. Villenage, 24.— 19 H. 6, 
11.— 19 H 6, 17. 

(e) 31 E. 3. Fiiz. Abr. Visne 1. 

(f) Fiizlierbert says, " if^ a man dwells on 
lands which have been held in villenage time 
out of niiud, he shall be a villein, and it is a 
good pre«cripiif»n ; and against this prescription 
tt is a good plea to aay that hia father or grand- 
fiuher WM mimttiffi • Ibs. Fill. ifcr. Till*. 

MgVfli. 



The Negro Case. 



[48 



Such were the striking peculia- hqv it ii uut 
rities in the manner of making title |^ ntn or 
to a Tillein, and . of contesting the tS^hSSe 
question of liberty ; and it is scarce Suot!*"^ 
possible to attend to the enumera- 
tion of them, without anticipating me in the 
inferences 1 have to make. — ^The law of Eng- 
land onl^ knows slavery by birth ; it requires 
prescription in making title to a slave ; It re- 
ceives on the lord's part do testimony except 
such as proves the slavery to have been always 
in the blood and family, on the villetn'a part 
every testimony which proves the slavery to 
have been once out of his blood and family ; 
it allows nothing to sustain the slavery except 
what shewa its commencement beyond the time 
of memory, every thing to defeat thealaverj 
which evinces its commencement within the 
time of memory. But in our American colo- 
nies and other countries slavery may be by 
captivity or contract as well as by birth ; no 
prescription is requisite; nor is it necessary 
that slavery should be in the blood and family, 
and immemorial. Therefore the law of Eng- 
land is not applicable to the slavery of our 
American colonies, or of other countries. — If 
the law of England would permit the intro- 
duction of a slavery commencing out of Eng- 
land, the rules it prescribes for trying the tiUe 
to a slave would be applicable to such a slavery ; 
but they are not so ; and from thence it is evi- 
dent that the introduction of such a slavery h 
not permitted by the law of England. — ^The 
law of England then excludes every slaTery 
not commencmg in England, every slavery 
though commencing there not being antient 
and immemorial, l^llenage is the only slavery 
which can possibly answer to such a de- 
scription, and that has long expired by the 
deaths and emancipathns of all those who 
were once the objects of it. Consequently 
there is now no slavery which can be lawful in 
England, until the legislature shall interpose 
its authority to make it so. 

This is plain, unadorned, and direct reason- 
ing ; it wants no aid from the colours of art, or 
the embellishments of language; it is com- 
posed of necessary inferences from facts and 
rules of law, which do not admit of contradic- 
tion ; and I think, that it must be vain to at- 
tempt shaking a superstructure raised on sucb 
solid foundations. 

As to I he other arguments I have to adduce 
against the revival uf domestic slavery, I do con- 
fess that they are less powerful, being merely 
presumptive. But then I must add, that they 
are strong and violent presumptions ; such at 
furnish morecertiTin grounds of judicialdecisioop 
than are to be had io many of the cases which 
l>ccome the subjects of legal controversy. For 

2dly. 1 infer that the law of ad. Ariumcrt 
England will not permit a new JSlSJnlfroS* 
slavery, from the fact of I here iiiri«itor 
never yet having been anv slavery h'!^f"bS 
but viAenage, and from the actual ?"?*>';^nr 
eztinetion of that antient slavery. •■4 fvom im 
IfaaewsUrcry coaM have law- tSu'SSHt!^ 



49] 



The Negro Case. 



A. D. 1771. 



[50 



fnllj eomineiiced here, or lawfully hare been 
intndaced from a foreign country, is there the 
mH remote prohabilily, that in the course of 
ao Btay centuries a new slavery should oe?er 
har< arisen ? If a new race of slaves could 
kie been iotroduced under the denomination 
•f riHeiosi, if a new slavery could have been 
hm time to time engrafted on the antient 
Mck, would the latvs of villenage have once 
kcame obsolete for want of ohjcctii, or would 
Mt i successive supply of slaves .have conti- 
■aed their operation to the present times ? But 
Mtvithstanding the vast extent of our com- 
■ercial connections, the fact is confessedly 
•iberwise. The autient slavery has once ex- 
pired ; neither natives nor foreif^ners have yet 
Mceeeded in the introduction of a new slavery ; 
nd from thence the strongest presumption 
arifts, that the law of England doth not permit 
nch an introduction. 

u Arriami Sdly. 1 losist, that the unlaw- 
tmai 'fran fulncss of introduciii^' a new sla- 
ifernin uT very into Eugknd, from our Ame- 
Uffn^T rican colonies or any other coun- 
eaiirjrt. i^y^ jg de<lucil)le-froiii the rules of 

the Eo$;1ish law concerning contracts of ser- 
vice. Tlie law of England will not permit any 
Ban to enslave himsetf by contract. The ut-* 
■mst, which our law allows, is a contract to 
Krve for life ; and some perhajis may eyen 
doubt the ralidity of such a contract, there 
keiit^ nu iletermined cases directly atfirming its 
hwfuliKss. I n the rei(;n of Henry the 4th (^), 
there is a case of debt, brou;^ht by a servant 
S'^aiokt the master*:; executors, on a retainer to 
Krve for term of life in peace and war for 100 
^AiTf a- year ; but it was held, that Uebt did 
noiUdr want of a speciulity ; wliicli, as was 
a«i^'J, woulil not have been necessary in the 
cut ut' a common labourer's salary, because, 
»» tiie case in explained by Brooke in abridging 
ii. (he Utter is bound to serve by statute (A). 
Tii;4 case is the only one f can find, in ivhich 
a contract to ferve for life is mentioned ; and 
ev«n in this case, there is no judicial decision 
M the force of it. Nor did the nature of the 
civk require any opinion upon such a contract ; 
tbc action not being to establissli the contract 
a^in»t the servant, but to enforce payment 
i^Tsinst the master's executors for arrears of 
salary in respect of service actually per- 
fcnned ; and therefore this case will scarce 
War any inference iu favour of a contract to 
Mrve for life. Certain also it is, that a service 
for life in Ent;land is not usual, except in the 
€a»fnf a militar}' person ; whose service, though 
ia effect for life, is rather so by the o|)cration 
«Cibe yearly acts for regulating the army, and 
ef tb4* pf-rpetaal act for governing the navy, 
tiiin iu cnn<iequenceof any express agreement. 
Hiiwrver, 1 do not mean absolutely to ileny 
Ike lawfulness of agreeing to servo for life; 
■•r Will the inferences 1 shall draw from the 
nicsof law concerning servitude by contract, 
be in the least affected by admitting such 



(i) « H. 4. 14. 



(h) Bro. Abr. Dett. 63. 



agreements to be lawful. The law of England 
may perhaps give effect to a contract of ser- 
vice for life; but that is the ne plus ultra of 
servitude by contract in England. It will not 
allow the servant to invest the master with an 
arbitrary power of correcting, imprisoning, (i) 
or alienating him; it will not permit him to 
renounce the capacity of acquiring and enjoy- 
ing property, or to transmit a contract of ser« 
vice to his issue {k). Iu other word*'', it will not 
permit the servant to incorporate into his con- 
tract the ingredients of slavery. ; Aud why ia 
it that the law of England rejects a contract of 
slavery? The only reason to be assigned is, 
that the law of England, acknowledging only 
the autient slavery which is now expired, will 
not allow the introduction of a new species, 
even though founded on consent of the party. 
The same reason operates with double force 
against a new slavery founded on captivity in 
war, and introduced from another country. 
Will the law of England condemn a new sla- 
very commencing by consent of the party, and at 
the same time approve of one founded on force, 
and most probably on oppression also? Will the 
law of England invalidate a new slavery com- 
mencing in this country, when the title to the 
slavery may be fairly examined ; and at the 
same time give efiect to a new slavery intro- 
duced from another country, when disproof of 
the slavery must generally be impossible? 
This would be rejecting and receiving a nevf 
slavery at the same moment ; rejecting slavery 
the least odious, receiving slavery the most 
odious : and by such an inconsistency, the 
wisdom and justice vT the English law would 
be completely dir'ionoured. Nor will this rea- 
soning be w^ukened by observing that our law 
permittc::! vilienage, which was a slavery con- 
fessed to originate from force ^nd capttuty in 
war; because that was a slavery coeval with 
the first formation of the English constitution^ 
and conspqunnlly had a commencement here 
prior to the establishment of those rules which 
the common law furnishes against slavery by 
contract. 

Having thus explained the three ExaminaCom 
great arguments which I oppose to J[, [{|* "J^J^^ 
the introduction of domestic sla- oi-uwj 
very from our American colonies, bciotc tin.- 

(i) Lord Ilobart says, ** the body of a free- 
man cannot he made subject to distress or im- 
prisonment by contract, but only by judg- 
ment." Hob. 61. I shall have occaMon to 
make use of this authority agaiu in a subse- 
quent part uf this argument. 

(k) Mr. IVIolloy thinks, that servants may 
contract to serve for life ; but then he adds, 
" but at this day there is no contract of the 
ancestor can oblige his posterity to an here- 
ditary service ; nor can such as accept those 
servants exercise the ancient right or dominion 
over them, no not so much as to use an extra- 
ordinary rigour, without subjecting themselves 
to tbc law." Moll, de Jur. Marit. l^t ed. b. 3» 
c. 1, s. 7, p. U98. 

E 



51] 12 GEORGE IIL 

StilSJjr •' er any foreign country, it is now 
proper to enquire, how far the sub- 
ject \s affected by the casei and judicial deei- 
■ioni since or just before the extinction of ?il- 
lenaf^e. 

The first case on the subject is one mentioned 
in Mr. Rush worth's Historical Collections (/); 
and it is ihere said. That in the 11th of Eliza- 
beth, one Cartwrifjrht brought a slave from 
Bussia, and would scour^^e him ; for which he 
fras questioned ; and it was resolved, that En(f- 
land was too pure an air for a slave to breathe 
in. Ill order to judge what degree of credit is 
due to the representation of this case, it will be 
proper to state from whom Mr. Rusbworth re- 
ports it. In 1637, there was a proceeding by 
information in the Star-Chamber against the 
famous John Lilbume, for printing and pub- 
lishing a libel ; and for bis contempt in refusing 
to answer interrogatories, he was by order of 
the Court imprisoned till he should answer, and 
also whipped, pilloried, and fined. Uis iropri- 
aonment continued till 1640, when the Lioog 
Parliament befiran. He was then relessed, and 
the House of Commons impeached the judges 
of the Star -Chamber for their proceedings 
•gainst Lilburne. In speaking to this impeach- 
ment, the managers of^the Commons cited the 
case of the Russian slave. Therefore the truth 
of the case doth not depend upon John Lil- 
burne's assertion, as the learned observer on the 
antient statutes (m) seems to apprehend ; but 
reals upon the credit due to the managers of 
the Commons. When this is considerni, and 
that the vear of theL>reign in which the case 
happened is mentioned, with the name of the 
person who brought the slave into England ; 
that not above 73 or 73 years had intervened 
between the fact and the relation of it ; and also 
that the case could not be supposed to have 
any influence on the fate of the impeachment 
•gainst the judges ; 1 see no great objection to 
a belief of the case. If the account of it is 
true, the plain inference from it is, that the 
•lave was become free by bis arrival in Eng- 
land. An^ other construction renders the case 
unintelligible, because scourging, or even cor- 
rection of a severer kind, was allowed by the 
law of England to the lord in the punishment 
of his villem ; and conseouentiv, if our law had 
recognized the Russisn slave, bis master would 
Jiave been justified in scourging him. 

The first case in our printed Reports is that 
of Butts against Penny (n), which is said to 
have been adjudged by the Court of King's- 
bench in Trinity term, S9th of Chsries the 3d. 
It was an action of trover for ten (o) negroes ; 
•nd there was a special verdict, finding, that 

(I) Rushw. ▼. 3, p. 468. 

(m) Barr. Observ. on Ant, Stat. Sd edit, 
p. 241. 

Ca; 2 Lev. 301, and 3 Keb. 785. See Hill, 
f 9 Char. 2, B. U. Rot. 1116. 

(o) According to Levins^ the action was for 
too negroes ; but it it • oifttke, the record 
msatioDiiig 10. 



The Negro Case. 



[M 



the negroes were infidels, subjects to an infidel 
prince, and usually bought and sold in India 
as merchandize by the custom amongst mer« 
chants, and that the plaintiff had bought them, 
and waa in possession of them ; and that the 
defendant took tliem out of his possession. The ^ 
Court held, that negroes being usually bought 
and sold amongst merchants in India, and be* 
ing infidels Qi), there might lie a properly ia 
them sufficient to aiaintain the action ; and it 
is said that judgment Nisi was given for the 
plaintiff, but that on the prayer of the counsel 
for the defendant to be further heiird in the 
case, time was given till the next term. lu 
this way our reporters state the case ; and if 
nothing further appeared, it might be cited ai 
an authority, though a very feeble one,, to sheir 
that the master's propert^r in his negro slaves 
eoDtinues after their arrival in England, an4 
conseonentljir that the negroes are not emanci- 
pated by being brought here. But having • 
suspicion of some defect in the state of the 
case, 1 deaired an examination of the Roll (9) ; 
and according to the account of it given to me, 
though the declaration ia for negroes generally 
in I^ndon, without any mention of foreign 
parts, yet from the special verdict it appears, 
tliat the action was really brought to recover 
the value of negroes, 6f which the plaintiff had 
been possessed, not in England, but in India* 
Tiierefore this case would prove nothing in fa- 
vour of slavery in England, even if it bad re- 
ceived the Court's ju^ment, which however 
it never did receive, there being only an * olte- 
* rius consilium' on the Roll. 

The next case of trover was between Oell 
and Cleve in the Common-Pleas, and was 



7. 



(p) According to this reasoning, it is lawful 
to have an infidel alave, but not a Christian 
one. This distinction, between persons of op- 
posite persuaaions in religion, is very ancieut. 
Amongst the Jews, the condition of toe Hebrew 
slave had many advantages over that of • slave 
of foreign extraction. [See sect. 37, of the Dis- 
sertation on Slavery prefixed to Potgiesser. Jua 
Germ, de Stat. Serv. J Formerly too the Ma- 
homedans pretended, that their religion did not 
allow them to enslave such as should embrace 
it ; but, as Bodin says, the opinion was little at- 
tended to in practice. (See Bodin, de Republica, 
lib. 1, cap. 5, de imperio servili.) A like distinc- 
tion was made in very early times amongst 
Christisns ; and the author of the Mirroir in one 

Klace expresses himself, as if the distinction 
ad been adopted by the law of England. (See 
the Mirr. c. 3, s. 38.) But our other ancient 
writers do not take the least notice of such • 
distinction, nor do I find it once mentioneil in 
the year-books ; which are therefore strong pre- 
aumptive evidence against the reception of it 
in our courts of justice as law, however the 
opinion may have prevailed amongst divines 
and others m speculation. See Barr. Obaerv. 
Ant. Stat 3 edit. p. 239. 

(q) The Bell wm eyamiori for me bj • 
friend. 




Tfie Negro Case. 

. ._ _ _. m SlhorWilliam SDtl 

la lb« report or Ibiicue(r), tlieCdun 
sbhI l« bave held, that Iroter will lie far a 
■*tnWy, brcause n^i^ro^i are liealhens ; Bud 
tfwrfuc m man may hare proi^erl^ In them, 
Mddw Court without avermvot will lake no- 
«BFlh*l Ihev are b^lhens. On eiaminalion of 
Ac IMI (•).*! llDil tlial the action was brought 
trrariona article* of merchaiidize aa welt at 
AewfTo; anil I iiupeci, tliat ia lliis cB«e, as 
•cll a* the Tonner one of Dutu aui] I'puny, the 
actim wa« fur ■ neTro in America ; but ibe de- 
cbntton belna: laij ^nerally , and there btiiig 
•■■prciftl verdict, it n now loo late to nacertaia 
tW fiteL I will therefore luppose tbe action 
bfaB*e been for a negro in biiglaiid, and ad- 
ait that it tends la shew the lawlulnen of har- 
»f negn alave* io England. But then if the 
MM ia la be anderslood in Ibii <eiiEe, I eay 
ttat it appears to have been ailjiulgeJ without 
Mlnnn «r|^n>enl ; that there I9 no rrewniag 
fadMKport of tbJKcaselo impeach tbe )>Hn- 
■flaaaftaiT, on which I have urgued a^Hiast 
tM r«*i*al of lUiery in Encjland ; ibil unless 
tbiac principlea cm be cniilroverled with suc- 
•n. It will tw impossible Io sunain the auiho- 
ntjafaurb a case; and further, tbatilalandi 
- ■■ -d by a subsequent case; in which 
•a al'slufery came direcily before the 

Tbe anty other reported case of trover ia 
tM aT Kmtlh agaiiiit fiuulil, which was ad- 
>d|nl, UkIi. 4 Ann, in ibe KingVbench. Io 
barer (() for screral things, anil among tbe 
mt far a oegro, not guilty waspleaded, and 
4(ra waa a verdict tor the plainlilf with several 
^■Hia, 30/. being gi*en for Ibe negro ; and 
•huiflianient on a molian in arrest of juilg- 
■-la, lb« Courl held, that trover did not 
I* Ir a oegrn. If in Ibis case the action 
■M br a negro in Erijflanil, tbe judgment 
B It ii > direct contradiction to the caee 
•TGdly and Cleve. But 1 atn inclined to 
Ihak, that In 'this, as well as in the former 
tma vf trover, the negroea for which the 
uaoM wvrc brought, were not in England ; 
ia< tbat IB ail of Ibeiii the question was 
at aa itie lawfulness of having negro slaves 
i« Ensland, bol merely whether troier wag 
0* pniptr kind of artion fur recovering the 
falucal a oi-gn) unlawfully detained from the 
•raw ia America and Inilia. The things, for 
■hiA intvrr to griifral lies, are those in which 
e property, without 



> tb* u 



f llien 



I tht 



■sauv'a power over Itie stave dulh nut extend 
tahaa TiTr, and couteijuently the master's pro- 
ffflT in iltaalateia in Mime degree qualified 
u'liiBiled. Buppoaing tberefore the cases uf 
Mirr ID bare b«wa delermiaed on ttiis dis- 
■nioo, I will not insisl upon any present 
- -^t frum ibem in argument ; ih'iiigh 
Imi iif llirni, if it will benr any tnateriul 



1>1 I L. Baym. 1*7. 

fij (life TriiL A W.A:M. C. O. IL.I1. NMOT 

(ij 3Wk. 0M.— Sotldao, 1 L. Rayin. UT. 



[54 



the King's bench in Hilary Sth si 
lisni the 3d, Trespass vi ti artnis whs bn)ii|<bt 
by Chamberlain (u) against Harvey, fur lakiii(f 
a negro vf the value uf 100/. and by tlie special 
verdict it appears, that tbe negro, for Hhich 
the pluinlilT sued, bad been brouglit from Bar- 
badoes into Eneland, and was here bsjilized 
without the plaintiff's consent, and at ibe tima 
when the treiipass was alleged, was in the de- 
fendant's service, and had 67. a-year lor wages. 
In the argUDieniof tliis case, three qiiesiions 
were made. One was, wliether tbe fads in 
the verdict snlEcienily shewed that the plaintiff 
had ever had a vested property in tlie n^ro (m) t 
anoltier was, whether that prO|ierty was not 
devested by bringing Ibe negro into England : 
and the third wss, whether trespass lor laking 
a man of the value of iOOl, was the proper ac- 
tion. After several argumenls, Ibe Court gava 
Judgment against (be plaintiff. Bull do cuo- 
tess, tbat in the reports we have of Ihe case, no 
opinion on the great question of slavery is 
mentioned ; it Incoming unnecesssry to de- 
clare one, as llie Court held, thai Ibe ac- 
tion should have been an action to recoret 
damages for the loss of Ibe service, and not to 
recover the value of the slave. Of this case, 
therefore, 1 shall not attempt to avail my»elf. 

But the next case, wbicli was an action of 
Indebitatus Assumpsit in the King's-bench by 
Smith against Browne nod Cowper (f), la 
more to the purpose. The plaintiff declared 
for SO/, for a negro aold by him to tbe deten- 
danis io London ; and on motion in arrest of 
judgment, tbe Court held, that ihe plaintiff 
should have averred in Ibe declaration, tbat the 
negro at ibe lime of tlie sate was in Virginia, 
and tbat negroes by tbe laws and slalutes of 
Virginia are saleahli' Q/]. In Ibe^e words ibere 
is a direct opinion aguinst the slavery of ne< 
groes in England: fur if it was laHful, the 
negro would hare been saleable and transfer* 
able here, a« well as in Virginia j and staling, 
that tbe negro at the time of Ibe sale wa> ia 
Virginia, could not have been ejiseiiiisl lu Itta 



(u) 1 L. Raym. 146. Carlli, 396, and 5 
Moil. mi). 

(ai) The fuels which occasioned this ques- 
tion, 1 have umiiteit in the stale of (be case ; 
because ihev are nut material to tlie questiou of 
slavery in Entilnnd. 

(i) a iiiulk. C66. Tbe case is not reported . 
iu any other bunk ; and in Salkehl the lime 
when (he c*<ie was delermuieil is iiinitled. But 
it appears to have been iu the Klng'shench, 
by Ibe inentiun of lord chief juiiice Holt and 



Mr. J. I 



(y) Tbe reporter adds, that Ibe C'Hirt di- 
rected, thai the plaintiff should amend his ile- 
clamlion. But after venliui it caooot surely 
be tbe practice to permit so essential an amend- 
ineiil ; and iherefuir tbe reporter muit bate 
mitundcrstovd the Courl'a Jircclion. 



fiS] 



IS GEORGE III. 



The Negro Case. 



[56 



BuflicieDcy of the declaration. But tke in- 
fluence of this case, on the question of slavery, 
is not by mere inference frona ibe Court's opi- 
nion on the plaintiff's mode of declaring in his 
action. The lanij^uage of the judges, in giving 
that opinion, is remarkably strong against the | 
slavery of negroes, and every other new sla- 
very attempted to be introduced into England. 
Mr. Justice Powell says, ** In a villein the 
owner has a property ; the villein is an inhe- 
ritance ; but I be law takes no notice of a ne- 
gro." l/ord Chief Justice Holtis'still mnreex- 
plicit ; for he says, that " one may be a villein in 
England ;" but that ** as soon as a negro comes 
into England, he becomes free." The words of 
these two great judges contain the whole of the 
proposition, fur which I am contending. They 
admit property in the villein ; they deny pro- 
perty in the nesro. They assent to the old 
slavery of the villein: they disallow the new 
slavery of the negro. 

I beg leave to mention one other case, chiefly 
for the sake of introducing a strong expression 
of the late lord chancellor Northington. It is 
the case of Shanley and Hervey, which was de- 
termined in Chancery some time in March 
1762. The question was between a negro and 
his former master, who claimed the benefit of 
a * donatio mortis caus^' made to the negro by 
a lady, on whom he had attended as servant for 
several years by the permission of his master.' 
Lord Northington, as 1 am informed by a 
friend who was present at the hearing of the 
cause, disallowed the master's claim with great 
vrarmth, and gave costs to the negro. He 
particularly said, ** As soon as a man puts toot 
00 English ground, he is free : a negro may 
maintain an action against his master for ill 
iisag^e, and may have a Habeas Corpus, if re- 
strained of his liberty" (x). 
Objection* Havitig obscrvcd upon all the 

m:*de lo life csses, 10 wliicli thcrc 18 any thing 
"fn"ih?**. *^ ^^ found relative to the present 
sentUHrul' ' lawfulness of slavery in England; 
"nTnlindr' It is time to consider the force of 
c(atcd«iMiui- iiie several objections, which are 

(z) In the above enumeration of cases, I 
have omitted one, which nus sir Thomas Gran- 
tham's case in the Common-Pleas, Hilary (2 & 
3 Jam. 12. Being short, I shall give it m the 
words of the I{e|K)rt. ** He bought a monster 
in the Indies, which was a man of that coun- 
try, who had the shape of a child growing out 
of his breast as an excrcKcrncy all but his head. 
This man he brought hither, and exposed to 
the sight of the people for profit. The Indian 
turns Christian and was baptized, and was de- 
tained from his master, who brought a Horoine 
Replegiaiido. The sheriff returned, that he 
had replevied the body ; but doth not say the 
body in which sir Thomas claimed a property ; 
whereupon he was ordered to amend his return, 
aitd then the Court of Common-I'leas bailed 
him." 3 Mod. 130. It doth not appear, that 
the'feturn was ever argued, or that the Court 
gave any opinion oo tbiacaae ; and therefora AO- 
Uif **' *^ ioff rred from it* 



likely to be made, as well to the inferencea I 
have drawn from the determined cases, at to 
the general doctrine I huvc been urging. 

1. It may be asked, why it is that the law 
should permit the ancient slavery of the viHein, 
and yet disallow a slavery of modern com- 
mencement? 

To this I answer, that villenaofe sprung up 
ainongst our ancestors in the early and barba- 
rous state of society ; that afterwards more 
humane customs and wiser opinions prevailed, 
and by their influence rules were established 
for checking the progress of slavery ; and that 
it was thought most prudent to eflect this great 
object, not instantaneously by declaring every 
slavery unlawful, but gradually by excluding 
a new race of slaves, and encouraging the vo- 
luntary emancipation of the ajcieot race. It 
might have seemed an arbitrary exertion of 
power, by a retrospective law to have annihi- 
lated pro|)erty, which, however inconvenient, 
was already vested under the sanction of ex* 
istiug laws, by lawful means ; but it was policy 
without injustice to restrain future acquisitions. 

3. It may be said, that as there is nothing 
to binder persons of free condition from be- 
coming slaves by acknowledging themselves to 
be villeins, theret'ore a new slavery is not con- 
trary to law. 

1 he force of this objection arises from a sup- 
position, that confession or acknowledgment of 
villenage is a lefpil mode of creating slavery ; 
but on examining the nature of the acknow- 
ledgment, it will be evident, that the law doth 
not permit villenage to be acknowledged for 
any such purpose. The term itself iinporta 
something widely different from creation ; the 
acknowledgment, or confession of a thing, im- 
plying that the thing acknowledged or con- 
fessed has a previous existence ; an<l in all 
cases, criminal as well as civil, tht law intends, 
that no roan will confess an untruth to his own 
disadvantage, and therefore never requires 
proof of that which is admitted to be true by 
the person interested to deny it. Besides, it 
is not allowable to institute a proceeding for the 
avowed aud direct purpose of ackno\» ledging 
villenage ; for the law will not allow the con- 
fession of it to be received, except where vil- 
lenage is alledged in an adverse way ; that is, 
only (a) when villenage was pleade<i by the 
lord against one whom he claimed as his vil- 
lein ; or by the villein against strangers, in 
order to excuse himself from defending actions 
to which his lord only was the pro|>er party ; 
or when one villein was produced to orove vik 
lenage against another of the same blood who 
denied the slavery. If the acknowledgmi^nt 
had been permitted as a creation of slavery, 
would the law have requiretl, that the confes- 
sion should be made in a mode so indirect ami 
circuitous as a suit professedly commenced for 
a different purpose? If confession is a creation 
of slavery, it certainly oiust be deemed a 
creation by consent ; but if confession had been 
adopted as a voluntary creation of slavery, 

(a) Co. litt. ISli b. 



57} 



The Negro Cote. 



A. D. 1771. 



[68 



woold the law have restrained the courts of 

jostice from receiving confession, except iu an 

adverse way ? If confession had been allowed 

as a mode of creating slavery, would the law 

have received the confession of one person as 

|Md evidence of slavery in another of the 

«ae bkM>d, merely because they were descend- 

§i from tlie saiue common ancestor ? This last 

orcamalance is of itself decisive ; because it 

iMcssarily implied, that a slavery confessed 

vas a a&avery oy descent. 

On a ironsideration of these circumstances 

sttendin^ the acknowletlgment of villenage^ I 

ihaak it impossible to doubt its being merely a 

csBfemioD of that antiquity in the slavery, 

which was otherwise necessary to be proved. 

Bat if a doubt can be entertained, the opinions 

sf the gjreateat lawyers may be produced to 

refliove it, and to shew, that, in consideration 

sf Uw, the person confessing was a villein by 

dcseeot and m blood. In the year-book of 43 

£. 3, (6), it is laid down as a general rule, 

** that when one claims any mau as his villein, 

it riiall be intended always thai he is his vil- 

ku by reason of stock.*' Lord chief justice 

Hobart considers villenage by confession in 

this way, and says (c), ** the confession iu the 

court of record is not so much a creation, as.it 

if in supposal of law a declaration of rightful 

liUenage before, as a 'confession in other 

ictiuos." Mr. Serjeant Rolle too, in his 

skitigmeot, when he is writing on villenage 

bj acknowledgment, uses very stron*; words to 

the same effect. He says in one idace (d)^ ** it 

lemH int«!nded that title is made that he should 

be a villeio by descent," and in another place 

(c), ** it seems intended that title is made hy 

inscription, wherefore the issue shoultl also 

bii'iiifiiis." The only instance I can find, of 

a .N<iivo Habenilo founded on a previous ac- 

Jcsb'siedgmeot of viilenaffe, is a stronj|r atitho- 

\ii\ tfi the same purpose. In the 19lh of Ed ward 

2, \J') the dean and chapter of London brought 

iwrit ofNetfty to recover a viilein, and con- 

d«ied their declaration with mentioning his 

aekaowledgment of the villenage on a former 

Qccasioo, instead of producing their suit, or 

anaesses, as was necessary when the villenage 

bad not been confessed : but notwithstanding 

ibe acknowledgment, the plaintiffs ailedgeda 

seizin of the villein with eaplees, or receipt of 

profits from him, in the usual manner. This 

case is another proof, that a sei/in previous to 

tiie acknowledgment was the real foundation 

At ibe lurd*s claim, and that the acknowledge 

neat was merely used to estop the villein from 

CAQtesting a fact which had been before so- 

kmoly confessed. However, 1 do admit, that 

sader the form of acknowledgment there was 

a possibility of coUusively creating slavery. 

but tliis was not practicable without the con- 

csrrence of the person himself who was to be 



(t) 43 E. 3. 4- 



(c) Hob. 99. 
Ro. Abr. 73S. pi. 6. 
(€j lb. pi. 8. 
; Fits. Abr. Villeiiage, 34. 

9 



the sufferer by the fraud ; and it was not pro- 
bable, that many persons should be found so 
base in mind, so false to themselves, as to sell 
themselves and their p(niterily, and to renounca 
the common protection and benefit of the law 
for a bare maintenance, which, by .the wise 
provision of the law in this country, may al- 
ways be had hy the most needy and ilis»tressed» 
on terms infinitely less ign(d)le and s«*Yere. It 
should also be remembered, that such a collu- 
sion could scarcely be wholly prevented, so 
long as any of the real and unmanumilied de- 
scendants from the antient villeins remained ; 
because there would have been the same possi- 
bility of defrauding the law on the actual trial 
of villenage, as by a previous acknonledgmeot. 
Besides, if collustons of this sort had ever be* 
come frequent, the lej^ialature mi^ht have pre- 
vented their effect hy an extraordinary reme- 
dy. It seems, that antiently such frauds were 
sometimes practised ; and that free persons, in 
order to evade the trial of actions brought 
against them, alleilged that they were villeins 
to a stranger to the suit, which, on ac<'ount of 
the great improbability that a confesvion so dis- 
advantageous should be void of tiuth, was a 
plea the common law did not suffer the plain- 
tiff to deny. BOt a remedy was soon applied, 
and the statute of (g) 37 E. 3, was made, gi% ing 
to the plaintiff a liberty of contesting such ao 
allegation of villenage. if in these times it 
should be eiideavoure<l to revive domeslio 
slavery in Eugland, by a like fraudulent con- 
fession of «il!enat;e, surely so unworthy an at- 
tempt, so (rross an evnl^ion of the law, \tould 
excite in this court the sti<ii!gest diNapptobutioa 
and resentment, and fiom parliament would re- 
ceive an immediate and t- ffectual reutedy ; I 
mean, a law declaring that villenage, as is 
most notoriously the fact, has been long expired 
for want of real ohjects, and therefore making 
void all precedent confessions of it, and prohi- 
biting the courts of justice from recording a 
confeK^ion of villenao^e in future. 

3. It may be objected, that though it is not 
usual in the wars between Christian powers to 
enslave prisoners, yet that souie nations, parti- 
cularly the several stales on the coast of Bar- 
bary, still adhere to that inhuman practice ; 
and that in case of our ^eing at war with 
them, the law of nations would juMtify our 
king in retaliating; and consequently, that 
the law of England has not excluded the possi- 
bility of iittroUucini^ a new slavery, as the ar- 
guments against it sup|»08e. 

But this objecti<in may be easily answered ; 
for if the arguments auainst a new slavery in 
En(>land are well ftumded, (hey reach the 
kin^r as well as his subjects. If it has been at 
all times the policy of the law of Enj^laod not 
to recognize any slavery hut the antir nt one of 
the viilein, which is now expired ; we cannot 
consistently attribute to the executive power a 
prerotrative of rendering that policy ineffec- 
tual. It in true, that the law of nations may 



ttf 



(g) 37 E. 3| C. 1§. 



09] 18 GEORGE HL 

give a right of retnliating on an eoeroy, who 
cnskres his captirea in war; but then the 
exercise of this riicrht niay be prereoted or li- 
mited by the law of any particniar country. A 
writer of eminence (A) on the law of nations, 
has a passage very applicable to this subject. 
His words are, "If the ciftl law of anv na- 
tion does not allow of slavery, prisoners of war 
who are taken by that nation cannot be nimde 
ffaves." He is justified in his obserration not 
only by the reason of the thing, but by the 
practice of some nations, where slavery is as 
unlawful as it is in England. The Dutch (i) 
when at war with the Algerines, Tunisians, or 
Tripolitans, make no scruple of retaliating on 
their enemies ; but slavery not being lawful in 
their European dominions, they have usually 
■old their prisoners of war as slaves in Spain, 
where slavery is still permitted. To this ex- 
ample I have only to add, that I do not know 
an instance, in which a prerogative of having 
<saptive slaves in England has ever been as- 
sumed by the crown; and it being also the 
policy of our law not to admit a new slavery, 
there appears neither reason nor fact to sup- 
pose the existence of a royal prerogative to in- 
troduce it. 

' 4. Another objection will be, that there ai« 
Engli^ acts of parliament, which give a sanc- 
tion to the slavery of negroes ; and therefore 
that it is now lawful, whatever it might be an* 
tece<lently to those statutes. 

The statutes in favour of this objection are 
the 5 Geo. 9, c. 7, (k) which makes negroes in 
America liable to all debts, simple-contract as 
well as speciality, and the statutes regelating 
the African trade, particularly the SS Geo. 9, 
c. 31, which io the preamble recites, that the 
trade to Africa is advantageous to Great Bri- 
tain, and necessary for supplying its colonies 
with negroes. But the utmost which can be 
said of these statutes is, that tliey impliedly 
authorize the slavery of negroes in America ; 
and it would be a strange thing to say, that 
permitting slavery there, includes a permission 
of slavery here. By an unhappy concurrence 
•f circumstances, the slavery of negroes is 
thought to have become necessary in America ; 
and therefore in America our legislature has 
permitted the slavery of negroes. But the 
slavery of negroes is unnecessary in England, 

(h) Rutherf. Inst. Nat. L. v. 8, p. 576. 

(i) * Quia ipsa servitus inter Cbristianos 
' fere exolevit, eft quoque non utimur in hostes 
' eaptos. Possumus tamen, si ita placeat ; imo 

* ntimur quandoque adversus eos, qui in nos 

* utuntur. Qnare et Bel(jpae quos Algerienses, 

* Tunitanos, Tripolenses, in Oceano aut Mari 

* Mediterraneo capiunt, solent in servitutem 
< Hispanis vendere, nam ipsi Be\^te servos non 

* liabent, nisi in Asi& Africft et Americft. Quin 
■ anno 1661, Ordines Generales Admiralio suo 
' naodlUvnt, pirates eaptos in servitntem ven- 

* dsrat IdmoQue ofaservatom est anno 1664.' 
Byaksrsbock QosBst Jnr. PnbL lib. 1| c. 9. 



The N^o Case. 



[60 



and therefore the legislature has not extended 
the permission of it to England ; and not hav- 
ing done so, how can this court be warranted 
to make such an extension f 

&. Ihie slavery of negroes being admitted to 
be lawful now in America, however questions-* 
hie its first introduction there might be, it msy 
be urged, that the lex ioci ought to prevail, and 
that the master's property in the negro as a 
slave, having had a lawful commencement in 
America, cannot be justly vsri^ by bringing 
him into England. 

1 shall answer this objection br explaining 
the limitatran, under which the lex loci ought 
always to be received. It is a general rule {/), 
that the lex loci shall not prevail, if great in- 
conveniences will en&ne from giving eflect to 
it. Now I apprehend, that no instance can be 
mentioned, in which an application of the lex 
loci would be mora inconvenient, than in the 
case of slavery. It must be W^^d* that 
where the lex loci cannot have effect without 
introducing the thing prohibited in a degree 
either as great, or nearly as great, as if there 
was no prohibition, there the greatest inconve- 
nience would ensue from regarding the le$r 
loci^ and consequently it ought not to prevail. 
Indeed, by receiving it under such circum- 
stances, the end of a prohibition would be fims- 
trated, either entirely or in a very great de- 
gree ; and so the prohibition of things tha 
most pernicious in their tendency would he- 
come vain and fruitless. And what greater in- 
conveniences can we imagine, than those, 
which would necessarily result from such an 
unlimited sacrifice of the municipal law to the 
law of a foreign country ? 1 will now apply 
thia general doctrine to the particular case of 
our own law oonceraing slavery. Our Uw pro- 
hibita the commencement of domestic slavery 
in England ; because it disapproves of slavery, 
and considers its operation as dangerous and 
destructive to the whole commnntiy. But 
would not this prohibition be whollv ineffec- 
tual, if slavery could be introduced from a fo- 
reign country ? In the course of time, thoucrh 
perhaps in a progress less rapid, would not do- 
mestic slavery become as general, and be as 
completely revived in England by introduction 
from our colonies and from foreign countries, 
as if it wss permitted to revive by commence- 
ment here ; and would not the same inconve- 
niences follow ? To prevent the revival of do- 
mestic slavery effectually, iu iatroduction must 
be resisted universally, without regard to the 
place of its commencement ; and therefore in 
the instance of slavery, the lex loci must \ield 
to the municipal law. From the fact of there 
never yet having been any slavery in this 
country except the old and now expired one 
of viilenage, it is evident, that hitherto our law 
has uniformly control leil the lex loci in this re- 
spect ; and so. long as the same policy of ex- 

(l) See the chapter * de conflictu legum di- 
* versarum in divenis inperiisi* ia Huber. Vn^ 
lect, p. §38* 






The Negro Caie. 






e case of 
liberty lo 



din^ ibe lex loci in ll 
■M, iigiiea imtneilialesnd ciilJri 
■i, ■iien itiey are tirougbt here 
orcuiDtrv. Atoat of (lie iither European 
an. io which slarcrj ii discauDleoaiiced, 
Maiopwd a lihe policy. 
Ii SoMland domMlic ilavery is (m) un- 
to^o. eierpl CA far as regards the (n) coal- 
k*ni aoi] sall-maken, wbose condUian, il 
B* be coorrMed, bears some resemMance lo 
*|07 : because atl wliu bave unce acted in 
MRof ibifse capaciiies are compellable to 
mt, and fixed to ilieir respective places of 
mbimcDl durioe lite. Bui wilb this single 
onyiiaa, there is not llie least vestige ut 
Aktj i aod «o jealous is the Scotch law of 
Bin t^ta( li:Dding to slavery, that it bu been 
U to disalUnr coulracts of seriice for life, or 
*rt ttrj lon^ term ; as, for Bimy years (o). 
Boner, nn parlicular case bas yet happened, 
■ ■hicb it bfta beeu necessary to decide, wbe- 
M a *l(«e of another country acquires free- 
aaaabis arriral in Scolland. In 1757 Ibis 
fHH« wms depending in tbe Court of SessioD 
itciBse of a oei^ro ; but tbe negro happen- 
•% la die during ibe pendency of the cause, 
*■ fiMiou was not (*) delemiined. But 
•M a >■ conaidered, that in the time nf sir 
ttaBBiCtaig, who nroleat least ISO years 
if^diter* was eten then a thing unheard of 
• toMlaBd, and thai there sre no laws (p )t( 
^mt ilavery, one can scarce doubt nbai 
^an tbe lords uf aession would have prO' 
•^■4, if Ibe negro's death bad not pre- 
mt a d^ision. 
ake Cnited ProviDcesslaTerybaTiag fallen 



['■J Sec Crag. Jus Feud. lib. ; 
tJL Suit'* Instil, b. 1, I. e, E. 

(n) Puib. Insl. jurl 1, b. 2, t. : 
haa-ial. I, p. 66, 

(t) Uaedooal. Instit. toI. 1,1 
■M ita 1 1 1 r . that in tbe case reli 
IhBiwial. the lerm of service wa 
i eireumstince. Tbe con 



, dieges. 1 1 , 

. Mucdoual. 

68. But I 
by Mr. 



11 the 



bo* ikc uasters and the crews of some iish 
' hani Uie latter biadjag themselves for a 
ynriy »Upw*Dce lo serre in their respeclite 
MM dariflf! Ibree limes nineteen yean, so Ibal 
HIaov af dtem, duriug all that time, could re- 
aaae traoi a particular tillage, or ao much aa 
ft«« MC boat to arnaber. See Diet. Decii, 
tL Pactum illicitum. 

CJ Wall. Instil. Law of Scotl. chap, on 
WK^r aari aerTant 

(f) ikr Tbamaa Craig, toantinning the Eng- 
U (rikaafe, aaj s, ■ N'lillua eiil apud uos eju 
'tmm,rt inaadiium nomen, nisi quod iionnull 
'■bbru HrgiE UajesUlii de nnlitisetad li 
'hnuem ^nwlamanlibut prop una iitu r ; qut 
'aib A«c'"""" iu'>ribiia«iint recepla, et nun 
'w^ M uauin nostrum deducta.' Crag. Ju 
r Jl^l 




A. D. 1771. [B2 

into diiuie (j), all their wrilen agree, that 
s from another country become Iree ib» 
lent they euler into the Duti;h terriioriea 
(r). The same custom prevails in some of Iha 
neighbouring countries, particularly Brabant, 
Had olher parts of tbe Aualrian Netherlands; 
and Gudelinu), an eminent civilian, who was 
formerly proreiwor of law at Lourain in Bra- 
bant, relatea from tbe annals uf the supreme 
council at Mechlin, IhnI, in tbe year 1531, an 
applicatiou for apprehending and surrendering 
a tngitive slave from Spain was on tbia account 
rejected (j). 

Jn France tbe law is parlicularly explicit 
against regarding ihe Itx foci in tbe case of do- 
mestic slavery : and though, in some of tba 
provinces, a reronanl of tbe antient slavery U 
still to be seen in Ihe persons of the ' serfs' or 
' gens de mnio-inorte,' who are attached lo 
panicular lanJi ((), as villeins reLfardaut for- 
merly were ia England ; yet all the writers on 
Ibe law of France agree, that tbe moment a 
slave arrives ibere from analber country h« 
acquires liberty, not in consequence of any 
wrilteo law, tiul merely by long usage having 
the ti}rce of law. There are many remarkable 
inatances in which Ibis rule against the aitmis- 
sion of slaves from foreign couniries has bad 
effect in France. Two are mentioned by (n) 
Bodin; one being Ibe case of a foreign mer- 
chant who had purcliaaed a slave in Spain, and 
alierwards carried him into France ; tbe olher 
being tbe case of a Spanish ambassador, whose 
slave was declared tree, notwitbstanding the 
high and independent character of the sTave's 
owner. This latter case has been objected lo 
by Borne writers (w) on Ibe law of nationg, who 
do not disapjirove of the general principle nn 



Cf ) ■ BelgiG servos non babeol, nisi in Asit, 
' Africft, et AmericL' Byokersh. QokbI. Jur, 
Pub, bb. I, c. 3. Another great Dutch lawyer 
adds, ■ Nee cuiquam mortalium nunc liceel 

■ use venundare, aut ali& ratiune servilDlis jure 

■ semel alleri addicere.' Voet Commentar. ad 
Pandect, lib. 1, lil. 5, s. 3. 

(r) ' Servilua naulatim ab usu recesiil, ejua- 
' que Domeo bodie apud nos exolevit; adco 
' quidem ut scrvi, qui aliunde hue adducunlur, 
' simul ac imperii noslri fines intrftrunt, invilia 
' ipsorum dominia ad hberlatcm proclamars 
' pussini ; id qnod et aliaruTD ChriEiiBn&ruia 
' gentium moribusreceplum esl.' Grieuewcgeu 
de Leg. Abrogat. in Hollandili, &c. p, S, John 
Voel, in the place cited in ihe preceding note, 
expresses himself to the same effect. 

(t) Gudelin. de Jur. Noviss. lib. 1, c. 5, et 
ViDn.iiilnslit.lib. 1, til. 3, p.39,edit. Heinecc. 

(I) See Inst, au droit Franc. parM. Argou, 
ed. 1763, liv, l, chap. 1, p. 4. 

(u) Bodin. de llepubhc. lib. 1, cap. S, d« 
iniperio herili. Se« several other inslancea 
(Tienliuned in the Nfgru cause in Ihe 13tb vo- 
lume of the Causes Celehres. 

(a) K.irchner, de Lt^al. lib, 3, c. 1, nom. 
333; and afier him Bynkprshoek Juge Com- 
pel, dvs Ambatnd. Cil. ^ut Qatbejt.c. l&,t.V 



63J 12 GEORGE IIL 

which liberty is giren to stares brought from 
foreig^D countries, but only coroplaio of lis ap- 
plication to the particular case of an ambassa- 
dor. But, 00 the other hand, Wicquefort (x) 
blames the states of Holland for not followindf 
the example of the French, in a case which 
he mentions. AHer the establishment of the 
Frenci) colonies in South America, the kinfips 
of France thought fit to deviate from the strict^ 
ness of the antient French law, in respect to 
■larery, and in them to permit and regulate the 
possessiou of negro slaves. The first edict for 
this purpose is said to have been one in April 
1615, and another was made in May 1685 (^), 
which is not confined to negroes, hut regulates 
the general police of the French islands in 
America, and is known by the name of the 
Code Noir. But notwithstanding these edicts, 
if DPgro slaves were carried from the French 
American islands into France, they were inti- 
tled to the benefit of the ancient French law, 
and became free on their arrival in France (x). 
To prevent this consequence, a third etiict was 
ma(le in October 1716, which permits the 
bringing of negro slaves into France from their 
Americau islands. The permission is granted 
under various restrictions ; all tending to pre- 
Tent the long continuance of negroes in France, 
to restrain their owners from treatin^^ theni as 
property whilst they continue in their mother 
country, and to prevent the importation of fu- 
gitive negroes ; and with a like view, a royal 
declaration was made in December 1738 (a), 
containing an exposition of the edict of 1716, 
and some additional provisions. But th« an- 
tient law of France in favour of slaves from 
another country, still has efl'ect, if the terms of 
the edict of 1716, and of the declaration of 
1738 are not strictly complied with ; or if the 
negro is brought from a place, to which they 
do not extend. This appears from two cases 
adjudged since the edict of 1716. In one (A) 
of them, which happened in 1738, a negro had 
been brought from the island of St. Dumio^o 
without oliserving the terms of the edict of 
1716 ; and in the other (r), which was decided 
to late as in the year 1758, a slave had been 
brought from the Kast Indies, to which the 

(x) Wicq. Embassador, Engl. ed. p. 268. 

(y) Decisions Nouvelles, par M. Denisart, j 
tit. Ne^res. — Denisart mentions, that the edict 
of 1685 is registered with the sovereign council 
at Domingo, but has never been registered in 
any of the French parliaments. 
^ O) Nouvelles Decisions par M. Denisart, 
tit. Negres, s. yr. 

(a) M. Denisart oWrves, that (he edict of 
1716, and the declaration of 1738, do uot ap- 
pear to hare been ever registered by the parlia- 
**'J«nt of Paris, beciiuse they are considered as 
^^^^ryto the common law of the kingdom.^ 
hw Nouvelles Decisions, Ut. Ncgrtss. And 

> < ^ ^'•usca Celebres, vol. 13, p. 492. 
\^ Nouvellei Decisioot par M. DemMrt, 
It. Neffrca^ a, 147. 



The Negro Case. ([64 

edict doth not extend : and tn both tljeie cases 
the slaves were declared to be free. 

Such are the examples tlrawii from the laws 
and usages of other Eur(»|»ean countries ; and 
they fully evince, that wherever it is the policy 
to discountenance slavery, a disregard of the 
lex loci, in the case of slavery, is as well justi- 
fied by general practice, as it is really founded 
on necessity. Nor is the justice of such pro- 
ceeding less evident ; for how can it be unjust 
to devest the master's property in his slave, 
when he is carried into a country, in which^ 
for the wisest and moat humane reasons, such 
property is known to be prohibited, and conse- 
quently cannot be lawfully introduced P 

6. It may be contended, that though the law 
of England will not receive the negro as a 
slave, yet it may suspend the severe qualities of 
the slavery whilst the negro is in £o(^land, and 

f»reserve the master's right over him m the re- 
ation of a servant, either by presuming a con- 
tract for that purpose, or, without the aid of 
such a refinement, by compulsion of law 
grounded on the condition of slavery in which 
the negro was .previous tn his arrival here. 

But in8U|)erable difficulties occur against 
modifying and qualifying ihc slavery by this 
artificial refinement. In titc pr^-sent case, at 
all events, such a mo<lific:itiuu cannot be allow- 
able ; because, in the return, the master claims 
the benefit of the rel.ition between him and the 
negro in the full extenf of the original slavery. 
But for the sake of shewing the futility of 
the argument of modification, and in order 
to prevent a future attempt by the masters of 
negroes to avail themselves of it, 1 i^ill try its 
force. 

As to the presuming a contract of service 
against the negro, i ask at what time is its 
commencement to be supposeil? Jf the time 
was before the negro's arrival in Ktij^land, it 
was made when he was in a staie of slavery, 
and consequently without the po\ier of con- 
tracting. If the time presumed was subse- 
quent, the presumption must begin tiie moment 
of the negro's arrival here, and consHpiently 
be founded on the mere fart of that arrival, and 
the consequential enfrnnchisement by opera- 
tion of law. But is uot a slavery, determined 
against the consent of the master, a strange 
foundation for presuming a contract l»etween 
him and the slave ? For a momeut, however, I 
will allow the reasonableness of pref:uming 
such a contraH, or I will suppose it to l>e re- 
duced into writing ; but then I ask, what are 
the terms of this contrartP To answer the 
master's pur|iose, it must be a contract to serve 
the master here; and when he leaves this 
country to return with him into America, 
where the slavery will again attach oiion the 
negro. In plain terms, it' is a contract to go 
into slavery whenever the master's occasions 
shall require. Will the law of £n<;land dis- 
allow the introduction of slavery, and therefore 
emancipate the negro from it ; and yet give 
effect to a contract founded solely upon sla- 
Tcry , ID slavery endiog ? Is it possible, that the 



«J 



The Negro Case. 



I : h.« aa 
» t-r»ir.n 

ri'-Jtt 6.? 
•Vlatte 






hw of BagUiid can be «o iiwulting to the 
Mfpro, te iDOOiitisteiit wil h ittel F P • 

The ■rgoineot of modification, iodependeot- 
Ij vf euotraet, is eqatlly delusive. — Tliere is 
Bsbown rale by which the Court can g^uide 
' " ID a partial reception of sla?ery. Be* 
if the law of Eogfland would receive the 
of the negro io any way, there can be 
wby it should not be admitted in the 
MM degree as the slavery of the villein ; but 
fkt aifgiinieiit of modification necessarily stip- 
fH« the ooDtrafy ; Iteeause, if the slavery of 
ike aegfo was received in the same extent, 
Iba it would not be necessary to have recourse 
Ha ^oalification. There is also one other ma- 
am still more repugnant to the idea of modify- 
isf the staverv. If the law of England would 
■Miry the slavery, it would certainly take 
•way its most exceptionable qualities, and leave 
these which are least oppressive. But the mo- 
dUkption required will be insufficient for the 
'a parpose, unless the law leaves behind 
the most exceptionable, odious and 
SMffcnive; an arbitrary power of revivinu: 
the slaverj in its full extent, by renraval of 
*e oegro to a place, in which the slavery 
•in again attach upon him with all its original 
K*my(iA. 

FroiB this examination of the several ob- 

JKtisiis in favour of slavery in England, I 

lUak myself well warranted to observe, that 

iwcad of being weakened, the arguments 

apiast slavery in England have derive an ad* 

4tMaal force. The result is, not merely that 

Mirers become free on being brought into this 

caoBtry, Imt that the law of England confprs 

^ %A of liberty entire and unincumbered ; 

Mttt lame only, but really and substantislly ; 

■W cMMqoentfy that Mr. Stenart cannot have 

tW Irvi rii^ht over Sommersett the ue<rro, 

^fhtf io the open character of a slave, or in 

l^dngvised one of an ordinary servant. 

(9.) In the outset of the argu 
ment I made a second question '] 
on Mr. Htetiart's authority to en - 
f«iree his right, if he has any, by 
transporting the negro out of Eng- j 
land. Few words will be necetfsary 
on this point, which my duty as 

(d) This answer to the argument of modi- 
lestioa, inchides an answer to the supposition, 
4tf an action of trespass * per quod servitium 
* misit,* will lie for loss of a negro's service. 
I IB petvonded, that the case, in which that 
rtiMdy was loosely suggested, was one in 
vbiefa' the question was about a negro being 
•ui of Enifland. I mean tlie case of Smith and 
Gbald, S Halk. 667. Another writ, hinted at 
h ibc tame case, is the writ of trespass, < qiiarc 
'apiivum snum cepit;' which is not in the 
bsrt applicaHe to the negro, or any other slave. 
hiappoaes the plaintiff to have had one of the 
kii^'fceneiAies m his custody as a prisoner of 
«ir, and to have had a right of detaining him 
fl ^yment of a ransom. Sea Reg. Br. 103, 
k. sad f Mk 007. 

VUU IX. I 



A, D. 1771. [B« 

counsel for the negro requires me to make, in 
order to g^ve him every possible chance of a 
discharge from his confinement, and not from 
any doubt of success on the question of slavery. 

If in England the negro continues a slave to 
Mr. Steuart, he must be content to have the 
negro subject to those limitations which the 
laws of villenage im|Y06ed on the lord in the 
enjoyment of his property in the villein ; there 
being no other laws to regulate slavery in this 
country. But even those laws did not permit 
that high act of dominion which Mr. oteuart 
has exercised; for they restrained the lord 
from forcing the villein out of England. The 
law, by which the lord's power over his villein 
was thus limited, has reached the present 
times. It is a law (e) made in the time of the 
first William, and the words of it are, * prohi- 
* bemus ut nullus vendat hominem extra pn- 
< triam' (/). 

If Mr. Stenart had claimed the negro aa n 
servant by contract, and in his return to the 
Habeas Corpus had stated a written agreement 
to leave England as Mr. Steuart should re^- 
quire, signed by the negro, and made after hia 
arrival in England, when he had a capacity of 
contracting, it miglit then have been a ques- 
tion, whether such a contract in writing would 
have warranted Mr. Steuart in compelling the 
performance of it, by forcibly transporting the 
negro out of this country P 1 am myself satis* 
fied, that no contract, however solemnly enter- 
ed into, would have justified such violence. 
It is contrary to the genius of the English 
law, to allow any enforcement of agreementli 
or contracts, by any other compulsion, than 
that from our courts of justice. The exercise 
of such a power s not lawful in cases of 
agreemeirts for property ; much less ought it to 
be so for enforcing atj^reements against the 
person. Besiiles, is it reasonable to suppose, 
that the law of England would permit that 
against the servant by contract, which is de* 
nied against the slave? Nor are great autho- 
rities wanting to acqtiit the law of England of 
such an inconsistency, and to shew, that a 
contract will not warrant a compulsion by im- 
prisonment, and consequently much less by 
transporting the party out of this kingdom. 
Lord Hobart, whose extraordinary learning, 
judgment, and abilities, have always ranked bis 
opinion amongst the highest authorities of law, 
expressly says (g), that the body of a freeman 
cannot he made subject to distress or imprison- 
ment by contract, but only by judgment. 
There is, however, one rase, in which it is 
said that the performance of a service to be 
done abroad, may be compelled without the 

(e) Wilk. Leg. 8axon. p. «29, etcap. 65, 
Leg. Gulielm. 1. 

^) This law furnishes one more arg^ument 
against slavery imported from a foreign coun- 
try. If the law ik England did not disallow 
the admission of ftuth a slavery, would it re- 
strain the master from taking his slave out of 
the kingdom ? (^) Hob. 61. 

F 



The Ntgro Case. 
h MaCliMi in wliicli ncf^roei ha>e Ihe mis- 
iMuap la be coaiiiterMl, elfectUHlly prevails 
ll«r uDimrtalion in any uoiMiilrnible x\e%ten. 
Oi|te wc not, on nur |<arl, tu q;iiaril atiil pre- 
MtH*>i librrtv by wliicli w« are ilialingoiNlidl 
!» »> Uw earih ! in be jf Biiiu» of n hareVFr 
^■vc tijui a IfDilpm-y lu iliiiiuii*h tlic vrn?- 
MM doe m ibe first of UoHtdirsf The tinrriil 
«mthn, iKwrc^ cmlible in rcciUl, wrpetrated 
■ <— ri c « , mtglil, liy (Itc alluwonFt' ul'sla>» 
WM^ tn, h« iutmliirpil here. Could your 
JMMip, coaltt noy lilierii< and infcenunua le<n- 
paiOMlun, In ifaefii'ldaborilrringnu Ihia city, 
Mms • wrMcli bouDd li)r aonip trivial nSrnce 
I* a ucr, lara and a^iiiiixio^ benettli the 
HMtfc f thieh objf ctH mi|{bl by time bpcome 
t will I r, b««ucDe unhmleil by (bii> nation ; 
■MiiNid, ■■ (bey arv nnw, to I'ar different sen- 
ton^. tri>y (l«ne ifnlimenla uevcr be eA 
liacil ibe l<«4iD){s uf hiimaiiily I the ^eneraua 
■Sm of Tree minds! A]ay tuch principle* 
ttfttbe CBrTti|ited hy the mixture i)f' slHTiKh 
aMonal Not cau I beliere, we shall autfer 
H* iadt*til(«»l liiinjf here tn want that lihrrlv, 
*Mae eflVcW arc clory and bappiness to the 
faKeaml ncry iodiviilual. 

Br. Wallace. — Theqiie<tioD hn« been slated, 
•Mb«r Ibv n^hl can be auiiporleil bere; or, 
iTiloMi, wlte<ber a coui-ae nt' proceeding's at 
Uv he not n«ceaaary to give effect lo the ri|;lit7 
b la liwail in tlim i|uarlera of the globe, and 
B ftn af ib« f'nurlh. In Asia the wbnie |iea- 
)1(; ia Afnea and America far (be i^eater 
pull <■> Kiiropv great numliert or the Itiia- 
'n and puUndeni. Aa tn captivity in war, 
■■ CkruOian prince* liave bteu nvA to i^ive 
!■ IB ibe priauaera ; and it look rise probably 
iiMCetiaailra, when they gnte llirn) hie. Bad 
<^i«aM r-ufraiicbjtied ibem, tu inlisl under 

MMMki Th« ri|{hl of a conijueror wui abso- 
kw« Eiiivpe, and i* in Africa. I'be natirea 
M bnoybl from Africa tntlie West ludiei; 
MNlai* ia tnaile ibere, aal became nf poaiti*e 
wm, l« tWt* bein|{ im law auaintt ii. Il can* 
■■ ba ia MMnlemlinu by ibis or any olber 
■M, laaae, wliptbcr ihe West India r«Ku1a- 
fe^an lIlebM) poaiible; iuch ■■ tbey are, 
•Ua tmf cMtlifiur in liirce aa lawa, tbey muat 
liirikHailla. Aa to Eni^land nnl prrmiliin); 
i^twy, llan« U no law a^inil it; nor ilo 1 
Uaay anainpt liaa been made tu pnire the 
aaUM* afaae. Villeoaga itself has all but 
htaaa*. Ttiaagb Ibe ilia<ohiliiiii ufm'inas- 
Ma, aaBBHC** ulber material allerations, did 
aMaaad lb* decay of that tenure, aUves could 
halba n EnirlaDii : for villeins were m Ihi* 
ttmttj, aarf trere mere alavea, in Elizabeth. 



[Urd M 

'■ 1 aaai aa aaaeriiua. bill duea not recollect ibe 
L Mr, tfaal Ivo »uly were in England in the 
-••f ClHrlealh«3•l,altbetimeoftheahnli- 
T: 4 iBsna.J In (be caiiet oilMl, the two 
-HfiiaeUy alfcnn an aCii"!) of ir.ner, ao action 
'•^^ftmfUdto merB Gomiiian chadeN. Lord 
■-" — 1 a meia dMlum, a deci&ioo 




A.D. 1771. [70 

unsupporled by preceilenl. And if it be nh- 

{ecteil, that a pmper action rflubl not ha 
ironelii. il is a known and allowed priictire in 
mercantile IrnnsaciinnK. ii' the cnuie ariiei 
■liroad. In lay il wilhin Ibe liinijdom : therefore 
the rnnirai't in Viricini* inight lie laid to be in 
London, and wunlil not be irareriiable. With 
re peel to llie wher c«s<^, ihe pariicidar mode 
of action was ainne nbjrcieil in ; had ii been an 
Aclinii ' per qniMl servitimii amiail,' for Iob-i of 
seiiice, ihp Court wiiuld have allowed it. The 
Cuiii'l called ibe pemon. for the recovery of 
uhoiii It wag broiiitbi, a slavish servant, in 

I Cbaiiiberlayne's cnse. Lord llanlwicke. and 
ilii' atterwanit lord chief juaiice I'albol, then 
alinrney and aolicitor-genenl. prnn'iuiMed a 
aiave not free by coinine into England, It is 
neccaidry the iiiaHlers shonld briny them over; 
for lliey cannnl trutt the h bites, either wilh 

I the atorea or the navigatini; the vessel Tliere- 
fore. the Iwnefit taken on the Habeaa Curpui 
AciooKiit tube allowed. 

I LorrI Manijield obaervea, Tbe ease alluded 
lo was u Jinn a 'petition in Lioroln's Inn Hall, 
after dinner ; probably, thtreliire, mi);bl not, 
OS he believes ibe contrary is nnl unnaaal al that 
hour, be taken with much accuracy. Tbe 
principal maiter was ihen, on the earnest toli- 
dtalion of many mercbanls, lo know, whether 
a slave was freed by being made a Christian? 
And il was resolved, not. It Is remarkable, 
though tile Engl ixb look infinite pains beliire 
to |irevenl ibeir slaves being made Christiana, 
that ihey might not be freed, the French sug^ 
gested ihey mutt bring Iheir'a into France, 
(wlieD the edict of 1706 was |ietilioned for.J lo 
make them Christinns. He aaid, the disliuc- 
tion was difficult as loslavrry, which could not 
be resumed after emanuipaliDn, and yet ihecon- 
ditirmoftlaiery.in ilsfuli eStent,cauldnolhetD- 
leraiedhere. lUucbcunsiderationwai necessary, 
lo define bow far (lie point should be cstried. 

The Conrt must uunnder Ibe great de- 
triment lo proprietor*, there being so great 
a number in tbe ports of ibis kingdom, that 
many thousands of pounda would be lost to (be 
uwncri. by seKing Ibem free. (A gentlemaa 
observed, no greai dauger; for in a whole 
Heel, tianally, there would not be aix alates.) 
A* to Prunce, ibe case stated decides no 
farther than that kingdom; aud (bere freedo(n 
»as cUiinrd, because the slave had not been 
registered in ibe port where be eiiiered, con- 
I'ormably to the edict of 170<i. Mighi noi a 
«lave na well be freed by going oui "f Virginia 
lo Ibe adJBient couolrv, where Ibere are no 
alavea, if change lo a place of contrary custom 
was sufficient ? A statute by the legislaliire, to 
auhjei-l ihe Weal ladia properly to payment of 
debu, I bD|ie, will be thought some proof; an> 
other act devests tbe Africaa company of their 
•laves, and vests them io the West India Coiii' 

Kany : I say, I hope tliese are proofa Ihe law 
■■ interfered for the inainlenance of tbe trade 
in klaven, and Ibe iraimferriiig of slavery, Aa 
for want of apphcutiiin properly to a court at' 
juatice i B common nervani may be coirtciaA 



71] 12 GEORGE III. 

here by his maAter's prif ate aiitbority. Habeas 
Corpus acknuuieU^es a ri<jht to seize pt:rsoiiB 
by i'urve employed to ai*rve abroad. A riiebt ol' 
coiiipiilsiun (here must be, or ilie master trill 
be uutterthe ridicuU»us iiei'esbtty of'nCirlectUiip 
bis proper buaiuesSf by stayin<^ here to have 
their service, or must he <|uiie deprived of those 
slaves lie has beeu obliunl to briog over. The 
case, as to service tor life, was uot allowed, 
merely tor waut of a deed to pasd it. 

The Court approve^l Mr. Alley ne's opinion of 
the distinction, how tar niuuicipal laws were to 
be refj^rded : instaitced the right of marriag^e ; 
which, properly stdeamiased, ivaa in all piacess 
the same, but the resfulatiojis of power over 
childreu from it, and other circumstances, very 
various; and advised, if the merchants thought 
it so uecessary, to apply to parliament, who 
could make laws. 

Adjourned till tliat day se'nnight. 

Mr. Dunning. — It is incumbent on me tojas^ 
4ify captain Roowles's detainer of the nei;ro ; 
this will be efiecteil, by proving a right in Mr. 
Steuart; even a supposed one: for till that 
matter was deteruiiued, it were somewhat un- 
accountable tliat a negro should depart his 
service, and pat the raeanv om of his power of 
triyog that tight to cfleci, by a 6ight out of the 
Icingdom. i will ('xplaio what appears to me 
the tbundaiion of Mr. Steuart's claim. Before 
the writ of Habt-as Corpus issued in the present 
case, there was, and tlif re still is, a great num- 
ber of slaves in Africa, (from whence the Ame- 
rican plantations are supplied) who are saleable, 
and in IJMrt sold. L-uder all these descriptions 
is James 8ommersett. Mr. Steuart brought him 
over to England ; purp;)s:ng to return to Ja- 
maica, the negro chose to depart the service, 
and was stopt and detained by ciptain Knowles, 
until bis master should set sail and take htm 
away to be sold in Jamaica The gen;leoien 
on the other side, to whom 1 impute no blair.e, 
but on the other hand mucb ctniuit-ndation, 
baTe advanced osany iiii^euious propositions ; 
•part of which are undeuiaWly true, and part (as 
w usual io compositions of int^enuity) very dis- 
putable. It is my mi>f triune to addr^ an 
audience, the grt^ier part of which, I fear, 
are prejudiced the other way. But wishes. I 
am well convinced, mill ne«er enter into \our 
lordships* minds, to influence the determination 
4lf the poiut: this cause must be what in fact 
•ml law it is ; its late, I trust, therefore, de- 
aaa4s on fi\t invariable rules, resulting by law 
iom the nature of the case. For myselt'. 1 
aaanld not be understood to intimate a wish in 
Afuur of aUvery, by any means; nor on the 
Alher side to be supposed' the mamuiner of an 
apiaioD contrary to my own judgment. I am 
Mwnd by duty to oiaintaiu those argot nenis 
•yj"^."g must nactfiil to captain Knowles, as 
nras is eoBsittmt with truth ; ami if hi« coo- 
a^ ????** " ■fRcable lothelaws throughout, 
'UK aMcr a laitbcr indtspeasable duty to tup- 
^ mk mm albcr aiisatiaa tbaa may 

aftbc 



The Negro Case. 



[78 



4|uesiioo : less than this I have do reason lo 
ex|iect ; more, I neiiher demand n«»r wish to 
havealloweil. Many alarming apiirrheusions 
have l»ecn eniertaineil of tiie consequence of* the 
dtH^ision, eiiher way. About 14,<»00 slaves, 
from the most exact intelligence I am able to 
procure, are at present here ; atod some little 
lime past, 166,914 in Jamaica ; there are, 
hesitles, a number of wild negroes in the woods. 
Tike computed value of a negro in those parts 
SO/, a head. In the other islands I cauDOt 
state with Uie same accuracy, but on the whole 
they are about as many. The meaos of coa« 
veyance, I am lold, are maniiold , every familv 
almost brings over a great number; and will, 
be the decision on which side it may. Moal 
negroes who have money (and tliat descriptioa 
1 Iwlicve uill include nearly all) make ioteresk 
with the com moo sailors to be carried hither. 
There are nei^roes not falling under the proper 
denominatitin of any yet niensioned, descen- 
dants of the original slaves, ihe aborigines, if i 
may call them so ; these luve gradually ac- 
quired a natural attachment to their country 
and situation; in all insurrections they side 
with their masters: otiierwise the vasi dispco- 
portion of the negroes to the whites, (not less 
probably than that of 100 to one) wuiild have 
been fatal in its consequences. There are rery 
strong and particular grounds of apprefaeo- 
sion, if the relation in which they stand to 
their masters is utterly to be dissolved on the 
instant of their doming' into England. Slavery, 
say the gentlemen, is an odious thing ; the 
name is : and the reality ; if it were as one has 
defined, and the rest supposed ii. If it were 
accessary to the idea and the ezislence of 
James 8ommerwtt, that his master, even here, 
mi<;btkill, nay, might e.ii him, might sell living 
or dead, might make him and his descendants 
pro)>erty alienable, and thus trananaissible to 
posterity ; this, how high soever my ideas may 
be of the duty of my profession, is what i 
should decline pretty' much to defend or aa- 
sert, fer any pnr|i08e, seriously ; I should only 
speak of it to testify my contempt and ab- 
hnirence. But thift'i< w'bat at present I ass 
not nt all concerned in ; unless captain Knowles, 
or Mr. Steuart, have killed or eat bins. 
Freedom has been asserted as a natural right, 
and therefore unaUenable and unresirainithle ; 
there is (lerhaps do branch of this right, but in 
some at all times, and in all places at diffn^ent 
times, has lieen restrained : nor couM society 
otherwise be conceived to exist. For the KTcal 
benefit of the public and individuals, natuial 
Hheriy.wliieli cnnsisU in doing what one hkes, 
is altered to the doing what one ought. Tba 
centlemen who have spoke with so iiinch seal, 
have supposed different ways by which slavery 
commences; but ha«e omiiicd one, ami rightly { 
lor it would have given a ai* ire favourable idea 
of the nature of that power agaiost which ibay 
combat. We are apt .and great authoritiaa 
support this wsy of S|ieaking) to call tbose na* 
Hobs nniTcrsaUy, whose laMsl police wa wa 
•TybaibariaH; (tbut tbe Gmba, pw. 




<, Mhose cuilomi, 
r JuitiAuble 

^.. ,. L-Rllin^ ilifMi tMiliariikni, wp lire 

ttfiMAuiL Ijtnii so, ami draw cunclutinns ac- 
w^ ty- TImm* are alavcs in Al'fica by cap- 
iMf n wkr, but ilii- iiU[iibfr lir tnim ^tesl ; 
AcoMMtry u dinidetl iuln tnauy iinall, some 
^M loTUutm, u till ila, ill tii^ir wan wilb ciiie 
aMbrr, umc lliiii mttuui. There are ol' Ibt^c 
^flc, mm tthu Iwvu a ifiiM- uf the H(r|>l and 
uAv «f inrduiii ; bul wliu iinneiae llial oC- 
l^mat{aiiM ludaly are piiiiiBliable junily by 
kt**(«<>bwul'*ertiliMl«, I'DrarimeB against 
pofcny, « MHuulcraUK ailiiiliun ia made lo tbe 
OMhtr at' Uatcn. Tlify bare ■ process by 
■t ut ibe qmniily ol tliv di-bt in auMrlained ; 

adK'aUtlMfirup'rly i>l' Ibe drbliir in KUoda 

daapMnI ail be bas bcMilM, i» deemed pro- 
pnr boMFll'; llie proiwt otlJoer (ilieriH' we 
■•T call bin) •film ilie iii>>ultMir, and dia- 
pan ol' bioi ta ■ nlavr. We don'i cnutcad 
M4tr itliicfa uf thHc tlii^ unf'ortunale man in 
^■uliaii la ; bul liiv cunditiun was ibat of cer' 
Made in Ab«-'i ibe law nC the land o( (bat 
walijf di^imsed of him b< pra|i«riy, niili all 

Iw I Ibe taaluleti uf Ihe Biilish legislature 
^^rm ihn cmidiliiiii ; and iliua lie nas a slave 
lalb HI 1«» and fact. I do nol aim al proting 
knB fMHMi; out (lecauM ibey want evidrnce, 
b* bteaww Ihr} baie nol Wen ronlrorerlcd, lo 
■J nntlkirtian, and arc, 1 Ihinh, inCHjialile of 
t»al. Hr.Struart, nilh 4tiis right, crotwdihe 
luaale, and was not tn Itave lb« Mtiatuctinn of 
te«nHBi{, till after Itl* an-rtal in tliia country, 
tM all ratalioa belweeo liim ami ibe nejfro, aa 
^■■■aiul aervaut, was to be inoittr of con- 
Nikij, mad ofiong legal disquiBtlinn. A lew 
••lb RMv l>* )impei, cooeeriiine the Russian 
! {irar«e>linga nf the Huute of 
(bat rate. It is not abaiird in 
iM aitsa, ■• ^oiii«d, nor iinjiiubable asinaiter 
<*ha; iti« eiprnMion haa a kind of abautdiiy. 
I iksb, wiibout any prrjiulive lo Mr. KteuaM, 
« Hw men^B uf lh>s cauar, I may adoiil th# 
NaMt fuaaiM* lu lie deaired, an fur as Ihe 
Baa af Mat *U** goea. The maMfr and slave 
■na boili. (uraliuuld bate been at leaii) on 
Ibqr «MiBnN{ li^e, new creatures. Kutisian ala- 
Mr^. aodrtKithi.' (iilronlioaiiun aniaui{st ihem- 
■rim. lo llie iIe^i' t- ibcy use il, ii ant here ta 
^llryne jually olHiernis, the 
>nH 111' one imuoiry are nol 
bill docR I lie rtlalnui cnae 
LTculiuK It, Ibe dejcrcf^ in 
ry y I bate nut ht«r<l, nor. 
my inicniiun in affirm, Ihe 
• of trntnt and afr* aoi cea»ea here f I 
a municipal relaliuni diH'er iii dil 




lanaa e>4inwa, acvoriliui; i 



■iiiiy, and 



■•■a. A diatiovlion was eudravoured lo 

■bail inrtwee.i naliiral and rauDJoipal 

bat the iiHiiiral relatiuns are nol 

vbicb ailcnd lUaperaoonf Ibe man, 

M ura i w>lb wbidi the munioipal 




A. D. I77I. [74 

re moat closely connecleil i municipal lawa, 
rictly, are liiuse cnnAncd to a parti cularfilace; 
'""""' - - -' — - wbicb lltt muniei|>al lawa 






Tbei 



tinD nf hoaliBiid and nile, 1 think niyaelf war- 
ranleil in (^umlonitig, as a natural relation ; 
does il Kub!.isi tor lif« ; or lo answer the nalui-al 
purposfB wblcb way reasonably lie eiipi>used 
etieu lo lermiiuite sooner t Yet this ia iiiie of 
those rtlaiions nbich follow a man atery 
where. Ifonly nahiral relalioos had tbal pro- 
ptrt) , the elTeet vtoubl Ue very Kmlled indeed. 
In fact, Ibe municipal laws are princ>|inlly eoi- 
ployeil in delenniiHng the maniirr by wliicb 
relaiinnHareoreated; and which mannrr variet 
in Tarious countries, and in Ibe same cnuatnr 
at different periods t tbe polillcat relation itsefr 
eonlinuing usually unchanged by the cbanM 
of plare. Tliere is but one Ibriii al present 
with ua, by which the TElaiion of busband and 
H ife cnn be constiiiilrd ; Uiere was a time when 
olherwise: 1 need ixd say other nalions bare 
ilirir own modes, fur ibat ami oiber ends of 
socjely. Contract is not llw only means, on 
(be oilier haiiil, of producing Ihe relation of 
mattrr and serranl ; Ihe magiEiralea are em- 
powered lo uLlitje peraoos under certain cir- 
cuuialnnces lo serve. Let me take notice, nei- 
Ibei' ibe nir of Entjland is too pure lor a glare 
to brealbe in, nor have ihe tawa of England 
rejected sertilude. Villenage in this country 
is said tu be worn oui ; (be proptieiy of the 
ejipresaion strikn me a little. Are the lawa 
not ex.stinijT by which it was created F A mai- 
ler of more curiosity than use, i( is, to enquire 
H ben tbal set of people ceased. The slatuie of 
tenures ilid not however aboliab villeuage in 
gross; it left persoDs of that condition in Ihe 
sanie state as hetbre ; if their desceniloDts are 
■II deiid, llie gentlemen are rigbl lo say the 
subject of ibose law s is gone, bul not tbe law ; 
if the sulijeol revivea, the law will lead the 
subjecl. If tbe blaliite of Charles Ihe 9d, ever 
be rejiealed, tbe law uf villenaee revivea in it* 
full force. If my Irarned broilier tbe Serjeant, 
or ihe other gentlemen who argued on Ibe 
suppuaed subject uf freedom, wilf go through 
an 'operatiuD my reading assures me wdl be 
sufficient fur thai purpose, 1 shall claim them 
as properly. I won't, 1 assure ibem, make a 
rigorous use of my |iower ; I will neither seH 
them, eat them, nor part wiib ibem. Il wou1(l 
be a great surprize, and some inconvenience, 
if a lureinnur bringing over a servant, as soon 
as he got hither, must take care of bis carriage, 
his hurse, and bimsell in whatever meibudlie 
might have tbe luck (o iuveol. He muat 
lind his way lo l^ndoo do foot. Re tells bia 
servant. Do ibia ; the servant replirs, Before I 
d« it, I ibiuk lit Id inform you, Bir, the Drat 
Btep on this happy laod sets all men on a |>er> 
feci level ; ynu are just aa much obliged lo 
obey my mmmands. Thus, neither superior, 
or infenur, both go without their dinner. We 
should tind singular comfort, on entering tbe 
liiiiils of a foreign country, tu be thus pt once 
daresUil of ail altendance asd all accominodi- 



75] 



12 GEORGE III. 



The Negro Case. 



[76 



tioo. The ffentleroen hafe oolleded more 
reading Iban I ba?e leisure to collect, or in- 
dustry (I must own) if I had leisure : very 
laudable pains have beeu taken, and rery inge- 
nious, in collecting the sentiments of other 
countries, which 1 shall not much regard, as 
aflectiog the point or jurisdiction of this court. 
In Holland, so far from perfect freedom, (1 
speak from knowledge) there are, who without 
being conscious of contract, hare for offences 
perjMtual labour imposed, and death the con- 
dition annexed to non- performance. Either 
all the different ranks must be allowed natural, 
which is not readily conceived, or there are 
political ones, which cease not on change of 
soil. But in what manner is the negro to 
be treated ? How far lawful to detain him F 
My footman, according to my agreement, is 
obliged to attend me from this city, or he is not ; 
if no condition, that be shall not be obliged, 
from hence be is obliged, and no injury done. 

A servant of a sheriff, by the command of 
his master, laid hand gently on another ser- 
vant of bin master, and brouebt him before his 
toaster, who himself compelled the servant to 
hit duty; an action of assault and battery, 
and false imprisonment, was brought ; and the 
principal quesiinn was, on demurrer, whether 
the master could command the servant, though 
he might have justified his taking of the ser- 
¥ant by his own hands ? The convenience of 
the public is far better provided for, by this 
private authority of the master, than if the 
lawfulness of the command were liable to be 
litigated every time a servant thought fit to be 
neffligent or troublesome. 

Js there a doubt, but a negro might interpose 
jn the defence of a master, or a master in de- 
fence of a negro ? If to all purposes of ad- 
vantage, mutuality requires the rule to extend 
to those of disadvantage. It is said, as not 
formed by contract, no restraint can be placed 
by contract. Whichever way it was formed, 
the consequences, good or ill, follow from the 
relation, not the manner of producing it. 1 
may observe, there is an establishment, by 
which magistrates compel idle or dissolute per- 
- sons, of various ranks and denominations, to 
serve. In the case of apprentices bound out 
bv the parish, neither the trade is left to the 
choice of those who are to serve, nor the con- 
tent of parties necessary ; no contract there- 
fore is made in the former instance, none in 
the latter ; the dnty remains the same. The 
case of contract for life quoted from tbe year- 
books, was recognized as valid ; the solemnity 
only of an iostrument judged requisite. Your 
lordships, (this variety of service, with divers 
other sorts, exibtinj^ by law here,) have tbe 
option of classing him amongst those servants 
which be most resembles in condition : there- 
lora, (it seenu to me) are by law authorised to 
Mlbroe a servioe for life in the slave, that be- 

ftLi ^*^L-^C *•■• •i^o^^ion before his coming 
ltttt«r; wbiehy as Qot incompatible, but agree- 
SHj •^^WtjinayjiitUytiibBisthefB: I 
m/mh A nvhl. my, moat Deootarily iubnit; 



as a consequence of a previoDS right in Mr, 
Stausrt, which our institutions, not dissolving, 
confirm. I don't insist on all the consequences 
of villenage; enough is established for our 
cause, by supporting the continuance of the 
service. Much has been endeavoured, to 
raise a distinction, as to the lawfulness of the 
negroes commencing slave, from the difficulty 
or impossibility of discovery by what means, 
under what authority, he became such. This, 
1 apprehend, if a curious search were made, 
not utterly inexplicable ; nor the legality of bit 
original servitude difficult to be proved. But 
to what end ? Our legislature, where it finds 
a relation existing, supports it in all suita- 
ble consequences, without using to enquire 
how it commenced. A man enlists for no spo- 
cified time; t|ie contract in construction of 
law, b for a year : the legialature, when onoe 
the man is enlisted, interposes annually to 
continue him in the service, as long as the 
public has need of him. In times of public 
danger he is forced into tbe service; the lawa 
from thence forward find him a soldier, mako 
him liable to all the bdrden, confer all the 
rights (if any rights there are of that state) 
and enforce all p«ialties olf neglect of any duty 
in that profession, as much and as absolutely, 
as if by contract he had so disposed of him- 
self. If the Court see a necessity of entering 
into the large field of argument, as to right w 
the unfortunate roan, and service appears to 
them deducible from a discussion of that na- 
ture to him, I neither doubt they will, nor wish 
they should not. As to the purpose of Mr* , 
Steuart and captain Knowles, my argument 
does not require trover should lie, as tor re- 
covering of property, nor trespass : a form of 
action there is, the writ Per Quod Servitium 
Amisit, for loss of service, which the Court 
would have recognized ; if they allowed the 
means of suing a right, they allowed the right. 
The opinion cited, to prove the negroes free on 
coming hither, only declares them not sale- 
able ; does not take away their service. 1 would 
say, before I conclude, not for the sake of the 
court, of the audience ; the matter now ia 
question, interests the zeal for freedom of no 
person, if truly considered ; it being only, 
whether I must apply to a court of justice, no 
a case, where if the servant was an Englisli- 
man I might ose my private auUiority to en- 
force the performauce of the aervice, accdrd- 
ing to its nature,) or may, without force or out- 
rage, take mv servant myself, or by another. 
1 hope, therefore, I shall not suffer in the opi- 
nion of those whose honest passions are fired 
at the name of alavery. 1 hope I have not 
transgressed my duty to humanity ; nor doubt 
I your lordship's discharge of yours to justice. 

Davy, Serj. — My learned friend has thought 
proper to consider the question in the begin* 
aing of his speech, as of great importance : 
it is indeed so ; hot not for uose reasons prin- 
cipally assigned by him. 1 apprehend, my 
lonl, the honour of Sqglaiid, toe honoor of 



The Stgro Cote. 
4t li»» w90rm w <f Envlithniin, here or nbroail, 
itwn voBCVfnctl. He olwerreH. the nuuilier 
k 14,<W0 ur 15.0001 if sn, bi|;li lime lu |iut 
Msilta lite pftciice; m(irecii|>eci>Uj,iiiicc 
Ibn nnst be seal back »» slltrs, ihou^li ver- 
•■iiherF. Tbe ini-reusv ol' iucli inliabilanls, 
ml launvivii in llie prmpvriijr ol' ■ euuolry, 
Untj iiMnicious ; in au ibliui), nhkh cud, hi 
■A. uAt exlcnil its limib^ nor conse[|ueiilly 
■■•tuii uMve tbaa a ctrtHiD number ol' inbu' 
lAMi, ilaafterndB in excess. Moue^ from tii- 
n^ nde (or any ntlier nieaiit) is ont Ibe 
•allh af • Daliun ; nnt coailiices any thing to 
mfmm tt, >*y farther ihsu the )iruduc^ol the 
■nk will MHWCf the ilemanil of DcceEMrins. 
la that owe :nnney enriches the iuhabilanli, 
m kriag Uic coiuroon represenlalive of lliose 

^BipMry and mrUsB, If the encrease of ^a- 
)lt esc>«(blfae aunual alock of |>ruiiEitons rc' 
fibiw lor tikeif aubfelHlence. Tbus, foreig-n 
MtaiiMBiu inbabitanli aitfjmpntinit perpelii- 
mj, are ill lo be allowed ; a nation of enemies 
■ Um iMrt «r a slale. Mill uoree. Mr. Don- 
aN| Blailcil ItimMlf of a Hruug inlerpretalion 
rf ika «onl ■ Datural :' it n'M na uacil in the 
•«w IB «rki^ be tboutrht (it to understand 
bat cjipnrvatOD i it was useil oh moral, which 
*■ hm can supersede. All coniracis, I do 
mt nature la auen, are of a moral nature ; 
lu I know ool any law lo confirni an iminnrsi 
cattnei, and execute it. The conlracl of 
mntift l» a taaral contract, nlnliliahed lor 

cnnl poTpotea, eoforoint; moral uhligaliong ; 

■-■ ngh* nl lakin); property hj descent, the 
j'^ncy af children; (who in France are 

- -ima Ir^llimnle, though horn belbre the 
-•-ra^ in EDglanJ doI] : these, anil many 

iikw nose^uencM, How I'roni the fnirrlage 

"TiAfj •Awiiinixi'd ; are cnveroed by the >nu- 

- ol law* of thai partjcniiir sttle, under 

-•4a iaalilalioni tbe contra cling and ditposiQ){ 

^i^i^lcta aa aubjecla ; anil by whose csLa- 

tiiakad fama they Hibmil tbe relation In be re- 

fidMii, w Gu ai ilB couariiuenceE, not von- 

^ttmf the noml <ibli|>atioii, are iolereiled. 

li iL* cue of Thorn mid Wbikin*-, in wbleb 

I ;ii|> waa counsel, dctermlneil before 

■. „k.^A mm died in England, 

. iiiScMlanJ; ha*in|r a brother of 

i\i ■ filter of the half blood ; the 

" laws of Scntlanil, coutd not take. 

: .i|r)diea tor BdcniniBtralion to take 

. mie, real and peraonal, inlo hit 

, 1-r bii own me; the aiiter tiles a 

>, i-,.,t.«-ty. The tben'Mr. Attoniey-Ge- 

il ^u in auncr for the defendant ; and af- 

' -a, ibe ertair, as beina in tkutland, and de- 

> diMT fnati a liicolcniiian, ahoutd be go- 

■aad \j that law. Lord Hardwicke over- 

•J tha wl j eetiun a;r*<nil tlie siiler'a taking; 

' Ivari llarre was uu pretence for it ; and 

' ir t» iIms elfrct, land neatly in tbe fol- 

- at worrit—" Supptne ■ foreiffner has ef- 
■r atacki, auil diet abroad ; tbry mint 
Bled acxiordiriK lo the laws, not of 

lyltacwlwrabts affri:ti were, but ef that to 



A.D. 1771. 
which u a lubjeci he belongeil at Ihe lima 
of bia death." All relalionaKorrrned by mu- 
nicipal laws, must be so Uu dependant nil 
ihera, ilial if the parlies change iheir country 
Ihe municipal laws give way, if contradiclury 
lo the poiiilcal regulalionauf thai oiher country, 
rSeellie cases died in Fabrigaxn. Moslyn.io/] 
In the case of master and slare, beinif no 
moral obligation, but founded on principles, 
and aupporled by practice, ullerly l'oreii(n la 
the laws and ciislomii nf this country, the law 
cannot recog-nixe such relation. The urgii- 
menia founded on municipal regulations, con- 
sidered in their proper nature, haTebeen treated 
an fully, so learnedly, nod ably, as scarce lo 
leare any room for observalioun on that suh- 
jed: any thing I could offer to enforce, wotilj 
rather appear to weaken ibe Droposiiiup, com- 
pared wiib ihe strength and propriety with 
which that subject tias already beeu explained 
and urged. I am not concerned to dispute, 
Ihe negro may contract lo serve ; nor deny 
llie relation between ihem, while he continoea 
under bia original proprlelor's roof and pro. 
tectlon. It is remarkable, in all Dyer, (lur I 
have caused a search lu be made as far as ihe 
4lh of Henry the 8th,) there is not one instance 
uf a man's being held a villein who denied 
himaelf to be one ; nor can l]lind a cnnfesiion of 
rlllenage In those times. ^Lord Manifield ; — 
The last confession of rilleuage extant, is in the 
Idth of Henry ibe Gtb.] Iflbe Court would 
acknowledge the relalion nf master and aer- 
Tsnt, it ceriainly would not allow the most ex- 
ceplionable jiart of slavery ; that of being 
obliged lo remove, at ihe will of the master, 
from tbe protection of tliis land of llberly, lo a 
country where ihere are no laws; or hard laws 
lo insult bitD. It will not permit slavery sus- 
pended for a while, suspended during ihe p]ea< 
sure of ihe master. The instance of mnslei- 
andservanl commencing without contract ; and 
that of apprentices against the will of ibe par- 
ties, (ihe latter fouud In lis cnnaequvnces ex- 
ceedingly pernicious;) both these are prortded 
by special slaiulea of our own municipal law. 
If made in France, or any where but here, 
they would not have been binding here. To 
punish not even a criminal for offences aninat 
ibe lawa of another counlry ; lo set tree' a 
galley-slave, who is a slave by his crime; and 
make a slave of a n^ro, who is one, by hi* 
complexion ; is a cruelly and absurdlly thai I 
trust will never lake place here : sucn aa, if 
promulgrd, would make England a disgrace lo 
all the nations under heaven : for Ihe reducing 



most abject slate. M r. Dunning lias mentioned, 
what he is pleased to term philosophical and 
moral grounils, I think, or. something to that 
effect, nf slavery ; and would not by any ineana 
have ua ihiok irisrespeclfully of those nalions, 
whom we miatakrnly call oarbaiiins, merely 
Ibi' carrying on tlmi trade ; fur iny part, we 
may be warranied, 1 heheve, in affirming the 
iBoralily or propriety of the pracliee duel nvt 



79] 



IQ iSEOROE III. 



The Negro Case* 



[80 



enter their head*; they make slaTes of whom 
they think (It. For the air of Englaud ; I 
think, however, it has beeo gradually purifyinflf 
crer since the reif^n of Elisabeth. Mr. Dun- 
ninif seems to hate discovered so roach, as he 
finds it chancres a slave into a serrant ; though 
unhappily be does not think it of efficacy 
eiHiugh to prerent that pestilent disease re- 
Tivini;, the instant the poor man is obliged to 
quit (voluntarily quits, and legally it seems we 
ought to say,) this happy country. However, 
it has been asserted, and is now repeated by 
me, this air is too pure for a slave to breathe in : 
I trust, I shall not quit this court without cer- 
taiu confiction of the truth of that assertion. 

Lord Matufield, — The question is, if the 
owner had a right to detain the slave, for the 
tending of him over to lie sold in Jamaica. 
In fiveo'r six cases of this nature, 1 have known 
It to be accommodated by agreement between 
the parties : on its first coming before me, I 
■trongly recommended it here. But if the parties 
will hare it decided, we must give our opinion. 
Compassion will not, on the one hand, nor in- 
con? enience on the other, be to decide ; hut the 
law: in which the difficulty will be.nnncipally 
firom the inconvenience on both sides. Con- 
tract for sale of a slave is good here ; the sale 
is a matter to which the law properly and rea- 
dily attaches, and will maintain the price ac- 
cording to the agreement. But here the per- 
son of the slave himself is immediately the 
object of enquiry ; which makes a very ma- 
terial difierence. The now question is. Whe- 
ther any dominion, authority or coercion can 
be exercised in this country, on a slave accord- 
hig to the American laws ? The difficulty of 
adopting the relation, without adopting it iu 
all Its consequences, is indeed extreme; and 
yet, many of those consequences are absolutely 
contrary to the municipal law of England. 
We have no authority to regulate the condi- 
tions in which law shall operate. On the 
other hand, should we think the coercive power 
cannot be exercised : it is now about 50 years 
since the opinion given by two of the greatest 
men of their own or any times, (since which no 
contract has been brousrbt to trial, between the 
masters and slaves;) the service performed by 
the slaves without wages, b a clear indication 
they did not think themselves free by coming 
hither. The setting 14,000 or 15,000 men at 
once loose by a solemn opinion, is very dis- 
agreeable in the effects it threatens. There 
is a case in Hobart, (Coventry and Woodfall,) 
where a man had contracted to go as a ma- 
riner: but the now case will not come within 
that d^sion. Mr. Steuart advances no claims 
on contHibt ; he rests his whole demand on a 
light to the negro as slave, and mentions the 
purpose of dotainiire to be the sending of him 
over to be sold in Jamaica. If the parties will 
have judgment, * fiat justitia, ruatcoelnm ;* let 
justice be done whatever be the cooseqiieDce. 
SOi. a- bead may not be a hi^ price ; tbeo 
A low followi to the propfwUin of above 

1 



700,000/. sterling. How would the law stand 
with respect to their settlement ; their wages ? 
How many actions for any blight coercion by 
the master P We cannot in any of these points 
direct the law; the law must rule us. In 
these particulars, it may lie matter of weighty 
consideration, what prnvisiouM are made or set 
by law. Mr. Steuart may end the questioOp 
by discharging or giving freeduni to the negro. 
I did think at first to put the matter to a more 
solemn way of argument : but if my brothers 
agree, there seems no occasion. I do not ima- 
gine, after the point has been discusfted on both 
sides so extremely well, any new light could be 
thrown on the subject. If the parties chuse to 
refer it to the Common Pleas, they can give 
themselves that satisfaction whenever they 
think fit. An application to pnriiament, if the 
merchants think the question of great com- 
mercial concern, is the best, and perhaps the 
only inethofl of settling the point for the future. 
The Court is greatly obliged to the gentlemen 
of the bar who have spoke on the subject ; and 
by whose care and abilities so much has been 
effected, that the rule of decision will be re- 
duced to a very easy compass. I cannot 
omit to express particular happiness in seeing 
young men, just called to the bar, have been 
able so ninch to profit by their reading. I 
think it right the matter should stand over ; 
and if we are called on for a decision, proper 
notice shall be given. 

Trinity Term, June SS, 177S. 

Lord Mansfield, — On the part of Sommersett, 
the case which we gave notice should be de- 
cided this day, the Court now proceeds to give 
its opiniou. 1 shall recite the return to the 
writ of Habeas Corpus, as the ground of our 
determination ; omitting only wonis of form. 
The captain of the ship on board of which the 
negro was taken, makes his return to the writ 
in terms signifying that there have been, and 
still are, slaves to a great number in Africa ; 
and that the trade in them is authorized by the 
laws and opinions of Virginia and Jamaica ; 
that they are goods and chattels ; and, as such, 
saleable and sold. That James Sommersett is 
a negro of Africa, and long before the return of 
the king's writ was brought to be sold, and was 
sold to Charies Steuart, esq. then in Jamaica, 
and has not been manumitted since ; that Mr. 
Steuart, having occasion to transact businesty 
came over hither, with an intention to return ; 
and brought Sommersett to attend and abide with 
him, and to carry him hack as soon as the bust* 
ness should be transacted. That such inten* 
tion has been, and still continues ; and that the 
negro did remain till the time of his departure 
in the service of his master Mr. Steuart, and 
quitted it without his consent ; and thereuiion, 
before the return of the king's writ, the said 
Charies Steuart did commit the slave on board 
the Anne and Mary, to safe custody, to be kept 
till he should set sail, and then to be taken 
with him to Jamaica, and there solil as m shive. 
And this is the caose why be, captain &iw«ic^ , 



'. Mosli/n. 

Mtfwatlhra ud nnw is. commuider of llie 
rivte inarl, ilien Bod now l^lni; ia the rirer 
rfTVanio, rfnl ilietaiil iirgru, cDmmiltcd lo 
Ui ohKhI;, dtrlaJD ; »nii on whicb lie now 
Hjfcj i him tu Ibe orden uf ibe Coaii. We 

Rtlldnv atlrnlion lo llienpinion nf lir Philip 
to, had lord chsDcellnr Talbot, whereliy 
tn piK-liTMllbEiDirWcs lo llH^ Brilisli planlers, 
fit «9 tlw legal CDDuqUf nct» of bIdtcs coming 
M«Tl« thi« fitiap-lnm or htiag bajilized, reeog- 
Mtcdh/ Wd Hardtficke, lining ni cbincellor 
w ibc 19(b atOtiohrr. 1749. ibat tMTer would 
liti iImI ■ niii'OD liuil |ire*ni1e<l. if ■ negro 
^canie a Chnsliin, be wa* 
, hul no grnund in law : Ibat he 
Ml laril Talbot, wtipn ailoinpy ftii'l snlitllor. 
Mnml, wnr nf iipinion, iliii iin such claim for 
liwiiwif a^^alid; ihal though the tlitule uf le- 
■MwakadabotnlicdfillvintregirddnltiamaDor, 
irtfcediJ»niciMiceiTebulthata roan miufhtBlill 
Weamea ntttin it) ^rou, by conlvssinv bim»cir 
Meh ia opm court. We are so welT agreed, 
Mw tm ihiak there If no (>ccn>:ion nf bating it 
aipwd (a« I iuliroaied an intention at ftnl,) | discharged. 



A. D. 1775. 



[82 



before all the judge*, as ii umal. for obiioiis 
tenaons, on a return lo a Habeas Corpus. Tbn 
only question before ua is, whelbei- the cause 
on the return h sufficient ? If it ii, the negro 
iDUsI be remanded ; if it is not, he must be 
ditcliarged. Accordingly, the return atatef, 
lliat the slave departed and refused lo serve ; 
whereupon he vrai kept, lo be wld abroad. So 
high an act of dominion must be recogniied bv 
the law of ihe country where it is used. The 
power of a master o»er bis slave has been ex- 
Iremety different, in differeot countries. The 
state of slavery ia of lucb a nature, that it is 
iucapable of being introduced on aoy reasons, 
moral or political, but only by posilire law, wbick 
preserves its force long afkr the reasons, occa- 
sion, and time itself from whenceit wascrealed, 
ia erased from meranrv. Ills so odious, thai 
nutbingcan be suffered lo support rl, hut posi- 
li»e law. Whatever inconTeniences, tberelttre, 
may follow from tbe decision, I cannot say this 



549. Proceedings in an Action by Mr. Anthony Fabbigas, 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 Georoe III. a. d 
1773— 1774.* 



tAifallAving Case i* taken from the Trial, 
«W was printed from the Notes in sbort- 
iMd of Mr. Gumey, soon aner (he hearing. 
)'n« lite AddrvM to tbe Bookseller, which 
ffBwd«il Ihe Tfial, il is plain, that Mr. Gur- 
mj waa employed lo lake notes for Ibe 
pbiMilf. ami Ibal the Tiial was published by 
IW idaiMir sr bis friends ^t former £^i- 

t» the CoDunOD Pleta, Guildhall. 



■iRRT Fjibkiuu, gent. Plaintiff. 
MosTTN. eeq. I>efendant 






- -' 'rr the Defttdaut.—'Hr. Serjeant 
•^rjeanl Burland, Mr. Seijewit 
KoUer. 

Illicksluntf, 939. Cowp. IQI. 

1 lie iitle nl'ibe proceedinK* first published, 

-« asly llie txial nf the eaunc U Nini I'riRs 

-r Mr. JiM. G<iuM, wbo nut for tbe chief 

IS «f the Common Pleas, was tbua ex- 

Tke ProMadiags at larre, in a Cnuse on 
^ttsMi Wougbl bj AntliODj Fabrigii, g<aL 



1 fIB Court being sal, tbe jury were called 
over, and the following were sworn la try Ihe 
issue Joined between tbe parties. 

Jury. 
Thomas Zachary, esq. Mr. Thomss Bowlly, 
Thomas Asbley, esq. Mr, John Newball, 
David Pow<l, esq. Mr. John King, > 

Waller Enver.esq. Mr. James ISraiLb, 

Mr. William Tomkyo, William Burley, esq. 
Mr. Glll>erl Howard, Mr. James Selby. 

Mr. Pcckham. May it please your lord- 
shiji, and you gentlemen of the jury, this ia aa 
action for an BBsautt and false iroprisoament, 
brought by Anthony Fabrigas against John 
Mostyn, esq. The plaintiff states in his ilecla- 
ration, that the defenilant, on tlie 1st of Sep- 
tembor, 1771, with force and arms, made an 
assault upon him at Minorca ami Ibeo and 
there imprisoued biro, and caused bim to lia 



against lieutenant-general John Moslyn,' go- 
vernor (if tbe island of Minorca, colonel of the 
first regiment of drtf(oon guards, and one of IbB 
gruoniB of his majesty's bed-cbamber; lor 
raise Imprisonment and Punishment frmo Mi- 
norca to Cacthagena in Sjmin. TrirJ befnra 
Mr. Juit. Gould, in the Courl of Common- 
Pleu, in Guildball, Loodoa, on the l)lh of 



SSj 



U G£OEG£ III. 



Action for FaUe Imprisonment^^ 



[8i 



carrietl from Minorca to Ctnhtg^na in 8|Mun. 
There is a secviid oouat in the declaration, for 
an assault and false iinpriitnDiii^nt, in which the 
banishment is omilted. These injuries he lays 

July, 1773. Coutaininijr the evidence vfrAa/im 
a« delirered by the witnesses; with aJI the 
speeches and arguments of the counsel and of 
the court." 

Before the Trial there was the following Ad- 
dress toibe Bookseller. 

** I am Tery glad to find yon are going to 
publish the trial Mtween Fahrigas and Blostyn, 
as the kuowleilge of the particulars of this in- 
teresting cause must be worthy the attention 
of the public. 

'^ A« 1 have passed a great part of my life 
in Minorca, and have some knowiedge of the 
parties, I was induced from cariosity with many 
others to attend this trial at Guildhall, uhere I 
was greatly surprised to hear the account given 
by governor Moshrn's witneKses, Mess. Wright 
and Mackellar, of the constitaiioo and furm of 
gu vernment of that island. 

" 1 did indeed expect that Mr. Fabrigas's 
counsel would have called witnesses to coatra- 
dict the very extraordinary account 4bose gen- 
tlemen bad given, which they might easily 
have done by any persf>n who had the least 
knowledge - oif thie matter. I su]>pose they 
did not, either from thinking the subject im- 
material to their case, or iicrliaps to preserve 
to Mr. Serj. Glynn the closure of the trial by 
that most eloquent and masterly reply with 
which it was concluded. 

«* Whatever the motives of Mr. Fabrigas*s 
counsel might be for leaving this account un- 
contradicted, I think it very material that the 
world should not now be misled, as tbey would 
be, should they read the evidence of these ^ea* 
tlemen, and not he informed of their mistakes ; 
I call them mistakes, for however extraonlinary 
some parts of their depositions nuiy appear to 
an obMrvant reader, I am unwilling to charge 
them with any other crime than ignorance. 

** I am therefore induced to trouble you with 
this letter, that ^if not too late) yon may pub- 
lish it with the tnal ; my sola object is, that the 
public may be apprized of the misinformation 
given by these geotlemm. I do not expect 
that the bare oontnulkstioD of an anonymous 
person shonld o? ensi the declarations upon oath 
of two gentlemen s^veo in open court. All I 
mean is, to apprise the public of the tnitb, and 
to leare them to make such larUier inqniry as 
tbey shall think fit. ^ ^ 

*' The purport of that part of the evidence 

given by thosn gentlemen, wbioh I nwan to 

dispnte, was, that a part of the island called 

the arraval of St. PhiiVs is not under the juris- 

didaon of the msgistrates, nor governed by the 

nm lavs which prevail in the rest of the 

****"» ^ is ooder ibe sole autkority of the 

V^^in^^ and has no lav but his will and 
p lea so re, 

M -!liiS^'^ *«■ ^^ ^ ^^ wrtraordiimry 
•cPMiiiiilai as nhisiflli iMpouMB fi>r a oon- 



to bis damage at 10,000/. To this declaration 
the defendant has pleaded. Not Guilty; and 
for further plea, has admitted the charges in 
the declaration mentioned, but justifies what he 

sideraUe number of inhabitants, in a country 
governed by law, and which is part of the do- 
minions of the crown of Great Britain, shonld 
have had some jery urgent and apparent cause 
to make necessary that slavery which English- 
men abhor, and it it exists, must have been es« 
tabUshed by some particular provision. If it 
had been said, that in the fort of St. Phillip's, 
in time of actual siege, an absolute military go- 
vernment mnst prevail, the objects and the rea- 
sons could easily be understood. But to say 
that in time of profound peace not only the in* 
habitanU of fort Sl Phillip's, but all those of 
the arraval, which contains a large tlistrict of 
country, with many hundred inhabitants, living 
out of all reach of the garrison, should be sub- 
ject not to military government, for that has its 
written laws and forms of trial, but to the ab- 
solute will of the governor, without any law or 
trial, is in itselfso absurd, and so contradictory 
to every idea of reason, justice, and the spint 
with which this country governs its foreign do- 
minions, that, I trust, my countrymen will not 
believe such a monster exists in any part of 
this empire, without better proof than the in- 
formation of these gentlemen. 

** I would not have the reader think that this 
strange idea originated in the brain of Mess. 
Wright and Mackellar, for I know it is a fa- 
vounte point, which the governor of Minorca 
has endeavoured to establish ; not so much, I 
believe, for the pleasure of exercising absolute 
authority, as on account of some good pen|ni- 
sites, which he enjoys, and which can be de- 

I fended on no other ground. 

' «■ To establish this, it has been endeavoured 
to alter the ancient dislributioo of tbe districts 
or termioos of the island from tbor to five. 

** The four terminos Cieutadella, Alayor, 
Marcadal, and Mahon, have their separate 
magistrates and jurisdictions, and comprehend 

{ the whole isUnd. The arraval of St. PhilUp*o 



! was always a part of the termino of Mahim ; 
! in order therefore to establish the governor's 
' claim, it became necessary to set up the arra- 
val of St. Phillip's as a separate and distinct- 
termino. If this could he done, it ceased to be 
within the jurisdiction of the magistrates of the 
island, who have power only in (heir fonr ter- 
minos, and accordingly Mess. Wright ani 
Mackellar advance, that there are five terminos 
instead of four ; but those who are acquainted 
with the island will know, that this is a modem 
inventiott ; that in the records of the country, 
there is not the least fouiHlation for such an 
idea ; on the contrary, that every proof of the 
reverse exists. The inbabitanti of the arraTnl 
are sobject to the particular jurats af Mahon, 
tliey diffvr in no respect fiiNn the other mhehi- 
tanis of that termino, and the judges p osseei 
and exercise the same j wi sda e t i on and autho- 
rity ift the amral, M Iksj 4P ia the elhsr pacta 



t'ahrigat e. Moiign- 

Iv ilmw ^J •II'^'OS U'Bl ibe plaintiff endea- 
— »■* (■> crcBW k iDuday among the inhabi- 
\M ot MiiMrea, whereupoii ilie Uerenilanl, w 
r, WM obliged to leizs tbe phiiitifT, In 
o^^ Mn til <]nji in prison, and ihen to Im- 
MfckiM to C*ntM)[ena, ai it was lawful for 
i» IS do. To thii plea iLe plaintiff replies, 
■l»ja,UwltlMderenilaD(did asMolt, impri< 
■■jHd iMilab him of his own \rnmg, and 
•JMBl mn fueli cause as lie has aboTC al- 
M|» <. Mi4 tlincapon imiui is Joined. Thi«, 
Miaiauu, h the nature of the pleailincrs. Mr. 
* JM t Of UD will open to you the hers on 
"h"* oar 4«i-larat>iiii ia fonnded, and if we 
•opTwt h by evidence, we shall be entitled lo 
' t, with aucli ilaiuages sa tbe injurj 



■ml HI 



MiMyd 



i^Dilvnm of the Jury, 
bi* eauie fur the nlaintilF. Gentlcoien, 
t BCtton thnt Mr. ralirrgas, ■ natice and 
»f the iiland of Minorca, has brought 
tbe defendant, Mr. MiMtyn, his majesly 'a 
~ la Ihal islantl, tor nssauUing, false im- 
_, Dad baoishin^ liim to a foreign coiin- 
^mininoi of the king of Spain. Mr. 
bu, in (he fini place, pl«aife<l that he is 



■f the idand. which could not be the cute, if 
tte daia Ml up bj' (he goternar really existed. 
" Ma nranf wliateTer hM been ui can he 
piJ uu iidwtthis ctaini has any fnuo'iation; 
wmimi n HU Hen. Wright auil MackeJIar at- 
*Mf( la (rire any hot tlieir ovrn assertions. 
7W aal; tltrng thai had the least similitude lo 
pw; wma Ibeir uyiog, that in one instance 
te dBeer acting as coiouer to examine a 
■tfBlhal had met with a riolml death in the 
tBuii, aaked the guttrnor'a ItaTe before he 



'TbMfBCl I do not pretend to dispute; il 
[■a f wadiing ; and waseridentlyonly a mark 
«f iii|i t* l. which It is no wonder n>agisirste« 
ii Am Maad pay l« a iforeroor who realty hai 
•i«Mh power. Dm to have made lht« amount 
•« Mjt (hinf; like proof, it should hare been 
*W««, thai tbe like aiiention was not paid to 
Ibt fvrtTaor at Hahon, and io other part* of 
ik( MbiML Tbe imtb is, that the inhabitants 
an •• JepomlaDl an tbe raililar^, that 1 ba*e 
Imwm tbe tame civility shewn m another part 
«f A« JelenJ t« the oflii-er who happened to 
eMMMiard titcre, but certainly without any in- 
-^— ''■'-- — ttt him their authority 



■«:"; 



as. Wriglil ami Mackellar also said, 
1 tba Mianrqniua claimed lu be ifoterned 

K* tfpSMiah laws, as auiicd beat for the mo- 
«m ; but ■nunualed that the Spanish laws 
frsia4wl, anil that by them the governor had 
a 1^1 ky hta aolp auiboriiy to baniih. 

" Tb« fact moit undoubtedly is, thai Mi- 
•■a, a CDmiurrrd country, preserves its an- 
IBBI ftbe ^fpMiiib) laws, mi the cuiiquemr 
'•■MMpT* tbrm uttisn; and iherefare as 



A. D. 1779. [80 

not guilty of those injuries ; in the next, he ha* 
offered this justification for himsi-lf*, that tiie 
plaintiff, Mr, Fabrigas, was guilty of practices 
tending to sedition, anil that Mr. MiKtyn, liir 
iich miahehavjonr, by bis sole aulborily i 



cIvBiion, complains of as a grievniire. This 
Mr. Mostyn takes npon him to insist, in an 
Gaijlish court of jusiine, is the Jasllliable ex- 
ercise of an authority derived from the crown 
of Eaffland. And Ibe facia which he under- 
lakes llius 10 Justify, are, in the first place, a 
length of severe imprisooroent npon a nativeaf 
the island of Minorca, a Euhje[:t of Great Bri- 
tain, liiing under the protectinn i>f the BngUsh 



id, secondly, by las sole authority, 
vriiiioin ine Interteniion of any Judicature, the 
■ending him into e>:ile inip the dominions of a 
foreigD prince. Gentlemen, some observations 
must strike you upon the very slate nf ihis 
plea ; they muil alarm yon, and you must be 
anxious to kuotv the particulars of'^tliat cise, li> 
irhich, in Ihe sense of any man who has re- 
ceived faia edncalioti in this cuunlry, or ever 
cotiveraed with £uo^lisbmen, il can be applied 
BS jiistificaiioQ ; Iiiat t»se, Iherelbre, I will 
ahoi'llj state tn yon : — Mr. Pabrigaa is a gen- 
tleman of the island of Minorca, of as ^ood a 
noDiIiiioD as any inhabitant of Ihal islaan, of as 
fair and unblemished a character too as that 
island produces. It la however enough, for . 



England has not given Ihem others, it ia true 
the Spaniub law.t do prevail in Minorca, both in 
civil and criminal mailers, among ihemietves : 
but it is eqaallr trne thai Ihey have the pro- 
tection of llie English laws agaioit ihcir go- 
vernor, who cannot be amenable to Iheir local 
lawn, and llial however despoiicully a Spanmh 
governor may formerly haveacti'd, it can not 
be Ihe law of Spain, or of any couiiiry (lietanse 
t is contrary to natural juotii-c) thai a inaa 
iIkiuIiI he coiiilemneil and punished without 
:lther trial or hearing, 

■' It would have been easy for governor 
Mnstyn, if Mr. Fabrigas bail commitieil » 
crime, to have Inltoweolhe mode of proceed- 
ing eslabtiahe'l there in criminal cases, which 
is for llie advocate fiscal to prosecuie in the 
I of royal gnternmenl, where ihe chief 
Jurtice criminal ii the judge. 

•' If I was nut nfroid of swelling this letter 
loo great a length, 1 should make more re- 
irksouwhat passed at this triiil, and point 
I many more iustances of power niijnaunolily 
luineil by Ihe governun. But I iuipe llinl 
what appears from this publication wdl be suf- 
Acienl to imlucc administratioa lo consider the 
sUte itt this i-land, and give the mhtUntauls 
wime better security for the stfeljy of their per- 
sons, and eiyoymenl of their property j lor. 
rxclusiie of Ihe meanness ibere is in ill using 
Ihose who cannol t«oiitt. it is umloubiedty Ihe 
best piilicy, for Ihe honour aud siiibihly of our 
empire, I'u tiinke all it) depeniJeociea bajipt ." 
ftrmrr JErfilwn. 



87] 



U GEORGE III. 



Aatumjir Fake Imprisonment--' 



[88 



this present purpose, to say that Mr. Fabrigas 
18 a descendant of the anlient inhabitants of 
Minorca : that he li?ed there under the capitu- 
lated rights : that, as such, the national faith was 
pledged for his enjoyment of those rights that his 
ancestors capitulated for; but what is of niore 
consideration, being born in Minorca since its 
•ttbjection to the crown of England, he was a 
free-born subject of Enp^land, and claimed, as 
his birth -right, the privileges due to that cha* 
racter, and the protection of the English laws. 
There was a particular stipulation upon the 
surrender of the island, that every occupier or 
possessor of land should be intitled, under cer- 
tain regulations and restrictions, to the produce 
of his lands, and to such profit as by his in- 
dustry he could make of them. Upon that 
p;round a dispute arose, to which alone can be 
imputed the displeasure of Mr. Mostyn to- 
wards the plaintiff, and the treatment ne re- 
ceived from him, in the progress of it. Mr. 
Mostyn, as governor, was appealed to, and bis 
good-nature appeared to be so serviceable to 
the adversary of Mr. Fabrigas, that early in 
the morning Mr. Fabrigas was suddenly taken 
from his house by a file of soldiers, and by 
them conducted to a dungeon, unaccused, un- 
tried, unconvicted. Thus, without any form 
of judicial proceedings, this gentleman, who 
then lived in esteem in the island, finds him- 
self all of a sudden committed to a dungeon, a 
dungeon that was made use of only for the 
roost dangerous malefactors, and that only 
when they were ready to receive the last of 
punishments. In this gloomy, damp, dismal, 
and horrid dungeon, was this man detained 
without anj^ previous accusation, without any 
call upon him to make his defence, or being 
informed there was any crime or offence that 
was alledged against nim, and without any 
notice either to him or his family. When he 
found himself in prison, there was humanity 
enough in the breast of the keeper of that pri- 
son to accommodate him with a bed ; but it 
seems that accommodation was bv the power 
of that island thought too much for him, and 
the bed was taken from bim ; a check was 
given to the lenity of the keeper. No notice 
having been given to his family that they 
might visit or administer comfort to him ; he 
did, by humble request, desire that his wife 
might be permitted to visit bim : that consola- 
tion too Has denied him. In this manner was 
Mr. Fabrigas deprived of bis liberty for a con- 
•iderable time. It is unnecessary for me to 
state particularly the precise time that this 
imprisonment continued ; that you will hear 
from the witnesses. Nor does a case like this 
depend upon minutes, hours, or days, but this 
is the nature and kind of imprisonment that 
Mr. Fabrigas endured : so closely watched 
that no man could have access to him, deprived 
of the consolation of his family, severed from 
all communication with his friends, relations, or 
acquaintance, that could administer the least 
comfort to him. For several days did this man 
Aontinue under thii impiiaoDiiiciity oor did hit 



iufierings determine with it ; his removal from 
the dungeon was only a substitute of one spe- 
cies of cruelty in the place off another : for the 
instant he was taken from prison, he was car- 
ried by the same arbitrary and despotic power 
on board a ship, without any previous notice, 
without any time allowed him to prepare for 
his departure, without the ordinary visit or 
comfort of friends and acquaintance, from 
whom he was probabl v to lie se|>arated for ever. 
Thus was this man taken from his native coun- 
try, and the insupportalde hardships of a dun- 
geon were followed by an entire expulsion from 
his country, and every thing that was dear to 
him : he was sent instantly on board a ship by 
force, and carried to Carthagena, a foreign 
country, under the dominion of the crown of 
Spain. This is the nature of Mr. Fabrigas't 
case. Now, gentlemen, for a moment, let me 
remind you of the pretence under which this 
imprisonment is inflicted. It is said Mr. Fa- 
brigas excited sedition, or attempted to excite 
sedition ; that he acted or spoke in a turbulenc 
and mutinous manner ; and therefore that the 
governor, as his plea states he was well autho- 
rized to do, committed him to prison, and 
banished him out of the island ; or rather com- 
mitted him to prison for the purpose of baniah- 
ing him out of the island, for I believe that is 
the true state of his plea. Gentlemen, you 
would justly accuse me of a great and wanton 
waste of your time, if I should say a great deal 
for the purpose of exculpating Air. Fabrigas 
from the charge and imputation that is thrown 
upon him in this place, because I am persuaded 
that you, an English jury, if you were silting 
in judicature upon the case of^ confessedly the 
vilest of offenders, you would not suffer the 
atrocity of the offence to mitigate that censure 
and animadversion which is due to a behaviour 
like this of the governor's. In private justice 
to the character of Mr. Fabrigas, and not as the 
least relating to any question here to be tried, 
gentlemen, I will sUte to you upon what 
grounds and pretence this mutiny is alleged 
against Mr. Fabrigas. Mr. Fabrigas, as I have 
told you, claimed, among all the other inhabi- 
tants and possessors of lands in the island, a 
right of seUiog the produce of his lands, under 
certain restrictions. The proiluce of the lands 
is chiefly wine : Mr. Fabngas had a consider- 
able quantity. His msjesty, by his proclama* 
tion, bad given free liberty to the inhabitants 
of that part of the island where Mr. Fabrigas 
lived, to sell their wines, the price being first 
settled by the authority of the governor : — that 
price is called the aflloration price. Notwith- 
standing bis majesty's proclamation, by an act 
and order, not of governor Mostyn, but of hit 
lieutenant-governor, there was a pruliibition 
that no wine should be sold without the imme- 
diate authority of the mustastaph. An appli- 
cation therefore, by Mr. Fabrigas, was made 
to this officer, either to permit him to sell his 
wines under the afforation price, which would 
be for the general reUef and benefit of the 
islandeny um of the giniaoDy or that he him* 




Fabrigoi v. Mosli/n. 

)rlt«l a fixed price. Tliit nfficer 
■^ly with eiiber: Mr. Fobri^B 
o Ihe necessity iil" inak- 
k^pplicAliun lo gureroor Slostyn, 
u llii* tllernittiTe, either to sell Ills 
vjiimitrr ■ oerUio atlurxioD and ngulalfd 
pr-, or tiial Ihe KuteiiimeaL Would buy his 
■«( of him for llieir use, or the ube of Ihe car- 
i.nu Ttiis (>etilion hds thought reasonable al 
tit, and had a kind ansttfr; it was received, 
aM 4 a|i|ivir* Id hate been takeo JDlo ciinsi- 
Antnp, but Duibing- vts doae in canwqiience 
•fn. JUr. Fahngas iherefore repeals his a[i- 
^icaliua. and he irceivei kdcou rare men t lu 
iifvcltbal tlie reason able nesa oi' hia petilion 
■voU be taken inlo consideralian, aod ibal he 
■kaahl be at hbvrlj to aell Ibe utoduce of his 
imA But, iftnliemeo, at last LbU auRner was 
Ciien lo tit. Fabrics: ibat il' it ajiiieartil to 
k lb* Mine of a ciinsideruble nuDiber of ibe 
lababiUnla ikf itie jjlaiid, ibalil was fur ihtHr 
kinffti ihal aiich |iei roinkioii should be gitrn, 
hn apfilMVUioo iboiild be tumplied wiih. Mr. 
i-~iAn|ia< Ibea prepares BOcli a (letilioa; be kfels 
il«i;*nl, and he prt«eots il in ^Ternor Moiiyn. 
Naw, gaDtlamen, berc it is impassible lo stale 
«tal |uaac4 between llie parties. It' it can be 
|WHn4Bd Uial tlierewaa any Ibing mutinous, 

|«M«eibat petnion will be proiluced to you, 
aad il ■ill ajwak Inr ilaell'; but some iadigns- 
Ma iraa cniK«i'ed liy soternor Moalyn against 
tic idainliir, Mr. rabrii;aa, which protluced 
llM abMige, unaccouDtable, unwarrantable, 
•■lalamia^ euuduci, which we now, by evi- 
Wcr, impuie lo Mr, Hnstyn. For );entle- 
■a, iMtaatly npoo ibii, Itlr. Fabriifai is cun- 
'■oelia iha oianner Iwlure-meuli'ined lo thai 



MWri ta 5*1), till he was hurried ou board « 

rtif, svl •>•■ conveyed lo Cartlia^^cnn in ^(jaiu. 

Bna^ hr lb« flrn time, he rvcrirea iuielli- 

fOM iif what was the proiocaiion that he 

pta, wbat waa the ([round ul' auth Ireatmeal 

■< hi*a, wbil cliari;* waa imputed in bim, by 

■hai aallfotity be was so ilfiaiued and so 

Inxtrf: tut here a|i[iean ■ Itlier under the 

iaai «r (vtenwt Bloslyn, sviwing Ibis acl, 

aa4 Mtiaff bim ihil be tlionttbt ii neces«8rv 

ui mif^taA, fur the (lunishmeol of his ut- 

' -jrx, b> aend bim into exile, and lo direct bim 

1* oua*r_«ed tu Cnrtliatjeaa in Spain, Here 

'■jiott find lliegiTeruoraToiriu^; Ihe whole; 

. 1 jT be did nni alow ilic H hole, you muld 

11 c OB ilouU ander what antburity these tlilnits 

-e 4tMi*i liMaiiae you will hear from all, 

•I tb«y caiuiot W douc but under thenulho- 

I of ifac iforcrnor. Then, (•enilenien, Ihe 

V'uMnmox, and ihe aeoding Ibis man inlo 

. i^. arc lh« act* ot i;overoiir Hostyn. The 

i-DMHiinrwl tinilrr such attanee sg^iravaling 

•i-umtUtitvt of hurror aiid ignomiuy, and the 

■-•^■■•c b«ia witliuul nnliee, without tliue for 

p^nswan, wiihii"! K>*ii>K 1>'»> )be opporlu- 

h; af payiof (lie 'eul alleiiiion to the oaii- 

' ' ieuiiraiiiily,ioioezile; Ibete, 



A. D. 1775. 



[00 



gentlemeD. we now presume lo treat a« the 
aeis uf Koiernnr Hosiyn ; and llie KOTernor 
sa^s, he is justified in >u doinjf, as ^nterupT of 
Minorca. I should be glad lo know upua »hal 
idea of justice llie ^of emur i{rniiti(ls thai pre- 
Irnce. 1 conceive, ihsl in this ease, there cao- 
uol he the least colour or pretence of aay judi- 
cial examinalion, or the least liirm ot judicial 
prDceeiling:s. GoTeruor Moslyn, alter liBTinff 
iieen guilty of ibis ouirnse ID Ibe plaintiff, 
would bare acted luuoh belter, if be had not 
added this insult to the laws ot his couoiry, by 
asaumiog an autbnrily iuciinipatibli: with the 
least possible idea of justice that can bevnler- 
tained in tliis or in any couDlry wliauoeter. 
Genilemeo, if goveruiir iVloslyii complsini that 
Justice is not done lu bis defence by his |4ea. 
ibat he is fettered and eniharrosaed by it, and 
cnuld now justily his conduct upon belter 
grounda, we will freely giie him the oppertu- 
iiity of doing it ; he cball rio il m h bat clia- 
racler be ihiiiks proper. If he has acted uuder 
ibe ci •lour of any judicial proceeilings in civil 
Judicslure, Ut those proceediii|fs be pruducrd. 
let liim desert and abBDdonlheslisinelulpleailiBl 
he has presented ; he has even our tibrrly lo do 
it. If the goveruor means lo be ju»tilied in his 
inililarv character, I need not itll you. genlle- 
iiien, that it is necessary in that cboracler, that 
there shonld be judicial proceedings bkewiie 
of a military court of justice. I will be bold 
to aay, that the idea govenior Moslyn haa 
adopted, that the liies, fortunes, and being of 
Ibe iuhaliiiants of the island of Minorca are at 
Ills mercy, and that by bis sole autliotily be 
CDD inflict bonds and imprisonment on any 
inhabilRDt nf that island, is the single idea of 
governor Moslyn; and I say the Kovernor 
dues nut, in this case, latk like a miliinry man, 
fur his ideas are as foreign to ihe uotioi>i uf a 
snldier, as of a lawyer. Gi'ntlemen. this is 
the nature of the case that we shall oiTiv to 
ynu, and which we sliall pruiluce in proof lo 
you against gucerour Moslyn; an imprison- 
ment, if il bad been attended with all Ihe cir- 
cumstances of cumlort lliut cnatd have been 



idmin 



1 that si 




pretence of 
legal authority, sufScieut to entitle this gentle* 
man lo call lor considerable damages from a 
verdict of a jury : a baiiishnieni inlo a fureiga 
(Muntry of a suuject of England, inlllled lolte 
protected, to whom the laws caniiol lie denied 
without breach of public faith, and a dan- 
gerous wound to the general system of our 
I'uoslitulinoal lilierlies. Thus, by Ibe sole au- 
lliority of governor Moslyu, williout pretence 
of judicial Fxaininalinn, was Mr. Fahrigas sent 
inlo bsaisboiKDi. If all other circumiiancei 
were away, llie being sent out uf his native 
coimtry by an arbitiary act of ihe gnvenior of 
that island, is surely grouud enough to call fur 
the rooHi considerable daiiisges. Hut, gentle- 
men, you are lo add to il every circuinstancfl 
of discoiiiforl. He wai, during the whole 
lime of his imiirisomneni, kept in a gloomj 
dungvoo i uo circumitaucB of ignoraipy ibat 



14 GEORGE III. 



91] 

cavAi iffiedt the mind of m ntfii of ftelin|f was 
omitted : be wtm put into a place set apart and 
deaif^ned only for the reception of tbo wont of 
maieiactora, secluded from any conversation or 
oomannnication with his frienda or acquaiDt- 
•nce, his neareat relations, his wife or bis fa- 
mily, deprived of the comfort of a bed, and 
oblif(ed, for a conaiderable number of days, to 
•uhsist upon bread and water. This is a caae 
of the must unparalleled cruelty ; the moat in* 
geniona circumstances of torture beioff added 
to the moat unjustifiable and the most lawless 
eiertion of authority, that I am persuaded has 
ever appeared before any court. If i^rernor 
• Mofttyu can support the |>oweni of this claim, 
•od vindicate himself, aa governor, by the 

Slenitude of his powers, and that the sole ju- 
icaiure of the inland residea in his person ; 
if it was lor a moment possible for you to en- 
tertain the idea of the lejilfality of such a power 
beinif placed in anv man, in consequence of an 
authority derived from the crown of Eoii^and : 
1 aay, it it was possifaje for you to conceive that 
Buch a power could exist ; try him even by that 
rule, try him by that rule, and he ia without 
ezcuric ; for the most des|iotic, the most arbi- 
trary and uncontroutabte power thai is ever ex- 
ercised, profesaeth at least to act by caliin^if 
opoa the party accused to make his defence, 
«nd I Mieve in no part of the globe is it 
looked upon as just to condemn a man un- 
heard. Let general Most3'n travel into Asia, or 
visit his neighbours on the continent of Bar- 
bery, he will not And examples there to justify 
his conduct, in any of the powers assumed, or 
in the use be has made of them : for if their 
powers are not circumscribed or restrained by 
any lawH; if they act, as the general professes 
he has a right to, by their aote will and plea- 
sure ; if that ia the rule of their government, 
yet atill there is an idea of a principle of na- 
tural justice that should govern their proceed- 
ings there ; at least an appearance of it tliey 
•re anxious to produce. 1 never lieard in my 
life that it waa the avowed privilege of any 
country, that a man should be charged with 
mn offence, that he received the punishment 
for that offence, without tbe offence being ex- 
plained and stated to him, and an opportimity 
5iven him of hearing the charge and the evi- 
ence by which it was produced ; but this is 
the case of a transaction in the dark, a secret 
indignation conceived, that indignation imme- 
diately folknved by the most horrid exertiona of 
power upon the person of Mr. Fabrigas— com- 
mitted to a dungeon, and unapprised of the 
charge against him till sent onl of his native 
country, and upon the voyage to the destined 
place of his banishment. The offer made to 
general Nostvn not to tie him down merely to 
the justification specified in his plea, but to give 
him leave to offer any justifi<»tiou that may 
be consistent with the idea of civil or military 
justice, may be called iosidioiUf because I 
must disbelieve every thing suggested on aiiy 
trust, if I think the offer can be of no beseflt 
to him if wanted i but it naj he added to il| 



Aeiknjbr False Imprisonment'^ ^ |]99 

*« Governor, take yonr ideas of law frem B«r- 
bary or Torkey, prsduoe yomr precedent, India 
or negro law, yen are still mable to justify 
yiiur conduct.*' Gentlemen, these are the 
circunastaocea we are to lay before you in evi- 
dence. The governor may, if he pleaaes, eo* 
deavour to chaige tbia gentleman with motinj. 
If be does, 1 presume he will adduce his proof 
of it. But if it was possilile to decide that Mr. 
Fabrigas waa a mutinous man, though tbe re- 
verse of that character is but justice to him ; 
nay, if yon conki decide that he was tbe worst 
and roost dangerous of offenders, governor 
Mosty n's conduct is still dt'stitute of any colour 
of justice or law. His conduct is totally un- 
warrantable, and the phHeuco he baa here eet 
upi that he ia a prince with a power unbounded 
and unlimited by any nile or law whatsoever« 
that he is authorized to act by his own will and 
pleasure, must represent this case in so alarm* 
ing a light to you, that 1 am persuaded that 
you, who have taken your ideaa of law and 
justice from conversation with Englishmen, 
and obseiTation on the English constitution, 
will give all attention to the particular auffer- 
ings of the roan, aa well as to what you owe 
to yourselves, your country and posterity ; and 
we trust, even in the very best conatructioo 
that is |)ossible to put on governor Moatyo'a 
conduct, that you will think the danaagea laid 
in tbe declaration are not extravagant. 



Basil Cunningham sworn. 
Examined by Mr. Lie. 

Mr. Lee. Yon are in aonie military oi* 
parity ?-^Cnnningham. Yes. 

Wert you in the year 1771 in the island 
of Minorca ^— Yes. 

In what character ? — Acting aerjeant majar 
for the royal artillery. 

Do you remember Mr. Anthonui Fabrigaa 
being at Minorca ? — Yes. 

Were you serjeaot major at the time he waa 
aeized and taken into custody f— 1 waa, when 
I saw him brought into prison. 

Do yon recollect any orders at that time 
coming in any body's name touching his oon* 
linement f — ^There waa a general order given 
us, that three more men should be added to 
the artillery guard. 

Couri. Have you that order?-— il. Mo. 

Q. Waa it not your office aa aerjeant major 
to trauaeribe that order into your book P — A, I 
fifave that order out in the company's enlair 
book. 

To whom does the custody of that order 
book belooir ?— When the books are writtefi 
out, they give them to the captain to whom 
they belong. 

They put three additional men sentry npoii 
that occasion ?^* Yes. 

Court. Why?— il. To do duly upon th# 
prisoner Mr. Abrivas. ' 

How long had Mr. Fabrigas been in cna- 
tody at that time when this order was gives 
ontP Was it immediately uDon his coming into 
aaMdyy or after ha had been put thereP— 



W] 



F^brigai.^ M^ifn. 



A. D. 1775. 



(M 



T« Um Wil •f my Tfcollection, I believe about 
tmm/LyUmt boura after .lie bad beeo in cat- 
ti45««r the evening of tbe same day ; I ean- 
BOlbteerUiQ as to that. 

YfiaaB teU us what arMOo it was tbat Mr. 
Fikqpis ivma comsBitted to? — A, He vraa put 
iabpoaaq No. 1. 

Ilbaiis tWe gcDenl use of tbat prison P to 
sM ii it appl£d P— All tbe prisoiiers that are 
fwkj of capital offences, or for desertioD, we 
onMaly pyi io Ibere. 

Davoa rec ellect any circumstances attend- 
■V w. Fabrigat's imprisonnoent P mention 
asy tbat occur to you. I>o you recollect the 
a wmer in whiob be was brouff bt or confined P 
-«To llie' best of my recollection he was 
hissfbt by a party of soldiers, whether of 
tbe &tb regiment or the 6th, I can't say ; he 
'it in haadoafied, I think, but am 



Bsw \om% was be confined there P — As near 

as 1 can racoUect, shoot five or six days. 

la tbat prison P — Yes. 

Dang ys confioesBent there, can too tell 

Ibecamt or jury whether he was permitted to 

kt visietf bv lua wife or fsmHy P_No : the 

had Ciders that bo should have no 

witb any body but tbe prevost 



I>s yon know of any orders that he should 
an ba sooB byl by tbo jirevost marshal P— The 
WBlry informed me that was his orders ; be- 
■rifl^ it w fmk into tbe general orders too. 

ioi. Dmoy* If yon mean to affect the defeo- 
dmt witb tbitf, yon abould produce the order. 

Mr. I^e. Well then, we shall produce it. 

(L IniKSk, 4m jim know whether any body 
w nmitted to visit him hut this prevost mar- 
^balr— i. I doo^knowof aojy ; if they did, it 



■sisairary t^ordera. 

Ai jan know if any body applied to see 
biiaP— His wife applied to see him, but was 



Jited,aal 



informed. 



What is this, prevast marshal P — One that 
hm tba chm^ipa of. all prisoners tbat are con- 
fasdlar capital crimes; be has the keys of 



Islbiaaa esneatioDer too^ as well as a gaoler P 



-Ne. 



Can yoQ lell os the cause for which this geo- 
oooMMtlsd — tbe occasion of it P— I 



Do yon know what Mr. Fabrigas is P — He 

aaa mbabitant of the island of Minorca. 

A native? — Yes: a Minorquio. 

Do you know whether Mr. Fabrigas \b a 

■an of any property, or was a grower of any 

upon that island P I>o you know in what 

bo lited ?-*(le lived like a gentleman 




Were you acquainted with any disputes 
^•sthing bis liberty to sell his wine P — 1 know 
Mibiog at all of it. 

IH you know any thing of what happened 
^ ban aAer bis contkiemeot in this prison P 
*te breame of bin after f— 'He was sent out 
if tbe island. 

ft 



Do yoa know of your own knowledge P^- - 
I did not see bim taken away. 

Do yoli know of any orders touching his' 
being sent P — 1 did not see any orders. 

You being at 8t. Phillip's at this tine, when 
be was in prison, you can tell us whether he wa» 
tried for any ofi^ioe previous to bis commit- 
meat there, or after P — No : be was not tried. 

Crott-examioation by Serj. JDavy. 

How long bad you known this Fabrigas be* 
fore the time of bis being brought to ^lis pri-' 
son P — I had seen him different times, being in 
the island for between eight and nine years. 

I wish to know in the first place whether ho, 
was a quiet subject, or otherwise?— I never 
heani any thing to the contrary. 

What P but that be was a quiet, inoffensive 
subject P — I never heard to the contrary. 

Ho was looked upon as a very good friend 
to the garrison, I believe P — I really can't tell 
what he was; he was an inhabitant of the 
island. I don't know tbat ever I spoke to bim 
in my life. 

What part of the island did ho live in P — At ' 
St. Phillip's. 

There it was he was imprisoned, I presuoM P 
— Yes : he was brought a prisoner to 8t. Phil- . 
lip's castle. 

I think you say yon have been in the island 
fire years P — Almost nine years. 

Then you were there before Mr. Mosty n was 
appointed governor P — Yes. 

You were there in governor Johnston's' time P 
—Yes. 

Were you there in governor Blakeney'a 
time P— No. 

JofRfs l^Deedie sworn. 

Examined by Mr. Grou, 

What were yon in the year 1771 ?— A cor- 
poral in the royal artillery in the island of Mi- 
norca. 

Did you see the plaintiff hroujyrht to the 
casileP — No: 1 did not Ree him brought; I 
was a Serjeant of the guards when be was de- 
livered up to me, from the 61st regiment. 

Court, Can you recollect tbe time P — A, No ; 
it was some time about the middle of Septem- 
ber, to the best of my knowledge, in the year 
1771. 

In what way was he delivered? — He was 
delivered to me in the prison N® 1. 

What were the particulars of that delivery 
to you? in what way was he delivered? — Hfo 
was iu but a very mean habit ; for, by what I 
could learn, his clothes and everv thing tliat be 
brought in witb him bad beeo taken from him. 

Counsel for the Defendant, That will not do. 
What condition was he in ? — A, He was iii the 
prison ; he had been in the prison almost 
twenty-four hours, before he was delivered to 
tbe artillery. 

What orders did you receive concerning 
him ? — ^That I was to suffer no person to ap- 
proach the grate. 

What gnUe P— Tbe prison door. - 



95] 



14 G£011G£ III. 



AcHonJbr False Imprisonment*'^ 



[96 



From whom did yoi* recem tb^ orden ?— 
From the adjutant Iteuteoant Frost; he was 
oor acUofT adjillant ; be read the orders. 

Not to let any one come to that ^rate ? — Or 
oonverse, or have auy oommuniqition with 
him, upon any account. 

Whose orders does the adjutant lieutenant 
gi?e uiit ? — I imagined it was a general order. 

What do you mean by a general order ?— - 
Coming from the commander in chief. 

Do you mean from goTernor Mostyn? — 
Yes : he was commander in chief then of the 
island. 

What order ? 

Seij. Davy, I will give you no trouble about 
these things. With regard to orders, you have 

g'ven us notice to prmluce the orders. The 
ct is as you contend. We mean to conceal 
no circumstances. 

Court, 1 think the right way will be, as 
it is now admitted, that this was done by the 
defendant's order, to proceed with your parole 
evidence, and read that at tlie conclusion. 

Counsel J§r the Plaintiff. If your lordship 
pleases, we will read the order of imprison- 
ment, and the sentence of banishment. 

The Associate. The title is, 

** Orders given out to tlie troops in Minorca by 
lieuienttut general Mostyn, governor of the 
islaad, who arrived the 21st of January, 
1771. September 15: In order to relieve 
the main guard at St. Phillip's, which now 
wants a sentry extraordinary upon Antonio 
Fabrigas, confined in prison N** 1, general 
Mostyn orders, that three men be added to 
the artillery guard in the castle square, as 
they are most contiguous ; and that duty 
taken by them, the sentry must be posted 
night and day, and is to suffer no person 
whatever to approach the grate in the door 
of the said prison, either to look in, or have 
any communication with the prisoner, the 
prevost marshal excepted, who is constant- 
ly to keep the key in his possession." 

** To Anthony Fabrigas de Roche. 

** You Anthony Fabrigas, inhabitant of the 
arraval of St. Phillip's, are b^ me, chief gover- 
nor of Minorca, banished this island for twelve 
months from the date hereof, not to return 
hither until that time is expired at your peril, 
for your seditious, mutinous, and insolent be- 
haTiour to me the governor, and for having 
dared most dangerously and seditiously to raise 
doubts and suspicions amongst the inhabitants 
of the arraval of St. Phillip's, and to excite 
them to dispute my authority, and disobey my 
orders ; and for having further presumed most 
dangerously to insinuate, that his majesty's 
troops unJer my command, without any au- 
thonty from them for such false and scanda- 
lous insinuations, were imposed upon. 

«» J. Mostyn, Governor." 

" Mahon, 17th day of September, 1771." 

Q. Yon say you received this order to per- 
mit BO p«raoQ to approach lh« grate of the 



prison, or have anv communication with the 
plaintiff: did you obey this order P — A. Yes. 

Did ^on obey it strictly f — Yes, as strict as 
it was m my power. 

Did any person apply to see the plaintiff?— 
Yes, his wife and two children. 

Were they permitted to see him ? — No. 

How near were they permitted to come to 
the prison?— As nigh as I cad guess, about 
thirty yards. 

They were not permitted to come nearer ?— 
They were not permitted to come nearer. 

ifo you know in what way the plaintiff laid F 
— He lay upon the boards. 

Were there no beds ?— No beds. 

Was any bedding sent to him ? — I saw hit 
wife vrith bedding, which was not permitted to 
be brought to him. 

In short, tell the jury whether the guard 
would suffer any thing whatsoever to pa» 
them ? — If they did, they were sure to cone 
to trouble, to punishment, by it; and I am 
certain they never did. 

Tell us what his subsistence was?^Bread 
and water. 

What sort of subsistence has a deserter if ho 
is confined in this place ? — It is a general role 
in Minorca, that deserters and prisoners, eveo 
for capital crimes, should have provisions seot 
them. 

What provisions? — Such as the island af- 
fords, bread and beef. 

Court. Do you know whether any provisions 
were brought nim ? — A, I never saw any ; there 
was such a strict order, that nobody ever at- 
tempted it. 

1 believe there was an air-hole at the top of 
the prison? — Yes. 

Was any body placed over the air-hole f— 
No ; but there was a sentry upon a bastion 
near to it, who had orders given him, that no- 
body should approach this air-hole. 

Upon what account ? — For fear any thing 
should be dropped down to him. 

Court. Was that particularly upon this oc- 
casion, or generally when deserters were there t 
^No; I never heard a circumstance of the 
kind, but during the time Mr. Fabrigas was in 
prison. 

Did you know the plaintiff? — Yes, I have 
been at his bouse several times ; I was at the 
island almost nine years. 

What family had he?— A wife, when he 
was in prison, and Bwe children, to the best of 
my knowledge. 

Now, during the time you have known him, 
have you never heard him say any thing dis- 
respectful of the governor ? — No ; he onlj 
complained of his hardships, of his own bodilj 
sufferings. 

William Johns sworn. 
Examined by Mr. Peckham. 

Q. Was you at Minorca in 1771 ?— il. Yes. 
In what situatioo and capacity ?— I was 
garrison gunner. 



W] 



FaMgiu H>. MoHf/n* 



How \tfag were 700 in the island ? — Almost 
UBeyetrs. 

Dii you know Mr. Fabrigas P — ^Yes. 

DU jou know Mr. Fabrigas's situation in 
Ik iriand ?— He li? ed f ery genteel in St. 
PMfc's. 

Did be live in the same state as the pHncipal 
ahsbitants of St. Phillip's ?— Yes, as much so 
m ay man in St. Phillip's. 

Vh you remember any thing of his being 
jBMOoed f — I saw him urougnt to the prison. 

In what manner was he brought? — By a file 
sfmen. 

Were his hands bound P — I cannot say. 

8cr|. Damf. I admit that he was with his 
kuds bound, as the first witness said, and that 
ke was kept in prison by order of the goremor. 

Mr*. Peckkam, Do yon admit that he was 
kand-eufledP 

Seij. Dvoy. Yes, that he was hand-cnlSed, 
Md kept in the way described by the former 



Q. Was he kept hand- cuffed in prison P — if. 
1 beliere not. 

What sort of a place is this prison P— 'It is 
itt apart for capital punishments, for prisoners 
iketare under sentence of death. 

Is it a prison dug out of a rock P — It is a 
ss Ua r a neous place in the body of the castle. 

is it under ground ? — No, under the top of 
Ae castle. 

Is it a ground floor P — A ground floor, I 
Mete. 

This beiog the prison, and von standing there 
Is guard him, do you remember any of liis chil- 
4ca coming to see liimP — I saw Ihh son the 
fa« day be was confined there, a boy about 

lS.cime to see him. 

What did he come for ? — He bad some pro* 
viMBS in a basket. 

Did he apply to you, that those prorisions 
■i^t be given to his father P — He applied to 
Ike regiment then upon duty to give them to 
kii father, iMit was denied. 

8erj. Darvy, I admit he was sent hand-^ufled 
to tbe prisou, as described by the former wit- 
BCK : I meant to include the matters of belief 
as well as matters of knowledge. 

Court. For my part, I like to hear the eri- 
dcnce in any case, to know the truth, and then 
«e have no squabbles afterwards. 

Johm Craig sworn. 
Examined by Mr. Serjeant Glynn, 

What are you P— A matross. 

Was you in the island of Minorca in 1771 P 
—Yes. 

Do you know Mr. Fabrigas? — Yes. 

How long hare you been in Minorca P — 
IVliy niijli nine years. 

What condition was Mr. Fabriji^as in? — In 
ftry good circumstances there ; lie is reckoned 
SDv^'ot tbe best in circumstances in Ih^ island: 

Do you remember the time when he was in 
tbe dungeon there ? — Very well. 

You did not do any duty upon him, I sup- 
FsmP— Ycs,Idid. 

VOL. XX. 



A. D. 177S. [9S 

Do yon remember whether peopla were ad- 
mitted to see him P— I am sure there were none 
admitted to see him. 

Do you know whether any nerson came to 
see him that was refused P — I Know his wife 
and children came, and they were refused. 

Do you know of his being taken out of the 
prison P — I saw him put on board a ship in the 
harbour. 

How many days after his first imprkMm- 
ment ? — 1 am not certain of the days. 

About what number of days was he in con- 
finement P — Five or six days, to the best of my 
knowledge. 

In what manner was he taken out of prison, 
and put on board a ship P — I happened to be 
down at the quay, and saw him put on board e 
boat, to be taken to the vessel. 

What time was this' P^Early in the morning, 
I am not sure to the time, but to the best of iby 
knowledge I think between three and ibur in 
the morning. 

Had he any time allowed him on shoreP-^ 
No, he was hurried on board ; bis wife and 
family were coming down to speak to him, and 
the soldiers \cept them off, and would not let 
them. I wanted to speak to him myself^ aid 
the soldiers would hot let me. 

You saw his wife and children come to him, 
do you remember whether they brought anT 
thing for him P — I think they nad some bed- 
ding, to see if they could i^et it on board the 
ship he was g'Hng to, and it was turned back 
again, they would not allow any thing to come 
to him ; he was put on board a boat and taken 
into a ship whicli was laying in the harbour 
there, the ship was under saiL 

Serj. Davy. I admit he was banished to Car- 
tbagena. 

Coun. for the Plaintiff, You admit he was 
banished by governor Mostyn for a year P 

Serj. Davy, Yes, 1 do. 

Colonel John Biddulph sworn. 
Eiamined by Mr. Lee, 

Q. Yon are an officer in the regiment that 
was at Minorca P— ul. 1 was not in Minorca at 
the time this matter passed. 

But yon have beeu at Minorca P — Yes. 

Did you know Mr. Fabri^as ?— Yes ; I knew 
him from the time I arrived in the island until 
I left it. 

VVhen did you arrive there ? — I think in the 
year 1763, aliout May or June, and stayed about 
eight years. 

When vou knew Mr. Fabrigas, in what con- 
dition and circumstances was heP — He seemed 
to me to be of the second sort of people in the 
island ; he had some viueyards and some 
houses, and some property, and was received 
not as of tbe first r|uality, but as a gentleman ; 
he was estcemcHi a man of property : 1 should 
call him a gentleman farmer. 

While you knew him what character did he 
bear P or how did he behave himself, as far as 
you had an opportunity of observing ?— As tar 

H 



99J 



H GEORGE III. 



Aetionjbr False In^ritontiunt-^ 



[100 



ai I cotikl obferre, he behaved very well, and 
bad a very good character. 1 used to em- 
ploy liiin in getting wine for aie, and other 
tbiogs the island produced, because I bad a 
famUy ; and often he was very useful to me in 

Iirocuring things at a reasonable price. When 
[ was at Citadella, at the other end of the 
island, he came there, and was with some of 
the better kind of people ; be was always with a 
don Vigo, or a don Sancbio, who were reckoned 
the pnnciual people of the place; they are 
nobles in that island. 

While you knew him, 1 ask you what was 
bis behafiour P Did he behave like a peaceable 
subject, or like an unruly and factious one f — 
fie always behaved with very great decency 
and decorum. 

Cross-examined by Seij. Burland. 

Q, Do you know whether he was a man of 
property in the island ?-^A, As far as I under- 
stand he was, hot it is impossible for me to say 
positively ; he was reported such. 

He had a father living? — I believe he had, 
an old man. 

You do not know whether it fras bis own 
property or not ? — It seemed to be his. 

He conversed with the two noblemen yon 
mentioned ? — Yes ; he was at their houses as 
a gentleman. 

Did you use to visit at his house ? — I have 
been there. 

Did vou ever dine or sup with him ?— >I think 
1 dined with him once. 

Court, The gentlemen suggest, but you 
don't mean to make a distinction between the 
classes there P— i4. 1 do make a g^reat distinction. 

Q, What promotion has general Mostyn in 
the army at tliis timep — A, He is a lieutenant 
ffeneral,*and commander in chief ot the island of 
Minorca. 

Has he any military promotion at home? 
has he any regiment P — Yes. 

What regiment is it P — I don't recollect the 
number ; it is a regiment of dragoons. 

Do you know of any office that the general 
has about bis majesty's person, any place at 
court? — 1 don't recollect it ; 1 believe he has. 

Serj. Glynn. My lord, we have dune for the 
plainUff. 

Serj. Dory for the defendant. May it please 
your lordship, and you, gentlemen of the jury, 
1 am of counsel in this cause fur the defendant, 

Enrral Mostyn, who is charged with a misbe- 
viour towards the plaintifl*, in the defendant's 
capacity, as governor of this island ; the 
plaintiff, Fabrigas, being a subjtrct of the crown 
of England, a native of that island, a Minor- 
giiin by birth, and living in the town of St. 
Phillip's, (there is a reason why his residence 
in the town of St. Phillip's is, in my apprehen- 
SKMi, material, for some matters which I shall 
trouble you with before I sit down.) The de- 
lendant was appointed governor of the island of 
Minora on the 9nd oTMarch, 1708. His pie- 
wu gw cmor JtluMlM, wh«n prads- 



cessor was general Blakeney. So far I am 
able to trace back the governors of this island, 
whom the questions before you have any sort 
of relation to ; and any further is unnecessary. 
I don't know whether it may be new to any of 
yon, gentlemen, to inform you, most probably 
not, the history of your country will tell you, that 
this island of Minorca, whose situation is in the 
Mediterranean, and which is of extreme use ia 
the protection of the Mediterranean trade, was 
taken in queen Anne's wars from the crown of 
Spain, and was ceded by that crown to Great 
Britain, by the treaty of Utrecht in 1713 : that 
upon the ceding of that island, the condition 
annexed was a reouisition on the part of Spain, 
which was acceded to on the part of Great 
Britain, that the inhabitants of this island of 
Minorca should continue in the free exercise of 
the Roman Catholic religion, which couki be 
no farther than was consonant to the laws of 
Great Britain. For whereas the laws of 
Great Britain will not allow the pope's bulls, 
excommunication from the court of Rome, the 
inquisition, and some other matters of that 
sort ; therefore a free exercise of the Roman 
Catholic religion was not with the exercise of 
any powers in the bishop of Rome, hut what 
were acknowledged by the laws of Great Bri« 
tain. They had only the free exercise of tbeic 
religion, as Roman Catholics. All other rights 
which they bad, and all laws by which thej 
were to be governed, were to be given to tbeni 
by tlie king of England. He was to establbh 
what code of laws he thought proper in that 
country. They were to be subject either to d? 11 
jurisdiction of'^ particular sorts, or military, or 
whatever sort the king of England pleawd. 
They were a conquer^ people, a conqiier«4 
island, and no terms were annexed to that treat j 
of Utrecht, but only the exercise of the Roman 
Roman Catholic religion. The king was to 
appoint his governor of the island, to goyem 
them by such laws as he thought proper to 
direct ; an arbitrary despotic government, or n 
qualified government, or whatever government, 
under whatever sort of magistrate?, or what* 
ever order the crown of England should think 
pro|>er. There is a manifest and very wide 
distinction, to be sure, between a Minorquin bj 
birth (I don't speak of an Englishman that 
goes over there), and the case of an English* 
man: 1 just mention these things, vihicli will 
be very projier for your consideration through- 
out the i^irogress of the several facts I shall 
mention m ibis cause. They are, in my hum* 
ble apprehension, essentially necessary to your 
consideration. Some time aAer these people 
(1 don't know exactly the datr of it) had t>e« 
come subject to the crown of England; after 
1713 they petitioned for a cootirmation of the 
usages and customs of Spain, and to be go- 
verned by the laws of Spain, as they had been 
used to be before: and that was granted, te far 
as the wisdom of the crown thought proper to 
grant; and there were certain regulations^ 
which I will take notice of by-and-by. Many 
rqplatioos w«rc fluute ftem time to tima occn* 



Fabrigat v. Mottyn. 
Mulljr, fay lb« erowD of Great Britain, for 
llii aUBnal police of (he i>tnDil. Gentlemen, 
1 ihiidid infurm yaa loo, ihtl llie islanil of Mi- 
Mftt oontisls ol five sepirtte ilitiiions or dia- 
bia. In fnur ol' thcH ihey bnfc in«([iMraiei 
WMlIy decieii. In (lie filili, which ii called 
lbun»l of Ki. Phillip'ti, which is the I'nrl 
^iW ialanit and itiieeunty, there the parlicular ' 
lanawkkh lajuat tlie Buburht, which takes In 
itMtBol'Sl. Pliillilt'a mljoining close lolbefnot 
rfthe citAikl, Ihal dialricl is under the imme- 
itOa pwgrntpent of the governor ol'ibe island 
maiuuil hy the crown. Tliere are no jiirals, 
•kiek ibe commoD name of the niaeiiUatei 
iitb* Mhcr ditiiions, whn are elected h^ llie 
papla i b«l llic (iroper officer I'ur the |iolice of 
■k« Hra**l is apiioiDteil by the gniernnr hrtii' 
Rir, and I tliink hia title is mustaslaph: heia 
tW ofiecf apiMiolril by ibe ^vernor of the 
■knl. TbaK i* an extreme necesaity, that 
Mve particvlar care abauld be taken in the re- 
(dalMO «f Ibe jHtlire ol' that part of the islaod 
Mhieb ■■ itBOtcitutrly contiguous to the fort of 
Sl Philfip'a, and where there la a perpetual 
(tmauB, for \\m take of preserving mililary 
teipIlM^ A Ian ortliiaiiland, apiongatolhErB 
>kc!b i* neeeuary tn nieniioii tu yau, because 
Iba hiMor^ of ttie traniaclion ha* iuniediate 
l^ua U It, i*. that the Jurats in the sereral 
yK\t nt ibe lalaDil in Uie luur ul her districts uF the 
■had, aii<i the muslaslaph in the arraiul ol' St. 
Ptafcjt'a, whfcb a the Dhh dependent district 
min Ibe itnm«iliate dcpeadcoce and |^*ern- 
•m of th« ijMTeciior bimielf, set a price, and 
iJt', anJ inramire, ujiun the Reveral comnio- 
' IS. I ditn't know whether it includes all 
iMiitlica. hut wine, and corn, and other 
!"■((, «bi«hibey call the alTciralion, that iathe 
VB^ar price to be jmid, upuo caiumoililies to 
tt^L Gcnlleinen. in the year 1733, (the 
AHtnc M malerial,) there was a reflation 
d bjr. tlie ciowu, made by the kin^ m 
I cstract that part of it that refjarris 



A. D. 1775. 



fetMcMM 



; that it, that the 



diairiclK and uni' 

rnK) < that tbi 

he left at full 



A you Me ihete are 
MMwaitUa, but these tour 
■ rniUa are aytwiiyinoui 
r^tt» of all the uuivemi 
'■'^^ny. wiilioui ibe inlerveniion of the com- 
sjoiMi, or any otJier of the royal officers, 
' M Bake the ■fTuiatioa*, and setiie the assize 
•aa< prima of all mariner of com, and all man- 
* ■■ cf pr<» isioni, the produce ol' the island ; 
' tii alau tlic price* of com imported into the 
'ato4, aail buii|;ht by the uDitersiliES for the 
' ftmX of Ibe jiuiilic ; and that the natives anil 
'aaiababilatits heat all titnes perniilled tn sell 
'A* iBia* al nr iindar the atluratiun, without 
' Mf JBWrf tntioD ur the ([""^lor or sccre- 
ina, nr any vihrr (Krson or prrauns acUiii; 
•da iiii aulhnriiy.' You see, genllenaen, 
M ibia onirr uf rouncil imports, that these 
''il'* Br« ttulirr the *>Molula deipoliirn. if I 
^11 wtay, uif tlitr L-rawn of Greul Uiiiain. be- 
u!m tbw « IS a language that wc m this cnnn- 
' .' m M ac^titiutco witb. \V beibvr to icU or 



[103 
n Eoglish 



buy our goods, or not, does not auil 
genins, the genius uf the Eughsh law. i nis is an 
order made by Ibe king in council, in the year 
ITSa. That urdtr of council, and some niber 
proTtsioDS that were made by that order, oci-a- 

therefure another order ol council was n>aile 
the folloiving year, the lOlli of August, JT53, 
which you will in Ibe course of tliE evidence 
hate read to you. There are sonte iiiatiers \a 
it I will trouble yon with. It was made ii|H)n 
the conaideration of several papers irDiisniilied 
from MioorcB by general Blakeuey, whu was 
governor at thai time. Several ihiugs wer« 
advised by the privy council. Among the 
rest, I shall judt extract a few thinirs. With 
reaped uf the firal ailicle in the civil branch, 
relating lu the making the afforaiioua, about 
which great cnmplaiiiU have been exbihiieO, 
thai the governor be instructed to require the 
jurats of the several terminus in the ithiod, at 
all proper times and aeai>onG, to innke Iha 
tame nflorations: and in case tbe taid ju- 
rats should refuse or neglect l<> comply 
with his command (herein, that then tbe snid 
governor be authorised to make the said alTora- 
lions himself: but due care is to he taken, that 
tbe said alforatioiis be made equal and (general, 
as ID all the things and persona lubJM'i to the 
said afToratioBS, as well as at all prDjwr aeaiiiins. 
This word * aeasoDs' will have some uieaning 
by-aod-by. Then they go on wiih a great 
many regulations. AmongM the res) is, adtia- 
ing the king for tbe future, hy bis Irllers patent 
under the seal of Great Dritam, tuanthorise the 
governor, or in bis absence the lieutenant- no - 
rernor, ur comraaniler in chief for the lime 
being, to exercise the power uf civil ;{Overn' 
ment, as well as those of the military, lakiog 
cs^to preserve the one separate and distinct 
from the other: and that tliev should recrive 
all this power, but that they should be tiihject 
nevertheless lo such iustruclious as should be 
giveu by bis msjetly. He is lu govern ac- 
cording to these direcliona containe<l in the let- 
ters patent, aa also to such inalruclions a* shall 
be given to him by the king. Then, among 
other things, here is a direcliun, aud this it very 
material : you see, it meiitiona some confu- 
sioDs thai hare ariseji in respect to the ri-gula- 
tioua made befort: in 175f : that it may be 
proper ibr the goveruor to emleavnur to make 
the iuhabilanis aensible of the great happiness 
they eujoy uuder the king's proieciioti and go- 
vernment, and to shew them ihnt they have not 
only at all litnea been tieatrd wiih justice and 
equity, but with lenity: that ihe increase uf 
richea amon^nt them is iiwing, aniongsi uiher 
ihiugn, to Ihe great sums of money cuuatantly 
circulated from the pay of the king's furcet, 
and Iroiii the nuoalier of foreigner* now ael* 
tied amoDg lliem on account of their trade: 
and nka the tmaoaiUD uf thrir trade, ibej 
Iwing permilled 10 carry on coiumerte in lika 
mauner with Ihe real of bis inajeiiij'B Biiiisli 
aubjects : unil that it is therefore rxprcted. iluit 
they slivuU, in reluru for m many ([real and 



103] H GEOltGE III. Actionfar False Jmpritonment^ 



[104 



rm) lH*nf flta, most hetrtily tnd effcctnally con- 
cur nitli hill miyMty'g gofernor in any thinff 
litf nIiuII |in)|ioiie for his m«j(*iity'f Mff loe, anu 
tho hihmI of ih« inland, and demean themseWea 
a» iHH^mii* |(«i(mI mihjecla, &o. and it may not 
bf improper fur Iho aaid gofemor Uierefore to 
int'urm them of all their prifileftei. Gentle- 
men, iihserve three arc founded upon the llih 
artirio of the treaty conuludoil at Utieebt, on 
Uie lath of July 1718; and that they cannot 
lie euiiiled to any olher privilecei than those 
Bi|;nilied therein. And for the uetter infomia- 
li«in theiyofi tlmt they do faiy the said articles 
before them, n coiiy whereof was annexed 
thereunto ; by whitAi it appears, that they are 
allow ihI to enjoy their Imuours and estates, and 
havo the iVev use of the Ktmiaii catholic reli- 
||i«m, aiHl that means shall be used to secure it 
lo theiu so tVir as is sfp-eeable to the laws of 
iSrest Urttain, whieh they still ciuitinue to en- 
Joy without the hMi»t internipiion« end without 
any fear w dread of the court of inquisition ; 
and that at the senie time muv inform them, 
that, hv the ancient laws of tlhis country, the 
|Ni|»e*s bulb, vSee. ere not |K'nnittetl to he exe- 
cuted in his maji*«t\*s doiuiui«*uft, nor any 
|ieoallv levied or puinshmeut iul)icte«l under 
•ttch Jecrersu without permi«iion ot* the crown 
of Great Hriiaiu : and then it goes on nnd giTes 
farther directionv with ivgani to the goTeruor^s 
Mitbority, and ibe necessity of* thc«e persons 
ibMneaninir tbeuiseWes cbeertully to the onler 
Mf the c^veraor ; wbieb is the gof eramcnt and 
coii^tkiuiion of ibai country. Now, gmtletnen, 

C»u wr th«t in irjk3 soiue cansidenble rrfru- 
tiMis wefv made, to explain, and in some re- 
■yect * lo alter, the reflations wbieb bad been 
lade m the \«ar irj^i. And awHber thing is 
cieariv ot^wr^ed ; thai the tenor of all tbe in- 
atruuietti* 1 bare ni«d some parts of to you, 
lb«wenrtsuUtions neither in trCO.nMicb leisby 
the e\plAiMl^H1 «4'ibem in ibesubM^ueni vear, 
If^;^, with rt^nl to ibe ailorstioo, eouhl not 

IhmmMv ev.row loihearravalot'Sl. I^illip*s.fbr [ goTerameoi oC' the blAad. be found cbts re* 
Ibe jurats we^^ ihi^ pierMNw who wec« to make 
Ibe Adkw«iK«a IB ibetr several muveffsiMk or 
4Mrt\*ts« OC leffwiisivk a« thev anf caHe^. Naw, 
M lae arrival ^' Sc k\itlttp**. ibenr were a« 
jiirai» ai ait : <w«a^>(ueoilr, tbat wa.<« n^ W 
Made b\ tbe ^v-^Hwr vrikvi ap^MMsar^ by ibe 

rere^K bi wr^V. ua'V^^T, the muscsftipb. 
owv cf lS« "li 'jre iff t3« jun» nuking ibe 
mF. TaCM« ibe (onrrmpr wxi »? nukv ii hias- 
Stftf . bai \»i lae* a.Mrwt mere jre ua Taraai. 
TWrv V i:MKJ<r \*}: 2^ 9.* W Qoixvd ; and ibai 
isw li><&i '. ' ytfrtvuix-* inre was 9iK sake* as m 
%^ .%A:i t .Oil a •! iiMOder Of >e«*iiicc ^ia< a tfi« 
WTwrt; ^.'f Si. l^i::;i>k tbai ». wjenr la^ firv 
tWMi fr . u c^^ ctwr w-tf avK caaen >si laat. :t 
^i(-)< anM ^.» liw i^HujQcici^w <#t :a« «e«uxer« er 
tb« ^ifMiu^ a*l euMpic >e jiannM w«o voaK 
poiuoi/tfK cie«i|iisn«ee. Fjt tin 
MMr«i Fuftk«Qir«. when be w^r* 



tion with regmrd to wine, particnlarly in tbb 
amtal of 8t. Phillip's. That was aoon after 
tbe order of council in 175S; 1 belieee k 
was in 1753 or most likely was the begin* 
nbg of the year 1754, that general Blakeoey 
made the regulation I am now going to men- 
tion to you. The mustastaph was an oflieer 
there that did tbe office of jurat in the other 
districts : be was appointed immediately by tbe 
governor. The jurats in the other districta 
were chosen annually by the people, in order 
to avoid any partiahty, and to take care tbal 
the mustastaph shall do h» duty regularly^ 
that the inhabitants that have wine to aell aball 
aeil their wine by turns ; tbat all the people 
within tbe arraval of St. Phillip'a aball aeU 
their winea by turns ; for if they were at K« 
berty all to sell their wine as fast as they could 
sell it, that would, as I mentioned just now, 
tend to the inioxicatinn of tbe soldiers, and In 
the ruin of the island. And the way tbat was 
aiipointed bv general Blakeney in tbe year 
1754 was, t'bat they alioold ballot, or cast Iota, 
for turns ; and then the several people tbat bad 
the lots to wll, should sell at an aflforatioo act- 
tied by tbe mustastaph, at such a given time. 
Tlien'the others shall come to their turn, aa 
hit I lotted ifur ; so tbat every one, in tbe conne 
of his turn, taking tbe chance of tbe bellel, 
will sell his wine at or under, if be picaaed, tbe 
afforation price, during the time apec i fled. 
This was a regulation governor Bhkeaey 
made upon the order of council. Tbe peo p w 
of that district were all very well pleased, and 
things went no in very good order. Tbe pe^ 
pie were glad to be so regulated. Tbis bon^ 
approved of', aad consequently being foond hf 
expefience to be a wery good regulaiMi, 
and to answer all tbe good ends of g evei a - 
sent, it was coaiinu^ during all ibe re- 
mainder of tbe time tbat general B Ube ae y 
was governor of tbe isUnd of M.i 
Wben irsveviior Jobosion snccecded 



ifvUiwo, and tbe i:dand in very gooil order ami 
iraB«iui!!ity. He found tbe regulaiien bad aa- 
swened ali the good ends propped by it. 
continued ibe rvgiLaiioa donng alt tbe 
tbat be wfts governor oc tbe Htand. In 
wiwation tbe' Hfaad w«» t^^nad by 
Mestvn, ibe ervsenc deMdani. when be 
ceede ' d Mr J Weston to tbe gwermmcnc em iIk 
iad of Mifvu^ 176ci« now five yt%n ; 
preveni go««TTMr liwad ^t jWH as r>*erwie J< 
bae hmad i before, and woaen 
cescmony m ir,-* wvaKmb of ^^etMrai Bmk»- 
sev. u weiL A^ -SE tjie cv«er«o9«a; rrvn wk«ii 
be -^-mvvi a 9 :ri«rk~ Ic tMc ■)««« SfCN^ved 
?f -a Eaic*4csa. invl w« aooriveii «ii'' »v tk< m* 
llOiKaa^ clipnr. inis Mjitfr^iunk I; answered 
la CM fMd eoiis prooueiri »y it. 1: ir idied 
^eoof. «WDM<i«iaty. jou boruoav in tii« ulnnd^ 
wajnii hod seen mun ^ sedicimii ami *ha^mmm 
•rder ta iTj^ csiiiia . 





Fabrigai v. Mo-^i/n. 
b Biy tnroi » ptriicular. There 
are nor less, a» yoii will h« by- 
I bistmilinintpnn of i lie order of 
sit. which had been presoribed, yon 
_J*1TJ4, bikI cnntinoeil tU tlie lime duwo, 
MttrrollinK spirit of the plHinlilT ihouglit 
^r td Irrrak lfarout;h bM onlvr, G«ntle- 
», < «ilJ be lime oow Tor me tu lake nullce, 
tl M>e to far gone inlo ibe general Uisl'Ty, 
i<B«b«r (ircmaMance, nhich is nniorioiis lo 
M^smllemcn nho have been «eUlt»l in lliat 
ri«L M wcl) ][OTt>ru<>T« i« llie n\\rt mJIItBry 
■AwLu lh>l liBve been Ihere, llisE the native 
iMaiimiifriinrr-i are hut ill afl'ected lo Ihe 
li(Ui, aai to >be EiigUsli ga*emiaeDt. It 
irM Mch ta be wondereil at. Tbey are the 
hiimiiiilii iimiirr'-| '- TItey cuoBiiler Spain 
>|W cBunlry to which tbey iiught nalurally 

■ tMtf; and it is not at all In be wondered 

■ ikMMse people are not well itlaimsed lo Ihe 
Eaftah, wha Ihcy consider as Iheir coiiqnerors. 
Itfnw inattDce of that happened at Ihe lime 
rfkTiBnHttn of Minorca liy the French, 
lAn Ifcc French took it, which I helierewaa 
a tm yf«r 1T36, the beginniog of last war : 
■1 >1 b t«ry nn^nlar ihst hai-iMy a Miiinrquin 
MA ima in rfelpnee of the ialand against ibe 
hachi th«H*roDij^t prouf in the world thai 
taj were »cry well pivased at Ihe eouiilrj l>e- 
^ wmled trom the liunda ot (lie English. 
tW Frnieh did take it, as we all very well 
'»■>; bill, iliank God, we have Jl again. ,Or 
d^ jtlinorqiiias in that islnail, perhaps Ihe 
^■■if Rands BinfruUrly end mo«t eminenlly 
Mr BHi wriilions, liirhultnl, and diisalisHeil 
i%il t« <t>e crunn ofGreai Itrilain, that is 
*kibaad ta lUe hi land of Minorca. Gentle- 
te.W B, nr clmse)! to be, called for Ibis |iur- 
^••a patriot of Minorca. Now patriotism 
'iikry pretty thing among oureelres, and 
waviuuch t» it; we owe our liberties lo it: 

livohuiald have bm little tu value, and per- 
^ •« sbciuld have but little of ihe liheny we 
Waiftfy were it ncil fur our trade. And for 
k«kc of oar trade it is not {it we should en- 
MtgT pBtriiitiaai iii Minorca; for it is there 
iWMiiewf'Hir trade, and lliere is an end to 
WMde in ttw Mediterranean if it goes lliere. 
tHbn« il li very well ; for the body of ihe 
Mleof ibU country they will have tt: Ibe^- 
L>r ^nnandeil ilt and id conseqiir-nce of their 
a t m ii they baveenjoyed liberty, which tliey 
•d) TOotmiw to pMlerily ; and it i* not in Ihe 
T of i1ii« tjiivertiment to deprive them of 
B4it Ihev will lake care of all our con- 
fast* afaroad. U'lhiit spirit prevailed in Mi- 
■■na, the ciinaM|neiice ofit vtauld he the loss 
rfihsf CKMinirv, and of course our Medilerra- 
Ma itmIe. We should be lorry lo tet alt our 
ihrai free in our plantations. Gcnilemen, 
kvii^ nonr ironbled you so far in general con- 
eoweihcUw, tbuailUBlinn, and govern men I, 
sfMia talaMi, and giten vou a hint loo of Ibe 
tpK of Ibe ptaiatiir, which I don't wish lo 
MhE the leaM impression upon you, unless 
e d1' facU, which we shall produce, 
' p ujion j'ou ; pre me leare to 



A. D. 177S. [106 

end to (he particular circumitaDces which 
f,-,^ rise lo the mailer now eomplnined of. 
The plain I iff, Pabrigas, whs aDHtivenf ihelnnn 
of St. Phillip's, and within ihe arraval of St. 
Phillip's, and conseiiuenily under the imnie> 
diale eye of Ihe governor himself, as he was 
within that district which is regulated by ihe 
muslaslaph. In July ITTl he thought proper 
to present a petition to §;ovemor Mosiyn, the 
del'endaul, in this form : " fjhewelh, Ihai your 
petitioner has now by him twelve casks of wine 
of tlie produce of his own vineyards, without 
having purchased so laucb as a gtape of any 
other person, of which he has not sold a drop, 
when several niher inhabitants of Ihe town have 
>ld all (heirs, as well from the produce of their 
wn vineyards, as what they houi^ht lo make 
profilby; and this with Mr. Allimnndo th« 
luslaslaph's permit. That the petitioner, on 
the asih instanl(July} applied to Mr. Alliraundo 
for measures to sell wine by, of the rale of Iwd 
duublers per quarter less ihan the afforalion 
price, which would have raised aprofil to Ihe 
troops and the poor inhabitants of St. Phillip's: 
hut nntwithslandioff his demand was very rea- 
sonable, anil conformable to the expre^ dispo- 
siiion (direction I suppose he meant) of iha 6rst 
article of his mnJEsly's regulations of 1763, re- 
gulating ihis island, where it iseipressly men- 
tioned that the iuhabilanis shall always be per- 
iniilcd to sell at Ibe price of the aRbration, or 
noderit; Mr. Allimnndo refused his petiliOD, 
telling htm that he would not buy his wine : 
and that this is not only against ihe reason and 
justice of the public, and the garrison of 8L 
Phillip's, but also contrary to his majesty's or. 
ders in the said refrnlalioD :" aud he menlions 
that the mustastaph had made (ifiy casks of 
wine, and sold ihem. Now, gentlemen, two 
or three nbservalions occur, before we go any 
further. In the firsl place. Ibis gentleman, if 
I may call him so. Ibis Pabrigas, goes upon Ihe 
idpa of the regulation of 1752 bring disan- 
nulled. In the second place, lie goes upon 
Ihf idea, that Ihe nnler thai was made of 17S3, 
was uiiiversnt over all the island, without dia- 
tinclion of this district in Ihe arravalof !4I. Phil- 
lip's, in bath which you see he was mistaken. 
Annther thing, which dou't slrlke so imme- 
diately from what I have read, and yet here 
give roe leave lo lake notice of it — il is art- 
fully ihmwninlo this petition, as if the good 
of ihr garrison was very much concern^ io 
his having his petition granted. And, gen- 
tlemeo, I do assert, and shnll be juslitied in 
Ihe asseriiiin, I dure say, by your opinion, 
before 1 have dnne, or at least before Ihe evi- 
dence is gone through , that his design, from ilia 
beginning lo the end of it, was la stir up sedi- 
dilinn and mutiny ; and amongst Ihe resl, par- 
licnlarly to pniot 10 Ihe passions and inclhiations 
of the soldiers of the garrison lo lake his part 
QgainsI the governor. This petition being pre* 
seiiled to Ihe governor, the governor called 
upon Mr. Allimundo to give an answer to tbia 
man: for you see be complained, ihsl he, 
fabrigas, had not ibe permuaioik to sell bw 



107J 



14 6E0K0E III. 



Aaionjbr False Imprisonment'^ 



[108 



own wiae, Allimaiido havinif refosed him the 
measure by which be should sell it ; and in the 
next place, that Allimundo himself had sold bis 
wine. Allimundo did gi?e an answer to this ; 
for the Koremor, willing to serre ever^ body. 
And to act with the most impartial justice, and 
being uneasy himself, that any Minormiin 
should be uneasy ; for the uneasiness of a Mi- 
Dor(|uin perhaps diffuses itself further than a 
particular man, and is a fit matter to be at- 
tended to by government ; he called upon Alli- 
mundo to explain this matter. Allimundo 
ga?e a full and clear answer to the matter ; 
and stated in tliat answer, that Fabrigas's com- 
plaint was, because his turn for selling wine 
liad not come, according to the lots f men- 
tioned just now, and that was the only reason 
why be had not j^et sold a drop ; for no man 
ODuld oell a drop, till by balloting his time was 
€ome : so that rabri^ bad nothing to com- 
plain of. But he insists^ that no man ought 
to be bound bv the lots, but that every man 
bad a right, by the regulation of 1752, not 
taking notice of the regulation since that, but 
that any man might sell under the afforation 
price: therefore be, offering to sell under the 
afforation price, ought to be permitted to sell 
his wine without waiting for ballotting. He 
was mistaken here: first, because that order of 
1759, had been rescinded, and was not the 
iHnding order : second, that be lived in a dis- 
trict, where it was not to be regulated by 
jorlt8« but by order of the governor : thirdly, 
that the regniation which had been obtained in 
the former governor's time had been the way 
1 have represented to yon : in all which parti- 
cular heads he was grosly mistaken ; and 
therefore he had no cause or complaint that he 
bad not sold any of his wine, his time for sale 
being not yet arrived, according to the regula- 
tion of the lots. With regard to the other part 
of the complaint, that Allimuudo sold his wine ; 
Allimundo freely insisted, that he had a right 
to do so. He claimed a right which had been 
enjoyed by all his predecessors, and which he 
could not, without an order from the governor, 
depart from, not only for his own sake, but for 
the rake of his successors ; that he had a right 
to sell his own wine without resorting to the 
lots, and that he had not bought any wine, but 
■old his own wine. This answer Being given 
by Allimundo to the governor, the governor 
upon that sent word to the plaintiff, that he had 
eoquired (for he had not taken Allimundo's 
word for it, but had enquired) into the matter, 
and found what Allimundo had done was right, 
and aflbrded no cause of complaint. This was 
aome time in July. Upon tbe 11th of August, 
ibis Fabrigas thought proper to prefer another 
petition in these words, *< 1 had the honour to 
present a memorial to your excellency, sbew- 
mg, the transgressing and not observing in 
the said town two regulations given upon the 
S8th of May 1758, by bis Britennia ma- 
jeaty [still adhering to the order of 1759, as 
<f tbm had been no sabaequent order] that 
te iababilaiit ahould ha pemittad to tall bit 



fruit at the fixed price, the afforation, or under i 
secondly, that no commander, judge, or of« 
ficer, be allowed to have any traffic, bargain, 
or so forth : [It cites a great deal of this order, 
and then he takes notice] that Allimundo, who 
does tbe functions of mustastaph, bought 
grapes and made wine. And then he offers to 
sell to the inhabitants in the garrison of Hi. 
Phillip's, twelve casks of wioe that he has got 
by htm of his own vineyard's produce, at two 
doublers less than the ordinary afforation and 
fixed price. The petitioner has applied several 
times to your secretary's office for your excel- 
lency's decree [that is, for his answer]. Your 
secretary told your petitioner verbally, that 
your excellency was ratisfied with the answer 
given by Allimundo ; at ^hicli he is surprised, 
as he is ready to prove, in a judicial way, the 
truth thereof." [Then he prays the governor 
to give his decree at the foot of the ntemorial, 
and to have tbe satisfaction to justify himself, 
and to prove his charges against Allimundo.] 

Gentlemen, this second petition being pre* 
sented to tbe governor upon the 16th of Au- 
gust, which was A^e days after the date of it, 
governor Mosty n took the only possible step for 
a man in bis situation to take, consistent with 
wisdom and justice ; and that is, to refer both 
tbe petitions, or memorials, as well the former 
as tbe second, to the proper officers of justice, 
for their determination. Accordingly he did 
refer not only the two petitions, but also tbe 
answer or justification of Allimundo. He re- 
ferred all these papers to the only proper oflioer 
there to i;efer this matter to, namely, the soli- 
citor general of tbe island, and Dr. Markadai, 
the first law officer, in order that they miglit 
enquire into the matter of complaint, and im- 
part their opinions. They made their report 
upon the 31st of August to the governor. 
Now you will see what were the opinions of 
the lawyers of the island at that very time, that 
the orders of his majesty in council, of tha 
year 1752, relative to the sale of winf, had never 
been executed in the suburbs of tbe castle of 
St. Phillip's. You see it is just what 1 told 
you at first ; that is, the arraval of 8t. Phillip's, 
that order of 1759, was never understood to 
extend to that particular district, which is under 
the immediate government of the governor 
himself, that is the place where this man dwelt. 
Then they ny, secondly, that the custom ob- 
served in the suburbs, upon the sale of the 
wines of the inhabitants, has been, that the 
mustastaph had the direction of distributinsf 
tbe measures among those inhabitants, whicn 
was continued till some years past; when lieu- 
tenant general James Johnston, lieutenant go- 
vernor of the island, in order to avoid com- 
plaints, formed a regulation, dividing the raid 
suburbs iuto four quarters, and onlered that 
the wine should be sold by such of the inha- 
bitants unto whom it should fall (1 see I am 
mistaken ; it was introduced, I see, by fo^ 
vemor Johnston), which cegukition at thiatune 
exists. Tbe third is, that Antonio AUimimda 
waa daded miistaatifb. Foiirtbly» tbat AlU* 




Tahrigat w. Molfyn. 
1, JiMqih Nelo. U«lph Preter, and Jo- 
fcLnlie, who aie tlie iirnniiB ihai have exe~ 
n (be office nt niusUiiiapli iif llie uid 
lAi i<ir soieral yenn |i»l, b«ve beeo oc- 
oa^N^MparchMetpvpc* furmak'mg w'met 
-4a w the iltfcace of Allimunilo. Tben 

tnuliff 

t office 
. .JHke wine from grapes bnui^hl 
tj Itannaeltes. And Ihen lastly, dial lite 
MkiNf «f Mine from grapes boujjtit bail nnt 
tna rvckoiMil an illicit iraflic, nor iDcoin- 
pMt •riih ihe ollice of baillfl', jurat, musta- 
«ifb. »mA wo foiili. Now Bee <*liai lueilioj 
IMM •fficen look to be InronDed of this matter, 
» •»*«■ W give the answer to the go»tinor. 
" TbM, Mt, n wbat in abedieace lo your excel- 
Inn'* ontor, we can inform yoo of, ■cconJing 
M aut a|ipeani u result from the ileclaralions 
wbieb we have received upon uatli from tbe 
pnfcraat pvnoru, wbose original depositious 
raanin atMOK ibc arcliivpi of tbe royal go- 
Nnnunl." These two observations naturally 
•eenr. In the Bret place, that tl>e governor 
ImIi tke «Dty method he could, uuon the 
••■litoiiit of this mia, to refer it to the only 
tntwrnScrr of tbe island, upou whose report 
MmfbCikpeiHl, with Ibe power of cjcamina- 
(an its till* officer, of all praper persons upon 
a<fc, tot Ibcir iDformatiou. That upon the re- 
Mdt if Ott repnri of tbia oiGcer, it appears that 
IkemapUinl uj' Pabrij^aa was groundless. It 
9m gi«UDj|e«s both wilb ri^pecl to bis claim 
ti (iif ht to wll out of the order, by ca^lin^ of 
hm: ii trai ^rouodlea*, likewise, wllb regard 
ti lia (MBiilaint a|;ain8l Allimundo, for having 
■Uvw lumoelf. Fur ihey aay that the re- 
pMas maile in 1753, had never applied to 
•W tmxtx «f 8t, Phillip'*, that is, the arrstal 
ti Ik. t'liilli|>'s. Tliey tay, secondly, that 
Mk(B tlMi iliatrici lliey bud alwuyg aolil their 
>ae by IvU. And ihry nay, thirdly, that ibe 
^■Uataph, and llie other officers that do fix 
thaaAvml'iun, liatealwavi! lold wine the way 
tat AUliniioihi lis*. This was the answer 
Ihal was given, and this the re|<ort that was 
Itade !■ tbe {(ovcruor, io consequence of his 
Inin^ rerrvred lo tbem the two petitions of 
PsirifM. M well a* the aiiswrr of Allimuada 
•* (far pHit»D. Of-ntlemrn, they alWrwards 
aa^ a«atber rejMri ; for this, I lohl you, wu 
» IIM 31*4 of August. They inaile amilber 
>rf»ri luur ilayi slier Upon the 4th of Seplem' 
fcn Ibi-y (five an account, for the governor 
>i* tery 'tniniui lo know in what manner 
^nt teatltnwn bail proceeded. (You see 
to«* i* a ycneral alliitjoii al the fool of the 
npavl, to ibfir haviut; examined proper per- 
>«• aoAD oaih.) The gniernor was exceeil- 
■;lj Jraimua to know in wbol order these 
-iWiBFD b*d prorerdeil, to lee wbelher all 
■■I* care had been taken to avoid ouuiplaiol, 
A frum *n rarnett dmre he bud, that all 
-i.-i*r% ut oumiilainl mij'ht subside, that there 
M b« one ■luuerul riilo of good goveru- 
■ prvaarvrd aiitun^ Ibe Alinoriiuiusi and 
_*lBMe^i*mtiit ba answerable to lb* crown 




A. D. 177S. 

of Great Britain for any improper coniluct. 
" We,upon tbesBOJeday.thc I6lh, that is iba 
day of relerence, we wrote lo the said Allimun- 
do and Fabrigaa, citing them by our coniinis* 
sion, and orderini; lliem to appear upon lb* 
aOlb ; and in ohMlieoce to which tbey having 
appeared, we again ordered them to appear on 
the 33d following with Ibeir proofs and docu- 
menls. At their appearing on the 23d, we de- 
manded of Ibem Ibeir proofs and justification ; 
when Fabrigas answered, lie did uot intend 
to enter into the same, till he had obtained the 
decree nf the 3d memorial, that is, the answer 
of the gorerour in writing. On the 26th, Fa- 
brigas was convoked in your excellency's of- 
fice, where it was asked, what action it was ha 
inteuded by these memorials against Allimundo, 
whether civ d or criminal P And having time 
given him to answer, he replied, a civil one; 
all which appears hy the acts to which we re- 
fer. As the ssid Fabrigas hath not this day 
represented before us any proof by way of jut - 
lificBtion of his ssid two memorials, wu there- 
fore, for (his reesuu, have the honour to submit 
the same to the conaideration of yuur excel- 
lency's wisdom, ibai you may not impute to 
us the least omission of Ibe liTely desire we 
have toexecule the orders of your excellency." 
This is dated the 41b of Septemlier. Upon 
this order, this report that was tben made 
upon the 41b nf September, which gave a 
clear satisfaction that every thing bad been 
done with proper care and caution to pre- 
vent any complaint, Ibis Fabrigas presented a 
third petition or memorial. I call Ibem peti- 
tions, remonstrances — I don't know what nam* 
lo call them hy, but still they have Ibe title of 
a petition — he called it Ibe humble pelilion — 
and in this Ihird, as in the second, be had com- 
plained of Allimundo. Now here is a reraon- 
Btrance against the judges : 

That " whereas tbe judges delegated bjr 

yunr excellency" 

- Court. Of what dlU is this? 

^eri-Davi). I haveooprecisedatetolt. "Tba 
judges have denied bim a communication oflba 
answer t;iveo by Allimundo, who does the func- 
tions of mustaslaph of St. Phillip's: prays you 
will be pleased to order tbe judges to receive tba 
witnesses which are produced lo juslily tba 
ai tides." And then follows upon this, no 
less than twelve articles of impeachment, a* ' 
it were ; arliclcB upon which the witnesses 
were produced to prove some facts committed 
by Allimundo against his majesty's orders, 
and to prove some injustice done by Alli< 
rnuodo against the Minorquins inhabiling ibe 
town of St. Phillip's, and against bia majesty's 
■ronps of that garrison. Then followit a siring 
of twelve articles, which 1 don't mean to read 
to you now : you will have them by-and-by 
in due order. Then he siieaks of the prices of 
meat, fish and several olher things, all which 
he complained are not well dune ; and there i% 
a general complaint throughout the govem- 
ment of all tbe otficers, that all the ftlinorquina 
are ill-uwd by the misconduct, mitruk and 



Ill] 



li GEORGE III. 



Action fir Fake Imprisonment" 



[lis 



mnmaDBgnement, by the under offioen of the 
garrtsoo. Noir, gentlemeD, you would have 
•apposed, if governor Mostyii bad been, what 
the world knows be is not, a rash man, be 
might, perhaps, have very well justified some 
ceosure at Itast, of what sort is another ques- 
tion, upon the coodnct of Mr. Fabrigas, whose 
oonduct points very strongly to sedition. For 
consider where we are speaking of. We are 
not talking of the city of London ; we are 
not talking of a town in Etiflfland; but are 
talking of the town of St. Phillip's, just at the 
Ibot OT the glacis of the citadel : and this stir- 
ring up sedition amon^ the Minorquins, who 
were already too ill disposed to government. 
But governor Mostyn did act in this business 
with that candour and hamanity, that delibera- 
tion and wisdom, for which his character is so 
eminent. And therefore, after this third me- 
morial and articles, the next step he took was 
lo take farther advice of all the superior law 
officers and magistrates of the island, that is, 
on the 5th of September, 1771. And, gentle- 
men, he ordered his secretary to write a letter 
to doctor Markadal, (I shajl not pronounce 
their names well) the solicitor general and 
the other persons ; and, upon that, they gave 
this answer. He sent the 5th for their opi- 
nion ; on the 10th they gave their answer. 

•*We received your excellency's letter of 
the 5th instant, with twelve articles exhibited 
by Anthonia Fabriflras annexed. In answer 
to the contents of the said letter, it appears to 
as, that in sundry of the said articles he men- 
tions and represents injuries or iin|>oBition8 
upon the troops quartered in St. Phillip's, 
which, if divulged among them, might occa- 
sion tumults and disonlers, and also raise mur- 
murings against their proper superiors, of 
whom they are suspicious, and hove not a due 
regard to their own advantage : from which it 
appears to us, pernicious consequences may 
arise in military discipline. This our opinion 
we submit to your excellency." 

Upon the receipt of this letter, still the go- 
vernor was determined there should be no 
person unasked ; therefore he, upon the receipt 
of this letter, sent it with Fabrigas^s answer to 
the assesseur criminal, who sits as the assist- 
ant to the governor in trying ofcivilor criminal 
causes, the great judge of the island under the 
governor: he sent to him for the sanction of 
nif opinion upon it. The answer is wrote to 
the secretary of the governor, and, ' having 
examined all the said papers, it appears to me, 
that the opinion of the siid gentlemen is very 
learned and just.' So that you see he concurs 
entirely in opinion with those other gentlemen 
that had made the report that 1 read to you just 
now. Gentle<nen, when this was done, then 
and not till then, the governor, the defendant, 

feneral Mostyn, sent an answer in form to 
abrigas; and I flatter myself that you and 
every one who hears this, must be of opinion, 
that the governor acted with all possible cau- 
tion in this business. He writes, therefore, 
Ihis answer \ for you set the other had pressed 



for an answer in writing, and would have it in 
a great hurry ; bat, however, the ^vemor 
would not give an answer till he had informed 
his understanding upon the subject, by all that 
could give him information and advice. ** Un- 
derstanding that Antonio Alexander Alhmundo 
bath acted in olie^lience to the directions of his 
superiors, as in the manner practised by hit 
predecessors in the said suburbs, by those that 
held the office before him, as it appears to us 
(mentioning their names) upon a charge set 
forth in the representations made by Fabrigas, 
and upon the other part by the said petition of 
the people there to attend to the regulation made 
by governor Johnston [I should have tokl yon, 
that all the Minorquins there prayed it miffht 
be continued] for which cause it is not regular 
to receive witnesses to justify the difierent ar* 
tides exhibited by Fabrigas, some of which 
teem' to tend to disturb the public tranquillity, 
in prejudice of his majesty's service : [now, 
^ntlemen, remark this] notwithstanding which 
if Antonio Fabrigas is sufficiently entitled to 
pretend, that Antonio Allimundo hath commit- 
ted any crime or misdemeanor, he is to apply to 
the royal governor's court, aud there make hit 
complaint in the usual form ; where he wiU 
have justice done him according to law, that 
is, ** according to the law of the island." Now, 
any mortal would suppose that Fabrigas, if he 
was not possessed of a most malignant and tui^ 
bulent spirit, woold hare acquiesced in thit» 
and taken such measures as, accfirding to the 
law and constitution of the island, were open 
to him, and not have plagued and teazed the 
governor with reiterated remonstrances and 
complaints in matters which were out of hit 
own principal power to relieve, if there wat 
any cause of complaint ; though, by the way, 
the governor had the strongest reason to sup- 
l»ose he had no cause ofcomplaint. But it wat 
the determination of this man to drive home 
every thing possible to the governor, and to tel 
up an opposition of the Minorquins subject to 
his civil government, and the garrison subject 
to his military guvernment. The unavoidable 
consequence of this would have been ihe total 
loss of this island, and infinite bloo«1shcd, which 
must have ensued upon the revolt of this island. 
However, the man still uses a great many 
threats, which you will have a particular ac- 
count of by-and-hy. The governor thought 
proper on this, (since yon find all which had 
been done, and which this Fabrigas complained 
of, was the pursuing the regulations which had 
been made l>y governor Joliuston — you will be 
amazed, perha{>8, at my telling you — it is the 
strongest proof of the lenity and moderation of 
the governor that, perhaps, can ever be ima- 
gined) in order to see whether that regulatioa 
was a rii^ht one, and ou^-ltt still to be cuntinned, 
the governor summoned a meeting of the inha- 
bitants, even Minorquins, the inhabitants of thit 
district, in order to take their sense of the so- 
vemor's regulation, to sell by lots, or wlieiner 
that regulation should be abolbhed, and that he, 
or any person within the district, mty be at 




Fabrigat v, Muili/n. 
I wise H Tut u Otty cm anUer 
in |iriw. Ill onter lo lisre their full 
! nikltvr, he look the utmoKl ciu- 
MK iloclor Markadal anil 
tiled all ihe iohabiUDU; 
e ibey nughx be at lull leisure from 
>cvanl(, (fur it »■« about the time of 
, ifnm) that xhey might le ut full leinure 
k allnid Bad meet logcllicr, they apjioioted 
■* -' - - ■ aSuiiday, 



abatwaftill meeting. Mr. FabrigBs,iii 
tteMEBp lune, aaei nil ^aioa, (as if an e^tion 
■w gBtBg ftrwaril) be u»e>l all imaginary 
f»^» V> Itcl together at many people u he 
CmM niMl«r to think wiili him, and lo have 
■kit infulalian of the f;overtiur aboliEhed, aod 
Aaltbe nmm he cumplained of might he put 
a tad V, AnJ the matter he required eoforced : 
taiOMb wu Ihe tenieur Ihe inhabitants, that 
lkar« «m* ■ laojoriiy, I am told, olmoat tneniy 
load*, of all the lUinorquius ivho attended 
•fan ilul 8«0riay ; all uleaxed with what bad 
hiMiknc by gofernor Juhostnn, and desinmi 
ti CMlia»« 'ibal rvgiilation. They liiund it 
■Ml bmefieiaJ to them<el*eii ; iliey found it 
MMsded inlh lewt trouhk; they fimad it most 
hr tbcir |itofil: ihey hII Were acainat their 
(^■(rynaMi Palirii;a*, and all prayed tint the 
■ ■■MUhiiunt innde by noveraor JnhntlOD, and 
kid MBtionnl to that tiiue. raii,'ht tlill be used 
N^coDUaaed withnulsiiy ulteraliou. Fabrigai 
•■•ow Trty much diualiefieil. Now I will 
mI joa a it'w abjection. All this it iinlawrul. 
hoBw ii ■*■!■ uo a (Sunday, anil the tense of 
tm (nylr laiten upon • Sunday is no sense at 
^; tititihrr inmanre oflhe turbnleiiceOf his 
A^Mkm ! all vai nroni; ; nud, at the name 
M, * threat thai hr would now prefer a peti 
ba. aad ke wmjld luke care llwl there should 
W !■■ tanodred men aimed at hia heels! oow 
Itf ar nk any man (hot bears me, whut the 
fBMHir wa* to do? The goTermir (whose 
qMwMiwt Inferior to his other qualilieslhat 
■ir Wf th* tliararler of a gi ntlemaii and a 
aMm}»W»wl to beio ffightrned. He wai a 
•■■((tM prrvonal tear ; and ■ AliaonjMin ap- 
pviiiil «t llie head of t-to hunilred people 
«■■!, Ih«u|t)i it i* irrious, and deserves consi- 
taawa^bxwei'rr, ilie governor's spirit iths 
■■b, Ue Jul Hut coiiToke Hoy force in order to 
■^ fbii* : kul bo look a Tory wise step ; and 
kn «■• (for the upki dny wa» the time of this 
^■nvdiua h« had cauM lo apprehend,) he 
|ti« ■• latitation l<i Ihe comuiiodiiig nlKcers 
■r Ike 4dT«rrot >«Kiii>enli to meet him next 
^mwtmg % mhI if ih' te Itud been any force at 
llr herb af Mr. Fobritcax, the comuinnding 
ittMfa beiW Ibni .ii the honse, it would not 
Mvapaiiy liiuir, iiFrhapa, to summon iheir 
tan M trprt it : but lio wnuld not sumtiion 
fta hetr •> Ihr laland any farther than I tell 
j-^. Ai ihi' liiii« llii* pctilioo irns lo be pre- 
> -MrJ by t'«briu>u <*ith two hundred itieo at 
w«ti — 1 inittake ; lb* |ii>litiaa vras then 
-Tiaiil. aad hc WOUU COOM for Ul UUWtr 



A. D. 1779. 
(he next morning with a fore« of 300 men at 
his heela — the govero'ir thought proper to ask 
the advice of the officers who attended there, 
nhal ought to be done with this man, and 
what wan lit to be done ? Every on« of tha 
officers who allended upon the occasion con- 
curred in the opinion — and it was a matter 
alwut wbich I think there iwuld not be two 
npiiiioQs, — that nothing was safe lu he done, 
b<it iuimediaiely laying hold of this man tha 
first opportunity, and sending him out of the 
island. And he did so. Theru is the cniu- 
plainl. Now, gentlemen, I have let you into 
tbe whole history why this was dooe that Fa- 
brigas coiDplaios of ; why Fahrigas was kept 
(ilose, OS he complains ol. A mau that threat- 
ened an insurrection in the isbnd, it surely 
would be imprudent io the governor la luiTer 
any of his friends io the inlaDil lo have access to 
him : general Moityn therr lore sent him off as 
soon as possihle, which I believe was in li)ur or 
live days, into Spain, with a prohibition to re- 
turn to the island again within the cuune of a 
year. Hut all this, say they, this is Ivranoica), 
this is arbitrary ; this u w hut English ifotem- 
Rient, anil English laws, and an Eiigli.'in court 
of jiietice cannot bear, tiay Ihey, it is a very 
improper behnvicmr io governor ftloslyn. aoil 
onghl lo be Ihe aiilj|ect, the mailer of a civit 
action : Mr, Pabrigas therefore does very right 
to lake a voyage over to England, lo coma 
here lo Guildhall, and take Ilie senne of an 
English jury uprin governor Moilyii's beha- 
viour. Lei me ubserve lo you, ihis is uol » 
□uvel proceeding; for thougfi, very liirtunateljr 
for governor Hostyn, it is the liriil lime that ha 
lias had ati occasion lo behave in tliis way, and 
to proceed in this particular manner ; yf I liir- 
raer goveriiorti of Ihis istatid, upiin much lesa 
occasions and emergencies ihan this, have dona 
the very like thing. Do not be aHloniahcd. 
geollemen, nor lei it fright you, when I tell 
you, that the guvernor hai an obioliile right ti» 
do it, and is accuuulable to nobudy but tlia 
privy 'Council. The governmeot of that l^lauj 
IS, io many respects, an arbiirary government, 
and as desjiotic, io many instances, as any of 
tbe governroeola in Aaia, |iarticnr<rty in the 
part now in queition ; and |el governor Alos- 
tjD would Iw »orry, for his own character'a 
sake, if it was in his power, to take any legal 
advLiniagei coDCcniing tbe impropriety of 
bringing ihe action here in Englund. Hia 
character calls upnn himf which is lo him the 
Srst of all considerations, to explain his con- 
duct in the fullest manner possilile. A general 
acquittal of liiffl upon the idea that the law 
won't punish him, would be but a poor s&lis- 
faciioii IO governor Moslyn, ivbo is charged in 
this action with having exercised a tyrannical 
power, tietilleineu, the general tenor of the 
trenerat's behaviour, from the time of hia being 
first appointed lo this government live yeura 
Dgo, to the moment belast left the ialarnl, has 
been to preserve and to maintain onler and good 
govecnnient, wiihont a wish, or rather with an 
Bblioneute, to opprcissny one man Ibat is un^c 



115] 



U GEORGE III. 



Action Jbr Fahe Imprisonment-^ 



Ciia 



his gorernment there: least of all could he 
€ver wish to oppress or injure this maD, too 
incousiilerable iu bis own particular private 
•tatinn of iii'e, too remote from a counexion or 
acquaintauce with the governor, for him to 
have made him the object of vindictive— 1 
voii'tcall it justice, but of any vengeance or 
resentment upon any occasion whatsoever. 
When the man made a complaint, he wished 
to enquire into the grounds of it ; aud when he 
found it was groundless, aud the man reiterated 
tlie complaint, however he might be teazed by 
this reiterated complaint, (for it is grievous and 
troublesome to a man to be teaz^ with new 
remonstrances and petitions, when he sees the 
impropriety aud impossibility of granting what 
M requested) still takes all possible occasion to 
enquire into the grounds of the complaint, to 
answer the complaint. But when, after every 
means had been tried, the man threatens the 
dissolution and destruction of government in 
the island, it became bis duty then to treat this 
with some seriousness : and yet for the general 
^^d of the island he did it, never complaining 
of these two hundred men that were to be arm- 
ed, only laying hold of the man himself, and, 
as soon as a ship could be got, to send him out 
of the island. And now governor Nostyn is 
called upon in an action. The laws of a foreign 
country, gentlemen, are matters of fart here; 
and it is very well worthy consideration — it is 
very well worthy of consideration indeed (I do 
Dot mean to trooble you with a discussion of 
that question ; but since his lordship has hinted 
about it, it is very well worthy of consideration) 
whether such conduct, upon such occasions, in 
auch a place, can be the subject of litigation in 
a court of justice in England; it is very well 
deserving of consideration. I know very well, 
upon a former occasion, when an action wua 
brought against the governor of the island of 
BarlKidoes, by a man who succeeded in his 
absence to the government, without any parti- 
cular aj^pointment so to do, and having been 
guilty, in the governor's absence, of some mal- 
practice, (he was ap|)oiuted by him, but had 
not t(K>k the oath) there was an action iu that 
case brought against the governor for some 
proceedings against his deputy, as was the 
subject of an action, and there was judgment 
in that case given for the plaintifi' ; but a writ 
of error being brought, and that beincf removed 
afterwards to the House of Lords, that judg- 
ment was reversed. As well as 1 recollect it, 
one of the chief grounds iubistcd upon on the 
part of the defendant was, that being a matter 
abroad,— (for that it was upon de^Hurrer to a 
plea)— that being upon a matter abroad, it was 
not cognizable by the courts of justice in Eng- 
land. In answer to that, it was insisted — 

Court, Was it not the main question in that 
trial, whether the council of state, or the go* 
f eroor of Barbadocs, had a power to commit ? 

8erj. Duvif, That was a question. I have 
■ir Bartholomew Shower's parliamentary cases 
Upon the table. 

Ctmrt. I think the courts held they had no 



power to commit : the House of Lords held 
they had a power. 

Serj. Davy. Your lordship will find the par* 
ticular reason of the reversi(»n of the judgment 
is not stated, but only that the judgment waa 
reversed. But one of the particular reasons 
was that the island might be governed by par- 
ticular laws, and that he was not responsible 
here for what he did there. To this it was an« 
swered and insisted upon by the other side, that 
they were governed by English laws; that 
they were not a conquered country ; that thej 
were inhabited by tlie subjects of the crown oif 
Great Britain, who came of English or Briiau- 
nic subjects, going from Great Britain to thai 
country to reside and settle there, and were not 
like the case of a conquered country. The 
reason of it does not appear. Upon that re- 
port, the House of Lords thought proper to 
reverse the judgment. In the present case, 
see how strong it is ! for every objection made 
upon that case applies with double force here. 
Suppose it comes to that question of law, will 
not that question be of too great magnitude for 
me to say a single sy lluble about it ? This that I 
have now mentioned, and your lordship has 
gone before me in what I was going tosav, is 
a very important question of law indeed; a 
very great question ; a question of the first 
magnitude, and which will therefore deserve to 
be discussed and determined by the highest 
court of justice this kingdom is acquainted 
with. It is a question of infinite difficulty and 
great im|>ortance, with regard to the respon* 
sibility of the governor in a conquered island, 
with respect to their being amenable to foreign 
sub^ts, with regard to being aooenable Tor 
their conduct. 

Serj. Glynn. They are the descendants oC 
foreigners, all of them. 

Sei]. Davy. 1 mean those that are bom in Ui*. 
norca, that descend from the ancient inhabitants 
of the island. They are subject to be governed 
by whatever laws the king of Great Britain 
shall think proper to impose upon them. The 
king of Great Britain may, if he pleases, alter 
his government of that island, and give what 
laws he pleases under a general ratification ; 
and they are all bound by it. I say, a discus* 
sion of that question, as a question of law, is of 
great magnitude. I do not mean to trouble 
you with It. To be sure, it is too much for my 
grasp ; it is too much perhaps lor the grasp of 
any one man sitting in judgment, much more 
for roc standing here as a counsel, who have no 
judgment at all, only a duty i owe my client ; 
and perhaps, and most probably, it n ill beaquea* 
tion to be referred to the determination of the 
court above. And you, at the same time, will 
certainly, if you think nmper to find a special' 
verdict in this cause, which I suppose you will, 
you will do well to consider the subject with 
regard to the damages, which we call contin* 
gent damages ; it was therefore exceeding fit.- 
to mention all those circumstances to you, not 
only with regard to the matter of fact, but also . 
tor your considivatioa with regard to th», 




libe 



k. •» 



117] Tabfigai v. Mosiyn. 

^UMfCi. For iappo* (it is upon that ground 
I mw aiMren you) rappoie the go? enior tnis- 
fmktbe law apon this oocasion; suppose be 
fns wrong, and ought not to ha?e proceeded 
kiis way ; suppose that notwithstanding all 
fbf spinloiis he had look, as well from the ciTii 
in ttieir different departments, the law 
•ad the aitc si e ur judges, and so forth, 
1 bT all the military officers, whom 
bled together upon the threat of the 
suppose, notwithstanding all 
opinions, he ought, instead of doing 
km did, rather to have kept this man a 
, and brought him before some tribunal 
tried : suppose that ought to be his con- 
that therefore he did wrong, instead of 
insprisoa the man immraiately, and 
him, upon his own authority ; now to 
W sore the assessment of damages b^ tou 
■■St go upon that supposition. I think I 
speak airiir upon the occasion : 1 mean in this 
and aO other occasions to act with character : 
I suppose that to be so : what mighty damages 
s^fht, oo that occasion, to be giren against Uie 
t et eiuui ? He in that instance mistook the 
fiae of his duty ; he acted as he thouffht for 
dw best, lor the safety of the bland ; but he 
acted sroctpitately. Why, let Mr. Fabrigas 
er bis menos (for I do not know whether he is 
in Ksgland himself or no), let them pnt one 
•uesiisD to themselves to decide it. If (reneral 
M s rt W B bad done the thin^, the not doing of 
wlien they now complain of; if ffeueral 
Hastyn bad brought this man to a trial, what 
■ifbt liaTc been his fate? The least sorely 
8Mld hare been that which he now complains 
iC,laaishnient for a single year; for with re< 
' W iho imprisonment, it is not an unusual 
any country. Upon great and 
occasions, it is not an unusual thing 
fine a man for a few days, and debar him 

of his friends : that is not an extra- 
tbiog. But suppose in that he did 

1 will suppose the whole to be wrong. 
IVbeieiu is it wrong? It is wrong from a 
Misapprehension of judgment, from a mistake: 
m is wnmi^ merely in respect to mistake. It is 
■St wroog from malice, from wilful wicked- 
ness towards this man, from a tyrannical dis- 
Miiioo, from a desire to oppress or hurt him. 
If ibia bad been the case ; if the governor, 
icspoctable as his character is, could for a mo- 
be suspected to be capable of acting in 

nanoer, from tyrannical, cruel, or wicked 
vrs, be would hare done ill to call upon 
to be bis advocate ; for though even in that 
t 1 would discharge my duty towards htm, 
I could not have spoke with cheerfulness for 
But here 1 consider him, and the whole 
of bis conduct bids me so to do, as a gen- 
wiiling to discharge his duty to the 
erawa ; to preserve this island, as it was his duty, 
Is Um comoioawealth of England ; willing to 
da ill that was good, right, and just, without 
■lyvimkctive oaotave to this man, to whcm 
be io a atrasiger. But upon this occasion the 
r wUTpafdowttey if 1 take notice upon 



A. D. 1778. 



[118 



this occasion, of what is too well known ewn 
to be questioned, his general eood character. 
And yet I have less need to ask his particular 
pardon upon this occasion, because that gentle- 
man from whom I received mv instructions, 
the attorney in the cause, has nlled my brier 
with, I think, not less than thirty of the first 
names in this kingdom, who, I am told, are all 
attending here, or within a moment's call from 
this hall, some of the most respectable charac- 
ters in this kingdom, some of the highest rank, 
and gentlemen of the first character in this 
kingdom, to tell vou that thev have at different 
tiihes served under general fifostyn, and that 
they do not know in all t^eir acquaintance, a 
man of a more cool, dispassionate temper, a mail 
of greater character, humanity, and justice, 
then general Mostyn ; as celebrated for it tia 
any man of any rank or of any degree of ho- 
nour in the world ; and yet general Mostyn 
must be supposed, in order to justify vindictive 
or exemplary damages upou this occasion, must 
be supposed to be actuated by motives which 
his heart abhors, and which motives nevcfr 
actuated his heart a moment in his life. I 
leave it upon this idea, that if he has acted im- 
properly m every step, yet, upon the idea of 
Its being a mistake in general Mostyn, I appre- 
hend tM plaintiff has no right to expect exem- 
plary damages. 

Serj. Burland, I suppose it is a fact ad- 
mitted between us, that this is a conquered 
island, ceded by the treaty of Utrecht? 

Mr. Lee, Minorca was ceded to this crowft 
by the 11th article of the treaty of UUrecht. 

James Wright^ esq. sworn. 
Examined by Serjeant Burland. 

Q. You resided some years in Minorca f'-^ 
A, From about January 177 1, to the middle of 
1772. 

In what character? — As secretary to the 
governor. 

To Mr. Mostyn ?— Yes. 

You know the division of the island, do you ? 
—Yes. 

What are the districts they are divided into? 
—I believe originally five; but two are blended 
together, that there now are but four. 

Do you mean to include in one of these dis- 
tricts the suburbs of the fort of St. Phillip's f 
— ^They never do, when speaking of them ; 
that is, extrajudicial of the common officer of 
the island. 

Under whose particular jurisdiction is that ? — 
I always understood it to be under the direc- 
tion of the governor. 

What do you call that district ?— The arra- 
val of St. Phillip's. 

Are you sure you understood it to be distincfi 
and separate from all the other districts ?— 
Yes ; insomuch that I was always led to be- 
lieve, and told, that no magistrate of Mahon, 
which is the district next adjoining to it, ever 
did go there, or could go there, to exercise any 
sort of function, without leave had of the go^ 



i 



119] 



14 GEOROE Iir. 



Ac^oHfir Falte Imprisonment— 



[IfO 



▼ernor ; and whenever there was oocasioii to 
■end an V of them down there, the fort-major 
received orders for their admission. 

Are these laws varietl at any time, and by 
what authority ? — ^The island is governed by 
iBpanish laws,* subject to be raried by the go- 
Ternor, with regard to all interior matters. A 
proclamation of the governor is as binding 
there to try a man upon a trespass, as any laws 
whatsoever, subject to be varied by the order of 
the governor ; not in respect to property, not 
with ref^ard to mtum and tuum^ but with regard 
to the internal police. 

What do you mean by proclamation ?— That 
if the governor issues a proclamation, and in- 
flicts a penalty for the breach of it all over the 
island, and if any person is guilty of the breach 
of that proclamation, he is subject to the 
penalty of it, and for want of payment is im- 
prisoned. 

1 suppose you mean they enforce an obedi- 
ence to that proclamation by imprisonment ? — 
There is there the chief justice criminal, and 
Uie chief justice civil : both have their separate 
courts. If the governor's proclamation is 
broke with any penalty annexed to it of impri- 
sonment or fine, the man is seized and brought 
into that court : the proclamation it exhibited 
a^nst hiia, and by that he if condemned to 
cither fine or imprisonment, thougl) that prochi- 
nation was made perhaps but the day before. 

According as that proclamation afllects, whe- 
ther a civil or criminal matter ?— I do not re- 
collect any of a civil matter. 

Court. W bat are the nature of the proclama- 
tions yon are speaking of? — A. In all the me- 
morials presented to toe governor, be issued an 
order, that no memoriab or petitions, ^except 
ibr mercy, should be presented to him without 
l><^ng signed by an advocate admitted in the 
tonrts. 

Q. You mean governor Mostyn issued this ? 
—4. yes. 

Whether, though the Minorquins by the 
treaty of Utrecht are governed by the Spanish 
laws, yet whether our government here do in 
ifact, or not, from time to time make alterations 
mod regulations in those laws? — The king in 
ooun'cil, upon all occasions of application to 
them, issues out such orders as the case re- 

auires, and they are recorded in the royal court 
here, and are as binding as any laws what- 
•oerer. 

They are registered there, are they not ? — 
Yes. 

What do you call the royal court? — The 
court of royal government is the criminal and 
the civil court. 

You know Mr. Fabrigas f — Perfectly well. 

What is he in the islaod f — I was directed 
by governor Mostyn, who was very much 
tea2ed by his repeated applications, to enquire 
what sort of a man he was. 

* As to the laws which thoold prevail in a 
fiOMuered country, see. the Cite M Ibe isliod 
•fGrtMMla,a.p. 1774. 



Firat, as to hia (joality in the island ; what 
station is be?— His father holds some vioe- 
yarda, very amall. He himself I believe ac- 
tually, for his bread, labours and din and 
prunes the vineyards, and talks and cbatteni 
about politics perhaps five days out of six. It 
has been repeatedly said, Mr. Fabrigas is a 
man of property. I believe he had at that 
time no property upon the earth. General 
Mostyn ordered me to make enquiry, and that 
was the result of it. 

We know what the station of general Mostjfi 
is ; that he was then and is now lieutenant- 
governor of Minort'A ; that he is commander of 
a regiment, and a man of family : what is hif 
character as a man and as an officer ? Is he a 
man of humanity ?— 1 believe as much so as it 
is poHsible for a man to have ; that is, in my 
opinion. I have seen much of him. I do not 
believe there exists in the world a man of ten- 
derer feelings, for any ill efiects that may be 
produced from liim. 

Is that his general character? — I believe 
him to be much more so than common. I 
think that is his comluct that will be found 
upon every enquiry that can be made of him. 

And it lias been so under your own know- 
ledge ? — I am sure of it : 1 have had many 
opportunities of seeing the working of it in a 
very surprising manner. 

Will you let us know as much as you do 
know of this transaction between Mr. rabrigaa * 
and the governor? — May I; refer to some 
minutes I have here ? 

Counsel. Yes. 

Serj. Olynn. Did yon take them At the 
time? — A. No; but all within three days. 
1 hope I ahall be excused \\' I should make any 
mistakes in respect to date. Mr. Fabrigae 

S resented a memorial, 1 lielieve to myself, to be 
elivered to governor Mostyn — that was the 
dlst of July 1771— complaiuinir that Mr. Alli- 
mundo, the mustastaph, the only officer in ibe 
arravaW— 1 think that was the first petitioo, 
complaining of some abuses in buyinif wine. 
The governor said, What does the fellow want f 
He bid me order Allimundo to answer ii, lor be 
knew nothing about it. I sent for Allimundo 
op to the heHd-quaners. The musiaNtapb ie 
the only civil officer of 8t. Phillip's that is, in 
the arraval : he is put in by the governor, and 
turned out by him at pleasure. 

Did you order Allimundo tf> give in an an- 
awer to it ?— -I sent for him, and desired him 
to come up to me. I gave him the memorial, 
and told him it was the governor's order that 
be answered it. Upon Allimundo's answer 
coming op, it was read to the goiernor. 

Coufuel. That answer is dsted the 8ib of 
August 1771 ? — A. I read it to the governor* 
The governor ordered me to tell Mr. Fabrigae 
and Allimundo, bv an interpreter, that he wee 
rerv well satisfied with the defence Allimundo 
bad made to Fabrigas's charge. I told tbfa 
both ao. Fabrigas came again, and desired Ie 
see the defimce that AUimundo bad made. I 
loM bun I was not aatboiiicd to tbew it binii 



«w«HI AwkU« 



Fabrigas v, Muttyn- 
% m>lter for him to de- 
iMfti* He cmhc again llir next day, or tba 
fcf •Aer, ^(iog in annther mpmorit), cleiiriug 
Itelkal mi|^t be shewn lo the gforemor. 

CamiL That vm delivered Ibe 131h of 
A^omT — A. Yei: in ihnrt, deaitinr to see 
Kr jouificntinD of Allimuodo, and shimnE the 
p^a4 of bis compUini, aad, I thiak, Rddiog 
«Mfacr antcle. 

tarn akeiveri theic two nemorialR to the ga- 
•fiMrf— 1 did. GoT«rnor MoMjn ordered 
Itu Dr. Mafkadat, «ho then acted as cliief 
JMicB ci'i], ^ould rec^Te and Itear any cntn- 
fbMa lluit Fabri^RB had to make agiiiusl Alli- 
■mA* ; uid he addeil lo bim th« ail*oeaIe tis- 
cri. Ike Mcmid officer in llie island Ihat acts 
•ate Ike king'* cammission : the chief iuitice 
(Kd is lite fint, the chief justice crimiDal is the 
sBCMul. the Bdvocite fiscal is the third, next 
rfb* thai pxemor ; he gave Ihem authority to 
waA tor papers and penons, and whataoeTet 
Mfkl Iw iueful in the enquiry in his name. 
B* By (Dtmeranduin, I think it nag the SOth 
«f AntfOBt, Ihal these tno law trentleioen, aa 
rs, met, and ordered Fabrigas and 
who were thpn present, to attend 
ihtm Ike 93il fallowing. It may be nrcessory 
I* akMrrr, iliat ihough these tiva gentlemen 
■m IbTD aiilio^ in ihfir own viril cnurts, 
■kay aoed as cuiumissioners of enijuiry, be- 
owielkc mwi oaa one of ihe arravBl of Hi. 
nilkf**. i won't charge my memory by 
mtk, kol 1 am *ery sore they had a se|iarate 
^■[■■Imiob nn purpose imder the governor's 

Wm ibe iiHiuiry made? — On the 93d, Fa- 
too* (tertsied h* would proceed nn I'urlher 
iStewM allowed to see the defence Ihut Al- 
k««ia had made, and given in lo the go- 
■ II w. 

Where «»■ ihni declaration maile? — In the 
aswt batoie ihc cum tuiisi oners. Mr. Fabtigas 
fmam iA a ibird incmoriBl lo truvernor Mosiyn, 
Mfioc bu hinif more than what be had said 
M*r Ik* eiiinroiMioners, ihni he cnuld not 
■ w. ** ! uU he had seen AJIiatundo's answer to 

brtorr ihe ihiid memorial llial was present- 
ai, haJ ihr ciKDinUtioiiers luade any report T 



8rr) lUrlmd. Tiiat is the third memorial, 
ciMUiauis the \i articles he exhibits against 

Q (.'an Tooflilhedaieiolhat'— J. I think 
a owfl hrhelween the 33d aad 36tb of August. 
r>r«nal SliMlya refirrred him to the commis- 

Wbat VM done afterwards 7— The commis- 

lannpartad lo the i;overDor, that Mr. Pa- 
-.•aa, ky Iba manner of his carrying on ihis 
>' ■ ■■tioa apviul Allimundo 

» hw waalbeif report r-The a4tbof August, 
' >aiafina: here is their re)iort. 

L^art. I dan <•; lhi> report he is ipeaking 



un 



Seij. Davy. I took a great deal of pains lo 
collect dales, and I did it from Ihe cuoieots; 
I believe they were rigbi, r« J opened it. 

Wri/iht. There were two reports, one Ihe 
3:slot August, the other ihe 4ih of September, 
thai Fabrigss, by the manner of carrying on 
ihis charge, intended to mt* dissentinn. 

Serj. Duvy. Mr. nrighl. I find, confoan^ 
Iwo reports togellier: it is the third report 
where Ihey report thst it is tn hi'eed sedilion. 

Q. Then be presented this third memorial 
oonlainioft the 13 articles f 

Mr, Just. Gould. My brother Davy staleit, 
that it WDS Ihe lOlh of September Ihak thej 
took notice of the articles. 

Q. Was there another report about the lOlh 
of SepleroberF — A. Yes, there is. On Ibe 
SGtb of August the governor ordered me to 
desire the ctimioal chief justice, and the civil 
chief justice, Ibe advocate fiscal, and the 
aecretDry to the conrl of Ihe royal govern- 
ment, to come to me next mnrniiig, ihal be- 
ing the 96th. Fnbrigas came there, task- 
ed him in the governor's name, by an inter- 
preter, what he meantj whelhera civil prose- 
cution to recover damages against Allimundo, 
which be had sustained ? or whether he meant 
In make an eiamide of him for any abuse be 
bad commiltediu hisnfficef These gentlemen 
were prearnt. 

• What answer diil he make ? — None ; 1 eoutd 
get noansivcr from him. 

Serj. Davy. That is, upon the arlicles. 

Court. Is that subsequent lo the delivery of 
Ihe articles F 

Serj. Dofy. Yes. 

Q. This question arose upon bis presenting 
the 13 articles lo ihe governor f — A. Upon ih* 
whole uf his cuoduct. 

But that was alter he presented the articles f 

What did he say to Ihal?— He said nothing. 
I desired him lo make some kind of answer, 
Ihal 1 might tell Ihe govenior. Hisanswerat 
last by eklnrtioD was, that if 1 would give him 
a quarter of an hour, be would go and come 
back with an answer. 

Ileing cnnfuundeil at the question at first, and 
giving no answer for some tinie, at length be 
said that? — lie did nol know which he wanted 
nor what he wanted. He gave no answer at 
last, but Doty asked that he micht bate n qoar- 
let of nn hour. I told bim that he was not 
cniiiined loaquarier of nn hour ; bulil being 
theu between lO and 1 1 o'cluck, I behered that 
they would be so attentive to him, that he 
might call again at t9 o'clock if he pleased. 
He came back again wiibin the lime, and gaf* 
noiicc that he meant a civil aclion- 

Serj. G'ynn. I would not interrupt Ihis CTi- 
dence, as it does not spprar to be ul great con- 
sequence lo na; but I submit 10 your lurdship, 
whether this is properly evidence, Ihe answec 
being conieyeil lUrougn aa interiiretci f and 



1S3] 



U GEORGE IIL 



Action Jar Fake Ifaprisonmeni'^ 



[1S4 



whether the ioterpreler ihoold not be produced, 
who knows what answers were mea ? 

Mr. Lee. We are now to take the answer 
from a man that does not know what the ques- 
tions were, in a lang^oage the witness does not 
understand, and consequently cannot report if 
there were any, or what answers gfifen ; where- 
as there is a man li? ing in the world who could 
report the answers that were gi? en. I should 
not object to it, if that ffenthteum could himself 
understand the answers that were given. 

Mr. Just. Gould, 1 think it is very clearly 
tMifficient evidence. 

Mr. Peckhom. The interpreter was appoint- 
ed by the goyemor, or by bis order, tborefore 
we caiuottell whe^er tliat interpreter gave 
the fair and true constructions of the conver- 
sation which pasted between Mr. Fabrigas and 
Mr. Wright; but from the person appuiating 
him, we have reason to apprehend ihe contrary. 

CaurL First, it is very dear, from what Mr. 
Wright says, and I sup|iose nobody will doubt 
from the subsequent action, but that this in- 
terpreter very fairly and rightly interpreted, 
that this roan desired to have a quarter of an 
hoar to consider of it : that is clear. He has 
two hours given him. He comes back again, 
and then the same interpreter officiates. TiMact 
wrovea that lie had ezpUuned the first very clear- 
ly, because he went away in consequence of it. 

Wright, The assesseur criminal talks as good 
English as aay gentleman in court, and he, 
whenever there was the least mistake or.con- 
liiBion of sound or words, set it right instant- 
ly. He returned again and said he meant a 
civil action. 

How long time do you think he was absent f 
•—Within two hours, probably an hour, Ihe 
assesseurs both of them walked out and came 
in agfain. The commissioners not finding Mr. 
Fabrigas would attend them, were desired by 
Ihe general to send him an answer in writing tu 
■ix questions. 

W hen was this? — Subsequent to his saying 
1m would proceed by civil action. 

I suppose then that meeting broke up? — 
Yes. The governor consented that he might 
have a civil action agamst hioi. 1 repotted 
il to the governor. 

Did you tell him of that ?— 1 neter saw him 
afWrwards, but the judges present heard him 
any he meant a civil action. They told him 
they would admit it. 

m.Feckkam. Did you bear that?— J. Yes, 
I did. 1 was to signify to him that Ihe governor 
mted lo his having a civil action, if he 
■eit. 

And was il signified to him ? — Yes, it was. 

You say he did not proceed by a civil action, 
fed therefore six questions were proposed lo 
Mm r — ^The assesseur civil canse to the go- 
^^^^^9 and informed him this mau did not pro- 
eivil aotiou : then Ihe governor sent 
»Mlahira. 
iMf i^cr wan it thai they were sent 
'~^I oaMOt ifceUeat. 

It^L Htti digr r— N» ; it Blithe 




three or four days. The ^neral sent for his 
own information six questions, relative to Ihe 
conduct complained of, of the mustastapb, 
for the opinion of the chief justice civil, whe- 
ther the mustastapb had or not exceeded his 
commission. The questions are in court, and 
the answers. 

Is there any date to these six questions ? — 
The mustastapb of St. Phillip's hearing this 
great confusion, in which he was the great 
person complained of, spontaneously sent np 
an attestation, or rather a desire, of many of 
the inbabitaolB of thearraval of St. Phillip's, to 
request the continuance of the old regulations, 
and that the alterations proposed by Mr. Fabri- 
gas might not be made. That was signed hj 
a great number of them, and was as mnch 
the object of conversalioo there, as any thing 
ever was. 

Was any order made upon that, or what was 
done ?— On Sunday the 8tb of September, Ihe 
governor having first aiiked Dr. Oliver's leaver 
a very considerable merchant in the town, a 
doctor of laws, and the chief justice civil, he 
gave them a commission to go the next morn- 
ing, the Sunday, to the arraval of St. Phillip's, 
to a country-house the governor has Ihere^ 
that is called Stanhope's Tower, telling them he 
would give directions to all the people thatdeaK 
in wine, that they should come before them se- 
parately to be examined, and give their oni- 
nions, and whether they chose the new resolu- 
tions, or to adhere to the old rule. 

What do you mean by asking Dr. Oliver's 
permission? — He was no officer. For them 
to say whether they chose the new institution 
of general Johnston, or whether they chose ib# 
general sale of wine as every body pleased. A 
great many of them did appear the next room- 
ing ; I suppose all : 1 understood at least all that 
clK»se to come. 

Whst was done ?— They re|iorted to the go^ 
vernor, that 93 were for the then practicn^ 
(that is, general Johnston's institutions) 41 
were for the old regulations, sod 6 appeared 
to be indifferent, and 4 wanted some alterations 
of their own. 

Which were the old ones?— They never 
were in practice in the arraval of St. Phillip*a ; 
but, upon all the enquir}-, they could find Ihat 
tlie king's regulation subsisted about six 
months, and made great confusion, but that 
Ihe regulation of 1752 never obtained at all is 
the arraval of St. Phillip's. 

When was this reported, and dated P— 
The 8th of September ; tbat was on a Sundaj. 

What followed? Was this reported to the 
governor f — Yes ; but the governor waa wdl 
mfbrmed of what had passed, on the Sunday, 
Mr. Fabrigas came on the Monday rooming 
with a new memorial, complaioing'tliat it was 
Sunday; and he protested against what waa 
done, and Ihat Dr. Oliver, and the chief 
justice civil, had used threats and mena ce n l» 
thnpeoplt. 

Then the next memorial I have in my hand 
te Dr. Blvhidal, and Dr. OKm^ r— Tb g^ 



M5J 



I^brigoi V. MoHyn. 

was to cxecediogly cautioat in erevy 
lliior» whether of consequence or not, upon this 
BOMeoMca] meoiorial, that be submilled every 
Inaftinn to the people of the island. He sent 
this report to Dr. Markadal and to Dr. Oliver, 
fbr them to answer. They answered it on 
tklOth. 

What ibUowed the next day after that?— 
IiMl it was the same day Fabrigas came for 
as soswer, the lOtb, which was Tuesday. He 
CHW Ui me to desire an answer to his memo- 
lisl about the Sunday aflair. I was not at 
haiae. He em|uired then for the grovemor's 
ai4*de-camp, and gave him the memorial. 

Hare is another of the 10th of September, of 
Dr. Piaiicisco Segui, and Dr. Markadal's. — 
FiaaeisoD Scgui is the advocate. 

That was an opinion of their's, as the law- 
j»s ofthe island ? — I fancy that accompanied 
tha answer to the articles ; I cannot be positive 
tadslci. Retnminff home, 1 met Mr. Antonio 
Fahrufas immediately after he had l>een with 
the governor's aid-de-camp ; I think the 10th. 
1 ralbcr avoiiled having any thing to say to 
him: I bad had so much, I was quite satisfied. 
Bs ramr to nse. I called Segui, a priest, and 
gst John Vedall, who served for an interpreter, 

~ who happened to be in the street, almost 
the governor's wall. I desired Mr. Pa- 
in the most civil manner I couki, hav- 
MOaae no fifty times before, to say what he 
«iihed or wanted. If he would only point out 
iihat be wtabed, it ahould be done : I would 
viotake to answer, the governor meant to do 
iij thin^ that he wanted ; but that he had 
in such a manner hitherhi, that nobody 
how to please him. Mr. Vedall, who 
natter, as every body in the island 
with me in desiring him to go home 
his family affairs. All his answer to 
■e was, ooflsplaining of the enquiry being on a 
fiasdrf . I told him that it could not be altered. 
JidM vedall joined with me in desiring him to 
gs heoae, and not bring mischief upon himself. 
Ma Vedall lold me, ne said he would come 
the next day with one hundred and fifty 
1 think it was under bis interpreta- 
thengh I had the priest there some part 
afthetiaaa. 

Q. Jrvm <Ad Jury. Was it armed men.^— 
i. Bio, DO. 

What did he say ?-- -He would come with 
mt hoodred and fifty men to back the petition, 
w whatever the word was, with a petition and 
•ae hondred and fif\y men, or with a petition 
kaeked hy one hundred and fifty men. 

Q. yVoei the Jury, What do yon apprehend 
he aaeant by that expression ? — A, Upon my 
aavd I catehed at the expression, and desired 
John Vedall to desire him to desist from such 
aa idea ; which John Vedall did, and treated it 
as Isaghiog : but if I understood any thing by 
ii« it waa not to como with guas, for they had 
aa such thing, but to come as a mob. 

Q. from the Jury. Did .he speak Spanish or 
Eaghsh at the time?— J. Miaorquin. 

What was tht •Char iotarpretar's nama?— 



A. D. 1775. [188 

Segni, a priest, one of the Spanish priests : bw 
was there the first part of the time, and Jobs 
Vedall the hitter part. 

Court, And then in consequence of that, yon 
thought he meant a mob ? — A. Yes ; or I should 
not have got John Vedall to enter into a k>ng 
conversation to desire him to desist 

Q. What did he say upon that?— il. H« 
went on, J believe, repeating the same again. 
1 believe the conversation was closed upon that. 

Q. from the Jury, Has Allimuado, by virtua- 
of his office of mustastaph, any particular li- 
mited quantity of wine to sell P 

Serjeant Dairy. When the papers are read, 
that will be particularly spoken to. 

Q. You informed the governor of what wav 
said about 150 men?-»il. Yes. 

Whatpaased after that?— I think on Wed»> 
nesday, the governor sent his compliments t^ 
most ofthe officers of tlie corpa^ desiring thi^ 
would come to him the next morning, to ae*^ 
the honour that was to be done to him. 

Did they meet there?— There were most of 
them there. Every one, 1 believe, expected 
a full meeting of the inhabitanta of St. PhiU 
lip's. 

What meeting was that that waa expected T 
--Those people Fabrigaa had spoke of. They 
waited aome time, and at last four people came, 
(I think all four were shoe- makers) and they 
brought a memorial. I believe a gentleman ia 
in court that received it from their hands. He 
took the memorial of them, read it, and I thinle 
colonel Mackellar, afler reading it, told them 
that they were to go about their business, to 
go home peaceably, and liebave themselves aa 
good subjects to his majesty ought to do. I 
think there waa a conversation preceding, to 
shew they did not know the contents of that 
memorial they were delivering, which I be- 
lieve will, by-and-by, come out. The general 
asked the opinion of the general officers, as 
well as I recollect, whether they all knew that 
this waa founded by Fabrigas's proceeding? 
and the next day he asked them wha:t they un- 
derstood by it? They said they understood that 
the man was to be ranished the islamii 

You were not there when they ^pire their 
opinions, I believe ?•*-! cannot tell. 

And so, in consequence of it, he was ba- 
nished the island ?-^The general ordcsred him, 
in consequence of that, to be taken up that 
night. He could not be found. The general- 
sent to the chief justice civil, and tlie chief 
justice criminal, and the advocate fiscal, to 
Icnow what he should do in that case ; tliat he 
thought him not safe to be left at larg^ in tha^ 
island. They told him— - 

Q. from mt, Serjeant Glynn, Were ycai pre-* 
sent, or do you speak from information ?•— il. I 
am speaking of what they told me: il waa' 
sent by the governor to ask their opinion. This 
is their answer. 

Q. What were you to ask of themf— i(. Tha 
governor's power upon this oocasion* l?lirf' 
said, the govemor'a power extended over th^* 
man, and ha might do* with him whal*lM« 



127] 



14 GEORGE IIL 



AMcmJot FaUe Impruonment-^ 



[128. 



pleased ; and if he chose to banish him, thej 
would answer for it with their ears. 

These f^tlemen are themselves Minor- 
quins?— Yes; and hoth talk very good Eng- 
lish. 

Cowt. This answer you carried back tothp ge- 
neral f'—A. Yes ; and they told it him viva voce. 
The chief justice ciril, upon my having many 
doubts about it myself, and saying that it was 
not quite the idea of Englishmen, and that we 
had not any such law in England, said it over 
and over again. He gave me a piece of paper 
with his own hand, which he called a quota- 
tion from the law of that land, a royal order in 
the year 1500 and something else ; a positive 
order from the then kin^ of Spain, wherein the 
king says, that the opinion uf the assesseur 
criminal is consultative only ; that the governor 
may be guided or not by it, as he pleased ; but 
not so in civil cases. Although the governor 
tt absolute in regard to the politics and oecono- 
tnical government of the island, it is not im- 
proper, but very prudent to take the advice of 
the assesseur criminal, as has been recom- 
mended by the kin? of Spain to the governor ; 
although it must be observed, that in these 
cases uie assesseur only git^es his advice, and 
consequently it is in the governor whether he 
will follow it or not, and is not decisive, as in 
civil cases. This man being a Minorquin, the 
governor wanted to know bow he ahould ap- 
prehend him, no officer of his knowing him. 
The assesseur criminal said, that the officer 
that attended- him as tipstaff was an old fellow. 
Says the other, ** You shall have.mine, who ia 
A young able man :" and he was apprehended 
by the tipstaff who walks before the assesMur 
civil every day of his life when he goes in or 
out of court. 

How lon^ was he kept in prison?-— 1 do not 
know ; the books will shew it. 

Was he put in the common and usual prison ? 
-—There is no other prison in the arraval of St. 
Phillip's, but where ne was put, I believe. 

Why do they call it N"" 1 ?— I do not know. 

Court* It has been particularly described to 
me and to the jury as the prison where capital 
offenders are confined, and is called N^ 1 : why 
is it called N** 1, if there is not some other pri- 
son ? — A, There are gentlemen better informed 
of the castle of St. Phillip's than T am. I be- 
Here there is no other prison. That may be 
M^ 1 room in the prison. 

Cross-examined by Seij. Glifnn. 

I think you told us your residence in Mi- 
norca was about a year and a half: who was 
ffovernor during the time of your residence ?— 
Upon our arrival there, the lieutenant-governor 
commanded ; and upon our arrival the com- 
mand devolved upon general Mostyn. 

Then the command immediately devolved 
upon him ? — Within two days, or so. 

And the other two days Mr. Johnston, as his 
liealBpant, commanded ? — 1 believe the general 
cune there on Monday, and took the command 
Ml Thiuiday. Beporti iind« general John« 



aton*s siirnsture that the governor was arrived - 
made it necessary. 

Tlien your experience of the laws of Mi- 
norca has been cullectHl in that residence?— 
That is all 1 know uf them in the world. 

Which lias been during the government of 
governor Mostyn or his lieutenant. Now you 
told us, that the proclamation of the governor, 
with regard to tbe criminal court, was the' 
same as a law ; and you distioifuish the court 
of property, which regards meum and tuuMf ' 
from it? — Quite. 

Do you mean that, without any limitation 
whatsoever? Suppose the governor intended to 
inflict a capital punishment upon any offender, 
most that law be obeyed by the judges ?— I 
should imagine it would, it is only my ima- 
gination, observe. 

I think you were so kind before as to tiill ns, 
that thougn that proclamation came out but the 
morning before, it would be equally obligatory 
upon the courts of justice?— I understand ao. 

Now this roustastaph, Allimnndo, sells wine, 
does be not? — He makes wine of his own 
vineyards, and buvs grapes of other people t» 
make wine, and aells it in the arraval. He doeg 
not sell it retaiL 

That was a regulatM>n of goremor John* 
ston's?— I believe so. 

I would ask you, whether AUimundo bad 
not a lot himself to sell his wine, and exdode 
every other person ? — I think, aa the papera 
are upon the table, they will sp^ for them* 
selves. I think Allimnndo for bis own vindi- 
cation urges 

But I aak you, of yonr own knowledge, 
whether the lot did not fall upon him .'—I be* 
lieve he did not draw any lot at all ; it is not 
the cuatom for the mustastaph to draw lots. 

You think he did not draw lots ?— No. 

You did not understand the Minorquin Inn* 
gnage?— No. 

It is a mixture of Italian and Spanish ?— Yes, 
I believe so, and a kind of bad Spanish. 

You have told us of the two interpreters : I 
think you don't recollect exactly the worda the 
laat interpreter said? You thinly father Segni 
was gone before Fabrigas said, «« I will oome 
with a petition with 150 men, or badced bj 
150 men ?*' — I cannot be sure ; I think it waa 
Vedall ; and the more so, from his joining with 
me in endeavouring to persuade bun from hie 
intention. 

1 think you communicated this matter to th« 
governor ? — Yes. 

Did you carry Vedall with you ? — No. 

Did you make any enquiry afWr the 150 
people?— No. 

You yourself were the person that reported 
the conversation to theffovernor? — Yea. 

What time did you write this paper?— 1 
fancy the memorandums of that paper wera 
wrote, I ahonki think, 1 could not swear to it 
ao particulariy, I should think, within an hour 
of every one of these transactions happening* 

Then I take it for grantml, that this ia a 
Mtkfol espy of a fiuthfiu coUcGlioD, Mceniinc 



W] 



Fabrigas v. Mostyn. 



A. D. 177S. 



[ISO 



li your iMDMiry, within an hoar aod half after 
neh tnwMction f — It waa not pat dowQ for 
theMblae eye, but to refresh my own mind. 

Tiio yoa did nol put down any thin^f which 
^4id not believe to be true?— No, I tfaoold 
Mt4cam of inch a tbing^. 

Jiaw long after did yoo communicate to the 
pM O i what Fabrif^ had aaid? — I never 
wi laag e r between communicating to Fabrigas 
wkat the nfovernor said, aod to the governor 
vbat Fabrigas aaid, than going from this wall 
li that ; uokaa the governor was not arrived 
kibe morning, and I waited bis return. 

Tkn you coold make no mistake of what 
Fabrigas bad said. You communicated to the 
p i u so t what yon put down : vou are sure 
jm are wider no mistake on tbalheadf— I 
bsw 1 iniKht mistake. 

Bat I ilo not ask you about any mis-spelling 
m ■Msdat^s, but the effect of the conversation ? 
•-Ufoo my soul, I believe so. 

Snj. Giynn. Then, Sir, I will read it.— 
" The same day Mr. Fabrigas came for an an- 
iwv to bis petition, and told the governor's 
■Mtlsiy bo aboold come the nest day with a 
palilioa of people concerned m grapes and 
«Ma. whicb they wiU sign and come with 
AssbmIvco, to the number of 150." 

Hog. Gfyun. I desire it may be read ; but I 
Wii*t aafc Mr. Wright any more qdestions.— 
(kia mad bv the Ameiate.) 

Mr. Petikmm. Pray read the nest pava* 





<«On Wednesday the 11th the 
r, having the field offioera in and near 
with him, received a memorial from 
^gmtd' by persons of St 

^'s, deMriugthe old praetice might be 
i: lo which he answered, that tM four 
ikould return home, and behave them- 
es lenod and peaosable subjects to his 
ttupsly ought to do." 

Mr. Lee. Your lordship will give me leave 
liash npoB this paragraph a question of Mr. 
Wi^gbt. You say tl^re were four men came 
oib a Biemorial signed by persons of 

ftillip'a, desiring the oki praetice might be 
]: did you see that memorial ? — A. 1 




OsB yoa take upon yoo to affirm by what 
~ er it was signed?—! shall apeak merely 
■aaaory, for ihey were all scratches : 1 
iiaot believe there were ten names legible to it. 

What number of signatures were there upon 
te poper ?— I have already said 1 really and 
ipoo my word do not know. 

Were there nearer 150 or 100 ? — It is mere- 
ly a matter of memory ; there were from 41 
li 4r, I believe. 

Now can you take upon you to affirm, that 
Ikffie were not more peopje signed this me- 
■Bfial than had signed the memorial for the 
aev ioslitoiion P 

Csarl. 1 understand it is in the report. 
Then h a report of the assesseur civil and 
Or. Otivcr, that 99 were for governor John- 
Ma'a institolisD, and 41 for the okl reguht- 

%ouxx. 



tuHi ; 6 appeared to be indifferent, and 4 want- 
ed some alterations of their own. 

Q> There were 90 odd for the new institU'* 
tion?— il. My memorandum says so. 

Can you tell me whether there were or wera 
not imon this memorial which was brought by 
the four men, the signatures or requests of 
more or less than that number for the oM in* 
stitution?— I have already said ten times, that 
I cannot take upon me to ascertain ihe nnmbof 
of signatures upon this last memorial ; but I 
do know Allimundo proved many of them to 
be false. 

You know that is not an answer to my ques* 
tion. I did not ask yau what were the number 
of men that signed this rDemorial : I don't meaa 
you abould answer with that precision, whether 
46, 50, or 1 JM) : but my question is, whether 
you can take upon you to affirm atthia distanoa 
of time, that the memorial whiah waa brought 
by four men was signed b;^ more or less thaa 
90 ? — I can aay no more : if I knew, I would 
tell you. I looked at the memorial, it was foU 
of crosses; and what makes me think it waa 
between forty and fifty was, beoaiise I connt* 
ed it. 

Then you did count itP— -I did begin im 
count it. 

Did you proceed to count them through ?•*-■ 
What signifies answering that ? 

Because I expect an answer. What signi^ 
fies counting numbers, and not going through 
it?— I wish your head was capaUe of retaining 
every little circumstance of no conaequencew 

Court. The gentleman meana, whether yoa 
have now snob a certain recollection of the 
number of signatures upon that paper aa to say, 
whether there were more or less than 90 P-^ 
A. I don't recollect any thing but one ; that is^ 
that I began counting; any other circum* 
stances that shall lead me to the number, who* 
ther I left off at 40 or what. 

We understand that a considerable majoritj 
signed this very memorial — we want to Know 
that fact? — Every attention was employed, 
every argument UMd, and every posnible meana 
was taken, for finding out the true sense of tha 
inhabitants; and amidst the various methtNia 
taken, there did not appear, wlien enquired 
into fairly and honestly, to be one in ten of all 
the names that were presented to the general 
in support of Fabrigas's complaint. Mr. Alli- 
mundo was supposed to be a man that would 
produce the truth. The fort-mi\|or was seat to 
examine with him. 

Mr. Lte. The seijeant will tell yon, that ia 
no evidence at all. Let me ask you, when this 
particular paper was copied that 1 have in my 
band ? — A, As soon as 1 was at leisure to A 
it myself. 

\V hen was this particular paper copied ? — I 
have said balf*a-dozeu times, as soon as I had 
time to put all the bits of paper together; in« 
stantly. 

Was this paper copied from a memorial in 
which this number is stated blank as it is here, 
or have yoa that original nemorial by youT 

K 



131] 



14 GEORGE m. 



Action/or Fake Imprutmment^^ 



[ISS 



In whose powession was that memorial f— Not 
in mine. 

To whom was it gi? en P— I think to colonel 
Mackellar. 

He was an officer of the g^remor's? — Com- 
mander in chief o£ the corps of engineers. 

So he had the possession of that memorial, 
the contents of which you have stated by blank 
persons ? — All I can recollect of that particular 
memorial that yoa ipeak to is this, that four 
people brought it; it is a hard thing to be 
pinned down to such a thing as that. The 
mustastaph himself was present. I think col. 
Mackellar was talking of this memorial: I 
think I had it out of his hand, and was going 
to read it, and connt it. I beliere he or Alli- 
mundo took it ; and I beliere Ailimundo took it 
home to confute many of the names, which he 
did afterwards. 

And that you conceif e to be the reason whj 
you did not get through them, why you did 
not proceed to tell the number ? — I should be- 
lieve so, upon my word and honour. 

You do still take upou you to affirm that 
there was nothing like the number in this, that 
there were for the other regulation? — I did not 
Attempt to sa^ such a thing. 

Upon the inspection you then had, you can- 
not take upon you to affirm that f— I have told 
ou all 1 know of it: I fancy there was much 



you 
Jess 



Serj. Burland, You were asked about the 
lieut. guf emor being general Mostyn's lieut. 
governor ; I believe Uie governor does not ap- 
point his own lieut. governor? — A» No. 

I believe those regulations made by general 
Johnston were some years before general Mos- 
tyu was governor? — ^The date willshew it. 

I suppose about 1759 ? — O no ; since that. 

f meant 1768 ? — I believe prior to the exe- 
cotioo of the office of mustastaph by Mr. Aili- 
mundo. 

Prior to the time Mr. Mostyn was made go- 
vernor ? — ^Yes. 

You were asked a good deal about that me- 
morial that bad these crosses upon it : you said 
Ailimundo took it away with him in order to 
confu te - I know he had it ; 1 don't know 

whether he took it away. 

Had the governor any reason to apprehend 
that those names at the bottom of that memo- 
rial were not put there by the persons ?-» Yes, 
he had reason to believe it. 

Did he enquire into it ? — Yes. 

What was the result of his enquiry ? — The 
report made to him was, that a certain number 
of their names were absolutely forged ; that 
the hands of others were obtained under a sup- 
position that the memorial related to oil. 

Court, You said just now, that upon a strict 
enquiry there did not appear above one in ten ; 
did you yourself make enquiry of what was the 
general sense of the inhabitants?— il. To every 
body, and with every body that could possibly 
give me information; and from the general 
conversatioD I had, it did not appear to me thai 
there waa^ I might say one in twaoly that erer 



wished it ; and it wonid be worth your lord-' 
ship's attentkin to see what these regulationf 
are. 

Court. Then by the generars direction yon 
made the strictest enquiry you possibly could; 
to see what the sense of the people might be. 
and did not find above one in ten that wished 
for this alteration that Fabrigas desired? — A. I^ 
according to my own opinion, give a great al- 
lowance when I say that. 

Did you inform the governor of this ? — ^When 
I use the word report, I don't mean an idl« 
story picked up from one or other, but a mili- 
tary term, an answer to the enquiries made by 
the governor. 

Then the intelligence you conveyed to th« 
general was, that the opinion of by far th* 
greater majority was against this Fabrigaa's 
desire? — All almost: I save my oath by lay- 
ing almost, but there was almost all. 

John Fleydel sworn. 
Examined by Seij. Walker. 

Q. Yoo were aid-de-camp to general Mottyq, 
I believe ?— il. Yes. 

Upon the 9th of September 177 1« give Ui 
account of what you know of this afiair when^ 
Fabrigas came to the governor's? — He asked 
me to see the governor in the morning. I 
told him he could not then see the go- 
vernor, but I was aid-decamp to the go- 
vernor, and any ftvour or any thing he bad 
for the governor I was ready to receive. 
Afler a litde hesitation be gave me a paper, a 
memorial : he desired at the same time I woidd 
inform the governor that he should come the 
next day for an answer; he said he ahouki 
come accompanied by 300 or S50 of the inha^ 
bitantsofStPhiUip's. 

Two hundred or 250?— 1 don't ezactlj ro- 
member the words. 

Was that all the conrersation you had with 
him? — Yes. I immediately acquainted the 
governor with this message: 1 read the me- 
morial to the governor immediately, and in- 
formed the gotemor of what he had said te 
me. I think it was that day the governor seel 
to the field-officers of the garrison and to the 
commanding officers of the corps, to meet at 
his house the next day, in order that they 
might be witnesses of the manner in which he 
should receive this Fabrigas and the |ieople be 
mentioned to come along with him. Onlj 
four men came the next day, and brought e 
memorial. 

Were any of the commanding officers there f 
—Yes $ I think all the commanding offioere 
were there when these men came. 

What were the sense of the commanding 
officers? — I think the sense of the commanC 
ing officers was, that, in abort, this man should 
be taken up. 

Why would they take him up ? — As a troa« 
blesome, seditious, and dangerous person in the 
island. The governor mentioned to me, that 
he had eonanlted the chief Mioorquin judges off 



159) 



Fahrigat «• MoHjfn* 



A. D. 177S. 



[184 



Ike idiBd. I know he bad coDsolted them, 
wfcieb eorroborated the opinion of the field- 
ifiofln tbttt were there attending. 

Who 18 this Mr. Fabrigas ? — An inhabitant 
if %m am?al of 8t. Phillip's. 

Of that district that does not belong to the 
far where there are jurats f— Yes, and is close 
Iftht glacis of the fort 

What, has he there anj property P— Hw 
Hhcr is alire ; he takes care of his father's 
fiaeyards, I belieTe. That is all the property 



That is, the liberty of working in his father's 
lismnl ? — 1 believe so. 

What sort of a character does he bear there? 
—He is generally supposed to be a seditious, 
IvkdeBt man ; that is the general character 
•f the nan. General Mostyn is very far from 
bng a tyrannical, overhearing man. I had 
Mre opportunity of knowing him ; I served 
■ wnwK a tel y under him the greatest part of the 
hit war. 

A man of temper and humanity P— Tes, 
toy much so. 

Cross-examined by Mr. Lee* 

0- Yoo were aid-de-camp to general Mos* 
^f— X Yes. 

Do 3roa remember Fabrigas declaring that 
Kit ay he would come accompanied with 
fiOscn?— Yes. 

Do yoa know whether there had not been a 
itfof^ anaongst the inhabitants, and upon 
ihdi aide there was a majority, whether for 
is new or old regulationsP-^l cannot tell. 

What were these S50 men to come for P — I 
lagined it was to give weight to the petition. 

Ut yoo eonceif e that the object of Mr. Fa- 
knswas to bring 200 or 250 men that were 
if Mspinion to give weight to his request?— 

fly learned friend tboupfbt he meant to at- 
tek the gmrnsoo of St. Pbinip's. You did not 
iwiibeud he meant to take the garrison of St. 
Kffip'e, that stood out against the whole force 
tf France for a considerable time, and, by the 
|m might bare stood out a great while longer ? 
Tie Aa not understand that be was to come 
Hike bead of these armed peasants P— Not of 

C0mrt. You apprehend he was to bring these 
aaaale lo shew there were so many |)eople to 
bcK kia petition? — A, No; I apprehend he 
a nioh that would breed confusion in the 



Whether you understood that he meant to 
ig tbese 200 people to occasion and raise a 
iialt, or whether he meant to bring so many 

rple Co shew they fa? oured his petition P — 
oaany people together in a garrison would 
hned eoofusion. 

Cmtri. What did you understand? — A, I 
imOy thought be meant to g^f e weight to his 



HmI yen heard at the time that Fabrigas 
ipske m bringioj; 200 or 250 of his friends — 
M joo board Of aj»y dispute, whether there 



were more of one opinion, or more of the other ; 
or had it been asserted that the people in ge- 
neral of the arraral of St. Phillip's were con- 
senting to the new regulations ? — I think the 
people in general wish«l to bare the old regu- 
lation contmued ; I took it in that light. 

What do vou mean by the old custom ? the 
custom Fabrigas contended for, under the 
order of council in 1752 P — Yes. 

I dare say the Serjeant will not acknowledge 
that you mean that 

Serj. Davy. No more he does. 

Court. Do you mean by the oM custom, 
that which was aettled by governor Johnston f 
-—A. I do ; it was some years before general 
Mostyn came to the island. 

Court, Or do you mean a custom that was 
before the order of 1752 ? — A. 1 do not. 

Mr. Lee, Then am I to understand you, that 
you think the majority of people were a^nst 
the opinion of Mr. Fabrigas P — A, That is my 
opinion. 

Do you recollect that having been alledged 
to governor Mostyn as the general opinion P— 
Yes. 

Do vou recollect that having been alledged 
to Fabrigas, that the popular opinion was 
against him ? — I don't exactly reeolWot. 

Don't you recollect that the very end he 
had in view, and professed to have in view, in 
bringing a number of his friends and a num- 
ber of people concerned in vineyards to present 
this memorial, was for the purpose of convinc- 
ing the general that a majority of people were 
with him, and not against himP — I suppose he 
must mean so. 

Did not you understand him so at that time, 
when he talked of bringing a memorial, and 
coming accompanied by 200 or 250 men ? Did 
not you understand him to mean that such a 
number of people that were concerned in the 
wine trade ana in the produce of vineyards 
would come and signify that to be their inten- 
tion P— Certainly he meant so. 

Were you present when the four men, not 
the 200 or 250, came with the memorial sigu- 
ed by others P— I was. 

Was that memorial ever in your hands P — I 
don't remember ever having it in my hands. I 
saw it in colonel Mackellar's hand, the chief 
engineer, when he questioned them about it ; 
and these very people seemed shocked when 
he explained to them the tenor of the memorial. 
It was wrote in English, and they seemed not 
to understand the import of it. 

Tliey were Minorquins?*-- Yes. 

Can you tell me what number of signatures 
were in that memorial? — 1 cannot guess at it: 
I should think much about 50 or 60, but can- 
not guess. 

You did not count them at all ? — No. 

Robert Hudson swnrn. 
Examined by Mr. Buller. 

You were, 1 belisvs, fort- adjutant at this 
time?— Yes. 



1S5J 



14 GEORGE m. 



Action Jbr Fake Jmpritonment'— 



[138 



Was any applicttioD made to yoa by the 
ciril maKittratet ? — Yea; the mustaataph of 
Sc. Phillip'v came to me oo the lOib or lltb of 
8epteml)ir, aad told me, upon readiaj; aome 
oniera of general Mogtyn, ibat Fabrigaa aaid 
he would come with a mob, and aaid tbey were 
Bull and Yoidy and tbey would aee better days 
to* morrow. 

Air. Peckham, You need not mention what 
the mustaataph told you ; that is not regular. 

Cimn)>eifor Defendant. That ia the regular 
metbo<l there. 

Mr. Peckham, It may be regular there, but 
it is f ery irregular here, and cannot be admitted 
aa e? idence* 

Mr. Just. Gould. I ahould be glad to know 
bow the go? ernor can he apprised of any dan- 
^r, unless it is by ane or other of his officers 
wfbrmiiig him there is likely to be such and 
auch a thing happen ? I suppose he gires the 
go? ernor an account of what he has heard, then 
thegoTeruor makea an enquiry into the matter. 

Mr. Peckham, Hearsay is no eridence. 
Besides, the mustutaph ia an interested and a 
prejudiced person ; at least he appeara ao 
throuifbout the different parte of this cause. 
Now can what he baa said in Minorca to this 
witness be admitted as evidence here? The 
nustaataph is liring; why don't they produce 
him ? If they had brought him here, we should 
have his e? idence on oath, and could croaa-eza- 
mine him to the facta. 

Cauri. We do not take it for granted that it 
ia really ao ; only that this gentleman, bearing 
of this, tell« the gofernor. 

Mr. Lee, It is no OTidence of the fact: if 
you mean it only aa a report, we do not object 
to it. — A. The mustaataph toM me, that upon 
ffif ing out some orders to the inbabitanta of 8t. 
Phillip's, some orders relative to the aelling 
wine in St. Phillip's, he came with a mob, and 
aaid, >« It is nuH and void, and we will see 
better things to-morrow." He further said, 
Ibat if there were not some immediate measures 
taken with this Fabrigas, he was afraid of the 
€onsf>quenoe, the rising of the people. 

This was enough, f should think, to give an 
alarm. Did you acquaint the governor of it ?— 
Yes, 1 did. 

What was done after that ? Did the gover- 
nor call you together?— I was not pnvy to 
what the giif ernor did in cooaequence of this; 
iny pott was two miles off. 

Omrl. Gentlemen of the jury, then all this 
comes to nothing ; be pruves no Vact^- 

8*0 .-^^"vy. No: this is to introiioce the 
Bcxt e« idence, of the goTemor summoning tlie 
•fficera together. 

You knew this Fabrigas ; what wu his be> 
havioiir iu the island .*— fikiremely troublesome, 
wmya repreainted to me : there never was anv 
•Igecliuu m governor Johnaton'a regulation tdl 
hy thia nan. Governor Jobnstoa did this, be- 
Ihe wint ttaed loiaraaoar, by every body 
•■•wadtoacU wiMataiinM: theydi^ 




in order that no more might be opened at % 
time than could be aold before it waa sour. 

Cotir^ I chose to bear the reaaon and ftnui- 
dation of the reguktion. 

Q. What is the consequence of that aoaouf 
the soldiers P—il. Diaovdera of diifer«nt kintK 
fluxes and tbe like. 

Court. There bdng no celbura, I anppon 
they could only buy from hand to mouth.-*il. 
In general they are open aheda; tbey nra 
hardly better than abeda. 

a Did that produce any disagreemenii 
among the aellera tbemaelvea, that tl^ under* 
aold ^ich other ? — A. Some poor people, that 
bad but little wine, were almoat atarved: the 
aeveral yeara after governor Johnaloo made this 
regulation, there never was known to be neaali 
aour. 

Court. I waa rather apprehenaive that thin 
might enhance the price. — A. Tbe price was 
never raiaed upon that account. 

Mr. BuUer. There waa an afforationjpric*. 

Mr. Lee. Yea ; but thia waa a libarty of 
aellin^ b«low it— il. The town of fit. Philiip*a 
was divided into four diviaiona, and four peopin 
uacd to sell at a time. 

Colonel Patrick Mackellar swon. 
Examined by Seijeant Daigf. 



Were you at the garriaon in 
1771?— Yes. 

Did ywi know Mr. Fabrigaa belbre the tune 
of his being apprehended P—-1 have known him 
by character a great white ; they called him 
RedToney. 

Yoa happened to aay yon knew him by chn* 
racter ; what wu the cnaracler be bore P— A 
very bad one ever since I have been in lh« 
iatand, and for aome time before. 

Of what sort? — He was sedituNis, troohin- 
aome; a drinking, gambling fellow; aat upoC 
nigbta with low-life people ; and lie kapl 
women. 

In short, he is a man of an ordinary chnrao- 
ter ? — Yes. 

But the character that I wanted <^iiAy In 
be informed about waa, concerning hia obedi- 
ence to government, whether he is a turbulent 
man ? — I hai-e had many coniplainta of him 
from two musta^taphs, when I have been com- 
manding officer of tlie garrison. 

How long have you been there? — I waa onn 
of tbe first that went there when the lalaad 
was restored after the la«t war, and had beaa 
there a good many \ears before. I went Arat 
in 1736, and left it in 1750. I ment in May 
1763, and remained then: till May laat. 

Tlien you must be prHi> well acquaintoi 
with tbe laws, and gotemmeot, and constiiutimi 
nf ibis country ?— I have a good dealof knofP« 
ledge of it, as much as a uiiliury asan eaa 
have : we cannot aiudy these things aa lawy en 
do. 

Pray is there not a district tbey call by Uw 
name of the arraval of Sl PhilMp^i f— Yea. 

Mowfiff bthatr^tii mdmd bj ~ 




yahrigas v. Mottyn. 

4BB ridi, and mrToimdcd bj water oa 

tbe fort 7— WitliiD a musket- 

!t withio tbislbeUcalleil Ihear- 

Hftal ilo YOD meBD by (tie wati, rnyalty?— 
hi wImtc Hie ^vernor bas ■ greater power 
tmrnuj where Vise; nliere lleJud|resot'lbe 
tteloMHWIinterpow their aulhurily or power, 
kHby lii« ifCrmiwioD ; ami people ol*ihe arra- 
•ri h«*B pcrticular pn>il^ge« da that account. 
IWMfei nnoot conTflie any person W ap- 

CWVK (bem, but by ihe j,'nTernur'B appro- 
B, wUbuttliearraval, 
li « MM tw in the other parts of the iiland 7 

Yon bare, I beliete, in the other parts of the 
Und, officer* called jurati ?— Ye«. 

I> Ibere aoy aiwh in the arravat 7— Ko ; tbe 
■Mluupli iithe ddIj ma^iatrate there. 

IVn tliere tt an officer irithio thia royally, 
vilbin tbia ftrraval, calieil a iDugiuiuph, who 
k tbe ovly nauHlraie there?— Yea. 

In KAhit parta nl' the islaad there ere other 
^QsiiBtea of iliffercnl namea, jurala aod so 
fcnb?— Y*i. 

WbMD ia tbe miiataslnph oflhe arraval ofSt. 
niilIifi'*appoiote<lby?--Thef;aTerDar; orcom- 
MaaritT it) chief, when there is no goTeruor. 

DaM tir dnplaeehim at his pleasure? — Yes, 

Wbu la lite office of muilBBlaph ? — He lakes 
WB of liie Heights and meaeurea of loarheta ; 
M» ■•■ ai-counl of all (be wine that is made, 
—Alt ilierNpMidilureot'lhe wiae-, andielllea 
laj IHib itianutea among the inhabitants, in 
*Mib«y oil the flrst instance, 

WW, ia that wirii rrgaril to tbe alforalion, 
*W»mtt o( the prii-e of tbe wine N--Thal is 
4Mljr idr tnaKistrates at Mahou. The ma- 
fiHMsa 'if Mahoo, as they ilo every where 
•b, «i a price upon tbe "ioe, wtiich they call 
■ iCvalioii or marbet price, aixl the artaral nf 
k Pt.Uh|t*a t« always ruleil hy rhe a(fi>ration at 
Mil— ; the niiipalrates at Halion do nnt put 
ie iipoo ii, but it is always adopted. 

'■•Toffifvrihat in point 111 fiirmsellte* 
n |irice(--There are different prices 

'Jhrrpi iwttnitKM, biil ibal in t£'i>erned tiy 

- imcFUuiialiseilaiMahnn. Mu boo is the 

-iff^ikMHctlotit, Phlllifi's. 

tk lio ■■ the prfsMi ibsl in point of form does 
iiofK ttr_Tbp niuMaaUph is the nffiier 

'1 dora, aoJbcnuly wgnifipawhgilthepriteis. 

!t* ts tb* iranipet, the niouib by which they 
.'.dnaaDtl ■hu IB the afToratioo price, he 
bria( rr«blrd ami i[nvenied by the aOura- 
M> al MabdD F— Yea ; the price that is paid at 
>*0B b always paid st 8t. Phillip's. 

What ia Ibe micral law f Are ibe WmOT' 
y^ Hose ni e'l bt tbr English or tilpaniah law, 
arabal aiirt 7 — Yhry always plead the Hjianish 
ll*«,Mil wataelllilhy Ihe irraty of Utrecht; 
ht vb^n ibn Kiigli<h liwR are conrenient fur 
(^•v, iWy pUad Uiem. 

^ thai wfakli ia ctmtenient they will picail, 
-■^ * -tar— Yet. 



iW-iwiip 
iVbi-iaUi 




A.D. 1773. [158 

Bnt which is the law that moal preTBJUF_ 
TheHttauisb law. When the island tvae given 
op, I btiliete DOthioK hi all was seitleil with r«. 
lution to them, and Iherefure we were sup- 
poseil to receire thrni upon the same Inuting 
that Ihe French bad them ; but siace that tune 
they made interest at home in restore lu ibem 
Ihe same lawa and privileges lliat Imik placa 
helbre Ibe island whs taken, that ia, Ihe Spa- 
nish laws. 

Were you there when Ibe place was lakeo br- 
ibe French f—No; I was in America. 

Piay what is the temper of the MinorquinabB 
general f Areihey welleiTected to the Eaghah 
govtrnmenl ? — Same aie very well, t believe; 
others are not ao. 

Pray do yon remember the occasion F wera 
you one of those that were invited lu meet ^a- 
vemar Itlotilyo, wiib the other gentlemen, DpOB 
Ibe occasion of being coiisuitinl about Mr. Fa- 
brigas ? — I was, once or twice. 

Had yon been arqnainled thai it was a mat- 
ter of public uot'iriely of what had bappeneil 
with regard to Pobrigai f — 1 have been at the 
presenting several memnriaU to Ibe governor. 

Did you hear of tbe report ol' what had pre- 
vailed, the general talk of ihe place? — Yea. 

What was tbe universal opinion, if there wu 
but one ? or if there were vBrions opioiDiia, 
ivbal was the opininu ol you and Ihe rest of the 
genilemen thai were called in? — The opioion 
of the other gentlemen as well us my «wii 
was, that he was a tery dangerous and trou- 
blesome man. fly his li>rii>er history, au^ 
Irom antne anecdutes of those times, it waa 
IhuUElht a very uii<iBle thing to let him be at 
liberty ; that ii would he a righl thing to lake 
him Up, and bring him l<i puniHbuienl, lest be, 
wbii was a man very likely to be prarlised 
upon, would luke other measures productive of 
mitchief. 

What was agreed npnn ? — It was in loose 
converKatJon thought bisl that be should be 
banish 1^, 

According to the practice of former timet, do 
you rememher a pruciice of Ibiit kind having 
been done ?— I have tirnnl of several ; whea 
Ihe Eniflish were in p-mi-ssinn <•( Ibe island, aa 
well ar when theSpinisrda were. 

Mr. Lit. Thix M uniting a prescriplioD.— 
A I tell ynu wbal 1 lisie hrmd 

Srrj. Glyna li io impossible that it can be 
adniiltrd: if be had kuuwn an iustaace, ba 
miff hi hate men tinned ii. 

C'i'urf. 1 1 ia nnt question, whether, according 
Io tlie eiigcucc nl ilie cose, the general might 
ioHict Ihii hamslimcni ? and another thiag, 
whether it la Ihe urdaioed law eslalilishrd id 
t Itch a case to be applied to such brhntiuur? 
Now, if you go inlu a usage ul' that kind, yan 
must prove particular facti, uoi produce ihit 

nieman to say he has heard such things : it 
not Ibllow from hence that this luigbt ba 
Ibe proper puniabment. 

8erj. Dam/. You have known general Mot- 
tyn, i believe,a great while? — A, Oolyslnce 
he becuiM goternor of Ihe ialaad. 



1S9] 



U GEORGE III. Actum for False Imprisonment^ 



[140 



T wigb to know of yoa, what is hit character 
and beha? iour ? — I aUrays beard a character of 
him aa a ffood officer, a polite, well-bred mao, 
that earned bis commaud in the genteelest 
manner. 

Is be a man of bumanitjr, or rather ferocity ? 
—I always understood bim to be a man of 
great humanity. 

Cross-examined by Mr. Txe, 

Q. You say the general opinion of the field- 
officers was asked, of which you are one? — 
iL I do not. beliefe the geoeral opinion was 
asked ; I believe it was private conversation. 

Did general Mostyn then call for your opi- 
nion, or the opinion of any other general officer, 
touching what he should do to FabrigasP — 
jifterwards we thought upon the subject. 

After the man was gone to Garthagena P — 
The same day, perhaps an hour. 

The same day you were assembled there P — 

Yes. 

The day that Fabrigas had spoken of as- 
aembling a number of bis friends together, the 
general sent to convene a body of you P — Yes. 

Court. You were a field-officer P—il. Yes. 

Did you and the other field-officers meet to- 
gether at the gjovemor's P — ^We came there by 
Eit order, by bis desire. 

Q, He proposed to you then for your opi- 
nion, what should be done with this man ; and 
V0U9 partly firom the former history, and partly 
from modem auecdotes, thought he should t>e 
banished P—il. Yes, 1 did so. 

That was the ground of the accusation; 
former history, and late anecdotes P — Yes. 

Court. I shall certainly hear his evidence, if 
you ask him the motives and grounds. 

Mr. Lee, I only ask wheuier 1 bad taken it 
right 

Court. Did not you object to enquiring into 
former instances of banishment P 

Mr. Lee. No ; he has spoken of former in- 
atanoes of bad conduct in Fabrigas. 

CL Did any of jrou propose to the general, 
or did be propose himself, to have any trial of 
this genUeman before his banishment P— jI. I 
believe he never did propose that ; for the judges 
there gave it as their opinion, that that was 
lodged entirely in the governor's own breast ; 
two of them particularly, that it was entirely 
in his own breast 

And needs no trial at all P — 1 do not know 
that there was any form of trial there. 

You heard of no trial P — I heard no trial 
mentioned. 

You tell me the opinion of the field-officers 
was this P — Yes. 

As I don't know exactly who all the field- 
officers were, and as I wish to deliver as many 
of them aa I could from the imputation of that 
opinion, pray did major Norton concur in that 
opinion P— I do not remember particularly 
yrhether be did or not. 

Serj. Davy. That is, whether he was there 
ornotP— il. He was there, but 1 do not remem- 
bar what hif opinioD wai open the occaik ip . 



Then you cannot take upon you to sty whe- 
ther it was a majority of opinion, pr unani- 
mity of opbionP — A majority of opinion. I 
believe there might be a Uifference or opinion. 

Do you know a colonel or a major Rigby ; 
I do not know what rankP — Major. 

Was he there P— Yes. 

Did he concur in that advice to the gover- 
nor P— Both the gentlemen are here, and can 
tell. We were telking among one another; 
our opinion was in general. 

Those that chose to give an opinion in fa- 
vour of banishment gave it, and those of ano- 
ther opinion either might give it or were silent P 
— It vras not talking of giving an opinion, but 
talking of the man's case, and what ought to 
be done. 

Then you cannot tell what number dissented P 
—No. 

Court. Were there any of the field-officers 
present that did dissent to itP — A. 1 do not re- 
member that any did indeed. 

Edward Blakeney sworn. 
Emmined by Serj. Burland. 

Q. I believe you officiated as secretary to 
general BlakeneyP — A. Yes; I was there 
about seven years. 

What sort of power does the governor exer- 
cise in the arraval of St. Phillip's P— There is 
no writ ; nothing can be executed there with- 
out his commission. 

What authority does he execute there P— 
An absolute authority ; it is a royalty. 

Have you known any instance of people 
being sent out of the arraval P-7A few montha 
af\er general Blakene^'s arrival, he banished 
two Franciscan friars immediately by his own 
authority. 

Where did be send them to P — ^To the con- 
tinent. 

Court. Into Spain P — A. 1 cannot tell whe- 
ther to Spain or Italy. 

Q. from Jury, Was it in peace or war this 
happened? — A, In peacetime. They found the 
way to Rome, and complained to the general of 
the Franciscan order, who corresponded with 
the general upon the subject. Several letters 
passed ; and general Blakeney wrote in one 
of his letters, if they did not behave better for 
the future, he said be would banish all the 
Franciscans out of the island, and make bar- 
racks of their convent. I ntercession was made 
for them : they asked pardon for the offeooe 
they bad committed, and upon a promise of 
behaving well they were ailowea to come 
back. 

Did you ever hear that the power of the 
governor upon that or a like occasion waa erer 
called in question in the island P — No ; I took 
it for granted it was banded down by the Spa- 
nish governor, and they were governed bj 
Spanisn laws. 

Are they governed by Spanish lawsP— Yce, 

We are told the arraval is a distinct juris* 
diction fimn thereat of the istettdi and torn m 



MI] 



Fahri^ v. Mostgn. 



MM aolbOTitv MM' diwI b^ the gortmort— 
\m; it WwitbiD KUn-ahot of the foH. The 



lln't know wbctber jon ra 
•iar iaMuicea of baniihDMnt I 



MUbi*. Foot reffimeDti were aeol oat by 
At te kiny, to ratine four t^idcqu lb«t had 
fan « longr time then in (he ganifoo. The 
fifcnor KOeired orden to send home erery 
oMwe MoiwiDg to the four regiment* then 
tea : thej bad Men many ^ean in the iiland. 
inpart bad been msdetohim, Ibatadnugbter 
(foaeof the miiitwrjr people wu miMinff. An 
tafBwj waa made: ahe wh proved to be lait 
I priest The prieil ' 
Hting any tfa 
a brought bHbra 
Atgerenior; he gare bail nf lira people ; (tbia 
*a( a military affair eotirel}) and next day he 
■Mdcaned to produce her. He did not. The 
pTwq i ' embarked bioi directly, and sent bim 
« baaid, I beh'eie, in the very tranapert that 
WMteearry thia young' nomao away. The 
iMtailcd to Gibraltar; and application w»a 
^rfe iaDBediBtcly to the a;oTen>or by the ma- 
airtraleaaf Hahao, and by the religious order, 
■miaftbe gotemorto forgive him, and slay 
Ihaifcip, Bad, if (be gotremor would gire leave, 
tapm ('**JP'^ ■>" l>oanl, and brin^ back the 
jArnm- Tbey begged, and pelilioned, and 
■ncd tbe governor. Upon that the girl was 
MRBeal up, brought Trom the ricar-general, 
•bind at a remote end of the island. She 
•M baoghl to me. The alory the told me 
•^Aat tbe vicar -general had, out of charity 
■Jwpaaaion, lalteo care other. She wai a 
njfKtty giri. She caa put on board the 
tMMrt, and sent after the Btet, and the priest 
«M Weugbl back, and there were great 
^■(■fa apOD hia arrival. 

Mr. £e(. Vou know how little material that 
k 

Q, Id what office were you in ibis pli 
A. ScCTCtary to the governor and commander 
Bckicf by ui* king's commission. 

Wben Jid you go flrat ?— In the year IT*9. 

Tea were in Minorca, Ifancy, whenapoaitive 
from England, that if any I'riar of 
!an order, not a native ol'ihe island, 
Atald CMMf ibto that islanil, he should nut be 
■rimd lo remain upon it? Do you koon of 
lay aucfa order in the first pUc« ? — Be so good 
M IB rppeat llw order. 

■* That in caie any friar of Ihe Franciscan 
Oder, opt being a native of Minorca, but an 
Jdarram friar, ahall come into the island, be 
iktU Bot be permitlvd to take his reaidence 
Ane, Ace." Vuu don't recollect any thing of 
Ms, or (hat it was in obedience tu (he onler 
if eoGDcil ibat this Franciscan was sent away f 
bsjoa tbrget this, though it happens unfur- 
laately when the g^emor obeys the order of 
banperior, Ihatianowlobeauoted, aiapre- 
Mdmi offaja CWD r^al uitbonty f 



A. D. 177S. [149 

WbM wa* tbe prirnt f — A native of Minorca. 
And Ibe friar t— I understood them to be Hi> 
norqoin*. 

Can you lie positive about that F>~I do be- 
lieve that aa a certainty and a fact: I am mo- 
rally certain of it; I ivai not preMol at their' 



lt» 



tn* that yon have forgot even that nicb 
r existed, till 1 reminded you i—I am 
not deKT Uiat I remembered anch an order ex- 
isted; 1 hare been orer agreat dealofgrotmd 

Was It IheDBlnreofyoor office to acquaint 
von with ail the orders of Ibe council of Eng- ^ 
land? — It came through my bands, yet very 
likely and probably I lurgotit. 

But yon might not have forgot it at the tim« 
the friara were ordered away f 

Mr. Lte. This was b 1753.— J. That k 
langsnbaeqnoit: the affiurof tbe fiiar wa* ui 
1743 or 1T49. 

Serj. Bur/and. Then yon admit that the 
king basa right to make such orderap 

Serj. G/ynn. No; the conocil may maka 
such orders, but we do not admit tbem to Im 
legal. 

Court. The case of the prieit was eome 
yeara al^er tbe case ofthetwo friars?— J. Not 
a great while ; about a year 1 believe, sooM 
such lime: it is a great many yeara ago; I 
cannot be powtiveto a few months. 

Captain Jatuci Solaire aworn. 
Examined by Mr. Seijeant Walker. 

Q. I think you are a natitt 



You know Mr. Fabrigas? — Not very parti- ' 

I thoD 

Phillip's f— 

You hare teen him there P — Several times. 

What sort of a temper and disposition baa 
he? — 1 cannot answer very particularly. 

Do you know any thing of his ^tneral cha- 
racter?— No j I do not 

Serjeant Burland. I hare a very long anil 
reapectable lilt of persons here to speak to tha 
cbs ranter of general Mostyn, and hiag'tneral 
behaviour : f suppose ibe gentlemen on lh« 
other ude don't dispute Ihe general character 
which haa been given of him. 

Seijeanl Glynn. I shall out make the least 

Btirropt to asperse general Moslyo'a characters 

I shall found mysdrupon tbe facts. 

Raphael Prato sworn. 

Examined by Mr. BuUer. 

(He not ipcabiog English, an interpreter wai 

Q. Do you know Mr. Fabrigas the plaintiflT 
—A. Yes. 

What character has he home for some yean, 
past in the island of Minorca ? Is be a peaea- 
able man, or what? — A troublesome man, that 
meddles too much with aiain. 



US] 



14 GEORGE m. 



Actimtfir Fake Imp i' Uomm e tU^ ^ 



(144 



WhataflMiBdo you umnf-^WA tbe go- 



Court, The quMtion i«, whether opoB the 
Iheli and cireomitaiiecf of the traiiHictioo it- 
gtlft the ({iraarsi wet joftified is what he did ; 
•Iberwiee they may enpty the iilaod. 

Mr. Lee. Yet, this ishnd of all the people. 

Q. to Mr. Wright, Yoa deliTered in theae 
difereat memoriala aod papera : all that yoit 
debt crcd io, are they genoioe Pf para or oapiea 
of papera that were prciented io MiaorcaP^- 
A, All, except the last, which' waa deUvered to 
the geoeral'a aid-de-cmp, were deUrerad to 
BM ; thai ia eadoiaad oo the ' 



Reads: 



^ To hia exoelleiicy general Moa^o, co- 
vemor and commander io chief of theislaod of 
Minorea, ke. The hamUe Petitioo of Antonio 
Fabriga8,a aatireand inhabitant of hk. Phillip'a 
IB the aaid ishmd, abewetb, that your petitioner 
baa now by him twehre eaakt of wine, the pro- 
duoe of bis own rineyard, without baring par- 
ohaacd ao much aa a grape of any other per- 
son, of which he baa not aold a drop, when ae- 
?eral other inhabitants of the said town hare 
told all theirB» aa well of the produce of their 
own Yueyarda, as that proceeding from what 
they bought to make a profit by ; and this with 
the permit of Mr. AUimondo, who docs the 
function of mostaatapb. That the petitioner, 
nnthe35tb of July, applied to the aaid Alii- 
mundo for meuures to sell wine by the rate of 
two douUera less than the current price, which 
would bare raised a benefit to the troopa and 
poor inhabitants of St. Phillip's ; bat notwitb- 
itanding this demand was ve^ reasonable, and 
confbrmable to the express condition of the first 
of his mijesty's regulation of the 17th of May 
175S, regarding tnis island, where it is ex- 
pressly mentioned that the inhabitants of this 
island shall always be permitted to sell at the 
price of the afforatioo or under it, Mr. Alllmundo 
reftised your petitioner, telling him he should 
not sell his said wine. And aa this is not only 
•gainst the reaaon and justice of the public, 
and the garrison of St. Phillip, but also contrary 
to his mi^esty's order in the said reguhition, 
where it is mentioned that the inhabitants may 
■ell their wines whenever thejr please without 
any permit, under the afforatioo- price in the 
island ; therefore he prays your excellency will 
be pleased to order Mr. Allimundo to be more 
reguhu* in this ffor he baa made above 50 casks 
or wine himself, of grapes he bought to make 
a profit bjT, of which he sold more than the 
half, in prejudice of those persons who have old 
and new wine by them), and to give your peti- 
tioner the correct and just measures at the albre- 
WM rale of two doublers.*' 

Conrl. There is no date to this petition, I 
observer— il. No. 

Mr. Uo^d. It is marked on the back, '* deli- 
Tared the Slat July, 1771." 

• The next ia iDclaaad m the answer of tho 
■mstastaph's feplj to Fabngaa the 7th of 



Aagnst,ini. *«TobiaexoelleBeyrii 

gOMral Mostyn, governor and oooasanderui 
chief of the isfand of Minora, The hnmble P^ 
tition of the nnder-writlen iohabitanta of iha 
aoburbs of St. Phillip's, shews. That daring Ifan 
government of hia excellency heulenantpyo* 
vemor JohnBton, onaecount of some oeasplaiBin 
that were made oooceroing the direciioo, aaA 
selling wine, a regulation waa made in the fiiil« 
lowiiiir manner : that the sobtirbs of St. Phll*^ 
lip'a iihsil be divided into four wards ; _that iha 
people ahall draw lota; that tfaey who ahnll 
eooie out shall have the liberty to aell their 
own wine, the aooidenta of the casks, and. the 
prelereooe of the poor helplefa people being 
eotirdy under the direction of the mustaalanh. 
That regulation was accepted by tbeinlmbi- 
tants of the auburba, and they are glad of iia 
continuance aa it is observed to this diay. They 
have heard that some of the inhabitanta are in« 
tending to destroy the aforesaid regulation^ io 
order that every one might sell tbeir wine at 
the place they please, without dividing tli» 
wards. This will be not only the total roin of 
the inhabitanta, but it will also make them cam- 
less in the culture of their lands, and leaa can- 
ful in making their winea, and consequently 
there will be very little wine of a good quality ; 
therefore your petitionera humbly crave yoor 
excellency to be ao good aa to cast an eye of 
pity upon them, in not permitting thatauch a 
good regulation ahould be ever altered : and 
as in duty bound shall ever pray." SigaaA 
by 58. 

Serj. Glywu Are they maika or DaiDea?««* 
A. Most of them marks. 

Directed to lieutenant-general Mostyn. 

** The humble petition of Antonki AUimondo, 
mustastaph of St. Phillip's, sheweth, that your 
excellency desiring to be informed about aneli<* 
tion made by Anthony Fabrigas of St. Philiip'a^ 
relating to the selling of wine, says, that for- 
merly the aelling of the wine of the iohabitanta 
of »L Phillip's waa under the direction of the ' 
mustastaph of that suburb ; but as aeveral dia* 

fmtes and difficulties arose from this, his exoel- 
ency lieutenant-governor Johnston found it 
proper to make a regulation for the sdiiog of 
the wine, which was accepted with an entira 
satisfaction by all the inhabitants of St. Phil« 
lip's, and bv them practised to this day. At 
the time 1 bad the honour to be made mustaa- 
tapb of that suburb, the aforesaid regulation 
was in ils full force and execution, and the aaid 
lieutenant-governor charged me particularly ta 
have it carefully observed. In consequenoa 
of this, the said Anthony Fabrigas having ap- 
plied to me a few days ago fur tlie measures la 
sell his own wine two douhlers cheaper thaa 
the common price, I thought it was impiissibia 
to grant it to him wiihout forfeiting the dn^ 
of my employ, because his demand uuoo** 
trar^ to the aaid reifulaiioo, by wbioh the ia* ^ 
habitants of that auburb are permitted to soil , 
their wiao only by tuna^ after Ihay haw 



145J 



fiMga$ 9. MottjfH. 



A. D. 1T7S. 



im 



fawn loll ; for wbich letiOD your petitioner 
laU the aid Fobrigu, that he oould not tell 
hb wine; inlendiDH^ to say, by this, that he 
not kU it in the manner he had proposed, 
lit to tmjt without drawing lots, it being in- 
■stent with the rtaid regulation ; thinking it 
m hlo dutj to liave it omerved till such time 
« joar ezcelleiicy or«lered him to the contrary. 
li the former petiti<in he had the honour to 
fUKnt your excellency, he thinks to haire the 
CHW privileges with other inhabitants of St. 
nOKp's, that is, to buy grapes, to make wine, 
aid sell it ; and le^des, seeing that his prede- 
Mwnii sold this wine when they pleased, not- 
vilhUaiidiiig the said regulations, he thought 
Ihtt tlie mintastaph of 8t. Phillip's was not in- 
chded in it ; in which case your |»etitioner did 
Ml think it was proper to prejudice his rights, 
•r iboie of his successors, unless your ezceU 
kncy ordered him to the contrary ; but to com- 
ply with the inhabitants of that suburb, that 
Acj nit^t be satisfied, your pelilioner always 
inosed n role upon himself to sell his wine at 
iltient times, and sometimes b^ the gross, 
■mnoch that most of the inhabitants of that 
Mbwb have sold the half of their wine, whilst 

rpeiitiooer has not yet sold a third part of 
It Anthony Fabrigas, or his father, says, 
Aat he will not sell his wine under the com- 
MB price, and that he has sold none of it as 
nl, tke former having none to sell, the reason 
■ aaly becauoe his turn did not come at the 
when the lots were drawn, to which all 
of the inhabitants of St. Phillip's are 
but his wine will be sold when his 



shall come." 

1W PETiTioir of Anthony Fabrigas, Aug. 
Idth, 177 1, directed as before. 

*11ie humble petition of Anthony Fabrigas. 
Ob the Slat of July 1771, the petitioner had 
At honour to present a memorial to your ex- 
edkncy, shewing the tran^igressiim and non- 
aiaerTaiioe in the said town of tno regulations 
given on the 8ih of May 1752, by his Britan- 
nic majesty, 6ic. Sec, viz. thnt any native or 
jihahitant of this island shall be permitted to 
aril bis fruits at the fixed price of the afforation, 
without any person's authority : secondly, that 
no eoirmander, judge, nor officer, directly or 
indircGlly, for himsflf nor through any other 

noos, nhall he allowed to have any concern 

any traffic, bargain, or connurcc wbatso- 
: your petitioner having likewise repre- 
.«.^^ U> your excellency that Antonio Alli- 
Moodo, who does the function of mustastaph 
in Ht. Phillip's, haa Itoui/ht grapes to make, 
as lie rvally maifeafterwardo, 50 casks of wine, 
af which he s«>ld more than one hall', in prrju- 
ol the inhabitants of ii»t. Phillip's, who 
the old wine by them; and that your pe- 

_er waotetl to enjoy the liberties granted to 
bin in the said regulations, offering to sell to 
Ihe inhahitauts and garrison of St. Pbilhp's, 
12 ra«fcs of wine he has by him of his own 
induce, at two doublers less than the ordinary 
iiurataoo or fixed price, dsc. yesterday, the 

VOL. XX. 



19th of Aujpist, your excellency's leeretary* 
told your petitioner verbally, &c. at which year 
petitioner was greatly surprised ; as he is ready 
to prove judicially, before any one of his ma* 
jesty'sjudges of this island that yourexoelleticy 
may think proper to appoint, all that he hng 
said in his last snd this present proposal ; in 
which caae, &c. beiog sure from the instice ho 
has in his favour, and from your excellency'o 
good administration to administer it, prayo 
your excellency will be pleased to give his de- 
cree at the foot of this memorial to your peti* 
tioner. He hoiies thereby to be at liberty to' 
sell his wines at two doublers less than tha 
afforation set by the mustastaph of St. Phil- 
lip's, &c. and that the mustastaph hss acted 
unbecomini'' the office he exercises of musta- 
staph of St. Phillip's ; which being evidently 
proved, will undoubtedly oblige your excel- 
iency to give the necessary orders for the relief 
and better advantage of the inhabitants and 
garrison of St. Phillip's." 

Serj. Gfynn. May it please your lordship, 
and you gentlemen of the jury, to favour me in 
this cause by way of reply. Considering the 
length of time that has been spent already in 
this cause, I should ask your pardon and in- 
dulgence for adding more than 1 could wish to 
the time that you have already spent, in an- 
swer to those arguments that have been used 
in behalf of the defendant, and in submit- 
ting to you such observations as occur to me. 
For, gentlemen, the cause, as 1 conceive, hav- 
ing already \«andered very far from its true 
merits, and being perplexed with matters very 
foreign to the question, it is incuinbent upon 
me to make such an attempt as my powers will 
enable me to do, to recal your attentk>n to the 
real and true question in tliis cause. 

The question, gentlemen, is shortly stated ; 
the discussion of it, however, requires some 
time.— The question is merely what satisfac- 
tion and reparation Mr. Fabrigas, a subject of 
Great Britain, as much as any man even bom 
in the city of London, has a right to demand 
for the treatment he ha^ received. He is a 
native of the island of Minorcii, born in the 
Britannic dominions ; and his lordship will tell 
you that every person that is so born is a free- 
born citizen of Great Britain, intitled to all its 
liberties and privileges. 

The question therefore is, how a man thus 
circumstanced is intitled to have his case con- 
sidered by an English jury, and what satisfac- 
tion you shall think due to* him for such kind of 
treatment as he has undergone ; such tortures 
of the most studied, and the most perplexing 
and excruciating kind, (if you take into consi- 
deration the feelings of h man's mind, as well 
as his corporal sufferings) as have by the wan- 
tonness of power been inflicted u(Km him. 

Gentlemen, in the discussion of this question, 
1 shall now barely mention to you one topic 
upon which a great deal of your time has been 
taken, and which 1 mention merely for the 
pnrpota of clearing the cause of it, and die- 



147] 



H GEORGE IIL 



Actimjbr False ImprUonment^^ 



[148 



nliMng it totally from yoar considenUion ; 
and that ia» what respects tbe character of Mr. 
Mostyn the defeudaot. You are told of tbe 
high and respectable names of great men that 
bare given their attendance here to coonte- 
nance that character which you are told Mr. 
Alostyn indisputably possesses. My answer to 
it is, that if be bad brought the pnYy-4souncil, 
if be had come with testimonials in his hands 
ftom the two houses of parliament, it would not 
hare fsried the consiueration of this cause. 
Tbe question here is wide of all consideration 
of character : vou must decide it upon the facts 
which appear before you in evidence, and from 
them you must judge of the merits of lliis 
cause. The motives of Mr. Mostyn's conduct, 
and every circumstance that is material or re- 
lative to that question, you are to decide upon ; 
and beyond that, gentfemen, it is neither my 
desire nor my duty, it is far from my province, 
and far from my inclination, to attempt throw- 
ing any kind of calumny or aspersion. Let 
Mr. Mostyn, with all my neart, ir he can, re- 
concile that conduct that has appeared before 
yon to such a character, to that verdict which 
1 am confident you must pronounce upon this 
cause. Let Mr. Mostyn eiyoy tbe eaieem of 
his great and noble Iriends ; I have no desire 
to deprive him of it : I have however a zeal fur 
the justice of this coimtry, that goes something 
beyond the mere line and duty of an advocate, 
—1 owe it to humanity,*— I think it is a ques- 
tion of humanity, not depending upon tbe par- 
ticular laws of any country : but it is a ques- 
tion highly aflectmg the honour of the British 
nation, and a question that will throw disgrace 
upon our laws, oiur constitution, and the hu- 
manity of our judicature, if this man should bo 
sent Iwck into the island of Minorca with his 
wrongs unredressed, and an accumulation of 
ezpences upon him. 

I own therefore, gentlemen, upon these 
grounds and these considerations 1 fed a 
warmth and a zeal in this cause, which I hope 
will justify me for the pains that I mean to 
take, if my strength will support me in it, in 
laying before you what I conceive necessary 
for your consideration. I have said, that I 
mean to deprive general Mostyn of nothing 
that is not necessary to tbe reparation of the 
wrongs of this much-mjured plaintiff; that be 
•ball enjoy his good name and his character 
as far as my doty will permit him to enjoy 
them ; 1 shall maze no observations upon him 
but what arise from the cause now bmre you. 
1 have some reason to wbh, and to cximplain 
Ibat the like conduct has not been observed on 
the other side. General Mostyn is to be graced 
with the countenance of great men; and a 
plain En^ish jury is to hear the titular testi- 
monies ot the character of a man invested with 
a high office, in high power, and possessed of 

Kt riches ; yet ih% cbsracter of a poor, un- 
ly, helpless individual, an inhabitant of^an 
islaod, part of tbe territories belonging to tbe 
crown of Great Britain (confident too that be 
lifed under the pielectioo of tbe ooBStiliitM» of 



Great Britain,) is to be treated as a subject of 
ridicule, because he is not a man of high rank, 
though you are told he is a man of charader 
and of fortune, such as has intitled and recom- 
mended him to the company of men of rank-sa 
that island. Have we not some reason to 
complain, that such matters are now introduced 
to reoutt his just and well-tbnnded expectatione 
to receive aatisfaction from an English jury 
for tbe wrongs he has already sustained ? — u 
it not eneogh that this man has endured «■ 
imprisonment of six day a, under the must UDf 
|>aralleled hardships of rigour and cruelty tba| 
can be inflicted upon a human being ? is it not 
enough that he has endured a banishment from 
his native country ? but, to heap calumny and 
obloquy upon the head (»f a man that he baa 
iiiiuied, shall be with impunity be permitted te 
digress wide from the tacts in this cause, to tell 
you that he is a profligate idle map ; that with 
a family be neglects aJl the duties of a husband 
and the master of a family ; that he is devoid 
of moral character ? Is a poor helpless straamr 
In this kingdom thus te ne represented, after 
having ben driven out of his own by cruelty 
unparalleled in tbe British history? Nor can 
any history be produced, even of any other 
country, tliat did not receive a most signal die- 
countenance from tbe power of that country, 
A man thus driven out, seeking refuge fram 
tbe English laws, firiendlesB in this oountryp 
ignorant of its language, is treated in tba 
manner ! A gentleman comes forth, and eu- 
tertains you with tbe oonnezions, chareder, 
and acquaintance of the powerful defendant s 
he then enters into the private conoerns eod 
private character of the plaintiff, and dwdlg 
upon the ignominy of it, and endeavours te 
impress you with a prepossession that it will 
not be in "his power to remove it. I trust thy 
conduct has not escaped you. Not a word bee 
fallen from us of tne character of ffeueral 
Mostyn ; 1 mean on that head to be simt for 
ever ; and if I had it in my power to eeperae 
his character, unless it was something relative 
to the cause, that made it my duty to produce 
it before you, l«should be very silent about it. 

Having dismissed, I hope, from the caoee 
these considerations, let us now recur to the 
defence that is set up by general Mostyn. 
And, gentlemen, the defence set up by the ge- 
neral is, that Mr. Fabrigas is a man dangerous, 
aeditious, and turbulent; that he was in the 
act of perpetrating sedition in the garrison of 
Minorca ; that there was danger even of the 
loss of Minorca itself; that it afl'ected the com- 
mercial interests of this country ; and, as well- 
wishers to this country and the commerce of. 
it, you are called upon to give a verdict for the 
derandant, or to reduce the consideration of 
damages so as to pronounce something worse 
for the pbuntiff, if possible, than even a verdict 
for the defendant. — Gentlemen, their state of 
it is, that this man, Mr. Fabrigas, being a fac- 
tious, turbulent, and nnouiet man, was pursu- 
ing general Mostyn witn an improper impor- 
tnoity } that he was eudeavounng to apctud 



I49J FoMgoi «. Modj^ 

lidiiMt to raise dinooteals in the girriMm it- 

•dr Ibat aflcdcd the very wahnj of the ffo- 

•ad the iibuid was in danger; thel 

a threat that wenM hate made ge- 

if ostjB reepoaaible with hie bead, if be 

Waol preveotca tneb a fobemefironi being 

aniad ioto eieeiition ; that be said, if bb pe- 

iha waa agata refected, that be wonld eonae 

tf Ibe head of 150 flaen, a menaee represented 

a if it Bpported a threat that be would come 

m Iha bead of an armed force : such was the 

SMBtroetioB bis eounsrl put apoo it, that be 

aeald appear ia such a way, as to make it ne- 

mtmry far the gencial to comply with his de* 

■sada ; that there was bo end of all gorern- 

■sat aad all order in the iiland of Minorca, 

«d a valuable part of the British dominions 

by Ihca at the merc^ of our enemies. Gen- 

Ibssea, thie is a well-drswn picture, and was 

my powerfully urged to you. It was some- 

over>paiBled, as I conoeire jrou will 

And the necessity of doing it is an ob- 

ioa that will aot escape you ; for less 

this, 1 do conceire (I rest myself satisfied 

'btha general humanity tbtt prevails in the 

bassts of Baglisbmen, and iohahitants of the 

oiy ef London) less than this could never have 

BvVed aa any colourable justification for such 

swdnet aa has been proved upon general 

Msstyn: this therefore was necessary to he 

UMsd to yon, that it was extorted, (contrary 

li Iha feelings of bumsnity which are said to 

nmy and influence that gentlemtn in all his 

emdnei) tliat this was extorted from necessity ; 

Ihsl there was no time for cousideration ; that 

itnaa aa eroerpfency he was required to decide 

i; it snpeneded therefore all forms ; it was 

ly necessary, for bis i^rovernment would 

exiKted if be had been at all induced 

one it ; and that possesnion of which 

kt wMM tlie guardian, and for which he is said 

Is be tesponsible with his head, vi as in danger 

if being for ever lost to Great Britain. 1 can 

if e a ease like that, adding more circum- 

than even the ingenuity of the couniel 

ubich would not justify, though it 

It extenuate indeed, the conduct of the 

naader. But waa there any thing like it 

this case ? This, 1 submit to yoa, gentle- 

le tbst the counsel thought neces- 

lo o|ien ; and less than this furnishes no 

or colour of justification for general 

Inalyn. Gentlemen, when this cause was 

opened to yuu, and when the general's de«' 

fc n ec waa stated to you, that the general was 

ohiigod to act in an emergency ; bonnd by the 

wmn religious of ail duties, to look with cir- 

cnmspection to the care of the garrison in in- 

naal danger, it was necessary to act as he did ; 

h was an act therefore not of inclination nor of 

dshheration, it was an act of absolute cogent 

irrceikuMe neces^ty, and which he had been 

najoaiifijbte if be bad either omitted or de- 

irrrcd for a dar. That is the nature, and that 

is ibe colour of the general's justification : but 

did the general know how different the case 

thu would appcv upon evideooa wouU be 



A. D. 1773. 



[150 





firom that which be had instructed his coaasel 
to re p resent to vouP it was necessary that 
the defeace should be guarded ; and then thera 
is a prefiitory defence made, which in my opi- 
nion very mucli deserves your consideration. 
Gbneral Moatyn, with the prodeooe that from 
this hour 1 smII think makes psrt of hb cha- 
racter, chose to decline the jurisdiotion of an 
Englbh jury. I don't wonder that be did ; 
and 1 am not smased that you are told that 
th|a M a noatter extraneous to the jurisdiction 
of the courts of judicature in this countrr } 
that you, as a jurv, are incompetent for its de« 
dsion : it b of all cases in the world that case 
which, as a defendant, general Mostyn must 
be inclined to w»h might never appear before 
an English jury, it is a tribunal that he must 
dread; it b a tribunal that he must shrink 
from ; and be acts upon the soundest motives 
of policy and prudence when he endeavours to 
evade it.— If that should prove insufficient to 
him, the next resort is in the general law and 
doctrine resfiecting the power of the governor 
in the island of Minorca; and you are re- 
peatedly cautioned not to consider yourselves 
as administering justice by the laws of Bog- 
land. You are told, that you are deciding a 
3uestion of the laws of another country, far 
ifferent indeed and materially opposite to 
those of the laws of England : you are called 
upon therefore to judge thb cause by another 
rule, and by another standard, than that which 
you are in the habit of. Considering and try- 
ing causes by something more than this mitft 
be desired of you, before the ends of the de- 
feodant can be completely answered. Yoa 
are desired to divest yourselves too of the feel* 
ings of humanity ; and they are endeavoured 
to be suppressed by representing to you circum- 
stances of horror and danger to the general 
trade of this country, in case you should sufier 
even principles of law, of justice and iiumaoity, 
to prevail in this cause. Gentlemen, it waa 
stated to you, that in this island of Minorca 
there is no law whatsoever; that the form of 
government is despotism; that what may be 
called the law, is the will and pleasure of the 
person that governs; that the king b abso- 
Fntely despotic ; that he may change and alter 
the hws of this island as he pleases ; and not 
only he himself can do it, but that he has de- 
legated that power to his substitute ; that he ia 
sent over to govern, not by any fixed invariable 
pbn of laws, but such as he thinks proper to 
make, such as he thinks |>r<»per to prescril>e to 
the inhabitants, at any time that in his wb- 
dnm it shall appear just and expedient that it 
should be so. This U the state at' an English 
government, and this is the construction put 
upon an Enf>liiili patent that passes the great 
seal of Great liritain. 1 will be bold to say, that 
if that construnion is ever attempted to be put, it 
must be put lepugnant to the words of thai pa- 
tent. I will be bold to say, that if a patent 
passes the great seal contaiuing such wonb, 
there b not so feeble a judicature in this king- 
dom tbit wonld not dare to pronounce it void. 



151] 



14 GEOBGE lU. 



Action Jor Fake Imfriiotmaxt— 



[158 



tnd every act done ooder it illegal. Aud I will 
venture to say too, it it imponible that the 
ffreat man that ihonid dare to put the frreat sea], 
and proititute public authority to a patent of 
tbatkind, but he muat anawer to pulilic justice 
with his head.— And yet thia haa been con- 
tended to be the true genuine oonatniction of an 
English patent, the authority under which thia 
same general M oaty n, thia governor ofthe island 
of Minorca, has presumed to act. Gentlemen, 
having stated bow repugnant it is to every idea 
aud principle of law and justice, it gives me 
concern to hear in what habits, p o ss e ss e d with 
what ideas, men raom from the island of 
Miuorca.' It has been contended to be right, 
because it has been done before. If it has lieen 
done before, I say it ia alarming, and it ia time 
to put an end to it. You have had gentlemen 
with military commiaaions appearing here in red 
coata, to give you legislative constructiona ; to 
tell you, aa lawyers, what ia the law of the 
ialand of Minorca. You have had a gentleman 
who aerved aa a aecretary to governor Mostyn, 
who comes home and tella you, that the go- 
vernor with respect to the administration of 
laws that regard only questions of civil pro- 

Krty, is limited by the laws of the country ; 
t with regard to criminal jurisdiction, hia 
power is uncircnmscribed, and totally unli- 
mited ; that by his proclamation he can change 
lawa whenever he pleaaes, and the law of to- 
night is not the law of to-morrow, if that man 
tbinka proper to issue his proclamation to re- 
peal it ; that the courta of juatice are under a 
tyeto respect these proclamations as laws ; that 
the individuals of the island are all to be bound 
by it, and if these laws are issued but an hour 
before, they are as Ending as if of long standing 
in the island. 

These are the ideas of law that theae gentle- 
men bring from the island of Minorca, under 
the government either of this general Mostyn, 
or hia lieutenant-general ; and upon the autho- 
rity of theae gentlemen that have furnished 
thennselves with snch ideas of law and justice, 
yon are at once to be prevailed upon to deter- 
mine that the lawa, liberties, and privilegea of 
this kingdom in no respect extend there. It is 
something shocking to English ears ; a des- 
potic, an arbitrary, an unlimited power ! (for 
even the words nave not been spared) and 
yon are here, aa an English jury, to pro- 
nounce that the king of Great Britain, and 
peraons acting under bim, are to exerciae 
thia unlimited power within a part under the 
jurisdiction of the jndges of England. If this 
i» offered in extenuation of the conduct of ge- 
neral Mostyn, added to the strong irresistii>le 
calls of justice and humanity that must press 
your minds more than words can, there must 
be added to it the most powerful political consi- 
derations ; for you have been told in the course 
of thia argument, that the ialand of Minorca ia 
an insecure poasession to the crown of Great 
i'nuin ; that iu inluONtanta are in a great 
neaiuro disaffected. If they are, has not the 
«ftUM of the disaffectaoo beeo very esplkiUy 



set forth to yon? Is not the care as evident F 
Correct these gentlemeji, who think that their 
hands are not bound by law and justice, that go 
over to exercise power over these helplesa 
men. Teach the poor Minorquins that tho 
English Uw will protect them ; that their 
governors are bound by law and justice to 
teach them the blessings of an English govern- 
ment ; you'll remove disaffection ; yoo'U 
get a stronger guard than all the caution and 
wisdom of governor Mostyn, his secretary and 
friends, powerful and titked as they are, and 
Uiis fatal system of military despotiHm ; yoa 
will have the island to serve you, you will have 
the affections of the inbabiunts to assist yon, 
von may command them whenever you will. 
Vet, gentlemen, it has been dwelt upon as m 
topic, that this island is disaffected ; that their 
inclinationa are against the English govern- 
ment. And who can wonder at it, if what Mr. 
Blakeney says he is clear in his recollection of? 
I hope he is not ; I don't mean to deroeate from 
his veracity ; — that a power like this has been 
used of arbitrarily aending a man, a native, an 
inhabitant, from the island, his friends living 
there, his possessiim there, for no offence com- 
mitted, but at the absolute will and pleasure of 
the governor. You have heard a great deal of 
Turkey, you have heard aomethin^ ofthe laws 
of Ja|)an, you have heard of other despotic 
powera, whose names I trust are sufficiently 
odious in the eara of all English hesrera ; and 
yet you are told that the governor of this island 
IS equally despotic with any of these fmwera; 
tliat he has no limits but his will, no bonnda 
but his pleasure, no law but his inclinationa ; 
that the lives and persons, if not the properties, 
of all the inhabitanta of this isianti lie prootrato 
before him, and they must depend upon bio 
natural good inclination and humaniijp in whal 
degree they are permitted to eujuy them. 

This is the state of thia island ; and 1 will bo 
bold to aay, it would be apeaking injirioiialy of 
the government of Japan, — it would be upeak- 
ing injuriously of the government of Turkey,— 
it would be s|ieaking injuriously ofthe emperor 
of Morocco's government, to def^cribe that as 
the general state of these subjects ; it never 
waa in the idea of even despotism itself till thio 
very hour : it is violence aud outruge, it ia tho 
law of robbery ; it never obtained in any placo 
where the idea and form of a civil go«ernmenft 
ever was allowed ; because, if the legislative 
power and the executive meet in one person, 
that distinguishes a despotic government from 
the happy state that we enj(»y in this kingdom. 
Our king can't prescribe us laws, but he most 
administer us justice by those lawa that our re- 
presentatives make for us. That ia the state 
of this country, happily distinguished from the 
state of despotic countries, fiut in no despotic 
country whatever did this idea ever obtain, that 
the prince, the despotic Sovereign, call him by 
what name you will, was to adminiater justice 
by bis incident pleasure, will and power. If 
he made laws, he made them, proclaimed and 
divolged thomi and the ralgeeli were govomed 



Fahrigtu v. Mailyn. 

iff Hbcn, lud iheir k'mgv were raled by tho«e 
kuc But lierp thia gentl email, Mr. Blftkeney. 
fra Hide licyunil iii!i cotiiuel, (hi« counsel 
««U Mt tuu an; thittg like this) but bc- 
oriyiiC to ihi« |^ntl*:'in*u, the inlittiitaniH or 
itB«t«Dd, trithoul llie leut imputation of ile- 
t utacy. oilluiiit any mode or Ibrm of trinl, 
•tre WDHnced, instantly iraniparled,aDd re- 
Hrad from itieit frieiidi «nd rvlatiiiu* for crer, 
Mtoa il M the i^od will Da<l plmsure of ilie 
fncTBor ever to pfnnlithem tortfiuni. I say, 
all lk« most *liiinie>ul auecdote I list ever was 
fcMd •I' a>>y governnirnt wbalever; aad a 
ImImw sf Egypt would merit l lie bow-Blrinfr 
fo brtaf lii« m so illpgnl siid so indecent a 
www. The ttmo, llie ajificarsTice, the 
II ■Mail rr of joltice, are all nt importance tn 
btWarteil, anil nbich ibe policy even of Ihe 
h*<aM prescribe ; jiet have our ears been tor- 
Mrcd, and oar palieoce and lime been spent 
viAdaetritm of this sort, lij gentlemen who 
W> (»jay«il IfUttxin that inland, and nhich 
hii« eoMMMMly been exercised by tliem. This 
■ ■feal geaeral Hoslya has bet up in bU de- 

lUa wiajMy, it is Raid, makes laws whenever 

kc fWasM i it il iq bis sole will and power to 

wpH vbat laws be pleases upon a conquered 

DHtry. It is mnre than«Ter I beard. Tim 

fm^Mne |;q«s I'unber than any book, ihal 

I'f I rv*d, can justify me in allowioo' ; be- 

'•, as I bare understooJ ii, if true, the 

. ui^rst aulhoritin support thpse prerojpi- 

rt One Cliritlian pnuce conquer* a Cliris- 

kiflgilotn, thai is ijntemeil by ii« own laws, 

■•• H i* ll>e will of the dnqueror to aliro- 

. 'd»M> laws. The t'unqurst of Ihe island 

' Hmorva «■« not msile liy qiieeo Anne per- 

' '■Hj. btil it was made by ibe aiih|ecls of 

m Briinin, and belonfci to ibe supreme xinie 

''irat Britain. Dili if yoii ifive the jiower 

ilie aofrreiiiii It mnlie Ihoie Iuhb, allow 

umlaW rivbtly exercised. Can you sup' 

|a>*U tt Ixrlonirs to the ^vemor 8p|H)iuIed, 



tlrfbyai 



I arbitrarily and iDcontmlnhly, accord' 
■f m Ihair own wdl and {deasurer For in 
w«» W funnab the defemfnnt Willi any colour- 
lM»4»l«BCv whaUter, be ia in lie juslilied by 
tin*, which you mutt candemn a* pre- 
1 «f nildier^ and burelary, equal in point 
la either nf Ihaselerm*-, or jon 



I ibe constituijiin uf 



IW apffit, tbr rraina, 

InM Bnlain. Gut wilh the idva of any law 

seiner ihai ««cr obtained in any stale ur 

•■HH: both tbene you muit lubacnbe In l>e- 

cutnply wilh ihereciuMi thai ia 

lprauonnceaterdictfurcen.MDB- 

kn^— TIm (rBtlemrn then baring lakeo Ibis 

JhHi aa4 rcmai'c line of delence, whirh Ibey 

^'"oslrt ••nlil ooQlaiu and embrace any de- 

- ■ ikal (bay IbotiKbl proper to ulfer to you, 

f aaJU proceed witli ihcii: ilefeiice. And, 






A. D. 1775. [154 

gentlemen, you are laid, that ma il was Ihe au- 
thority, 10 It wan the duly of Ihe jj^neral to 
proceed ai be did ; that be could have nu {ler* 
aonal inalei utr'nce to a man so remote from bia 
silualion, go unlikely to fall in wilb Ilk connec- 
tions ; that the man was mulioous io the wbula 
of his conduct ; aud that al last he commiiied 
that duDfferouB act of muliny thai made it an 
indispenEible act of justice in llie ^fuveroor to 
commit him, and to tend him out of the isk'nd ; 
that if be bad not done il, and a consequence 
had happened fatal (o the inland, Ihe gurernor 
would hare been responsible for il. Why, 
l^llemeu, llie slate uf il so mui'b exceeded 
Ihe fncts, it cetlainly was expected by the 
learned counsel wbu offered il to you tbat ba 
should prove somelhing less, and therefore 



EroTcil this, (lioLig-h I should conceiie il would 
y no means bate inlitled Ibe general to a verdict, 
yet Buch conaideraliani, — an act of absolute 
uecessily, Ibe aliernaiive of seeing such a Irnst 
as Ibe island of Minorca lost lhrou([li his re- 
missness, or Ibe rvmnring of this man out of 
the island — I should bare conceived might 
very well have furnished an excuse for him in 
bis conduct : 1 am sure il would hare taken ofT 
from any edge, any waimth, or keeaness in 
which an action would bare been supported 
Ihal iTould have been brought against him. 
Bui, large as Ibe ground was laid, il was to 
lake in certainly aimibrr case than this. No- 
ibing, as I conceive, and as ] submit to vou, of 
Ibis kind has been proved. Petitions, lellers, 
mesBsges hare been giren in evidence before 
you, and commeols are made upon the very 
petitions themselves, as carrying wilh them 
slroiig proofs of a mutinous inclination ; and at 
last there is a broad fad asserted, that there 
Has a downrieht threat of Bp|iearing in arma 
al Ihe head of laO men. 

Now, genilemen, ^ve your allcnlinn lo llwse 
lellers, lo ihese petition] that bare been read. 
They are expressed, as i conceire, in decant 
and in reipeclful terms ; and if il is an act of 
muliny, I do conceive that il is impossible fer 
any one man In complain tbut he has received 
wrong from anoiber, either hy word or letler, 
but be muKi be i^andemned as a mutineer in Iha 
island of Minorca; and the public faith, the 
ualional faiib Ibal is pledged lor the proleclion 
aud enjoyment uf their property, is reduced to 
thai slate — * You shall enjoy il, but if another 
presumes to wrong you, you musi not dare, 
upon Ihe pain of transportation and long im- 
prisonmenl, to iiliiT a word of complaint ; fur 
It it jii'lged dangeroiu, ilis nut coiisiiteDl with 
ihe wisilum of i;o«ernmeni lo permit it. and 
we are called upon lo puiiisb you inosl severe- 
ly.' — Gentlemen, the transaction appeara lo ba 
ibi>: that anotbcer in Ibe island of Minorca, 
called a muslaslaph, was ibe man frum whoin 
ibe isUnders were to receive what ibey call tlia 
alToraliDn or the asviie price: Ibis was iba 
couceplion of Mr. Fubngas the pntiiioner. 
Another notion preraileil, thai tbe order «( 



155J 



14 GEORGE III. 



Ad6iimfar Ftdae Imprisonment— 



[IM 



CAUDcil reeeired from the erown, which iM cod- 
sisteDt wilb their oapitultdoo and the rights 
stipulated to them, ought to be obeerred ; hj 
wbieb order tbey were at liberty to lell their 
wines after a certain price bad by a public 
officer beoi once asHzed, which is called the 
afibratioo. But the mostastaph of the island 
thought proper to say that the order of council 
was superseded by another order, which com- 
ing from the active person in the go? emment, 
though not the principal at the time, muit ne- 
cessarily supersede thai order of eouocil ; and 
it was insisted upon that goremor Johnston's 
order, judging of the inexpedience and impro- 
priety of the former, must take place ; and 
that Mr. Fabrigas was wrong in his concep- 
tion of what ahonid be underBtood to be the law 
of Minorca. Upon lus presenting his com- 
plaint to Mr. Mostyn, be recei? ed for answer, 
that Mr. Mostvo would immediaiely call upon 
the mustasta|iD for bis answer. The snswer is 
fi?en } and u consequence of it Mr. Fabrigas 
m told that his petition was groundless, for that 
the mostastaph had most perfectly satisfied the 
governor. Mr. Fabrigas then desires to see, 
lor confident as ho was that he was well 
grounded in his complaint, yet he desires to see 
file reasons that the mustastaph has assigned. 
The sight of these reasons is denied him. In 
consequence of that, he presents another peti- 
tion; which is, 1 think, reforred to some of the 
law officers of the island for their considera- 
tioB. They run it over, and tbey report them- 
•rires satisfied ; and tbey insert the answer of 
the mustastaph, wbiob answer the plaintiff Mr. 
Fabrigas is very desirous of seeing and answer- 
ing. The business then proceeds, as it is said, 
in repeated petitions; Mr. Fabrigas conceiving 
that the governor is misled, not that be wilfully 
denies him justice, but is misled through the 
influence and misrepresentation of this musta- 
staph ; and that produces at last a convention 
of some of the island, in order to take their 
of the matter. Here it is not clear what 
the sense of the majority ; but here the 
mustastaph had weight and interest enough to 
get that represented by the miyority, which he 
wished to have received. This being on a Sun- 
day, when many of the inhabitants were in the 
eountry following their diversions, and Mr. 
Fabrigas thinking that the sense of the people 
had not been properly taken, comes again to 
the governor with another petition, not censur- 
ing the governor, not upbraiding the governor, 
not intimatinff the least uisapprobation of the go- 
▼emor's conduct, or jealousy of his inclination, 
couched in terms of the utmost decency. The 
consequence of it was an answer, which pro- 
duced from Mr. Fabrigas that very answer upon 
which the defence of Mr. Mostyn has been in 
■0 great a measure built ; to which the gentle- 
men have applied that evidence which was pro- 
duced by Mr. Wright, Mr. Mostyn's secretary. 
Mr. Wright says, that first of all the conver- 
sation was interpreted by a priest, and then by 
another interpreter ; but he does not know who 
iaierpretcd tnosa expresskms whidr fell from 



Mr. Fabrigas, which he apprehended to be of 
a dangerous kind, and therefore discouraged^ 
and advised him never to repeat again. He 
does not know, he says, whetner the expres- 
sion was to this purpose, that he would come 
again if permitted, and that there ahould he 
another petition backed with 150 men, or 
that he would come with 150 men to back hia 
petition. 1 am sorry for it. But here 1 can't 
tbrbear a comment ; it would be betrayingmy 
cause and my own judgment if I did. This 
gentleman is very sure that one or the other of 
these were the expressions. He professed ie 
refresh his memory by a paper he had written 
down within an hour and a half of the trans- 
action ; and he thought proper to add, that it 
gave him au alarm, as if something dangerous 
might follow. 

Mow, gentlemen, what are the words which 
he has written, from which he said he made 
his communication to the governor, and which 
certainly contains the truth, as he recenllj 
wrote it down P Why, that Mr. Fabrigas said 
he would come next day with a petitwn of the 
people concerned in grapes and wines, which 
they would sign and come with to the number 
of 150! These are the words wrote down bj 
Mr. Wright himself. Why, gentlemen, I 
submit it to you, whether in common sense and 
plain honest interpretation there can be any 
mistake about these words. 

You hear, gentlemen, this was a oootest be- 
tween the mustastaph and Mr. Fabrigas. The 
governor is appealed to as a judge eipected !• 
be, and who ought to be, impartial between 
them : be was appeale<l to with decency on 
one side, hut leaned rather with friendship on 
the other ; for the interest of the governor ie 
not unconnected with the emoluments of the 
mustastaph. On one side it is insisted that 
this was not the sense of the majority of the 
inhabitants; on the other side, uotwiihstaading 
what had appeared from the advantage taken 
upon a Sunday, when many could not appear, 
yet still that the real sense of the majority of 
the inhabitants was on the side of Fabrigas. 
Gentlemen, is not that the most natural key ? 
does not that furnish the most obvious inter- 
pretation to this.^ lie would come with 150» 
in answer to what he had been told ; for his 
petition bad been rejected upon the ground 
that it was not consonant to the wishes of the 
inhabitants, for tbey bad been summoned, had 
declared and signed against it. He answers, 
that 1 will come the next day with a petition 
signed by 150 men. And who are these men 
to be F Why, he says, persons concerned in 
grapes and wine. Can you conceive tlien thai 
he threatened to bring an armed force, that be 
threatened danger to the garrison ? Was it not 
a natural answer in that dispute that then sub- 
sisted between him and the mustastaph ? la it 
not clearly explained by the words, *^ the per* 
sons concerned in grapes and wines/' that ha 
meant the mistake should be rectified the next 
day, and that it might appear from the number 
attending that petilioDy upon which side the 




Fabtigas V. Maslifti. 

kUnden ireK ? There wai no 
toniiuokeil, ihttcnul'I 
U impuMlUe. TliitI 
Ui»l an luau lliit wrote lliis 
afv»«ald h«*c given llie eridencelbU Mr. 
pnfhl lias givea, tutil mv lie waa ia ilauU 
•il|Hlk» tec<4l«elkia of ific particular wordu 
■«*«Tc a«d, whtMlier he irould cnmi; with a 
puiivo Inefced with 150 men, ortbat he nould 
eve oilb liO men taback his petition, lam 
pi i n dil ibat 110 tnae who had wrote ihJE, am) 
•iKk be trtta vou is the Irutli, could «(ei' eii- 
IHua (hat kioiinf doubt that Mr. Wri|;ht au^'- 
fMi4 In yo». I am as conKdeDt that nn man 
mM hate aiiirtaken lliii. that had not some 
MMea W UMw«r bv alfectinc to mtiflake it. 
W what waa Mr. W iiglit'i, what was ihe t.»i- 
IKWr'a cooditct upon tbia accuioof Uid 
tMarur llirni enijuire bIW iheae MO men? 
V lUi waa a matter that would gire Kueli uo 
imm to a (pTcmnr of a ffarrison, wsh it jiro- 

Eta acq«i«*cc in (be remmsl of one only t 
• thtra any enquiry made alter the others ? 
If it Mrack Hr. \VTi|>hl a« danKerouf. would 
fetal bare orcurrrd to him, lo tlOfi Mr. Fab. 
npaapaa ibeiDManli' Would he not have de- 
mm M iba aMnei nf tbene 150 men? Bat 
■r. Haalya at ancc abnndoM all his irbaracter, 
kiba furiHMe of Ilie cauie; he is noir do 
haier iha« raithtnl officer, that good and trusty 
MM', (tiairidiffeiitHiid circiimsueel governor, 
te jm, ware Wore lold he was. Is it not 
^•hUo hoi it ihould hnfe ocourred to both, 
teAre pnrpn- coodiiL-t naa. if iliis was sjuat 
^MfretaUoa ordie word! that oere u tiered, lo 
1' that man U|i P not to atop there, but lo 
>>ttoB4TaKBt»l him. I" discover his nbetlora 
■1' «Kam|>T>ce«, to nurtue the eoquirT, aud 
;'^« the aatirty oIlhcifarriBan. wbicti (hey 
■rm^^ 10 tie ao iniicb in danger ? It is mac( 
•*M fta* all the rjrcamataiices, thai neither 
■' dm appfebended any danger whitioerer 
■ Atfimaon; Ihey «li^[it in quiet as before, 
flaa aaaM he tome other reason I'or their pro- 
ta the uiauner iliey hare done against 
beaides ibat which arises from 
and emcrgancy which naa re- 
ynu, or the isterposllion that the 
i'l r aai waa called il|>nn by iiidispensible doty 
aaha, br the nice of {ircsening; the i;ar- 
tliniwB into coDfuBJon, from 
nnny's bands. There must 
k, I aaj', BOBia oilier rraiioii lor acting in (hit 
Mr. Cabrii^a. Mr. Fabrigas 
tJiny would hnre it, of a dan- 
^ . that a dangeroiia design was 
ataMl J** t>* <* tlie nnlv man dial I'or aix 
fcj» rwlai in the istatid in close imnrison- 
■M, attd thcR ia not any inquiry made after 
k pnvMaa pteanmed ID be ooncemed with 
ha m the liuaiora*. Ifilic governor had coo- 
■BM4 that ii»pn>aiiion, and withnl lo beset 
^Ib M kia Hiiiniiin, ibe ammranee of the pe- 
(^ iha i>c«i day wmild hate anawerrd it. 
*k« (aor poor Minur(|aia<, (wbirb liir some 

"' Mber are drucrilied to be of the 

JttPf and which yuu will 





A. D. 177S. [I5» 

therefore presume to be the moil inoflensire) 
wbeo Ihese four men iilooe came with the |ie- 
tilion, did governor Moslyo then eontiooe in 
the o|Hniua that this man waa the frainer and 
cnnlriTcr of dangerous desigiw, to he backed 
»nd RUpiwrled by multitudes f Must not he 
change iiis ofiininn (ben i* Did the imprison- 
ment end thenf Were the sufferini(s of ibis 
man then put an end loF — No, gentlemen; 
ihe man conlioues in prison for aiic day*, and 
is arterwardi by sn order exira-judicial, by an 
order of (his goTeroor Mostyn, 8eD( iolo exile ; 
which if it it law, any thing he thinks proper 
to do will be law } and 1 must then agree with 
Mr. Wright's juridical opinion, thai ibe power 
of the goTemor can have no bounds in enmioa) 
mailers. If be can justify this, be might as 
well justify capital nunishmenla ; nnd if ne had 
thought projier to hn«e ordered hiui lo imme- 
diate exeeufiun, he wmild bare done an act lull 
as justifiable, in my opinion aometbing mora 
agreeable to bumanily; for he sends (bis man 
to rot in a dungeon, Ibe place ordained for tba 
vilest and mosl desperate malef actors, for ca- 
piral oflrndera only, whether under ground or 
not is immaterial, but it was gluomy, damp, 
and uncomfortable ; it has all the horrors of 
a duni^eon belonging to i( ; and there (his man 
ia kept under n special eilrnordinary order, 
irhich our witneBses, who were soldiers of Ihe 
garrison, who were attendants at tbe place, tell 
vou, were unprecedented } no food lulTered to 
be admlnislered to him, his friends debarred 
from seeing him, his wife and children denied 
aCL'Mtias often as they apfitoscbed, and thia 
ID consequence of ordeis which (heir bnmanily 
shuddered a(, but which (hey dared not pre- 
sume lo contradict. Singular and unexampled 
as was this cruelly even in the government of 
Minorca, which nas the peculiar characier of 
having a despotism brloiigiiig to it unknown in 
any other place upon the face of Ibis globe; 
yet even itiere, though (hey may quote in- 
stances to justify some part of their beha- 
viour, they never can pretend that a man 
ever was treated with the studied cireuiu- 
slances of rigour and crnehy cnnlaioed in 
these orders: I mean, tbai no such orders 
ever issued out before. This, gentleme 
Ihe lrea(men( Mr. Pabri^asbas undergone 
this Mr, Mofityn must justify. He mtiat not 
only justify (be removing this genlteman on 
of ibe way of doing mischief, but he mm 
say, that without hearing, without any iir« 
ceeding, withaD( (he form of sentence, with 
nut even so much as an inlimslioo of the 
oSence with which he is charged, he has ( 
right (0 inllic( tbe greatest of all punlsbmenta 
upon him. Tbis Mr. Mostyn must say : and 
you are to conclude, from the eiceediiig good 
character of Mr. Mostyn, that all ibis pro- 
ceeded from tbe pure benevolence of bis heart, 
from (he mas( upright and commendable of 
all motives. Yuuarcinyiurjndgmentto pasa 
nn approbation of denying a man, untried and 
unconvicted, all food for six day* but biead and 
water, of atrrppinij him of all comfort, nod of 



159] 



14 GEOBGE III. 



Actimjbt False Imprttonment— 



[160 



^Kofvag bim eren the accommodatioo of « bed. 
Yoa must pronounce ibAt there was nothing 
improper, nothing unlawful, nothing inlvuman 
ID leparatiug a man from bia wife during this 
imprisonment, stripping htm of the comfort 
of bis infant children, and then transporting 
bim into a foreign country, without ipving bim 
Ihe opportunity of providing for his voyage, 
or receiving that small assistance which jrou 
have been told bis wife and son were ready on 
the spot to deliver to him. This you must 
pronounce to be legal and justifiable, and to be 
agreeable to humanity, to be necessarily inci- 
dent to the office and duty of a governor of a 
garrison. You are desired, admitting for a 
moment that you can't justify the general in 
this conduct; admitting that some form of 
triftl, that calling a man to answer and signify - 
iog what he was charged with were neces- 
lutry forms to precede the infliction of any 
punishment whatever ; (which admission will 
be an affront to the judgment of the worthy 
gentleman his secretary, who insists upou the 
general's will being the law) but laying that 
aside for a moment, it is said the governor's 
conduct stands so circumstanced, that it is so 
mitigated, that you can never find it consistent 
with your duty to give any considerable da- 
mages against him, at the complaint of this 
man. And to brand him with the most danger- 
ous of all names, you are told that he is a pa- 
triot : that patriotism, however it may be in- 
troduced here, and may be serviceable in a 
commercial country, is of no use and benefit, 
but of the highest danger, in the island of 
Minorca ; and the love of a man's country, 
which is called the first of virtues in other 
countries, becomes a mark, a dangerous offence 
in that country. At the instance therefore of 
such a man as that, and against such a man 
as Mr. Mostyn, you are told, you can give no 
damages, for the great and the long imprison- 
ment, for the cruel and afflicting injury done 
him, in sending him into a foreign country 
from his wife and family. You cannot do it, 
because it is said Mr. Mostyn has been in an 
error, and that the utmost extent of Mr. Mos- 
tyn's crimes amounts only to that of error. 
To support this, the opinion of the military 
was asked, and the opinion of those wretched 
men called lawyers, who have studied law in a 
country where law is not permitted to reside, and 
where the will of the governor is the only law. 
Upon such authorities it is said Mr. Mostyn 
could not hesitate. Clear as his judgment is, 
be is mistaken ; he is misled by the first of 
authorities: he certainly meant well. Gentle- 
men, if 5Ir. Mostyn had offended against any 
C'cular positive law of this country or even 
irca, though clear to common understand- 
ings, ]^et that defence mi^ht be open to him ; 
but it is not open to him m this case : for he 
has offended against the law of humanity, 
impresaed upon every good mind (no man 
that feels it can ever te mistaken), and he has 
offended against the first principles of justice. 
But it is said, he only erred in sending a man 



to a dungeon, that probably might kill htos ; 
out of error too, ^e issues out orders to restrict 
him to bread and water for bis sustenance ; out 
of error too, he prohibited the access of hia 
wife and children ; out of error, he banishad 
him into a foreign country, stript of his pro- 
perty, and all the comfort ne could besupposed 
to have in his banishment, not suffered to take 
that small provision wliieh his family had 
made for him; all these errors are incident 
— To whom r To the governor of Minorca. I 
trust by your verdict that you will never sufiar 
a man who has acted this part, to call it bo** 
manity, and go back to Minorca justified bj 
your verdict, in saying, ' I committed theaa 
mistakes, but they were all mistakes of tbo 
heart' I am sure you will not give him the 
sanction and autbonty of your verdict. But 
if these argimients prevail, you must do it ; 
you must give the plaintiff small damaffetp 
merely because the defendant is mistafcca* 
Governor Mostyn, bred too in England, lately 
gone over to that coimtry, does not reeoUeci 
that it is necessary that a man, before be la 
punished, must be tried: you are to call that 
an error too. I do conceive, the lowest wretoii 
that walks the streets of London, is incapable 
of falling into that error : it most be an error 
produced by the place ; it must be that veiY 
intoxication and ornnkennesa of power whica 
you ought, by your verdict, to correct. 1 1 is in- • 
possible that any Englishman, or any dmui biei 
in a civilized country, could fall into such an 
error. And give me leave here to remark on 
one part of the case. Gentlemen are brooght to 
tell you of reports conveyed to the goyemor. 
If Mr. Wright reported faithfully what be was 
authorized to report, the governor had little'la 
build upon. Another gentleman adds, that 
there was a report of somebody ; and it is aaid 
it may justifjr the governor as a report. Near 
did they consider now the governor is to hn 
justified by a report? Does a report justify a 
man in proceeding to the very extremity of 
punbhment instantly, without trial or exami- 
nation F Does not every observation that can 
possibly be made turn against general Mostya ^ 
If you pronounce a verdict for him, roust net 
you give a sanction to tbst horrible and danger- 
ous doctrine here advanced in his support f 
Are not you called upon then by every consi-' 
deration that is dear to you, to give great and 
exemplary damages in tliis cause ? If ever ez- 
aniple required it, it does in this. If ever the 
suffering of a roan required it, it does in tbia ; 
for never was any man more clearly and on- 
justifiably wronged and injured. II yon send • 
Mr. Fabrigas, if he has courage to return tft 
the island, with a verdict of a few hundred 
pounds, to give triumph to a man whose re- 
venue is seven or eight thousand pounds a-year» 
who does not regard what such a man as tbia 
recovers ; then the despicable doctrine of ar« 
bitrary power that the governor was ko fond of,' 
and thought so well established in this ialand|* 
will never again be disturbed. Is it not ea^- 
sential to the ycry safety of the islandy thai . 



mi 



Fabrtgas xh Mostytu 



A. D. 177S. 



[162 



the inbaliitaiits may be asiured that tbey are 
pntecied from aocb a power, that tbey shall 
■ever be told that io a court of justice such a 
|e*er was ever insisted upon, and that the 
ivy^ve only a few hundred |K>andsdaniaf2^, 
MI mark that they did uot bear in their minds 
my great disapprobation of it ? 

bo the other hand, it is of no great coiise- 
fMQce whether Mr. Mostyn ever returns to 
llat country again. It is my, and I am sure 
it is \ our wiah» that be may never be permitted 
Is rtiuni. 1 wish he may never see the face 
sf Mr. Fabri^as af^ain. 1 wish he may never 
Me the face of Mr. Fabrigas a^ain m that 
iiUnd. But it is of the greatest concern to the 
peace and happiness of that island, that they 
aic nfely protected from such outrages, from 
faeh raropaat violence and capricious exercise 
■f tyranny and despotism ; that they shall 
■crer be disturbed again by such exertion of 
■Qtborilv, much less that it shall ever be ac- 
faswlcfujied as the claim of the governor of the 
Uand ; but that they may quietly enjo^ those 
rights that as natural-born subjects ot Great 
Britun they are entitled to, and which the na- 
lisaal fi^th is pledged to make good to them. 
This will be the advantage that will follow the 
giving ample, considerable, and exemplary 
bmgCB to the plaintiff; damages that 1 must 
laj in this cause are called for from the very 
astare of the cause itself: for if there was not 
any weightier consideration in it than for the 
nferinn of the man, the damages most swell 
high indeed ; but, added to that, you will pro- 
dsee this faappy effect, that Minorca, which is 
■iilo be a precarious possession, will for ever 
he a permanent and secure possession to the 
~ of Great Britain. I much fear, if this 
receives countenance, it will be inse- 
isdeed ; and much as I love the trade and 
of this kingdom, I protest as a man 
tf ftding, great and valuable as they are, 1 
vsnld not consent that they should be pur- 
chased, I cannot consent that they should be 
puKTved, at the expence of the most solemn 
i%hls of societv. 

Mr. Jdlit. dfould. Gentlemen of the jury, 
Anthony Fabrigas is plaintiff, and John Mos- 
lem, esq. is the defendant. This, gentlemen, 
is an action of trespass and false imprisonment, 
en which the plaintiff declares in two counts. 

The first is, that the defendant upon such a 
day made an assault upon ami imprisoned the 
plaintiff, without any reasonable or probable 
eaase, against the laws of this kingdom, and 
csmpelled him to depart from Minorca, where 
ht was theredwellingand resident ; and carried 
•r caused him to be carried from thence to Car- 
Ika^ena, in the dominions of the kine of 8|min, 
aga-Dst the plaintiff ^s will, whereby ne was put 
to great expence and trouble, his goods were 
Vtoled and lost, his family brouj^nt to {;reat 
vaaiand distress, and he was depnved of their 
vmiort. That is the first count. The second 
a, the general cbarffe of false imprisonment, 
»uhout alledging tnese circumstances. To 
dn the defendant has pleaded two pleas. 

VtiL. XX. 



In the first place, the general issue, that he 
is not {Jfuilty. 

la the second place, he says, he is governor 
of the island of Minorca, afii) that he was in- 
trusted with ali the powers, privileges, and au- 
thorises, civil and military, bflonginaf and re- 
latint; to the government of the baiH island in 
parts lieyond the seas. Then he states, that ilie 
plaintiff was ffuilty of a riot and disturbance of 
the peace, order, and government of the islnud, 
and was endeavouring to create and mifn a 
mutiny and sedition amongst the inhubitants of 
the said islaml, in breach of tlieueare, in viola- 
tion of the laws, and ia subversion of all order 
and government ; whereupon tlie dc-fendant, in 
order to preserve the pence and government of 
the island, was obliged, and did then ajid there 
order the plaintiff to be banished the said island, 
and to leave and quit the island. And in order 
to carry (his into execution, and to send him 
from and out of the island, he did (then come 
the words of form) gently lay hands upon him 
for that purpose; and accordingly did cause 
him to be kept in prison for a reasonable siiace 
of time, until he could send him out of the 
island ; and then at length he did send him on 
board a vessel from the said island to Cartha- 
gena in Spain, as it was lawful for him to do. 

The plaintiff has said in answer to this, that 
he did it of his own wrontr, and without any such 
cause as he has alledged in' his justification. 
Now whether this justification is good in lunnt 
of law or not, is a matter, gentlemen, that £ 
shall not enter into upon this occasion. For it 
seems to me, that if what has been laid down 
by the gentlemen upon the part of the defen- 
dant is well founded m law, tbey ought to have 
pleaded that matter to the justification of the 
court. But they have not so done, but have 
pleaded a justification, which is denied by the 
plaintiff; and that issue coming here by the 
king's commission of Nisi Prius to be tried by 
you and Itefore me, we must therefore ^ee 
whether he has made out that justification or 
not. And you will please to recollect he says 
in it, that the plaintiff was guilty of a riot and 
disorder, and did endeavour to excite and stir 
up mutiny and so forth in the island. Thus 
much I think one may say, that where a con- 
quest is made of a Christian country (there ia 
some strange doctrine relative to infidel coun- 
tries, as if mfidels had no laws to be governed 
by, that I meddle not with; but as far as re- 
lates to the conquest of a Christian couuiry,) 
certainly it is said, that until the crown does 
promulge laws among them, they are to be 
governed by their ancient laws. ludeeil, com- 
mon sense speaks it, because otherwise they 
would have no laws nor government among 
them. However, thus far may be said, to be 
sure, under such a constitution in which we 
live, that at least natural equity must lie the 
rule, if there is a |M)wer that is not circum- 
scribed by clear, positive, and precise rules. 
Yet both natural justice and equity are the 

frinciples that ought to Gfnvern sucli a trust, 
f any one was to write or speak upon it, it is 
31 



163] 



U GEORGE HI. 



Action for False Impruonment-^ 



[164 



impossible bat they must lay down that propo- 
sition. Then that will be a consideration for 
you to try upon this occasion ; consideriofi^ this 
distiDction, that we are not trying a cause now 
that does happen within the compass of this 
island, but we are trying a fact and a proceed- 
ing that happened in a garrison beyond the 
•eas, a place possessed by the crown of 
Great BriUin for the general benefit of this 
country and of its commerce. 

In order to make out the plaintiff's case, in 
the first place they hate called Basil Cunning- 
bam, who was Serjeant- major in the soyal 
artillery at Minorca in 1771. He says, that 
the plamtiff was there at that time (it is aj^reed 
upon all hands that he is a natire of the island 
ef Minoroa.) When the plaintiff was brought 
into prison, an order was giren out to put three 
additional men upon the £[uard to do duty o? er 
the prisoner Fabrigas : this was S4 hours afler 
be had been in custody. The prison was called 
N* 1, and is a prison where those charged 
with or guilty of capital crimes or desertion are 
general^ put. fle was brought there by a 
part^ of soldiers, and the witness thinks hand- 
cufied. It was afterwards admitted that he 
was. He was confined there four or fi?e days. 
The centioels informed the witness, that they 
had orders that be should bare no conversation 
with any but the prevost-marshal, and that was 
put into the general orders : in fact, that no one 
did Tisit him, as he knew of. The provost- 
marshal has the custody of persons accused of 
capital crimes, and keeps the key of the prison. 
He says, that the plaintiff lived like a gentle- 
man in the island. He says that he the wit- 
ness was at SL Phillip's, and that the plaintiff 
was not tried for any crime. This witness is 
cross-examined, and says he has seen the 
plaintiff at different times for eight or nine 
years : he never heard but that be was a quiet 
inoffensive subject: the plaintiff lived in St. 
Phillip's, and was imprisoned in St. Phillip's 
castle. This witness was there before Mr. 
Mostyn became the goTernor: Mr. Johnston 
was the governor when the witness came first 
to that island. 

James Tweedy.— He was a corporal in the 
toyal artillery in 1771, and was seijeant of the 
guard ; and in the middle of September the 
plaintiff was delivereil a prisoner by the soldiers 
of the 61st regiment. He says he was in prison 
in N* 1 ; that there were orders from the ad- 
jutant-lieutenant not to let any one converse 
with him; he heard the adjutant read it : the 
adjutant's duty is to deliver the orders of the 
commander iji^chief. To relieve us from any 
farther examination relative to that, it was ad- 
mitted by my brother Davv that it was done 
by the defendant's order, 'fhen a book is pro- 
duced to you, and the title of it is, <* Orders 
delivered to the troop\i in Minorca for the year 
t771." '• Sept. 15, 1771. In order to relieve 
the main guanl at St. Phillip's, which now 
mounts a centinel extraordinary upon Anthony 
fubrigas, confined in prison N** 1, general • 
Mostyn orders, that three men be added to the I 



artillery-guard in the Castle -souare, as they 
are most contiguous, and that duty taken by 
them. The centinel must he post^ night and 
day, and is to suffer no person whatever to ap« 
proach the grate in the door of the said prison^ 
either to look in or have any communication 
with the prisoner, the provost-marshal ex- 
cepted, who is constantly to keep the key in 
hb possession." Then the witness goe% on, 
and says the plaintiff's wife and two children 
applied to see the plaintiff; that they were not 
permitted to come nearer than 30 yards of the 

C risen ; that the plaintiff lay upon boards ; he 
ad no bed : his wife brought bedding, but was 
not permitted to carry it to him. He says the 

Sard was sure to be troubled if they bad suf- 
ed any one to come to him, if they had been 
guilty of a breach of the order. lie subsisted 
upon bread and water : that when persons are 
confined for capital offences, they have the 
provisions of the island, bread and lieef, bron^bt 
them. He savs that no oue attempted Co bnng 
any to the plaintiff, because the onler was so 
strict There was an air- hole at the top of the 
prison ; a centinel was placed to keep any per- 
son from approaching it ; and says that was 
not done in any instance before, even of de- 
serters. He says the plaintiff bad a wife and 
five children. He never heard him speak dis- 
respectfully of the governor, only he complained 
whilst in prison of his sufferings. 

William Johns was garrison-gunner at Mi* 
norca in 177 1. He had been there nine vean. 
He knew the plaintiff, who lived genteelly, ai 
much so as any one in St. Phillip's. He says 
the plaiutiff was brought to prison by a file of 
men. Then he was flying on about hand* 
cuffing, and so on, which the defendant's comi* 
sel admitted, as described by the last witness ; 
but he was not kept hand-cuffed in prison. Rft 
says the prison is a ground -floor, and is ael 
apart for capital offenders. The first day he 
was in prison, his son, a lad of fifteen, came to 
see him, and had provisions in a basket. He 
desired the men upon duty to let him carry 
them to his father, and they refused htm. 
You see, gentlemen, it is owing to those strict 
orders, that no man was to have access to 
him. 

John Craig is a matross. He says he wtt 
at Minorca in 1771. He had lieeo there nino 
years. He knew the plaintiff to be in very 
good circumstances ; that is, he was so reck* 
oned by people in the island. This witness 
says, that he did duty upon him when he wac 
in prison, and none were admitted to see him : 
that his wife and child were refused. Ho 
says, that after five or six days coiifinement, 
the witness was at the quay, and saw him piil 
on hoard a vessel that was under sail. Ho 
says, this was done between three and four id 
the morning. He says his wife and child 
came down then to speak to him, but the ceo- 
tioel would not let them come near him, nor 
let the witness speak to him, though he wanted 
bu to do. Then it is admitted that he was ba- 
liibhed, hy Mr. Mostyn'a order, to ft^paia foe 



Vahigm v. Mosiyn. 

^mSySTh* Odlerml him to be taodeil ol Car- 
&•(■»«, knil it w«<: SI) duDp. 

Cflloncl James Bi<lu]|ili «ay», lie has licrn al 
MiMrokt that he knew (lie plaintiff in ,lune 
lltt. He ■laid there, I llimk, lill the year 
ini. He Myi the iiUitiliS' appetnil tu him 
IS mK of the nhal he call) the aecoml tori of 
fafle: be was reputed to hare some houses 
W lincyutls; he had ■ falher Uring. He 

Xlh«t Ite nas oot receired as one iif the 
Be, htu u s trenlleinan. lie aays, " 1 
■kaoM call him a kiiid ul' a Keolleinao farmer." 
]| na kaid \ty ihe couDBel, that the Dohleate 
rfjirthemU all the h'enlry ; but ujjod my 
■donf tka witnew, he lells you, " No : Ihey 
■ike • very ooniidcrable iliatiactioo or the 
lagbtr MBil niferiar oobtesse ;" lo that he it 
•Cat ji«iu taty call in Bn^^tgiiid \a ibe litfht uf 
tW tiu4diing class of men. Ue says, that as 
br as be nfatcrred, he hehnved very well : atid 
nai K* Ihia i;Milleinan speaks frum 1763 lo 
Uf 1, lltAI be liehareil tery well, and had a 
•By (mhI characler. lie says, that he oOeo 
tmthyt^ him to gei wine and uther things, 
■aJ be dispsli-'hed his commiiision very well. 
Be Mys be |irinuiutlly kept company at Cita- 
4i^ with • iloa Vigo and don Saochio, who 
»*n l>o of (he 6rsl rank there (lliat is I lliink, 
thicapiul of ihe Uland ;) that he always be- 



Liimil. K<H era or of ihe itland of Minorca, and 
Im a rc|[unetil of draguuns. This is tbe evi- 
teat IB (upporl orihiKaclLOD by tbe iilainliiT. 

ffhy Ibni, on behalf of the JefeDdaot, they 
«di you thai tbry shall make out Ibis jusliG- 
i«as ; tbat they shall Hhew lo you iba[ ihi« 
•■Whated in a very lorbuleut and disorderly 
-«< iHtty i that he behaied wiib auch ear- 
tsi^M, bikI id such a mauaei', under such 
: -..^>l « ti ce<, as leaded tu incite and tu rai«e 
' idUatu And certainly, gentlemPQ, if that 
' ikt ama, it is ■ mailer of rery serious and 
~-- ■untmia oonoerii indeed. For the go'erDor 
■■• s fnrtaon, wtllioal a poiBibihty nT callinif 
< BMber armeil lorce to auppreni it, ' 
itrs, it a» iiHurreciion should be 
ui bvfi* siDDngsl thrm, it is In 
my fpr*^ muineot aDil irapurtaiice. For a 
fmw inlrastnl in no high aud important a 
MMMB. u»d of auch a delicate sod lichlisb «uri, 
« lb* (rnicrnnienl of ihe island, the governor 
^amli be extremely vigilant tu auppiess the 
l« Nmla «r mutiny and acdilion. This they 



A. D. 1773. 



[166 






« Mcila «C mutiny and acdilio 
* Ibn aliall be Blile to atieiv y. 
A^, a we shall nol be able Id 



Bui, I 



strictly and duly, accurdiiig to the 
- >T it> whkb it ii pleaded ; vet, say they, we 
' <ii< by ancb dfcnmaiances before you, ahew- 
at thM the itmcral behaviour of the plaintifl 
■V ni Ibai bind, aad of that coinptexion, thai 
1 wifl weigb witliyou by no means In give 
b|c JsttUfn. Tnis is what I think was 
)nny noeb tbe anbatanee of what the gen< 
4m» ba* D imalad npou by way of opening 



Wb/ ibM, in tbe KM place, though ii 




read at Ihe concltiilon of ihe parole ei 
may remind you ol the several matters in writ' 
ing Ibat have been read ; and I Ihiak it would 
be but mis-spending your time tor me to read 
(hem ai large over again to you. For when I 
have so dine, 1 am sure 1 shall not be able lo 
do it with more ditlinclness thnn the iu|>eniaua 
officer under me has done ; and when I have 
finished, Ihey would just as mnch be out of 
your memory as Ihey are now. But you will 
remember perfeclly the nature of the pro- 
ceedings. I purpoK to collect them ds well 
as I can intu a fncmi ; to bring the pith of ibem 
as well ss I can to you. The true ground uf 
the dispute was this : This Fabrigas the plain- 
litf wanted, as you understand, the advantage 
of an order of hia late majasly in council, in 
the year IT.'i'i. by which, keeping urdtr the 
afforntian, nut exceeding it, but keeping under 
il, every one was to have ■ right of selling 
wines ; so as he did not exceed the affbratiou. 
Really, genileinen, an exceeding good plan 
this is ; and that is, a tegulatiou of prices ta 
keep people from impuiinK In the musi iinmo- 
derate manner on Ibe inhabitants. Very likely, 
a system of something of tbe like sort would 
not be improper, but be of very considerable 
uae even in this metropolis, for what 1 know. 
But then it seems that this order lasted ooly 
from theyear 1752, during the government of 
general Blakeney. When general Johnston 
succeeded general Blakeney as governor of 
this island, he thought proper to make an al- 
teralion in that order ; and tbe substance of 
the alleralioD which he made was, Ibat for 
the future it should not be in Ihe suburbs of 

departments— lour besides ihia ariaval, as it 
is called, of St. Phillip's) ; and that lur llie 
future it shall not be sold promiscuously by 
every une when Ihe atforalion was made, 
but that for the future Ihe lour wards of ths 
arravsl of St. Phithp's should draw lots, and so 
take it in auccesiion ; I suppose, sell one aller 
anollier till ibe wine is disposed of. And it dues 
seem lo me by the evidence which has been 
given by one of the wiinessei, which you will 

ler than when sold belter skelter and promis- 
cuously. Aud this regulation was pursued with 
anme advantage. Then you see the plaiutiff 
wanted to go back to ihe first order of 1753, 
wbicbistheorder of ibekiiig incouucd. From 
ibence vou see all ihia bustness sprung, and 
from Allimundo's selling wine. That is one 
grievance that was complained of, and which 
seemed to be pretty material, 1 contest, as it 
strikes me; because I recoiled, thai by one of 
the orders It ii expressly forbid that ihe oScen 
or judges, or any of them, should have any in- 
termeddling with trade or tratBc. Now the 
complaint nf the plainiiffngainsiibis Allimundn 
is, that he who had tbe check npon alt tha 
rest, this mustastaph, buys ureal i^iianliiies of 
grapes, and makra a vast quantity of wine him- 
self. So while be kept the othen under check, 



MT] M GEORGE III. 

be tells his own wine. Therefore that is ano- 
tiier tliinji to lie considered of. Therefore you 
aeo there are ivjieaied |»etilion8 upon this o<*ca- 
aioii. And I will only say this : that to be sure 
it inma out at ^enj^tti to hate been a mistake in 
Mr. Wright'a evidencf-, that that numhfr of 
160 |*era(Mis that were nienlionc<l by the defen- 
dant's counsel as people by him to be produced 
to back bis petition, or people with which hta 
petition should lie backed, that be considered 
as a mob, because he takes it down in writing" 
himself: and when it comes to be* read, it docs 
Appear that the ex|>re88i(in of the plaintiff was, 
that he would bring 150 people with him, 
dealers in wine and grapes, in order to »ihew 
that his petition was exceedingly reasonable, 
and would be agreeable to tiiem. Now that 
you see is the substance of this writing, toge- 
ther with the several |>articulars, orders, and 
proceedings, which 1 dare say you have in 
ymir memory. 1 must obsenre this, to be sure, 
these gentlemen are not bred in the train of the 
law, and in a course of legal proceedings; but 
general Mosty n seems to me to be as inquisitive 
as he possibly can to find out the bottom (»f this 
thing. It does not appear from the witnesses 
that the general had the least sdf- interest to 
serve in this business of his own, no profit or 
advantage to himself; there is no evidence 
whatever, not a spark of that sort that appears. 
He sends to Dr. Oliver and Dr. Markadal to 
nake enquiry into this matter. He sends to 
them, and desires to know their opinion. He 
convokes together a council of the field-officers : 
and then they are of opinion upon the whole of 
this business, (whether right or wrong is not to 
the present question, but it strikes me upon 
this evidence, that this general Mosty n noes 
seem to me to be extremely solicitous and de- 
sirous to inform himself as well as he can, what 
is to be done upon the occasion ;) and at length 
it ends in a general answer, sucli as it was, that 
it would be very right to banish this man. Now 
they proceed to call several witnesses. 

James Wright says, he resided in Minorca 
from January 1771 to the middle of the year 
1773, as secretary to the defendant Mr. Mosty n 
the governor. He tells you that this island is 
divided into four districts, exclusive of the ar- 
raval of St. Phillip's, which the witness alwaya 
understood to be separate and distinct from the 
others, and under the immediate order of the 
governor (you will observe, that it is in that 
district that the fortification stands) : so, says 
he, that no magistrate of Mali on could go there 



Action Jor False Imprisonment^^ 



[1«8 



the court of the chief justice criminal.— I would 
ask a question of Mr. Wright. Has this justice 
criminal a commission to try offences P 

Wright. He has the hing*s ' commission 
to try and to hear all causes when they cimie 
before him. He bnngs them to the governor, 
who signs them ; and till the governor has 
signed them, they are not valid. 

Q. But when the covernor has once signed 
them, ban this gentleman thejuriFdictiontotry 
offenders?— /I. The assesseur criminal, and the 
officer fiscal, who sits as judge with him, bring 
their opinion to the governor, who hears and 
api^rovea of their opinion, and signa it. . 

Do3«ou make any distinction beiween one part 
of the island and another P— The arraval oi Bt. 
Phillip's is so exempt from all kind of jnris- 
diction (at least was, when I was there), that it 
is a rule in the island, that if any biidy dies, 
comes by their death by any accident, drowned 
and fished up, that the criminal assessenr, 
with I believe the fiscal and his officers, goes 
to the dead body. They take the thumb, and 
ssy , Who killed yon f This is a form they go 
through by way of bringing about a kind ef 
inquisition taken by a coroner. Whenever they 
bare occasion to go there, they ask the go* 
vemor leave, if i^ithin the arraval ; and there 
is a particular instance of a soldier's wife beinff 
killed by her hnsband. 

Suppose a person is guilty of a murder within 
the arraval, whom is he tried by ?— -The lasea* 
seur criminal goes and takes inqnisition. That 
be does not do, till he,has the governor's leave. 

Suppose a person is murdered, and the mur- 
derer IS found out, to be sure you don't lei 
the murderer escape with impunity ?— Ne. 

Now let me ask you, wiihin the arraval hy 
whom is he tried? — ^The governor appoints, 
but he generally appoints the assesseur. 

Then the governor does not try him him** 
self? — He never tries any thing of the sort* 

Then be deputes somebody to try himP— 
Yes. 

Suppose in lesser offences, of thef\ oiir riot, 
does he not appoint other people?— In smaft 
offences, the mustastaph. 

Mr. Just. Gould. Gentlemen, there was 
in consequence of this affair, a proclamation, 
that no memorial, unless tor mercy, could ho 
presented, unless it was first signed by an ad* 
vocate. adroiited in their courts. He saj^s that 
the king in council issues u|K>n application, 
alterations, which are registered in the court of 
royal government ; which inclmies, as 1 under- 

aSi* • B I **i ^^1 ** a* 



to exercise any function, withnut leave first ob- stand him, both the civil and the criminal jn- 

tained from the governor. The whole is)»nd, risdiction. He says that the defendant hein|f 

be says, is goemed by the Sp.uiish laws, sub- much teozed by the plaiiitifl', by repeated ap- 

2 ^ A.'L I :^.i t.. *u„— . -. u..* -...* -.1. _i: .:. i: Tl^.i %mL «v.:.^i.. «1 : uL* 



iect to be varied by the t;overiior ; hut not s*. ob- 
ject to that variation in re spert to meum and 
ftttfffi of property, but as fo the internal police 
of the island. And he teJIs yon, that his pro- 
clamation, with a iiennliy annexed, is of such 
force, that where the penalty is annexed, if 
it is broken, the party is subject to it, and u 
iSaUe to be imprisoned for non-payment He 

9«y9 tbil 1b9 putjT if fcised aod brought into 



plications, directed Mr. Wright to enquire what 
aort of a man he was. He tells vou, that the 
plaintiff 'k father h^s some nmafl vineyards; 
that the plniiitiflf is a lover of politics ; that he 
spends five days in seven in talking of |iolitics ; 
that at that time he believes the plaintiff had no 
property at all. Then he speaks as to the cha« 
racter of Mr. Mosiyn. It seems net to be dia-/ 
puted at kaat but lie is an officeri and a H&an of 




^ahrigas v. Motlt/«. 



A. D. 17T3. 



[ITO 



J U fiDssible: no one ex- 
r Feeliiigt, antl liis conilucl in 
inaniier. Ttit-n tliis ffCH (le- 
ws CDCs ihrougli llie whole detiit of thcue 
^«tl wrilittgB wbkH liaTif liven read to jimi, 
•Wi,H I nM Wtiire, I •.liall not tske i>|. 
jMrUcne, f«r llie rfasuoB I hute ■Ireaily ^rea 

am rrpMiltni; oier ajraio, tor you tiive 
thrni kII read. He tells you, otnongat 
^dun^, tb«l tlie bliabitaaU of (lie urrnvil 
■H • vetiliaft to Mr. Hoatyn (ha( Ihe r'^uiila- 
a«miic1tt continue, and dot be alKted, as Hie 
jtitdfrdraiml. He iHlu you. that tl.e plain- 
•ffbinBi{be«a willi iWceDernl's aiiMu-camp, 
M Miirss inrt him. and civilly desired him to 
IMdOdt irb«l h« trished; that il should be 
<ar. lie says there nas one Mr. Vedall that 
antnmnml^rpreitr. and spriest, ooaSe^uy, 
IMjoinrd witb Mr. Wcigh( to press the pFaiD' 
(f la (a bame >Dd niind his affairs, and no( 
tihiae trimaetf >tito (ruiible. Then (his gen- 
Ibwa cirears, that Mr. Vedall raid rrom the 
ftaixHT •■ iol*rjireter, thnt he would come 
tilii 110 Htm tn back his petition, or with a 
pMM backed viih Hi} m«n. This ^nlle- 
mniaia, be tiii'terstuod by thatamob. 1 i^hall 
pvany stale t» you, us I hare already hinted 
(•pa, the niivtaVe in ibal respect. He saya 
tM* wtm a IvDiT <i<>n*ergBlioD by Vedall wilb 
iw ^utiff, aa bis interiirpter, to desire him to 
- .1: he Mill n;t<eBt<-d the tame. Then be 
.11 iliat he inlbrined ihe piiFrn'ir, ihal there 
■ |«i[ile ibut he undvratood were tn ac- 
-iiiif tbis man as a mob the next day. 
>' ilie x^neral seat Tor the officer* to nirel 
. llie neit tnoraiiiif. They Bccordln<;ly 
V. A large Dumber of people were ex- 
."id, but only four people nt' the inferior 
'-r W«wgbt a petiliun. They were dis- 
^'^ to go bome peaceably. Thai Ihe result 
-M nbole «aa, that the plainlitT was ba- 
.^ fnM) tlie island. Ue says, Ilial Ihe de- 
-tMl aent him the iritnrsi lo the chief jus- 
tiMd*il and criminal, who are both Mioor- 
•W, to aak what wai the Kovenior's power 
■ Ms (!•»? They ae lit word back, ibat his 
pal J rxiOHli'd nier the man in any shape he 
jlrii ; and if he chose to banish him, he 
tufbt i tbvy would aniner It with their ean. 
Be carried ilur answer to llie defetidanl; tint 
Wnrr, doubting: Ititnself of the law, the as- 
ivanr eiail deUnred him an onler In wriliog;, 
vfcwh wai dated in I.'>90; aod that imparled, 
Ihll thoolfh il was tery Gt Ibr llie goffrnifr to 
■k (b* adne« of Ihe asseaaeura ciiil, yet that 
iS DDt by any meana bound lo 
Dt deci^ite, as in mat- 
lys, that die assesseur 
. leni his officer, which 
bia lipstalf, to the ^orernor, lo ap- 
Ihe plaiatilf, who accordingly was 
r« k««t in priuin about Arc days, and 



teiafpnipOTty. ili 



Tben ha idb you, upon 
Ata. tbal AUtmiiiidn uiakcs wine and sells it in 
|l«a, bnl ox, a* be hclievea, in retail. He 
>p thai (be Hhtofiutu laofiiage ia very bad 




Spanish. Then he is desired lo look al the 
pH|ier; (ar he had a paper, wiih which, in 
Kiting; bis e*id<9nce, be rH'reslied his memory : 
biit upon hrokini; lo (he words iu ihst p»ier 
relative to Ibe 160 men, the words that Iw baa 

" I1ie Earns day Mr. Fubi igas came liir an 
■nsiver lo hie |>el<tiOD, be told the governor's 
cpcretary, iliat he should Come the next day 
with a pi-lition nf people concerned in grapra 
and wine, which they would eign and vnoie 
witb ihemselies, to the noraber^ 150." 

Sotlint you see this gentleman aayK, as I 
ajiprehend him, { I dou'l know whether this 
pBpei' that be has now producnl ia llie original 
paper that he set down the minutes on Ibr re- 
cnjleclioii and fur remembrance al the lime ; I 
dnu'i know whe'hvr lhai is so or not — how. 
erer, it may be a cojiy of it) he said he set il 
down upon loose piecea of paper at first. If 
thai be the case, tbc strong probability ia, that 
thia entry that I bare read (ii you must hsie 
been set down rei'eully alter the convenalJon. 
You see the worls arc, that it was to be 150 
people concerned in graiies and winn. Then 
he tells vou, that upon the lllh the governor 
and the neld-olBccTs met, and, as you heard 
upon his original examination- receited a me- 
niorlal by four men signed by blank person* 
— you see the nnmber it letl blank. Thia 
gentleman say« he cannot recollect ihe numltr. 
He says be was couiilintc them, but be believes 
there were more than 40, between 41 and 47, 
he can't be exact ; but Ihe number of persons 
liy whom it la siijned is in thia copy blank. 
The purport uf llii> memorial is la desire that 
ihe old practice may be pursued. To which 
he answered by the officers, ihsl Ihcy should 
return home, and behave as good and j>eacea- 
ble subjects Iu bis majealy ought lo do. I 
have anticipated il. I see he says, according 
to hia memory, there were from 41 lo 47 aig- 
natnres. There were a greut many marks, 
yoii understand, lo this petition delirered by 
the four men. He can't say be counted it 
through, and can't affirm what Ihe number 
was. He nat further examined ; and he aava, 
that upon strict enquiry it did nnt appear ifiat 
abore one in ten supported ibe plaintilTs de- 
sire ; he ia sure he allows a greater pro|<ortioit 
than the truth was : and he says he informed 
Ihe defend ant Mr. Mostvn of ihat. Re made 
the enquiry at ibe defendant's request, in order 
to discover the sense uf the inhabitants- 
John Pleydfll, ard-du-camp to the govenim', 
says, that on the 9th of September ITTl.tbe 
plaintiff asked btm to »ee the goremor. He 
told him if he had any tbint^ fur the governor, 
he would deliver it. AIit a liiile hetitaiion 
the plainlifrdehvered a niemi.iial, and desired 
bim to tell the governor he should come die 
next day accompanied by 300 or iiO Inhabi- 
tants of SI. Phillip's, lie aaya he carried the 
memmial lo the gnrernor, and told tiiin wbal 
the plaintiff bad said ; ujHin nhich he says, 
that the governor that day tent to the com* 
maniling ofiicert «f tba corps to toeet at tfaa 



171J 



U GEORGE III. 



Action Jir False ImprisonmerU'^ 



im 



ffoveraor'fi the next mdrning, to see bow he 
thoalil receive the |)latntiff, and the fieople that 
were to come with him. Now here you see in 
the efidence giren by this Mr. Pleydell, there 
is not that ezplaoatioo of the nature of the end 
and desijp of these 200 or 250 people being to 
come with him, as there is m tnat memo- 
randum that Mr. Wright produced : for this is 
in general said 300 or 250 people. And I can't 
help remarking to you, that it seemed to make 
an impression on the governor, and to alarm 
him : for it was upon his delivering this mes- 
sage to him that Pleydell says he did desire 
the 6eld and commanding officers of the corps 
to assemble the next morning, to see how be 
should receive the plaintiff and the people that 
were to accompany him. But he says, in- 
stead of the plaintiff and such a number of 
people, four men came the nexk day and 
Drought a memorial. He believes all the 
commanding officers were there. He was told 
by the governor that the sense of all the offi- 
cers was, that the plaintiff should be taken up 
as a daogen>us and seditious person : he says 
be had consulted the Minorquin judges, and 
their opinion was the same with the military 
officers. He says this gentleman is an inha- 
bitant of the arraval, just by the glacis of the 
fort : and says that he kept his father's vine- 
yard : and that the defendant, far from being 
a tyrannical over- bearing man, is one of much 
temper and humanity, and the witness served 
under him the last war. 

Upon his cross-examination, he understood 
by the plaintiff's saying he should bring 200 
or 250 men, that it was to enforce or give 
weight to bis petition, to certify that that was 
their opinion ; that is, that they concurred in 
the plamtiff 's opinion : but, says he, so many 
people coming together is au act in itself of a 
tumultuous kmd. He says the people in ge- 
-neral wished to have Mr. Johnston's regulation 
continued. As to the memorial that was 
brought by the four men, he did not read it, 
and bad it not in his hand ; but by just the 
superficial glance he had of it, be thinks there 
might be 50 or 60 names to it. 

Robert Hudson, fort* adjutant, says, that 
upon the lOtb or 1 1th of September, tlie mns- 
tastaph of St, Phillip's told him, that upon de- 
livenng out a proclamation (though I ought 
not to sum that up, for what this Allimundo 
■aid is no sort of evidence) — but he says that 
having received this intelligence (so far it is 
material) he did give the governor an informa- 
tion of it: the governor was then in Mahon. 
He says, that iK'fore the plaintiff made this ob- 
jection, he nerer heard any objections to Mr. 
Johnston's regulation ; that it was to prevent 
the wine from turning sour, by being sold in 
that hurrying sort of way ; that great quanti- 
ties of it produce fluxes and oUier diseases 
among the garrison, for there are few cellars it 
seems in the garrison. He says after this re- 
gulation, in ser oral years e x perience, none of 
the wine dkl tarn sour. Tmd Ihera was a- 
f ucstMB that oocuicd to me to Hkf wj 



^ 



the serving it out in this sparing manner did 
not influence the price. They said, no, be- 
cause the afforation fixed the pnoe that it could 
not exceed it. 

Colonel Patrick Mackellar says he knows 
the plaintiff; he was called Red Toney: 1 
suppose he has red hair. He says he bprs a 
very bad character ; that he was a seditious, 
troublesome, drunken, shuflUng fellow; that 
he had many complaints against him from two 
mustastaphs. He was in the island from 1736 
to 1750, and again from May 1760 to last May. 
He tells) you the arraval of St. Phillip's is sur- 
rounded by a lime-wall on one side, and the 
other side a ditch ; that the arraral is a royalty, 
where the governor has a jg^ater power than 
any where else ; that the judges can't inter- 
fere but by the governor's consent. — That cor- 
responds exactly with the explanation that Mr. 
Wright gites. — He says, in other parts of the 
island there are jurats, but in the royalty there 
is only this mustastaph, who is appointed by 
the governor or commander in chief, and is aft 
pleasure displaced by him. He takes care of 
weights, measures, and markets, and of all 
wine and the expenditure of it, and settles 
little disputes between the inhabitants in the 
first instance. That the magistrates at Mahon 
ut the afforation within tneir jurisdictions. 

his mustastaph does not make any afforatkn 
himself, but acquiesces under that of Mahon : 
he only signifies the afforation that has been 
made at Mahon. The Minorquinsare in ge- 
neral governed by the Spanish laws. When 
it serves their purpose, they plead the English 
laws. Some are well affected to our country ; 
some are not. He attended the governor once 
or twice on account of the plaintiff; and he 
says that the general opinion of all the offi- 
cers was, that the plaintiff was a dangerous 
person, and that it was proper to take him up 
and bring him to punishment ; and were of 
opinion to banish him. He says the defen- 
dant is a good officer, a polite well-bred 
man, that he carried liis command in the 
genteelest manner, and is a person of great 
humanity. 

On his cross* examination he says, that b« 
and the other field-officerb met by the deten- 
ant's desure, to know what was their opinion 
upon this business. Two of the judges of the 
island thought it entirely in the governor's 
breast to do as he pleased ; but there was no 
trial. He does not recollect whether major 
Norton was of that opinion : it was the opinion 
of the majority. He was asked whether major 
Rigby was of that opinion or not ? He says 
he can't say how that was, but does not re- 
member that any one officer dissented from 
that opinion. 

Then Edward Blakeney, secretary to the 

Swernor of that name, is examined. He says 
at nothing can be executed in the arraval of 
St. Phillip's but by the goremor's permisskM-t 
it is a loyahj ; be has the absolute gofcn^ 
He sava that gen. Blatai^ a^ 
' '1 the jm XTMba^ 







Fnbrigai V. Mostipu 

3U tfiars into Suain or 
1 time uf peace. He sayi 
■u nfterwRrila liy a gr*al deal of inter- 
n Ipflte tnrPD li> ihoae people 10 relurn. 
y<t iliBt llie |iuwer ilsell trss oeier ills- 
porJ, ■ml he look ii lo be baniletl down from 
Ik Spaiiiarile, bj wliose laws, as jou obsene, 
Ih IliiiurquiDi are goierned, nnd at their owd 
n^ue«t. He «ii]rB the juilges have applied lo 
Hw ■itnera for ibe goveruor's leare to execute 
pBce—w ill llie arnTal. lie says llie lale 
imt wnl four re^meols to relieve tbe irad|i« 
nuaned liicre, (bq order of humanily, like liia 
a^jnly)aiHl (olia*eall llie vri*eB[in<l chilitren 
tnofltt Itoine: Lowever, a priest took a liking 
1» vo* of the ^a\mg nomen, and wnulil not 
Mrerherup. The Driest wns baiiiaheil ; Ibe 
! of wbicl) waa, ibe girl vm de- 
Bod tlie priest was brought back 
(oin. lie gives lbe«e as three loaiances 
ntrc pewtle were bHuiabed from tbe iiland. 
H* M]r« tl»l iheee I'riart, two PraociECdug, 
w«r*, •* he belieres, antireii, MinorijuiaH. This 

* tbie parole etidence that i« siren on the 
jKlaS tb« ilefendanl. I bave already slated 
-'}oo Ibe cabsiance of all that written evi- 
nce : joo baie heard ji, and jou are fully 
•>ten of all the circamstances Bltcnding this 

Kaw, geollemeD, ii is for your consideralinn, 
ifcillirr tbe defendant, general Mostyn, has 
afc (wt bi« juiliGcation ; whelher he has 
ymt6 that tbe derendant was guilty ofa riul, 
^itd * d»turbaoL-e, and that be emleaioured 
"= 'wiU! and lo ilir up a tnutiuy and a sedition 
- llie ;[arr>*OD. If that is the case, I should 
-■^ae, gr'odflineu, tbe plainlilF will appear to 
;«u a ncrwin of a vety dangerous disposi- 
tM( •»■( I bat tome very strict methods must 
hmiwijf to be taken in Buch a silualion, In 
Mkllt pre*erTe the (farrison, and to preTent 
MaMrrcction. If it is insinuated to the aol- 
tm% tlwt they are abused by the officers under 
Ik cnrcToor, by the gurernnr'a connivance, 

* ky hit rcmimneiB; we will say, Ihougli he 
Ui»o kind of iatereit in It, but by his gross 
MBHKMgemonl, ibey nre oppressed and im- 
*Bais|nHi;--»uppo*e«uoh a persuasion abould 
WiafMeil into ihe people composing the gar- 
nna, 1 think it i« lery clear, and I neeil not 
•f ue M yan, lo abew wbal dnngertiui conie- 
ytt i- M may rMall from (hat. Then you 
*fl eoMiler tiow this case stands in thai re- 
dact. You (re thiit this pervon, afier several 
f^n (» D«rw nvulalion liDvIng been made by 
piiBui Johnnton) is for selling up a^ain and 
mVnnc an old rri[iilBtiun made In 1752 i and 

" ! orerail lO to do. Then the 

ad was to be taken. It lain 

ie|a reacind Ibis, as I ap- 

*feaal dispute it lint that by 

*^ - ■ his plea, he is 

il and military 

lod I presume, 

leBuch an aller- 

; the goferoor 

4 with it. Then 




.. D. 1778. 



[!T* 



Ibis person wants lo set that old buiiness oa 
loot agaio ; and be does produce, (lor so I 
must lake it from tbe writing which Ihal gen- 
tleman hai produced) be does mean to shew l« 
the governor, that there are a Tast nutnUer of 
people of his sense in tbe affair. Tbetnislor- 
lune of il U, however, thai Ibis is not expreasly 
conveyed lo Ilia governor ; because, aecording 
to the whole belief of Ibe ageni, ibougb ha 
understood that it was meant lo give weight 
to tbe petition, uot to proceed to direct vio- 
lence; forwbati can find, that was notdirect- 
ly explained lo general Moslyn. Now you 
will consider u]ion this evidence, whether you 
are satiified that ibis was such b behaviour in 
plainiiff, as lo affiird a juit conclusion, Ihal 



how 



n that V 






irup 






and a mutiny in the garrison ; 
tlier be meant no more than earnestly to presa 
his suit, and le endeavour to obtain redreu 
from what seemed lo bim to be a grievance. 
If you shall see It in that latter light, lo b« 
sure there is no ijueslion at all that he will bw 
entitled to recover in ibis action. As for tha 
damages, 1 sliall nut say a word upon that 
matter, because it is yonr province to coniider 
on il upon all the circuuuiances, Then thera 
is another consideration, which will be a legal 
CDDsideraiion : that supposing you should ha 
of opinion that this was really a seditious helia* 
vionr in this plaintiff, which yoa will consider 
of, and also whether he acteJin such a manner 
MS to siir op sedition, you will be pleased to 
say, that when you brinjrin your verdict. Tbe 
next thing is, thatsupposingyou seetheplaiu- 
liff's conduct in that light as a mutinous pur- 
pose, whether the defendant could be warranted 
to proceed in that manner. That is, to be sore, 
B matter of very great consequence. It is not 
like persona in tbiseoantry, in England, where 
no freeman shall be banished his country ; 
which is carried to such an extent, that lord 
Coke tells us, that it is not in tbe power of tbe 
king to send a man against his will even to he 
tbe lord- lieutenant of Ireland (1 don't lielieve 
there are many genllemeu, thai would recoil 
at Ibal); but it could not be done, because it 
would be ail exile: you drive a man against 
bis will out of his native country. Bui how- 
ever, this iaa case you see in a coni]uere<t island, 
in a ceded island. And certainty 1 should 
conceive myself, that if in a garrison where 
il is absolutely necessary to beep down all 
these inulinuiis spirils, from the aj'parent rea- 
son of danger, that il must certainly be law- 
ful for the governor at IcasI to lav a man up in 
prison that is turbulent. But I should doubt a 
great deal myself ; il wdl beamalttr thilyou, 
genllemeti, will have an opporlunily lo consider, 
if you please, if you shall be of opinion that 
the plainlilTs behaviour was sediliuus; and 
tbiit IS the reason that I desire you to atlend to 
that, and tell me, when you give in your ver- 
dict. It would be carrying inalters lo a very 
great length indeed, in my appreheuaon, lo 
■ay, that yoa should exile and banish * man 
from bto oativa aountry. I ctnool, litljog 



m] 



UGEOEGE ni. 



AiAvmJijT Falu Jnipivotrnml'^ 



[176 



here, and u at prevent adrited, thick that cm 
in such a situattuu ibatcooM be ivamnUd. I 
UDDOt think bnt tbat a perMD might bo ae> 
cuied Biul confiued, in oriler to be brought to 
trill, uid piMfierty puniahed for it. I lea** 
il to ynu UDdcr them obterfatiooa, and yoo 
will cooaider upon tite whole of it, what da~ 
mages you ahall please to give to the [iJaia- 
tifT. As to the defeodanl, yoa hear the cha- 
racter be bcara frum all the wlluesaea: a maii 
of great humaDity, who haa tteeo guillj' of an I tot damage* 
ioordinale ute ol* hia power, but sot wiLb a '' — 

nalefukot, bad, aoil wicked detigo. To be 
•ure, you will uot deal out Ibe dainagea witb 
the aaine *ieir aa you would *gain>t a nuo 
that acted clearly aud Jema'ttralily wilb ma- 
lice, ll ia your profiuce, genllemen, to con 
ndcT all the circumalMkcea, and to gire in your 
Tetdict accord iugly. 

The jury withdrew, and in abonl an honr 
Kturueit, and ga*e in their ter<Jiet for llie plain- 
tiff; with 3,000/. danrai(a,andalleailRafwit. 
—And at the aarae time nid, that, in rbrir opi- 
nion, the plaintiff was not guilty of mutiny or 
icditioD, or acted in any way lending thereto. 



FdKTHEB nOCEBDIMGS T 



TUIB ClDSE. 



The eouniel for Uie defendant, while the 
jury withdrew to cnoBider ibeir verdict, tea- 
dcred to the judge mbiDtM of a bill of excep- 
tjona s and on tlie fourth day of Klichaelmaa- 
term, the Coart of Comuion-PIeaa waa a»OTe<l 
Iw a new trial. 

The defendant'! counael made hia niotioD od 
tvo grouuU. 

First, far ezceu of damage* ; alledgingthal 
iLe jury bad proceeded oo a inialalfe, liir they 
bad found that ibe plaintiff was noi guilty nl 
mutiny or sediliun ; whereoa he inuited it was 
IDotl plain from the wrilien evidence, that the 

tlaintiff had endeafuured ID make the garrison 
elieve that be was their friend. 

Secuodly, that a new trial oaght la be 
granted, because Ibis actioa could not be niain- 
taineil, as the Court had no juriadicliou. 

The rule to ahew cause was, of course, 
granted. 

On the 3Slh of November, Mr. Juat. Gould 
r«|)orled the evidence, which agreed with tlie 
printed trial. On the 46lh, it wu tclemnly 
Ugued on the Hrst otyedion of exceis uf da- 
naKci, ilie Court uot permitting Iho defend- 
ant's couoael lo urgue the nemud objection, as 
ihey said il would be introducing a new mode 
of practice, which might e*eatnally be preju- 
dicial lo •ailor* ; aud ai the bill of exce|iliooa 
went with Iho record to the court of Kiug'a- 
beuch, tbat waa the proper court to daiermine 
on it. 

Lord Chief Jnitice De Grry delirered hii 
opinion lu the following purpon. 

I have always considered Ibia node of ap- 
pHcation for a new IruU, as very aaluury to the 
wtlor*. who may be injored hy mislako ; and 
litawue to the jury, .»il reftim. Uwir enoii, 



if they commit any, and is a happy subHitDlc 

for the much more grievnni pnKvediug tbat 

the common law baa directed. With regard 

to the interposiiiun of the courts nf juiiice on 

the quantum of damages, where the subject of 

the luit ia contract, the Court hai an easy ml* 

logo by in rectifying the mistakea uf the jury, 

because there is a certain lest and ftaudard. 

As liir instance, if a man ihoald bring an action 

' " lOOf , and the jury should give 

.,000/. uoiter the idea of in- 

lereit, they would gu upon a mistaken prin- 

certain the party could notnara 



dfi,, . 



injury adequate to that compruaa- 
tiiin : the damage* would be excroaiTe, imd th* 
Court would correct it. But in peraonal 
wrongs, it is much mure difficult lo draw a 
line, I do not go so far aa lo say, ihat in per- 
sonal wronga the Court will never iuierpoafc 
even upoo the article of escemiTc damage*, if 
they are oulrageuua, and appear so to ilie Court; 
that is, aa my brother Gould expressed it, if it 
apprari, iu giving the duniages, that the jury 
did uiil act will) deliberation, but with paasioii, 
partiality, or corruption. As <br ioatauce, if 
tiTO ordinary men should quarrel at an al*> 
boi»e, and one should give Ihe other a fillip 
opon the nose, and 1,(X)0/. ahotild be gina 
for dainageti, which is ten times more than 
bolh the parlies are worth, such damages 
iroiild be evidence that the jury had not acui 
wiih the deliberaiion Ihat the administratioii of 
justice require*. It i* a peraonal tori, bolthc- 
damage* are excessive. There are other cir^ 
Gumatances, where lite Conrt, even upon ezcea* 
•i*e damages, might interpose: and I think 
the couotel lor governor Hoslyn have verj 
wisely cndearourM to ground ihemaelvea tinoK 
such a principle ID this cause; which is, tut 
the jury, in aaaeasin^ the compenialion fbr tha 
injury, have proceeded on a mistake. It it 
possible tlml to many instances that mistake 
may arise from the direction of the Court ; fbr 
the Court may perhaps direct Ihe jury to at 
tend to a circumstauce, that in point of law ia 
not prnved, or is not Ihe subject-matter for their 
coosider.ll lull : or il is possible that Ihe jury 
may so miilake the evidence, aa lo believe Ihe 
fact to betme, when it isnotso: then it cornea 
to he a progier motion fir a new tnal, becauae 
the verdict is contrary to evidence. Or tba 
jury may give credit \n such circnmstanceii, 
which either have not been proved, or are nK 
true, and they may ageravale the damagcy 
upon lliat account : they then act under a mia> 
take, which most certainly ought lo be rectified. 
That is the ground upon which the present ap- 
idication is tnaile. Bui if you consider it u 
your own mind, it will oecesaarity result to thia 
propnsitioD, that the jury hare Ibuod a fact 
contrary lo eiiilence. As my brother Davj 
u aware ihat there might be some difficulty 
mamlaining thai proposiiinn, he put it ints 
BDOtber shape, and aaid it was a circumstancs 
Ihat was proper for the jury to consider a* a 
gronnd for mitigaling the damagea ; inilead of 
ahich, they bad fron Ihil oiicunutuieo >(■ 



177] 



Fabrigas o. Mostyiu 



A. ». 1775. 



[178 



fviTfttotf the damagM. So that, upon the 

wMe, it will still rfcar to the same propoti- 

tiM, that the J have acted upon a mistake, in 

fifing aari|^avatt*tl damages upon a fact, which 

ihfy hare fooml contrary to evidence. For 

ftqr were ananimoasly of opinion, that what 

Ik plaintiff did, was not done with any sedi- 

iKm vie^, or tending thereto, but was an 

flvaest preasing of a suit to be relie?ed from a 

frievanee supposed. That was the enquiry 

ttey were particularly ordered by my brother 

GsuM to make ; and that was the answer that 

Ihcy gave. Now, if in point of fact, they were 

m mistaken, as that they ought not to ha?e 

ken of opinion that the plaintiff did not act 

with a seditious ?iew, but was only pressing 

kiportanately a suit for relief from a supposed 

gnerance, then they have given damages upon 

a fake supposition ; they have given such as 

ue DOl piroportionate to the* injury received. 

The argament then seems to me to come to 

this, that they have believed a fact which they 

aagbt not to have believed, because the proof 

was against it. We are therefore to consider, 

whether the damages ought to have been raised 

ss hiph or not. And there are two cases in- 

Mted upon. One is the behaviour of Mr. Fa- 

kigas, as tending to raise disorder and sedition 

k tbe goreniment. The other is the conduct 

af |overoor Mostyn, in extenuation of damages, 

is acting under a mistake, and having taken 

Ae best adnce the nature of his situation 

admit. In order to understand this, we 

for a moment the situation the go- 

vvMBeBt stood in. 

TUa island was conquered in 1708. The 
nB|nererB (no matter in what mode) had 
• i^|bl to impose what laws they pleased. 
^■Btbe cession of the island, by the eleventh 
artide of the treaty of Utrecht, part of the right 
if the conqueror was giren up ; for it is stipu- 
falcd, that the inhabitants shall enjoy their 
bsBuurs, estates, and religion. So far there- 
Ike the right of the conqueror is restrained ; 
bsl with regard to their laws, there was no 
MipolatioD, nor was it ever understood so by 
Mwr people. It is well known that the earl 
if Stanhope and the duke of Argyle, as pleni- 
potentiarieii upon this subject, and afterwards 
■y lord Boliogbroke, did assure the inhabi- 
tttls, that they should enjoy their own rights 
ni privileges, still subject to the supreme do- 
toiioo of the conqueror. Those rights and 
privileges which thev were to enjoy, were the 
flSlabKshed municipal laws of the island, under 
soeh regulations as the legislature of this conn- 
^ should impose upon them. This assu- 
riBce, made at that time, has been attended to 
kr government ever since ; for they have had 
m enjoyment of their privileges so assured to 
Ibem, and have had such regulations, as the 
gsvcrument and the nature of iJTairs have from 
ttBc to time required. 

The king in council, in the year 1752, (upon 

wcral complaints having been made a^inst 

fcacfml Anstruther, who had been the gover- 

isr) made tbe regulation, as it ia called, of 

VOL. AX. 




1753 ; by which the king in council intended 
to provide afifuinst that oppressive power of the 
governor, which the inhabitants had com- 
plained of, and that the people of the island 
should be at liberty to sell their wines at the 
price fixed by the jurats of (he different ter- 
minos.— -These powers were soon found, or 
thought, to be abused ; which occasioned a 
representation to he made by tbe then governor 
to the king in council, which produced the new 
regulation of 1753, which leaned on the other 
side, as the natives said : for as the former was 
supposed to give too much power to the magis- 
trates of the island, making them independent 
of the governor ; so this threw too much power 
into the hands of the governor, and laid them 
too much at his mercy. 

There is one thing mentioned in my brother 
Gould's report, which I think proper to take 
notice of, because it should not be so mintaken. 
Oueof the witnesses in the cauise represented 
to the jury, that in some particular cases, espe- 
cially in criminal matters, the governor resident 
upon the island does exercise a legislative 
power.* It was gross ignorance in that person 
to imagine soch a thing. 1 may say, it was 
impossible, that a man who lived upon the 
island, in the station he had done, should not 
know better, than to think that the governor 
had a civil and criminal power vested in him. 
In the island, the governor is the king's ser- 
vant : his commi^»ion is from the king, and 
he is to execute the power he is invest^ with 
under that commission, which is to execute the 
laws of Minorca under such regulations as the 
king shall make in council. How does it stand 
after the conquest of this island in 1757, by 
the French, and the relinquishment of it upon 
the peace? When general Johnston was sent 
as deputy -governor, he thought fit to make a 
new regulation. Now, I conceive, it was a vain 
iman^ination in the witnesses at the trial, (for 
we don't want to go to Minorca to understand 
the consitution of that island) it therefore was 
a vain imagination in the witnesses to say, that 
there were ^^e terminos in the island of Mi- 
norca. I have at various times seen a multi- 
tude of authentic documents and papers rela- 
tive to that island, and I do not believe, in any 
one of them, that the idea of the arraval of St. 
Phillip's being a distinct jurisdiction was erer 
started. Mahon is one of the four terminus: 
ISt. Phillip's and all the district about it, is com- 
prehended within the termino of tl'Iahon. But^ 
however, as it happens to lie near the glacis of 
the fortification, and the governor's power (I 
don't mean his legal authority) being there 
greater than it may be in more distant parts of 
the island, there has been a respect shewn him, 
a decency |>erhaps to the governor, which has 
prevented the magistrates interfering without 
his knowledge. But to suppose that there is a 
distinct jurisdiction, separate from the govern- 
ment of the island, is ridiculous and absurd : it 
is what 1 never did hear of, till it was men- 



N 



* Vide Mr. Wright's evidence, ante. 



179J 



14 GEORGE IIL 



Adionjor Fabe Impritmment-^ 



[180 



tiooed in my brother GouM's report. Geneial 
Johnston made an alteration in the arra? al of 
St. Phillip's, which is a district of a luile or two 
in circamference, with some few hundre<l in- 
habitants. He divided this into a subdivision 
of four other districts, and annulled by his own 
ttothority the regulation of 1752, respecting 
the aiode by which the wines were to be sold. 
jia far as appears in this cause, he did that 
without authority. If he had the sanction of 
gofemment, his instructions should have ap- 
peared, if the defendant intended to a? ail him- 
self of them. I only mean to be understood, 
that general Johnston had no authority to su- 
persede the order of counsel by his own power ; 
out at the same time it seems to be a very sa- 
lutary provision ; aud if he had represented it 
to tlie lung in council, no doubt but it would 
have been approved of. I may say that 
the inhabitants approved of it, because from 
that time there never has been any complaint 
of it. A few years ago there were a multitude 
of coiBplaints brought against the arbitrary 
acts, as they were called, and the oppressive 
oonduct of this very general Johnston. They 
were heard in a full coiuicil with a great deal 
of solemnity for a great number of days, 
and the council came into a resolution upon 
then. This alteration of the order in 1763 
' was not one of their charges against him ; 
therefore it is clear, that the inbabilants of 
the arraval did sot at that time think it an 
oppression. 

We come now to the point of time, when 
Mr. Fabrira complained of it. i will not 
condemn him for referring to the order of 
council. He had a right to know whether this 
alteration of governor Johnston was made by 
authority, and whether it had the effect of the 
power of the king in council ; therefore I do 
not condemn the thing itself. Mr. Fabrigas 
not having met wiih that success which he ex- 
pected, (thouffh governor Mostyn, 1 think, till 
the time of the arrest and commitment, acted 
with a great deal of caution, judgment, and 
prudence, I can almost say impartiality) and 
not being satisfied with the opinion of the go- 
vernor upon the representation and defence of 
jlllimundo, which he had never seen, desires to 
see it. His petition is rejected. This produces 
a peevish application again and again to the 
governor, and from one complaint another 
arises. New grievances are supposed to be 
received, not f nly by Mr. Fabrigas, but by the 
inhabitants of the arraval at large : and 1 can- 
not say that 1 approve of the manner in which 
he did prosecute tiin claim : the effect of it is 
another thing He certainlj did not obstrve 
that decency and respect to the (i^overnor which 
he oui;ht to have done. If the governor 
did not attend to bis complaints, the kin^f in 
council was open to him. We ail know, that 
the way to the king in council has been pur- 
sued very often, where the governor ban not 
attended to the complaints of the Minorquins. 
Mm expressions indeed have ihe appearance of 
■ility and respect ; but yet ihvro is a petu- 



lance in the continuing his petitions, which 
n\\g\ki disturb the governor. Thus the matter 
goes on ; this man still complaining, and ear« 
nestly pressing of his suit upon a grievanco 
supposed, till the secretary informed the go- 
vernor, that the plaintiff would come next day 
with his petition backed with 160 of the dealers 
in grapes and wine. This it is that is supposed 
to alarm the governor. Now 1 will not reflect 
so much upon the honour of any governor of 
the garrison of fort St Phillip's, as to suppose, 
that he really tliought his garrison was m any 
more danger than this court is at the present 
moment; nor will I suppose, that if he did 
think his garrison was in danger, that he would 
have taken such feeble means to defend it. 
The governor was disconcerted by the petu- 
lance of the man, and was off his guard ; and 
though he took the advice of those who were 
the proper persons to advise him there, yet bo 
must have too much sense to imagine, that tho 
advice they gave him was sucli as he could 
either in law or reason follow. I aai not 
speaking now of the law of this island ; but 
it is totally contrary to all principles, and 
to every idea of justice in any country. 
But the next day, this petition is presented 
by four men only. Then there is an end 
of all danger to the garrison and the govern- 
meot ; and you plainly see no disturbance was 
meant; nor is there any evidence of hiasolicit- 
ing the people, of his breeding cabals among 
them, or exciting any tumult or disorder. Tho 
plaintiff had, to say the worst, only behaved 
nimself ill in the mode of his importunity ; and 
when he was open to the laws of that country 
(for such laws I presume there mtist be) if m 
had offended, he might have been prosecuted 
in the courts of criminal jurisdiction. Whether 
he acted improperly, from not having suc- 
ceeded in prevailing upon the majority of tho 
people to think he was ri^ht in desiring to in- 
force the order of 1752, is not the question: 
the people seemed to be content with tue varia- 
tion, or deviation, made by general Johnston* 
Now when all these matters are over, this man 
is committed to prison ; and there is the first 
complaint : and I must toke it upon this mo- 
tion, that it was a false imprisonment. If tho 
governor had secured him, nay, if he had 
barely committed him, that he micht have been 
amenable to justice; an'd if he had immediately 
ordered a prosecution tipon any part of his con- 
duct ; it would have been another question, and 
might have received a different consideration. 
But he commits him to the worst prison in tho 
island ; and in a way which I cannot conceive 
came from general Mostyn. What could in- 
duce him to use a man Mith such hardship and 
inhumanity P Was not putting him into prison 
sufficient? Why i«as he to he deprived of tho 
society of his wife and children, without being 
allowed any thing for bis sustenance but bread 
and uater, and to lie upon the floor P In this 
condition he remains for six days : then comon 
a ftec«>nd impriKooment ; for 1 take the whole 
year to be a cuntiututtion of the fidse imprisoBr 




Tahrigat v, Mailt/n, 

Hb ta lh#D COnftneil im Uianl a aliip, . 
r ibr iitn nf r hmiinlimfnl in t'ar(hiii;eDii. 
r. MnsTvn wan teil ii>ii> lliia. iin- 
■ IbatiU pncltcwuf iheUlanil tfl'Miiiorcn, b; 
«Akh ii wu tinual to Imnish - I giiiiposp ihe 
lU HfDi)n|iim* ibnuubl fit t» iilviw linn lo tliii 
wmmitr. But ibt- ^trninr Umw th*i lie could 
Nnwf imnrtsnn him for « iwelvemfinlh, than 
tabeoBuU inflici lliulorlure; yet the liir- ' 
toe, u xpI) an haniiilinicnt, tma iliV nIH taw nf 
HiMwrm, whirh fell of cnurip wlirn il came 
itia nor {Ht^*iinii>n. Eriry BiiLrliiih |[o»ernor j 
kww bf coiilil nnt inflirt tlic toriure ; ilie eoD- 
ntiiiion of (bin couniry jiiit nn end Id lliat idea. . 
•n - . .. II ilrBg(f(s(nn boinl ■ Blii|i, »ilb 

~~i nf inliiimanily and liaril- I 
• I cmiiiai iwlifce of i;Fneral Moitvn ; ' 
beamed inloafuiviun enunlry, anil of 
i for I belieie there are , 
r-rfHMM ipirn, ibnt no peraoiis ihould an lo ' 
>^n, ar l>« iiermilied lo qoit ihe pnri nf Car- ' 
* yi . All liiR mntiniKiiice In Spain, I Ionic 

CM ■ «Duliiiuance of llie falie imprison- 
{ faaeauae e>ery cnnatraint upon nenonal 
Smj, wilboul leK^I aulliurjiy, ii a lalae ioi- 
OlMit; ami il a nptain leaies a sailor 
1 ilr<rrt iKland, tlioiigli he is lell al liberty 
■, trt Ibe keeplntj: !'■■>■ from, that place lo 
'■ be bad a right by law to cociie. Ii an 



A. D. 1779. 
years. The Court was applied lo for ■ new 
■Hal, upon rxc-Biire damsgcB. Wliol did iba 
Cnuii say? (and I neier be«nl llieir JiidEineiit 
in Ibnt rnatler arraigned) '* We are noi ilie JD- 
diciitiirc lu delerniine upon the deliberate judj^ 
Jury, iipnn aurh a aiibjecl as Ihit. 



kHfiaaiUnes 
Irii|WD r 



I proper cailae the ciiDfta nf jiiRlice 
men ■aii is a judicial way eiercined any power 
«bicb tiMiir Uwa wnutd hate snppDrteit, and 
■MHl llir tax* nFUli* oountry nu|{lit not, what 
Ikceffrctof that wniild have becu has nolliin^ 
M ilu OTib ibii oauie ; for nuw we take it upon 
te KPneral Imuc, Not Ouilly. In thia case. 
A* niD ha* been impritoned under circum- 
flneaa »f ifreiit harditiip for Iwelre niontha, 
■rfkefi rramlheRammdnicaliat) nfbia family 
mt km own cuDcema. lu this lituaiino be 
blag* tm aOiun ; «ud Ihe Jury huvu tbnii||;hl 
•ilai^r3,0<io/.ilaDiagF«. ToIm sura, {1,000/. 
baa unmenite lum foraMinorquin to recoter : 
■y brMber Da*y Ibouijhl proper In une the 
ttyaaaiim "f (U ueia\g an imtra^eoii» aiiin. To 
«fi*ha( ■■ ibr talueafllM liberty nf a man'* 
fnaiiu.aeclnded from hia braily. under circum- 
■UMvurhaidibip, fur Iweire inonlbi, ia a (tiffi- 
aill inaltvr. Men'a minla will vary tnucb about 
it: I alimiUI ibiok one tbinft, another would 
Ihink ■mlha. lu tl>i< cbm of penonnl wrontfii. 
aha* Im* Ibe law aaid ? The law ban naiJ, Ihal 
^fary of IHalle men iball he llie jnil^ea lo de- 
itrmtttt aiHl avea* tbe comiiensaiinii for Ihat 
^— pal «ra<i|[. \\ e cannul but rei-ollrcl what 
pM*rd ia ih-a* iinfurlimaiF affair* ibal tiap|>#n- 
alatout <lir wcrclary of uste and a |irlnier'a 
bi]. A ■•■rtaai ia taken itp under a mltiake, 
Ml earri'it l>< a brlUr tluiue llian liis own, la 
M »>ib Uirri |>i..v.<iiuiH llian he had of hia 
Dak. ao'l •• t.rdii-il briirr Ihan he wnuld have 




Hove Ibejury eacrclspd their jiid:jti 
there any iinpntaiion upon their mnduct ex- 
cept Ihp Idea nf Ihe comppnaation not being 
pro|inrtiuneil ? Not at nil." Hov, can a court 
of justice, thai i* to determine npnn Uw, set a 
value upon tliii, and lay, it ia wntngfF What 
woiild be llie onaeqiience ofil? If we say tliii 
ia nmng, we niuct ^ay irhal la righu Then 
t*e are lo tell the jury, " You are not tn Gnd 
S.OOD;." ■■ Mb] we find 3,000/ 1,000/, 500 (. 
or 100/. r Tell ua wliere you tblnk we ahould 
herlijlit?" "We muMnnl lellyon; we bar* 
no authority to do that ; liul you itiual oot gite 
oulrageoua ilamaifes." I'W tliiiugh 1 may 
know in my own mind whereaboulu I abould 
compeimta the Injurv, wilhoiilBByinK wbelher 
it would he more or fesa tbui tbis, yet I caiinol 
pretcribe tn the jury what I think the value of 
perBonal liberty. But il is aald, that tbe go- 
Temordid what he uould in hi« ailualion ; but 
wsa miataben. If' be wni miniaken, it ia a 



il was preasFd belbte the jury, and they paid 
Gucb attention to it a« lliey thouglit proper; 
and Iheretbre It would be totally evoking the 
cause from ita pro|ier determinalion lo say, that 
ifaejury ought lu give some other damsgea thau 
ttiey hate. Aa lo the ground on which the 
defvudani'a counEel have made this moiinii, it 
arisea frooi an accident, and I ihink au acci- 
dint which was very properly protlded for; 
for bad it not been, thai the learned judge who 
tried the cause had patticularly in lermi recotn- 
meaded the cnnsiderslion ot' (his point to lbs 
jury, and taken their answer, the defendant 
could not hate had any ground lo apjily for a 
new trial. In my opluion, the learned judge 
did tery right, and acted with great prudence 
and justice to the parties, and tu the future 
questions that may arise in Ihiacauae; tiir it 
liiuks aa if Ihe parlies from the beginning in- 
tended tn apply either hare nr elsewhere. Now 
il ia a terv ditferent question, whstber the go- 
vernor of"^ Minorca, finding a subject mutinoiii 
and seditious, and disiurbiog his ((overninent, 
can ari-esi and imprison him? or, whether he 
can justify whut be has done, the jury baling 
found thai he was iieillivr inulinous nor aedi> 
liousf Had they fomtd the contrary, ihatfact 
tiiight have been taken inio cunslderaliun in a 
euuri of JQBtice ; bui as ibcy liate exercised 
thai jurisdiction thecontliiutlon has given ihetn, 
I ililiik there aught not lo be a new trial. 

nir. Just. Guufdwd, Ihat the Court was not 
wariMiiied in deirrinuilug thai ihe damagea 
ne>e exresaive, wiiliout bieakliig in upon the 
fundumenial principles of the conaliiuUon. 

Hr. Just. BlaiktCoae observed, that these 
(laiuagea goqU uui he called angry or tiadialiv* 



I8S] 



H GEORGE III. 



Actitmjor Fake Imprhonment'^ 



[tSft 



Otroages, as the injury was at ontrtgeous as 
the dama^ret could l>e ejccetsive. 

Mr. Just. Narfs declared, that Mr. Fabrigfat 
had been impriRoued and treated in such a 
manner ihat he did not care to repeat. 

The whole bench were unanimous in refuvin^ 
a new trial, and the rule wai consequently dis- 
cbarj^ed. 

Farther Proceedings in the Cause of Fa- 
brigas and mosttn. 

The Court of Common Pleas ha? ingf refused 
governor Mostyn a new trial, be reported to a 
Writ of Error, which was allowed on the 14tb 
of December 1773. 

On the 16th of December he was obUged to 
put in bail. 

A rule was ii^iFen to transcribe the record in 
Hilary term, 1774. 

The first Scire Facias issued in Easter 
term. 

The second Scire Facias issued in the same 
term, on the 16tb of May, returnable in Tri- 
mtv-terro. 

Mr. Fabrigas, the defendant in error, was 
•erfed with a summons on the 7th of June, 
that the plaintiff mi|y|^ht have time to assi^ 
errors till judge Gould had put his seal to £e 
bill of exceptions. 

On the 8(b of June, judge Gould came into 
the court of King's- bench, and acknowWd^fed 
bis seal.— The errors were assigned on the 16th 
of June. The defendant pleaded in nulla est 
erratum on the 30th. — A Concilium was moved 
for on the 31st of June. — It was set down for 
argument for the first Friday in Michaelmas 
term. 

It was argued on Tuesday the 15tb of No- 
vember 1774 ; and the record is as follows : 

*' The Record of the Proceedings in Fabrigas 

and Mostyn. 

« The Writ of Error. 

'* As yet of Trinity-term, in the 14th year 
of tlie reigu of king Geoiige the third. 

■*' Our lord the king sent to his trusty and 
well- beloved sir William de Grey, knight, hii^ 
chief justice of the bench, his close writ, in 
these words ; that is to say : George the third, 
by the grace of Go<l, of Great Britain, France, 
and Ireland, king, '-defender of the faith, &c. 
To oar trusty and well- beloved sir William de 
.Grey, knight, our chief justice of the bench, 
greeting. . Forasmuch as in the record and 
prooesA, as also in giving of jud^'ment in a 
plaint which was in enr court before you and 
youp associates, our Juittioes of the bench, by 
our writ lietween Anthony Fabrit^s and John 
Mostyn, esq of a plea ot trenpass, assault, and 
iilittimpri^nment, as it m said, manifest error 
bath intervened, to the great damage of the 
•aid John, as by hiscomplaiut we are informed : 
we, willing that the said error (if any be) be 
doly amended, and full and speedy justice done 
to the aaid parties in this befaalfi do comnHmd 



you, that if judgment lie given therenpon, then 
you send to us distinctly and plainly, under 
your seal, the record and process of the said 
plaint, and a41 things toucning the same and 
this writ ; so that we may have them in fifleea 
days of St. Hilary, wheresoever we shall than 
be iu England ; that inspecting the record aad 
process aforesaid, we may cause further to km 
done thereupon for amending the said error, •• 
of right, and according to the law and custooa 
of England, shall be meet to be done. WitneM 
oorself at Westminster, the 6th day of De- 
cember, in the 14tb year of our reign, Hil. A. L, 

" The Return to the Writ. 

" The Answer of sir William de Grayi 
knight, chief justice within named. — The re* 
curd and process of the plaint within nnentionods 
with all tnings touching the same, I send be* 
fore our lord the king, wheresoever, &c. at a 
day within contained, in a certain record to tbe 
writ annexed, as I am within commanded, 
5ec. WnxiAM de Grey. 

*' Pleas. Inrolled at Westminster before air 
William de Grey, knight, and his brethren, 
justices of bis majesty's court of GomoMa 
Bench, of Easter- term, in the 19th year of the 
reign of our sovereign lord George the third, 
by the grace of God, of Great Britain, FranoOi 
and Ireland, king, d^^fender of the faith, and le 
forth. Rolls 616 and 617. 

"The Declaration. 

** In the Common Pleas. London to «ril, 
John Mottyn, late of Westminster, in the oount^f 
of Middlesex, esquire, was attached to answer 
Anthony Fabrigas of a plea, wherefore be 
with force and arms made an assault upoe tlw 
said Anthony at Minorca, (to wit) at Londett 
aforesaid, in the parish of Saint Mary-le-Bew^ 
in the ward of Cheap, and beat, wonnded, aed 
ill-treated him, and there imprisoned him, aod 
kept and detained him in prison there for e 
long time without any reasonable or pro b abl e 
cause, contrary to the laws and customs ef 
this realm, against the will of the said Anthony, 
and compellml the said Anthony to dejiart freei 
and leave Minorca aforesaid, where the nid 
Anthony was dwelling and resident, and carriid 
and caused to be carried the said Anthony frea 
Minorca aforesaid, to Carthagena in the domi- 
nions of the king of Spain, against the will ef 
the said Anthony ; whereby the said Anthony 
was put to great expence and trouble, and tbe 
goods and effects of the said Anthony tlie w i 
were diminished, lost, spoiled, and consumed, 
and the family of the said Anthony were 
brought to great want and distress, and tbe 
said Anthony, during all the said time, wee 
thereby deprived of the c«imfert of his aaid 
family : and also wherefore the said Johu witb 
force and arms made another assault upon the 
said Anthony at Minorca, (to wit) at Ltondott 
aforesaid, in tlie pari*ih and ward aforesaid, aed 
beat, woended, and ill-treated him, and ilwrne 
imprisoned him, aod kept and detained hint 
there in priteii for e long timt^ withoet any 



185] ' Fabrigas o. Moityn. 

NMooiMc or probable caiMe, cootrary to tho 
kvo oo4l ooaioont of tbii realoi, id^iiMfc the 
vill of the md Aoihoo j ; and did other wroo^v 
tihiiD, to the ^reat daniai^ of the iaid Au- 
^^mj^ and against the peace of our lord the 
■lokiiig: and thereupon the said Anthony, 
^Richard Gregory, his attorney, complains, 
Ml the aaid John, on the first day of Septeni- 
kr, IB the year of our Lord 177 1, with force 
•ad anus, (to wit) with swords, sta? es, sticks, 
•ad fislOy made an assault upon the said Ao- 
dHsy, at Minorca, (\o wit) at lx»ndon aforesaid, 
■ mt parish of Ht. Mary -le- Bow, in the ward 
sf Cbeaf y and beat, wounded, and ill- treated 
Msi, and then and there imprisoned him, and 
bpt and detained him in prison there for a long 
(to wit) for the space of ten months, with* 




•at aoT r e aao aabte or probable cause, contrary 
Is iha laws and customs of this realm, against 
db will aC the said Anthony, and compelled 
'^~ '^ Anthony to depart from and leave 
i fo re sa ld, where the said Anthony was 
dvrelliog aod resident, and carried and 
to he carried the said Anthony from 
aforesaid to Carthsgena, in the do- 
«f the king of Spain, against the will 
■f the aaid Anthony ; whereby the said An- 
I then and there put to great expenoe 
trovhie, and the goods and effects of the 
Anthony there were diminished, lost, 
apoiM and consumed,- and the family of the 
Anthony were thereby brought to great 
and distress, and the said Anthony during 
tfaa aaid time was deprived of the comfort of 
aaid family ; and also, for that the said 
•o the said first dav of September, in the 
aComr Lord 1771 aforesaid, with force and 
(to wit) with swords, staves, sticks, and 
BMule another assault upon the said An- 
, at Minorca, (to wit) at London afore- 
/in the parish and ward aforesaid, and then 
there beat, wounded, and ill-treated him, 
then and there iuiprisoned him, and kept 
detained him there in prison for a long 
>, (to wit) for the space of other ten months, 
any reasonable or probable cause, 
to the laws and custonns of this/ealm, 
apiDst the will of the said Anthony ; and 
thm and there did other wrongs to him the 
■id Autliooy, to the great damage of the said 
Aalhoay , and against the peace of our said lord 
kin|f: and thereupon the said Anthony 
that he is injured and hath sustained 
to the value of 19,000/. And thereof 
hehringvth suit, &c. 

" The Plea* 

** And the said John, by James Da^e^ his 
mamey, comei and defends the force and in- 
jary, and says he is n(»t'guitty of the premises 
above laid to his charge in manner and form as 
the aaid Anthony hath above complaineil there- 
•f against him ; and of this he puts himself 
apan the country, &c. and the said Anthony 
dstb ao Kkewiiie. And for further plea in this 
bthalf as to the making the said assault upon 
^ nid Aathooy in the firat count in the said 



A. D. 177S. [186 

declaration mentioned, and beating and ilU 
treating him, and imprisoning him, and keep-* 
iog and detaining him in prison for the aaid 
space of time in tlie said declaration mentioned^ 
sitid compelling the said Anthony to depart 
from and leave Minorca aforesaid, and carry- 
ing and causing to be carried the said Anthony 
from Alioorca aforesaid to Carthagena, in tba 
fiomiuion^ of the king of Spain, by the said 
Johu al)ove supuosed to have been done ; he 
the said John, by leave of the court here for 
this purpose first had and obtained, according 
to the form of the atatute in that case mmim 
and profided, says, that the aaid Anthony 
ought not to have or maintain his said action 
thereof againat him the said John, becauae ha 
says that he the said John, at the said tima, 
&c. aod long before, was governor of the said 
island of Minorca, and during all that time was 
invested with and did hold and exercise all tba 
powers, privile^, and authorities, civil and 
military, uetonging and relating to the go? em- 
ment of the said island of Minorca, in parts be- 
yond the seas; and the said Anthony before 
the said time when, &c. (to wit) on the said lat 
day of September, in the year aforesaid, at tba 
said island of Minorca aforesaid, was guilty of 
a riot and disturbance of the peace, order, and 
government of the said island, aod was endea- 
vouring to create and raise a mutiny and sedi* 
tion among the inhabitants of the said island^ 
in breach of the peace, violation of the lawa» 
and in subversion of all order and government ; 
whereupon the said John, so being goverdor of 
the said island of Minorca as aforeaaid, at tba 
said time when, &c. in order to preserve tba 
peace and government of the said island, was 
obliged, and did then and there order the said 
Anthoiiy to be banished from the said island of 
Minorca, and to leave aod quit the said island. 
And in order to banish and send the said An- 
thony from and out of the said island, did then 
and there for that purpose gently lay hands 
upon the said Anthony, and did then and thera 
seize and arrest him, and did keep and detain 
the said Anthony, before lie could be banished 
and sent from out of the said island, for a short 
space of time, (to wit) for the space of six tiays 
then next following ; and afterwards, to wit, 
on the 7th day of Sf ptemlier, in the year af<ira- 
said, at Minorca aforesaid, did carry and causa 
to be carried the said Anthony, on board a cer- 
tain vessel, from the island of Minorca afore- 
said to Carthat^ena aforesai<l, as it was bwful 
fur him to do for the cause aforesaid, which ara 
the same, making the said assault upon tha 
said Anthony in tht* first count of the said de- 
claration mentioned, and beating and ih-treat- 
ing him, and imprisfoning him, and keeping 
and detaining him in prison for the said space 
of titnc in the said first count of the said decla- 
ration mentioned, and compelling the said An- 
thony to depart fri»m and leave Minorca afore- 
said, and carrying and causing to be carried 
the aaid Anthony from Minorca to Gartbagena, 
in the dominions of the king of Spain, %^ hereof 
the said Anthony hath aboveeomplaiut J against 



187J 



14 GEORGE III. 



Action Jor False Imprisonment'-' 



[1S8 



him: and this he is retdj to ferify. Where- 
ibre he preys juilgmeot it' the said Anthony 
ought to have or maintain his said action there- 
of againxt him, 5ec. without this that the said 
John was guilty of the said trespass, assault, 
and imprisoninent, at the parish of St. Mary le 
Bow, in the ward of Cheap, or elsewhere out of 
the said island of Minorca aforesaid. 

'* Thomas Walker. 

*< The Replication. 

** And the said Anthony, as to the said plea of 
him the said Juhu, by him secondly above 
pleaded in bar, as to the said assaulting the 
nid Anthony in the said first count of the said 
declaration mentioned, and beating and ill- 
treatiutf him, and imprisoning him, and keep- 
ing and detaining him in prison for the said 
apace of time in the said declaration mentioned, 
and cump«*Uing the said Anthony to depart 
IVom and leave Minorca aforesaid, and carry- 
ing ami causing to be carried the said Anthony 
from Minorca aforesaid lo Carthagena, in the 
dominions of the king of S|uiin, by the said 
John above done, protesting that the said plea, 
and tiie roattera therein contained are insuffi- 
cient in law to bar the said Anthonv from 
maintaining his said action against the said 
John. For replication in this ^half, he saith, 
that the said Anthony ought not, bv reason of 
any thin^ bv the said John above in pleading 
alleged, to be barred from havini^ his said ac- 
tion thereof maintained against him ; becanse, 
he saith, that the said John, of his own wrong, 
and without atich cause as the said John hath 
above in his said plea alleged, on the same day 
and year aforesaid, at London aforesaid, in the 
parish and ward aforesaid, assaulted the said 
Anthony, and beat and ill-treated hiin,ttnd im- 
prisoned him, and kept and detained him in 
prison for the said space of time in the said de- 
claration mentioned, and compelIe<l the said 
Anthony to depart from and leave Minorca 
aforesaid, and carried and caused to be carried 
the said Anihony from Minorca aforesaid to 
Carthagena, in the dominions of the king of 
Spain aforesaid, in manner and form as the 
said Anthony hath above complained against 
him ; and this he prays may be enquired of by 
the country. And the said John doth so 
likewise. John Glynn. 

" Award of the Venire. 

** Therefore, as well to try this issue as the 
said other issue between the said parties above 
joined, it is commanded to the sheriffs, that 
they caiibe to come here, in three weeks of the 
Holy Trinity, twelve, &c. by w hom, &c. and 
who neither, &c. to recognize, Sec. because as 
well, ^c. 

" At which day the jury between the said 
parties of the plea aforesaid, was respited here 
.until on the morrow of All Souls then next 
following, unless sir Henry Gould, kni^h , one 
of the king*K juHtices of the bench here as- 
■igned by rorm of the statute, &c. should first 
eooei 00 Fndaj the Sod of July last pest| ai 



the Guildhtill of the city of Loodoo. And 
ROW here at this day cometh the said Anthony^ 
by his said attorney, and the said justice, before 
whom, dkc. hath sent here his record io thcae 
words. 



«( 



The Postea. 



** That is to say, afterwards, on the day and 
in the year, and at the place within- raentiondly 
come as well the within- mentioned Anthony 
Fabrigas as the within-named John Mostyn, by 
their attornies within-named, before sir Hearv 
Gould, knight, one of the justices of the benco 
within- named, and certain of the jurori, 
whereof mention is within made, summoned to 
be upon that jury, (that is to say) Thomas 
Zachary, Thomas Ashby, David Powell, and 
Walter Ewer, being required, come, and od 
that jury are sworn ; and becanse tlie rest of 
the jurora of the same jury do not appear, there* 
fore eight other peraons of the by-standcre, 
being by the sherifls within-written hereuolo 
elected, at the request of the said Anthony, ami 
by the command of the said sir Henry Ooald, 
are now newly set down, whose nanotes are 
affiled in the within-written pannd, according 
to the form of the statute, &c. which said 
jun>ra so newly set down, (that is to say) Wil- 
liam Tomkyn, Gilbert Howard, Thomas Boal- 
by, and John Newhall, John King, Jaaaea 
Smith, William Hurley, and James Selby, 
being also required, come likewise, and, toge» 
ther with the said other jurora before inipaa- 
nelled, are tried and sworn to speak the truth of 
the mattera within contained ; who, upon their 
oath sav, that as to the firet issue within-joined^ 
the said John Mostyn is goilty of the premises 
within laid to his charge, in manner and fiim 
as the said Anthony hath within complainedl 
against him : and as to the other issue within 
joined, the said jurora on their said oath further 
say, that the said John Mostyn, of his own 
wrong, and without such cause as he hath in 
pleading within alledged, on the day and in tha 
year within mentioned, at London, in the parish 
and ward within mentioned, assaulted the said 
Anthony, and beat and ill-treated him, and im* 
prisoned him, and kept and detained him in 
prison for the space of time in the within de> 
claration mentioned, and compelled him the 
said Anthony to depart from and leave Minorca 
within roentifkoed, and carried and caused la 
be carried the suid Anthony from Minorca 
aforesaid to CarthaGfena, in ihe dominions of tha 
king of Spain within mentioned, iu manner and 
form as he the sdid Anthony hath by his repli* 
cation within alledged ; and ihey aasess the 
damages of the said Anthony, by reason of the 
premises within specified, besides his coats sod 
charges by him laid out and eiuended aheiit 
his suit in this behalf, to 3,000i. and for his 
said costs and charge*;, to turty shillings. 
Therefore it is considered, that the said An« 
thony recover against the said John his da- 
mages aforesaid, to 3,000/., and UL bv the 
jurv aforesaid, in form atoresaid asseascdy and 
88/. 10 thesakl Anthony, at his leqacst, ibr thn 



J89] 



Fabrigoi v. MMyfU 



A. D. 1773. 



[190 



CMfti and chftrfpes aforesaid, by the Court here 
ftrndrease adjudged ; which said damages in 
Ike whole amouot to 3,090/., &c. Afterwards 

« at is to say) before our lord the kiog at 
citminster, conies the said John Mostyn, in 
baprouer peraon, and says, that at the trial of 
Ikaid caoae before the said sir Henry Gould, 
Isfhtt the counsel of him the said John Mos- 
t^ proposed certain exceptions to the ophiion 
• Be aaid sir Henr^r Gould, which exceptions 
■we written in a hill, and sealed by the said 
■%e; which bill of exceptions the said John 
Mtya now brings into this court ; and prays 
i writ of our lord the king to the said sir Henry 
Gaald, to eonfesa or deny his seal so put to the 
■id bill of exceptions, according to the form of 
Iha statute in such cases made and pro? ided, 
vbicfa writ is granted to him returnable iu 15 
^ta firoiD the day of the Hoi v Trinity ; at 
vhidi day, before our lord the king at West- 
■iwatfr, conies the said Johu Mostyn in his 

S«r pamn ; and the said sir Henry Gould, 
[bt, likewise in his proper person, comes 
acknowledges bis seal put to the said bill 
tf ooeptknia, which bill of exceptions foUowa 
■ tiMao worda. 

<< The Bill of Exceptions. 

^ That ia to say, on the morrow of the Holy 
TWnity, 13 Geo. 3. Be it remembered, that in 
Aatenn of Easter, iu the 13th year of the 
MfB of our sovereign lord George the third, 
■aw kin^ of Great Britain, and so forth, came 
Aashaay Fabrigaa, by Richard Gregory hia 
MHBCjt into the court of our said lord the king 
if Iho Bench at Weatminster, and impleads 
Uoatyo, late of Weatminster, in the 
of Middlesex, esq. in a certain plea of 
on which the said Anthony declared 
bim. 

[Tbe declaration, plea, and replication, are 
act out verbatim, which, to avoid repeti- 
are now omitted. Af^er. those pleadings 
the bin of exceptions proceeds in these words.] 

** And afterwarda (to wit) at the sittings of 

Ma Priua, bolden at the Guildhall of the city 

af London aforesaid, in and for the said city, 

Mom the bon. air Henry Gould, knight, one 

ef the joatioea of our said lord the king of the 

Bench, Thomas Lloyd, esq. being associated to 

him aoDording t/o the form oC the statute in such 

caae made and provided, on Monday the 12th 

day of inly, in the 13tli year of the reign of 

ear aaid lord the now king, the aforesaid issues 

aa joined between the said parties as afuresaid, 

fsme on to be tried by a jury of the city of 

Landon aforesaid, for that purpose duly iin- 

faaoelled ; at which day came there as well 

the aaid Anthony Fabrigas as the said John 

Maatyo, by their attornies aforesaid. And the 

JBiora of the jury aforesaid, impannelled to try 

Ibe said iasuea, being called over, some of them, 

asaKly. Tliomaa Zacbary, Thomas Ashby, 

Usvid Powell, and Walter Ewer, came aud 

acre then and there in due manner chosen and 

Mvom lo try the aame issues ; and because the 

OH af tba jurors of the same jury did not ap- 



pear, therefore othera of the by-atanders being 
chosen by the sheriffs, at the request of the said 
Anthony, and by command of the said justice, 
were appointed anew, whose namea were 
affixed to the pannel of the said jury, according 
to the form of the statute in such case made 
and provided ; which said jurors so appoioted 
anew, (to wit) William Tomkyn, Gilbert 
Howard, Thomas Boulby, John Newball, 
John King, James Smith, William Hurley, 
and James Selby, being likewise called, came, 
and were then and there in due manner tried 
and sworn to try the same issues. And upon 
the trial of the said issues, the counsel learned 
in the Ulw for the said Anthony Fabrigas, to 
maintain and prove his said declaration, on hia 
part gave in evidence, that the said John, ai 
the island of Minorca, on the 17th day of 
September, in the year of our Lord 1771, aeized 
and took the aaid Anthony, and without any 
trial impriaoned him for the space of six daya, 
a^inst his will, and banished him for the apace 
of twelve months from the said island of Mi« 
noroa, and caused him to be put by soldiers on 
board a ship, and to be transported from the 
said iaiand of Minorca to Cartbagena in Spain, 
for the said space of twelve months : where- 
upon the counsel for the said John Mostvn did 
then and there, on the part of the aaid John 
Mostyn, give in evidence, that the said 
Anthony was a native of Minorca, and at the 
time of taking, aeizing, and imprisoning him, 
and banishing him as aforesaid, waa residing 
in and an inhabitant of the arraval of St. Phil* 
lip'a in the said island. And it was further 

Siven in evidence on the part of the aaid 
efendant, that the said island of Minorca 
waa ceded to the crown of Great Bri- 
tain by the king of Spain, by the treaty of 
Utrecht, in the year of our Lord 17 13 ; and 
that the article in the said treaty, relative to 
the said island, is as follows : ** Rex porr(> Ca« 
tholicus, pro se, hseredibus et successoriboa 
suis, cedit parit^r corooie Magne Britannia 
totam insulam Minorca;, ad e^mque transfert 
in perpetuum jus omne dominiCimque plenisai- 
mum aupradictam insulam, speciatlm vero 
super urbem arcem portum muuitiones et si* 
num Minorisenses, vulg6 Port Mahon, un4 
cum aliis portubus locis oppidisque in prefatft 
insult sitis ; provisum tamen est ut in articub 
suprascripto quod nullum perfugium, neque 
recpptaculum patebit Maurorum navibua bel-' 
licis quibuscOnque in Purtu Mahonis, aut in 
alio quovis portu dictee insulce Minoitse, qu6 
orae Hispanise ipsorum excursiontbus iniestea 
reddantur. Quinim6 commorandi 8olummod6 
caus4 secundilm pacta convcnta Mauris eorCim- 
que navigiis introitus in insulam pnefatam per- 
mittetur. Promittit etiam ex su& parte regina 
Magnee Britanniie, qu5d si quand5 insulam 
Minorcce et portus oppida locaque in e^lem 
aita a coronll regnorum suorum quovis modo 
alienari in posternm contigerit, dabiiur coronsa 
Hispaniee ante nationem altam qiiauictinque 
prima optio possessionem et proprietatem pitr^ 
memoratce insule redimenUi. Spondet insup^ 



191] 



14 GEORGE III. 



Adkmjbf Fabe ImpriMnment^^ 



[19f 



regria ma roajestM Magne Britannue, ie fitctu- 
rsm lit iocobe omnen insuls pnelktoe taiii ec- 
desiastici quam secalam bonis suis unirenis, 
etboDOribaa tut6 pacal^ue fruantur. Atque 
reli^onia Romaoa Catholics iiher uaut iit 
permittetura, Otqae etiamejut modi ratioDefs in^- 
■ntnr, ad tuendaio reliij^onein praMlictain to 
cftdem insiilft, que ^ gtibernatione civili atque 
ik legibas Magnie Britannie, penit&s abtiorrere 
noD f ideaolar. Polenint etiam suis honoribiis 
ct bonis frui, qui nuocsus Catholice majestatit 
verTitio addicii saiit, etiamsi in eodrm perman- 
•erint ; et liceat cuicunque, qui prsefataro in- 
aulam relinquere ? oliierit, bona sua ? eodere et 
liber^ io Hispaoiam transvehere." And it was 
further given in evidence oo the part of the said 
defendant, that the Minoroiiins are in general 
governed by the Spanish laws, but, when it 
•ervet their purpose, plead the English laws. 
And it was further pvPD in evidence on the 
behalf of the said defendant, that there are 
certain magistrates, called the chief justice 
criminal, and the chief justice civil, in the said 
island. And it was further given in evidence 
by James Wright, the secretary to the defen- 
dant, that the said island is divided into four 
districts, exclusive of the arraval of St. Phil- 
lip's, which the witness always understood 
to be separate and distinct from the others, and 
under tlie immediate order of the governor ; 
so that no magistrate of Mahoii could go there 
to exercise any function without leave first had 
from the governor. And it was further given 
in evidence on the part of the said defendant, 
by colonel Patrick Mackellar, that the arraval 
of St. Phillip's is surrounded by a line- wall on 
4>ne side, aud on the other by the sea, and is 
called the royalty, where the governor has 
greater power than any where else in the 
island, and where the judges cannot interfere 
but by the governor's consent. And it was 
further given in evidence by £dwanl Blalce- 
ney, who had been secretary to governor 
Blakeney, that nothing can be executed in the 
arraval but by the governor's leave ; and the 
judges have applied to him the witness for the 
governor's leave to execute pnicess there. 
And ft was further given in evidence by the 
■aid James Wright, that for the trial of murder 
and other great offences committed within the 
said arraval, u(M}ii application to the governor, 
be generally appoints the asseaseur criminal of 
Mabon, and for lesser offences the mustastaph ; 
and that the said John Mustyn, at the time 
of the seksing, taking, imprisoning, and banish- 
ing the said Anthony, was the governor of the 
said island of Minorca, under and hy virtue of 
certain letters patent of his present majesty, 
under the great Mai of Great Britain, bearing 
date the 2il day of March, iu the 8tli year of 
bis reign, whereby hi« majesty constituted and 
appointed the said defendant to be captain- ge- 
neral and governor in chief in and over the 
said island of Minorca, and the town and gar- 
rison of Port Mahon, and the castles, forts, and 
other works and fortifications thereunto belongs 
ing, and all other towns and pUces within the 



said island ; and his majesty did thereby give 
and grant onto the said defendant John Mos- 
tyn, or in his absence to the lieutenaint-govser- 
nor, or commander in chief for the time being, 
all ffowers, privileges, and authorities, civil and 
military, unto the said office belonging, to 
have, hold, and exercise the said office, powers, 
privileges, and authorities. dnrin^Jf his majesty's 
Hill and pleasure; and the said defendant Jolin 
Mostyn, or in his absence the lieutenant-go- 
vernor, or commander in chief for the time 
beinsT, arc to observe and obey all the orders 
and instructions therewith given to him, and 
all such further and other orders and instmc- 
tions as shall he from time to time given to him 
under his majesty's royal sign manual or sig<' 
net, or by his majesty's order in privy-coun- 
cil ; and his said majesty did thereby strictly 
charge and command all his officers, ministem, 
magistrates, civil and military, whatsoever, and 
solfliers, and all others his loving subjects, in- 
habiting or being in tbe said island, to obey 
him the said John Mostyn, as captain-c^eneral 
and chief governor thereof; and that the de- 
fendant, being so governor of the said island, 
caused the said Anthony to l>e seized, taken, 
imprisoned, and banished as aforesaid, without 
any reasonable or probable cause, or any other 
matter alledged in the defendant's plea, or an^ 
act tending thereto. But neverthelera tbe said 
counsel for the said John Mostyn did then and 
there insist before the said justice, on the behalf 
of the said John Mostyn, that tbe said several 
matters so produced and given in evidence on 
the part of the said John Mostyn as aforesaid, 
were snfticient and ought to be admitted and 
allowed as decisive evidence, to entitle the ssid 
John Mostyn to a verdict, and to bar the said 
Anthony of his aforesaid action ; and the said 
counsel for the said John l^Iostyn did then and 
there pray the said justice to admit and allow 
the said matters so produced and given in evi- 
dence for the said John Mostyn, to be concla- 
sive evidence in favour of the said John Mos- 
tyn, to entitle him to a verdict in this cause^ 
and to bar the said Anthony of his action afore- 
said. But to this the counsel learned in the 
law of the said Anthony, did then and there 
insist before the said justice, that the same were 
not sufficient nor ought to be admitted or al- 
lowed to entitle the said John Mostyn to a ver- 
dict, or to bar the said Anthony of his action 
aforesaid. And the said justice* did then and 
there declare and deliver his opinion to the jury 
aforesaid, that the said several matters so pro- 
duced and given in evidence on the |iart of the 
said John Mostyn, were not sufficient to bar 
tbe said Anthony of his action aforesaid, and 
with that direction left the same to the said 
jury; and the jury aforesaid then and there 
gave their verdict for the said Anthony, and 
3,000/. damages, Whereupon the said coun- 
sel for the said John Mostyn did then and there, 
on the behalf of the said John Mostyn, except 
to the aforesaid opinion of the said justice, and 
insisted on the said several matters as an ab- 
solote bar to the said acliODt And inasmock 



ISS] Fabr^eu v. Modyn* 

■t tbo Mid ■ereral matters so produced sod 

B'nm in evideoee od the part uf tbe said John 
ostjn, mnd by bis counsel aforesaid objected 
ami inaisted on as a bar to the action aforesaid, 
da ant appear by tbe record of the verdict 
afanaiil, the said counsel for the said John 
Ikryn did then and there propose their afore- 
saitf exceptions to the opinion of the said jus- 
lier, and requested the said justice to put bis 
m\ to tbw bill of exception, contsioing the 
md aereral matters so produced and §p?en in 
trideooe oo the part of the aaid John Mostyn 
ai aferesaid, according to the form of the sta- 
tala io such case miule and profided. And 
Ibcieapoo the aaid justice, at the request of the 
■id eouDsel for the said John Mostyn, did put 
Ml ami to this bill of exceptions, pursuant to 
Ihe aforesaid atatute in such case made and 
piwided, on the said ISth day of July, in the 
15th year of the reign of his present miyesty. 

** Assignment of Errors. 

** And hereupon the said John Mostyn says, 
that IB tbe record and proceedings aforesaid, and 
also io the matters recited and contained in the 
ssid bill of exceptions, aud also in giving the 
terdid upon the said issues between the parties 
aferesaid joined, and also in giving the judg- 
■eat aforesaid, there is a manifest error in 
Ibif, that the justice before whom, &c. had no 
authority, or jurisdiction to try the 
or either of them, at the time 
the aaine were tried as in the record 
; nor had the said JuNtice any 
faver or authoritv to take or swear the said 
|MT tlierenn. There in also error in this, 
Mtbe said justice before whom, ^c. at ami 
^BB tbe trial of the said issut^ between the 
fm^afonrsaid joined, did declare and deliver 
Vk opinion to the jiir^ afnri'saiii, thatuhe said 
■Cftral matters nienlioiieil in the said bill 
sf exoeptiiius, and so as albresaid profluced 
aad proved on the part of the Kaid Joiin Mos- 
t^a, were nut upon the whole of the case suf- 
Barat to iMr the said Anthony Fabrigas of his 
aud action against him, aud with that opinion 
kA the saoi*- to the jury ; whereas the Name 
were suliicieot to bar the said Am bony of his 
■i4 acu«iD- There is also error in tliis, that 
ly the record aforesaid it appears, that the 
tcrtict afuresaid was given upon the suid issues 
Wcwreo the naid parties joined, for the said 
Aaiboiiy Fdbrigas ; whereas l»y the law of the 
Und, the verdict on the said issues ought to 
hste b*-eii )(iven for the suid John Mostyn, 
igsin^t the said Anthony Fabrigas. Tliere 
ii a]<m ernn- io this, that it appears by the re- 
csrd aforesaid, that judt^inent, in form afore- 
■id ifiveii, was i^iven for the said Anthony 
Fabrii^a^ aitainst him the said John Mostyn ; 
wbi-rrii% by the law of the land, jndginent 
asuebt to have been given for the said John 
MiAl^n against the said Anthony Fabrigas. 
Aad ihe said John MoMtyn prays, that the 
jadgmeut aforesaid, for the errors aforesaid, 
aad others in the record and proceedings afore- 
, may be re? erted^ annulled, and altogether 

VUU XX. 



A. D. 177S. [I9A 

had for nothing ; and that be the said John 
Mostyn may be restored to all which be ha» 
lost by occasion of the judgment aforesaid, &o* 

"In Nullo.eat Erratum. 

** And the said Anthony hereupon voluntarilj» 
cornea in bis own proper person into court here, 
and says, that neither in the record or proceed* 
ings aforesaid, nor in the matters recited anit 
contained in the said bill of exceptions, nor ii| 
giving the verdict upon the said issuea betweea 
the parties aforesaid joined, nor in the giving 
the judgment aforesaid, is there any error: 
and the said Anthony prays, that the court of 
our lord tbe king now here will proceed to the 
examination, aa well of the record and pro- 
ceedings aforesaid, as of the matters recited 
and contained in the aaid bill of exceptions and 
of the matters aforesaid above assigned for 
error, and that the aaid judgment may be in 
all things affirmed. But because tbe Court of 
our lord the king now here is not yet advised 
to give their judi^ment of and concerning tbo 
premises, a day is therefore given to the par- 
ties aforesaid, to be before our lord the lung, 
until on the morrow of All Souls now next 
ensuing, wheresoever, &c. to hear judgment of 
aud upon the premises ; for that the Court of 
our said lord the king now here is not yet ad* 
vised thereof, 5cc." 

Mr. BuUer. My lord, there are aome atraoge 
blunders upon tliis record, which thoui^b I 
might make objections to, I will not mis-speud 
the time of the court in slating them, because 
1 can easily conceive myself that they will ad- 
mit of a very short answer ; and therefore, 
waving all objections to the formal part of the 
record, the general question upon this record 
will be, Whether an action can he maintained 
in this country against a governor of Minorca^ 
for an imprisonment committed by him there, 
in his character and office of governor, upoi^ 
the person of a Miiiorquin, even though the 
governor should have erred in his judgment, 
anil have been mistaken in the necessity whicU 
he conceived demanded an immediate and re- 
solute exercise of the powers of his office? 
My lord, thongh this be the general question, 
I shall beg leave in the argument to divide il 
into two : first, whether in any case an action 
can be maintained in the courts at W^tstminster, 
for an imprisonment committed at Minorca 
upon a native of that place: and secondly, if it 
should be admitted that an action will lie 
against any other person, yet whether such 
action c^n be mahitained against a governor, 
acting as such within the i>eculiar district of 
the arraval of St. Pliillip's? My lord, iu the 
consideration of both these questions, it may 
be material to attend a little particularly to the 
situation and constitution of the island of Mi- 
norca, and arraval of St. Phillip's, within which 
this transaction arose. As to that the Conrt will 
be much relieved by the contents of this re- 
cord ; for it is l!here stated, that this island, till 
the year 1713, waa a part of the dominioni of 



195] 



14 GEOHGE m. 



AdUmJbr FaUe Impriaonmettt-— 



[19« 



the kingdom of Spiin, and then it was ceded . 
to the crowD of Great Britain, reservini^ to the , 
inhabitants their property, their religion, and . 
the laws necessary fur the preservation of their i 
relii^ioo. It is further stated in the record, | 
that the island is not governed by the laws ' 
of England, but by the laws of Spain ; and 
that the arraval of St. Phillip's is subject only 
to the controul and governnnent of the go- 
Ternor himself, for in that there is no regular 
law- officer ; there is no power to which the 
subject can apply for justice but to the go- 
Yernor himself; he is therefore the sole and 
absolute judge within the arraval ; bis will is 
the law there, and that district tt least is 
t despotic go? emment. Whatever may be the 
case in colonies and newly- discovered coun- 
tries, I fancy it will not now be denied, that, 
even in countries obtained by conquest, the old 
]aws of the place continue in force till they are 
changed or aller^ by the conquerors : much 
less can it be contended, that In a country ceded 
as this was, the laws of the place receive 
any alteration till a change is declared by the 
new sovereign. In the present case, there has 
been no new code of laws established in this 
island ; and therefore, indepciii^ently of the par- 
ticular facts which are stated as proved in this 
cause, 1 think I may safely assert it as an un- 
deniable proposition, that this island is now go- 
Terned by the same laws as it was before the 
year 1713. 

It is stated in the record, that 'the district 
where the present cause 6f action ah»se is sub- 
ject only to the immediate order of the go- 
Ternor ; so much so, that no judge of the 
island can exercise any function there, without 
the particular leave of the governor for that 
purpose.^ If the laws of the country where the 
offence is committed are different from the 
laws of this kingdom, it seems to me to make 
DO difference with respect to the propriety of an 
action, whether such country is subject to the 
crown of Great-Britain, or to any other state; 
for whether the fact be an offence or not, naust 
be decided by the particular laws of the place 
where it was committed, and not by the laws 
of this country. This is a case whet« the law 
of the place is different from the law of this 
country; and therefore the question might 
have been taken much larger than I have done 
it : namely, whether the subject of a foreign 
power, wh*o rules by laws different from ours, 
can, for an act done in his own country, seek 
redress in the courts of England. I believe 
there are no authorities in support of such a 
position ; and whatever may be the case, where 
the laws of different countries agree, and where 
the transaction has been between British sub- 
jects, with a view to the laws of England, (which 
was the case of Robinson and Bland, Bur. 1078), 
that can be of no avail in the present instance : 
for I take it in this case, if the action can be 
maintained at all, it must be governed by the 
laws of Minorca, and not by the laws of Eng- 
land. It is said in the case of Robinson and 
BUody that the laws of the plac< irhere the 



thing happened does not always prerail ; and 
there an instance is put by Mr. Justice Wil- 
mot, that in many countries au action may be 
maintained by a courtesan for the price of her 

K restitution, but that no such action can be al- 
iwed in this country. That is undoulitedly 
true; for wherever the foreign law is contrary 
to the law of God, to the law of nature, or 
' contra bonos mores,' this Court will not recogw 
oize it ; but neither of these is the present case. 
My lord, besides, there is a great difference be- 
tween entertaining a suit, and giving a remedy 
upon an immoral transaction, and punishing a 
man for an act, which, if done here, would be 
deemed a crime, but, in the country where it 
is committed, is esteemed none. In such t 
case as that, the law of that country can never 
be the rule by which this Court will govern 
themselves, nor could they with propriety give 
a judgment contrary to the known law of tbk 
land ; and therefore, I should apprehend, that 
in such case they would refuse to hold plea at 
all. That seems to have been the opinion of 
lord chief justice Pratt, in a case that came be- 
fore him m the year 1765: that was the case 
of Pons against Johnson, and a like case of 
Ballister aninst Johnson. Those were two 
actions tricS at the sittingi after Trinity-term 
1765 ; an action of trespass and false imprisoiH 
meet, bronghc by the plaintiff, a native of Ml* 
norca, kgminst the defendant, who was gorer^ 
nor. The fkcts were, that iii Minorca there it 
a court called * Trihimal of Royal Govemittent :* 
the gOTemoris president, the assessor is judge: 
the fiscal' is in nature of attorney gencnJi 
during the pendency of a cause, but, when sen* 
tence Is to oe Mssed, he has a voice as well ae 
the assessor, if they agree, the governor ii 
bound to confirm : if they disagree, the go- 
vernor has the casting voice. It waa proved, 
that this is the only court of criminal jurisdie- 
tion, and that slanders are considered as cri- 
minal suits ; that the defendant wrote a letter 
to the assessor and fiscal, complaining that the 
plaiiitiff had spread re|K>rts injurious to binii 
and desiring them to enquire into it, and act ae 
theji^ thought just and fit. Upon this letters 
" dire 



the fiscal directed an enquiry, and the 
ordered ulaintiff to be imprisoned: he ap- 
plied to oefendant Johnson to be bailed, wno 
refused to bail him ; but it appeared that the 
assessor was the person whose business it WtiB 
to bail, though orders, as well for impriaoning 
as bailing, often passed in the name of the court. 
Upon this evidence it was objected, first, that 
by the treaty of Utrecht, the inhabitants have 
their own laws preserved to them, and are not 
to be sued here, and therefore have no right to 
sue here : secondly, admitting them to have o 
right to sue here, the action is misconceived. 
Ice. Lord chief-justice Pratt said, ** I think 
it very improper such action should be brought 
here, where foreign law is to be brought into 
question : the bconvenience appeara bere^ 
where all the evidence we have had is tlio 
testimony of one vritness; and I should think 
if 1 were under the neceintj of proiioiiBciiBf 



Fabrigas v, Moslyit. 

V'W^.^J'^ ^>' pirole «*icknce ooght not 

M&aiumcicDi, but a coinmiHion BbuuM ^o, 

pi ilM k<* be certiBeil." Ai to ilie questiuo 

■jHiiMlictiaa, his lordship Mid. " Itiacerlain 

Mn tr* maoy cases of traotiKuy actions be- 

Rmi Mibjecl Kod lubjecl, where, tbnugU llie 

tMiariae* in a foreigD uounlry, the action 

■5 le brouifbt here ; sucb as contract, trcs- 

jM,are*M>Tab«iii]prigDDmEnlorioinefaind*: 

irflh* rule ihal should guvero seemi to be, 

ikt« Ibn subject miller ii nf that kind, Hint 

ttlnr of DDlure ahnuU goiero all orer the 

ndd. And I Ibiak, lliat a persou nlio is au 

>.'3kb(iu)il liare a ti(;bl (o Biie here in cBics 

'<il ku>4 : bat I tbink tbii ia not to be ex> 

itS M tnutntory aciloni of erery kind, 

-reibc! Um foci issoinlarmixeil wilblbecase 

' 111 alter tlie caw, anil vary the legality ol'tbe 

jntactioa." Ilia lurdibipihen expressed la me 

M* DO the form of tbe plea; and finally 

. .tinted ibc plaiatilfa ua auollier poiot. Aly 

M, I cilc tbia caae Air the sake ofthe reaton- 

■r eHilain««l ■■> <t ; lad lliere trai the opinion 

mi tay learned judge, that an aclioa in this 

■■Htry wmm iiDpro)ier, wh«re it was.to inler- 

■nd tad I<1«oiled wilU the law of another 

a^uy, as (o vary or chaoKe the legality of 

ihlniKacrio*!. My lord, aonlher thing which 

mora by *)>at c'^ *'r tl»i though lord Cam- 

^tMDf Id Ihitik sn acliun may in some esses 

baa a fanafi" traiiiiaclion, yet he confini:'!. it 

ll ^BH ohnre llie tranaaclion happened lie - 

INw •tilij'ct and suhjecl. This is not a trans- 

fcwii otiicb bapjieiied tielween auhject and 

I .■'■^Uiiii 81 of ihe realm of Engtaod) 

> ••■ where the same law gnverns all 

rkl; but it ia that pnrliculur case 

<>v lonl Camdeu, so niixe<l with ihe 

>i It alli^ii llie caae, and rarlea the 

ilie IraoMciion. In crimioal coses 

-> i>F dear, that an offence cum- 

1 1 rf i|;n parts cnunol, unless under 

' I •lutes, he tried in tliii country j 

.<|iiiiiaannallie Court of Exi:hemier 

r* ported in tit Vexey, S16, The 

< ^<mpany iguinsl Campbell, 7tli of 

I - Ku lufurmuiron was hrouglil in ibe 

E(u>' I'' iU<' litorney General, that the defen- 

Awi Diigbi diacoter bow he uaroc by the poa- 

(r«Bd, Txdencv, cuntrirance, or oiher meaus ; 
«ail It kifUirr ih»y weie not the property of tlie 
bsdiaua, fruin whom tlicy were so taken by the 
^fewtaai ami otliets. The court there aay ihe 
nric ia, ilui ibiaconil ahall not ollige one to 
AaMTTFT Ihal, wbicl>, iriieanBHera in ihe af- 
6r)ut>", will s'>liji-ci bun to the puoishmcnl 
t^ a criiD£ ; rt,r it n not niilerlal, that if he 
■^■ef«ui Ihr ue^-utiie, it wdlhc iiobnrin: and 
ibu he M puki'-hal-W, appeara from the caae of 
ttmithti^': ftarkvr, Alk. 21. as ajuriadiction ia 
wmad nCalciUla lur criminal lacis, where he 



bare : tike the case i 

in a raps in Ireland, and sent 

imty tbe go' eminent tu be tried, al- 
IIm ewn ol b- B. bare tiluMU lo do it. 



A. D. 1775. 



[198 




My lord, here is a posilire o|>iuion, that in cri- 
rnmal cases arising abl-uad there is no juris- 
diction iu the copiinon lair court* In England. 
The only thing to be done is to send the party 
to tbe country where the offence was com- 
mitted ; but it ahall not be tried here, tfa man 
were lo marry two wires in a country where 
bigamy i* allowed, it can nerer be contende<l 
in anch a case, if Ihe rnan came into England 
he should be liable to he hnnged here, becauss 
it is an offence in Ihis country, though nuna 
where it was coilimilled. If a crime commit- 
ted abroad cannot be tried hrre, upon what 
ground shall a civil |iersonil Injury, done out of 
Ihe kingdom, be tried here ? There are many 
reasons why a crime committed abroad might 
be tried here, and a civd injury not ; but do 
reaaon occurs to me why a ciTilinjury should, 
and a crime not. Ciril injuries depend much 
upon the police and conalitulion ofthe country 
where they occur, and the aame coudiict mn^ 
be Bclionable in one cutintry which la ju8ti& 
able in another: but in crimes, as rourijer, per- 
jury, and manyother uffencfs, Ibe laws of most 
counliies lake lor their basis the law of (lod and 
Ibe law of nature; and iherefore, though tha 
trial be in a different country from that in whicb 
the offence was cnmmilled, there is a greater 
prohabitity ofUiKtributing equal justice in aucb 
cases, than in ci»il actions. The case men- 
tioned in Keilney, 20S, and canBinied in tha 
41h Inslilute, W3 and i, is also an authority ib 
myfamur. Il first of all gives a hialory of 
sir John Stanley's family, and there fiie jioiuta 
were resnlveil ; first, that the isle of Man waa 
an ancient kingdom of itself, ami no part iif the 
kingdom of'Engbud ; secondly, ibey aflirlDed 
■he case reported hy Keilwey, anno ihe I-llti 
Henry Ihe 8lh, to be law ; namely, Michael- 
mas Ihe 11th Henry 8lh, an office was fumii), 
that Thomns earl of Deib^v. at the limp of hia 
deuth was seized of the fsle of Man iu fee j 
whereupon the countess his wife, by her coun- 
sel, moved In have her dower in the Chancery ; 
but il was resolved hy Brudnell, Bronk, and 
F ill herb erS justices, and nil theking'i connsef, 
ihat the office was merely void, Itecause t^e 
isle of Man was nn part of the realm of EnjJ- 
laud, nor »as governed by the laws of Ibis 
land ; but it wfs like to Tournay in Nurmaiidy, 
or Guscoign in France, when they were in the 
king of England's hands, which were merely 
Out of the power of the Chancery, which waa 
Ibe jilace to endow the widow, icv. Theii 
goevon, and sajs, it was rcHuUed hy thera, 
that ncilher the alaiute of William the ad, 
dc dimit canditianuMmt, nor of Ihe STih qf 
Henry tlie Uih, of willa, nor any other general 
act of parliament, did extend to ibe isle of Alan, 
for the cause aforesaid. 8o tiiere il is held, 
(hat fur a right in the ifle of Man, though U 
was part ot the terrilorial dominions uf Ilia 
crown of England, yet Ihat no suit wnuhl lie 
inlhecnnrtofChanciry ; and that this suit iO' 
diluted by the widow fur htr dower there wiis 
improper, and they could not culerlaiuil. Tba 
caaca where iba courts uf Wealmiusicr hat* 



i99J 



li'-QfiORGfe III. AcHainJor FaUe impr^onvMnt— 



[800 



taken cognizance of transactioDs arising abroad, 
and entertained actions founded on them, seem 
to be wbolly on c«mtract8, where the lawa of 
the foreign country have aj^reed with the laws 
of England, and between Eiii^'lish subjects: 
and even there it is done by a quaint lei^ral fic- 
tion ; namely, by sup|>osing, under the sane • 
tion of a videlicet, that the cause of action did 
arise within this cotuiiry, and that the place 
abroad lay either in London or in Islington. 
But where the contrary has appeared, namely, 
that the place where the transaction did arise 
was not in Limdon or Islington, there the 
courts have said such matters were not triable 
here. There is a pretty strong case arising 
upon a demurrer in Lutwyche, 946, Davis 
against Yale. That was an action for false im- 
prisonment of the plaintiff in Port 8t. George, 
In the East- Indies, in parts beyond the seas, 
Tidelicet, in Loudon, in the iiarish of St. 
)^lary-le-Bow, in the ward of Cheap. It was 
iresolved by the whole court, that the declara- 
tion was ill, because the trespass is sup|)Osed to 
be committed at Fort 8t. George, in parts be- 
yond the seas, videlicet in London, which is re- 
pugnant and absuid : and it was said by the 
chief justice, that if a bond bore date at raria, 
in the kingdom of France, it is not triable 
here ; so that judgment was given upon the 
ground, that it appearing upon the face of the 
record to be in foreign parts, the supposition 
that it was in England was absurd and re- 
pugnant. 

In Ward's case, in I^atcb. 4, in debt, the 
plaintiff declares upon a bill, bearing date in the 
parish of St. Mary-le-Bow, London ; and upon 
oyer of the deed, it bore date at Hamburgh, 
and the writ was in detinet only. Serjeant 
Bridgman objected, that although it was usual 
to lay such actions in any place, to wit, in 
Kent, London, &c. yet as tnis case is, that 
cannot be ; because when any place is named, 
it shall be understood primi facie^ that the 
place named is a town, and not a particular 
place, as a .house, as appears by 3 Ed. 3, 
68, et Brev. 638: from whence it fol- 
lowed, that Hamburgh here should be un- 
derstood to be a town, which cannot be in Lon- 
don ; and therefore the declaration was faulty, 
^r not laying Hamburgh wiil,>.i London. But 
** *^^ *rgned on the other side by Barnei-s, 
^no look this diflVrence in ph^ading : " I con- 
Jeaa that a place named shall be understood to 
•t>e a city or town, as the seijeant has said, but 
^^i^eribcless the date of the deed shall be un- 
^etatood to be a particular place or a house ; 
^nd iliererore, if an obligation bears date at 
x^^'wf'i' «»" Callis-Sands, it shall be under- 
oftiioJm m <>^' '*"'*« taverns in London, and not 
Andin th ^^^^ beyond the seas, 21 Edw. 4. 26. 
SJac A ^ <^**<^*^"« Wighansand Flowers, 
Atblooe'L^^ R the dale of an obligation was at 
tot belJ-'^'^^^ lreland,and therefore the action could 
1 ^OitU^ ^^ '»«''^» inasmucli as Ireland cannot l>e 

CQ It Jr^^ "^^ • **"* *^ " ''•*' **'*" '"" Athlone only, 
H»e^fi^^^«««lf'^***''**«tcouldbe8ued here, be- 
" lone mightbe alleged to be in Eogland. 




So here in our case, if the date had l»een at 
Hamburah, * in partibus traiismarinis,' it could 
not be Nued here, inasmuch as it could not be 
in Loudon ; but bearing date at Hamburgh 
only, it may be understood to be in England.*' 
Whiilock agreed with him: Brook faits, 0, 
and so have been all deeds by experience. 
10 Jac. an obligation dated at Elvin was sued 
in this court, and the action laid in Kent and 
allowed; and yet Elvin is in Poland. Dod- 
deridge said, ** I agree also, if the deed beara 
date in Litile Britain or in Scotland, it shall be 
understood to be dated at those places ; so bera 
being named in London, we, as judges, ought 
to maintain the jurisdiction of our court, if the 
caKe is not plainly and evidently out of our ju- 
ristliction : and f(»r this reason we ought to un- 
derstand Hamburgh to be in London, to main- 
tain the action, because otherwise it would be 
out of our jurisdictiou. And if in truth we 
should know the date to be at Hamburgh 
ouster le mere, yet, as judges, we should not 
take notice that it ia ouster le mere.'* In this 
csRc it does appear upon the record, that the 
offence complained of was committed in parts 
beyond the seas, and not in £ui;land. Mr 
lord, the plea states, that it was committed m 
the island of Minorca, in parts beyond the seas; 
these are the words of tne plea; and the de- 
fendant has concluded his plea with a traverse, 
that he was not guilty in London, in the pariah 
of St. Mary-le-UoM, or el^eu here, out of the 
island of Minorca. Now, my lord, this stands 
admitted by the plaintiff, because if he had 
thought fit to have denifd the place mentioned 
ill the plea, and which was absolutely essential 
for the detiemlant to mention, because his Joa- 
tification was a local one, (and though the 
cause of action be transitory in its uatiii^, yet, 
if the defence be local, the defendant has a 
right to state it so in his plea, and by that 
means make that local which l»efore was 
transitory,) he should have made a new assign- 
ment, or have taken issue on the place. 

It was incuniltent upon the defendant to 
aver, that what he had done was within the ar- 
raval, because his authoriiy was confined to 
that particular place : and therefore, however 
unjustifiable be might be elsewhere, he was 
justifieil there. That part of his alleiraiina 
stands admitted by the plaintiff; therefore it 
does appear from the rec«>rd, that the cause of 
action did arise out of the kingdom, and con- 
sequently, as Dodderidge says in L<itch, it 
does arise out of the jurisdiction of this court : 
and where it so appears, the judges cannot 
help taking notice of it; for, as Lutwyche 
says, as I mentioned before, it is not triable 
here. Even in cases the most transitory, be- 
fore the statute of Jeofails, if an action waa 
brought in London, and there was a local justi- 
fication at Oxford, the cause could not have 
been tried in London. That was the caae in 
Ist Saunders, S47, an action for words laid ia 
London, charging him with having stolen plain 
out of Wadharo-College, vis. ia London. Thn 
ddendaiit jostifiet speaking the wordSi bacaosa 



Fabrigat v. Mostyn% 

liMpUiaiilFllole plate out nr\Vai1hnm>Ci>11eKe 
< ittloni. It wns Bitmilleil iu ItiM cmc, thai 
I >■ iwld have been ■ fatal pmir, btil il nul b«eii 
I r the ■ti.tuU uf ieohWa. Now the sutule of 
)»(«l« duv* Dbi extern! to Minnrca ; tlK^rtfore 
<t^ tave aiti aunil entiTelj' upon llie rommun 
Iu ; and hj that Ihe trial ii bud, nnil ibe ver- 
ni f dill : (or lapptnlittf that this or any court 
u Wrttmiiider ciiulil holit cognixance of nny 
Ruw that nrisM abrokd, yet it shnulil not ha*e 
Uai liitil in Lonilnii, hut ahoulJ hare been 
1 ilie next Knglisb coiinly tn Minorca. 



A. D. 1773. 



[Sftf 



IfUic law 






it, Uwl l«r a inuriirr coininilieil by a t'treigiier 
■a aanUier ciiuiilry itie criminal could not be 

Cnhol farre, 1 am al a \m* Ibr a renaoo why 
AiNilil he puoiilie^ here tor ■ treipan com- 
"" ■ fHider like circumalances. In orJer to 
t that doetrine, this ahiuiilily muat be 
d tbr : it' Mr. fttn&tyn, who siooil there 
m Mpaciiy uf a noreraor, anil hail the sole 
'''a ami ^Ternineut of \\\\* place, liad 
I Falirii^e guilly of an otTence which 
d his lite,«uil hall punished him accoril- 
r, be coulil not have he«n |jiiDiabeil ; but 
« hv ha* (trnceeileil in a milder wa^, aud 
MtliriMneil anil banished him, tlivrelore be 



. of enlerlaininir such 
dlMt tn ibis country are utany, and some 
■ waulit certainly be iniulerable ; but 
(Qtild ensue from 
nittg Ihe aciiuu woold be rcry sli^it, 
■BT: aud (he argument, • ab inconreni- 
k* nrd Cuke nays, haa beta ever allowed 
t rery forcible in our law. Now if ibe 
~ ba maiolaineil here, il must be deler- 
by the taw of tbii country, or by the 
' tlie nUc« where the offence was corn- 
It it he driermineil by our law, Ihat 
Id Iw utyual indeed; for Ihen a man, who 
iD|iellnf Iu regulale his conduel hy one 
wftQtd becondemned by anoiher, which is 
'■" npfonW. Ami yet tlie law of thit 
ia ihe law ibe jdainlilf has ihunictit tit 
ibia cause upon ; and 1 ilonlil not bill he 
■mder tli« idra of Enjibsh liberly, lo- 
la dMruy ibe Mini>ri|uiii cnnatitulioti. 
Mlaraliim ia futiudrd on the law of Eng- 
TIm imprisonment ii laid in ibe dtcla- 
_ to W oanirary to tbe law and cuaiotns of 
nalm ; » that Ibe law of Eniclaiid is Ibe 
ianhM-h be sppcali, and by wbieh lie de- 
))>>(•*« may lie deli-rmined. If an im- 
iNMal i* oammilled there aif re^able to Ihe 
of thai place, bul noi I'onwiDant lo ibe 
■fthit realm, is ibat a Krnand for puiiish- 
ibis country ? If il ia nut, the plaiuiifl' 
inpparl hi« case npon the law of Kii|(- 
be manner ha now alteinpla to do. If 
■■ to be tried here by the law of 
■Dw in Ihat law to be proved!' There 
fasal Bi'ide of certifyiPK the law, and lill 
rial il may nut l>* known what points of 
M may br rfpiiaile lo inqnire iiitni wil- 
ts caitiKii be mmpelted to attend, nor can 
cewrl by ainr lueaas ubligc them to answer 
; ■» Ibe defcDdaot would lUud iu lb« lilua- 




tion of beinff ealleil upon l<> make his itelencr, 
without the power of profini; either the law in- 
ihe fads of bia case. If Ibis acliou succeeds, 
erery FrencbiDun Ibat iscoiiltoedinlheBaslile, 
and has the t;ood thrlune afietwanls la etcape 
lo litis country, would be brinuitt^ aelious 
a^ninsl the ufli<^ers Ihal confloe'l biiu ; every 
loldier, who in time of war ibinkd hiniaelf 
ill used by bia cmnmander, when hp re- 
turns home will barrass tbe comioander nilb 

that be may hare suffered abroad ; and it> the 
end it would lie nothing less then thai a Ger- 
man army Mould he governed by an £ni;lish 
jury. I( would be necessary Ibr every general 
officer to have a lawyer always al bia elbow ; 
and even that, aa Mr. Mnsiyn has found by 
fatal experience, would not be sufficient 10 se- 
cure hiro from censure and punishment: fur 
in this cause it was proved, that Mr. Mnslyn 
had consulted all Ihe lawyers, and all the mili- 
tary gentlemen in the iaUud, on the expediency 
and necessity of the measure be look, before 
he did what is nnw complained of, and that 
they were all unanimous in their Ideas uf Ihe 
absniule necessity of the business. Some of 
them openly prolesied ibeir opininna, and the 
resi acquiesced by their silence. The lawyers 
went further, and underlmik la answer Jiir tbe 
legality of ibe measure, even at the [leril of 
their heads. 

In tbe second place, fnppnning an action 
could be maintained here at all liir a thing 
done in Minorca, 1 shall beg leave lo sub- 
mit to yniir lurdahip, ihal whatever might b« 
the case of other persona, lliuiigh they might 
lie liable lo an action here fur things done in 
foreign parts ; yet that thegovernor or general 
officer, who baa the immediate command and 
absolute direction of tbe place, aliall not be 
called u|ion in an action here tn answer for bia 
conduct in that character. Minorca is an ab- 
solute govemmeni. Tbe guvcmur for Ihe 
time being IB Ibe immediate representative of 
Ihe king there; and he, al least within Ihe 
arravalnfSt. Phillip's, whalever may lie the 
case iu the rest uf the islnuil, as all absolule 
sovereigns do, goveroa aabelbinkk cnnvenient, 
without being tied np In any fixed rules, 
There it ia nul lawful for him to deviate from, 
which ia no garerament wbrrein Ibe |i«war 
over the lives, as well as the liU-riie!i snil pro- 
peniea of ihe aubjeirt, is nut lesied in the su- 
preme power; and whether ibat |H>wer be 
lodged in a ainule person, as s mt'iiarch, or 
many, asa psri lament or an aristocracy, what- 
ever ihat snprenie |>nwer dues, il is accountable 
fur to none bul God ; aud ihe drpuiy uf ibtt 
power is answerable unly lo God and his prin- 
cipal. Thai a judge cannot be piinitbeil for 
any ibtng be does in bis capacity as a judge will 
not. I believe, lie diipulHl ; il it be. there ar« 
Ihe strongest ■uiburiiiea ii(ion that |Kiii>t. Ths 
atrongeal perhaps in Sslkeld, 39G, and 9 Mod. 
318; iu Ihe latter of which cutit-s, ihi- jui'ge 
had heeu guilty of the mi'sl iiii«Misiiiuiioiial 
conduct. My lord, that in Nalkcld ia Grocnvelt 
Bgaiusl Burnell knd ulbers. Tbe cau <iaa 



IDS] 



14 GEORGE IIL AdiM/or False Impritonmeni— 



[204 



this : the eensors of the Colle^ of Pbywciaiie 
in London are empowered to inspect, go?em, 
and oentare ell nractifers of physic in the city 
of London, and seten miles round, so as to 
ponbh by fine, amerciament, and imprison- 
ment. They con? icted Dr. GroenTeltof ad- 
ministering * insalubres pillules et noxia medi- 

< oamenU/ and sentenced bim to a fine of 20^ 
nnd Id months imprisonment. Accordingly, 
the doctor was taken in execution upon this sen- 
tence, and brought trespass against the officers 
nnd the censors. And it was bolden by Holt, 
chief justice, first, that the censors had a judicial 
power ; for a power to examine, convict, and 
punish, is judicial, and th^ are judges of re- 
cord, becaase they can fine and imprison: 
iocondly, that being judges of the matter, what 
they have adjudged is not traversable; and 
the plaintiff cannot be admitted to gainsay what 
the censors have said by their judgment, which 
is, that they were ' innlubres pillulas et noxia 

< medicaments,' 4dd £d. 3, 17, 9tb £. 4, 3, 
IS Co. S4, 25 : thirdly, that though the pills 
•nd medicines were really wholesome pills and 
good medicines, yet no action lies sgainst 
Sie censors, liecause it is a wrong judgment in 
tt matter within the limits of theicjurisidictioQ ; 
nnd a judge is not answerable either to the king 
or the party for the mistakes or errors of his 
judgment, in a matter of which he has juris- 
diction. It would expose the justice of the 
mition, and no man fi'onid execute the office, 
at the peril of being arraigned by action or in- 
dictment for every judgment he pronounces. 
The other case, which is in 2d Modern, 218, 
is as strong a case, if an action oouM be main- 
tained against a judge at all, as any that can 
exist : that is, an action for false imprisonment. 
The defendant pleaded specially, that there was 
a commiflsion of Oyer and Terminer directed 
to him amongst others, 9cc. and that before him 
and the other commissioners, Mr. Peon and 
9Ir. Mead,* two preachers, were indicted for 
lieing at a conventicle, to which indictment 
they pleaded Not Guilhr ; and this- was to be 
tried oy a jury whereof the plaintiff was one; 
and that after the witoesses were sworn and 
examined in the cause, be and his fellovrs 
found the prisoners, Penn and Mead, Not 
Guilty, whereby thev were acquitted ; and 
^id the plaintiff tnali te getterit in acquitting 
them both against the direction of the C^urt in 
matter of law, and against plain evidence, the 
defendant and the other commissioners then 
upon the bench fined the jury forty marlcs 
a- piece, and for non-payment committed them 
to Newgate. This was a case where a judge 
had taken upon himself to fine a juryman, be- 
cause he did not find agreeably to his direction, 
and had commjtted bim to Newgate. Setjeant 
Goodfellow, wbo ewied for the defendant, 
-aaid, he would not ofier to speak to that point, 
whether a judge can fine a jury for girmg a 
▼erdiet contrary to evidence, since the case was 

<* See their Case, vol. «, p. 951, and Bn- 
AdTi Case, vol 6, p. 999. 



so lately and solemnly resolved by all the judges 
of England in BuHnell's case, that he could 
not fine a jury for so doing. But, says he, 
admit a judge cannot fine a jury, yet, if ha 
doth, no action will lie against him for so doing, 
because it is donees a judge: but the Court 
told him he need not labour that point, but de« 
sired to hear the anrument on the other side. 
In this manner the Court would not suffer the 
question to be argued, whether an action would 
lie or not against a judge for that which was 
done by him in that character. On the other 
side it was urged, that what was done was not 
warranted by the commission : but at last the 
whole Court say, that the bringing this action 
was a g^reater offence than fining of the plain- 
tiff, and committing him for non-payment; 
and that it was a bold attempt both against the 
government and justice in general. Cord Coke 
in his 19th Report, 25, says, that the reason 
and cause why a judge, for any thing done by 
bim as a judge, by the authority which the 
king has committed to biro, and as sitting in 
the seat of the king, concerning his justice, 
shall not be drawn in question before any other 
judge for any surmise of corruption, except be- 
fore the king himself, is for this: the kinjf 
binnself is de jure to deliver justice to all his 
subjecte ; and for that be himself cannot do 
it to all persons, he delegates his power to 
his judges, who have the custoily and guard of 
the king's oath. And forasmuch as tuis con- 
cerns the honour and conscience of the king, 
there is great reason that the king himself 
shall take account of it, and no other. My 
lord, within thearraval of St Phillip's, general 
Mestyn was ^iui/enii« judge ; there was no|Da«» 
gistrate within the place but himself; he mighl 
appoint another, or might preside himself, ta 
decide upon offences committed within that 
district, it was so stated in the record, that it 
was subject to the immediate order of the go- 
vernor, and no judge could interfere there un- 

deputed by him ; so that ibe 



particularly 
lute ffovemi 



1 

absolute government of that part at least of the 
island rested solely in his hands. He acted 
there under an authority committed to him bj 
the king, and there ( which is the reason in the 
19th Report why an action will not lie against 
a judge) he had the custody and guard of the 
king's oath ; and therefore, as lord Coke sayf, 
if he acts improperly in the discharge of the 
functions of his office, he is accountable to the 
king only, and no other. My lord, there m 
another case in the Uw- books, upon which I 
shall beg leave to lay great stress; and at 
present 1 am not aware how that case will be 
distinguished, so as to make it inapplicable Id 
the present: but 1 can find many circumstancea 
even in that, which are much stronger against 
the determination there, than any that exist ip 
this case against a determination in iavoar 
of the defendant. The case I allode to ia 
that of Dutton against Howell, in ShoweHa 
Paribmeotary CaMs, t4 ; that iaa writ of emr 
upon a judgment given in the King's-baach. 
ne case ftam the KconI is ihii } IheplaiaMF 

4 




Fahrign) v. Muiti/n. 

A Dutton, for thitl he nllh seve- 

V BNaulteil, beu, wDuaileil. aoil ini- 

d bira, aoil look anil seized hi* gnuils, 

■isoDciI the |'l«>iitiir for tbree m<inU)i. 

kpleiM lofirtQiit guilty, aoil as (olLc 

R iuslilicattiiii,thDl llietMfnilaiit al 

I* ifUrernnr of BurbaJoe*, auil hcIs 

lit conMiliitio^ liini govcroar ; lliai 

e RiftlitDg this |Mteiit, aiiil before the 

f tiir MHUlt, the defendant arrived ■( 

I, and did lake upon him and exercise 

It of Ihil anil llie olher i^lBiids in 

leal •ni'nlitnied, till the flrht of Miiy, 

'' ~ "liKd licence to reluru to En|f land ; 

I W departure h« consiiiuted tlie 

* Im hi* deputy -gOTernor, and ihat llie 

i)[ii*l fu11uwlii){ the delendant arrival 

I, in England; tbutthe 4ih of May, 

^M'l drpiniirp, the plainiilT took 

If theadminiMralion of the govern- 

e i«Und of Darl>Bilues, and did un- 

tatfiiMy and arbilrsiily execute ihal gnietn- 

mtat and nSiee, to the oppreMion of the kioc's 

■utgrdti Iliatal\«r ibervturnof liiedef.-odani, 

ill' liUirjiilT al a ri)»iicil wib charged willi 

. i;r in Ihe adniinialnilinfinf bis olfice, 

1-^ ibe OBlh of nffice, not obseriing' 

iia*i(^iion, aMuming the tiile of 

:^<>ii^riii<r and altering decrepB in 

■ ~...r,, , ihat il was ihennrdered liy Iheile- 

' .-Uut iiiid c«u aril, that 'the plaiutifT should 

' Fomaiiilcd. Tu thi« ihere is a demurrer. 

Tliti conn judgtneni was giren tar the plain- 

I i on wUith a writ of eiror t»as brougiit in 

I ■' Hmka of liords ; and though the parlicu - 

ffftsana of the judgment Ju the Hunsa of 

I rtM do not appear further than can be col- 

-1^1 froo) lUe arguinenl, yet tliere are aereral 

-y^ in tlic i^umeul, from whence it may be 

li^rinJ UiHm what grounds Ihe jiid^metit of 

' • Hoaae of l»rda wt^nt. It wasargued upon 

' ;>arl <<f tlie plaiotilT In error, that tbiiaotion 

ii;,'ain*l him, because it was broiiij:lit 

. Igr lhat which he did os a Judge; 

•' <-<<«'[ri« 10 be ibe lame for one sort 

,;ii anolher, Bud tbst tlii« (lersoD was 

.;., .tijilf a gniemor, end so had all the 

■itii ul a goTL-Tiior. As lo the pl«a, it was 

railicd lii«t« »erp seieral inli>rniBlilieBln lhat. 

''- ••■••■14 it niirlit be much shorier than il 

" 11 ; hut ibat il suflicieDlly >h«ned what the 

1 otitr in error's auihortly was. Tlmt this 

• untieUiMI lie, because the tact it not triable 

• rt 1 III* laws Ihere iimj be diffrreiit from 

. TU*id... Di, action Res, tlnlesi il ven a 

' ..'ii< as well ni causeless; 

i.'^.d lhat an action can 

■....rnor or liL^utenant of 

. >iiiill>v thesnine reoMDii 

^iii 11:11 ir. ...i-.i.i»c. He had a poucrtc 

rko ju<lc<a< 'ki>'l ilifrefore tvas more than t 

V- Oib#r tnnoua alledgfii ii)raiiihi Iht 

.MioD IviDg bc-re are, first, tiisi all tlm reeordi 

<'.'] ctiiuMCi! ars ihrre ; secondly, Ihe lawi 

li Tr difff* lh>m wlint Ihey are here ; and go- 

''^aeaWwMiM he very neak, and die pet' 

1 «tilb Ikeni eery uneasy, if 



A. D. 1T75. 



f«» 



-ere anbjecl lo lie charged with actions here for 
iliat tbey do in those countries. In the argu. 
meut ou the part of the defendant in error, 
h pains are taken to shew, and it is iusisled, 
Ibaltlie lawof Barbadoea is the same as iheJai* 
of England. Aaotherthincthatisiherereliedbn 
lliat Ibis was an action between two EnKlish- 
;n, for an injury done by one Enghslimaa 
Bgoiualanotlter. Thesesronndsare strongly r«- 
led upon on Ihe part of the then defendant in 
rror ; and tbey ahew at least tbal his couusel 
houghl these diBtinclions tery necessary antl 
nslerialin order losupportlheacliun at all: for 
(bough tl is denied in one part Ibat the jaws <^ 
BnrlraJoes were the same as in England, yet on 
theeiher side ilisinslsled tbey were, and rhal tiu« 
action arose belween Eiigllshmun and English- 
man, and tlial therefore the aclinn iiuglit lo ba 
maintained in Ibis court. The Bouse of Lords 
Boally determiaeil lhat the aclion could not |ia 
here, and the judgment was giren for tlie plaio- 
4iff in error. A» lo tlie form of the plea, it was 
impossible for any one to aay a word in (indi- 
cation of lhat, or to say thai Ihe judgment 
could go upon any other ground than llial of 
ibe dclcndaot's being gnvernor, and the olTenca 
comfilaiued of committed by him in lhat cha- 
racter. ThAt was Ibe substance of the case, 
and upon tbsl the judgmenl of Ihe House of 
Lnrds was Ibanded j for os lo Ihe plea, il ia ad- 
mitted by Ihe counsel for tbedetendaul, tbalia 
other respects it was bad upon the lace of it. 
In tiiBt case, one argument relied on is, lhat it 
wai an injury commitled by one Engliihman 
against another. Now ibat is not ilie ca«e 
here : for the |i1alDliff himself was a Minor- 
quia ; he iraa so by birth, and had always 
lited in lhat country. My lord, in Ibis case, 
tlie argument cannot bold, that llie aclion shall 
lie because Minorca it governed by ihe same 
laws OS England^ for it is olherwise, and it Ja 
sUled lo be goferned by Ibe law of Spain, 
The acts upon which the cnDiinilrnQnt was 
founded, in the case of Dulton ami Uowtll, 
Mere done by the iilainliff in the choracler of 
gOTecnor ol the place, which is an ultjaclion 
against that case that will not hold in the pre- 
sent ; for that is not Ibis case. Mr. Fabrigas 
neierstood in the cliaracler that the plaintiff in 
thai aciioo did, for there the acts complained 
of were done by him iii the characler of go- 
vernor; andllut was urged as oneground why 
il should not be caniassed here. Uut ueilber 
of these distinctions will holil in the present 
case i but all Ihe innnnveuienccs pointed out 
against the action in thai case will hold rery 
■troDgly in tlie preseul. This is an aclion 
brought agaiail the detendanl for what he did 
BB judge; be had power 111 lhat case to mak* 
judges there, and therefore be was something 
more tlifin a judge ; all the records and evi- 
dente which relate to the transaction ore there, 
and cnnont be brought here) Ihe laivs tbera 
are ditferenl from what they are in this coun- 
try ; anil, as it is said in (be conclusiou of lhat 
argument, government must be very weak in- 
deed, and the. penon* intrusted wiih ibcmreij 



807] 



14. GEORGE III. 



Actum Jor Fake Imprkonment*^ 



[SOS 



^neisy, if they are tbbject to be chamd with 
■ctiont here for what they do in that character 
ID tbbse cuuDtries. My lord, iioless that case 
can be materially distin^iiisbed from the pre- 
•ent, it will be an authority, and the highest 
authority that can be adduced, to shew that 
this action cannot be maintained, and will be a 
sufficient authority to entitle the plaintiff in 
error in this cause to your lordship's judg- 
ment What answer may be given to that 
case, or distinctions made between that case 
and the case now before the Court, I cannot 
at present foresee ; but if any are attempted, 
when I hear them, I shall be at liberty to give 
•uoh answers to those arguments, as may occur 
|o me by way of reply. 

Mr. Peckham. My lord, as the moderation 
end mildness of gOTemorMostyn's proceedings 
have been insisted on by Mr. Buller, I trust 
it will not be thought irrelative to the present 
question, if 1 shortly state to your lordships 
the nature of those injuries which gave birth to 
the action. 

It appeared in evidence on the trial, that Mr. 
Fabrigas was a natural born subject, being 
born m Minorca subsequent to the cession by 
the Spaniards at the treaty of Utrecht, and 
prior to the capture by the French in the year 
1758 ; that he was a roan of irreproachable 
eharacter and good property ; not of the first 
class of nobility, but, to borrow an expression 
from colonel Bidulph, ' what we should call in 
England a gentleman farmer ;' that he lived in 
firiendship with the first noblesse in the island ; 
and that he had a father living, and a wife and 
five children. 

Thus circumstanced and thus situated, be 
was at the express command of the governor 
taken from his house by a party of soldiers, 
end dragged at noon- day through the streets 
ct' Mahuu as a criminal, and thrown into a 
^lungeon appropriated solely to capital of- 
iemiers. 

It appeared likewise in evidence, that he was 
eonfined six days in this dungeon, with no- 
thing but the boards to lie on, and with no other 
tustenaRce than bread an<l wattfr, though felons 
under sentence of death were allowed the com- 
mon ft>od of the island ; that he was refused the 
consolation of his friends, and denied all inter- 
course with his family ; that on the seventh 
morning he was hurriiMl aboani a ship, without 
being permitted to lake leave of his cliildren, to 
eee his wife, er to he acconiiuotlated with money 
or other uecessiaries for his subsistence ; that 
during this wliule time he had heard of no 
charge against him, he had been confronted 
with no accuser, he had not even seen his 
judge : yet he was to lie banished to Cartha- 
gena in Spain for the space of twelve months. 
The senteuce was faithfully executed ; and 
Mr. Fabrigas, having experienced that distress 
which a moneyless stranger must necessarily 
lie reduced to in a country whose language he 
did not understaod, as fortunately for himself 
ft lUMzpeGtedly to go? ermr tt^pttyn, «icap«d 



from the Spaniards : 1 say unexpectedly, my 
lord, because he liule thought that Mr. ^«^ 
briifas would live to tell an English jury of his 
sufferings and the governor's oppression. 

I thought it necessary to state these fiiCts to 
your lordships, that you might judire of the 
mildness of that treatment which Mr. BuUer 
deemed it prudent to expatiate on. 

It now becomes requisite for me to state the 
conduct of the governor through the subse- 
quent stages of his very extraordinary defence ; 
and that I must do with some precision, as I 
mean to contend, that the plaintiff in error by 
that defence is estopped from agiuting the 
question of jurisdiction. 

The declaration was delivered in Hilary 
term, 1773 ; a rule to plead was given, and a 
plea demanded. Had the governor then plead- 
ed to the jurisdiction, the question would have 
come before the Court on a demurrer ; and if 
that had been determined in our favour, a writ 
of enquiry would have been executed, and Mr, 
Fabrigas would in a short space of time, at a 
little expence, have received a satisfaction ade- 
quate to the injury, and would have been en- 
abled to return to his friends and to his family. 
But that would not have answered the purpose 
of the governor, as Mr. Fabrigas would not 
then have been delayed in England, nor have 
been harassed with this expensive litigation. 

Had the governor at the ex|nration of the 
four days piraded in chief, he might then have 
had the appearance of an argument in his ap- 
plication to your lordshi|>s ; for it then would 
have been competent for him to have said, * I 
was hurried into this plea before I had time to 
advise with my counsel, and consult upon the 
propriety of aclmitting the jurisdiction.' But 
ne has debarred himself even of this shadow 
of an argument ; for instead of pleading at 
the usual time, he applied to the Court of 
Common Pleas for six weeks time to pleaili 
Here then was an admission ef tlie jurisdic- 
tion ; for he could not apply for time to plead, 
unless the Court had cognizance of the matter. 
1 shall presently state to your lordships some 
cases, whose authority cannot be shaken, to 
prove, that even after imparlance the questioa 
of jurisdiction cannot be gone into. 

But this was uot the only submission to the 
jurisdiction of the Court ; tor he then applied 
t(» put off the trial till after Easter Term. It 
would have been nugatory, it would have beeo 
absurd, to have prayed the Court to put off 
that trial, which they had no |K>wer to try at 
all. When Easter Term arrived, the governor 
made a second attempt to postpone the trial ; 
but the Court saw through his design, and, 
satisfied that he did it onl)^ for the pur|»ose of 
delay, they lieil him down by the rule to try 
it peremptorily in Trinity Term, and that be 
should not bring a writ of error for delay. 

When he saw the Court of Common Pleat 
would not lend him their iMiwer for so Imse m 
purpose, lie next made application to the Court 
of Exchequer for an injunction to stay pvo- 
ceediDgBi and a biU wu filed ia Trioity iW^ 



Tabtigat v. Mostyn. 

a i&ctiule IhM iolcDtton ; bul the bill »*s 
i-miaKd on arguinelil, Hnd the goTcrnor wu 
.: k-oglb Jriiifii in the subsequent sitlinifs to 
MiL f¥liRill.rMii«eCuneoii,the<lelenilHDl'B 
notr) dU nnt nbjcti (o th« juriBrliciluii, ihey 
oi oM requni ijie leuined juil|{e to nontuit 
UipliiDbff; bul tli«y sufirrml us lo |[° 'dI" 



biwl iiiacle fgooA our deula- 
re tradable, they then went 
bM Lbra jiutifieation, nail callpil manj wji- 
■«■!• in auiiiMiTt nt' it. Biii a Tetdict beiag- 
livul for Iha pkinlilT, they icnilfred a bill of 
oeqplton* ; anil lu last Mirtiaelma* Term, 
Ihrr apfiliMl lo tht courl of Cuuitnon Fleas fnr 
a »ew Irtti ; lir«l, li>r exceM of darnairea ; 
mtMid\y, btcaiue llie Court bad Dojutisdiction 
— diB iDud exiiaordiiiary reaaon |jerbaps tbat 
••« KBa \pf*a i la detire a seouiid trial b«- 
noM Uie L'oiirl bad no juriBdiclioa lo trv it 
MalL 

Govmor BIuRtvn ha>'mf( m aa msDT in- 
Hmm ■ admitted ine jurjiidiclion of Ibe Court, 
I HMal bcf; leaie hi atnie some aulliorities lo 
nsr Inrdnhiji, whith prove ihat be ia now loo 
bit Id lake any adiantage of a defect of juris* 
dcnaii. 

TheftrsK^ielahall mention to yourlordshipa 

• la W(«Mnd in ibeyear InokaJD tbe tsd H.fi, 

.'-T,iiW»r«lhercTrBiuRiiecial imparlance, 'lalvii 

. noibiia alte^tioaibus el eiceptinnibua, latn 

it l-reie ijtiani ad narrBtionen'; and IbeCoorl 

.iM iMt kIIdw ibe defeadaol'a privilege, be- 

I'V, aaya the cnie, by imparling be has ad- 

■ unl ifie juriidiclioQ of the Court. ThJH 

■'.nat it cunGrmed by lord Coke, iu bis cnm- 

'^1 on ibe I9Slh aeclioD of LilllptDn, where 

;-ikm^ of a pCTEOiial action he says. Ihree 

.n are. to be considered; first, whpn the de- 

-''zalilcl'eudi Ibe KTODij and force, beinaketh 

■^t»W • p*'ty to ibe mailer; aecooilly, by 

-' dalfitcc bf the ilamagf!* he aflirnieih, that 

-t I'Uibtiff ia able tu iiio and lo recover da- 

vmftm upon just t-anie; and by Ibu latil parr, 

ik. • M dial which he ought lo defend when 

N^wiicn he aii{[bt,' bt aKrmelh the juria- 

teka of the Cnurt, 

The caMi of Barrin^oti and Tenablva, 13 C. 
1. rvforlml in air Thomas tlaymood, 34, ii 
•B3r dew on tbi* bead. The dclendnnt after 
lapatlMicc pleaded lo the jurisdiction ; the 
■toialtfl ilmiurred : the juif^menl was, that 
laAoitld aaawer over, for such plea cBODOt be 
phatlirf after imparlance. 

The next caac in order of lime is repotted in 
t Mmim, m, Coi and St. Albon's, 3S Car, 2. 
i piahiliitiaM wu prayeil for the city of Lon- 
li^ kteaoN tb« dttendant bad oHered a plea 
b Ikt nriatietiun ivhieb had been refused. 
ImA tUcT {nance Hale »ud, " in transilorv 
tttiDaa, if ilarjr will plead a matter tbat ariselh 
•dI «f iba JMrmllctiun, and swear it before im- 
f»ikttot, aad it be refused, a prohibition will 
pi." Tberv was n case, aitid bi-i lordship, in 
•b«kil was ai)jitd)(cd Ihat the jurisdiblionmual 
k alcadcd aod <be pica aworn, and it must 
Infin-c toiparliwn. Il waa also agreed 



A. D. 1775. 1910 

in that caae, " Ihat Ihe party choold nefcrho 
received to aui^n for ernir, ihal il was out of 
the juiisdiclinn, but it muki be uleadrd." I 
hare in rain endeavoured In find idii raw ; but 
it ia sufficient for n>y purpone to nbnerve, Ihat 
lord chief JRsIice Hale would not have died it 
unless it had btvn law. If llierrfiiTe ihe opi- 
nion of that Kreat man, solemnly given in the 
eoiirl of King's-beocli, issuibriritr. I am Mi 
In say. that jroverniir Itl-islyn ool havio); plead- 
ed lo the jurisdiction, <:annut now assifpi il for 

In a few year) after, lord chief justice Hale 
was ai(ain called upon to cunijiler tbii qneslion 
in the case of Maodvke anil Slint, 3 Modern 
3T3, ea Car. 'J. There waa a prohihilion lo the 
aheriff'a court of London : ihe Biiir^eation was, 
tiial ihe contract waa made in Mirldleitex, 
theretbre the cause of action did nut arise 
wilhin their juriadiclion. The cliief jiisiice 
and justice Wyndham were of opiomn, " ihal 
after ihe delendant had admitted ihe juriidic' 
lion by pleading !□ the action, eapecially if 
verdict and judgment past, llie court will not 
examine whether the cause of action did arise 
oul of the jurisdiction or not ;" on which b 
prohibition was denied, and judgment was given 
for the plsinliS'. I cannot di«tint{iiis)i Ihi* 
from the present case; for as Ihe Court will 
not examine whether Ihe cause of acfi'in did 
ariaeout of the jurisdiction, there can benn ilif- 
ferCDce whether il was in Midrtlesex or in Mi- 
norca; and that question cannot now be asked, 
because verdict and jurigmenl have pawed. 

Lord chief justice Holt, in Llie case of An- 
drews anil Holl, iilord Kaymontl. 884, said, 
tbat he was counsel in tlie case of Deoning and 
Norria (reportnl in 2 Leviolz, S43} and ihat 
the Court held there, "that since the deleo- 
dant had admitled the judge lobe a judge by a 

Clea t* the action, he was estopped to say, that 
c was not a judge afterwards." If Ihen a de- 
fendant, by having submilled the decision nf 
his cause In a judjfe. precluded himself from 
ohjecliog to bim afterwanls, bow much stranger 
ia the present case, where the itefendaol baa 
Eubmilled his cause to the determinatinn of a 
court which haa cogni7:ince over all tranaitory 
actions. It is again laid down by lord chief 
justice rtoll, '■ that there ought to be no plea 
to ibo jurisdictiiiD after imparlance, and Ihat a 
apecial imparlance admila the jurisdiction. " 
Holt's Reports, Pasch. S W. and M. 

1 must trouble your lordibipa with the casa 
of Trelawney and Willrams, toshew, thai thers 
has been but one opinion on Imlh sides of the 
hall respecling a plea to the juriidiclion ; and 
that equity and common law bate united in 
saying, tbat if the jurisdiction is ootpteaded to, 
it must be afterwards admitted. This case is 
reported iu 8 Vernon 1113, Hil. 1704. The 
plaintiff prayed an account relative to a tin-set ; 
ibedelrndant Iniisled that he ought lo have 
been sued in the Stannary-court. The lord- 
keeper decreed an account; nod aa to Ihe «b< 
jecliim Ihat the plaintiff nui,'bt l( 
the 8lau nary -court, be said, " ' 




SU] 



14 GEORGE III. 



Action Jbr False Imprisonment^-' 



[212 



of its jarisdiclion, the defeDdaot must plead to 
the jurisdictiuD, and not object to it at the 
hearing." 

There are a great variety of casea tendini; to 
establish this p«*8itioD, that when a defendant 
has once submitted to the jurisdiction, he has 
for ever precluded himself from objectinfif to it. 
To state them all, after the great authorities 1 
have mentioned, would be tf» multiply the wit- 
sessei without strengthening the testimony : I 
■ball therefore only site a few passages from 
lord chief baron Gilbert's History of the Com- 
mon Pleas, which are decisi?e upon this part 
of the argument. In page 40, speaking of 
the order of pleading, he says, " the defendant 
first pleads to the jurisdiction of the Court ; 
secondly, to the person of' the plaintiff; and 
thirdly, to the count or declaration. By this 
order of pleading, each subseqoeut plea admits 
the former. As, when he pleads to the person 
of the plaintiff, he admits the jurisdiction of the 
Court ; for it would be nugatory to plead any 
thing IB that court which has no jurisdiction in 
the ease. When he pleads to the count or 
declaration, he allows that the plaintiff is able 
to come into that court to implead liiiii, and be 
may be there properly impleaded." Be lays 
it down in a subsequent part of his treatise (p. 
148,) as a positive rule of law, that, ** if a de- 
fendant pleads to the jurisdiction of the Court, 
he must do it inttanter on his appearance; 
for if he imparls, he owns the jurisdiction of 
the Court, by craving leave of the Court for 
time to plead jn, and the Court shall never be 
ousted of its jurisdiction afler imnarlance." 
IV hen 1 find tnis doctrine in our old law-books, 
when I see it ratified in modern times, and 
stamped with the authorities of Coke, Hale, 
Holt, and Gilbert, 1 am warranted in saying, 
that goveriHtr Moslyn cannot now agitate the 
question of jurisdiction : and if he cannot, the 
judgment must be affirmed. 

Notwithstanding which, I have no objection 
to follow Mr. BuTler through the grounds of 
argument that he has adopted; and J shall 
endeavour to prove, 

That an action of trespass can be brouglit in 
England for an injury done abroad : 

That Mr. Fabrigas is capable of bringing 
such action : 

And, that governor Mostyn may be the sub* 
ject of it. 

It cannot be contended, but that an action of 
trespass is a transitory action, and may be 
brought any where : *< all personal actions," 
says lord Coke, ** may be brought in any 
county, and laid any where." Co. Litt. 282. 

In the earl of Derby's case, 12 Coke, the 
chancellor, the chief juntice, the master of the 
Rolls, and iustices Dodderidge and WiOch, re- 
solved, ** that for things transitory, although 
that in truth they be within the county pala- 
tine, the plaintiff may by Uw alle<l:^e them to 
be done in any place within England ; and the 
defendant may not plead to the jiiriMliction of 
the Court, that thev were done within the 
muoty psUtifie." This doctrine is not coo* 



fined to counties palatine ; for lord Coke, in his 
comment on Littleton, $61, 6, says, ** that ao 
obligation made beyond the seas at Bour- 
deaux, in France, may be sued here in 
England in what place the plaintiff will.** 
Captain Parker brought an action of trespass 
and false imprisonment against lord Clive, for 
injuries received in India, and it was never 
doubted but that the action did lie. Even at this 
moment there is an action depending between 
Gregory Cojimaul, an Armenian merchant, 
and governor Verelst, in which the cause of 
action arose in Bengal. A bill was filed by 
the governor in the Exchequer for an injunc- 
tion, which was granted ; but on appeal to the 
House of Lords, the injunction was dissolved. 
The supreme court of judicature, by dissolving 
the injunction, acknowledged that an action 
of trespass could be maintained in England, 
though the cause of action arose in India. 

The next point to be considered is, whether 
tliere is any disability attending the person of 
Mr. Fabrigas, that incapacitates him from bring- 
ing this action. But it will be requisite for roe 
first to state, that governor Mostyn pleaded not 
guilty, and then justified what he had done by 
alledging, that the plaintiff had endeavoured to 
create mutiny among the troops ; therefore he, 
as governor, had a right to imprison and ba- 
nish him. Your lordship observes, that, ac- 
tionling to his own plea, he does not pretend to 
justify what he has done as governor merely 
from the plenitude of his power, but from the 
necessity of the act, because the plaintiff had 
endeavoured to create mutiny and sedition. 
The learned judge who tried the cause, fore- 
seeing the importance of this justification, re- 
quested the jury, at the same time they brought 
in their verdict, to find whether the governor's 
justification had been proved. The jury found 
a verdict for the plaintiff, with 3,000/. damages, 
and, that the plaintiff had not endeavoured to 
create mutiny or desertion, or had acteil in any 
way tending thereto. 

In consequence of that decision, the question 
now is, whether Mr. Fabrigas, a man perfectly 
innocent, can bring an action against gover- 
nor Mostyn for this wanton and unparalleled 
injury ? 

As the law grants redress for all injuries, so 
it is open to all persons, and none are excluded 
from bringing an action, except on account of 
their crimes or their country. Littleton says, 
there are six niaiiuer of peritons who cannot 
bring actions : Mr. Fabrigas is not included in 
either of those descriptions. The only persod 
that can bear the least resemblance to liim is 
an alien, who, Littleton says, to be incapaci- 
tated from bringing an action, must be born oat 
of the ligeance of the king. Lord Coke, in his 
comment on that passage, observes, that ** Lit- 
tleton saith not, out ot the realm, but out of 
the ligeauce; for he may be bom, says Coke,' 
out of the rtfslm of England, yet within tb« 
ligeance, and shall be called the king's liege- 
man, for ligeut is ever takea for a natond-bora 
subject." Co. Litt. 129. 



813] 



Pabrigat v. Mottyh. 



A. D. 1773. 



rsi4 



Mr. Fabrigas was boro in Minorca subse- 
fMol to the ceaaioD of Spain, consequently be 
if a iuuaral-born subject ; every natural-born 
Mbiect, accordinnf to lord Coke, owes alle^ance 
li me king ; allegiance impliea proit* rtii>n, the 
iM is a necessary consequence tif tbe other ; 
ihekiiigrof England can protect only by his 
kai ; bv tlia laws of £ng:land tiiere is no in- 
JHj willioot a remedy ; the remedy for false 
■friaooment and banishmf*nt is an action of 
fecipBsa, w bich is a transitory action, and may 
be btoogbt an V where, therefore riiBrbil)* brought 
m tbe city of London, where this action was 
aeloalljr tried, and Mr. Fabri|pi8 recovered 
3,0001. damages. I hope your lordtthips will 
JHtii^ me in saying, that this is a fair deduc- 
JilB men eatablisbed principles. 

Coke (Co. Litt. 130), mentions three things 
vbcraby every sdbject is orote cted, * rex, lex, 
' et reacripta regit* ;* and he adds, ** that he 
that ia out of the protection of the king, cannot 
ka aided or protected by the king's law, or by 
tbe bing's writ." The natural inference to be 
dnwB mm thence is, that he who is under the 
blag's protedion may be aided by the king*s 
law, Mr. Fabrigas is under the king's pro* 
Iselioo, because he owes him allegiance, there- 
ktt be may be aided by the king's laws ; con- 
ssfseoUy is warranted in bringing this action, 
lbs only aid the laws of England can afford bim 
fcr that injury. 

Mr. Buller has mentioned the case of Pons 
mk Johoaoo, lieutenant-governor of Minorca, 
aM aeefna to rely on wbat was said by lord 
faaden <mi that occasion. If my memory does 
Ml aialMid roe, tbe plaintiff could not make 
fiad bia case, being unable to prove Mr. John- 
■i^a band-writing to the order for the fiscal to 
flMBil bim, and the question of jurisdiction 
ais not SLgitated ; but if it had, however re- 
ijpsdable lord Camden's opinion ever will be, 
m it was only the opinion of a judge at Nisi 
hies. And according to Mr. Buller's own 
Urie of tbe case, he makes lord Camden con- 
ftsi, that an action might lie in a transaction 
batween subject and subject. That concession 
iisafficieot for me; for 1 have your lordship's 
swa words to prove, that Mr. Fabrigas, being 
hsn in a conquered country, is a subject. 

Id tbe kinff and Cowle, 2 Burr. 868, your 
Isrdsbip, apeaking of Calvin's case, said, ** the 
fMStion was, whether the plaintiff Calvin, b<»rn 
ia Seollaod after the descent of the crown of 
England to king James the first, was an alien 
hsm, and consequently disabled to bring any 
ifal or personal action for any lands within the 
italm of England ;'! and your lordship added, 
** bat it never was a doubt whether a person 
koni in tbe conquered dominions of a country 
iisobieei to the king of the conquering couu- 
ky." From this two points are gained : first, 
tint Calvin, though born in Scotland, was not 
•a aUeOy and might bring a real action ;• and 
that there never was a doubt, but that a person 
Urn in a conquered country waa subject to the 
esaqveror. Aa therefore tbe twelve judgea de- 
that CalFin could bring a real actiooy 



I because . he was not an alien ; certainly Fa- 
! briufas may bring a transitory action, as he ia 
a subject, being bom in a country that waa 
conq lereil by the state of Great Britain. 

There is an anonymous case in 1 Salkeld, 
404. 4 Ann. A bill was brought in Chancery 
to foreclose a mortgage of the island of 8arke : 
the defendants pleaded to the jurisdiction of the 
court, viz. that the island of Sarke was governed 
by the laws of Normandy ; and it was objected, 
that the party ought to sue in the courts of the 
island, an-i appeal. On the other side, it was 
said, that if the person be here, he may be sued 
in Chancery, though the lands lie in a county 
palatine, or in another kingdom, as Ireland, oir 
Barbadoes. Lord-keeper Wright over-ruled 
the plea, saying, *< that the Court acted against 
the person of the party and his conscience, and 
there might be a failure of justice if the Chan- 
cery would not hold plea in such a case, the 
party being here." How much stronger then 
is the present case ? for this is a transitory ac- 
tion that may be brought any where; Mr. Fa- 
bngas on the spot to bring it, and governor 
Mostyn in England to defend it. 

The case Mr. Buller has cited, of the 
East- India Company and Campbell, admits of. 
a short answer ; for had the defendant con- 
fessed the matter charged, he would have con>- 
fessed himself to be guilty of a felony ; and the 
humanity of the laws of England will noi 
oblige a man to accuse himself: but this is not 
a pttbHc crime, but a civil injury. As Mr. Bul- 
ler has gone to the East- Indies for a case, I 
shall be excused mentioning the case of Ram- 
kissenseat and Barker, lAtkyns, 51, where 
the plaintiff filed a bill asrainst the representa- 
tivea of the governor of Patna, for money due 
to him as his banyan. Tbe defendanta plead- 
ed, that the plaintiff was an alien born, and an 
alien infidel, and therefore could have no suit 
here : but lord Uardwicke said, as the plaintiff's 
was a mere personal demand, it wss extremely 
clear that he might bring a bill in this court ; 
and he over-ruled the defiendant's plea without 
hearing one counsel of either side. As there- 
fore lord Hardwicke was of opinion, that by the 
laws of England an alieu infidel, a Gentoo mer- 
chant, the subject of the great mogul, could 
claim the benefit of tbe English laws against 
an English governor for a transaction in a fo- 
reign country ; I trust that your lordships will 
determine, that Mr. Fabrigas, who is neither 
an infidel nor an alien, but a subject of Great- 
Britain, may bring hia action here for an injury 
received in Minorca. 

The case^of the countess of Derby, Keilway 
202, does not affect the question ; for that was a 
claim of dower, which \h a local actipn, and can* 
not, as a transitory action, be tried any where. 
The cases, mentioned by Mr. Buller, from 
Latch and Lutwyche, were either local actions, 
or questions upon demurrer, therefore not ap- 
plicable to the case before tbe Court; for a 
party may avail himself of many things upon a 
demurrer, which he cannot by a writ of error. 

Mr. BuUer's endeavouring to confound Uraa- 






SIS] 



14 GEORGE m. 



Ad^iomjar Fcise Jtnjpruenmtnt'— 



[S16 



■itorj with local action , must be my apoloey 
for mcfDtioninflf another rate in iiupport of the 
distinction. The case I ullude to is Mr. Skin- 
ner's, which was referred to the tweWe judflies 
/roin the council-board. In the year 1657, 
when trade was open to tKe East- Indies, be 
possessed liimself of a house and warehouse, 
which he filled with ^oods at Jamby ; and he 
purchased of the kinnf of Great Jamby the 
islands of Baretha. The af^ents of the East- 
India company assaulted bis person, seized 
his warehouse, carried away his goods, and 
took and possessed themselfes of the islands of 
Baretha. Upon tiMs case, it was propouniled 
to the judges, by an order from the king in 
council, dated the 12th April 1666, whether 
Bf r. Skinner could have a full relief in any or- 
dinary court of law P Their opinion was, ** that 
his mtjesty's ordinary courts of justice at 
Westminster can - gif e relief for taking away 
and spoiling his ship, goods, and papers, and 
assaulting and wounding his person, notwith- 
atanding the same was done beyond the seas : 
but that as to the detaining and possessing of 
the house and islands, in the case mentioned, 
he is not relierable in any ordinary court of 
justice." 

Your lordships will collect from this case, 
that the twelve judges held that an action might 
be maintained here for spoiling his goods, and 
aeizing his person, because an action of tres- 
pass is a transiterv action ; but an action could 
not be maintained for possessing the bouse and 
land, because it is a local action. 

I trust I have proved that an action of tres- 
pass may be brought here for an injury re- 
ceived in Minorca ; and that Mr. Fabri^, a 
natural 'born subject, is capable of bnnging 
•uch action. The only remaining question is, 
whether Mr. Mostyn, as governor, can tyran- 
nize over the innocent inhabitants within his 
government, in violation of law, justice, and 
umani^, and not be responsible in our courts 
to repair by a satisfbctioii in damages the injury 
be has done ? Mr. Buller has contended, that 
general Mostyn governs as all absolute sove- 
reigns do, and that * stet pro ratione voluntas* 
is the only rule of his conduct. I did not ex- 
pect to hear such an assertion advanced in this 
court. From whom does the governor derive 
this despotism ? Can the king delegate abso- 
lute power to another, which he has not in 
himself? Can such a monster exist in the 
British dominions as tyranny uncontrouled by 
law ? Mr. Buller asserts, that the governor is 
accountable to God alone ; but this Court 1 
hope will teach him, that he is accountable to 
his country here, as he must be to his God 
hereafter, ff»r this wanton outrage on an unof- 
fending subject. Many cases have been cited, 
and much argument adduced, to prove that a 
man is not responsible in an action for what he 
has done as a jadge. I neither deny the doc- 
trine, nor fball endeavour to impeach the 
casea ; but I most obeerve, that they do not 
affect the present question. Did goTemor 
Hoityn rit u jodginait? Did ke hear toy ac- 



cusation P Did he examine a witnesa P Did he 
even see the prisoner P Did he follow any rule 
of law in any country } * Stet pro ratione vo- 
luntas' was his law, and his mercy was twelve 
months banishment, to an innocent individual. 

As Mr. Buller has dwelt so much «|ion the 
case of Dutton and Howell, it will be ex|»ected 
that I take some notice of it. 1 need not go 
over the case again, as it has been already very 
accurately stated; but 1 must beg leave to 
read the reasons which were given with the 
printed case to the Lords, before it came on to 
ne argued in the House of Peers. It is stated, 
that sir Richard Dutton ought to have the 
judgment that was obtained against him below, 
reversed ; for 

1st, That what he did, he did as chief gea 
vemor, and in a council of state, for which he 
ought not to be charged with an action. If he 
shall, it may be not only the case of sir Richard 
Dutton, but of any other chief governor or 
privy -counsellor in Scotland, Ireland, or else* 
where. 

8. What was done, waa in order to bring a 
delinquent to justice, who waa tried in BarSa- 
doea and found guilty ; and if for this he shall 
be charged with an action, it would ,be a dis- 
couragement to justice. 

d. What was done, was done in court; for 
ao is a council of state, to receive complaieta 
against state delinquents, and direct their triala 
in proper courts. What a judge acta in court, 
as sir Richard Dutton did, no action lieaagaioit 
him for it. 

4. There never waa such an action aa thii 
maintained against a governor for what bf did 
in council ; and if this be made a preoedeiit, it 
will render all governments unsafe. 

5. If a governor of a plantation beyond the 
aeas shall be charged with actions here, for 
what he did there, it will be impossible for him 
to defend himself: first, for that all recordi 
and evidences are tliere: secondly, the laws 
there differ in many things from what they are 
here. 

Though the first part of this reason seems 
to operate in favour of governor Mostjm, yet 
it goes no farther than this ; that if an aetm 
is brought here, it will be impossible for him 
to defend himself. The latter part ahewa the 
meaning of the whole; that is, if an action is 
brought here against the governor for euj 
thing done by him in his judicial capacity, 
then he will not be able to defend himself, «s*> 
cause all the records and evidencea are there. 
This clearly proves, that it refers to what he 
did as judge, otherwise there could have been 
no occasion to have mentioned the reoor4p 
being there. 

These reaaons roust have been the grmiBi 
of the counsers argument, and the whole is 
bottomed in sir Richard Dutten's having acted 
with hia council in a judicial capacity. I take 
no notice of the arguments of counaH, as rt^ 
ported bjr Shower, because it can be no an- 
tliority Ar thia court. 1 shall only ohacffTS^ 
that u reaped to the junsdidiooy wbieli mm 




Fabrigat v. Mosiyn. 

m tottcheJ on, Ihat tlie mu«rltoD uf 

A tor ibe Uctendtnl iu errnr, Hfiirm- 

wuJtctinn, ii he goul lUlliorily for 

I uf ii by sir Uiohard Duiiod'e 

r, biiller. Tlie repnrt ii gjkal 

* ftriMinili ii4 Uie JudufDient; Jl onlj 

Ibal the action wan rererseil;" liul 

I vonl thni ilie BCliou ciiuld ont be 

111 I teiilure lo ufBnii, Uial iliig 

! Irwl rrtrinbluice lu Ihe pre- 

M; duty calli OD roe lo dnvr the iuTi- 

■ puvIIH. 

mur DultuD ul wllh his oouocil, to 
il «iii|uira iu the supreme cuurl of ju- 
a llarbidoei : 

ir Mtniyn »t neither *s ■ mililtry 
il jud^e. 
t. F«bfl|[M was not brau^ilil belbre him, 
'It he Becuard by any man : 

iililicly BccQKd be- 

•n iaio B dimgeon, 
nib tlie mom uiibeard-nrgeTerily; 
nil) oDJy rooBiied for tne . 
_ hilt |ieri>uo . 

m biiiishedrarliTelTeiDniitbs 
8|itni»b duiniiiioiiit : 
jrJobn wM kriil in cualoily for 11 diys, 
• MnU ba hroufjhl to bia trial ; 
r. Fabriga*,oiitlje|;<>r«rnur'ijii«lilicAlian, 
bund to lie lanoceni : 
Sr John Wiiham, when bronchi beforr Ibp 
wartor|{«ieralwsBioD>, woifouud ({uiliy.snd 

The gavernor of Btkri'adoM followed Ihe iawa 
rfBwiMloes'. 

The KDTprnor nf MInnrca acted in dinme- 
k«tJ opimfiliun tn all latrs. nnil in viulatioD of 
is •MtmldicliilMof homaiiily: 

Sa Ri^liard Duitou let the law take its 

It out of bia way to 

H>«iny abt-wM the dilTerenre betneeu the 
i*a caB««, permit me In mmlion an obierra- 
iii« of loint «birl*-juitic« <le Grey, \a bia nrii- 
aam an Ihc malioo for a new trial. " If Ibe 
C*>n«or liad tvcured lilm," said bis lonlthip, 
" asy, if be bad Wrcly committed him, that lie 

a hi ba*c been atntnable to jusiice, and if be 
wnn>p<lial*ly ordm^ a proaecullon upon 
uy wn '>( bi« i-nuduci, il would have been 
asMbcr ijUMioD: bitt tbe cnveroor knew he 
taaU DO morn tmpnsoa him Ii>r a Iweliemonlb, 
(iind lb* liaBiahnwnl far a year i» a conlinualion 
tl tbe ortcina) impriaoiimeni) Iban ibiit be 
■MiU iaAtcl tbf t0it<ire." 

La«4 cbiefguatice de Grey llitn undoubtedly 
lb«agb( (bat Bo*«Tnor Moctyn had actetl ille- 
ttUjf : ifao, I hope 1 nball be able to«bew, 
iiiil bt H mffleiiable to Ibe courlaof law in 

Lflrri MlBmnnt't ciae, iu 3 Salkeld 695, 
' R. Pvek. IU W. $, evince*, tbat a ico- 

rndrkbmad ■■ rMpoutihle here. "Tbeal- 
' riiey-f •neral mnifd tor a Itial at bar ibe last 
•,^4ky ■■ llie tattu, ia an Mtioa aKaiufl ilia 



A. D. 177S. 



[918 



clUe 



gOTemor of New-York, for niatlerdoneby him 
as §;o>ernor, and sTanird, because Ibe Itingde- 
fended it." I collect fi'am Uiie caw, that Ihe 
Btlurney-||;eaeral knew ibe Court bad jurisdie* 
lion, or be would not ba<e nude the motion ; 
and tbe Court wonld nut haie granted It, if 
they bail not been Icgully impowered lo Iry it. 
The IdcitlHInre, in U>e aame year (13 VV. 3, 
cup. 1^,) enacted, that govettntn beyund Ihe 
sea iliould be tried in the King''a-beuch, or in 
aucb cnuiily as shall be asiigued by bis ma- 
jesty, by good anil lawful men, lor ofl'encea 
cuainiitlcd in Ilieir govtfiimeols abroarl againit 
Ihe kioi;'s suhjec Is there. Aa, by tbe common 
law, ao' indiclineat could be preferred only in 
that county where tbe offence was commiiled, 
goveraiirs abroad were not crimiiiBlly amena- 
ble llll Ibis act had passed. When the legisla- 
ture so carefully provided la bring gorernon to 
juitice for Ibe olTcnceB they mi|[bl cnmmil in 
their governments, ihey would indisputably, 
by the same law, have protested the suhjecla 
from civil injuries, had ibey not bnown Ibat 
aucb pRitiaioo was unnecessary, and Ihat, by 
the common taw,^ [lersnnnl actions iDiiibt be 
brought in Bnu'Und ; of which lord Betla- 

In Michaehnas lerm, 11 Geo. 3, 1737, Ste- 
phen Conner bmughl ao action iigainsi Joseph 
Kslirne. KOternnr ul Gibraltar: aud be elated 
in btH declaration, tliat he was a iimster c»t- 
penler of tbe iiRice of ordnance at Gibraltar ; 
ibnl e''ivernor S»hine tried hiiti by a cuurl-mar- 
iial, Iu which be was nut sulijeci ; and that be 
underwent the senlence of reoeiviog 900 laihes, 
and that he was compelleil to depart from Gib- 
raltar, which he taiil to his daniage of lO.OUOf. 
Tbedefeudaiit pleaded Nut Guilty, and justified 
hy Iryiu^ htm by a court-martial. There was 
a verdict (br the plainlitT, with JOOl. damaf^cs. 
A will of error was brnughl, and Ihe judgment 
affirmed. No diilinclion cnn be made between 
Ihe gnternnr of Gibraltnr and Ibe gorernor of 
Minorca ; except only, Ibal the one tried Con- 
ner by a court mnrUal, and punished him by 
military law; while tbe other, without any 
trial, banished Mr. Fsbrigas, contrary to all 
ideas of justice and of law. 

I masl now bej; leave lo advert lo t)ie bill of 
exceptions; in which ilisalledgnt, thai •■ Mi- 
norca is divided iuto four districts, elclusive vf 
Ibe arraval, which Ibe wiineisei always under- 
stood lo he diBlincI from Ibe others, and under 
the immediate order of ihe goveruor." 

I am well aware, lliat I am not al liberty lo 
go out uf the record ; if I waa, the lact war- 
rants me iu saying, that tbeeiiJciiceis moil 

tt is iinlorioag that Minorca is divided into 
four terminoxouiyi Cientadella, Alayur, Msr- 
cadel, and Malum, which latter inrluiles tbear< 
raval of Ht. Phillip's. Tbii is known tu every 
man who has been at Minorca, and to every 
wan who has read Armslrung's history of Ihat 
island. Thai tbe guveronr has a legislailve 
HUtbority within tbe arraval, is ton absurd lo 
dwell ou. By what law, by what (truniion. 



2I9J 



14 GEORGE IIL 



Actionjlr False Impruonment'^ 



rs2o 



doet he elaina that power? When process is 
ezecuteil withio St. PbillipX or its enrirons, 
Ibe cifil magistrate asoall^ pays the gofemor 
the complimeot of acquainting him with it ; 
but the same compliment is paid to the com- 
manUio^ officer at Cieutadella, where an ex- 
clusive jurisdictioa is not efen pretended. In 
fact, it is a matter of ciFility merely, but nef er 
was a claim of right. 

Lord chief justice de Grey in the solemn 
opinion which he gave upon the motion for a 
new trial, has been explicit on these two heads. 
** One of the witnesses in the cause (said his 
lordship) represented to the jury, that in some 
particular rases, especially in cnminai matters, 
the gofernor reudent upon the island does exei^ 
cise a legislatire power. It was gross igno- 
rance in that person to imagioe sudi a thing : 
I may say, it was impossible, that a man who 
lired upon the island, in the station he had 
done, should not know better, than to think 
that the gOFemor had a cifil and criminal 
power in him. The gOTernor is the king's ser- 
vant ; his commission is from him, and he is 
to execute the power he is invested with under 
that commission, which is to execute the laws 
of Minorca, under such regulations as the king 
•hall make in council. It was a vain imagina- 
tion in the witnesses to say, that there were 
i&ve terminos in the island of Minorca. I have 
at various times seen a multitude of authentic 
documents and papers relative to that island ; 
and I do not believe, that, in any one of them, 
the idea of the arraval of 6t. Phillip's being a 
distinct jurisdiction was ever started. Mabon 
is one of the four terminos, and St. Phillip's, 
and all the district about it, is comprehended 
within that termino ; but to suppose, that there 
is a distinct jurisdiction, separate from the 
government of the island, is ridiculous and 
absurd." 

These were the words of lord chief justice 
de Grey ; to which, 1 am confident, this Court 
will pay a proper attention. 

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

It is then stated, that the king ordered *< all 
his loving subjects in the said island to obey 
bim, the said John MosUn ;" but nothing in 
particular is mentioned ofthe arraval. Had it 
beeriji peculiar district, under the despotic will 
of the governor, there must have been some 
notice taken of it, either in the commission, or 
in his majesty's orders. The governor then 
confesses m his bill of exceptions, *< that he 
banished Mr. Fabrigas without any reasonable 
or probable cause, or any other matter alledffed 
in bis plea, or an^ act tending thereto." JNot- 
wiihatiuMiiDg which admiiiioD) in the very next 



sentence, he inbists that the plaintiff ought to 
be barred his said action, although it is stated 
in the bill of exceptions, that *' the Minorquios 
plead sometimes toe English laws." 

Were the bill of exceptions less absurd than 
it is, yet I should contend, that the governor, 
by plc»ading in chief, and submitting bis cause 
to the decision of an English jury, has pre- 
cluded this Court from eoc|uinng into the ori- 
ginal jurisdiction. Were it possible that this 
ground should fail me, when supported by so 
many great authorities, yet I should be very 
easy about the event; for, as an action of tres- 
pass can be brought in England for injnriec 
abroad, and as every subject can bring that ac- 
tion, and as governor Mostyn (Ijeing a subject) 
must answer to it, I have no doubt but tba 
judgment will be affirmed. Should it be re- 
versed, I fear the public, with too much troth, 
will apply the lines of the Roman satirist oa 
the drunken Marius to the present occasion ; 
and they will say of governor Mostyn, as was 
formerly said of bim. 

Hie est damnatns inani judicio ; 

and to the Minorqnins, if Mr. Fabrigas should 
be deprived of that satisfaction in damages 
which the jury gave him. 

At tu victrix provincia ploras. 

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

The first objection made by Mr. Peckham 
has been, that Mr. Mostyn should be precluded 
from conteiiiliog that this Court hath not a jo- 
risdiction, because he has submitted to the ju- 
risdiction of the Court in so many instances 
during the whole of these proceedings. He 
has stated the whole proceedings during the 
stages of this cause, by which he supposes Mr. 
Mostyn hath done such acts as shall be <Mm- 
strned into a submission to the jurisdiction of 
the Court, and is therefore now precluded from 
entering into the question. Further, Mr. 
Peckham has insisted upon it, that at the trial 
we did wrong in making a defence ; because, 
if we meant to ^ into the question, whether 
the Court Itas junsdiction or not, we should have 
then insisted upon a non-suit, and not gone 
into the merits ofthe cause. I do not appre- 
hend any of the cases he has cited will come 
up to the present : and as to the different pe- 
riods of the cause, where he supposes we have 
submitted to the jurisdiction of the Court, if 
this Court hath no jurisdiction at all, 1 do not 
know how it can then be mmI we have lubiiut- 



»1] 



Fabrigas v* Mottyn* 



lei to it Siying, that at the trial we should 

kove insisted upon a non-suit, is sayinff we 

should have insisted upon what we could not 

demand ; for it is at all times at the option of 

the plaiiilifl', whether he will submit to a non- 

IMI or mit. 1 1' the defendant can avail himself 

tf the objection at all, it must be by entitling 

liflBBrlf by that means to a ferdict ; for it is in 

As power of the plaintiff to get up and say, I 

till not be non- suited. It was impossible for 

Bf to insist upon the objection in any at her 

wsy than it is now done : the objection arises 

•at of the facts of the case, and what was 

BroTcd at the trial. It was there proved, that 

Mr. Moety n was the governor ; that what he 

M was in that character; and therefore, 

■ys he, these facts being proved, 1 insist I 

•« not answerable in a court of justice in 

£oglaod, for what 1 have done in (hisch^trac- 

tff : therefore the objection would have been 

■Bproper, if it had come at any other time ; 

it could only come when these facts appeared 

is evidence upon which this objection was 

ftooded. As to the many cases that have been 

died, I bdieve I may safely give this general 

isswer to them all : they are cases where an 

•dioD has been brought in a court in England, 

fir a transaction arising in England, but, on 

aeeoont of a charter or statute, the jurisdiction 

if the soperior court has been excluded. Where 

thit ifl so, and this Court has a general super- 

islcDdent jorisdictioD, but it is taken away by a 

pirtiailar law, in such case it is necessary to 

Ijhad to the jurisdiction: hot when the ques- 

liM ariaes upon a transaction happening in 

facign parts, and where the courts of England 

aMMH liave any controul whatsoever, suppose, 

iiinstaofse, in France, where the king or par- 

fiiBeot of England can make no laws to bind 

4e inhabitants, it is just the same as a court 

if inferior record in England, where it holds 

. plea of a thing done out of their jurisdiction. 

■•that case, if it appears upon the proceedings 

Uttt the cause of action arose out of the juris- 

MoDo, the whole proceedings are void ; thpy 

ire coram non judice ; aud an action will lie 

•f^aiast the party, the officers and the judges, 

Air what is done under them. 

In this case, as I submit to your lordship, 
the question is the same ; because it is not on a 
Iraasaction happening within the limits, or 
vithin the country where this Court resides or 
bs a jurisdiction, but on a transaction arising 
is foreign dominions. 1 beg leave to mention 
<•«, that if these cases were so very general as 
Mr. Peckham wishes to have them understood, 
it if not possible that the case in Latch, or the 
case iu L*utwyche, e^er could have existed ; 
Weaufte, if it wa>« to hold as a general rule, 
iktt where the cause of action arises out of the 
kise(k»in you must plend to the jurisdiction, it 
v«Mi(d have l>een a sufficient answer in those 
tmts to say, it was not so pleaded. In tlie case 
it Lotwyche, there wa.s a plea in bar, and de- 
Siorrer to that plf»a ; but it ap|>earing, that the 
Cum Iff action did not arise in this kingdom, 
^ la foreign paru, the Court agreed; that the 



A. D. 177S. t«S 

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

Mr. Peckham has divided his argument inta 
three heads: first, whether a transitory actios 
is capable of being brought in England, if tha 
cause of that action arise beyond the seas : 8e« 
condly, whether the plaintiff is capable of 
bringing such action : and, in the third place, 
whether the defendant is a proper object of it. 
On the first ef these questions it has been in- 
sisted, that an action of false imprisonment is a 
transitory action ; and some cases dted, whera 
transitory actions, arising abroad, are holden to 
be maintainable here. An action of false im- 
prisonment certainly is a transitory action : but, 
my lord, the cases dted from IStb Co. and Co. 
Lit. were not cases of aation for false imprison- 
ment, but debt upon bond. These cases wera 
where the law, in the different countries, was 
the same ; and they therefore come within tha 
distinction laid down in the case before lord 
Camden. For, where the law of the different 
countries is the same, this Court may hold 
plea; it may do as much justice as the foreign 
courts, and can he involved in no difficulty with 
respect to the rules by which they are to de- 
cide. But in the case of transactions arising in 
foreign dominions, where the law of the foreign 
country is different from the law of this king- 
dom, this Court has no way of informing them- 
selves what the foreign law is, nor can they 
know what rules to decide by ; and therefore 
every inconvenience arises against their enter- 
taining such a suit. Mr. P^ham tlien cited 
the case of Parker against lord Clive, in this 
court, and observed, that there never was any 
objection taken there, that the action would not 
lie. That case is different from the present. 
That was a case^between English subjects, and 
a case that was ^ to be determined, not by the 
law of the East Indies, (for that was not set up 
as a defence, or at all intermixed with the case) 
but by the law of England ; and therefore is 
still within the distinction 1 have laid down 
and endeavoured to support. Then the second 
question Mr. Peckham has made is, whether 
the plaintiff can maintain this action? The 
plaintiff, he says, is not an alien, but a natural- 
born subject, and as such he owes allegiance, 
and is entitled to protection ; and that the king 
of England can protect only by the laws of 
England, and therefore this man has a right to 
bring his action here. The proposition will it- 
self shew how enormous it would be, if it were 
to hold in this case. How is the king to rule 
by the laws of England ? Is it meant that this 
case is to be determined by the laws of Eng- 
land ? If so, that would be injustice in the most 






SS3] 



1* GEORGE m. 



Aclionjbr False Impriiovvifut — 



fav ilie 



I 



I 



ghring 1ig:ht; hecauoe it wiulJ becondnnitiiiK 
ibe det'enihiDl by one lair, viXiva lie wm bound 
to regulate lib cotiiluci by a different. But il 
true that the kin|r ol Engluiil can prnl<ct 
~ law* of England only ; for, in other 
. a Iranxsclioo rouflt be tried by the laws 
of that place where it arises ; and ibe king can, 
Id Dllier (ilaces, goiern by other laws tlwn 
those of EDiclaod: to J I contend, tliia quesllun 
mutt be deleriiiined by sucli laws, and uot by 
the laws of this country. Mr, Peckharo hm 
then insisted, tbnl this is a case between siibjecl 
mod subject. If lie ineanii il Is between subject 
and sntyect. ipealtin]^ ol'ihe kiii|; of England. 
it Is true; but FabriigM Is nut a aubjeci of Ibia 
realm, nor subject to be gorerned by the laws 
of this conn try, and therefure shall not avail 
himielf of the lawi of Ibis country. The caae 
ID Salkeld, 401, was then cited, w^ere IheCourt 
of Chancery (iroceedpfl against a lnrel)j;oer ; 
and the reaaon there giico lor so doine is, be- 
cause that Court acts in penonaia. Bui, my 
lord, that case does not appear to be at all 
blended with foreign law ; nor ia any thing 
ibere atatrd, which called on the Court (o de- 
termine that case by any other law than the 
known laws of thi^ country, and the rules of 
their own court. The case in the 4tb losli- 
lule was then eodearoured In be distinguished 
from ihe present, by insisling, ihal the subject- 
matler of Ibal case was loeaf: hut Ihai answer 
cannot hold. If it had been an action In a 
court of law, the answer would have been a 
good one 1 because an action af dower Is local, 
and can only be tried In the county where the 
land lies; but that was a suit In Chancery, 
and not an action ; and, as ia saiil In the case 
cited from Salbeld, the Court of Cliincery 
don't proceed against the thing, but against the 
IKWin. 

Then the last inealioa that has been innde is, 
whether the deleodant in (his cast Is the proper 
■ubjed of au action? Aly loni, Sir. Frcldiam 
has observed, I said the governor wns absolute ; 
but that he iusists is impossible, because there 
is no person who could delegate such an autho- 
. rily to him ; ibat If he derited such authority 
from any one, It must be from Ihe king ; but the 
king, out bring absolute himself, could not grant 
warn BUlhorily to Mr. Slustyn. If it be meant 
«nty, titat Ibe king is not obsolnte in this coun- 
try, 1 mosl readily accede to the proposition ; 
but what the cniislitutiou of this country is, 
oaa be nv arguiuent to pro«e what is the state 
«r consiitulion of Minorca. That Minorca la 
«f A different caostitution, and ia governed by 
different laws from what prevail iu this coun- 
try, is staled In the record ; which record is 
deciaive upon tbat point, fur the Court cannot 
deiiart from it. It ut there iilaied, that the arra- 
*al of 8i. Phillip's Is au<<ject to Ihe imiaediate 
order of llie governor, and to his order and di- 
ftclioa only ; for on judge, either criminal or 
oiril, can Interfere, or has auy jurisdicti'iD 
there, unless under bi» express leave; there- 
fore the argument, as tn Ihe authority or power 
«r lite king here, is luially foteigo to the silua- 



P 



lion of the gnvernor of Mil 
or jurisdiclinn he has there. 
it does not appear in the record, Ihat the « 
fendant did act as Judge. This also must 
decided by the record ; and it Is Ihiire slab 
that ibe defendant was governor, snd so bei 
gnvernor he caiiged the plaintiff to be taki 
Imprisoned, &c. The case of Dulton 
Howell has been much observed upnn. and t 
printed reasons given iu thai esse parliculai 
staled ; but I do not perceive the case bl 
bet-n disling Ills bed from the present. Some 
the reasons alledged for the defendant the 
are equally strong In favour of the prei«nl ( 
(endanl. It Is said, there never was lucb 
action maintained before; and If a goven 
beyond sea be charged here, he cannot delii 
himself, becniise all the records and evidec 
are there. Mr. Peckbam has not been able 
produce one rase, in which such an nclion 
lliis has been maintained before. Itul lb 
another ilistinclion he endeavaureil to a* 
himself of is, Ihat, in the case of Uiilton s 
llowel), ihe action was fur un act done In con 
cil, and therefore varieil from this case, I 
cause here there was nocouncil al all, I ca 
not see hnw that difference will at all avail H 
Peckham's client. In the first place, in Oi 
hadoea, there was a conned, and ibe goven 
had no power without the cnuncil ; but is tl 
Ihe case heref In Minorca, there Is uo coun 
at all; and therefore, in this case, the g 
vemor stands in Ibe same siiualion (a I 
governor and council of Barhadoes. As lal 
neces^ly of pleading In abatement to the jut 
diction, it is very observable, thai in the CIM 
Outton V. Howell, the cuuOKel who argued 
that cue do not venture lo rely upnn tMl C 
Jection. But they insist further, that ibeJM 
diction cannot be examined in ibe Bxcb«|l 
chamber, because both the statute and wnl 
error expressly provide agninsi II: and lbe_ 
fore, say they, it is questionable, whriher 
can be insisted upon In the Ilniue of * ' 
and it is admitted by Ihera, that a quesli 
might have been made on the trial of an iisi 
if one had been joined. However, that qui 
tlon was gone Into in the Huufc ol Lords, a 
the 6nal decision of the cause appears fr 
the book ; namely, that the jnilgiueni ii ~ 
case was for tbe ilef'endani, aud that the 
could not be maintained. Then Ihe words 
[I cbierjukticu de Grey, in this present < 
>a a iiiolion for a new iriul, have been 
relied upon i and his lordship la made lo 
Ihat if the governnr had srcurerl the pr 

Clainliff, merelj for tbe sake of a trial. It woi 
9 a different affair. In Ibis case, 1 apprehi 
uld be quite sufiicieiit (or me, il thi 
vcrnur had a jiower of comotii 
he bad, that Is suSicienl lo preveol thi 
I'tiidant's being a IreapHSser by such 
taeai : and the reason ablenei.8 of the time fat 
hich be was ciiiumilK^, would be a very dif- 
rent qiieslion ; for, if Ihe governor had a 
, awer of cummiiling, he has pursued that 
power, and tbca tbi« ■ciion cannot be uiaii- 




Fahrigo) v. Moslyn. 

Tbe Heart cate that b*H been ciied, 
in ad SBlkeli], which w 
agUMM a gotemur I'nr wliat he did 
Meri bul thai is kimjily a motioD fur 
Imt. Tbe merits of the 
|wly »f ibe aciioii, wero not bttbre tbe 
Uk or at alt enler«(l into ; 
■ manle la tbe jurisdiciian nf the Cuurl; 
'here a ibiog is DOt nbjecled to, the case 
i-ner be na aulUortiy on ibe |>oint: there 
' gae >}'Ilab!e isaid Hbuiit it ; and iherel'ore 
i.-ise cautiM kave Ibe leut weigiit wbatto- 
ici peeling this qjestion. Then Mr. Peck- 
- I tbe statute uf the Vi\h of William 
bat ibai »as admitled by him to ex- 
In (n-imiDal prosecutiunsatlbeking's 

jtmS ttkerefore can hate noihiog to do ulth 

4r fKtot qaestioD. The case of Conoer 
4piM Sabtite ia as dilTereot frnni this cuse, as 
MNC ease caa be frura another. There the 
Mace was uut upon the ground, that the 
' - -ial. The 



A. D. ms. 



[236 



ootolherwise: theystated a limited 

yij^ctioa. and it appeared (be ptainlilf was 

Wlbe object of that jurisdiction. Then it is 

■y,[haL Minorca ia not a niihiary camp, hut 

MikcT« are judges huth criminal and civil. 

br f^ia I must hue recourse to the re- 

adtatH', for there it is Etsied, that within 

fctfiaral of 8L Philh|i'B, where tlii« Iraus- 

MH Bcctirred, there is no jnilge either cri- 

■mI ar civil ; there is no power but that of 

k ptenwr. Mr. Peckhtun observed, that 

*■ atfrd in the record, that the iubabitants 

aaants ctaim jirotection from the law 

4b(tan-l, as well as tbe law of S|iBin. It 

• a ftalei); bul what is said further.' 

titU tbey erer have it allowed In them, 

*% Uii?y are governed by it; but it is 

Vdj stated, that they are in genernl go- 

MJby llie law of Spain ; therefore tbe re- 

■Ifcei oat [irute, ibat Ibe people ii> Minorca 

v^nnoedby the same laws as the people 

'-. bM it does p rote, that they are governed 

• t% ■rliich are tiiUlly diflereol, and that 

. Ibe nrraval uf St. Phillip'*, the will of 

rrrmtat is the law. Hr. Feckbam then 

-kt ib« veiaciry of the record vrilh respect 

-! ttStrtat disiricM which there are within 

jalaaJ ; ami baa insisted, that though in the 

- :ti«a of process, Sta. the law-oSicers may 

' ill tbe ^tcmor, or inform him witat they 

.-Has ta do, yet that ihey are nol bound by 

10 du Ml, My lord, the record must, in 

-K ce^wcu, aNo decide for us. It is there 

xifd wbal the districts are ; that Ihe arraval 

<* i*. Pbilhii'a is distinct from the others ; and 



■ be executed there, without the 
rnraar'a particular leave. Mr. Peckham 
, a^ wtwre ia tbe authority that ennhli^s a 
nnw to banish an innocent man? In ihe 
a |he«, •■ to bis beioK an innocent man, it 
t« oawprtent to this Court In ennuire whe~ 
«■ kc n> innoceDi or ool, or whether the 
■vmnr was ttrictly jnsiihable or uot ; bul it 
•Abrnt 10 prgTc, that the gOTeruoi bud i 



authority to imprison. That authority appears 
upon Ihe lace of the record ; for it is Ibera 
staled iliBt he was governor, and had every 
power, civil aud military, and ihat all he did 
wav in the character of a governiir. I'liesa 
lads lieioir proved, I snhtnii are a sutficienl bar 
to this action, and ihe Court rannot go into tha 
((ueHtiou, whether the plaintiff was iimuceni ur 
guilty. The last argument that has been rrlieil 
ujion by iUr. Peckham ia, some other esprev- 
siuns of lord chief justice de Grey, in iha 
course of this cause; in which his lordship 
said, that the witnesses must have been mia* 
taken in the account Ihey ga«e of the cimsti- 
lulion and law of the island. Here it is im- 

Cossible tor ilie Court to go out of ihe record ; 
ut these ohservationa of lord chief jiislice da 
Gre^ go certainly a great way towards proving 
Ihe impmpriety nf maintaining «uch an aciioa 
here as the present. If the account [fiven by 
lord chief justice de Grey of the islanit be true, 
aud I make nu doubt il ia, Ihe consequence ia 
this : that even Ihough all the evidence was 
obtained in this cause that could be had j 
though persons were called as wilnesses, ivho, 
from their sitimlinn, and the departments they 
had officiated in, were most likely to be con- 
versant with the law and conslilulioa uf the 
island ; yet that all the acuoiiols that have been 
given are imperfect, erroneous, and unworthy 
of credit. That is tbe slmngesl evidence of 
Ibe impropriely of malnlatDing such an action 
as Ihis in England. For if, as lord chief jui- 
tice de Grey says, the evideuce that has been 
given of the foreign law in this case is not ta 
be relied upon, bul is all a niistake; itmajr 
happen, and it must naluialty he expected, that 
in every case which is brought here from fo- 
reign dominions, where the cause of action 
arises abroad, all the cvideuce Is abroad, and 
the Courl can get no other evidence of tlie law 
of the place than Ihe loose opinions of ihoso 
who have occasionally bten Ihcre; and ihe 
courts here having no established legal mode of ' 
obtaining cerliticatea froia such country, pro- 
perly HuUienticated, to say what the law there 
IS, ttie same mistakes and inconveuienue will 

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

Lord Manifteld. Let il stand for anolhec 
argument. Ii has been extremely well argued 
on both sides. 



On Friday tFie B7th January, 1775, it naa 
very ably ii^ued by Mr. Serjeant Glynn, on 
the part of Mr. Fabrtgas, and by Mr. Serjeant 
U'alker, on behalf of govennr Moslyu : but as 
no new cases were cited, we shall proceed to 
give Ihe Judgment of the Court uf Klng's- 
beuch, which was in substance as follows : 

Lord Mamjleld. This was an nntion for an 
ssanlt aud lalse imniisonmeni by the defen- 
dant upDD the plainiilf. And part of tbe com* 
Q 



283] 



U GEORGE III. 



AtAonJbr Fahe Imprisonment^-^ 



[22ft 



ghurinf light; becaoie it would becomteMunf 
the defendant by one law, when he waa hoond 
to regulate his conduct by a different. But it 
is not true that the king of England can protect 
bv the lawe of Enghmd only ; for, in other 
places, a transaction must be tried by the laws 
of that place where it arises ; and the king can, 
in other places, gofeni by other laws than 
those of England: and I contend, this question 
must be determined by such laws, and not by 
the laws of this country. Mr. Peckham has 
then insisted, that this is a case between subject 
and subject. If he means it is between subject 
and sulgect, speaking of the king of England, 
it is true; but Fabrigas is not a subiect of this 
realm, nor subject to be governed by the laws 
of this country, and therefore shall not avail 
himself of the laws of this country. The case 
in SalkeM, 404, was then cited, wliere the Court 
of Chancery proceeded against a foreigner ; 
and the reason there given for so doing is, be- 
cause thtft Court acts in pertofuan. But, my 
lord, that case does not appear to be at all 
blended with foreign law; nor is any thing 
there stated, which called on the Court to de- 
termine that case by any other law than the 
known laws of this country, and the rules of 
their own court. The case in the 4th Insti- 
tute was then endeaToured to be distinguished 
from the present, by insisting, that the subject- 
matter of that case was local: but that answer 
cannot hold. If it had been an action in a 
court of law, the answer would have been a 
good one ; because an action of dower is local, 
and can only be tried in the county where the 
land lies; out that was a suit in Chancery, 
and not an action ; and, as is said in the case 
cited from Salkeld, the Court of Chancery 
don't proceed against the thing, but against the 
pemn. 

Then the last question that has been made is, 
whether the defendant in this case is the proper 
subject of an action? My lord, Mr. Peckham 
has observed, I said the governor was absolute ; 
but that he insists is impossible, because there 
is no person who could delegate such an autho- 
.rity to him ; that if he derived such authority 
from any one, it must be from the king ; but the 
king, not being absolute himself, could not grant 
such authority to Mr. Miistyn. If it be meant 
only, that the king is not absolute in this coun- 
try, I most readily accede to the proposition ; 
but what the coustitutioii of this country is, 
can be ncr argument to prove what is the state 
or constitution of Minorca. That Minorca is 
of a different constitution, and is governed by 
different laws from what prevail in this coun- 
try, is stated in the record ; which record is 
decisive upon that point, for the Court cannot 
depart fh>m it. It is there stated, that the arra- 
val of St. Phillip's is subject to the immediate 
order of the governor, and to his order and di- 
rection only ; for no judge, either criminal or 
civil, can interfere, or has any jurisdiction 
there, unless under his express leave : there- 
fore the argument, as to the authority or power 
of the king herep is totally foreign to thesitna- 



tioD of the governor of Minorca, or the power 
or jurisdiction he has there. Then it is said, 
it does not appear on the record, that the de- 
fendant did act as judge. This also must he 
decided by the record ; and it is there stated, 
that the defendant was governor, and so being 
governor be caused the plaintiff to be taken, 
imprisoned, &c. The case of Dutton 9. 
Howell has been much observed upon, and the 
printed reasons given in thst case particulariy 
stated ; but I do not perceive the case has 
been distingubhed from the present. Some of 
the reasons alledged for the defendant there, 
are equally strong in favour of the present de- 
fendant. It is said, there never was such an 
action maintained before; and if a governor 
beyond sea be charged here, he cannot defend 
himself, because all the records and evidence 
are there. Mr. Peckham has not been able to 
produce one case, in which such an action as 
this has been maintained before. But then 
another distinction he endeavoured to avail 
himself of is, that, in the case of Duttoo and 
Howell, the action was for an act done in coun« 
cil, and therefore varied from this case, be* 
cause here there was no council at all. I can* 
not see how that difference will at all avaU Mr. 
Peckham*s client In the first place, in Bar- 
hadoes, there was a council, and the. governor 
had no power without the council ; but is that 
the case here ? In Minorca, there is no council 
St all; and therefore, in this case, the go- 
vernor sunds in the same situation as tho 
governor and council of Barbadoes. As to the 
necessity of pleading in abatement to the juria- 
diction, it is very observable, that in the case of 
Dutton V. Howell, the counsel who argued ia 
that case do not venture to rely upon that oh* 
jection. But they insist further, that the juria* 
diction cannot be examined in the Exchequer 
chamber, because both the statute and writ of 
error expressly provide against it : and there- 
fore, say they, it is questionable, whether it 
can be insisted upon in the House of Lords t 
and it is admitteo by them, that a question 
might have been made on the trial of an issue, 
if one had been joined. However, that ques- 
tion uas gone into in the Houi^e ol Lords, and 
the final decision of the canse appeara from 
the book ; namely, that the judgment in that 
case was for the defendsnti and that the action 
could not be maintained. Then the words of 
lord chief justice de Grey, in this present cauae^ 
upon a motion for a new trial, have been mods 
relied upon ; ami his lordship is made to say, 
that if the govern' t had secured the present 
plaintiff, merely for the sake of a trial, it would 
be a different affair. In this case, 1 apprehend 
it would be quite sofiicient for me, if the go- 
vernor had a power of committing at all ; for if 
he had, that is sufficient to prevent the dn» 
feudunt's being a trespasser by such commit* 
ment : and the reasonableness of the time for 
which he was committed, would be a very dif> 
ferent question; for, if the governor bad n 
|iower of committing, he has pursued 
power, and then this actum caonoi bo 



10] 



Fabrigas v. Motijflk 



A. D. 1779, 



[82S 



tiioed. The next caie that has been cited, is 
htd BeUamoot's case in 2<1 SalkelJ, which was 
wm tctioa agaiasl a governor for what he did in 
tkit cbaractflr : hot that is ftiniply a motion for 
a tiial ftt bv. The merits of the case, or the 
fnpriety of the action, were not before the 
Onit, or at ail entered into ; nor was any oh* 
JKiios made to the jurisdiction of the Court 4 
mi where a thing is not objected to, the case 
Oi nmrcr be an authority on the point: there 
■ let one syllable said about it ; and therefore 
tkt case cannot have the least weight whatso- 
raspecting this question. Then Mr. Peck- 
cited the statute of the 12lh of William 
tbe third : but that was admitted by him to ex- 
lad oohr to criminal prosecutions at the king's 
sail, aod therefore can have nothing to do with 
the preaeol question. The case of Conner 
^fHHt Sabine is as different from this case, as 
aa? oae eaae can be from another. There the 
immw was pot upon the ground, that the 
pbioliflr was amenable to a court-martial . The 
6ci tamed oat otherwise: they stated a limited 
' 'idiedon, aod it appeared the plaintiff was 
the object of that jurisdiction. Then it is 
that Minorca is not a military camp, but 
that tbere are judges both criminal and civil. 
Acre agaio 1 must have recourse to the re- 
csri itself; for there it is stated, that within 
the airaral of St. Phillip's, where this trans- 
adiaa occurred, there is no judge either cri- 
■iaal or ciril; there is no power hot that of 
At governor. Mr. Peckham observed, that 
it is staled in the record, that the inhabitants 
SMMliaies claim protection from the law 
if SogfoDd, as well as the law of Spain. It 
ii as stated; but what is said further? 
Kn that tbey ever have it allowed to them, 
vibat they are governed by it; but it is 
opreasly stated, that they are in general go- 
Mned by the law of Spam : therefore the re- 
cvri does not prove, that the people iti Minorca 
Iff gorerued by the same laws as the people 
hoc; bat it does prove, that tbey are governed 
fty kws which are totally different, and that 
viihia the arraval of St. Phillip's, the will of 
the governor is the law. Mr. Peckham then 
ttlMdu the reracity of the record with respect 
Is the different districts which there are within 
the islaod ; and has insisted, that though in the 
tieeution of process, &c. the law-officers may 
csasolt the governor, or inform him what they 
lie going to do, yet that thev are not bound by 
liv to uo so. My lord, tne record must, in 
tbtae respects, also decide for us. It is there 
ostid what the districts are ; that the arraval 
of 81. Phillip's is distinct from the others ; and 
Ihit 00 toagistrates can come there, nor can 
I isj process be executed there, without the 
ftveroor's particular leave. Mr. Peckham 
ttkk, where is the authority that enabltfs a 
|sv#mor to banish an innocent manf In the 
te pfaice, as to his being an innocent man, it 
b BOt competent to this Court to enquire whe- 
ther be was innocent or not, or whether the 
strictly justifiable or not ; but it 
to profCi that the governor bad an 
VUU XX. 



authority to imprison. That authority app^rs 
upon the face of the record ; for it is there 
stated that he was governor, and had every 
power, civil and military, and that alt he did 
was in the character ot a governor. These 
facts being proved, 1 submit at« a sufficient bar 
to this action, and the Court cannot go into the 
question, whether the plaintiff was innocent or 
guilty. The last argument that has been relied 
upon by Mr. Peckham is, some other expres- 
sions of lord chief jtistice de Grey, in the 
course of this cause; in which his lord<*hip 
said, that the witnesses must have been mis- 
taken in the account they gave of tlie consti- 
tution and law of the island. Here it is im- 
possible for the Court to go out of the record : 
out these observations of lord chief justice de 
Grey go certainly a great way towards proving 
the impropriety of maintaining such an action 
here as the present. If the account i^iven by 
lord chief justice de Grey of the island be true, 
and I make no doubt it is, the consequence is 
this: that even though all the evidence waa 
obtained in this cause that could be bad | 
though persons were called as witnesses, who^ 
from their situation, and the departments they 
had officiated in, were most likely to be con- 
Tenant with the law and constitution of the 
island ; yet that all the acconnts that have beea 
given are imperfect, erroneous, and unworthy 
of credit. That is the strongest evidence of 
the impropriety of maintaining such an actran 
as this m England. For if, as lord chief jus- 
tice de Grey says, the evidence that has beea 
S'ren of the foreign law in this case is not to 
I relied upon, but is all a mistake ; it may 
happen, ana it must naturally he expected, that 
in every case which is brought here from fo- 
reign oominions, where the cause of action 
arises abroad, all the evideuce is abroad, and 
the Court can eet no other evidence of the lavr 
of the place than the loose opinions of those 
who have occasionally been there ; and the 
courts here having no estsblished legal mode of 
obtaining certificates from such country, pro- 
perly authenticated, to say what the law there 
IS, the same mistakes and inconvenience will 
arise. 

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

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



On Friday the S7th January, 1775, it was 
very ably argued by Mr. Serjeant Gl^^nn, on 
the part of Mr. Fabrigas, and by Mr. Serjeant 
Walker, on behalf of governor Most^u : but as 
no new cases were cited, we shall proceed to 
give the Judgment of the Court of King's- 
bench, which was in substance as follows : 

Lord Mamfield. This was an action for an 
assault and lalse imprisonment by the defen- 
dant upon the plaintilf. And part of the com* 

Q 



S27J 



14 GEORGE ni. 



AdUmfir False Imprisonment^^ 



[888 



plaint beingf for IwDishinfj^ bim fnim the island 
of Minorca to Cartha^feDa, in Spain, it was 
Decesnary for the plaintiff to take notice in the 
declaration of the real place where the c^use 
of coin|ilaint arose ; which he 'has stated to be 
at Minorca, with a videlicet in London, at St. 
Mar>-le Bow. Had it not been lor that par- 
ticiiJHrity, he mi^ht ha?e slated it to ha?e been 
in the county of Middlesex ; but part of the 
ctMnplaiiit luakinfjf the locality, where the came 
of action arof>e, necessary to l»e stateil, being a 
banish uieut fn)ui Minorca to Carthaafena, he 
atates it with this videlicet. To this declaration 
the df leudunt put in two pleas; fir8t,Mot Guilty; 
and then he pleads, that he was Kovemor of 
Minorca, bv letters patent from the crown, and 
that the defeudant was raismjf sedition and 
mutiny ; in consequence of which he did im- 
prison him and send him out of the island, 
which he alledgfes he hud an authority to do, 
for that sedition and mutiny that he then was 
raising. I'o this plea the plaintiff does not 
demur, nor does he deny that it would be a 
justification, in case it was true ; but he denies 
the truth of the fact, and puts in issue whether 
the fact of the plea was true. The plea avers, 
Uiat the assault for which the action was 
brought arose in the island of Minorca, out of 
the realm of England, and no where else. To 
this the plaintiff has made no new assignment, 
ftnd therefore by his replication he admits the 
locaHty of the cause of action. Thus then it 
•tood upon the pleadings. When the trial 
came on, the plaintiff went into the evidence of 
his case, and the defendant went likewise into 
his evidence. But, upon the |>art of the de- 
fendant, evidence different from any fact al- 
ledged in his plea of justification was given ; 
and witnesses were called to prove that the 
district in Minorca called the arraval, %vhere 
the injury complained of was done, was not 
within eitnerof the four precincts, but that it is 
in the nature of a peculiar liberty, more imme- 
diately under the fiower of the governor, and 
that no judge of the island can eiercise juris- 
diction there without an appointment from him. 
That is the substance of their evidence. 

The judge lef\ it to the jurv upon the facts 
Af the case; atid they found for the plaintiff. 
The defendant then tendered a bill of excep- 
tions, upon which bill of exce|)tions it comes 
before us. And the great difficulty 1 have had 
upon both tliese arguments is, to be able clearly 
to comprehend what question it is that is meant 
•eriously to be brought before the Court for 
their judgment. If I understand the counsel for 
govarnar Hoatyn right, what they say is this : 
the plea of Not Guilty is totally immaterial, 
and the pka of jnstifiostion ia totally imina- 
Ifffial, for it ap|w«ra oo the plainti&T's own 
-^_ , ^^ ^1^^ matter arose in Minorca; 

rapKcntloa to tha plea admita it : and 
pIm appMn that the defendant was go- 
af Jnam; and aa the inprisounent 
hylhtfMllMrity of the da- 
«i«kl la Inte Mopptd aU 
kivt diiicied 




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

The other two grounds which are enforced 
to-day are, if I take them right — but 1 am 
under some difficulties, bi'cauRe they are such 
propositions that you may ar^ue as well whe* 
ther there is such a court existing as tliia which 
1 am now sitting in — the first is, that he waa 
governor of Minorca, and therefore for no in- 
jury whatsoever that is done by him, right or 
wrong, can any evidence be beard, and that 
no action can lie against him ; the next is, that 
the injury was done out of the realm : I think 
these are the whole amount of the questiona 
that have been laid before the Court. Now aa 
to the first, there is nothing so clear as thai 
in an action of this kind, which is for an as- 
sault and false imprisonment, the defen<knty 
if he hu any justification, must plead it; 
and there is nothing more clear than that, if 
the Court has not a general jurisdiction of the 
matter, he most plead to that jurisdiction, and 
he cannot take advantage of it upon the ge- 
neral issue : I therefore, upon that ground, at 
once lay out of the ca^ie every thing relative l» 
the arraval; fi>r if he acted as a judge, it it 
syuonimous to a court of record : and thonvh 
it arises in a foreign country, where the tech- 
nical distinction of a court of record doea nal 
exist, yet if he sat in a court of justice, and 
subject to a superior review, it is within the 
reason of the law of England, which says, 
that shall be a justification, and he would, if 
he had acted according to the law of the land* 
be entitled to a justification in the fact tliat it 
complained of; but that must be pleaded. If 
an action is brought against a person who it 
a judge of record, he must lay it before the 
court, b^ way of plea and justification, that Im 
was a judge. 1 don't lay a stress upon the 
' word reconi, but there is no colour upon the 
I evidence that he acted as a jud^e of a court 
'. of justice; therefore every thing stated re- 
lative to the arraval, inhich is stated in the bfll 
of exceptions, is nothing at all to the nurpoea. 
The first point that I shall begin with is the 
sacredness of the person of the governor. 
■ Why, if that was true, and if the law waa aog 
I he must plead it. This is an action of falac 
imprisonment: prima facie, the Court Iih 
junadictiou. If he was guilty of the fad, ha 
must shew a special matter tiMt he did thia hj 
a proper authority. What is hit proper an* 
tlioritj P The lung'a cwniaittion to maka hia 



m} 



Fabrigat v. MoHyn, 



A. D. 1773. 



[230 




pmxfMr, Why then, he certaioly must plead 
t : but, howerer, I will not rest the answer 
BpOB that. It has been sinj^led out, that in a 
eshojr that is beyond the seas, but part of the 
of the crown of England, thou((b 
wonid lie for inioriea committed by 
peraona, yet it shall not lie against the 
iMUuor. Now I say, for many reasons, if it 
il not lie against any other man, it shall most 
■pfcitiraHy lie iqi^inst the go?emor. In e? ery 

tlo the jarisdiction, you must state a iuris- 
Mi ; for if there is no other method of trial, 
Aat alone will give the king's courts jnris- 
ielion. If an action is brought here for a 
arising in Wales, yo\k must shew the 
' m of the court in Wales : and in 
sicry case to repel the jurisdiction of the 
king's ooarts, you must shew a better and a 
Mre proper jurisdiction.* Now in this case 
IS other joriadictionf is shewn, eren by way 
€ argument ; and it is most certain, that if the 
lag's courts cannot hold plea in such a case, 
mn is no other court upon earth that can do 
It: lor it ia^truly said, that a governor is in the 
Mara of a viceroy, and, of necessity, part of 
At privileges of the king are communicated to 
liAi durinff the time of his government. No 
crisiiiial prosecution lies against him, and no 
dvil actioo will lie against him ; because, what 
wsald the consequence be P Why, if a civil ac* 
lisB lies against him, and a judgment obtained 
fer daaiages, he might be taken up and put in 
man oo a Capias ; and therefore, locally, dur- 
agtke tioie of his government, the courts in 
Aeidaod cannot hold plea against him. But 
b this peculiar case, it is said to have happened 
■ the arraval. Why, it is stated in the evi- 
iaee, that no judge can sit there at all with- 
SAhia leave. If he is out of the government, 
it ; he comes and lives in England, 
be has no effects there to be attached: 
ihere is no remedy whatsoever, if it is 
■it ID the king's courts. But there is another 
fcry atronir reason alluded to by Mr. Serjeant 
CHJyno, which would alone be decisive. This 
ii a charge against him, which, though a civil 
\ has a mixture of criminality in it: it 
lult ; which is criminal by the laws of 



* As to this, see the Case of the hon. Robert 
JahiMOii, 6 East, 583. See also the Case of 
the KJnIoehs, vol. 18, p. 305. 

f Speaking of lord Mansfield's judgment 
ia tfaia case, Mr. Duller in bis long disquisi- 
Isrial note to Co. Lilt. 391 a, Kays, ** wherever 
a personal injury is doue to an English sub- 
jpsi abroad, tbe remedy muNt he sought iu the 
nrisdiction where the cause uf action hapiiens, 
/ il ia subject to the king's jurisdiction ; if 
'^ king has no jurisdiction in thai place, this 
-^aarily gives the king's courts a jurisdic- 
rithia, which it is brought, by the known 
J of laying the venue in som^ county of 

aaod. This is explained by lord Mans- 
with his usual clearness and ability." 
■r. Butler refers to Phill^brown v. Rvlaod, 
dM. Lord Ray m. 1388, and 8 Mod. 354. 



England, and is an abuse of that authority 

S'ven him by the king's letters patent under 
e 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 seignio- 
ry can be tried in the place where it is. In tha 
proprietary governments in America, they 
cannot try any question concerning the seignio- 
ry, in their own courts ; and therefore, though 
questions concerning lands in the isle of Mwx 
are triable in the courts of the isle of Man, yet 
wherever there is a question concerning the 
seigniorv, it must be tried in some courts in 
EngUnd. It was so held by the chief justice 
anamanv of the judges in the reign of queea 
Elizabeth, upon a question arising concerning 
the seigniory of the isle of Man. Or when* 
ever there is a question between two provincea 
iu America, it must be tried in England by 
analo|fy to what was done with respect to the 
seigniories in Wales bein^ tried m English 
counties ; so that emphatically the governor 
must be tried in England, to see whether he 
has exercised legally and properiy that autho* 
rity given him by the king's lettm patent, or 
whether he has abused that authority, contrary 
to the law of EngUnd, which governs the 
letters patent by which he is appointed, iv, It 
does not follow from this, that, according to 
tbe 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 « 
defence to 4iim. If by the authority of that 
capacity in which he stood he has done right, 
he is to lay that before the Court by a proper 
plea, and tbe 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 tiiat summary proceeding, in taking 
him 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- 
tified in time of |)eace. Suppose in a siege, or 
%%heo the French v^eregoinu: to invade Minorca, 
suppose that the governor should think pmper 
10 send a hundred of the inhabitants out of the 
island, and that he did this really acting for the 
liest : or suppose, upon a general suspicitm, he 
should take )»eople up as spies: ^hy, 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 ou^jht, according to the law of 
England and the ju!»tice of tbe case. But it is 
said, if there is u law in the garrison, or if he 
acts as the Spanish governor might have done 
before, bow is that to lie known here?— Uow f 



fSl] 



U GEORGE III. 



Actionjbr Fake Impritonment— 



[89C 



M'hy, there are ways of knomnar foreigfn laws 
as well as our own, but in a diflTerent manner : 
it must be |iro?ed as a fact, and in that shape 
the court must assist the jury in finding oat 
whnt the law really is. Suppose there is a 
Frendi settlement (there is a case in point of 
the sort I am stating) which depends upOn the 
custom of Paris ; why, we must receive wit- 
nesses with regard to it, to shew what the 
custom is, just as you receive evidence of a 
custom with respect to trade. 

The judges in the courts of England do de- 
termine all cases that arise in the plantations, 
all ca8<(S 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 
plaintifT must prove his case, and the court 
must tuke care that the defendant is qot sur- 
prised, and that he ha^ a fair opportunity of 
bringing his evidence, if it is a case-proper in 
other respects fur 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 oflSce, 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 wit- 
nesses 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 ficti- 
tious 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 
oery light in which I see this matter, it holds 
empnaiically 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 u|M>n matters of settled law, 
where there have been a number of actions de- 
termined, 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 pa- 
tent under the great seal, can do what he 
pleases; that he is accountable only to God 
and his own conscience — and to maintain here 
that every governor in every place can act ab- 
solutely; that he may spoil, plunder, affect 
their bodies and their liberty, and is accountp 
able to nobody — is a doctrine not to be main- 
taiaed; for if he is not aceouotable in thii 
court, he is acooontable no*where. The king 
ID council bat no jurisdidion of this matter ; 
tb^caanotdo it ia aoytbapei Ibcy canool 



give damages, they cannot give reparation, 
they cannot punish, they cannot hold plea in 
any way. WheiQever complaints have been 
before the king in council, it has been with a 
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. Bat 
sappose be holds nothing of the crown, sup* 
pose his government is at an end, and that lie 
18 in Enghmd, they have no jurisdiction lo 
make reparation to the party injured; they 
have DO jurisdiction to punish in any shape tfale 
man that has committed the injuij : how cnn 
the arguments be supported, that, in an empire 
so extended as this, every governor in every 
colony and erery province belonging to the 
crown of Great Britain, shall be al^lutely de- 
spotic, and can no more be called in question 
than the king of France P 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 tbey 
were not amenable. 

In a case in Salkeld, cited by Mr. Peckbaro, 
there was a motion lor 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, %vlio had taken 
up the defence of the governor. That case 
plainly shews that such an action existed ; the 
Attorney General hnd no idea of a governor's 
being above the law. Justice Powell says, in 
the case of Way and Yally, in 6 >1uflem, that an 
action of false'im prison II leut 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 
that he was not amenable. He defended him- 
self. He shewed, 1 suppose, by the laws of 
the country, an act of the asseinblv which j'lsli- 
fied that imprisonment ; and the court received 
it, to be sure, as they ought to do. Whatever 
is a justification in the pluce 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 baiely 
confirmed the sentence of a court-martial, 
which tried one of the train of artillery by 
martial law. Governor Sabine affirmed the 
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 sentenco 
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 tiie next objection », 
with regard to the matter arising abroad ; and 
that is a general ol^ection, that as the matter 
trast nbnid, it cannot be tried hen in Bng* 



tff\ 



Fttbrigas v. MostytL 



A. D. 1775. 



[SSI 



had. There is « formal distinctioa tliat prt- 
fiilt ID oar eourta, and ItkewiMe a subataotial 
•w aa to the locality of trials. The substantial 
dirtiactioa is, where the proceedingf is in 
nm, and where the effect of the judgment 
cnneC be had if it is laid in a wrong place. 
His is the ease of all ejectments where pos- 
flSBOQ is to he delivered by the sheriff of the 
SMsty : and as trials here are in particular 
SMSties, the offieeni are county officers; there- 
kn the judgment could not ha?e effect if it 
was Mit laid in the proper place and in the pro- 
per county. But there likewise is a formal 
fc tiutl ioD, where, perhaps, complete justice 
cssM he done, let it be laid in what county it 
■ight ; that is mere matter of form as to esses 
that arise within the realm : but even with re 
fud to matters that arise out of the realm, to 
he sore there is a distinction of locality too ; 
kr there are some cases that arise out of the 
icahn, that ought not to be tried any where but 
is tlie county where thev arise, as the esse al- 
loded to by serjeant Walker. If there is a sort 
tf fighting in France between two Frenchmen, 
and ihey happen both casually lo be here, and 
aa action of assault is brought by the one 
agsiost the other, which chart^e a criminality 
ISO, that it is dune against the kinar's peace, 
aad the laws and customs of England ; in that 
case it nsay be a very material question whe- 
Ihtr that could be mamtaineil here: for though 
it is not a criminal prosecution, yet it has that 
sort of criminality that, perhaps, without giring 
aa opinion, it ought to be tried by the laws of 
that country where both parties are subjects; 
it may he a substantial obj(*ction of locality. So 
llewise, if it is concerning an estate in ^ 
favi^ country, where it is a matter of title 
md not of damages, it roa}^ be a substantia) 
teioction. There is likewise a question of 
ftrm, and that arises upon the trial ; for trials 
ia England being by a Jury, and the kinjj^dom 
hnmg divided into counties, and every county, 
ii respect of trial, considered almost as if a 
aepvate kingdom or principality, it is absolute- 
ly necessary that there should be some county 
where the action is particularly brought, that 
there may be a process to the sheriff of that 
coonty, to bring a jury from thence to try it ; 
and that is matter of form, which goes to all 
cases that arise abroad. But the law makes 
a distinction between transitory actions and 
Iscal actions. If the matter which is the 
caose of a transitory action arises within the 
realm, it may be laid in any county ; the place 
is not material: and if an imprisonment in 
Middlesex, it may be laid in Surrey; and 
though proved to be done in Middlesex, the 
place not being material, it does not at all pre- 
vent the plaintiff recovering damages : for the 
eace of transitory actions is never material. 
ut where, by particular acts of parliament, it 
is made so, as in the case of churchwardens 
and constables, and other cases that require the 
action to be brought in the county ; there, by 
the force of the act of parliament, the objection 
li fttal: hot otherwise it mutt be laid in any 



I 



eonnty in England, let it be done where it will : 
the parties bad an opportunity of applying to 
the court in time to change the venue. But if 
they go to trial without it, that is no objeo- 
tion ; and all actions of a transitory natnre that 
arise abroad may be laid as happening in an 
English county. But there are occaaions which 
make it absdately necessary to state in the de- 
claration, that it really happened abroad ; as in 
the case of specialties, where the date must be 
set forth. When an action is brought npon a 
specialty which bears a date, if that specialty is 
set out, or if oyer is prayed of it, by which the 
place where it was made must appear; if the 
declaration states it to hare been made at WesI- 
minster, in Middlesex, and ufNin producing the 
deed it bears date at Bengal, ttiere is a variance ' 
between the deed and the declaration, which 
makes it appear to be a different instrument. I 
don't put lue case, though there are some in the 
books that seem to me to have confounded the 
statute of the 6th of Richard the second, there- 
fore I don't put the objection upon the 6.th of 
Richard the secoud ; but it goes singly u|kmi this : 
if yon don't state the true date or true description 
of the bond, it is a variance. W bat does the law 
in that casef (and it has done it for hundreds 
of years) Why, the law invented a fiction, and 
has said, ** You ahall set out the description 
truly, and then give a venue only for form for 
the trial; videlicet ^ in the county of Middlesex^ 
or any other county you please." Did any 
judge ever think that when the declaration 
said, in fort St. George in Cheapside, that the 
plaintiff meant that it was in Cheapside ? No ; 
It is a fiction in form : every country has its 
forms : it is for the furtherance of justice that 
these fictions were invented ; to i^et rid of for- 
malities ; to further and advance justice. This 
is a certain rule : you never shall contradict 
the fiction so as to defeat the end for which it 
was invented, but you may contradict it for 
every other purpose. Now this fiction is in- 
vented barely for the mode of trial ; to every 
other purpose you shall contradict it, but not 
for the purpose of saying. You shall uot try it. 
It is just like that qne»iti<tn that was long agi- 
tated and finally determined some years ago, 
npon a fiction of the teste of writs taken but in 
the vacation, which bore date as of the last day 
of the term. That is a fiction of the Court. 
You never shall contiadict that fiction, and go 
into the truth of the case, to destroy the wnt, 
and shew it a bad writ. Why P Because the 
Court invented the fiction to make the writ 
good, for the furtherance of justice, that it may 
appear right in the form ; but for every other 
purpose in the world you may contradict it. I 
am sorry to observe there are some sayings 
which have been alluded to, inaccurately taken 
down. Perhaps there were short-hand writers 
in those days, as there are at present, who mis- 
take every word they hear, and, being unable 
to correct it, have printed it improperly : but 
to say, that as meu they have one way of think* 
ing, and as judges they have another, is an ab« 
surdity. Ko; they meant to support the fio* 



935] 



n GEORGE III. 



Action Jur Fake Imprisonment-^ 



[236 



lion. I will meDtion a case or two to shew that 
is the meanings of it There is a case in 6 
HodeiD, 208, of Roberts aod Hama||re. The 

gUuntiff declares, that the defendant became 
oond to him at Fort St. Davids in the East 
Indies at London, in such a bond. Upon de- 
murrer the objection was, that the bond ap- 
red to ha?e been sealed and delifered at fort 
David's in the East Indies, and therefore 
the date made it local ; and, bv consequence, 
the declaration ouf^ht to have Geen of a bond 
poade at Fort St. David's in the East Indies, 
▼iz. at Islinjg^ton in the county of Middlesex, or 
in such a ward or parish in Liondon ; and of 
that opinion was the whole Court. You see 
how this case is stated. But 1 wilt 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. Uiion 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 de- 
fendant pleaded the Tariance 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 fulsetv. They had laid the 
bond as made at London. The bond is pro- 
duced, and appears to be made at another 
place : that is a variance. You must take the 
iN>nd as it is. Then how do you get to trial ? 
Wliy, introduce, a fiction, and the formality 
fi'ifea you the trial in that county by the vide- 
licet ^ and the bond is truly described. A case 
was quoted from Latch, and a cage from Lut- 
wyche, ou the former argument ; but 1 will 
mention a case posterior in point of time, where 
the Court took it up upon the true ground, 
Dvliere both these cases were cited, and no re- 
gard 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 npon 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, .OG. Lord chief iustice Par- 
ker said, that an action will lie lu England 
upon a deed dated in foreign parts, or else the 
party can have no remedy ; but then, in tiic 
declaration, a place in England must be al- 
ledged, proJomiA, Generally spec^king, the 
deed, upon the oyer of it, must be consistent 
with the declaration ; but in these cases prop- 
ter neccssitatemt if the inconsistency be as little 
as possible, not to be regarded : as here, the 
contract, lieing of a voyage which was to be 
performed from Fort St. George to Great Bri- 
tain, dors im|>ort, that Fort St. George is dif- 
ferent from Great Britain : and atUr taking 
time to consider of it, in Hilary term the plain- 
iiir bad his judgtncDt^notwitltttaBding the ob- 



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 mod« 
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- 
tion, to say it is in that county ; and then the 
whole of the inquiry is, whether it is an action 
that ought to be maintained. But can it lie 
doubted, that actions may be maintained beret 
not only upon contracts, which follow the per- 
sons, bat for injuries done by subject to subject ; 
especially for mjuries where the whole that is 
prayed is a reparation in damages, or satisfac- 
tion to be made by process against the persoo 
or his effects within the jurisdiction of the 
Court? We know it is within every day's ex- 
perience. 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 partjr proves 
where the place was? In sea-batteries, the 
plaintiff of\en lays the injury to have been done 
\n 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 me- 
mory : — the reason 1 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, 
given judgment, that is conclusive in the action ; 
and likewise, when they have given judgment, 
it is concluitive as to the coNts, whether they 
have given costs or not. But how is that actioa 
laid ? It is necessary to be laid, that his ship waa 
taken or seized on the hiiih seas, videlicet^ in 
Cheapside. Now is it seriously contended, that 
the judge and jury, and counsel, who trieil the 
cause, fancied that ship was sailing in Cheap- 
side ? No ; it is plain sense ; the sliip was 
taken upon the high-seas, for which an actioa 
lies in England ; and you say in Cheapside, 
which is saying no more than that, I pray this 
action may he 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 Arme- 
iii Ml merchants for assaults and trespass in the 
Esbt- Indies, and they are very strong autho- 
rities. >-MJeant Glynn said, that the defendant, 
Mr. Vert I St, was ably assisted. So he was; 
and by men who would have taken the objec- 
tion, if' they thuught it had been maintainable: 
and that was atier this case had been argued 
once ; yet the counsel did not think it could 
be su|»ported. Mr. Verelst would have been 
glad to have made the objection : he would not 
nave lefi it to a jury, if he could have 6to|»prd 
them short, and said^ '< You tball not try it al 



837] 



Tahrigat r. Mostt/n. 



A. D. 177». 



[«8 



•U.'' I liATe had some actions before me, go- 
isgralber further than these transitory actiuns ; 
fut isy goiBg to caws which in Eugland would 
It local actions : and 1 remember one, I think 
h waa ao action brought against captain Gam- 
Vcr, who by order of admiral Boscaweu bad 
yaUed down the houses of some suttlers who 
nppUed the navy and. sailors with spirituous 
i|Mrs; and whether the act was right or 
vroog, it was certainly done with a good in- 
teatioD OD the part of the admiral, for the sai- 
lors' health were affected by it. They were 
palled down. The captain was inattentiTc 
cBongh to bring the gentleman oTcr in his own 
sh*p, who would never have got to England 
stnerwise ; and as soon as he came here, he 
was admed that he should bring an action 
Minal him. He brought his action, and one 
SI the eounts in the declaration was for pulling 
dawn the houses. The objection was taken to 
Ibe eoont for pulling down the houses; and 
the case of 8kinner and the East India Com- 
pany was cited in support of the objection. On 
Ibe other side, they produced, from a manu- 
seript note, a case before lord chief justice 
Eyre, where he o?er-niled the objection ; and 
I ofcr-niled the objection upon this principle, 
that the reparation here was personal, and 
Isr damagea ; that there would be a failure of 
joslicey ror it was upon the coast of No?a 
^ ' I, where there were no regular courts of 
^ but if there bad been, captain Gambier 
It nerer go there again ; and that the rea- 
ssn of locality in such an action in England 
did not bold in this case. I quoted a case of 
aa iniory of thaiaort in the East- Indies, where 
eiea io a court of equity lord Hardwicke had 
fcecled aatisfaction to be made in damages. 
Thai case was not fuUy argued ; but this was 
aigiied, and there were larcfe damages gi?en 
against Gambier. I do not quote it for the 
ap i n i oa 1 was of there, because that opinion is 
my likeiy to be erroneous ; but I quote it for 
ibis reaaoB, that there were large damages 
fireo against captain Gambier : and though he 
vaa not at the ezpence, for he acted by the or- 
dera of admiral Boscaweu, yet the admiral's 
RpresentatiTea paid the ezpence, therefore their 
inelination was to hare got rid of that verdict if 
they eonid ; but there never waa any motion 
iar a new trial. 1 recollect anotbt* r cause that 
on before me : that was the case of ad- 
Pailiser ; there the very gist of the ac- 
was local. It was for destroying fishing- 
birta opon the liabrador coast, it was a nice 
^ucstiuo; when the Canadians settled, and 



when they had a right to it. It was a dispute 
between them and the fishermen in England. 
The cause went on a great way : the defendant 
would have turned it short at once, if he could 
have made that objection ; but that objec- 
tion was not made. There are no local courta 
among the Esquimaux Indians upon that part 
of the Labrador-coast. Whatever injury had 
been done there by any of the king's officers 
would have been altogether without redress, if 
that objection of locality would have held : and 
the consequence of that circumstance shews, 
that where the reason fails, even in actions 
which in England would be local actions, yet 
that does not hold to places beyond the seas 
within the king's dominions. That of admiral 
Palliser's went off ufion a proposal of a re- 
ference, and ended by an award. But as to 
tranaitory actiona, there is not a colour of doubt 
but that every action that is transitory may be 
laid in any county in England, though the 
matter arisea beyond the aeas : and when it is 
absolutely necessary to lay the truth of the 
case in the declaration, there is a fiction of law 
to assist you, and you shall not make use of the 
truth of the case against that fiction, but you 
oMiy make use of it to every other purpose. I 
am clearly of opinion not only against the ob* 
jections made, but that there does not appear a 
question upon which the ohjectiona could arise. 

The other judges declared themselves of the 
same opinion, and the Court ordered, ** That 
the judgment should be affirmed." 

In consequence of the above judgement, on 
Saturday the 4th day of February 1775, the 
gentlemen who were bail for governor Mostyn, 
to prevent his being taken in execution and 
carried to prison, were obliged to pay to Mr. 
Fabrigas the sum of S,000/. for his damages, 
and 159/. which the Court amerced the go- . 
vernor in costs. 



I have not ventured to alter the nonsensical 
passages in the former report of this case. The 
case in Shower, which is alluded to in p. 115, 
I suppose to be that of sir Richard Dutton 
V, Howell and others, executors of Witham« 
p. 24. 

See the Case of Louisa Calderon «. General 
Pictoo, B. R. A. D. 1809. 

See, also, the following Case of the Island of 
Grenada (Campbell v. Hall), and the Canadian 
Freeholder, as therein cited. 



SS9] 



15 GEORGE IIL The Case ^f^e Island cf Grenada^ [flO 



550. The Case of the Island of Grenada; in relation to the Payment 
of Four and one-half in the Hundred of Goods exported there- 
from ;« between Alexander Campbell^ esq. Plaintiff, and 
Wm. Hall, esq. Defendant, in the Court of KingVBenchy be- 
fore Lord Chief-Justice Mansfield : 15 George III. a. d. 1774. 



£The foUowiog acooont of this Case is com- 
piled from the Reports of Mr. Lofft and Mr. 
Henry Cowper, together with the short-band 
writer's report of the Arguments of Mr. Mac- 
donald (now Lord Chief Baron of the Ex- 
chequer), and Mr. HargraTe. Both those 
learned persons hare assented to the publi- 
cation of this Manuscript, which was im- 
parted to roe by Mr. Hargrave, with his ac- 
customed kindness of assistance in the im- 
proFement of this Work.] 

This cause came on to trial before the right 
honourable William lord Mansfield, on Friday 
the 2d of July, at the sittings aRer Trinity 
term, for the city of London, at Guildhall, when 
a special Terdict was found. The proceedings 
in the cause were as follows : 

* Trinity-term, in the Idth year of the reign of 

^ king George the third. « 

* London to wit. Be it remembered, that 

* heretofore, that is to say, in Easter-term last 

* past, before our lord the king at Westmins- 
^ ter, came Alexander Campbell, esq. by Ben- 

< jamin Uosewell, his attorney, and brought in 

* the court of our said lord the king then there, 

* his bill against William Hall, esq. being in 

< the custody of the mar&hal of the Marshalsea 

* of our said lord the king, before the king him- 

< self, of a plea of trespass on the case ; and 

* there are pledges for the prosecution, to wit, 
*John Doe and Richard Roe. Which said 

< bill follows in these words, to wit, London, to 

* wit, Alexan«ler Campbell, esq. complains of 

* William Hall, esq. being in the custody of the 

* marshal of the Marshalsea of our lord the 

< king himself, of a plea [of trespass on the 

* case ; and also] for that wtiereas the said Wil- 

< lism, on the first clay of January, in the year 
^ of our Lord 1773, at London aforesaid, to wit, 

* in the parish of 8t. Mary-le-Bow, in the 

< ward of Cheap, was indebted to the said 

< Alexander in the sum of 20/. of lawful money 

* of Great Britain, for the like sum of money 

* by the said William before that time had and 

* receif e<l, for and to the use of the said Alex- 

< ander : and being so indebted, be the said 

* William, in consideration thereof, afterwards, 

* to wit, on the same day and yoar aforesaid, at 

* London aforesaid, in the parish and ward 
« aforesaid, undertook, and to the said Alei- 

* ander than and there faitbfnilj pnHniieditluit 



« be the said William wonld well and truly pay 
' and satisfv the said Alexander the said sum of 

* money wnenever he the said William should 
*• be thereunto afterwards required. Yet the 

< said William, not regardinic his said promise 

* and undertaking, but contriTiog and fraudii- 

* lently intending crsAily and subtilly to de- 

< ceive the said Alexander m this behalf, hath not 

< paid the said Alexander the said sum of money, 

* or any part thereof, (althonffh the said Wu- 

* liam afterwards, to wit, on the same day and 

* year aforesaid, and often afterwards, at Lon- 

* don aforesaid, in the parish and ward afore- 
said, was by the said Alexander required so 

* to do) but to pay the same, or any part there- 

< of, to the said Alexander he the said William 

< bath hitherto altogether refused, and atUI 

< doth refuse, to the damage of the said Alex- 

* ander of 20/. And thereof he brings bis 

* suit, &c.' 

'* And now on this day, to wit, on Friday 
next after the morrow of the Holy Trinity, in 
this same term, (to which said day the said 
William had leave to imparle to the said bill, 
and then to answer, &c.) before our lord the 
king at Westminster, comes as well the said 
Alexander, by his attorney aforesaid, as the 
said William, by Robert Want, his attorney ; 
and the said William defends the wrong and 
injury. When, &c. and says he did not 
undertake and promise in manner and form as 
the said Alexander Campbell above complains 
against him. And of this he putti himself upon 
the country ; and the said Alexander doth the 
like. 

** Therefore let a jury thereupon come before 
our lord the king on Wednesday next after 
three weeks of the Holy Trinity, by whom the 
truth of the matter may be better known, [and 
who neither are of kin to the aforesaid Alex- 
ander nor to the aforesaid William] to reco^ 
nize the truth of the issue between the said 
parties, because as well the said Alexander as 
the said William, between whom the issue is, 
have put themselves iipun the said jury. The 
same day is given tu the party aforessid. 

** Afterwards the process being continued 
between the parties aforesaid, of the plea afore- 
said, by the jury between them being respited 
(before our lord the king, at Westminster, enlfl 
Saturday next after the morrow of All 8o>* 
then next fulk»wing, aolM the *^* 
tmsty and weH bderiw* 
fidd, hie 




CamphcU V. HaU. 

W Mtie on F> iday the lil dny or July 

C Guililhall uf iliR L'lly ul' Ijonilon, RCcnrd' 

> lh(t Torm of Ihe sMtule in iticb ca»e 

kmnd |ir<»iilc<1) Tar dernull of jurors, be- 

^^» none of tbrni did appear. 

" 4| wbich ilo^, bvrore our Inrd Ihe king' 
« WpatrainsUT, cRine (he aroresatd Atexaodcr 
CtApfaeH, by lh« saiil B^nJEimin Rnipwell, bis 
flMney aturMihl, Arid tlie lajd cbicf justtce, 
trftn <*b«nt iIh inii>> wh* iriid, smi liilber his 
rvenrd had in thoe words, lo wir, '■ ■ After- 
' varrfi, that n in say, nn the itny *nd at (he 
■ftbee whyn ronturneil, beforp the righl 

■ liOMWraMe WiOiani. lord M*intiv1<1, iheebief 
■jadJM within written, John Way. suntlemftn, 
'Wn^ naaoUted unio hln according to the 
' bm or the dalnte In Ihat vane mide ind nn>- 
' tried, femes an wHI the wilhin namei) Alex- 

■ aaJer Campbell, emf. by bis itioroey within 
' «wncd, ■<« Ihe wiiliin named Willlani HatI, 
' et^. by his Dttornry u-ttbin menlioned. 

■' ■ Ami the jarors of Ihe jury within men- 
'led hrios sufflnioneil, soineol' ibem, that 

■ to «y, Anthony Hitrhiiiore. Peler Bostock, 
[iifid ('hsmbere, JaniPB L« Molle, John 
«rltim-iiii, Jnshun Bedshew, and Siltanns 

■ fifoi*. erne, and are sworn upon Ihni jnry; 
' (oil lT,->ii«e ihe residue of the jiiror« of the 
' Mine j'l'V dii not Bi'pear, Iherel'ore other per- 

■ wfo^ "t lli'iie BtandiriB liy ibe court, by the 
' (hrrifla of the city anil cntinty aforeaaid, at 
' Ihcrrqursl of ihe said Alrxto'li'r, Bud by (he 
' fDrnmaud o1' the sniil chid' justice, are now 

■ •^•Ijf mH down, w hose names are fiW io Ihe 
• ifbm wriliei) lunnel, aeeordini; to the form 



u thct f 



«..r r 



■ .W WHieh sbM jumrs, so newly nel 
<■■•«, ilml Is tn aay, Jol>n Lee, Willl^im Ker- 
., Cbafin Huui^ham, John G<>riiMt]. and 

'IrHurJ Hull, bein; required, come, whn, 
ii;-lher with tlie uidniher jurors before i»n- 

• ai«(|ed, anitswnm to declare the Inrtli of 

c wiihin cootenu, being elected, tried, and 

'•len, iipiin their oaths say, 

' ' ThJiiheialtndorUrenada.inthe West- 
l--i«». wa^tn Ihe iiosseaeioa of ihe French 
Lirif until it WHS cnn(iuered by ihe British 
I'-naiM 17*2. And timt during that posses- 

■ ••■ lh«r<> "Vre certain CiKtoms and impost 



rnrtadi^ 



) Bndool n 



nnrted and e: 



Nt MMlMrTly of hn inoit Christian majesty. 

• m£ ihM in the said yew iroe, 'be said island 
*«» eo»|wrcd hy the kitte nf Great Brilaln, 
■MaiiA opM war with the French kini{; and 
•Art ikaMud kslandoTtirenada ■un'cndcred to 
'A* Bniish arm* upon the Kame article* of 
■•■Inilallim aa had be^n befi>re i-ranted to Ihe 
•wMtanunr ihe island of MuriioiM, u|ion 
'lb* (BrrtBder ihertof lo the BHliih arms. 

* Im* tbai in the ■nulet of capiliitatinD de< 
■ a—i ll hv and rranii'd tn the itihsbltanlf of 
'ttPMidlaUMlul Maninico, upon iheaurren- 

B Briihh arms, dated the 
re Ihe tbllawing 

tlia!lb«>triot<y 



A. D. 177*. 



[84* 




' neuter, and shall nol be nliliifeil to tale arma 
' against his most Christian mnjesiy ; nur even 
' aflinsl any other power. 

" ' Answer — They become snbjeciK of bis 
' Briton Dtc majesty, and mtlil take theoalh of 
' allfginnce, bul snail nnl I'e obliered to tuke 
' Brma a^inst bis most Chrialiun inajesly until 
' a peacb mat determine the l'«ie of the islnnil. 

•■ ' Article t]le tilth— Thet shall pmerrelheir 
' citil govermnent. their laws, eustiiiRR, ond 
' ordinances ; justice kIihII be administered by 
■the same officers who are now in eirploy- 
' meot ; and ihere shall be a reifiilaiiiin made 

* for the inleriur police between the noremur i>f 
'his Britannic msjeslv end the iiihabilnnU: 

* and in ease that ul liie pearc Ihe ii<[niid sliall 
' he ceded to Ihe hinK of Great Britain, it shall 
' be alluwed to the inlTsbilania In prnerre their 
' polilical ^niernnient. and lo accept that of 
' Anii(;uaorf<t. Chris- 0| .her'*. 

" ' Answer— TTiey become Btiiish siiljerta, 
' (as in Ihe inveedini; article) but MbaDcontiniie 

• tn be pirerneil hy their present laws unltl hii 

■ majeity'a pleasure be hnou n. 

" ' Articlethe sixth- The inbabilniils, as atsa 
' (be re)ii;iou3 orders, of bntli arxes, thill be 
' niaintained in Ihe pr0|rerly of I heir eftecis, 

■ mofeable and iinniOT<-ahte| of what natiir^ 
' soever, and shall be preferred in their privi. 
< le^es, rights, hnnuurs, and exempliniis ; Ihei^ 
' free neirroes and mulatioes shall have the en- 
' lire enjoyment of ibeii- liberty. 

"' Granted, in rf[;ard to the rehgions orders — 
'The inhahiiants.bein^siitgectsof Great Bri- 
' fain will eujny tbeir properties, and llie same 
' jtriTileges at in the other bis majesty's Lee- 

■ Ward islands.' 

" ' Anicfe (he seienlh— They shsH not pay tii 

■ bis majealy brv oilier duties ttian those n hicli 
' hove liecn paid bltberin to his moat Christian 
■majesty; and the capilnli'Mi of negroes ujhiii 
' the same roaiini; it is paTd at present, without 
'flwy oiher dian^es or imposts: and the ex- 

■ fences of insiii^e, peniiuns in curates, and 
' other occasional e»iieocf a, abill be paid hf 

• the domain of his Britannic majesty, as ihey 
' were hy that of his mosi Obrislian mtijeily.' 

" ■ Anawercd in the tixth^artide, as to whil 
regards Ihe iohabitants. 

" ' Article the elereolh— No other than iho 
' inbabitanta resident in ibis island shall, till the 
' peace, pmsess any eslBles, either by acquisU 
' tion, aRTeement or ulherwi-ie : but in case ai 
' Ihe peace the connlry shall be eedi-d lo (he 

* king of Great Britain, then it shall be per- 
I milled 10 Ihe inhabitants, who shall nol be 
' willing to become bis suljects, to sell their 
' Mtates, moTratrie and immnreable, in whom 
> they please, ami retire where they sbill ihink 

■ (iriiprr ; in which caie they ahail be alloweJ 

■ eonveliieni lime. [ tnswer] All suhjecH of 

■ Oieat Britain may |Kii«e«s any Innils or 

• hniiies by purchase. The remainder nf ihis 

■ article granted, ptoTided ihey sell to British 

" And the juron afnresuid, n)inn their oaiha 
aforesaiil funher say— That iu ibe deliutlire 
B 



213] 



15 GEORGE .III. The Case of the Island of Grenada-^ [944 



treaty of peace aud friendship between his 
BriUDoic majesty, the most Christian king^ 
and the kinfi^ of Spain, concluded at Paris the 
10th (lav of February 1763, amongst others 
are the toilowin(f articles : 

** * Article the fourth^His n^ost Christian 

* majesty renounces all pretensions which he 

* has heretofore formed or mi«<;lit form to Nova 

* Scotia, or Acadia, in all its parts ; and gua- 

* ranties the whole of it and with all its depen- 

* daiicies to the king of Great Britain : more- 

* over his most Christian majesty cedes and 
' (guaranties to his aaid Britannic majesty in 

* full right Canada, with all its dependancies, 

* as well as the island of Cape Breton, and all 

* the other islands and coasts in the gulph and 

* river of St. Lawrence. And in general every 

* thing that depends oa tlie said countries, 

* lands, islands and coasts, with the sovereignty, 

* property, possession, and all rights acquired 

* by treaty or otherwise, which the most 

* Christian king and the crown of France have 

* bad until now over the said countries, islands, 

* lands, places, coasts, mnd their inhabitants : 

* 90 that the most Christian king cedes and 
« makes over the whole to the said king and to 

* the crown of Great Britain ; and that in the 

* most ample manner and tbnu without re- 

* striction, and without any- liberty to depart 

* from the said cession and guaranty under 

* any pretence, or to disturb Great Britain in 

< the possessions above mentioned. — His Bri- 

* tannic majesty on his side agrees to grant the 

< liberty of the Catholic religion to the inhabi- 

* tants of Canada : he will consequently give 

< the most precise^ and effectual orders, that his 

* new Itoman Catholic subjects may profess the 

< worship of their religion, according to the 

* rights of the Romish church, so far as the 

* laws of Great Britain can permit — His Bri- 

* tannic majesty further agrees that the French 

* inhabitants or others who had been subjects 

* of the most Christian king in Canada, may 

* retire with all safety and freedom wherever 

* they shall think proper, and may sell their 

* estates provided it be to subjects of his Bri- 

* tannic majesty, and bring away their effects 

* as well as their persons without being re- 

< strained in their emigration under any pre- 

* tence, except that of debts or criminal* |>rose- 

* cations. The term limited for this eroigra- 

* tion, shall be fixed to the space of eighteen 

* months to be computed from the day of the 

< exchange of the ratifications of the present 

* treaty.' 

*< * Article the ninth — ^The most Cbristain 

* king cedes and guaranties to his Britannic 

* majesty in full right the islands of Grenada, 

* with ihe same stipulations in favour of the in- 
« habitants of this colony, inserted in tlie 4th 

* article for those of Canada. And the parti- 

* tion of the islands called Neutral is agreed 

* and fixed ; ao that those of St. Viaoent, Do- 

* minica, and Tobago, shall remain in fnll right 
« to Great Britain, and that of St.. Lncia shall 



' be deiirercd to Fr«Mtv lo 




' tracting parties guaranty the partition so 

* stipulated.' 

** And the jurors aforesaid upon their oaths 
aforesaid further saVf that his majesty, by his 
royal proclamation bearing date at Westmin- 
ster the 7th day of Octitber, 1763, amongst 
other things declared as follows, * And whereas 

* it will greatly contribute to the speedy settling 
*oor said new governments that our loving 

* subjects should be informed of our paternal 

< care for the security of the liberties and pro- 
' nerties of those who are and shall become in- 

* habitants thereof; we have thouifht fit t(^ 

* publish and declare, by this our proclamation, 

* that we have, in the letters patent under onr 

* great seal of Great Britain, by which the said 

< governments are constituted, given express 

* power and direction to our governors of our 
' said colonies respectively, that, so soon as the 

* state and circumstances of the said colonies 

* will admit thereof, they shall, with the advice 

* and consent of the members of our council, 
( summon and call general assemblies within 

* the said governments respectively, in such 

* manner and form as is used and directed in 

* those colonies and provinces in America, 
( which are under onr immediate goveniment. 

* — And we have also given power to the said 

* governors, with the consent of our said coan- 

* cils and the representatives of the people, so 

* to be summone<l as aforesaid, to make coo- 

* stitutions and ordain laws, statutes and or- 

* dinances, for the public welfare and good go- 

< vemment of our said colonies and of the peo- 
« pie aud inhabitants thereof, as near as' may 
« be, agreeable to the laws of England, and 

< under such regulations and restrictions as are 

* used in other colonies. And in the mean time 

* and until such assemblies can be called as 

* aforesaid, all persons inhabiting in, or resort- 

* ing to our said colonies, may confide in our 

* royal protection for the enjoyment of the be^ 

* nefit of the laws of our realm of England : 

* for which purpose we have given power under 

* our great seal to the governors of our said co- 

* lonies respectively, to erect and constitute, 

* with the advice of our said councils respec- 
' tively, courts of judicature and public justice 

* withm our said colonies, for the hearing and 
' determining all causes as well criminal as civil 
' according to law and equity, and as near as 
' mav be agreeable to tlie laws of England ; 

* witli liberty to all persons who may think 

* themselves aggrieved by the sentences of such 

* courts in all civil causes to appeal, under tbo 

* usual limitations and restrictions, to us in our 
' privy council.' 

** And the jurors aforesaid, upon their oaths 
aforesaid, further say — ^That bis majesty by his 
royal proclamation bearing date at Westmin- 
ster, the <i6th day of Alarch 1764, amongat 
other things did also declare as folkiws, 

* Whereas we have taken into oar considers^ 
' tion the great benefit that will arise t6 th« 
' oooiBMivo of oar kingdoms and the interasl 

* of o«r snbfcctt, froon the speedy aectlemeol 

* §f Ihi isliMs of QiiMdai Iha flimadimi. 



Campbell v. Hall. 

• Dnaa i aki. 81. Vincent aiid Tobago, we in 

ititrefore ihink fit. wilti ih<? aitrire of riur 

lairy eauDCJI, to iuue thi« our roytX procln- 

ni^tiua. In jinlillBh aud declare to our loring 

;. i 1 ttiat we Ijate wiib ihr «dticeor our 

' I e iiuncil, given tlienecessBrv powers 

I • riuHs foran immediate tai\ty,»aA 

i ::, iiiiu projier piriilin and diitricti, of 

' "'li of (he said iilanda aa liate not biiherto 

'««■ noaurrFved and diiided ; and for laying 

nil Mich laods in the laid islands as are in our 

I'vwer to diapose of, intn allotinente for pUn- 

tiuoos of dilffrent hixe und extent, according 

' u tlw nature of the lanil «tiall be mnre or Iras 

' adapted U> tlie growth of BU|tnr, culfpe, cocoa, 

' oHtoa, or oilier articles uf bentAcisl ciil- 

' uire ; TCEertint; to as, our lieirs and BucceaaorB, 

' iLcti pans iif tlie said inlands as aliall be ne- 

' 'nnry for erecting fortiRcatioos ilierenn, and 

<r>r all DtliCf miliiBry purposes; for glebes 

' 'ur miiiiiteri, aJlutmeats tor eg lionl- masters, 

'ft r wood-lands, liigh'rnails, and all other 

^^■^Cn pnrpnaes; and aUo resemng such 

^^^■rfi in onr islanila of Dominica and St. 

^^^^Mitlt aa at llie lime of the surrendtfr 

^^^■n rad atjll are in the posaession of the 

^^^KcmIi, inbsbitanti of ilie aaid islands ; 

^^^■U hnda it is our will and pleasure should 

^^^V cniil«il to such iif Ihe asiil inhuhiiants as 

■ I^ImII be inclined lo ucuepl the asmc upon 

' Wm for terms absohitu, or for renewable 

-rma npon certain cuiidilinns, and under 

ii oprr resirictiun*. And we do herehy farther 

,'ubluih and declare, thai the allolmenta for 

, iintatioiia In cur inlands of Grenada, Ihe 

' . madines, Tobagu and St VinceDl, shall 

-nlato IVnm uoe himdred to three hundred 

.-res, with unine lew nllolments ioeach island 

.' fire buaitred acres; ami that the allot- 

fota in our inland af Dominica, whiab is 

■Tuvamied to be nni au well adapted lo ihe 

luiuralion of sugar, anri which from its 

' Ml— linn require* in policy to be well peopled 

I' rtlhtrbilc lahabitanU, iliili lie in eeneral from 
'61^ lomnhandrMl acres. Thai each purchaser 
*tf lawla which hare been cleared and im- 
' anitA. (ball witliin ibe apace of three monlhs 
il If of ihegrani seltleand constantly 
<> liie Int iKirchueil one white man 
'lite womKn, for every hundred 
I >tn(d in the salU lot, and in default 
' itwmf tball be suhject lo the payment of 
'ML prr annnm f'lr e\eTy white woman, and 
' tOi, |ier aoaum fur vvery while idso, that 
*iWI iHt wanliotc to complete the number. 
'Thtk Hi* putchaaerof itni'lpsrad lands shall 
'dHrsoid culiisali! iioe acre in etery twenty 
■laMnh year, until Imif the laud so purchased 
■ AaB b* cImtviI, and in default thereof ihaM 
> pjr il. p«r aBDum for erery acre not cleared 
< patB«aut lo Budi eonditjon. And such pur. 
' ^tmtt aliall alao 1m iiiili|{ed lo settle and on- 
'MMljr ll*^ upon Uie lot so purchated on« 

ixiulrBl aerca aa the same thall be cleareil. 
I '111 auli puicb*>«r, bcaidea the purchase 
tj, abkll Im 8ub|CGl to ibe payoicut of an 



[546 



A. D. 1774. 
' anaual quit-rent lo us.our heirs ai 
' of sixpence per acre, imder the penally of 61. 
' per kcre upnn non-payment thrreuf. Such 
' quit-renU iu Ihe esse of Ihe purchase of ulear- 

■ ed lauds tn commence from the dale of the 
' nTBnt. anil the fimi |myment to be made at the 
' expiration of the first year ; and in caseof ths 
■purchase of the uncfeared lands, auch qait- 
' rents lo commence at the expiration of iweUe- 
' months from ihe lime each acre is cleared. 

* That in case of failure in the payment of Ibe 
' pa re base money in Ihe manner above directed, 
' the purchaser shall forfeit all right lo Ibe 

* lands purchased.' 

>■ And Ihe jurors aforesaid, upon their oaths 
afuresaid, further say, that his majesty by bis let- 
ters patent, under his writ nf prity seal bearing 
dale, at Westminster, the 9th day »f April 1764, 
appointed Robert Meicille, esq. vapiaio general 
and gorerlior in chief in and oier the wlands of 
Grenada, the Grenadines, Dominica, Si. Vio- 
ceal, and Tobago, in America ; and ofall other 
islands and territories adjacent thereto : which 
said letters pnleot are as follows. — ' Georga 
' the third by Ihc i;race of God, of Great Bri- 

> lain, France and Ireland, king, delender of 
' the faitb, &C. To our Irusiy and well be- 
' lored Koberl MelTille, esq. greeting ; whereas 
' we did by our letters patent under our ^reat 
' seal of Great Britaio, bearing dste al West- 
' mioBler, Ibe 4lh day of April, in the first jear 
'ofunr reign, constitute and appoint Charlea 

* Pinfold, esq. captain- genera I, and governor in 
' chief in and over our islnnds of Barbadoes, 

* St. Lucia, Dominii.'a, Si. Vincent, Tobagn, and 
' the real of onr islands, colonies and planta- 

■ tioniin America, commonly called or known 
' by the naoie of our Carnbee islands lying 
' andbeingtoibe windward of Guadaloupe, and 

* which then were or after should be under our 

< sulgectiuD and ifovernmetil, during our will 
' and [ileasure, us by the said recited letters pa- 
' lent, relation being ihereunio had, may mora 

■ fully and al targe appear: now know you that 
' wehaveretoktuland determined, and by these 

* present* do revoke and di'termine, tucb part 

* and so much of the said recited leiters patent, 
' and every clause, article and thin^, (bereia 
' cnnluined, as relates Iu, or muotiniia, Ibe 
' island* of St. Lucia, Dominica, St. Vmeeut, 

■ and Tobago. And further know you, ihat 

> we, rrposini; especial trust and counilence in 

* Ihe prudence, courage and loyally, of yoa 

< Ihe said itnbert Melvdie.ofour ea)iecialgrace. 
' certain knoitWge, suil mere molion, have 

■ tlinught fit in cuiislituW and uppoinl, and by 

■ Iheae presenls do cnnstitutr and appoint, ynu 

■ Ihe Baid Hubert Melville lo be uur capUio- 
' general and governor in ubief. in and over one 
' islands of Grenada, the Ureaadines, Uomi- 

■ nica. Si, Vincent, and Tobago, in America, 
' and of all ulher islands and territories adja- 

■ cent thereto, and which now are, oi beretn- 
'lore have been, tle|ieadcnt thereupon. And 
' nc do hereby require and command you to 

■ do and execute all ihings iu due msimcr, Ibat 
' shall belong to your taid coDUOaDd, and tha 



247] 



15 GEORGE III. The Case ^the Idand qfGrenadi 



trust we have reposed iu you according to the 
several powers and directions granted or ap- 
pointed you by tUis present coDiniissiou, and 
the instruetious and authorities herewith 
giren to you, or by suob further powers, in- 
8tru«-tions and authorities, as shall at any 
time hereafter l»e granted or appointed you, 
under our signet and sign manual, or by our 
order in our pri?y council, and according to 
such reasonable laws and statutes as Aail 
hprealter lie made and agreed upon by you, 
with the acWice and consent ot the council 
and assembly of ihe islands and plantations 
under yuur gofernnnent, in such manuer and 
form as is hereinafter expressed. And our 
will and pleasure is that vou the said Robert 
Mflville, do, alUr the publication of these oar 
letters patent, and after the appointment of 
our council lor our sa-d islands, m such man> 
ner and form as is prescribed in the instruc- 
tions which you will herewith receive, iu the 
first place, take the oaths appointed to be 
taken by an Act passed in ihe first year of the 
reign of king George the first, entitled. An 
Act lor the further security of his majesty's 
person and government and the succession 
of the crown in the heirs of the late princess 
feiopbia, being Protestants; and for extin- 
guishing the hopes of the pretended prince of 
Wales and his open and secret abettors : as 
alsu that you make and subscribe the declara- 
tion mentioned in an act of parliament made 
in the 35tb year of the reign of king Charles 
the second, intitled An Act for preventing 
dangers which may happen Ifrom Fopish re- 
cusants. — And likewise that you take tlie 
oath usually taken by governors iu the other 
colonies for the due execution of the office 
and trust of our captain-general and governor 
in chief in and over our said islanila, and for 
the due and impartial administration of jus- 
tice. — And farther that you take the oath re- 
quired to be taken by tiie governors of the plan- 
tations to do their utmost, that the several laws 
relating to trade and the plantations be duly 
observed ; which said oaths and declaration 
our council of our said islands, or any three 
of the members thereof, have hereby full 
power and authority, and are required to ten- 
der and administer to you: and in your ab- 
sence to our lieutenant governor of the said 
islands, and to our lieutenant-governors of 
eachof our said islands respectively, the said 
oaths mentioned in the said act entitled, An 
Act for the further security of his majesty's 
person and government, and the succession of 
the crown in the heirs of the late princess 
Hophia, being Protestants, and for extinguish- 
ing the hopes of the pretended prince of 
Wales, and his open and secret abettors: as 
also cause them to make and subscribe the 
aforesaid declaration, and to administer unto 
them the usual oaths for the doe- execution 
of I heir places and trusts.— Aad ws do fiirtiier 
give and grant unto vou the and RolNKt Mel- 
ville, full power aaa tutfaorilgr fi 
time, and il wy liat kBMtAi^ 



[S4S 

' or by any other to be authorized by yea in 

< this behalf, to administer and give ibm oaths 

* mentioned in tht said act, for the finrtbar se* 

* curity of his m^esty 's iierson awl goveniBieat, 

* and the succession of the crown m the keirs 

* of the late princess Sophia, being Protestants, 
^ and for extinguishing the hopes of Ihe pre* 

* tended prince of Wales, aod bis open aad 
^ secret abettors, to all and every such persoa 

* and persons as you sfaaU think it, u be riiaN 
' at anv time or times pass into any of our said 
' islands, or shall be resident or abiding there. 

** * And we do hereby authorize and ioipower 

* you to keep and use the public seal, which 

* will be herewith delivered to you, or ahaH 

* hereafter be sent to you, for sesling aU things 

* whatsoever that shall p4ss the great seal of 

* our said island. 

*' * And we do hereby give and grant ante 

* you the said Robert nelville, full power and 

* authority, with the advice and constant of our 

* said council to be apiminted as aforesaid, as 

* soon as the situation and circumstances of our 
' islands under your government will admit 

* thereof, aud> when and as tdien as need sliaM 

* require, to summon and call general aawm- 

* blies of the freeboltiers and planters jointly or 

< severally within anv of the islapds under your 

* government, in such manuer as you in your 

* discretion shall judge most proper, or ac- 
' cording to such further powers, instructions 

* or autliorities, as shall be at any tima here* 

* after granted or appointed you under our 

* signet and sign manual, or by our order ia 

< our privy council. 

'< * And our will and pleasure is, that the per- 

* sons thereupon duly elected by the aiaior 
' part of tlie freeholders of the respective pa* 

* rishes or precincts, and so returned, shall be- 

* fore their sitting uke the oaths mentioned in 
' the said act entitled. An Act for the further 
' security of his majesty's person and govem- 
' ment, and the succession of the crown in tJie 

* heirs of the late princess ijuphia, being Pro- 
' testants, and for eztinGfuishing the hopes of the 
' pretended prince of Wales, and his open and 
' secret abettors : as also make and subscribe the 
' aforementioned declaration, which oatha aad 
' declaration you sliall commisskinate fit persons 

* under the public seal of those our islands to 

* tender and administer unto them : and uutU 

* the same shall be so taken and subscribedi ne 
' person shall be capable of sitting, tliougli 

* elected. And we do hereby declare, that ue 

* persons so elected aod qualined shall be called 
' and deemed the assembly of that ishind within 
' which thev shall he chosen, or tlie assembly 
' ol' our said islands in general. And thai you 

* the said Robert Melville, by and with the 

* advice and consent of our said council aod 
' assembly or assemblies, or the major perl of 
' them, snail have full power and auUiority. to 

* makoycoostitulet and ordain laws, statnt e a, a od 

* ordinaocca, for the puhlie peace, wolfamp ondl 

* gnodg o os tO Bientot oog said islands, jmstf 



•ee 



•adoTiho 





Campbea v 



Mali, 



K MnI fa tlie benffit of 

Wbicb nid lini, sulotea, 
II to be repti|{>>Biii> I'ul, 
■ n*]) be, Ki^reealile lo ibr bws and 
■ •rihtanur kingdato al*Ore«t Britaia. 
I] B>l sudi lawa, BlHlittH, arul ur- 
wltal auiire ar durttioo toeicr, 
« willun tbm muDtha dt luuDiir arier ibe 
'■iiBiir thereol', tutitiniUed lo us, uuier our 
'mti al mar »s'ui iaiauila. I'urour approbalinii or 
' I Mllaw ce ol Uie (ame ; as ehu ilu|ilivBlca 
'maaftty lb« next convcj'ancF. 

■■ ■ Au<l ia ras« any or nil iiC ihe sajil liwa, 
'Mtoles, auai orilinauun, ni>i U>rure cnnfirineii 
'kf M, shall at ■oj' lime b« diva I ki wed, and 
'M aypnH K«t. auU »o signifinl by ua, uur 
'ban utd succwion, unikr ibeir siifuet or 
' mga tauiual, M by nrJer of niir nr tlirii' iiriij' 
■oaocil, auto >nu tkwsaul Kubtrt Alrlvillif, or 
'■tbceuniiMiiiier ID cbief of ihe aaiJ ialandi 

* !■ ibr Uiot beiii^;, ibcB lucb and so lUBMy of 
**e B*ii) kws, siBtuiei, mnI oribnancefl, as 
*«WI bar au iliHaltowed bimI nM apiirovpd, ihall 
•fc^ ihmcelMlh cease, deterutiiie, and be- 
*Maw Blirily toiJ and have nu eArct, anv 
'^mt ■" tb« osolrary ihcreal'Doiwiibstiitiiliii|r. 

** * itnil It! Ihe end Ihat nolhinn luiy be 
' ■ w rt in doue hy our said council or Rssem- 
*liaa ID the prrjiubce of ui, our heira and «ac 
' n«ui ». we mil uikI onbin thpl you. the aald 
' H-Wn Mrltdre, bhall dure and enjoy a nega- 

* tn< mioe ia Ibe inakuif aud (laBsinK ail laws, 
' ■*4Bl'«, and ordtuaBL-os, as aroreKai<l, And 
'ihal«oij slioJI and may likewite, from litneto 
'Ud*. ma yon >hall jud|[e necessary, adjourn, 
' rwijue or disMtlve, nil general BMenlilie* as 
'Mmaid.' 

■ Anil <hc jnroni aforeaard, on llteir oallts 

I^hhI, briber suy, Chat hia exoelleocy Itn- 

I HeKille, esq. arriied in Grenada on tlie 

k«( Deevinber, 1764, and in conwquence of 

I leittra paient, took upon liini 

Igavetuolenl of the aanie, and Ibe utUer 

' I Ihewia named. And that. In conee- 

ntioned lelt«ri palenl. a 

J of ill e governor, coudcII, andasaembly 

» Md itltnd of Grenada was beld there in 

■■•iMtor «ad of ibe year 1765. 

"JkmA lllBl hit majeily, by his letters patent 
vAiv ibe i^rest seal (rf Great Britain, branny 
*« at WeMminsler Ihe SOth day of July, in 
ibe rnoMh year of bin reign, and m the year of 



I offr 



lalf 

a uud after Ibe \ 



fB oeot. in »pvuie abouli 

exb <tay of MeiHemtiet then 

Mieil aail paiil lo bis heirs a 

mi 0)100 ajt dead uoinmodilies of Ibe yrowlb 

M^pniduoa of the said islawl of Grenada ilial 

AaaU be «b[>ped •>« fi-om the same, in lieu 

rfMciu**nnand iRi|inet thiiies lo ibat lime 

htoaaidaatnf the said island, under ibe aulho- 
ttj mf ki* moil Clirisiiao majesty. Wbtch 
■M Micra paiMit are in the words following: 
third, by Ihe ursce of God, of 
Prance, xid Irelaud, kiug, <le- 




A. D. 177*. [650 

ftiidf r of tbi failb, Scu. To all lo whom these 
prexeittB abtll cMne, greeiiiit;: wltereas a 
oerLBin imyost or cuslum nf fiiur |xiundi 
and a balf in aprcic fur efery hundred weiifbl 
of the C'lmiuodities of t1>e growth and produce 
of Ihe ial^Dd of Borbadoes, and of ihe 1^. 
ward Carribbee islauda in America, shipped 
off frsm the sane, or any of ibt^iii, is paid 
aud (isyahle to as, our heira and auccsssvra ; 
and wltereaa the islaud of Grenada was coti< 
quered by us during ihe late war, and bas 
been ceded and secured to ua by the lair ireaiy 
ut peace ; and whereas il is reaiouable and 
expniieoi, and of ioiportaoce lo our oiber 
sugar Ulanda. that ilie lilteduty sliauld lake 
plaice in nur aaid islaad of Orenaila ; we have 
' llHiught (il, and our royal will and pleasure ia, 
and we do berahy, by Tirlna uf our prrroga- 
' tiie royal, order, direct aud appoint, lliat an 
' impost or cuatoni of fuar and a half per 
■' cent, in specie ahull, from ftiid after ibe U(Kb 
' day of ijepleniber oetl eiiauin)j: Ibe date of 
ibese preaeals, he raised and paid lo in. our 
'heirs and suceeasnrs, hr and upon all dead 

> coinmnlilies of Ibe ti">"l'< or pro'loce of nur 
' naid island of Greonda tliat aball he abipped 
' off from the auae ; in lieu of all cuatuuia aod 

> impost duties hiiberlo L-ulleoted upon ^rowlB 
' imported and exported lolo and oiil uf the s«d 
' ixlaad under the aulUoriiy of bis inuA Chris- 

> lian majesty : and that llie same shall be col- 

> lected paid, and leviiMl in suck manner and 
' by such mcana, and under audi jMnaliics and 

■ furleiiures as ibe said impost ur custom of 
' tour and a balf per cent, is, aud may now be 
' collected, paid, atul li'vied iu oar said island 
' of Barkidoes, and our Mid Loeward islands. 

" ' Aud we ilo hereby retjuire and command 
' the prenenl governor or commander in chief, 
' and Ihe governor or cuminnnder in chief tor 
' the lime bvinic, and Llie oflicei'S of our ciia- 
' luiiia in ibc aaid iaianil "f Grenaila, now and 

< horealler. for the tinie being, anil all ulliera 

* whom it tnav cnncern, Ibat they du respec- 
' lively lake care lo collect, levy, and Iu reoeivn 
' the said impost or ousiom, according in our 
•royal will and pk-astire, bigniQed by these 

" ■ And whereas a poll-tax was levied and 
' pnid by Ihe iuhahitanla nf oik si^d island of 

■ Gmiiida whilst it was UQ'ier subjection tn bis 
' most Christian iRq>>siy, il is onr n>yal will 

■ and pleasure thai sucb poll-lax as wau levied, 

• collei'tnl and paid by the inhabitants of the 

• said island whilst il was under subjeclion to 
' his must Chrtsiian majesty, shall becunlinued 
' lliereiB duriag our Tiiyal will and pleasure; 

■ and Ibat Ibe same shall be cuUeuied, levieil, 

> anil [laid to uis our heirs ami sucvcssiirs, at 
' such limi-Kand in such manlier, and liy such 
' ways anil means, uml under suoli |H;oBlti«s 

■ and fartbiiures, and upou such terms, anit 
' with aoeh privilevts and esemptionB a': Ihe 

* same wa» colleeled, levied, nod paid whilst Ike 

< asid islBHl was under such aii^Miun to bis 
' nioslCbristiau majealy, inasmuch as itresaiHS 
' ar«D»t cotttrary to the laws of Great Bntatn. 



S51] 



15 GEORGE IIL The Case of the Island of Grenada^ [S52 



« * And that the aooount and namber of the 

* inhabitants and slaves therein shall be, from 

* time to time, kept and delivered iu by such 

* person and persons, and at such time and 

* times, and ander such regulations, sanctions, 
' penalties and forfeitures respectively, as and 

* under which the same were taken, kept and 
' delivered in during^ the time the said island 

* was subject to his most Chrisiian majesty, as 

* aforesaid, in as much as the same are not con- 

* trary to the laws of Great Britain. 

** * And we do hereby require and command 

* the present g^overnor or commander in chief, 

* for the time beiniif, of our said island of 

* Grenada, and the several officers of our re- 

* venue, now, and for the time being, and all 

* others whom it may concern, that they do 

* respectively take care to collect, levy, and re- 

* caj||e the money arisinip and to arise by the 

* said tax, and to pay and account for the same 

* to the receiver general and collector of our 

* casual revenue in our said island, ^br the time 

* being, according to our royal will and plea- 

* sure siu^ified bv these presents.*' 

** Which said letters patent were afler wards 
duly registered in the said island, and were 

Sublicly announced by his excellency Robert 
[elvilie, esq. in the month of Junuary 1766, 
immediately succeeding his arrival in the said 
island of Grenada. 

" And the jurors aforesaid, upon their oaths 
aforesaid, farther say, that the said duty, of 
four and a half per cent, before the making of 
the said last mentioned letters patent, was and 
yet is paid in the island of BarMdoes, and the 
Leeward Caribbee islands, in pursuance or by 
virtue of acts of assembly passed in the same 
islands hereinaAer set forth. 

*' And the jurors aforesaid, upon their oaths 
aforesaid, farther say, that by an act of as- 
sembly of the island of Barbadoes, in the West- 
Jndies, passed in the said island on the 13th 
day of September, 1663, intitied, ' An act for 

* settling an impost on the commodities of the 

* growth of that island,' it is amongst other 
things recited and enacted as follows : 

' Whereas our late sovereign lord Charles 

* the first, of blessed memory, did, by his let- 

< ters patent under the great seal of England, 

* grant and convey unto James, earl of Car- 
« lisle, and his heirs for ever, the propriety of 
' this island of Barbadoes; and his sacred ma- 
•jesty that now is hating by purchase in- 

< vested himself in all the rights or the said earl 

* of Carlisle, and in all other rights which any 

* other person mayclaim from that patent.or any 

* other, and thereby more immediately and par- 

* ticularly hath [having] taken this island unto 
' his royal protection : and his most excellent 

* majesty having, by letters patent under the 

* great tteal of England, bearing date the 13th of 
' June, in the I5th year of his reign, appointed 

* his excellency Francis, lord Willoughby of 

* Parham, captain general a!id chief governor 
' of Barbiidoes, and all the Carribbee isiandb, 

* with full power and authority to grant, odd- 
' firm, and assure to the iubabitaDlaMlbe 



' and their heirs for ever, all lands, tenements, 

* and hereditaments, under his maieaty's great 

* seal appointed for Barbadoes and the rest of 
' the Carribbee islands, as, relation being there- 

* unto had, may and doth more at large appear. 

** * And whereas, by virtue of the said earl of 

< Carlisle's patent, divers governors and agents 
' have been sent over hither with antbority to 

* lay out, set, grant, or convey in parcels the 

* land within this island, to such peraons as 

* they should think fit, which was by them, in 

* their respective times, as much as in ibem 
' lay, accordingly performed. And whereas 

* many have lost their grants, warrants, ajid 
' other evidences for the said lands ; and others, 
*• by reason of the ignorance of thoae timet, 

* want sufficient and legal words to create in- 

* heritances tothem and Uieir heirs; and others 

* that never recorded their grants and war- 
' rants ; and others that can nmke no proof of 

* any grants or warrants they ever had for their 

< lauds, and yet have been long and quiet pos« 

* sessors of the same, and bestowed great 

* charges thereon. And whereas the acknow^ 

* ledgment of 40 pounds of cotton per bead, 

* and other taxes and compositions formerly 

* raised to the earl of Carlisle was held very 
' heavy. For a full remedy for all the defects 

* afore related, and quieting the possessions, 

* and settling the tenures of the inbabitanta of 

* this island, be it enacted by his excellency 

* Francis, lord Willoughby of Parham, and 

* his council, and gentlemen of the assembly, 

* and by the authority of the same, that, aot- 

* withstanding the defects afore related, all the 

* now rightful possessors of lands, tenements 

* and hereditaments, within this island, acoord- 

* ing to the laws and customs thereof, may at 
' all times repair unto his excellency for the 
' full confirmation of their estates and tenuref, 

* and then and there shall and may receive 

* such full confirmation and assurance, under 

* his majesty's great seal for this island, as 

* they can reasonably advise or desire, accord- 
' ing to the true intent and meaning of this act. 

** * And be it farther enacted, by the authority 
' aforesaid, that all and every the payments of 

* 40 pounds of cotton per head, and all other 
' duties, rents, and arreai s of rents, which have 

* or might have lieen levied, he from henceforth 
' absolutely and fully released and made void ; 
' and that the inhabitants of this island have 
' and hold their several plantations to them end 
' their heirs for ever, in free and common soc- 
' cage. Yielding and paying, therefore, at the 

* feast of St. Michael every year, if the same 

* shall l>e lawfully demanded, one ear of Lidiao 

* €M>rn, to his majesty, his heirs and successors 

* fur ever, in full and free discharge of all rente 

* and services for the future, in consideration of 

* the release of the said 40 pounds, end in con* 
' sideration of the confirmatioo of ell 
' this island, as aforesaid, end in 
' meot of hie majesty'e sreoe mad .i^ 
' sending to end enooiel' 

* eicelleiieT. of v 



Ca>»p6e/l V. Halt. 

net. Ui<I do reat man nwarH lliercar 

111 (iiruinuc)i aa nnthing^caiiilucelh more 

« Bod pTas|)crity ol' >ny jilBCi-, nnil 

i<io of errrj txti^Xc jicrson lliereio, 

be public revenue tlieteiit* may hf 

ieMur« [iru^rtinned lo the public 

s aod expeiu^es ; and bIsa well wel^ih- 

[be great ch»r^;«s Ihat lli^re miisl be of 

' til]' IB the malnliiiniiiif the honour and 

y of bit niaJMly's aiiilinrity bere ; ihe 

le meeting i>l ibe ivsiiunii ; tbe oixfti at- 

T ot'thccauucil ; ibf re|iarationorihe 

lb« buililiDff a sessionB- haute and a 

1 aad all other public cbargea Jnciim- 

'«gA«eriiiiienl; do, in conaideralioD 

ite and grant unto his majesly, hia 

' dniire your excellency 10 accept 
ir ^rauU : and wc bniiibly pray your 

J' ibal It luay be enaclnl, and he ll 
J hia excellency Francis, Inril VVil- 
J if Parham. captain eeoeral and 
rnnr or this island ol' Barbndocs, 
^^___ !t the Carribbee ialnnds, and by and 

■ oiah Ibe cunieot of ibc council, and the gea- 
■ '-'"«! 'if ibe oa*emhly,repr«reiilatiresof'lliig 
iUnd, and by authority of the tame, that an 
.>l<Di( or cuttom be, I'rnm and aflcr publica- 
' n herrot', rained iipi>n the native comrandi- 
11 uf ihiti inland, alter Ibe pro|K>riii>ng and iri 
. -iiiat!! and form as is heteuniT «et down nnd 
.^'g>oiotrd, llialia loaay, upi>n all dead oim- 
.xliiiM of ibe ffrowih nr produce of Ibis 
land, tbat (hall he Hbipped nff ' 



' |>aid t 



if catcreiftn liird the king, bia 






id a half 



I lj< inmrs albreaaid, upnn their oatha 

.iiIkt My. that, hy on act of aa< 

: ' iilaod of Si. Christopher, in tbe 

I'liaavd in tbe said island, in tbe 

l-uid 1737, intitled, < An Act lo 

i;i>ods and commodiliea of the 

<< [iiiHluoe uf Ihe late Frencb part 

< ^ <<i'l fit Hi. Climtnpber, nbirb ar« or 

••■; 11- •liippeil olT from Ihe snid island, lo 

K iwymanl of ihc four and n half ]ier cent. 

M«, Mit lu aaoertain di nhat places all ihe 

■to of four and a hulf per cent, sbull be 

* ll ia, BiDangut other ihinfft, recited and 
idHl BB followB ; ■ tVherena id and hyan act 
r ntulc uf the i;eneml couDcil and ^enernl 
■entity of ib« Leeward Carribbee islands, 
catlnl or known by the names of 
r Noil, Ki. Chrialnpher. Antigita, 
1, msdc! in or about tbe var of 
, and entitled. An Act liir ael- 
m tbe cumniudilles of tbe 
LcBward Carribbtc islands, 
enttoffl of four puunds and 
i»r»»wy hntTdrcd weight of 



. ni'lei 



ard« 



A.U. 1774. [254 

' snTereiga lord Cbarles Ihe 9d, then king of 
England. Scotland, France, and Ireland, and 
to his heirs nnd succennra for erer. aa in and 
by Ibf same act or slatule, relation being 
Ihereunlo had, may more fully and at large 
appear.' 
" < And uhrrcaa aince the making of tbe aaid 
'alatuieilowil. inand by ibelatetrtalyorpeace 
' and friendship concluded at Utrecht helfteeo 
' tbe two cronns of Great Britain and France, 
' an enlire ceasion was made hy tbe moat Chris- 
tian king Lewis tbe 14ih to our Inle sovereign 
■ lady Anne, queen of Great Britain, France, 
' and Ireland, and lo her crown for ever, of all 
Ihat pan of the island of St. Christopher for- 
merly belonging In the crown of France ; so 
tb at I be same late French pari of tbeaaid island 
' of Nl.Chrisiopber is now become parcel of ibe 
realm of Ureal Britain, and is under the anle 
dominion and goveramenl of tbe crown of the 

'" Andwherea»somedoubtshaTearisen,whe- 
' Iher ibe said Inie French pari, so yielded np bb 
' afbresaiil lothe said crown of Great Britain, be 
' subject in the payment of ihe afor^aid duties 
I of four and a haif per cent, so as aforeaaid, in 
and by the said reciled act, given and gi-anleil 
' lo our aaid late sorereisn lord king Charles 
the ad. hia heirs and successors ; fur avoid- 
ing, tlierefure, all disputes and conlroversiei 
ivbicb may for ihe future arise within th« 
samo island, touching or concerning ilie pay- 
ment of the same duties, we, your majealy'a 
' most dutiful and loyal subjecis John Hart, 
' esr|. your majesty's captain general, and go- 
' vernnr in chief of all your majesty's Leeward 
' Carrjhbce islands in America, and Ihe council 
and assembly of tbe said island of Si. Chris- 
lopber, do humbly beseech your iDa}esty that 
it miy he eoacled and declared, and it is here- 
' by enacted and declared, by the king's moat 
' excellent majesty, by aud with tbe advice anil 
consent of the captain general and gnvernor 
inchit^of ihesaid Leeward Carribbee island*, 
in America, and the council and assembly of 
the said island ofSt.Cbrialopber.and hy the 
' suibority of the same, Ibal all and aingutar 
Ibe goods and commodities of the growth and 
' pi-nduce of the said lale Frencb part of tba 
said ialand of St. Christnpber, and which at 
' ibia time are, or hereafter aball be, shipped 
' off from tbence, in order to be carried lo any 
' Dlbei port or place whalsoeTer, ore, and for 
' ever alttr shall be, subject and tiablr, and the 
same goods and commodities, and every of 
' them, are hereby made auhject and liable, to 
' Ihe payment of tbe afnressid duties and cua- 
' torn 9 uf lour pounds and half a pound per 
' cent, in specie, lo your most aacred niaiesty, 
' your heirv and successors, in such maimer 
' and sort aa Ihe goods and commoililiei of the 
' growtli and produce of Ihat part uf tbe said 
' island known and calle<l hy tbe name of Ihe 
' English part thereof, have beretotiire and 
' bilberio been subjecleil and linhle unlo by 
force and virtue of llie aliovu reriled act or 



15 GEORGE III. The Case of the Island of Grenada^ [S56 

* pointed : that is to my, Qpwi all commodilktf 

* of the growth or production of this ialaiid tbtt 
' shall be shipped oflTthe same, aball bejpud to 

< our soveretii^n lord the kmgf, hia beirt and 

< miccessors for e? er, four and a half in ipccie 

* for every [fiye] score.' 
" And the jurors aforesaid, upon their oaths 

aforesaid, farther say, that by an act of at*' 
sembly of the islatMl of AMiffoa, in the West 
Indies, passed io the said island on the 19th 
of May, in the year of our Lord 1668, en-' 
titled, '* An Act for the settlement of the cos-' 

* toDi or duty of four aad a half per eeot,' it 
is, anoooKBt other things, recited and enacted' 
as folloivs: ' Whereas by reason of the late 
' unhappy war which arose betwixt bit royal 

< nnjesty Charles the second, king of Great 

< Britain, Franoe, and Ireland, dec. and the 

< moot Christian kioff, in Prance, as wcM ai' 
' the states general of the United NetherlHds«' 

* sereral of his majesty of Great Britain hb 
' territories on this side the tropic, became mlK 

* ject (through conquest) unto the said Frencli 

* king and his sabjects ; and, amongst others, 

* this island of Antigua also waa so sohdeeii' 
' by Monsieur de Labarr, lieutenant general bf 

* sea and laad to the said French king, being as- 

* sisted by the Cannibal Indians ; by mca nr 
' whereof all the lands within this island be-' 

* came forfeited unto his majesty, &e. as bj an 

* act of this country, bearing date the 10th 

* day of April lant past (reference being there- 

* onto had) may more at large appear. Knoir 
*ye, that for and in conmderation of newgrantr 
' and confirmation of our said Imids, um&r tto 

* groat seal appointed for Barbadoes, and the 

* rest of the Carribbee islands bv lits exceHencj 

* lord Willoughhy of Farham,'(Sec. we do give* 

* and grant to his said majesty, his heirs and 

* succesBom for erer, and most humbly desire 

* your excellency to accept these our grants : 
' and we do humbly pray your excellency 

* that it may be enacted, and be it enacted, by 

< his excellency lord Willougliby of Farhant' 
' captain general and chief eni^mor of Bar- 

* badoes, and the rest of the Carribbee iaiandi, 

* and by and with the advice and cousent of the 

* council, and gentlemen of the assembly, re-' 
' presentatives of this island, and by tM an- 

* tiiority of the same, that an impost or enstem 

* l)e, from and after the publication hereof, 

* raised upon the native cooNnodities of this 

* island, after the proportion and in m anner 

* and fiirm as above set down, that is to say i 

* u|ion all commodities of the growth or pro- 

* duction of this island, that shall be shipped 

* off the same, shall be paid to our sovetviga 

* lord the king his heirs and successors rar 

* ever, four and a half in specie for every five 
*8core.' 

** And the jurors aforesaid, upon their 
aforesaid, farther say, that a cuatoB 
was established in the said island of Of if " 
and proper officers aptninted tiiiieiB 

«' And the juren afai— ^■' 
afofesaid, fhratrsa-^ 



S55] 

«« And the jurors aforesaid, upon their oatiis 
aforesaid, farther say, thai by an act of assem- 
bly of the island of Nevis, in the West Indies, 
passed in the said island in the year of our 
Lord 1664, entitled, * An Act for settling an 

* impost on tlie commodities of the growth of 

* this island,' it ia, amongst other things, re- 
oited and enacted aa fbltows: 

<< • Wliereaa our late sovcreij§^ lord Charles 
« the 1st, of blessed memory, d^, by his letters 

* patent nnder the great seal of England, grant 
« and convev unto James, earl of Carlisle, and 

< bis heirs ror ever, the propriety of this isUind 

< of Nevis ; and his sacred majeat^ that now is 

* having by pnrchase invested himself in all 

* the rights of the said carl of Carlisle, and in 

< all other rigfhta which any other person may 

< clahn from that patent, or any other, and 
« thereby more immediately hath [having] 

* taken this island and the rest of the Carribbee 

* islands into his royal protection : and his most 

* excellent majesty having, by letters patent 

< under the great seal of Mgland, bearing date 

* the 19th da^ of June, in the 15th year of hie 

* reign, appoinled his excellency Francis, k>rd 

< Willoughby of Parbam, captain general and 

< chief governor of Barbadoes, and the rest of 

< the Carribbee islands, with foil power and 

* aothority to irrant, confirm, and assure to the 

< inhabitantB or the same, and their h«rs for 

* ever, alt lands, tenements, and hereditaments, 

* under his majesty's seal appointed for Barba^- 

< does, and the rest of the Carribbee islands, as, 

* relatinn being thereunto had, may and doth 
' more at large appear. 

«* * And whereas, by virtue of the said earl 
^ of Carlisle's patent, divers governors and 

< agents have been sent over hither with ao- 

< thority to lay out, set, grant, or convey in 

* parcels the land within this island, to such 

* persona as they should think fit, which was 

* by them, in thenr respective tinnes, as much 

< as in tliem lay, accordingly performed. And 
« whereas many have loot their grants, war- 
« rants, or other evidences for their said lands ; 

< and others, by reason of the ignorance of 
« those timea, want sufficient and lawful words 

* to create iehcritanoes in them and their heirs; 

< and otiiers that never recorded thehr grants 

* and warrants ; and others that can make no 

< proof of aay grante or warrants they ever 

< bad for their lands, and yet have been long 

* and quiet possessors of the same, and be- 

* stowed great charv[es thereon. And we do 
« humbly pray your excellency that it might 
' be enacted, and be it enacted, by his exwl- 

* lency Francis, lord Willoughby of Parbam, 

* captain general and chief governor of the 

< islanil of Barbadoes, and the rest of tlie Car- 
« ribbee islands, and by and with the advice and 

* consent of the council and gentlemen of the 

< assembly, representatives of this island, and 
« by the authority of the same, that an impost 

< or custom be. from and after the publication 
« hereof, raised upon the native commodities of 

* tbia isUnd, afVer the pro|>ortion and in manner 

* and form as is hereafter set down and ap- 



&7] 



Campbell 9. HidL 



A. D. 1774. 



[95» 



Bhtaia, oa Ibe third day of March, 1763, uur- 
chised « ccttain plantaiion in the said island 
of Grmada, of the French iohahitants, in pur- 
fuaoee of the said articles of capikulatioo, and 
•f the said treaty of peace, as many other 
BhtUh subjects had then, and since have, done. 

** Aod tlic jurors aforesaid, a|)on their oaths 
Araaaid, farther say, that certain sugars of 
ike phiatilTs, and of the growth and produce 
•f the said island of Grenada, and made from 
4* Ike itiaintifrs said plantation there, sulise- 
faeat to the granting and registering of the 
UkJ letters patent of the SOth of July, 1764, 
■ere exported from thence. And Ithat the 
■onici IB the declaration mentioned to he had 
mi reoeiferi by the defendant to the plaintifTs 
BR, were paid to and received by the said 
WiHiam Hall, in the said island of Grenada, 
IS afciesaiil, as and fur the duly oFl'our and 
a balf per cent, imposed by the said letters 
ptratoi' the 30th of July, 1764, he, the said 
Williaa liall, being then aud there the col- 
keior ol* the said duty, for the use of his ma- 
jcrty. And that the said William Hall hath 
ist paid the same over tu the use of his ma- 
JM^ ; but, on notice ol this action intended to 
he mvght, hmh, by and with the consent of 
bis tjfsty's atlui ney general, kept the same 
■ bia bands, for the purpose of trying the 
^nrttisn arising upon the mcts ; and lor which 
Ibis action is bniusrht. 

** But whether upon the whole matter afore- 
■ii, found by the said jurors, in manner afore- 
Hid, ibi? said impost or custom of four and 
•se hall' per cent, in s|>ecie, fur and upon all 
kai commodities of the growth or produce 
rf ibe said island of Grenada shipped off for 
AssBine, was lawfully imposed or not, the said 
jfltia am altogether isnorani, and pray the ad* 
lise of the Court in the premisses. 

" And if, upon the wliole matter afurcMid, 
lend by the said jurors, in manner aforesaid, 
it Aafl appear to the Court here that the said 
JBpaat or custom of four and a half per cent. 
is ipecie of and upon all dead commodities of 
tW growth or produce of the said island of 
Gienada shipped off from the same, was not 
bvfoUy imposed, then the said jurors, upon 
Ibeir oaiha say, that the said William UaU dkl 
mitttakm and promise, in nunner and form 
M ibe said Alexander Campbell, by his said 
dsdaraiioo, baib declared agaio*4 bim ; and 
ibcy 8»eas the damages of tM said Alexander 
•a that occasion, besides bii cntu and charges 
Isid omt b^ hiio about bis suit in tKi« behalf, 
Is 5/. and tor such c^ts and charges 40j. 

** Bat if, uiKMi the » tio!e ma iter found by 
ibe Mid jurors, it ai^pe'^r to ihe Court here, 
that Uie said impost or coii!orti f^f Vmu and a 
kaf per ceol. in specie of zui opoo all dead 
of the ;;roiiih or cr^nltic? ol tbe 
of Grenada, SMip(*cd off from the 
lawfuil% imposed, then the said 
tbcir'oaiba, say, that the said 
dfal Bol promise and ooderuke 
V mdhtm m in bis pica aUcdgad." 




m 



This came was first argued for the plaintiff 
by Mr. Alleyne, upon tlie above special verdict, 
in Easter term, 1774, in substance nearly to 
the effect following. 

Mr. dikyni^^My lords, if the wishes of go- 
vemment, ur professional rank, could influenco 
the decisions of this tribunal, 1 should now, 
considering the cause, and the dignity of those 
advocalea who support it against me, adopt 
the example of the Roman or^itor, and begin 
witli recommending my client to tbe grace and 
protection of his judges ; but experience bar- 
ing taught me that here the genuine merits of 
a cause are the judicial guide, 1 gladly follo«r 
the practiee of an English court, where the 
laws are heard by their own recommendation ^ 
and rise in humble confidence, of counsel witb 
the nUiotiff, who, through me, aolicils }'Ottr 
lordships' justice in hio behalf. 

This long expected and truly interesting 
cause now comes before the Court upon a spe- 
cial verdict, found at the trial of the general 
issue before your lordship, on an action of 
* indebitatus assumpsit;* nominally, indeed, 
brought for the recovery of an inconsiderabi* 
sum of money ; but substantially, to take tbo 
opinioo of your lordships upon a question of the 
first magnitude. The verdict, when relieved 
from tbe embarrasament of form, reaolvea it- 
self into tbe following case. 

The conquest of the island of Grenada, in 
the West Indies, was one among the mwny 
gk»rious achievemeiita of tbe last war. It wao 
surrendered to the troops of bis Britannic fDa* 
jesty, under general Moocktoa, on tbe 7tb of 
Pebroary, 1769. 

Tbe articles under which it eapitnfaled ac- 
knowledge the inhabitants from thenceforth as 
Brilish subjects ; require them to uke the oath 
of altegianoe, as a redprocal doty resulting 
from their adoption as sucii ; secure to them 
the enjoyment of their religion ; assore ibi-m 
of protection, in tbe same manner as the colo- 
nies receive it ; with whom, by this surrender, 
and tbe cenwquent reception into the privi- 
leges of British sulgeds, they are placed upon 
an equal foot in the possession of the common 
libertT ; and permit them to dispose of their 
own lands, provided it be to Britirii subjects. 

On the general traaty of peace, signed at 
Pteis, Fcbroary the lOtb, 1763, this island was 
ceded by bis Christian nMJesty, in full right, 
to tbe crown of England, under stipulations 
similar to those on which tbe province of Ca- 
nada waa ceded ; and in general confirmatory 
of the articles of capitoUtion. And in this 
irsaty his majesty engages, in tbe roost ample 
manner, for the' free exerdse of tbe Koman 
Catholic religion ; aud giv«s hi« French sub- 
jects liberty to sell their goods and retire. 

On tbe 7 th of October foUowinir hi« majestyp 
to make gof^d, in the fullest manriir, tiiow; en- 
gagements, upon the faith of which iIm isUnd 
bad surrendered, and to p«rf«ir« at tbe same 
liose tbe oonditioos of tbe treaty of pf a', e, bod 
fanhcr^ with » view to tbe better pesplin; and 

8 



S59] 



15 GEORGE IIL The Que of the Island qfGrenadi 



caltiffttingf of bis said island, was pleased to 
issue his royal proclamation, inviting nis Britiiib 
subjects to colonize in his new acqnired domi- 
nions, and, as an encouragement, assuring 
them and the inhabitants in general already 
there, of the benefit of the English laws and 
constitution : and, for that purpose, declares to 
this efiect; reciting that it will greatl;^ con- 
tribute to the speedF settling of his said new 
gOTfrnments, tnat his loving subjects should 
be informed of his paternal care tor the secu- 
rity of those in their liberties and properties 
who were or should become inhabitants there- 
of ; and farther, for the effectuating of such 
intent, ** We have thought fit to publish and 
declare by this our proclamation, that we 
have, in our letters patent under our great 
seal of Great Britain, by which the said go- 
vernments are constituted, given express power 
and direction to our governors of our said co- 
lonies respectively, that so soon as the state 
and circumstances of the said colonies will 
admit, they shall, with the advice and con- 
sent of the members of pur council, summon 
and call general assemblies within the said 
governments respectively, in such manner 
and form as in those colonies and provinces 
in America which are under our immediate 
government'* 

Having thus declared his resolution to exe- 
cute the engagement in their favour by this 
first step, as early as possible, of calling as- 
semblies as in the colonies and provinces in 
America, under his particular protection, and 
his inclination and desire to manifest his pater- 
nal care of his subjects ; he proceeds to shew 
the extent and justness of the accomplishment 
of his design, by a full and particular declara- 
tion of the nature, powers and design of these 
assemblies when called, by adding : *< and we 
have also given power to the said governors, 
with the consent of our said councils and the 
representatives of the people so to be sum- 
moned as aforesaid, to make, constitute and 
appoint laws, statutes and ordinances, for the 
public peace, welfare and good government of 
our said colonies, and of the people and inha- 
bitants tliereof, as near as may be agreeable to 
the lawsof Enghmd.** Here tfien they saw the 
full idea of their becoming British subjects 
(which they became at the surrender) by this 
clear and perfect image of the beauty, order, 
and freedom of the British constitution, im- 
parted to them, and declared to be the model 
and foundation of their own. ' 

But as it might happen that this benefit, 
thus pledged and confirmed to them, could not 
be immediately communicated in its full ex- 
tent ; his majesty provides thos ; ** in the mean 
time, and until such assemblies can be called, 
all persons inhabiting, or resorting to, our said 
colonies, may confide in our royal protection, 
for the enjoyment of the benefit of the laws of 
our realm of England.*' So that the enjoy- 
ment of these laws was to anticipate even the 
calling of the assemblies $ which was not to be 
a eoanaencemtat jpf Ihur frtedooy nor of their 



[9B0 

exercise of the ri|^ts of Britisb sokgecta, nor 
of their participation in the British comtitu- 
tion; but one act, most important and illus- 
trious indeed, of that freedom, those rights, 
and that constitution already in their poi* 
session. 

And it is material to conaider what is the firrt 
step which the governor is to take upon his ar- 
rival in the island, for the purpose before ex- 
pressed, of giving the inhabitants the benefit of 
the laws of England. It follows iromediatelyy 
'* We have given power under our great seal to 
our governors of our said colonies respectively, 
to erect and constitute, with the advice of our 
said councils respectively, courts of judicature, 
and public justice within our said colonies, for 
the hearing and determining all causes, as well 
criminal and civil, according to law and equity | 
and as near as may be agreeable to the laws of 
EngUnd." 

Here then the laws of liberty and of Eng- 
land are enthroned in the island as soon as ever 
the delegate of the executive powers arrives 
there, and he is sent to give them efled 
amongst tliose who were already entitled to 
them as British subjects, and both in criminal 
and civil causes, both in strict law and liberal 
equity ; in the whole, and in the great mem- 
bers and distinguishing distributions, both in 
the objects and the manner of spplying them, 
the laws of our constitution, the laws of Eng- 
land are to prevail, and, as near as may be con- 
sistent witli local circumstances, are to bo en- 
joyed as the general privilege of British sub- 
jects, there as bere. 

Conformably to these repeated acts, and in 
prosecution of the same intention, on the S6lh 
of March 1764, a second proclaoMtion was in- 
sued ; having the same object, the establishment 
of the colonies, and declaring the same views 
already wisely adopted, and firmly engaged as 
to the means of attaining and perpetuating that 
establishment ; and reciting the great Mnefit 
which will arise to the commerce of the king- 
dom, and to his majesty's subjects in general, 
from a speedy settlement of the new acquired 
islands, of which this of Grenada is named the 
first. It gives directions for the survey of thn 
lands, the distribution into districts and parisbeiy 
analogous to the English divisions, the cultuin 
of the various produce of the country, the ap- 
portionment of the ground into due lots Ibr thnt 
purpose ; and in general recognizes the inhabi- 
tants as his majesty's loving subjects, and pro* 
vides such means as were judged expedient for 
their necessary support and defence, their in- 
temal order, plenty and happiness, previous to 
the completion of tbese by the ei\)oyment of tho 
laws of England, which, as they bad in righ^ 
they were to have speedily in possession. 

In further prosecution of this design OD'IIm 
9th of April 1764, his majesty was pleased io 
grant his royal letters patent to general Mel- 
ville, constituting him captain-general and go- 
vernor of the new islands, Grenada, the Orean- 
dines, Dominica, St. Vincent, and Tobago. 

Thii patent is set forth verbatim in tho rt^ 



Campbell v. Hall. 



» 10 uke KDi] BilmLoiiler (be oaths of allpsi- 
uw kod sunivroiicy ; ^reii outliority to tlie 
fiWBOT, and rwjuires anJ oomniinds liiiu to 
munoti an amemtily, <lMcril>es the manlier of 
teliMi by the freehoUers, and Iha9 called 

a>rs loiit ur«pre»eniatiT«i; and (0);Hher 
lh« |[«*mior and euuntil lo be the l^ia- 
hnMoflbecDutilfv, and lo make laws aa Dear 
n poMiUe to tlie [■»i of England, nilh the 
Mual (iTOviuoa lliat ihey shall be roid if nol 
a ft aw M l by hia Rinjetly within a limited lime; 
m4 Iiarc4ty ii Aoatly egUblishnl in Grenada a 
I— ililiilioo. JD priocipk and form, in the de- 
rifn of the wbule, in tbe dUpoaiuon of the 
pana, in Iheir reapeclite runclions and joint 
MMMioa*, on exact epilomc of (be Briliah 
Mm oT goTemmenl : yrt a conatilxlioa nol 
pNn by Iba paleiil, but uiily lu be put in full 

Hitb ibese pov/m bis excellency airifed in 
Grcsada, and innantly took upon bimaetf the 
itoil Jiti alioD nf the ifovernmenl ; and in obe- 
fiwM to hu commitaioii called an assetiihty 
mt opened the scene of legislatioa in tbe 

tin tbe .'0th ofJuly 17U4, poileriorin point 
af dale lo thtte prncruaMlioDB and this patent, 
luaoHjnly by bis letters pnlenl under tbe g-reat 
wal. rrcilin|[ an impnal of four pounds aud a 
ball' (II apecie fur every hundred wei){ht of the 
o^wxlilies of tbe erowth of ihe iatamt uf Bar- 
Ui» n . and of the Leeward Carribliee iilaBda. 
ui.l aail payable lo bis majeily and ilia siicces- 
' rt ; recitinic tbe cession of (he island uf Gre- 
.li, bbJ that it is reasonable and rxpedient 
ii llie hke dultea sbould take place there as 
Iba oallfT suicar islands, iberefore in lieu nf 



A. D. 1774. 



[S6S 



.loutirtbciaidisland to the French, on guoda 

■ ' pmtil and tmpnried. imposes ihe above duty 

! t-itfr sikI ■ balf per ceul. and requires the 

••niMiT and oSicers nf the customs lo raise, 

^ett, a«il receite it to his majesty's use- 

riiaa trltert patent were July registered 

lail publicly onnonnceil by his excellency the 

|*>(n«r in Jan. 1TA5. A rustom-hnuse was 

mmitAt officen appointed tu act ns colleclora 

rf lh» CMloma, ainou)^! whom the defendant 

flaiiiill tliaii li anil II linm iii 1 1 ml ofhisma- 
jan*a M^i>cta, imlucnt by ibe royal promises 
»|nfB*Ml]F inade, resorted to Grenada and 
Wmw pnrdiaaeni of lands therein. Amongat 
•e firat vf whom was Alexunder Campbell, 
praaeol plaiuiifT; whose plonUtions 
, and he wah about to ship off his 
hr islaml of Grenada tu the Lon- 
nhrn he was inlerrnpled by the 
I* paymeni of tbe im- 
■laled ; ihe jury lind he jiaid it, 
B is (be money on which the 
: Ihe verdict concludes ii 
d liates to tlie Court i 
laor Ibe ca»e tbe impoat be 




[Lord ManiJiilJ here reminded Mr. At- 
leyne, ihal he bad oinitleil Ihiit part of tbarer- 
ilict which linds (hat the money is retained In 
tbe bands of (he delendani, by consent of (he 
Attorn ey-Geoernl, in order tu try (he right. I 
only menlioo this, bei/ause o(her wise you could 
nni have had yuur action against a custom 
officer in (his form.] 

And my professional duty now leads me l» 
contend, (hat it was not competent to the crown 
on the 90lh of Jul^ 1764. the day on which 
the patent fur raising (his imposl is daipd, to 
impiiae a periuanenl tax, as this, on the island 
of Grenada — of course that the present sum in 
question was improperly exacted ; (he money 
erroneously paid, or at leut witbuni any legal 
obligation to pay it ; and the plelntifT therefore 
entitled to yourlordship's judgment. 

Aa (bit claim is founded upon a suppositioD 
of royal prerogatiTe, which ought (o Itu trealed 
with deference and respect, it wilt be perhaps 
cunTenient-()iefore 1 make an essay which the 
importance of the point renders an anxious one 
lo me of discharging that duty) to delioe what 
prerogslive is, that 1 may be understood not to 
make any exceptions to it in general ; nor to 
nrgue B(^inst a high and beneficial privilege 
of the crown, and as 1 apprellenil beiieficisl to 
the people in wbnl I conMive to be its true and 
proper sense. The term is too often received 
wilii indignant jealousy by an English iiudi- 
ence from mistaken notions of it, which wera 
formerly entertained, and which have excited 
prejudices surviving, as is common, the par- 
ticular causes which gave them rise. To aiiti- 
cipele any such misapprehensionf, I beg leave 
to offer this definition of prerogative, in which, 
I trust, I shall have your lordship's support : 
Prerogative is that portion of political jiower, 
which (lie conslilution has iotrusieil with the 
crown fiir its Diiii and the publiu honour and 

There are a few facts in this case which lire 
introduc(ory to the direct point in argument, 
and those tberel<>re will merit a particular 

First, the effect of the proclamalion of Ihe 
7th of Oclol>er t7<;3. Tbe substance of it is, 
a recitnl of the benefit naturally mulling lo 
the Urilish empire from a system of coluniza* 
tioD In Grenada ; and in order to invite tbe na- 
tural Bubjrcis of that country, on whom na- 
turally would be Ibe first depeodanci', and by 
whom there was tbe fairest prospect of answer. 
ing Ibis desirable end ; — lo invite them to 
settle there, il repeatedly assures them thai a 
CDOBtiliition aa aoon as possible shall be fonurd 
in exact cuoformily and rcproentalioo of the 
Kiiglish government; whereby all powers of 
slaie Should be duly distributed, and Iwlged in 
hands comjwtent lo execute it lo tbe frmloiii 
of the subject and the security of the infant 



* Pneragaliva eat jua regia bonum el 

quum, in decus ct tutamen rrKoi, t 

bonas el aniiquaa populi liberlatcs, el 
glicaui lp};es«t cunsuctudinea. 



fiSSJ 



15 GEORGE in. The Cate ^ihe ItUmd of Grenada^ [S64 



eolnny, by a full partici|mtiOD of O0r wise tnd 
adaiirable comtatutian. Then follows the pro- 
claroatioD of the S6th of March J 764, pottingf 
the eouDtry in order, and pre|wrin^ the face of 
it t(» rejoice as it were in the laws it was to re- 
ceive : tbeo follows the patent to got emor MeU 
tille, with an imnediate execution of these en- 
f^gemenis^ in part, by directinjf him to con* 
stitute courts of judicature, for the administra- 
tion of the whole internal policy of the country, 
as near as possible to the laws of fingiand ; 
and to call assemblies as soon after as was pos- 
sible, in the very effigies of the English oonsti- 
ttttion, vith the same powers, and to the same 
«nds of public freedom, order and happiness, 
and of uiaiittaining a similitude between the 
parent state and the colony. 

Hovr wise, how politic the measure ! for the 
•rown st tliat time conqueror of Grenade, the 
eld inhabitants subjected to the laws of con- 
quest, it niijrht naturally be presumed that 
British subjects would be jealous of such a 
power, and disinclined to settle where, under 
the circumstances, not only a change of place, 
hut a change of political relation might ensue. 
To remove these suspicions, if any yet re- 
aaained — for his majesty, both by the terms 
voder which his general had received the sur- 
render, and by the stipulations of the treaty of 
peace, had given assurances of better things to 
the old inhriMtants themselves, with whom he 
liad been at war ; and had wisely, and as be- 
came the honour of a king of Great Britain, 
disclaimed to govern in the spirit of conquest 
when he haii sheathed the swonl. — But to gure 
the ftillest satisfaction to the inhabitanU in ge- 
neral, and to those particularly of his own sub- 
jects who should be inclined to settle, the pro- 
clamation declares that all the inhabitants there, 
er who should in future resort thither, should 
have the fnll enjoyment of the laws of Eng- 
land. This construction arises from the true 
meaning of the words, if any words of our 
language admit a definite senne ; it appears 
fiwwarded and enforced t^' the subsequent acts 
just now slated. And the necessary effect of this 
great and solemn inttnnnent is a waiver of the 
rights of conquest, whatever they were betbre. 
"ay the proclamation of 1703, in the most ex- 
plicit terms a recognition is made, of the prac- 
Hcability of governing tbis island of Grenada 
by the laws of England, and a receiving of this 
■ometinnc oonqnest as sn English colony ; and, 
until I hear the contrary, a short argument 
shall evince it. 

A constitution is promised ; but that might 
be a work of time to complete and execute in 
actual operation. In the mean lime however, 
oeiiris of jiidieatore are erected; they shall 
administer justice, and the measure of tbis ju- 
dicial romtuct shall be the laws of England. 
Can this be compatible with any principle of 
conquest ? Can the benefit of the laws of Eng- 
land be esjoyed, without laying aside the go- 
vernment of a conqueror! Certainly not. The 
strong hand of power enforece the lawft of 
arms ; the peaceliil voice of Uw; secures tha 
enjoyment of the rightt of British lubjecti. 



The same observations will bliew that the 
crown held it neither impracticable nor dan- 
gerous to introduce the laws of England* and 
ettaUish freedom in this conquered country. 

From the whole 1 argue, that the inhabitaste 
of Grenada were considered aa a colony an- 
nexed to the crown vOf England, and not to be 
governed by the laws of conquest ; but on a 
plan similar to that which issues firom the cobb- 
mon centre, and pervades the whole lyatem of 
oor American settlements. 

If this be granted, and I see not how it eaii 
be questional, consistently with facts, I then 
conclude by direct and necessary inferenees 
from premisses which I think clear and mieaiH 
trovertible, that every constitutional right of 
the British subject neeeesarily belong to 
them; they were entitled to call upon the 
crown to secure those rights, and were compe- 
tent by every legal means to defend tboaa 
rights. 

Of course the crown could assome no legia* 
lative power over them ; could impose no pef^ 
manent tax ; for taxation at least requires wtt 
act of legislation. These observational wbiek 
would allresnlt, and I should think irreaistiUy, 
from the single proclamation of the 7th of Oio- 
tober 1763, receive additional force from tha 
second proclamation, and from the patent ta 
Mr. Melville, which shew the same opinkm ift 
the royal mind, the same purpose, the saoM 
idea, and repeat the same assurancea to tha 
subject ; and, if it were possible to make thcoi 
clearer or more certain, they would have that 
effect: however, at least they cannot weafcea 
wfcMit was dear and certain betbre ; they woald 
strengthen it, if it bad need of strength. 

From them we get to the exact point of the 
argument, *' Whether the crown, on the 20tk 
of July 1764, possessed a legislative authority 
over the island of Grenada ?" 

The technical learning of Westminster- haN 
can give but little assistance in the investiga- 
tion of this question. The great principles of 
the law of empire must determine it ; to which 
the political history of EngUbd atfords particu- 
lar illustrations. 

This course I shall pursue, and, as I prqpecd, 
shall glean up the learning to be found m tha 
books; from which progress, I trust, 1 shall 
safely draw that conclusion, which fomss the 
ground whereon my client now stands hoping^ 
success, and I trust, not hoping it in vain; 
since 1 hope to prove he has on his behalf the 
most powerful advocate, and most preeailun^ 
in this court, justice and right. 

The principles of the law of empire are 
fbunded in the social nature of man. — As na»* 
tural law is derived 4rom natural coiinectioDS | 
so political law is derived from social eonaee^ 
tions. That considers him as a creature as ha 
came from bis mother^s hand ; this as a mem- 
ber of society paying obedience to the laws af 
his community, and reciprocally deriving pm- 
tectinn fVon them. 

Fron hence arises one inoontestable princi* 

Kle— -so long as he pays due obedience le tha 
tWy so long he if entiued to ita eecurity ; prd^ 




_>CampbeUv. liaU. 

BMiS pltce where ilie*)i«rci«e 

■elicaliie ; iriieiuil lilo imliim 

~ ■ liireign Btnle, tlie iniiulcipal 

^^_ -ii cuUDiiy being uot tb« mea- 

mMip^^^ cnuiluct lliere, |>rulecliuii Tiir 

0e M tiit|icnii«il, ji tnlermila uiilil liii 

If l»« nrtatt to a coitnlry newly acqiiireil b; 
mt, Lkanqtt by biiuwn slale i thvru. il' the 
MWMitj lit lUtaUie rvfjuirra tbaltucli cntio- 
Vj ba irotmird by more ri)[ar<ii>i mcnni, be 
■ol luimit tu tbKTii ; bul it' be reiort to a 
MMly lUKMiereil cnuDlry or coluay ; aixl setlle 
lUra im^ar Uw luapice* of the mollivr stair, 
ibwathsUwi oriiis original country still affbrri 
ibtK firolcdian, di far n* amy be agreeable to 
ihiMalcirciinMlincesuf iliui country to wbicb 
h* hw wtireil ; anil Mill are the measure nl' 
bs civil oobiluct: ibe >!xecutive mtKistrate 
Aill ffaiii* B cvnslilution I'nr bim to secure bis 
Unb-riglii. wilberery atii»enilBgeol' hisBacienl 



A. D. m*. 



[SCO 



TM* ntc w Brily Itillows from ibe priociple 1 
fifM rr«ir°**^!~""' il is lordly neceasary 10 
MMM lo ma aulhorily where reasun ia so clear ; 
jet, I am b«i>py to refer to Ibe illuilrious 
■BBS of Vailell, and fond of lhi» occasion of 
iBHrtiaiMOK It nilh dewrved Teneration, arid [ 
itft u i* c««uud, tf I ioilutge Lbe plessure of 
•muag biiD, with Bome rsnity periiapt, ivben 
I liBJmy nalHin* i^fraccil by his autburily. la 
i I0b«««. B. 1. Yoiir lordship will find bim 
' ,tnmmt[ biniself in thfie tvnrds, >■ When a 
:i^ii lakn pntsrsKiun of a distant country 
1 1 U4lk* a cnliuiy there, tbat eciuntry. 
' "ititb acparaled Iroin (lie principal eatablisb- 
--(it or mnlU'r coiiulry, nBtiirally beoiiues 
fiaX of the sinic, equally with ita ancient 
J —I isiiim Wliriieter llit>relare tbe polili- 
id Uw«, or trentirii, make no diitiDClioD 
U*««» them, rirtry ibiiif; snld of the ter- 
avry uf a oatiun uiigbl bIbo to extend to its 

U ihmfcre the political laws areco-exlen< 
■sa«)ibibB leriilor^nflbe slate, buwever dii' 
iriaad m Sf«cv, aa this excellent anihor decides 
tiy an. Hies every MmslilntianBl right of the 
N^satt of llial «(au> is cu-eMenBive with il« 
tvfiliiry ; the funilainenljil .laws of the stale 
weCfMlly SB, and personal liberty and private 
y m *H J alike uni*en>Klly protected. 

TUa n«r««Brily r<.ll<iv*g IVom his general 
pailiasi ; liM, tliaui^b I illnstme my ar^n- 
■iHlky tb» ifuutaiiun. 1 da not vhelier myself 
miu aay IkireiKn auttiurity t oor merely iiDiler 
■■baviiy <•( whaleier growth : I anpeal to tbe 
bubs of rvBsun. llmt a cbaD|;e nl pince can 
■star merrly as such nuerate a foriciture of 
wipmt Metal riiibiB. Truv, a* I bate befnre 
mi, H may timn iitnri ■.i.iienrl ilir- enjuymeni 




Let iisnaw, la close tbis part of the argu- 
ment, hear lbe leifal suihoriliet nf our own 
country. We shall And tbe ([eneral learDinf 
of tVeiiiniiiBter<hall miocide nitli tbie tlirory. 

In Blankard and Guldy. aSalk.4i1, lonl 
Holt, chief justice (says llie reporter,] and lbe 
nhule court wilb him, held lliiis : 

1st, It) case of an uniuhubited coDatry 
newly found out by Enelish sulijecls ; all laws 
in force in England ore in force there. 

8d, JnmBica being cnni tiered, and not 

fdeuded to be parcel of tbe kingdom of Eog. 
and i the laws of Englaud did mil take place 
there, until declared so by lbe «ouquerar oc bit 



Tbe lirst |ioint ekpreialy maintaius lite prepo- 
sition of Vattelt, and his inijegty has |iui Gre- 
nada in express lerma uimn the same fiioting; 
with " tbe other colooieaj" therefore all the 
laws of EngliLnd (ao tar as is aiireeBble lo that 
island) are in force t lie re. 

But further ai a cooquer«d counirv, the 
conqueror has declared that lbe iuhanilaola 
of Grenada sh.ll enjoy the laws and cimstitlt- 
lion of Euglanil, which biiiiga il within the 

Aereeuble In tbis is h hat is rrporied by Ifi* 
RiBBierDrihemtlsina P. W. TS, ofadetermU 
nation before llic Ling in council, upon ao ap- 
ueal frota the forci);ii plaotatiana, that iftber* 
he a new and uninhabited country fnuiid out bj 
Enjflish Bubjeels, as lbe law is lbe blrili-righl 
of every aubject, so wherever ihey i;o they 
carry their law* tvitli Ihem ; and Iherefore 
such new furtned country is lu be goverocil by 
the laws nf England, then in being wlieo thej 
first sen led. 

As tn lbe second point, it goes Id be sure on 
too large a gruuml, in supposing cnnqiiesi giiea 
a prufietly to the conqueror iu lbe people coO' 

This principle is liken up by .Mr. Justice 
BlacksloueinhisCominrnliU'ies.wbuallnwsthe 
doctrine, and lbe exceptions lo it which ha 
niabes in i^oeral are such as result from the 
inconTeiiieneei which wuuM tall on the cutoay, 
from a general adopliuu of the laws of the 

Every day's experience before tbe council 
warrants this principle : tbe laws of descent 
•nd nf all real properly are current in Ireland, 
and iu every plantation ; in every part of the 
empire. By what law ? By none posilive 
there ; but as a oecessBry miiseqneaDe of ihe 
Guaniry heiiiir a pan of the Briliiib empire. 

If ihis Ik ho, what was the sittiBtinii of Mr. 
Campliell and his countrymen nt and prior lo 
the 30lh of Joly 17(1*? Tbej were Bntiih 
nib|eetB; they wore aeit led in n new acqnisi- 
lion : the laws of En|j;1and were practicable 
amoi)G:al ihf^m ; no peculiar circiiinstances of 
policy required tbe suBpension of ibeui. His 
inajeaiy, ilie sHprtme eteoutive ma^'lsirste of 
Ihe slale, nompeUnl li decide nn the propriety 
of inlrodiicini; the Ibwi of En{{1and inio Gre- 
nada, ba^deolared Such propriety ; has intro^ 
duccd thetii. Then, by ueccMory c«aiMiu«Dce, 



S67] 



15 GEORGE ill. The Case of the Island of Grenada^ [268 



tbey were entitled to them ; they wanted no 
other act to ffi?e it to them ; and Mr. Alelville 
was only to hasten in the performance of this 
duty, tu pat their constitution in act, and se- 
cure their rig^hts. 

■ By what mode of reasoniniB^ then am I to 
learn that his majesty had at this time a legis- 
lative authority o?er the island of Grenada? 
To make temporary regfulations on a sudden 
UDtil all was finished, was the extent of his 
prerogative ; to impose a permanent tax was, 
as I submit, illegal. 

This argument, foonded on the evidence of 
facts, anticipates, 1 tliiok, every objection that 
the patent to Mr. Melville was executory. It 
is agaiost the words, against the spirit, agaiost 
the great end of the proclamations to suppose 
it was. The Court will not give such a nar- 
row and forced construction to a public grant,* 
founded on the most liberal and wisest princi- 
ples of policy, and upon which numbers of 
British subjects have fixed their settlement, in 
confidence of all the rights of freedom in a 
country so remote; a construction ill adapted 
to its terms, to its plain scope, and to the ma- 
nifest reason of the thing, if it had been a fprant 
not to a nation at large, not to British subjects, 
to Englishmen, invit^ to settle for the eocrease 
of commerce, but to a single private individual 
under any circumstances. Will the Court in- 
tend that it was the design of the crown that 
British subjects. Englishmen, should be called 
to cross the Atlantic by tlie royal voice itself 
under such assurances, and when they arrive 
find their hopes dependant on a future discre- 
tionary possiMe grant ? It is sufiicient for me 
to say, by the patent, and by the proclamation 
of the Sdlh of October, nay, bv the verj^ terras 
of surrender and the general treaty of peace, 
the inhabitants are recognized as British sub- 
jects: the laws of England are recognized as 
practicable and beneficial to the island, those 
who were there and those who should allerwards 
resort there are promised the enjoyment of 
them. From that admission, this mutual con- 
tract, and these acts of the crown, 1 draw my 
argument, and thence derive the rights of the 
colony to the full benefit of the English laws 
and constitution. 

And now, my lords, from the consideration 
of the case in the general view of political 
theory, and from such authority as eminent 
writers and the decisions of our courts of law 
fornish more directly to the point, I proceed to 
the review of the history of this country ; and 
I trust, that the account I shall give your lord- 
ship of our several acquisitions by conquest or 
colonization (in which latter conquest with us, 
as with antient Rome, hath always terminatetl) 
will abundantly prove the antiquity and uni- 
formity of my general argument. 

* It seems that in public grants, the rule of 
the civil law holds, which says—** Beneficium 
impcratoris quiLm plenissiro^ interpreuri debe- 
mpa," thoogn our law adopts the OQiitrary in 
private grautt. 



I have spared no pains to infomi myself of 
the history of these transactions ; and, after a 
tliligent research through the writings of Dr. 
Leiand in his history of Ireland ; of sir Joha 
Davies in his discoveries, and the case of Ta- 
nistr^ in bis reports; of Dr. Harris in his Hi- 
bemia ; and of Mr. Molyneux in bis contest 
with Mr. Carey ; and lastly of the noble his- 
torian of the age of H. 3 ; I trust I am war- 
ranted in the principal facts and conclosioM I 
have to offer concerning the history of the ac- 
quisition of Ireland. 

1 shall not refer to the books by pages, ex- 
cept that in sir John Davies's reports, I would 
wish particularly to submit to your lordship's 
notice the d7th page B. 

Ireland, when Henry 3 first ascended the 
throne of this kingdom, (1154) was divided into 
many small states, and was subject to all thoae 
evils and convulsions which distract aavage, 
unpolicied, and divided, countries. 

bermot king of Leinster, being driven from 
the throne by his rebellious subjects, solicited 
the assistance of H. S, who, covering his am- 
bition under the supposed sanction of the papal 
autlioritv,* and taking the conquest of Ireland 
to be a desirable object, readily permitted cer- 
tain of his subjects, with earl Strongbow at 
their head, to land in Ireland, and to engage in 
the enterfirize on behalf of Dermot 

Tbe stipulations were— in case of victofy 
Dermot was to be restored ; and in return a 
grant of lands was to be made to the English 
subjects. 

The event was prosperous ; the terms on th* 
part of Dermot were fulfilled. 

King Henry went over, and extending tbo 
conquest became possessed of a great part of 
the south-east of Ireland. 

The natives whom he subdued he ruled 
with the rod of empire, communicating, as ho 
thought fit, certain privileges, and withholding 
others ; and making, as he judged necsessarj, 
certain regulations : but those of his siitgects 
whom he found settled there, he recognized as 
such ; of tliese he demands tbe perTormance of 
the feodal services ; nnd, as a necessary conse- 
quence uf their being subject to the obligations 
of those laws of England which were in fores 
at their becoming a colony, the laws of Eng- 
land diflused their protectiou over the colonists ; 
and he proceeds to sixiire the benefits of those 
laws by perfecting their constitution, and form* 
ing their government with every appendage of 
English |)olicy. We see biro dividing tho 
country into counties, establishing sheriff^ 
erectinsf courts of judicature, corporations and 
general assemblies. 

This account surely furnishes an antieoi 

* From Pope Adrian the 4th, whose nanno 
before his accession to the see was Nicholas 
Breakspear, and he himself was an Eiigiiab- 
roan. The' letter authorizing II. 2 to conqocr 
Ireland, and bring it to the obedience of Ht. 
Peter, is a very curious one ; it is dated 1 154t 
and may be seen in lovd Lyttelton's history. 





CampbfU V. Hall. 
iaBUnce tu my general atgu- 

itlawKOTEDglotiil arc romninnicateil M 
_^_ •iftllie oomiuerrtl iiMiveii liut result 
■ ike Engluh ColimialA on ■ iiecHSmry couse- 

rM;" lUii poipl i( RiDst eliburntely lUicnsseil 
l>r. UI>D<(, >lML<l«t by -iir J'lho Du*iei in 
ir ; and •doptcil in Ihe manner I alale it 
i Hale, Willi remarks tbat the cnlonits uf 
naiM, iilatiled iu cunquered Rauoirie», 
1 the Itomao law ; anil Inkei it a» ul' 
r, not a««i^^■nt( any reasiin tur it or ex- 
'' ; llie reason ite'mg initee^l 

i of the Ihintf. But lie 
Ipia large explanilluni how cDii<|iiernl cuun- 
irin ■■■; have Ui«ir la»a clian^eil. 

1 uniu tlie s'eat aiilliority ot Iniil Hale ilnes 

Mt ■rem Id agree willi me on llie wlinle in lhi« 

Mcvtinl III' the eslalilishment of the English 

la* iH IrtUnit, in the book jntt qiioieii ; anil I 

am aware too lliat this nccaunl i:< materinlly 

MercDi rmm wtial lunl Cake lays iluwn in his 

111 luliiiiie* 141, b. and in Caltin'a case 7 

Ota. at if lliey were PaUbliBhed by kini,' Jubn, 

lui hia aoD ilenry ;), and, I'urlher, Here lint 

<hr eBra nf rolonivalion. 

Tha*irikini;tliderpnreeiig«i;ei] metolrare 

.' •object minniely ; anil la ihe learned 

■ -I'fra whom I have l'>llowe<l, hnd accet* in 

-. ircbi*es of the city o( Dublin, and kpent 

I irh lime in oery means of inlomijIiaD, 1 

^r la r«llnw ihein, aa luy leaders, in a pulnt 

'!i:tHKy which they had made itiesuhji'ci of 

-II particular atlcniiou, rather than tlie ^reat 

Tiie ttibaeqiteiit liiilory is as fulliiws— and 
-I, b^ t.UliDg^,Bbew bow lord Coke fell into 
>■ moulie ; tbr tuch with delercnce I must 
ari ii ; aud such the taclB, I think, prnte it lo 

1>« ban om. 9, bcin;; ton much negtecled 
i^ ibe intercourse lieiween the English eo- 
ktj attil tUe native Irish, iho Utter obKlinately 
b^ frf thai lend ciHlom, ns it is valle<J, 
fcBichoci law. nr which there is much aaiil 
e (4^ Taniatry already cited : and this 
rtititit icround in the Engtish eelabliili. 
'" "" ' .1 necessary in tUff reign of 
a prDcl-tmatiDn, cnmmandioK 
: of Ihe laws ol' England to 
ibjrcta ; and king John hiuiself 
r t« Ireland to infnrce obedieni-e lu 
And king H. Ihe 3d, hix tnn, speaking 
•f ka* faib«- aa havini; '■ ordiiiied and coin- 
is lord Coke Uket it, hot I think 
iMeally with history ■' settled and 
d Iba ofaaervance*' of ihe laws of Eiig- 
Imd, (thick bad been already eslablished. The 
laur dl>4 by loni Coke,* front whence in^ 
ihi m )|aMal, sayi king John reduced them 
^twnung.snd at tbe Jnatanceof the Irish. 
Idrtni natural to aduiil this, wilhont iiiji- 
-vM *Mber that kinij John was the original 
^Ddnof titovr laws in Ireland, or that ihey 
•«« MB Ant ibcrx in GuniiefiuFnce of coloniza' 
' K. Tbatv waa *rry little stalulc law at thai 
k; ami ilmiglit be thaujfhl aiUisable by 




A. D. im. Cfipfl 

the ■dminislralioo here nt that time M divert 
ommon law of England into writing, the 
heller to atuid confonuding it with the Brehun 
law ; and probably at ihe request not only of 
the English coloniats, but uf the wiser and 
f moderale part of ihe Irish who had per- 
nl its excellence. But however fond kiag 
John or his son roiglil lie, lo suppose, that king 
John himself was the founder of these laws, 
(though I think it dues not appear that either 
have asserted so innob] ihere is no grounj 
from facts lo deny this honour lo king Henry 
llie seconri ; but, I think, abundant to the con- 
trary ; and at Ihe same lime I think there is ihe 
atroDgest evidence from facts and reason, not 
without support from the express declaraiiun of 
great autboritie*, lo prove that Ihey were ori- 
ginally introduced not by conquesl, but aa 
ighiB attendant on British subjects settlings 
here as a colooy. 

What it staled to have hMo dune by king 
John, atiil is taken by lord Coke as llie iwluU 
geni act of that king, commuDicaling the 
of England to Ihe Irish, I take il was no 
! than a proclamation enforcing obedience 
lo the laws already established ; a prerogative 
'"-e crnwn may exercise this day at London. 

Indeed the seltlement which he restored wa< 
fnrllier improved under king John's reign, auit 

ilarged in point of territory. 

The same policy prevailed in the subsequent 
reigns, and weflodking Edwsrd the tirsl sum- 
moning members 10 the British parliament in 
the third year of bin reign, for the purpoae of 
taxing the colony. We tSnd wrila returnable 
into this court, the Aula Regis, and in every 
instance limilar protection and latvs to lh« 
English and Irish Bubjecls. 

No instance more similar lo the present case 
of Grenada can be cnoceived : and, surely, the 
IMlitius of a crown infinitely more ardent to ex- 
ttiiid its prerogative Ihnn the presenl liiues will 
alluw,shall not surpass, in alfording proteclion 
to Ihe subjects, the laws of this day. 

The next instance we Rnd iu our political 
history is that of Wales: from it I shall derive 
strong argument in support of my general pro- 
|ioailion : and in this 1 am yet farther satisQed 
that 1 proceed upon solid ground, as 1 fiud Ihe 
result of my enquiries to iiuadrale with Ihe 
opinion of the Court, delitered in the case of 
Ihe king aud Cowle. 

King Edward Ibe first laid claim to Wales, 
as bis leodal principality. The priuce refusing 
tu acknnwlodge bim, he treated him aa hia ^ 
rebellions vassal, reduccil the country by arms, 
caused the prince lo be punished as a irsilor, 
and took upon himself the immediate soie- 

He subjects them by arms; but, whaterer 
was the real right, bavin v subdued them, ha 
recognizes Ihein as his iu1>je«Ii (he could not, 
indeed, do olherwiie upon ibe principle which 
he professed, of reclaiming Wales as a feoila- 
lory Slate, and declaring it, as he dm-i in the 
13lh yfar of his reign, lo have been bel'ura 
subject to hint of feudal right); ' - 



S71] 



15 GF,ORG£ III. The Case qfthe Island of Grenada^ [278 



eatm to tbeni the Uvrs of Eogland, and takes 
every measure to secure to them the benefit of 
the enjoyment of those laws. 

The hintnry iiself of those times (many va- 
luable collections of which are to he found in 
Kymer's Fesdera) proves his conduct towards 
Wales not to have been as iu ri^ht of a ecu • 
queror indulj^eotly benefiting his subjects, but 
as the act of the feodat sovereign, and at the 
same time supreme executive magistrate of 
Ibis country, securing to his subjects tliat pro- 
tection which was their due, in return for their 
feodal homage and services, and securing it 
by a communication of the laws and consti- 
Uition of England, Gonsi<iering Wales as 
ipndcr the general comprehension of the Bri- 
tish empire. 

Pursuing his magnanimous design, of 
uniting all the adjacent countries to the realm 
of England, he next turned bis thoughts to 
Scotland : and the history of the town of Ber- 
vick, 80 fully developed by your lordship in 
the case already cited, warrants the like obser- 
^▼ation as on Wales. He claimed Scotland ex- 
'presaly as sovereign lord of the iief, and go- 
verned it as a part of the great general fief, 
the British empire. 

The reign of Edward the third next fur- 
aishes matter of a similar nature ; and the 
ever memorable treaty of Bretigny gave that 
prince an opportunity of extending his empire 
upon principles whidi hail animated and di^ 
rected his fore -runners. 

1 have not been less assiduous in examining 
the springs of his government over these coiu- 
tries which were thus ceded to him. 

I have pursued this enquiry chiefly thrnngfb 
Rymcr's Foedera, in which are preserveil all the 
stale papers from the treaty of Bretigny, re- 
specting the conduct of king Edward towards 
his dominions scquired from the crown of 
France; and from them it appears most 
strikingly how uniform he was in following 
those principles of government, which had 
been pursued by his predecessors Henry the 
SCeoDil and Edward the first. 

Permit me, however, in ibis place, to men- 
tion the sources from vhende 1 extract the 
t»i«iory f am about to give. Besides Hymer, 
O^E^res Jouruals ; Notitia Pariiamentarii, Co. 
4 lust- title Calais, ilie year book, 20 U. 6, 1 
R. 3, and Rot Pari. 50 'E. S. 

Asa preliminary observation, I would beg 
of your lordship to remember, that by much 
t|ie greater part of the couoUry, thus ceded to 
l^iog Edwsnl, was dsimal By hiss under a very 
4«ff^reBt title from that of an appendage to the 
crown of England. 

So much as he claimed as in foreign right, 
this be erected in|o a principality, and ooaferred 
it upon his illuslrious son Edward the black 
prince, by the title of prince of Aquitaine. I'o 
this, which was much the graater part, he 
communicated a isonatitution totally diffisrent in 
forvi end pdneiple from tbe English gnvem* 
menl, allowing unboundsd powers af sovereign* 
tjr t9 bis ipiii ami wck m.Uisl English nadon 



could not have borne : but as these countries 
were c'aimed by the king, as duke of Noi^ 
mandy, heir to tne house of Anjou, and lo the 
crown of France, through his mother,* this 
nation did not concern itself what powers he 
assumed, with regard to the countries wbieh 
he did nut hold or claim to hold as part of tlie 
realm of England ; as the feodal sovereign of 
those he acted agreeably to their laws, and to 
the flowers wliicli they allowed their prince ; 
the subjects of this country had uo right to 
interfere. 

But wiih regard to Calais the case was dif- 
ferent: Calais he had conquered as king of 
England ; and, having turned the former in* 
habitants out of their possession, be invites his 
own subjects of England to colonize therein. 

Herein we find every principle of lair 
adopted ; the inhabitants participating in every 
security the English constitution afibrds : writs 
of error returnable into this court ; members 
representing the people of Calais in the Eng- 
lish parliament. 

How striking is this distinciion ! Over coun- 
tries obtained by conquest, and claimed by a 
diflferent title from that of king of England, he 
exercises an authority according lo the title he 
claimed, very different from the authority of a 
king of England : over the countries acquired to 
the crown of England, and inhabited by English 
subjects, be claims to himself no utbt-r power 
than the lawful prerogative of a king of Eng- 
land. 

This lively distinction, first adopted by H« 
9, and continued by H. 3, at this time prevails 
between any American plantation and the elec- 
torate of Hanover. T» the furiner all preroga- 
tive writs will run, as to the counties palatine 
of Chester and Durham ; over the latter what 
power has your lordship, the great seal, or the 
|)arliament? 

The history of this country, then, as to the 
political government of the lands ceded by the 
treaty of Bretigny, joined with the last obser- 
vation res|iecting Hanover, furnishes additional 
iiroof to those of Ireland, Wales, and Scot- 
land, already mentioned, and encrejises the 
weight of evidence from the experience of the 
nation corroborating this argument in a series 
of ages. 

Hitherto, my lord, I have endeavoured to pe- 
netrate pretty far ^o the ancient history of 
En(rland,to wbksh ffi nature of the question di- 
rected me, as it depends on the law of empire, 
evidenced by historical facts ; and as uo evi- 
deucc of this occurred to me so pro|ier and 
unexceptionable on this oocabion as the history 
of our nation, in which I purjiose to advance a 
step farther yet : tind here a modern edifice 
presents itKcIf to view, murh worthy of obser- 
vatk>o, not only for the beauty and order of its 

* Who was sister to Charies le Beau, and 
upon Edward's construction of the Salique law, 
as excluding females, hut not the descendants eT 
femsles, be wss entitled by descent thr 
his SMlher Isabel to the crown of Franoe. 



Campita «. ;/»». 



A. D. 1774. 



[27* 



>, mi the RtiRlDE; of it 
nujoflic fsbrie ol' our own aoclei 
hot iMrticulacI; ujiod 



■ Oirae (o the 
It constitution, 
nnn ; becaune 
FsrifctK an «xiininntion of it trill 
(Mirilmte moch, iri am not Jeceived, to a clear 
AMranienl of (liemmli'irilie preaent Cbqbc: 
OcgbiMt (o which I atn alluding is the Ame- 



re totally 

Utrent from nliat i? meant by llie same 
wida wlim apiilird lo Bnnlanil, the JurainioD 
rflhe Kn»a. The Americans have been cou- 
"ifcrnil *» a penple of a itiffeTent |>olilica1 !i[ie- 
dn rmcn fW Eu^li«h ; an<l have been calteil 
malsrea of tlie hing. Their rights have been 
Mid (■ baTc been derifeit from their cliuripi-s ; 
•od H ia pruluble the misapprehension of this 
(•nicitlar has produced this*ery cause. Since 
it IS the tnt in which the principles of colony 
Iwr bate been integtigTiieil, it is my duty to 
NMe Iboae priDoiplea tery minutely, ami en- 
tatwM lo rescue them from ni' 



Tu 4o ihia I n 



t beg leate tu draw your 
one great leading con- 
»)•) principle. The crnno by ita prc- 
'^;«m may execute any plan whereby the 
b»» wf tbe country mny be prumulgated ,or 
—c . luicated or tecured to the 



t only may, bnt it is a 
InMh of Ihe cxecntlre trust. 

pMnded on this principle, Ihe right of i*- 
•SH^; pfiidamstiuns, of incur poratine bodies 
•■"Oic, fflr the purposes of municipal jiiriidlC' 
' J, neciinit tribunals, and constiiulhig-coun- 

1 palatine, may strike your laidshijia ; and 
•-uinlj, UD ihli principle, Ihe Ainerican con- 
MaUuiM hate been tetlled. 

There ia not a single clause in any charter 
HkA oan itnpugn ihia idea ; bui etery part of 
Ihn bold* out Ihe most conclusive etideiice of 
Mr hmofc legvl acis of (irero^atite, for ihe 
WKfrnm Dt wcnrin^ conaiiiuiiiinst ri);hls lo our 
tahwmfajeeuintlistanlpartsor the empire. 

n* diarten do not define richla, nor esia- 
Uhk tarn, nor gite any other direcliona than 
— ilj for the formal estalliahment of an in- 
knm\ l«|[i«lature and tfuveroment. 

Why, ibcD. shall il he argiiol that Ihe rights 
•T liie ndooiea are emanatiuns of Ihe royal 
hwnly? Nol a aiogle constitutiMinl riKhlia 
piDMd by charier; andyeleTfryconslitutionat 
dfbl ■■ B4(ftiii«d to be the birth-right of the 
AOMvieaiM. Tbe idea of the contrary is ion 
fcitolaaa to be arracd in this place ; and jwr- 
kapa lay c«nteQ<iiiig against it was therefore 



bi gcnrral I coocluile, and propose it ai a 
pW coDMiHtttDDal truth, that (he American 
Aartera aail paleitti are accommodated to pro- 
■SM Ibe aMmuT rjghia of tbe colnnisls, and 
sat u cwnrey ll)u>e rights, as dependent on 
" " ♦», and drn*ati*« from them. 
rMoica in America, il i« wHI honnn, 
r a Ihivafold description ; firal, pi'o- 
-^ — f n i:*i:aiis>lTaiiii> aad Mary 



lani); aeconil, charter goternments, oi the 
Massachosers hay ; third, provincial ealabliiih- 
menls, as Carolina and most olUera. In ori- 
ginnl principle the government is in nil the 
same, though somewhat different in exlemal 

The first sort nay bs assimilated to coun- 
ties jialaiiue, the second lo muoicipal corpora- 
tions, the ihird sort are a speclrs by theintclves, 
as 10 their external conalitnlion ; nil, however, 
flnw from Ihe principle I stateil ; all u:nd to 
secure lo the Biihjecl the eDJoymenl of the 
laws of Ensland ; all, in the very nattire of 
their estahlishinents, shew that the rights of 
the culonim (;re inherent and innate, uot deii- 
fative, or communicated bv charter. 

But here I expect I shall be told that the 
clearest a rif omen t uosaiblc will rebut me. The 
objection, if it shall be made, has ilie sound of 
something material, and therefore, rather than 
to be thought either to have overlooked it, or 
to hare leaml ii more than I can persuade my- 
self I ought, I will now oficr to meet it. 

It is certain thotin the early charters grant- 
ed to America tbe king re«erTes to himself nn 
appeal to him in council, in the Inst resort; 
and frnra hence the ultimate judicature haa 
been usually understood to be in the king per- 
sonally, anil not as in right of the crown of 
England, nor through bia courts, as to Brilith 
subjects. From tins circumstance, I suppose, 
it will he contended that the king is sovereign 
uf America, not as king of England, but per- 
sonally ; and ihe colonies are nut governeit hy 
taws like Ireland, Wales, and Berwick, derived 
to the inhabilanls In consequencs of their being 
subjects of Ihe British empire; hut are like 
to Jersey and Guerosey, which belong to ihe 
king, and not to the crown. Uence the ar- 
gument would be, that all the colonies of Ame- 
rica are dependent on the king, not as bead of 
the general coustUiition, but la ■ very diAerent 
relation, and my general principle would ba 
EDO eh a fleeted. 

To obviate all Ibis, I need only desire it la 
be remembered tbnt such a circumstance can- 
not alter cnnstitulional law, or the priodplfa of 
the law of empire ; not even if it stood clear 
and unimpeaoliMl by that which I coni^eiTs 
will most completely reprobate it, the extreme 
art with which it was introduced into Ibe 
charters, aud the pretajliog [Htlicy uf Ihe limea 
when it waafiral conceived; I mean ibepolicy 
ofkiog James the first. 

The first charter was granted In tbe Vir- 
ginian advenlurera, in which this reservation 
does unt appear. In nil ihe other chartvrs it 
certainly does; andihisis»wing, I apprehend, 
to ibe extreme anxiety of Jainea, wliose fa- 
vourite idea it was, from tlie Brat moment in 
whieb he ascended the Ihmne, lo consider every 
part of tlie British empire, not immediately 
within Ihe Bctual limits nf England in respect 
of local rituation, ao holden of biinielf. and nut 
a* coiuponeot meinliers of otie great enipire, at 
Ihe head of which he stood as Novereigo, in 
light of tbe crown uf England, therein directly 



B75J 



15 GEORGE III. The Coie of the Island of Grenada— [S76 



invertinijf the priociples and practice of H. 8', 
E<l. 1, £tl. 3, and other princes, bis prede- 
cesKors. 

To prove this there we many remarkahle 
passag^es in the history of those tinies. The 
iirst is mentioned by lord Vaughan, as being 
communicated to him by the f^at Mr. Selden. 

Kinf( James asked Mr. Selden, whether Ire- 
land {mi that time, as your lordships know, the 
subject of much political speculatbn) might not 
be considered as belonging to him personally, 
as the heir of the conqueror thereof; that the 
lauds therein might be taken to be his own, 
and the Irish themselves as subjugated to the 
laws of conquest, and of course not entitled to 
the rights of Englishmen, nor to be considered 
as mennbers of the same community, but de> 
pendent on his will, and beliolden to his in- 
dulgence? 

filr. Selden's opinioD will be mentioned by- 
and-by: it is not reported in Vaughan, but 
that learned judge himself there decides 
against the king ; ** That it cannot be reasona- 
ble to make the superiority only of the king 
and not of the crown of England." In the 
case of process into Wales my lord Vaughan 
uses this expression ; and adds, the practice 
has always been accordingly, as, says he, is 
familiarly known by reversal or affirmance of 
judgments given in the King's -bench in Ireland 
m the King's bench here ; which, he con- 
tinues, is enough to prove the law to be so ia 
other subordinate dommions. 

And in the case of Craw and Ramsay, it is 
decided that Ireland and the plantations are 
holden of the crown as the sovereign of the 
British empire ; and the like distinction which 
I took before between Anjou and Calais is made 
by the lord chief justice. The same case is 
reported io Ventrts. 

But, to return to kin^ James : another re- 
markable anecdote of his notions of govern- 
ment, to the same point, is to be found in the 
Journals of the House of Commons. It occurs 
ID many places, but particularly in the Journal 
oftheS5th of April 1621. 

A bill was brought into parliament for the 
liberty of a free fishery on the banks of Ame- 
rica, at that time in general called Newfound- 
iand. 

Government seemed extremely unwilling to 
sufler parliament to meddle. Says Mr. Secre- 
tary— I take it from the Journals—" What 
ha? e we to do with America ? They are planta- 
tions ; they belong to the king.'' But good 
old sir Edward Coke, Mr. Selden, Mr. Brooke, 
and other great men, reply indignantly. What ! 
when the king grants letters patent to them 
under the great seal, arc they not part of the 
empire, and shall not we intrrfere ? 

These observations shew the prevailing 
policy of those times. And are we, then, to 
wonder that the right of ultimate judicature 
shoohl be claimed by the king, and that he 
should artfully introduce into charters a reser- 
vation of it. A reservation indeed superfluous, 
if there bad been such a right ia the king per- 



sonally ; and of no effect, if there was no such 
right ; for then the reservation could not create 
it, contrary to the princi files of the constitu- 
tion. ' Heservatio, ut et protestatio, non facit 
<ju8sed tuetur/ We see what Mr. Selden, 
what the parliament at that time thought of it; 
what lord Vaughan afterwards ; what the prac- 
tice of some of the greatest antecedent kings ; 
what the doctrine of the books ; what the ex- 
perience of nations; what the testimony of 
ages ; what reason itself speaks ; all concur* 
ring that all the parts of the British empire are 
under one constitution, and have all the rights 
and immunities which result from that consti- 
tution. The intri^es, therefore, of king 
James must not weigh against natural reason, 
political theory, legal auuiority, and the prin- 
ciples of the constitution. * Nemini licet quod 
* non per leges licet.' The gentlemen who 
first went to the American settlements, in ages 
when the principles of political theory were 
scarcely known to the most refined, might not 
foresee the tendency of, and therefore might 
unwittingly submit to, this claim of king James. 
But on any consideration, knowingly or nn- 
knowingly, they could make no concession to 
the prejudice not only of their own constitution^ 
but withitof oura. 

If ever that question, of the relevancy of a 
writ of error from any settlement of the western 
world, shall come iuto litigation in this coart, 
and it should fall to my lot to argue it, I hope 1 
shall then know my duty, and what to say 
upon it I hope I shall prove that the juris* 
diction of the king in council, as the ultimate 
judicature, is unconstitutional and void ; but if 
the experience of a century and a half shall 
be then held to outweigh arguments founded ia 
principle, your lordships will say, ** The expe* 
rience supports though the principle denies it,'* 
and will take care that neither iheu nor now it 
shall be carried farther, and argue from a peca- 
liar judicial authority, upon whatever ground, 
supported however by precedent if supported, 
to a legislative authority supported by no pre- 
cedents ; and, i beg leave to submit, not war- 
ranted by the principles of the constitution. 
To meet, however, the conclusion which might 
be attempted to be drawn from this claim of 
ultimate judicature in council, I have been 
drawn insensibly into this length of discus- 
sion — The occasion must l>e my apology. 

I return now to conclude with the immediate 
point before the Court. And in this, on what- 
ever ground I consider this cause, whether in 
the general view of reason and experience, tba 
opinion of eminent writers of foreign nations ; 
the learning of our books; the principles of the 
law of empire ; the history and experience of 
this country for ages ; \i ht-ther as to this par- 
ticular islaud of GrcnaUft, on the terms ot^be 
surrender, the treaty of pt>ace, or more especi- 
ally the proclamations and patenU; whethar 
on thegnpat principles of our constitution, or 
the principles of natural justice and equity ; 
on all, on any, on every ground I draw tnia 
condustODf that on the 30th of July, 1764, bit 





CampheU f. HaU. 

*«• »ae cotitlEd, by Ihe prero- 
n uf Eugland, to impute llie 
■ liatf per cent, in inanner 
I in the decUralion, ailmitted 
> pica, anJ tiiuiid liy ihe *er- 
h bdag an acl of IrgnlalioD, and re- 
it 10 Ihe nrinciplea nl' tiial pjTernmcni to 
li tUe inb*trilaiiu or iliat islaad vtm ai 
ime entitled, aud wbicb heloozed parti- 
Mlariy tu Mr. CampttFll, llie plaintiff, a nalii- 
ni bnrn «ul>i«et of llie crown at Grral Britain, 
bead *» and dticlared by Ibe verdict, and was 
hi by nerj rigbt, secured to biin by every 

AdJ while 1 have ibas ciatended for, and, 1 
In^, eaiahtiiiliwl my ulient'» interest, I further 
tria lliat Ibis Eeneral revien. of oof coi 
tiMi.aatlprihcliiitary uf ourroiinlry, en 
bj Ihe riecixiun of Ihis court, will n-arra 
m Myli>e "^ Britatn what tbe Itoman 
.1— of Rome: ■ AIi>b natit 

Ml; pnpali [tumuDi propria libertas.' 
"^lip, Ota. 

for the dEfendant.— Tlie ques- 

•pecial verdict is, whether the I m- 

n of lour and a half upon the ex- 

kland, in the luanner found by ttie 

was, noder the circumsTiinces in which 

Wand thmatuod, at the nine of the impost, 

iDtl legally imposed by the crown, or 

Mr, Alley na not hniio^ f^one intotbe dispute 
Jlbcauthorily and pieroualive of the crown 
ti any lime to niake procUuiatioDR, but exa- 
■raioit ■!>« natare of this, and contending' that, 
■teUtver mi^hl be the atate of the liland before 
feN period, it wai iocoinpeleiit to the king 
^^ thai time to give any laws whatever to 
4r aUifl of Grenada, (for if any, there ii no 
<>«bt of lasalioo) this has relieved me from 
hjM)r brfore your lordihipa the righu of a 
W( of ihia country over a cuuquered country. 

What ilt'ne righti are is a principle nnl only 
if lb* law of natioiia, hut has been recDgiiized 
vtatcvrr it came under consideration, even by 
tkc joilii«> of ihia country ; by acts of slate, 
•n4 biBiiDriao* ; and, in one great inttance, de- 
fiari by all the judges. In Calvin's cnse it is 
rnaifalxed that the rights of conquest do be- 
)<«K t" 'ti* ('■"K- *"'' t''^ rights of con- 
^otal arr in titat casu extended farther than I 
»i>h they sliuuld be iioderslood ; but thus 
much, 1 like II, they neceuarily give, a legis- 
liL:!!' authiHily. It is ool now as formerly, 

"" !:ain oiptives and •la*ei, 

..."II, but now the conqueror 

>ii, under due reslrictinns. 

■■ ■.'■■< .•.'• hfl acquires subjects. Not 
> ^i^riTij. '> 111 i^'hmIs, but an authority, as 
■'a BMO, (uaMMiftbie and still IVre. 

Tbt «Ai^ of ib« l«Uen patent is not to alter 
ik* <ifliMnm of Ibe iaiasd : it is only (n raise 
iTlaiB 4utir« laiavd tbera by Ibe French king, 
•lAataA lo iba kin)^ of Enfflsnil by the island 
•I Baibajoea mai iba other Lesward iilaDds ; 
*a dw w^ tbn^; u, ihu ii dune July, ItM, 



fSTS 






Lord Munififld. It vtat oiler the proclai 
matiun nnd l^Dmr^i«sian ; fur, I Ihink, the pfrti 
claination was in UcUiber, l;G3; llie cnmmis- 
sioi) in Ajiril, 1764 } aud this is iu July : ao it 
is after Uith. 

Mr. Wallace continued— The patent is r, 
ritd not by the governor. At the time lie take* 
upon him ihe office of garenior he promuiges 
ibis lax : hi* tirst uffice as governor is lu p 
mulge it. Now the question is, whether tha 
liiniCi bylhis]iroclaiiiaii<m. niGnnt immediBiely 
In waive llie ri|/hls he had as conqueror of the 
island, or nt a lulurc perioil, when Ihe flute r— * 
circumstances uf Ihe iiland would admit o 
legislature: when that would be was very i 
cerlaia. In fact, it does not appear that tb« 
tirst assembly met earlier than Ihe latter end 
of Ihe year 1763, (about a year and a half 
from the date uf llie letters paieni) nor does 
the rerdicl find that nn asstiuhly could hav* 
met sooner. 

The proclamation begins with a general di- 
rection lo his majnty's four governments, hy ' 
nameofauebec. Enst Fbrida. West Florida, 
and Grenada. Then the assvmhiy of Greuada, 
as 10 that part of the pniclamaliiin upon wbicU 
this case turns, is to meet " as soon ns the Nlata 
of the island will admit," 
ible Ihut in tilt! mean while ihff 
king meant to divest bimself of his right of 
tegislalinof There is no such denlaraiion; ills 
' nposiible there can be such a constructtun. 
If the king hnd not coiilinued a right of 
laking laws before the period of their having 
legislature of ibeir owu, who was the legis- 
lator i* Here is no relinquishmeni on ibe part 
of the crown in the mean while ; but when ua 
assembly meels, the crown, will bnud orcr iha 
iwers of legislation to that assembly. 
It is necessary in these disiinci countries lo 
provide legislative constitutions within them- 
' when circumsiances will aduiit; ihey 

be govemeil by ordinances 'iir acts of 
ent made fur all cases and inslances 
whatever. The best judges wbal laws ara 
nrcestary and proper for the peave, tranquJU 
lily, and gnoil order of the island, are the jiep. 
sons locally resident ( thereliire it is necessary 
some legislature uf this kind should be exta- 
■" ' A: hot till II be, of necessity, every order 
king must be observed by the governor 
aud ihe jieuple. 

But Mr. Alleyne has said the king hns wairei) 
the right of iwioquesi. by inlroducmg court* of 
Judicature ; ami that it is a part nl the benefit 
uf Ihe ihtroduclioDoflhe laws of England, ihnt 
all the laws of the country not agreeable lit 
these ninsi he abro^aleil. 

It IS ool nsual in these times in lake con- 
quered natiuns under protection njmn Iheis 
terms: and as U is unusual, su I Hnd, iu ihtf 
opinion of Grntius, it would lathvv l>r hnrsW' 
anil rigorous than indulgent. Yuur lordship) 
vrill teinemhti that be sayfe it la iwnal to auttti 



279J 



15 GEOBGE IlL The Case of the Island of Grenada-^ [880 



the ID habitants of a country conquered to pos- 
sess their own laws, unless they are abaoluiely 
necessary to be abrogated, for the security of 
the conquering state. And similar is the opi- 
Dio« of Puffendorff. 

Would it be for the security of the conquer- 
ing Slate to introduce so dangerous, so total, so 
unnecessary a change; to alter the whole 
course of their law of property, by introducing 
the law of England to theuo, a peculiar Uw of 
descent, differing from all other ; intricate and 
complex modes of eoufcyance; a new foreign 
unknown law ; its ?ery language unknown to 
them ; by which those rights which have been 
the subject of contract roust be devested; 
owners under a fair title dispossessed of their 
^tates; settlements in consideration of mar- 
riage overthrown, for want of the forms eaaen- 
tially required in our law. 

I conceive nothing more can be meant than 
that civil and criminal justice according to the 
laws of England were to be introduced, for the 
punishment of public offences, and the redress 
of private wrongs ; and as far as might be for 
the prevention of both, in which the mode of 
trial, of conviction, and the whole legal pro- 
cess, is the common benefit to all. ' Lex An- 
glia) est lex misericordiss.' 

The lenity and excellence of our criminal 
laws is known throughout the world: mora 
bad been burthensome ; these wera expedient 
and necessary. 

Mr. AUeyue has compared the situation of 
this country with the other dependencies of 
the crown, particularly with Irdand. 

It is true my lord Coke held an idea of the 
laws of Ireland being established there by an 
Irish parliament ; but in this he was singular ; 
nor do I think the idea of their having been 
established there through the medium of an 
English colony is Less uncommon, or promises 
more success. 

In Calvin's case, before the chancellor, and 
all the judges, the case of Ireland is put as one 
of the conquered countries, and tlie title of 
Henry tlie second was accordingly king of 
England, and lord of Ireland, 4cc. cfistinguisb- 
ing between the title by right of conquest and 
his title as king of England. And king John 
irave them laws as a conqueror, and not by act 
of parliament, and this plainly appears in Ven- 
tris, in the case cited by Mr. Alleyne, where it 
is expressly laid down, on the authority of three 
of the judges, that Ireland was a conquered 
country, and in king Henry's time remained 
governed by its own laws, and so continued till 
his successor, king John, in the ISth year of 
his reign, by charier, and not by act of^^parlia* 
ment, introduced the English laws. 

But, if your lordship had found that eren by 
act of parliament the laws of England had been 
introduced into Ireland, would the least in- 
ference have followed tliat the king alone, by 
his legislative authority over a conquered coun* 
trvy could not have introduced iheio, or otberii 
iflie had seen expedient P 
IiTeitber Wales nor Berwick-mpMi-Tireed do^ 



as I conceive, apply to the preeent qneatioo. 
They were not pretended to be holden in right 
of conquest, but as immediate fieA under the 
crown of England, on the terow of the same 
feodtfl protection and obedience by which Eng- 
land itself was then held, and as roemben re- 
united to the entire original fief; for that waa 
the claim, whatever was the fkct. Nothing 
like this can be dreamed concerning Grenada; 
no dependence on England or Great-Britain 
till the late conquest And by all the diflTereuoe 
between what is claimed as a re- union an4 
what can only be claimed as a new acquisition, 
by right of arms, the cases difier. 
■ Indeed, not relying on this, it has been 
thought necessary to endeavour a comparison 
between the case of thil island of Grenada an4 
the American colonies, of which, in general, 
the rise is known to have been from new dia- 
coveries of uninhabited countries, in which tha 
discoverers were encouraged to settle by cbartar 
from the crown. No pretence of conquests 
thev could not live without laws ; they couU 
find no laws in an uninhabited country ; what 
laws shouki they have then, but the lawa of 
England ? 

But is this the case of a country already set- 
tled, where they find a people and laws? Will 
the laws of England expel those laws ahneady 
established, fitted to the cireurostances of tnn 
place, known and familiar to the inhabitanta, m 
pass themselves into a country where fhey will 
beatrangers, and for which they are not locally 
adapted? 

Is it possible that British subjects, coming 
into a country where there are other lawii 
should carry the British laws with them tbU 
ther, and not be governed by the laws of thn 
country to which they are gone ? Can it bn 
supposed of a British subject going to Han- 
over, for instance ? 

As to the cireumstance of an appeal to thn 
king in council, as I do not think it neceosarj 
to lay any particular stress upon it, it maj 
suffice to say, when the crown granted tlin 
charters under which the settlements were 
made, it was competent to the crown to pre- 
scribe the mode of appeal, which, in some rona 
or other, by the royal prerogative, and for tbn 
benefit of tne subject, necessarily lay in all thn 
variety of disputes concerning the rights of thn 
colonies. Narrowly as prerogative has been 
kM>ked into, never has this branch been qnnn- 
tioned, as not legal and constitutional. 

When a writ of error shall be brought ha« 
fore this Court, to reverse a judgment given in 
the colonies, or a re- hearing moved, or, bj 
what name shall I call it, to examine in thia 
court a decree in council, then will be the pro- 
per time for this question ; but I believe that 
time will never arrive. They will look lo that 
jurisdiction as they always have done: thejr 
will find that redress which never vet has ' " 



them. It would be a oonsiderabie aoquisitian 
tQ the business of this court if your lordship 
were to sit here to exercise that appellant jnria* 
diction ufon wnt of error finm the ptotntnm^ 




Campbell v. Hall. 

r fnrm ; for llie practice is nn- 

|VB U Mir tMoba as murli u the theory ivas 

■e lill ibii dair, in whirh lo raucli iDgenuil; 

ntgnintal hiii been emplnyeri lo raise it. 

•I kfli« I mmol belp aWrvint;. that it ii 

t diMige in llie tanging of Ameriu to 

!■ Ihr* h«*e iloiie. rdiI iIo, iliil llie |uir- 

A of Entland has no riplit to titx tnem, 

, il tbcy den** their coniiitutioa IVmn the 

bsoiiljr ; aod now to uy, in this oanse, tlint 
M> nng li*i no poner orer tbein hut as the 
^ai >t ihe Briliili c«nsliturion. 

Bat is lhi« caie, if the klu^ by conqaest bad 
Ihfirilaiiie authnritv over UrenittU lill the ds- 
■Bakly ounVI b« calleil, he hns waited it. It 
koMMiJ be has parteil wiili i(, (Ibrhnw could 
it, ■h«n there was nobody to lake it) but he 
tat wajved the ri|;ht. 

1 ««D, fay wliat I (.-an unJersiand of the 
tatki, I have no idea of the possibiliiy of ihe 
enim'a inii*iD)t a ri|{hl. It must be more or 
miImk ; il miist be iraniil'erreil lo snmehody 
fhc. Of ii remaioi In Ihe crnuii; for in Ihe 
tntm there is nn luchei, no DF{i[li|t'ent abandon- 
■vni, feant of all in »uch « point as this, so ei- 
-si«l to order and good goYemmtM. 
But, not rxoeptini! lo the mere temi. at nhat 
[I J, lo whnai f Tn tbeaMt^mblv, if (o any 
L-v; 1 f K that is Ihe condition nf the eranl, 
IM, when ihe stale and circumataiM'es of the 
iimt Uiall ailmit ihe cathnf; ol' aii asiembly, 
Ibrahall be called, and fb all meet and mate 
*"" ' wbicll te|(i«lati 



milted to them by the c 



aad 






ri);hl of taKin^ tltcm by hii rale 

•^i^aii'e 'ilhoHl an aMeniMy. B«l this 

dr ably diil not meet till after (be patent In 

^ — __ ._ . - -jgiu^iiiiBinififflit; they were, 

the impost ; and il wt.% esla- 

y Ui* pra|wr and only aulhuriiy then 

|! before the iMembly did, or 

I littit. ibrrefon, the Coart «ill think, from 

ftiDnplai of reann and justice, thai the 

^liMaitnn fur calhog an aatembly was, boih 

' F wiwda and iniml of it, and in the ne- 

7 of ihelhin^, enecatiiry ; ihal Ihe duly 

_._ ._ ■ ^ jijji pj, j^j,) „.,j not eseculory, 

lie, and liy leeal autburiiy, by lir- 

r lli« paleul. And that it could not be 

that Uir nUinfc of the assembly, under 

ihority and by IheTolonury eram of ihe 

I. abonld dehsl the doty first lefrally ini- 

*- - -* - ame auibority, and lliercfore tliat 

« nut rntilbsi). 

H to be won- 

; I ■bouU ^are expressed myself 

Mit (o I centinly must, since I 

» much miwuidcrBtoad by Mr. 

■ I the ahnle tenor of whose artpiment 

' ilat*d lo meet a <iippa«ed idea of 

Uoaof En^and were introduced 

k anielv by llie prodamallon of 

"~ t Dy no mcuu tbe object of 





A. D. 177«n 

I ODUlended that the ))ro:lai 
cngnitioo of the rif{hl of the i: 
Grenada, as British nubjecu, to be CDVerued 
by Ihe laws sod conslilutian of Eiii;lanil ; of 
the praclicsbDity of rcdticina that ng^H !• 
practice, and the retolutioii ot hrin^iug in all 
its parts into actual eKeivlioti ii sunn as pom- 
ble : tlierefore I cited the case of Ireland, and 
iipuQ auihorilies. I hope, of more weigbl at 
this day, Ihao Calvin's case : and I did infer 
that British subjects, settling in a conaueied 
country, conquered by Ibe arms of a king of 
Gieat Britain, carried with them iheir owd 
tana and pririU^es ; and that the moment tbe 
crown rece^nizea a colony of British suhjecta 
to have been settled, from that instant ii en- 
gages its aulliiirily for securing to tbeui all the 
rights and exemptions belotigingiothat cbarao' 
ler. And I thought 1 bad proved that ibe 
practice of tbe crown had been conformable to 
this principle. 

But, to meet Mr. Wallace upon bis own 
Crounil, who asked, supposing Ibe crown en- 
titled to exercise taxation over Ihe inhabitants 
of Grenada, who were there, or should resort 
thither, indiicriinioBtely, by tighX of cowjuesi, 
how the cruwn had parted with this right, 1 
ackuowleilge not properly waiveil il ? I an> 
swer, let us suppose for a moment that, ante- 
rior to the proclamation, llie cruwn. is con- 
qiieroi', had a power to raise a permanent las 
un Ihe then and future iohabilanla uf Grenada ; 
and had (be xiila nccitgue poleitai, the legisla- 
tive authority in the fullest tense, when the 
crown declares ibey sbsll have a Icgialattoii of 
their OM-n, and in Ibe mean while be governed 
by tbe laws at' England, I contend from that 
(iioraeDl the king bad parted with Ibe right, 
supposing be hxd that right till ihen of impoi- 
■Dg upon them himself, by bis sole aulboriiy, a 
permanent lax. And 1 contend that the pa- 
lent to gnvernor Alelville repealed and enforced 
the grant, taking it as Huch for ibe present, in 
the most solemn manner. 

In vain would it be argued thai these grants 
«f ihe laws of England were execuiory, and 
therefore might be suspended : proclamaliocB 
and patents such as iheie are not of soch a 
flimsy nature, lo be susjieDded, that ia, fir- 
tuallv repealed, to be granted lo-day, and re- 
■umed lo-niorrow. And if this cinnnt be de- 
nied, then Ihe English laws were the laws of 
Grenada, either by prior right, or, as I have 
been willing to argue, since Mr. Wallace haa 
laid io much stress upon Ihe executory natura 
of ihe pnwlamatinn, by actual immeiliale grant. 
And there iH no one priadple of Enghth lair 
more decidedly clear than that the crown ean- 
nol. by its sole prerogalive, enact a law. 

It win next argued, that principle* of equity 
require this duty to be imputed : because il la 
recited in the patent of Ibe SOIb of July that 
the Leeward Carribhet: ialsodx pay it. 

To this there is finil one (general ami eoarlu- 
aite answer — whatever equity, wisilom, or ex- 
pedience there may be in ibe mcuura, it must 
be eMcalcd by legal neani. The propriety of 



983] 



15 GEOBGE lU. The Cate o/the Ulando/GrenaJa— [SM 



th« olgect nn never, in a legal *iev, uoclif^' 
the meaiu taken. ' Nil cuiquam expcdit qnod 
■ DOD per lege* lioel. Nil utile ant lioneitum 
*qnMl tepboa contimrium.' But a pailiciilar 
UMwer ii likewise ready. 

The lint place in whicfa ttiit UZ wat erei 
tlioii([bt of waa the island of Birbadota ; bul 
there it was not inpoaed under claim of prero- 
gative, bat hy a national act of Ibeir own in ■ 
lemal legislature : and it waa a grant for ipe- 
dal purposes esprewed, of buildiug theii 
priKM, tbeir courts of jiMtic«, tbeir fortreasM, 
•od lusBping ibem Air (be fnttire in repair. And 
fartfaer, in conaide ration of the onfirmation of 
tbiir tidea which had been leat, or were become 
obacnre in eooaaqueoee of the confoaion of the 
iaiaiid during the troubles of the preceding reigu 
of Charles Uie first. 

1 moal be particnlar in slating Ibis. The 
iirti srant ofBarbadoea was to the earl ofCar- 
lislnTrom Charte* the 6r«t: he dirided the 
lands by aabinfeadation amongst raiioua pur- 
chasers. 

During the troubles lord Carlisle abandoned 
4h* island; the protector, Cromwell, took pos- 
MHioD, and made aeTcral grants of different 
pari* of it i on the realoratino the king made a 
new grant to lord Wiltougbby of Parbam. 
In conKquenceofthesasereral changes of pro- 
perty, and the tiolenl and sudden rerolntion of 
■Hairs >in the island, mncU confusion aroae. 
Tbe creditors of lord Carlide anerled their 
claim; the grantees of Cromwell held by very 
uncertain claims ; and lord Carlisle's creditors 
aneeeedinp would necessarily hare defeated Ihe 
f[nntees of lord Willou(;hby. To settle these 
dispute* the crown agreed to purchase the 
whole ; and for tbe purpose of raising a fond to 
discharge lord Carlisle's debts, and the other 
purposes already mentioned, this duty was 
granted by ihe assembly of Barbadoes. 

Your lordship will find tbeiie particular* in 
the act set forth on the record, but more fully 
in lord Clarendon's answer to tlie seventh arti- 
cle of his impeachment, which is in the con- 
tinnation of his history, lately Dubliahed. 

I dare aay Mr. Wallace will find the princi- 
ples of equity not Terr cogent on Granada, in a 
comparison with BaiMdoea in this particular. 

As to Nevis, Alontserrat, and Antig-ua, with 
the English part of St. Chriatopber'a, the ssme 
obserrationa, iu great measure, will occur. 
The grants of four and a half per ccnL in these 
iaianus were likewise on S|ieaal purpoaes, and 

A* to tbe part of tiU Christopher's conquered 
from the French, and ceded by the traaty i^ 
llticcht, tbe very same claim was made in the 
reign of queen Anne, aaanted by an act of 
privy conncil, and exemplified under the great 
■aal, the same which is now made upon Gre- 
nada, of imposing this duty by prerogative. 
Tbe Mt waa withdrawn ; the duty never eol- 
lected ; the people warmly opposed ^ admi- 
^smtiaa yielded, atHl oonaenled to take it by 
ad of aaaamU J ; « circunutanM inorediUe, if 
Ikej hid Dgt ben oMnDood Ihu tlw ncMun 



was unwsrrsnted by law, and the opposiliaa 
jnsl. And when Ihe duty was finally granted 
to the orown it waa nut only by aasemUy, bnl 
under terms. 

So much, Ibercfore, fbr an argument bnill 
on the principles of equity, comparing Ibe im- 
position of llii* duty by act of prerontiTe ia 
Grenada with tbe same duty in tbe otoer Lee- 
ward islands, by act of their own assemblies. 

Mr. Wallace observed the duty waa iKb 
posed in 1703. 

Lord Manifield said it could not vary tbia 
question an iota : that the cause was put on ill 
proper footing ; tiial he took it as admitted th« 
duty was laid on in 1703, and added, it waa 
raited long before tbe act, which ws* in 1737. 

Mr. I^atiare said the whole duty in IhattiiM 
amounted lu but iot. Hr. Alleyne obaencd 
on this that M. raised in 94 yenra waa « 
Strang argument that hardly any planter, M 
least any coneidcrsbte planter, bad aubmilltd 
to pay. 

Mr. All^e continued. — But farther, u 
to equality, beaides the reasun* given, commM 
observation will shew in wliat manner Ibea* 
new settlement* in tbe inland have been made. 
Large interest on loans payable yearly out ef 
their estates. So far from additional bnrtlMa, 
it might have been hoped from governDCnt 
that Ihey would have assisted ibis inftn) 
colony, alwaya much below tbe other setlt^ 
mcnls when in the hand* of its former posses 
Bors ; and now, if this impost should prevail, 
miserably below indeed. 

Bul, not to want an argument, which can- 
not readily baitpen tn the ingenuity^ of Iha 
learned coonsci who sapports the defendanfa 
cause, ir it be true that the proclsmaiioa !■ 
words appeara fiilly either a conveyance nr 
recognition of all the righta of Britialt aulgeein 
to the inhabitant* who were in Grenada, «v 
should resort thither ; and that the iiland ii 
not under circumstances which should make k 
consLruction to aup|iort the impost faioorable ia 
equity, independent of higher conslilerationa 
still against such a construciion ; yel Mr. Wal- 
lace argues that it must mean tliia, that lber« 
should be such an impost ; because if there in 
not, the enjoyment of tile laws of England ia 
secured to the inhabitants, which will be an 
unwise and cruel construclian. I believe Hr. 
Wallace is the first politician who ever tbou^t 
that waiving the claim of conquest, and in~ ~ 
to Ibe conquered the blessing* of a free g 
meni, was cruel. And how would ii nav* 
aitonithed Ihe wisdom of imperial Rome ts 
bear that it was unwise ! 

Nor doour own writersomltloadmirelhep^ 
licy nt' king Edward the third, in planting a etb 
lony in Cafai*, and of course communicating (s 
that place the wi*e and beneficial law* of En|f» 
land, to firm asupport of public order ; su pro- 
ductive of security and happiness to every indU 
viduil living under them. 

I have the aathorit* of the great and ezcd- 
Itot air UaUbaw Hale, affirming thii to hav* 



Campbell V. Hall. 

fectn btv pncliee in liia other conquests, as I 
We ktready utMerrecl, both in ScotUnil anil 
WaiB«, BBil ipiilauiljn); it highly. At least this 
■k^iun may be rc«erve<J tiH Ihe inbtbltaols ol' 
GimimU l^iak this benclit k burthen, tind com- 

Kat it » Kucb. Mr. Campbell, certainly, 
b MTt, tItHw unt fMmplHiD, fur he comes to 
din ine beDelil of thote laws, as bis ilearesi 
Ivtb-riftbl: anil il will bo siuffular if it ihall 
bppen lh«l Boy eloquence sliall persuaile any 
Miiilnat vf GretiBila ttiat il is a reproach to 
th C40(|itere4 to jiartike e(|iially in those laws 
iD<l conttitution nhich are ibe glory anil hap- 
(lacnof ihecooqueron, and the admiration of 
nsabiiid ; the English Inws : and il' Ibey 
(liwiM rattier cbiiose lu sink again iota the 
,>.,. ..t .. |.eo|>!e under Ibe hioJ of conquest 
tlini equal liberty Hhich abohshea 
.li^tinciiuns betwiuMi llie cotiquernrs 
^■■il. 
, . ^. , ;h iiliircruelty, boweter, which Mr. 
tlTaltacc »ii(rg%9ts ia llits ; estates buve lieen 
tttiti, coniracls mode, and things dune wiih 
atit« lotbcregulalioni of the law Iben pre. 
WBH. toaller ibis by the proclamation would 
hutm muil dinppoioi tbe parties, and aiiaul 

Slathing can be more fallacious ttion this ; 
fair at any lime poalerior to the proclauialinn 
^ tleeO, conlracl, setlietui-nl, or any olher 
Mm of law had been brought into litigation, 
tat appeared to have been tranncted in con- 
ftnmy lu liie French law*, previous to Ibe 
Baclamalioii, and while tbe laws ol France 
"K yd in tbe island, thune laws would bare 
"U aii»]ile<l, and tbe iuatrumenl would bavc 
' i its iaietided effect according lo iliem ; and 
~ Uw of Euf land would have lakeu iiolice of 
"•v.aa it does of all foreign laws, where con- 
''^'•ttr* Dkode nuder ilie authority of those 
IT]; rxactly a> in cases which fiace hap- 
-vi ID Chancery and in Ibis court. — All 
■veanliie cunlracis haie Ibis eH'ccl ; and so it 
isollMred, ■■ a settled rule of Uw, iu the case 
ri Pwawatril and Oediie. The line, therefore, 
is ■sIlLiiiitlj brood, and, at Ibe same time «uf- 
Umly clear and dcfliied : from ibe pruclnma- 
Wt Um Engliib Khali prevail as to all subse- 

CUwiMCiiana 1 tdl the proclamation the 

Dot iM Birpporl of his general proposition, 
MMonutiK the nalore of Ibe rights ot a cou- 
«nd people. Mr. Wallace bos cited two 
MtioiM ■am**, (Grotius and TulTeudorA') 
BMaa wbicli I aholl ever menliou with the 
PMlaot rcfarFnec. Yet I have ever wisbeil lo 
Ufaefnrai tbeseulimeiitaof writers who bate 
Mmoaukd prvjudicv), and reasoned bbeially, 
Mt 4«*Mni« iiiyMrIf to Ibe greuteit name with 
MOAlitDttJ atlacb'iwnt. (ircat and extensive 
■ Uwir groia: iheir leamliig, tbeir apphcalion 
wm. It n >rtl Lnowii in Ihosc who lire conver- 
■wis lb*>rwriliiig>, that they have adopted in 
MM. ploers ilic iiusiuvr constiln lions of tbe 
l^pfMl kw. a* BbiiraGt gtiicral Iriilhs of iia- 
■awi better iD i<in*i 4>laccs their rcasnoing is 
jWjMh|yui ffloB li ed fetibiE lUiverHJity of 



A. D. 177*. 



[SSfl 



the subject, and in many liable to exceptions. 
Far be il from rue, howeier. to speak irre*e- 
renlly of them ; Ibey have broken the grnuod. 
(hougli tliey discovered not all the treasures of 
the soil ; and though tbey migbl in some in- 
stances be mistaken in the true quality of the 
soil itself! And to their great lalioors the re- 
finement of public law is originally owing. 

Willi respect to the instances of prerogalira 
intended to have been adduced to justify this, 1 
find only one mentioned, which, surely, caoDOt 
be supposed to support it by tbe comparison ; 
the sriiure of Ibo Massacbuset's cliarter in 
1Q83, in tbe reign of James ibe second. No 
man will wonder at the violence ; tbe imprison- 
menl of Ibe bishops ; tbe campaign of Jeffe- 
ries ; the seizure of etery cliarler \e(t by bis 
brother ; were then as acts of ordinary Justice 
at home. And, when Ibe city itself was not 
sale, we shall nut wonder Ibe Musachuiet't 
bay was iuiaded. 

Mr. Wallace has not chosen lo argue Ibe 
right of ultimate judicature in Ibis courl and 
in ibe House of Lords. He leaves me, there- 
fore, at large, with Ibe observations I made on 
that point ; and wiib a concession ibiis far at 
least, that there is no argument from ei[pe> 
rience lo the contrary. 

The last stress, on tbe close of the argn- 
menl, was placed od tbe expedience and neces- 
sily of the power of legislation continuing in 
the i;rawn till tbe legislaturu of lb« island »c- 

Tbis argument wonld go far indeed ; it 
would ultimately prove tbal ia tbe r^ess of 
parliament the crown is arbitrary legislator of 
this empire, and may imposes permanent Iitx 
on Great Britain itself. 

But the constitution has happily provided a 
power in ibe crown, by which it i* enabled to 
ohiiaie luddcD emergencies; or in cases not 
provided, bills of indemnity have always con- 
firmed by an act of state, what was required as 
an exertion of extraordinary power. * Salua 
pupuli suprema lex esto. fie quid delrimeuli 
caperet respublica ;' affirming and strengthen- 
ing Ibti generol rule by the very means used 
lo protect the necessary deriation, and wbiob 
notbing less than sncb a solemn judgment of 
the cuUeclive body of Ibe slate allowing its ne- 
cessity can protect. 

iia in Grenada, from tbe first proclama- 
lion in October, lrC3, lo tbe session of ihe as- 
sembly in i16i, the crown bud slmdar power* 
(or Dbviating sudden emergencies, amongst 
tbe number of wbicb powers a permanent tax 
cannot be esteemed. 

i have now had tbe honour of submitting lo 
your lordsbips wbat considerations occurred ta 
me in reply lo Mr. Wallace's argument, oi* 
which it would ill become me to «|ie>k wilb 
disrespect ; 1 shiill only say ihal il apjieant 
fiiirly answerable in tbe luaoucr I havu sub- 

And now I trust, I may take leave of Ibis 
subject by congratulating uiy client (for if belter 
argiiinnts were to haw beeu fouud, Mr, Wa|< 



S87] 



15 GEORGE III. The Case of ike Island of Grenada-^ [888 



laoe would htva discovered them) with beioflf 
MCiire, and tUndiog^ on a unround which wiU 
warrant my application to the Court for judg- 
ment for t£le plaintiff. 

Curia ulterius advisere mlt, 

[Note, After the argument lord Hanalleld 
•aid ; The cause has been Tory well argued. 
There is one thing, bowe? er, which neither of 
Tou have defined prediely. Have you any 
idea a colou]^ can be settled by British subjects 
without the intervention of the crown ? 

Mr. AlUune, If subjects settle on an island 
wninbabited, for instance a shipwrecked crew, 
they cultivate, they inhabit. Jf the crown 
clmuns Uiis island as a settlement by its own 
■ttlyects, they have a right to say give us 
a constitution, govern iis by the laws of Eng- 
land or not at all. Jf it demands a tax they 
have a right to say, No : till it be demanded 
leplly in a constitutional mode. 

Lord Mansfield, All colonies have been es- 
tablished by grants from the crown. I do not 
mean it as material to this question, but that it 
should be understood no colony can be settled 
without authority from thecn»wn. As to the 
doctrine of those cases In Salkeld, 1 do not 
think much of it ; it is very loose. 

Mr. AUeyne, To meet the whole argument 
in the cause, I at first stated, that this colony 
was settled by authority of the crown. 

Lord Mansfield, 1 understood you so ; let It 
staod for another argument] 



Afterwards in the same term on the 5th of 
May 1775, it was argued by Mr. Macdonald 
fbr the plaintiff, and Mr. Hargrave fur the de- 
fendant, nearly to the effect following : 

Mr. Macdonald. This is an action brought 
•gainst a custom-house officer in the islanfl of 
Grenada for money had and received. The 
object is to recover a sum of money levied by 
the defendant as a duty, and paid by the plain- 
tiff; but paid, he contends, without legal con- 
sideration. 

There is a special verdict, which, after what 
has been argued so fully and with so much 
perspicuity, it will be only necessary for me 
in point ot form to state very shortly. 

The iury find the island of Grenada in the 
West Indies, was in the possession of the 
French king, and conquered by the British 
•rms ; that there were several customs paid and 
payable to the French monarch, upon goods ex- 
ported and imported from and into the island. 
They find the surrender of the island to the 
kmg of Great Britain, in February 1762 ; in 
the articles of which the inhabitants are re- 
coKuixed as British subjects, and the same 
protection and privileges granted as to the 
ether ooloniee of America. Ami that they 
•hoald not be obliged to bear arms against his 
moat Christian majesty, while the then war 
continued, and the Ate of the island remained 
undatenniDed ; that tliey should take the oaih 
of uUcgiMicf ; that they should be governed 



by their own laws, until his majesty's jileasuro 
should be further known. 

They find the treaty of the 10th of Febma- 
rv 1763, by which the French king renounoea 
Nova Scoua, Canada, aiNl other oguntries to 
the king of Great Britain; and in October 
1763, the king of Great Britain, by his pro- 
clamation, assuring the inhabitants of his new 
conquests, and amongst them Grenada, of his 
paternal care ; and that he has given order to 
his governors that, so soon as may be, they 
shall call assemblies, vrith power to the go« 
vernor, with consent of the council and repre- 
sentatives so assembled, to make laws as near 
as may be conformable to the laws of Great 
Britain: in the mean time all persons may 
confide in his majesty |s royal protection, and 
the benefit and enjoyment of tlie laws of Eng» 
land. Then the proclamation proceeils, and 
constitutes a council to determine all civil and 
criminal causes according to the laws of Great 
Britain ; the jury find a second proclamatioii 
in March 1764, reciting the benefit of a speedy 
settlement of the island of Grenada and the 
other islands ; directing a snrvey of lands, and 
a certain number of men and women to be 
maintained on the landif under penalties ; they 
further find that his majesty, by hi^ letters pa^ 
tent in April 1764, made Robert Melville, esq. 
his governor in the island, in the room of go« 
vernor Pinfold, to act under instructions given 
and to lie after given, ordering him, as soon •■ 
situation and circumstances will admit, to call 
assemblies, with full |M>wer to make andor* 
dain laws, statutes and ordinances, for the 
welfare and good government of the people 
of the island of Grenada. 

Afterwards by letters patent the 20th of 
July, 1764, they find a ux imposed by claim 
of prerogative in the same manner as in the 
island of Jiarbadoes the 20th of July 1764, of 
four and a half per cent, on commodities ez- 
p<»rted ; they find the defendant levied the tax, 
and plaintiff paid it. 

The verdict farther finds the action brought 
by consent of the attorney -general. 

I am humbly to con tend before your lord- 
ships, first, that no such tax could be imposed 
by prerogative. 

And secondly, that, admitting the crown by 
prerogative was entitled to have imposed such 
a tax, his majesty by his proclamation of Oo- 
tol)er 1763, prior to the instrument for raialog 
such tax, has waived that rif^ht. 

Your lordship finds by the special verdict 
that the island of Grenada was conquered by 
the British arms in February 1763, and bj 
treaty siirretidnred. 

1 take it to be clear that the sovereign of the 
state conquers not for himself personally, but ' 
for the state : and according to this I have m 
great authority, which 1 shall beg leave to die 
to your lordship. 

Vattel— He save, it is asked to whom the 
conqfie»t belongs, the prince or state? This 
question ought never to have been asked* 
Whose are the arms ; whose the expenoe T If 

4 



8S9J 



CamjMl V. Hall, 



A. D. 1774. 



[390 



be coni|iiereil tt his own, yet whose blood is 
shed .' If he use<f mercenary troops, dofs not 
be expose his slate to the reserjti;:ent of the 
esHny ? 

I collect from the same author, tvho lays it 
down as a princiiile of \\\o. Inw of imtion«,*i!iat 
ifau uu in habited country \w plnnti'd hy British 
laitjects', all the Eu<rlish laws (which nro the 
lirtii ris;lil of evary subject) are there in;- 
Bti'iately ; hut, W it be a conquered 8tate 
vbich has laws i«f its own, those laws rouiain 
ibcre until uttiersare provided. 

liord Mamjicid, Does he quote any autho- 
ritifs? 

BIr. MacJo'iuld continued. After a country 
is become part of the state,.|ie seems to take 
it, as a principle, that it partakes of its consti- 
Ihtiun ; and Ihcrcfure not to think autiuirities 
necessary. 

Lurd Coke.*s Reports— Calvin's case — that 
tke kio^ uuky a!t( r or c!inn;;o the laws of a 
ciinqucreil cou^itry^ but till he doth, thr foinief 
laws remain. This can only menu Jlugrmtle 
i>r/Aitbat he may do it ; or in countrich whvi'C' 
ia the whole Ir^rislation is in the kin*^. 

S«tk..411, the dinWcnce of the fac-i.s in that 
faie, preveDlJi my i|U0tin(; to your lordship 
Ihc derision itself; hut upon the t^eneral prin- 
ciple nliat the Coint laid down ua^ (hiiK: Jn 
tbiecase of ;in uninhabited country, oil laws in 
fiiree in £nji;lanti are in force there ; hut, Ja- 
■aica bavint; been a conipiered counliy, and 
am found pared of the |}riti<«h domiiiiouN, the 
bws of Jamaica stand in power till otli^TS are 
ipiminied. 

rijord MansQeld said upon this, the opiuiiMis 
Vie tery IfMise, ami with a total i|;*nuraucr of 
facts: Jamaica uas conquered by Oliver 
Croiuwcll ; I (>elieie none of the iMiiupiered 
ubjects remaincil. It is ahsi'ird, that in the 
rui'inies liiey should curry all the laus of 
Eogluml with ihi>m; thi'V carry only ^uch 
ai are applicable to thrtr siiuation : I re- 
BCQiber It lias been determined in the i'(>iin- 
Qi : there was a (piestion whether the sia- 
toie of cliaritalile uses operated on the i^ldini of 
.\e%ii: it was determined it did nut; ami no 
laiikbut such as w^re applicable to their condi- 
iioD, unless expre^isly enacted.] 

I would farthfr rcmaik. that where the words 
** kitii^or M)verei;(ii'* in treatises of ircneral law 
are introduced, I would understand them ac- 
cordin«r to the naiure of the state of which 
tliey are spoken, or to whirh to be applied. 
Those wonls of (Jrotios, *' Rex el re^^nuiii," 
tnll^late tliiiu into iJntch, I should call the 
AkiKi general the kiii«r or sovereiirn ; and if 
iiii'i En^rlish *^ kiu<; and parliament." I don't 
eoiitfnil that lli«' furiiial part of the law of 
Eiiif-and, hut that the iei^islative part, goes thi- 
llier. 1 1 I am ri«rbt in my idea of the law of 
bstiwfis, it confines the power of the con- 
quprrir, merely within the time of contiict, and 
whiUt I lie sword is the only law to which 
tither aide can resort ; but, wheu a couhtry 

Vt>L. XX. 



surrendrrs to the British arms, when militarj 
<l^')vernment erases, what can come in hut the 
law which ^otcriis every particular sutijt'Ct ; 
the h'G^islaiioii of (iSreat Britain l* When the 
sword is once s^crithed, I cannot conceive of 
tlie cxistenr.e ol any other power but the legis* 
lative prwcr. ttip cunsutntiona! law, or c^overn* 
mint. Tiie fprnis of their constitution may 
an>l must reniriin tilT the executive |iower dif- 
fuses ti:o'<e wh'i'h ohtnin in his other domi« 
iiioiis. 1 take it that layi'-ic on imposts with* 
out constant ot'pnr'inment was one of the f^reat 
points on which the Kevolution turned ; and 
Huother revo!uti'>n much earlier; and MajTna 
Charta, and almost innumernble statutes. When 
we talk ujron this sul.ject, the present state of 
thinirs is a!wa\s out of the question : 1 shall 
therefitre discuss the topic freely. 

Lord Coke in his treatise on the statute of 
taMin^e i<nys, no subject shall have money le- 
vied on him without consent of parliament ; 
and after i^oes farther and says, no man, thai 
is, I conceive, who can call hiuisclf a Hritish 
sid»jert, !hoti<;h in another country ^ shall be 
taxed without his representatives. 

Here upon the principle of the law of cod- 
qui St, hy what reason can the power extend 
over the conquering people them>e|ves; shall 
those who conquered wiih him share the fate 
of the conqncrt'd? It would be repu>^naiit to 
every principle of reason, and to every writer 
upon ttie law of nations. ' 

Vattr!, pa'j:e 02, lays it down as a principle 
of the law of nutioos, that wherever a nation 
Settles and establishes a colony, that colony 
ht'coniirs a part of tlic dominion, and all that ta 
said of tilt parriit state applies to the colony. 

(■ rutin { >:iys, that subjects settled in a coun- 
try larry the same privileges they left behind 
them. 

^V hat is thr difTerciice between settling in a 
country unii.habiied or inhahiii'd ? As lo the 
evrcolivi- pnivf'V it is this : they must wait the 
directions ofihat power ; as to tlu* legislative, 
the iaw is \\\f same to them as that whi'jh go- 
verns nic. ;iiul rvery man who hears me. 

1(321, >rtich irlii, 26th, a hill hrouuht into 
C'iuncil. — It was that which restrained the 
fishery. 

The journal of the House says — The se* 
cretary said this i<; a conquered country, it ia 
the kint^*s ; }ou have nothing to do with it: 
the pailiament held they were part of the do- 
minions of the state ; they say the nenalties and 
forfeitures are void, as not t>eing by authority 
uf parliiment. 

Sir K. Coke said, how ! not subject to par- 
liament ! why they pass by the king's Utters 
patent ? 

To be sure it is true the king cannot (cr.int 
penalties and forfeitures; for that would be 
imposing a tax under colour ; and it is proved 
demonstrably the prerogative of the crown had 
not that power over them. 

[Lord Mantfield, I take it those penaUica 
were recoverable here.] 
U 



*91] 



15 GEORGE HI. The Case of the Island of Grenada^ [293 



The coDfiemipnce in the ?ery next charter 
WM a f^rant or a free fishery. 

In the charter {^ranted to Mr. Penn there is 
this remarkable clinse, that no imtiosiuon shall 
be le?ie(l on the colony without consent of the 
proprietor and assembfy, but by act of parlia- 
ment in England. Calais was a colony. 

[Lord Mantfield, Was Calais a colony ? It 
Vras ceded by the treaty of Bretig^uy.] 

Lonl Vaoghan, 290, states writs of Non Mo- 
lestando, issuini; out of Chancery to the mayor 
of Calais, and di?era writs of error. 

With regard to the other parts not colonized, 
airnaandatory writs issued hence as they might 
do to any part of the kiug'a dominions. Lord 
Faughan, but without pr^edent, says, writs of 
error might issue to Ireland ; I don't find 
however that remedial writs ever issued^ but 
mandatory writs. 

The conquest of Wales, by Edward the first, 
hat already been very fully considered, and I 
find no reason to depart from the ground then 
taken. The language of that king was that 
every part of his dominions not in his possession 
was teudatory to him, ' quia in propnetatis do- 

* minium totaliter conversa et tanquam para 

* corpori annexa et unita.' 

From the conquest no instance of any but 
the legal authority exercised. 

The conquest of Ireland is the next. Co. 4th 
Inst, aavs that H. 2 ordered the laws kept in 
England to be observed in Ireland, and that 
he sent a transcript. Leland considered this as 
merely declaratory of the necessary conse- 
quences of the laws already received. 

In Harris's Hibemia, from the records, a 
mnt to Felix Stephens, with the wanlships : 
tnis could not have been constituted without 
manner of recovering according to the laws of 
Eiigland. 

£ord Holt says, (which cdncurs with this ar- 
gument,) it was not the mere conquest, but the 
subsequent settling, which let them into the 
tame rights with the other subjects. 

In Mr. Petit, 80, to shew the Commons of 
England sat separate before the S7 H. S, a re- 
gister is cited. 

In the S8th of Henry the third, by the queen 
regent to the archbishops, bishops, &c. of Ire- 
land, to assemble. Therefore Ireland, Wales, 
Scotland, all partook of the constitution ; all 
were and are exempt from taxation by prero- 
gatire. I have spoken already of Pensylvania ; 
the same argument will apply to the other 
colonies ; the same to Grenada. 

But secondly, even if the colonies are not 
exempt from such taxation by prerogative, ex- 
cept the king waive and renounce it, has not 
the king barred his right ? 

The capitulation req'iires liberty of selling 
lands. They are allowed to sell them to Bri- 
tish subjects. 

They desire the laws of Antigua and St. 
Christopher's, which, except a few local ordi- 
nances, are the same as in £nglan«l, and they 
are promiied in answtf thai they sbaU be con- 
iidered ai Biitiah soljeq^. 



October 7, 1763. That all persons paay rely 
on the royal favour of Great Britain till the as- 
sembly can be gut together, courts of jostice 
are to be erected, with authority over eaasee 
criminal and civil, as near as may he to the 
laws of England. 

Then in March it is taken for granted that 
they have relied on the encouragement and as- 
surances of the former proclamation, and a sur^ 
vey and distribution of lands is ordered. 

Then by the patent creating Mr. Melville 
^vernor of Grenada and the other islands, he 
18 ordered to call an assembly as soon aa poe- 
sible, for the purpose of making laws. 1 can 
see nothing stronger than the language of the 
proclamation. 

That proclamation was said to be executoty* 
« The calling an assembly is merely discrer 
tionary in the governor." Shall the eflfect of 
the proclamation he suspended on that event? 
Must we construe, " J give the law of En{p« 
land until you have an assembly" to this, 
<* You shall not have the laws of England till 
you have an assembly ?'* 

The legislature of the colonies might make 
such addition of local ordinances as they sboold 
think fit. 

One of the benefits is this proclamation. 

On what authority was the proclamation f 
The king had no right to levy the tax 80th 
July 1764, unless under the patent in April. 
We need only compare the dates. 

But it is said there is no law at all. If the 
kin|f has not, who has ? I answer, the supreme 
legislative power of the state. The stamp- act 
prevailed at that time. 

It is a principle in contracts between politi- 
cal bodies contracting, still mora necessary 
than between private persons, that the grant 
once made, can never be recalled, and cannot 
be released till the conditions of the contract are 
broken by the one or the other. 

This compact is what every speculative 
writer requires in his closet ; what practice re- 
quires in all ages between nations; and which, 
mutually and irreversibly bound both partiea. 

As to the island of St. Christopher's, the opi- 
nion of lord Ilardwicke and sir £. Northey it 
observable. 

They certify they have prepared a draught 
of several laws of iour and a half per cent, oa 
the conquered pari of St. Christopher's, as Au* aa 
they thought the condition wonld permit, coo* 
formably to the proclamation 1703, which wat 
in the time of the war. 

Sir Philip Yorke, in the year 17S9, and rir 
Clement Worge, attorney and solicitor-gene* 
rals, were asked how far the king could, by hie 
prerogative, levy a tax on the island of Ja« 
niaica. They answered, that if Jamaica ii 
still to be considered as a conquered country, 
the king has that right ; but if it be in theaituft- 
tion of the other islands the tax cannot be leviedl, 
unless by act of assembly, or of Kngliih 
parliament. 



[Lord Mmi^field^^l belie?e your report 
wnnig*] 




Cam}ibdl V. llaU. 

t was ex|ie<]ieai. II' it is 
It thai it Ti ex|iedienl lo them \a li«ve llieii' 
_-> l^ro from lliein (Iml I rkDool conceive 
> ihal (buulJ be) tlie tax i> tery i-ip«>lient: 
I I liat* uu iliiiilil ihe Cniirl will cooKJtler 
U ii Uwl'ul, ami upon ihul ground 
1 giHHl ex|>eGlalion, llie cauie of ihe 

■^ ManififJi—Thej «llow the laliilily 
_to hUrri poleiit of 1764, iii fitr a» Ihry an- 
Bibe poll 4uly ; (his come!* in lieu or it. 

t*'tg uetti paid niter the 
was au iDierial of two 



Mr. llargraM. My lord ; when I caii<tider 
lit great imporuncu orthei|iie«tioas arisiDg in 
llm now, Koil tiow ably aail Icnrnetlly Uiey 
lM*a biwn ari;u?<I by ihe gtrDtlemun oq Ihe 
uhfT aide, I find inyiflf unilrr extreme dilH- 
nltics; and I wi»h, that llie Isak of auswei'iaK 
Nch Irtrueil arffitmenti bud Tallen upsn aome 
p«i«Da more capable ol acquitting biniself of it 
than I am. 

TwnquFttidiiihaTelweD made io thiacauae; 
n»r II a genenil (jUMlioD, Whether the king 
ly liin |<rer<if^iite haa a rii^bl to tax a cod- 
ipttvi iiiiinlry T — The other u a more uarli- 
tularqui-ition ; and thai ia, Wbelhi>r the ulaiul 
■"'(■■riiads at the lime of impnsiui; Ihe djiy of 
'^uran<l M hall' |ier cent, naa to be conaideied 
>i 1 ci>oi|iivrvd coiiiilry ? 

11 jr (ard ; it is not necessary to debute geiie- 
rilly, utiat ia the tlfect ofcomiuest, or what 
r^ii« thecontfuerur hi* over ibe iieajdetoo- 
' i-red. Tu dralioy, to kill. In deijioil aud np- 
■rrt, are pcelension^ I should be ibiicked lo 
i-Eue in favour of. Butlbrre are some righb 
■dicit nluBt be allowed lo (he conqueror; and 
(■ liai, as 1 apprehend, a rl^ht of making lawi 
Li gaterti a Conquered (leopte. If, indeed, he 
rmiMiit* to aiifiulatioiia ia their favour, Itiey 
smtmttl ibe l*iti*Ulire|)aweraf the raoqueror; 
:>d ouubl la Im rigidly obaerved. Bui if ihere 
' I lUAmiiuoo williout any particular lermi, 
itK-B tiie full aoverei^niy vetu in the canquerur ; 
U'l br haa llic IpKnUtite power without any 
uW rules In ilirect him io Ihe exercise, than 
ibocr wliicli natural justice and equity pre- 
KcihF. Kuril is Ihe i^eDcral doctrine in respect 
\i I rfinijiiFred coiinirv ; and under the quali- 
ar.iHJi>. I haie alalei] llie ritjhis of Ihe coa- 
'j'lrii.r I.I rii.i, 1 appreheuil my learned friend 

Kill ic4ii't' iliiuk projicr lo deny Ibeni. Bui 

ibi'ii.'li Uic Keoenl prnpoaitiun maybe true, 
uilMitilf cHn b« mfrrred from it to explain, 
• Il.i !>'.'> r.h aiiil what iireioiiati'es tlie kinjc of 
(('••I lliii.iin ia roliilcit In eierciiie oter iha 
rmii.iri. V 111' iiblaina by eonqiieat. The Keiieral 

|> 'y iilii-m, ihni ihe cmquerrd coun- 

■ ■ I . 'iilijipi In ihediimini'inuf the iie"- 
i"'iii|;: hut huw tu< h dominion ia to 
V- ■, Mi>ril. in what iirrwin* the |>ower* of 
r tealail, ilepandu upon ihrir uwn 
■I cuitnma, and the I'onti of ll^eir own 
' «#od (OMruaMOt. 



A. D. 1774. 



[90^ 




If Ihe king of France make* s coni]UNt, lh» 
aoyereiKn ufcourKe, as KOun ai the conquest ia 
DDBde, unsnmes the sole l^iiUtion of the peo- 
ple conquered, 

In the case of a mixed g^rerDmenl like aurf , 
tl)e lesiElmire power over a conquereil counlry 
may be in the kini; only, or in the king and 
llie two Houses of Parliament, ll might be a 
nueslion of some difficully (o decide, in whom 
the lettialalive power ought to reside in such 
caseaccoi'iling to our conslilulion, if there were 
no precedents of law lo f^ulde and direct ui. 
But unless 1 am greatly deaeited the point haa 
already been determined: and all the aulbo- 
riliea which are to be ni^l with upon the sub- 
ject, uniformly concur in Ihe doctrine, Ihat 
the power of imposing laws upon a conquered 
country belongs to tue king as a part of his 
I>rerO};alI«e. It has been ohjeclcd by your tord^ 
ship, thai the cases which were died upon the 
former argument, as well as those now cited 
by my leuned friend, were so full of i(iaccurK- 
Gies, that they were not mucii lo be depended 
upon. So far as regards historical fact^, I 
agree, that the ubservaUon is just: f>|il ^ill^ 
respect lo ibe principle of taw, the cfises ar^ 
clear, strong, and uniforni, ami all of llieni 
ascribe to Uie king ihe urerngaliie of imposing 
laws upon a coiiqueTed couDlry iu leritis lbs 
most explicit. What countries fall under Iha^ 
description, whether Ireland, Wales, or uther 
countries which have been mentioned fall under 
it, Ihe authorities differ abuul '■ but in respec^ 
lo Ibe dDctrine uf law there is nut the jeaal dis- 
agreement. 

The earliest case, in which 1 find any thinir 
upon ihe suliiect, is Culriii's case ; and I will 
slate In Ihe Court so much out of that case as 
is applicable to the present lubjeet. Lord Cnk« 
raenliuna ia Caliin's case, thitl a disiinclion had 
been taken between countries vested in tha 
king by conquest and couiilries coming to him 
by descent. This ifave uccusiun lo an enquiry, 
whether Ihe king bad greater powers over ihe 
former ihan over the latter ; and it was atjreed 
by ibe judites, ibat he bad; and that 



to i 



y obtained by conquest he had authority 
i laws, In reporting this doclri 



lord Coke mixes with il another diatinclion be- 
tween Infidel and Christian louotries, which ia 
now Juhtly exploded. But ibis ought not to 
prejudice the other pari of ihe doctrine, wbick 

is nul liable to I lie same objection 



Mr. Uargrave. My lord, I cite the case, not 
nn account ol Ihe dislini;lion between Infidel* 
and Christians, but lor Ibe doctrine assenied l« 



Terence derived from the rrligiuti i 
try may he absurd and unreaMmnble, mill ihrra 
may be other parts of the rase nol liable lo ub- 
jectiun I^rdt'oke, dnu'ribiiiu the kii-u's power 
over a cuoqoeced cnunlfv.snyii, " lie may at 
^euura alur and diauge ibe iaw« ef ihf 



295] 



15 GEORGE III. The Case nfthe Island of Grenada— [296 



ku)«;(lom : hut till lie does make an alteration 
ttie undent laws remain." So that accordintr 
to the opinion in this case, the kinji; has the 
cou)|)lKe power of chann^ini^ the laws of the 
conqu.'red people, as he thinks proper and 
OMivenient. He may give them the laws of 
£nt;laud or any other laws: hut if the En;i:lish 
laws are once f^iven, from that time the kin<;'8 
preroirative of imposinti^ laws ceases; and lord 
Coke au^rees, that then their laws can only be 
<^an;;cd by act of parliament. This doctrine 
from Calvin's case is of impoitanre: tvir it is 
the 0|)iuion of all the judj^es, and not altogether 
extrajudicial, being an observation on a dis- 
tinction, which had been made by the counsel 
against Calvin; who distinguished between 
countries acquired by conquest, and kingdoms 
coming to the king by descent; and assorted, 
that countries of conquest arc parcel of £ng 
land, because acquired by the arms and treasure 
of England, and that such countries imme- 
diately become subject to the law of £ngland. 

But this is not merely the doctrine of lord 
Coke's time, the same prerogative has been at- 
tributed to the crown in all cases, in which it 
was necessary to consider the subject both be- 
fore and since the Revolution. Indeed no case 
has arisen, which required a judicial opinion ; 
but there have been several cases, in the argu- 
ment of which the doctrine in Calvin's case has 
been mcnf ionod and observed upon ; and in all 
of them it has been asserted botli by the judges 
and counsel as law. 

The first case I shall mention is Dutton and' 
Howell, Hill. 3 James 3, in the King's-bench, 
and afterwards in parliament. It is in 3 Mod. 
159, and in Shower's Parliamenury Cases 1^4. 
This cAse was an action brought against the 
jgfOvemor of T5arbadoes for false imprisonment ; 
and the counsel for the plaintiff agreed, that, 
according to Calviirs case, the king may im- 
pose laws upon a eouquered country, but de~ 
tiied that Darba<loe« was u conquest. The 
counsel for the plaintiff, whose interest required, 
that the doctrine should he controverted, if 
there was a chance of doing it with suc- 
cess, assents to it without hesitation. The 
words of Shower are, ** It was a^^rced that 
according to Calvin's case, upon the conquest 
of an infidel country, all the old laws are abro- 
gated CO intfantc^ and the king imposes what 
laws he pleases ; and in the case of the conquest 
of a Christian country he may change tbem 
At pleasure and appoint such as* he thinks fit." 
The rejiorter goes on and sa\ s, ** though Coke 
quotes no authority for it" (wl)irh is a mistake 
of the reporter, for lord Coke cites the case of 
Ireland and other instances in which the crown 
bad exercised such a povier) ** this may be 
consonant to reason. But it was denied that 
Barbadocs was a conquest. 1 1 wa^ a colony or 
plantatioii, and that imports the contrary, and by 
such uanies these plantations ha%e always gone 
in letters pratentj proclamations and acts of par- 
ItaroeDt." The book then cites some autliori* 
ties to prof e, that Barbadoes was a plantation or 
litdcneot of EngliiluiieQ wiui tb« king** 



consent. Here your lordships will observe, 
that the sole question was, whether Barbadoes 
should be deemed a colony or a coiiqnest ; and 
it seems to have been agreed by all, that if it 
was a conqurred country the king hati authn- 
rity to impose laws. But this case was before 
the Revolution. 

Bianchard and Galdy, which has been so 
frequently mentione<l to your lordship, is the 
next case. It was after the Revolution, and h 
in Comberbatch 238, and 4 ^lod. 215. and 3 
8alkeld411. The question in that case Mas, 
whether selling the ofiice of deputy provost 
marshal in Jatnaica was within the statute of 
Edw. 6, and tiie Court held that it did nut ex* 
tend tu Jamaica, because it being a conquered 
country, the laws of England did not extend to 
it till 'introduced by the conqueror or his suc- 
cessors, meaning dearly, the king, for the word 
' successors' will not apply to parliament. I 
will not repeat to your lordship the words of 
the report in Salkeld, as they have been al* 
ready state<l more than once. 

Another case since the Revolution, in which 
the doctrine is mentioned, is in 2 Feere \\\U 
liams 76, and there, my lonl, it was said by the 
master of the Rolls to be determineil by fbe 
lords of the privy council, that if there be a 
new uninhabited country found out by English- 
men, as the law of England is the birthright of 
every subject, so wherever they go they carry 
their laws with them ; but where the king of 
England conquers a country it is a different 
consideration, for there the conqueror by , saving 
the lives of the people gains a rii^ht and pro- 
perty in the people, in consequence of which 
lie may impose upon them what laws ha 
pleases. 

Lord Mansfield. It is ill expressed in the 
report ; 1 take it the master of tlie Rolls did 
not express himself so. 

Mr. Harpravc. My lord, the^ are (he only 
cases, in which I find, that the general doc- 
trine in respect to the king's prerogative over a 
conquered country has come into question. 

But there are instances in \% hich the kin^ 
has artually exerted this prerogative of giving 
laws to a ctMiquered country. 

The first instance is that of Ireland. My 
lord, authois differ very much in their opinions 
about the manner, in \s hieh the laws of Eng- 
land were introduced into Ireland. Lord Cuke 
in Calvin's case considers king John as having 
given the !aws of Envrland to Ireland. The 
words are — ** If a king has a Christian kingp- 
dom by conquest, as kinif Henry the 2d bad 
Ireland, after king John had given unto them, 
l>eiiig under his obedience and subjection, the 
laws of Kiigland for the government of that 
country, no succeeding king could alter the 
same without parliament." Calvin's case, T 
Co. 176. Here lord Coke treats Ireland as a 
conquered country, and king John as giving 
laws as a conquei^r. But in the 4th Institute 
king Hvnry the 2d is said to have partly io- 
trodnoMi tbam before; and there lortl Colit 



897] Campbell v. Hall. 

rifps several reconis of the reififn of Henry 3, 
in which kin|;^ John is said to have ordained, 
that the laws of England shonld be obtierved id 
Irdaod. But one of them expretisefi, that he 
ntrodnced them with the common consent of 
dill Ireland. The words of the record are, 
^consuetudines et lei^fes re^rni nostri Angliie 
^■as bonae memorise Juhanne<$ rex pater noster 
it coram uni omninm de HLberni^ consensu 
ineri statuit in terru ilia," 4 Inst. 349. From 
dw record and other circumstances attcndiuji^f 
tkeennqueitt of Ireland, Mr. Molyneux in his 
areuraent ani^ainst the authority of the Eni^listb 
parliament to hind Ireland by statutes, has in- 
ferred, that the laws of England were not im- 
posed upon the Irish as a conquered people, 
wt were extended to them at their own desire 
lad with tbcir own consent. But sir John 
Darib's account of the introduction of the 
Ea^liali laws into Ireland seema the most 
a^^reeabie lo history ; and according* to him 
ihiey were not established * bimul et semeP 
over the whole country, but pfradually, first 
aver so muc4i of the country as was possessed by 
the Eof^lish colonists in Ireland, and at lencftb 
orer the other parts of the island, as the kinsj^ 
from time to time thou$(ht proper tp extend the 
protection of the Enij^lisb laws, which was not 
uaitersally till the Sd year of James 1, who by 
prochunation declared, that he received all the 
aativca under his royal protection. Sir John 
Dario'i Reports, 101 to 108, and bis book on 
the causes why Ireland was not aubdued ^till 
the bei^inning of the reign of James the Ist. 
Tbe further particulars on the subject will be 
fiNwd in Pryn on 4 Inst., sir Matthew Hale'i 
lirtory of the Common Law, tbe 1st vol. of 
Ubnd's History of Ireland, Nicholson's Irish 
fliflorical Library, and two controversial tracts 
« the Eneliah parliaiueut's power of making 
]im% tor Ireland in Harris's Hibernica. Tbe 
two tracts were nritten about the year 1641, 
ibotti^h not pulilishedtill within these few years. 
Tbe occasion of tlie rontrovertiv was the Act of 
Adventurers made iti the 17th of Charles 1, 
vhich declared mauy Irish persons to be rebels, 
lad disposed of their lands to oihers. The 
tract against tbe right of the Eni^lish parlia- 
neatis said to have been written by sir Rich- 
ard Bolton, or as Mr. Hairis rather thinks, by 
Mr. Patrick D'Arcy, an eminent lawyer of 
Ikaae times ; and the tract for the right was 
written by sir Samuel May art, Serjeant at law. 
& much for the time and manner of introduo- 
iag the English laws into Ireland; and it is 
ffvmirkable, that however the several writers 
differ in explaining tbe mode of establishing 
tbe English laws, there is not one who denies 
tbe right of the kintj; of England to impose 
laiva on a conouered country by prerogative, 
eieept Mr. Molyneux, whose arguments, it 
nnst be coiitesoed, have a tendency that way. 
tbme actually attribute the introduction of the 
EoKlisb laws to an exertion of the royal pre- 
toyative, and tiie assertion aeems well founded 
ja napcci to such parts of IrelaiMl as were not 
Sogliah •oloBiet. Butirbatef er the fact might , 



A. D. 1774. 



[SgB 



be in respect to Ireland, all, except Mr. Molj* 
neux, agree, that the constitution invested th« 
king with such an authority over a conquered 
country, lu the treatises by D'Arcy and 
Mayan, Calvin's case is particularly 0010^ 
mented upon ; and both writers concur in th« 
principle there laid doHu as to conquered coun- 
tries ; and both recognize it to be the law of 
England ; the only difterence between them in 
this particular being, that Mr. D'Arcy lop- 
poses king John to have introduced the lawi of 
England, and that serjeant Mayart aupposei 
tliein to have been introduced by kinir UenrT 
tbe 2d. J B J 

My lord, Wales is another instance in whick 
the prerogative of imposing laws either hma 
been, or as all the books agree, might have 
lieen exerted. When Edward the first had 
conquered Wales, some of its ancient lawi 
were changed, and made conformable to tbe 
laws of England, though the greatest part of 
them remained in force till the S7tb of Henrj 
8. But it ia not clear, whether tbe 19tb of 
Edward 1, sometimes called Statutum Wallita 
and aometimea the statute of Rothland, by 
which the alteration was first effected, was an 
act of parliament or merely a royal cbarteTit 
It ia printed among our statutes, and lord Coke 
and lord Hale call it a statute, and it ia so called 
in Plowden; but sir John Davia calla it a 
charter. Lord chief justice Vaugban aeeoM 
doubtful what it is, and Mr. Barrington in bie 
Observations on ancient .Statutes ia of opinion, 
that it ia not a statute. 4 Inst. 239 ; Hale'a 
Hiitory of Common Law 182 ; Plowden 126; ^ 
Davis'a Reports 114 ; Vaugban S99. and Bar- 
rington, 2nd edit. p. 84. But whatever was 
tbe mode of first abrogating the Welch laws 
and aubstitutingthe Uwa of England, lord chief 
juatice Vaugban allows the authority of king 
Edward to make the alteration without an act . 
of parliament. In speaking of Wales, and of 
the 12th of Edward 1, hia words are, ** 80 at 
from this time it being of tbe dominions of 
the English, the parliament of England 
might make laws to bind it : but it waa net 
immediately necessary it should ; but iti 
former lawa (excepting in point of aove- 
reignty) ibight atitl obtain, or such other as 
Edward tbe 1st should constitute, to whom 
they had submitted, and accordingly their 
laws after their submission were partly their 
old laws, and partly new ordained by him," 
p. 400. 

Lord Manificld, Edward the 1st considered 
Wales as an aotient fief of the crown of Eng- 
land. The statute so represents it. 

Mr. Hargrove, My lord, so far aa lord 
Vaugban goes the authority is the same ; be- 
cause he treats it as a conquered country, and 
doea not found himself on Walea being a fief 
of the king of England. He considers Wales 
aa having auhmitted to Edward the first aa a 
conqueror ; and therefore attributes to him a 
power of imposing laws ; though he ia doubt- 
ful whether lie exerciied it, or wbetlMr theal* 



9S9] 



15 GEORGE III. The Case of the Island ofGrenadt 



tirttioD of the Welch laws was made by the 
Aathority of parliament. 

I am now come, my lord, to America ; and 
thall ftata bow the |irerogatiTe has been exer- 
cited there. One ffeneral obser? ation may be 
CLBplied to our colonies in America and the 
It eat Indies, which is, that all of them, except 
•ome of the few ceded to us by foreign states, 
whose constitutions bate not wen yet Taried, 
derite the whole frame of their gofernment 
from an exercise of the royal prerogati?e. 
Their sroTernors, their councils, their assem- 
blies; uietr courts of justice ; all orifpnate from 
giAs of the crown. Their legisiatife powers, 
•fen their powers of taxation, flow from the 
came source. The more early charters from 
the crown, those antecedent to the reign of 
James the 1st, were mere grants of the soil of 
newly disco? ered countries without fixing any 
form of g^eramcnt. The first charter for 
erecting the government of an American 
colony bears date the 10th of April 1606, and 
was to the two Virginia companies. It is wor- 
thy of notice, that by this charter the king ?ests 
the powers of government and legislation in 
Mich as should be appointed by a council of 
wersons resident in London, tknd abo imposes a 
my of two and a half per cent, on merchan- 
dise bought and sold within the colony. But 
this was before the Revolution, in times when 
the prerogative was too oflen carried beyond its 
d«e and constitutional limits; and therefore 
much cannot be inferred from exertions of the 
fMPerogative during such a period. However, 
even since the Revolution, there have been 
great law^ren, who have attributed to the king 
a prerogative of taxing such of our American 
•ml West India possessions as are countries of 
eoM|uest. The case of Blanchard and Galdy, 
in which lord chief justice Holt and the other 
judges of the King's- bench recognised the 
doctnne in Calvin's case as to the king's gene- 
tal powers of imposing laws on a conquered 
country, and the case from Peere Williams, in 
which the same doctiioe was laid down as 
law, have been already stated as a confirma- 
^n of the same principle of law. 

The instances, in which the king's particu- 
lar power of imposing taxes on a conquered 
country has been exercised or come into ques- 
tion with respeot to America, shall now be 
mentioned. 

In 1686, the government of New England 
being seized into the hands of the crown under 
a jii«lgment in a Cluo Warranto, kinflf James 2, 
appointed a governor and council with power 
to continue the former taxes, till they should 
■ettle other taxes under this commission. The 
ffovernor and council nasned an art continuing 
-me fonner taxes, and in the year after the Re- 
volution (and it is u|M>n that account 1 s|)eak of 
'the case, for I should be ashamed to mention a 
preceflent of the time of James the 3nd upon 
4he sul^ct of prerogative, unless it was sup- 
porteil by the opinion of theme lawyers, who 
lived after the Revolution,) loni 8omm«^« and 
«r Geoife Tkeby, upon being ceosiilMd io the 



[90( 

case of one Usher, gave their opinion, that thi 
ofiicers of the revenue who collected aucl 
taxes were not liable to auy action for • 
doing — 

Lord Mansfield. The king appointed tb 
governor and council. What were the power 
given them ? 

Mr. Hargrove, A power to collect forme 
taxes till they should settle other taxes ; aw 
under this commission the governor and coon 
cil passed an act continuing the former taxes. 

Lord Mansfield, That appointment reapeol 
ing the collection of taxes was temporary. 

Nr. Hargrave, It was the year after tiK 
Revolution that lord Sommers and sir Geoigt 
Treby gave their opinions. Lord Sommer 
and sir George Treby were consulted upon tb 
legality of such taxes in 1689. 

Lord Mansfield. They were attorney and n 
licitor general, I believe. 

Mr. Hargrave, Their opinion iieing givai 
so soon after the Revolution becomes a vtr 
strong authority,' unless a difierenoe can i 
established between a tax revived and a nai 
Ux. 

Lord Mansfield, How do von autbentiaite it 

Mr. HttTfrave, I have the case in my kam 
with the opinions upon it. 

Lord Mansfield. Is it official P 

Mr. Hargrave. I believe it is an oflicial can 

Lord Mansfield, Is it referred to them as sf 
ficers of the crown ? 

Mr. Hargrave, It don't appear in whm 
name they were consulted ; but most probaMj 
it was by the directipn of the crown. [Hai 
Air. Hargrave stated the words of lord 8o» 
mers's opinion.] 

Lord Mamfield. They considered the cbarlR 
being vacated as if it never had existed, asi 
the charter was out of the way, and they hid 
no particular constitution given them by thi 
crown, and so it went from the RevofuliM 
down to 1694 or 95 till the 4th of king Willias^ 
their present charter was given them in the 4lh 
of king William. 

[Here Mr. Hargrave stated sir George 1W 
by's opinion, which was much to the ism 
effect with that of lord Sommers.] 

Mr. Hargrave, I don't however msaa ti 
extend the doctrine as far as lord Soomers sii 
sir G. Treby extend it. They seem to nslit 
no difference between a conquered oomriifi 
and a colony without a government. 

Lord Mansfield. You mistake it, the ehailV 
being totally void, they could have no sortrf 
government but that which the ooloaies ihit 
are called provinces have. They are govcraii 
not by any charter, not as proprietory gevsia* 
nients are by any grant or patent, but hf ibi 
king's commission, and instructions added tl 
I hat commission ; and in procem of timetbtf 
had an assembly given them by the kingV 
commis«ion, but had no charter. The IwojiV 
tiemen meant the charter was vaGated|.and tf 
he gave a new charter it miial bo getamidljf 
the Jung's osmmiasion. 



Cimpbrll V. f/«ff. 

. Tlitre Bre Mill more recent 
jiia mp«rt In our Arncriunposseisioiis. 
■ 1709 tb« Eiif^lisli coniiuereil (lie FfEDL-li 
' lleislinil of Si. Christopher's; aiid 
r ifr Gdwlril Nnrlhcy, then allorney 
I, M a rrference lo him by ihe pi'ivy 
ipidion, thai the 
[hi by Icllrre pnletit im|iasc b iluly 
■ exporttd from the conquered [larl, 
n li« gave was, " ihu Ihe i]iieen 
tcfO||fative GOuM make Uvn in bind 
'■iOFil by MrKjiiest «nd all thnt inhnhit 
Aecurdini^y a duly uf four ami a 
a cm. was imiimeU by the queen, thni 
t it)ty as WB« pnyaUe io the 
k part nt' (he island under an aut of as- 
Thii iluty on the French part was 
1 till Ihe peace of UtrechI, when the 
a of Ihe whule iahiid was confirmed 
1 Britain, anon after which aii act of 
i pBised exlendinc this duty of 
J* half per cent, lo the French part of 

Bol tbne is a more recent case. In the 
B of ihe late king the aa^i^iiibly of Jnraajca 
^~'d tlie Bcual ijrnnlB ; and this K>Te oc- 
> the crown's consulting sir Clement 
d Ibe lale lord llardwicke, then at- 
d Mlicitor eenerBl, to know, whether 
f bad out a right by his iirerogBtire lo 
, I laxea Jti that island. Their answer 
n, " Thai if Jamaica was still to be con«i- 
1 conquered island, the liiog bad such 
'11 if it was to be considered in the 
< r -Mill Ihe other colonies, no tax could 
11 Ibe inhabitanls, but by the as- 
1 1'.' island or by act of parliament." 
> 'K1 lourge Bgminsl these aulhuril let, 
■ ! in (irral Britain, in Ireland, and such of 
I ir iM>luDin as were originally settled by emi- 
rninia frum ihisoonnlry, Ibe le^islaliTe [mwer 
inaleatrUBledtuUiecmwn. It might perhaps 
-< iMf* codformable lo Ihe general nature of 
I'l- couatitution, and It mi){bt be more coD*e- 
' -nt. il certainly would be mare uniform, if 
■"r tinttta of tlie king's preroijatiie were as 
(MCHiBMiribed in a conquered country as in ibe 
■sla ef Great Britain. But the queatinn tn 
bt^euled here ia iiol, what would l>e the best 
taawitiilifin, but what Ihe conslitulion actually 
h; nut what bounds ought lo be set to the 
lodg'a (imoiCBliTe, but what ila liinita really 
arc. If the rvyal prerogalire ii in tliia iustanre 
^v»[>er, iocoareiiienl, and dailgeraos, it is the 
^inCM of Ihe British parliament to correct 
<-;4 rafonn it, and lu reduce it wiibin Darrower 
'- -adai but Ihe buainesa of thia court ia of 
!■ miliar kind. 

l^onl Mniufield. You did tint state ilrBil- 
> I'd Norihcy's opinion follv 1 his opinion, 1 
•■ I md il, >< Ifaia : ■• The law extended ori- 
. <*II* la nidi part of 8t. Christopher's as be- 
^ to Ibe cfown of England. Wheo thai 
" waa made, by virtue of that Inw ibey 
•Id nM r«l«e Ibe duty upon Ihe conquered 
\ yat iMr majeaty niuy if she lo pleases 
'U mi 01' finglaiul direct aud 



^upsn I 



A. D. m*. rso* 

command the like duly lo be lef ied ti|»n fnnih 
lobe eicportad I'mm ihe conquered pari, ami 
such comioand)! are law there, hpr majeaty 
bj' prer^Blive being enabled lo make laws tn 
bind |ilnce> obtaineil by conquest, and alt that 
iliall inhiibit IherHo." 

Mr. Har/iravf, If, my lord, I have suc- 
ceeded in ebtahlishiiig the Hml poitft, thai (fa« 
kio^ hna a righl hy prerogatiiw to tax a «m- 
i|uered cuunlrj, the only remaintrtg vaniidenl- 
liun is, whether at tlie lime of iin|Ki«ing the 
dutj of fonr and a half per cent. Ihe ialanil of 
Grenada answered lo that description. Ii is 
stilled in the apecial irerdid, thai the island of 
Grenada was conquered during (be late war ; 
and there ianothingin the terms of capitnlstion 
which giies a right to the inhuhiianis of thai 
islund to the laviB of England. By Ihe Sifa and 
[ith articles the inhabiiRnta lequire, ttiat they 
should preserve their ciril government, their 
laws and ordinances with reapect lo Ibe admi- 
nislralion of justice, and that there should be 
regiiloljons made between the governor* of liis 
Briianuic majesty and them for ihsi purpose; 
and in ca«e at the pence the island should be 
ceded lo Ihe bingof Cireat Itriiam, H aliouMbe 
alloived lo the inhabitants lo preserve Iheir own 
form of government or accept tliat of St. Chria- 
topher's. This was what was demanded un the 
part of the island, but the demand was niA 
complied with. The answer was, that liiey 
would become British snlneets, but should lie 
conlinued to be governed by their present law* 
till liis majesiy'a pleasure should be known. 
Ho that tlie articles of capitulation neilber ati- 
iiulate a constitution nor lawa for the island; 
but leave Ibe tovbI prerogative ai free and un- 
restrained, as it there had been a aohmissinn 
without any terms. But the great difficulty in 
the cause arises from the lirst proclamaliuo, by 
which a prorincial legislature and Ihe laws of 
England ere promised to the island of Grenada, 
and the commission lo governor Melville, by 
which be is auLliorixed lo carry thai promiae 
into effect. It is saiil. that these iustrumenta 
were an immediate gift of llie Briliab consti- 
tution and liberties, and of Ibe English laws ; 
and being antecedent to Ihe letters patent tor 
imposing the duly of four and a half [ler cent, 
were a waiverofthe prerogative of taiing. Il 
is true, ihal an admin tslrDtitiu of ju<itice accord- 
ing l» Ihe laws of England was lo lake effect 
Immedialelv, but both Ibe proclamation and 
governor Iflclville's commission suspend the 
calling of a general assembly, till the cii- 
eumstances of the island slioutd admit of a 
clianile so important. It was left entirely to 
the discretion of the trovernor and liis «nnn<il 
in decide, when it should be proper lo eaeeuta 
that part of his cammla^inn : anil in fact it was 
not executed, an aasrinbly was nut called, till 
afler imposing the duty. Before tlie first pro- 
clamation, the king was the lawgiver of the 
island; but he thought fit to promise a tegis- 
lalure more conformable to the general frame 
ul' uiir govenimeul, and he comiiiissions hi« 
KoverDOr to lUlfil thu promise when ibe slate 



303] 



15 GEORGE III. The Caunfthe Island ijf Grenada— [304 



of ibe iBltnd should permit. Till Ifaat timp 
came, 1 aubpiit, tlialilie prerogative cnolmupil. 
1 aubmil, lh>t (he kin^^'B Icgislalire powen iliil 
notcette till llie UMinbl]' tn nhicb he (ira. 
niied to IraDafer them was nailed. At a sea- 
annable lime a aem IrKi^'^'i'^ |)Ower nat to Im 
constituted : Luttill ibal lime arrived, the old 
one, howerer arbitrary, remaiueil ; and it wu 
not the king'a intention tu diTestliimieH'of liit 
prero^tire ■ooiier. Tu my otherwise ii sup- 
posing, that the kin^ mniDl to leaie the island 
Ibr a lime without any N'Eiklalure, and to quil 
bii legislalire poners befiire the aweinbly, in 
which he proioised tu vest Ibeni, was calkci 



Lord Manifitld. There are three inslni- 
■nenta. There is the iiTuclamalii)n, ihesurvev 
ip March, and the conimisBioii to the governor, 

nir. Harfrevt. I did not mention ibe ae- 
COnd proclainaliOD, because it Keeraa merely tu 
concern the surrey of the inland, and the maii- 
DCT olgraiitinK crown laads to new settlers. 

Lord Manifield. Il recites ibe terms of the 
proc lama lion, auil invites selllers upoa those 

. ftlr. Eargra-ee. But then 1 answer, it was 
not a pan of those terms lo ivtive the kini;'s 
prerogalive of making lans, till a uev legisla- 
Inre was constituted under governor Melville's 
commissioD. k promise waa made to call an 
. uaembly (vhen the circumsiances of Ibe island 
■hould nerrail ; and il would have been dis- 

Ceful not to have performed Uiat promise, 
it was performed. All I contend for is, 
thai till actually executed, and till the legis- 
lature tvas eslablisbed by caJliog an assembly 
jo order to succeed lo the legislative power of 
the crown, the kini;'s prerogative remsined the 
uroe as before. Notbing further occurs to 
me; and I am the less unwilling to trust to 
the few observations I have made in the latter 
part of the cause, because it iras ilie priiici[ial 
subject of tbe former argument. 

Mr. Macdonald in reply. My Inrd, as 1 have 
alrdaily troubled your Inrdahiptoa mucb greater 
length ihan 1 am warranted in duing, and as 1 
conceive 1 have nlrearty anticipated niusl of ihe 
arguments and inttancea inentioned by Mr. 
Hsrgrave, I slmM be very short bj way of 
reply. — I shall only bring back In your lord- 
■hifis recollection, that I endeavnured to ei- 

Iilain lo the best of my uuderstanding, Ihat the 
ing caoaot extend hia prerogative power of 
imposin^T laxtsbejond llie lime that a country 
becomra a regular settled part of the slate — by 
Ihe ti^rms of pruclamaliun ia question, he ex- , 
pressly irattKfers to Ibe island of Grenada, tbe 
taws of Eoglsud. And lo impose a lax H.iiliout 
the concurrence of any other body, is to retract 
Ihal gill : but Mr. llari;rate bus said there are 
precedeuts, ihongh not very strong, which 
■hew tbe kin^ has such power of excrciiiog a 
prerogative ot taxation over a conquered coun- 
try. One he mentions in Jnniea Ibe Ist's lime, 
■ud at tbe same lime he aayn he is ashamed to 
neotion uottaer id Junea ifac 9d. JanKi ifaa 






first governed all his dominions according (o 
hi] own idin of prei'ogaiive, conceiving this 
empire hi be made upolso many small parcels, 
looking up III him fur suppori, atid when he 
drew a cumparisou of hiisubjects nmlersiandii^ 
with bis own, be held that Ibey were in pro- 
piirliiQ to his, as a platter is In the sun in Ihe 
lirmnment, or as Ibt: hraH nails in the pommel 
of a saddle to ibe slars in Die heavens.— Hy 
lord, it is most iodispulably true in the general 
terms in which the proposition is laiii down, 
Ibal the king may tax a conquered country. 1 
have admilird that he niay iluiing the war, ImI 
then and ilii'ii only, aodl bnielit^ard no answer 
to Ibe avgumrnts by which I eimfioed it tit that 
periiMl ; ul least, though tlie kiug inigbl have 
a power l<i lay vn u tax betiire the proclniaalion, 
sosoonasthalpmclamaliua WHS made, be Mailed 
that rijjlit, nud by virtue of it allowed lliein a 
' cuosliuilioii, wblcb was eslHlilishcd uuuipletelj' 
I the year afirr. aiid 1 nidimil, lltliat proclama- 
, lion is uver-rnlud, il will be worse iban if it Inid 
ni-ver oxisied. It is h-mA with rrsnect lo tlio 
charters of Nutr Kn^lund, and utber plitres 
at ihe time wlien they "ere resumed into ibe 
king's hands, thai grtf Jt lawyers soon afier the 
Hevolution gave it an Ibeir opinions, that those 
placi's nrre considered as conquered couulries, 
and ill ibe same situation as if those charters 
bad never exisieil: 1 conceive no preceilcnt 
whatsoever can warrant such opinion, hut as la 
all tbe cases quoted by Sir. llar^rave aud mc, 
ibey are very loose, and neither can avail our- 
selves very much of iheio ; but still with re- 
sped to those opinions, they talk of a coiiqueredi 
country without saying what it is oris nut, aud 
I hope i have shewn lo your lordship lltnt it 
can only be a country, held by tbe awoid 

Iioril Martffietd. Wbat he says of the 
American insisoovs is this, there are cuii- 
qnered countries amongst them — New York 
in iwrliciilar was cotiijiiered from the Dutch, 
they have tlieir whole couslitulion from Ihe 
cron n— ibat is what he says, but alwaya that 
argument xupposes Ibis power of giving a con- 
sliiulion exeroixed by the king is nut exclusive 
of parliament, there ciiunnt exist any |Hnver io 
Ihe kiugexclusive of parliament. 

Mr. Macdonald. Mr. Hnrgrave at llie same 
time says the king's jiroclamation is nut only 
execulnry, but he has ibe iniermediaie power 
of imuosiug taxes until llie sssembly can sil — • 
now if Ibat proclamation was nol capable nf 
giving these people a (»inslilulion, which il 
does inasniuch aa it givc.'i them the laws of 
England lo all eternity, they must remnia aa 
a conquered country, and the crown has not 
the power of ihnng that act which can give 
them tbe liencfit ol a If gihinturc which every 
other colony has; if ibis proclamation docs Dot 
give it', wbai is the consequence of that — wliat 
your lordship says undoubtedly luu^l be true— 
Ibe parliament can never be excludeil, but then 
there will be a double legisUlive authority over 
thii country, ud pariiamcot nay do one way, 



Campbell v. Hall. 

W^aag uiother, inil Ihey will be subjecl to 
' ""(iof a double govern irienl. 

t.W\llei. IsoDlittUecase with thPtn 
— wbeo ■ legulaliTe piiwer is c<*en then 
V >re*ab{Mi lo this parlitmeDt hTho, 
Ir. Maei)tmald. True, roy lord, but I mean 
Arreix adoDblesDiierioT (^nr eminent orerthetn: 
« u) Iheir own lubontiniite lei^alatiire, I dun'l 
i be so Tery mnterial >■ lo be 
•i with the otbers. namely. iIie km£ alnne, 
■intlj' wilh bit parliament,' and mui'.li of the 
'-f of double and conaenaenlly 
will Biilt remain.— I 



i fMi&meni having ii, there 
* of thit. With rei^d to the opinions of 
ra and ait George Treby, they were 
b on cirouiuiiincea an very particular that 
nliot iKDtibly apply io ibis case, in 
D avch circumaiaiices are to be found ; 
oilb r««pect toair Edward Northey, I must 
fcmind y»ur lordship thai bespenka ot*aeoun- 
Iry bpld by force of arms, and his opinion was 
lul il inii;ht then be subject to the king'* pre- 
NftliTp Duly ; hut when it becomes a colony, 
lbtii*,aaaoon aslbelei^lBInre waseslablishnl, 
ikai preroffatire ii not to be enforced. 

If the acaie of ihc purliatncnl was wanting, 
litm waa a bit! brouLrbt in, in March 1749, 
ia iirdm- tu make tke kiDi;'s order law in the 
toloiiie", That ««« peliijotied against by every 
rar ortbecoloniM, and thrown out. 

The words of the Declaratory Act of of 
'•i-u. 3, 6. IS, are aa slronif' aa posaibty words 
III b4-. derlartng the power if l^slslinn and 
. ulinn over Ihe coluiiies to be in the kins: and 
irliamenl, wiihiiut any leferenne to the kintt's 
■I* prcnit(atJ*e. I need not ^ over Ihe ground 
.-iiii, for braudc lite crude iaeM which 1 have 
iinitlEil In the Court, the learned ((enlleman 
■ .1. «f«al before me hnB aufficiently answered 
cry objeclinn In the fint argument 1 where- 
■-»T iriBiing more to bis ingenuity and Ipnrn- 
: ihM my own, | hcipc the judgment of the 
' >un willbeforthe plainllfT. 

l.or4 Mani/fU. If neither aide desire a fiir- 
rr aicunirnt, I am ready lotfifc my opinion. 
Mr. Hargratr. ny loni, I anl desired Io 
i'"t\ I l(irlb#r nr^umenf, and when I con- 

'ti inibiliiy, I hope yuar lordship 

II iiher ariinment. 

t-.nald, I *m instructed to repre- 
! lordstiip thai this is a rivenue 
.' an imnicliale dcierminalioM, and 
.1 -.' sbnuld be glad of the judgment 
'. Ill so<ni na possible. 
'...aifidd. It has been argued very 

Mi- lUrgravt- M v lord, it is the wish of 
Hi. Atunwy (leneral to have an opportunity 
«f srvviNiir Ii. tbe i-Jiuse ia of great importance, 
^Ibrrr '• iireat nofclly in it. 

I -WfcU. I haressid, if ellber side 
' r nrifument I will not rcl'ise it. 

* B not pMitiva whether 



A. D. 1774-. 



[306 

Mr. Altoraey General autborixed me to say ihat 
be de.sired another argument. But I linder- 
sland from him in conversation, that he meant 
lu ar^ue il Ihe Ihird time, which is one reason 
for luy preseni applicBiioi). 

Lord Matu)ield. Let it stand onrfor a ibird 
argument. 

Oil Monday ibe 6ili of June It was moted 
for farther arifument. Stood over till the 
Tuesday se'enntijbt. 

Tuaday, June li. 

It was entrealed it might stand orcf till 

l»rd Manifictd. — I don't see any inconve- 
nience in going over lill next term. Il is your 
own delay. It ia absotulely impouiblelogive 
judgment ihis term. Suppose vte were all 
agreed, many mallcra are thrown out in argu- 
nnent which are not absolutely neceasary in the 
dHciaioit, bui nl' wliich il would be necesaary to 
Ibe Court to take notjoe. 

What thu value oi the French duties may 
be, I don't know : il does not appeal' in ihe 
cane. Suppose Ihe Court should be against the 
impuiiilioo of ihuse duties which are impoced 
in lieu of Ibe French, ibere would arise « 
■question conceraiuf,' those duties. 

Can yuu have auv doubt upou Ihe most ma- 
lerial argument of nil f 

The first queslion made in the second ai^u- 
meni by Mr. Mac-lonald, I think, is one of ibe 
greatest conitituiiotiiil uueslioaa that, perhaps, 
ever came before Ibis Court. Aa my brollier 
Aston is absent, I wish, principally upon (hnt 
BCCDUUt. thai il may stand over. It is Impos- 
sible it should ever ba passed over in ailence. 

Mr. Campbell moved that judgment might 
be given ujion Ibe former argumeoi, but lord 
Mansfitild reminded him that be cnuld gel co 
fsrlhpr, because il muai necessarily come into 
the Exchequer ; and, even if thai were not 
the case, jndgment could not have been given 
in the term, holb on the account of the absence 
of lUr. Justice Aston, and as tbe last day would 
be a Wedne<day. 

JiovrmhcrJ, 17T4. 

Tlie Grenada cause came on for the tbiril 
argument by Mr. Attorney General nn Ihe part 
of the crown, and Mr. Serjeant Glynn for tb* 
pisinliff. 

Mr. Serjeant G/ynn.— This case, one of the 
most inipnrlant in lit principles, and In the cnn- 
sequences dependent on the decision, that was 
ever argued, comes before Ihet'oort on n special 
verdict, slating that tbe island of Grenada wai 
' the possession of ibe rreni-ii king, and cuu- 



laiidi^, to the subjects of Great Ilritain only, by 
Ibe aniclcfi of eapilulalion in 1703. 

I'ruclamation, reoiling llie benefili from ■ 
regular colonization : promising thai UMID- 



307] 



15 GEORGE III. The Case of the Idand of Grenada^ [808 



blifs shall be called, iritb power to make laws: 
in the mean while the subjectt to coofide they 
shall be governed by the laws of Englaod. 

ProFision maile of le^slation to be executed 
by the ^orernor 9tb of May, 1764. Patent to 
the governor to call an assembly as soon as 
convenience shall admit. 

Proclamation COth of Juhr 1764, for levying 
an impost of four «nd a half per cent. 

Stated — assembly called about the end of the 
year 1765. 

Stale of eastern of the other islands. The 
lm|ioft by assembly. 

State of St. Christopher'a, only where there 
Is a difference of collection ; part having been 
subject to the king of France. 

They find the impost levied on the plaintiff 
by the defendant ; and that it is upon the im- 
post so levied this action is brought. And on 
the whole matter, if the money legaltjr col- 
lected, then thev find for the defendant ; if not, 
then they find ror the plaintiff. 

The question is — whether the king has a 
power, without acts of assembly or parlia- 
mentary regulation, to impose any tax upon 
the inhabitants of the island of Grenada P 

The provision for peopling the island, the 
commission to governor Melville for the well 
governing of the bland, are both material 

I cannot help taking notice of the principle, 
on which the claim of the king is founded, to 
the raising of this imposition, which is, that 
the king bas a right to exercise a despotic 
power OTer a conquered country, annexed to 
the dominion of Great Britain ; and that this 
power is legally, permanenti v and uncontrola- 
bly in him. 1 think, though not necessary to 
this decision, it will throw light upon many 
points contained in it. 

If it could be shewn that the law had asserted 
thu, and no contrary decisions had denied it ; 
that the coarse of history proved it ; that it 
had ever been asserted ; that there were no 
times in which the exercise of it had been db- 
puted, or, if there were, that it had never been 
judicially contradicted ; and that the. king had 
•Iways exercised it : however uoagreeiug with 
oor principles it might appear, and however 
dangerous to the constitution that the king 
should have independent dominion ; yet, if it 
"were so upon the authorities as stated, J should 
bold it a ?ery formidable argament. But I 
hold that the opinions have been silent ; that 
there have been no decisions ; that the course 
of our history has no vestiges of it ; that it 
never has been exercised ; and that every hint 
of it has been rejected with dbgust. 

That of Calvin was a question, whether a 
post-natus of Scotland was a natural bom sub- 
ject of the king of England, after the Union ; 
it was held he was, because the centre of unity 
was in the person of the king. No necessity 
of entering into the discussion whether it be 
lord Coke's opinion, or of the judges. 

The general definition is— of a kinsf of a con- 
quered people, and a proposition b laid down 
geneiftlly. 



'< If the Idng make a conquest of a Chris- 
tian country, Sieir laws remain till he gives 
them others ; but, if he makes a conqoest of 
an infidel country ..they are presumed m have 
no laws; he may give them what law be 
pleases; but guided by natural justice and 
equity." I quote tbb not for the sake of any 
thing but the use I shall make of it by and by, 
shewing, that a subsequent antbority went to 
that only : and thb was an idea whksh was not 
received by your lordship the last term, bat 
rnected with a declaration, that for the honoor 
of lord Coke it ought not to be spoken of ; at 
I hope it never will. 

He is speaking of a king, not particulariy of 
the kin^ of this country ; if it were to be un- 
derstood to belong to any king, it would be 
evidently wrong as to Poland, or as to the then 
constitution of Sweden. If a conquest be Daade 
by a king of Poland by a Polish army, it b 
nuule not to the king personally, but to -tha 
king and senate of Poland ; and so of Swedea 
at that time. 

A Tery respectable anther was cited to year 
lordship, by Mr. MacdonaM, who very ably, 
argued from hb book, that all acqubitioos by 
conquest are made for the state ; and are there* 
Aire at the dbposal of thoae who make themv 
that b to say, the state according to its several 
constitutions, and different distributions of le- 
gislative power. 

In agreement with this author, who stales 
the doctrine in a decisive manner, I think it 
clear that the conquest made by the state is lor 
the benefit of the state. Execution and admi* 
nistration of all bws in England b in tha 
crown ; the power of making bws, according 
to the constitution of the state which be go- 
verns here, is in the crown with the two otner 
parts of the legislature. When lord Coke gives 
bis opinion, he most hav6 taken it from writers 
of general law, and those for the most part of 
absolute monarchies; and he took tlie word 
* king ' as a general word, which, in their 
sense of it,ooropreliend8 the whole constitution. 

Objected, that lord Coke's authority must be 
taken otherwise, because it has been nnder- 
stood in other cases to belong to the sole power 
of the king ; and it was taken on this autbo« 
rity, tbe king had the right uf making inde- 
pendant laws over a conquered country ; and 
that a king was in the same state even as to a 
colony, unless otherwise provided by charter. 

It 18 said that in P. W. the same point ^as 
determined. But P* J^V., instead of speaking 
of the bare power of the king, spoke of tha 
power of a conqneror. 

Tble concession said to be made by sir B- 
Shower; and that it was of consequence to 
them to have denied the position, if capable of 
being denied ; was in the case uf an island not 
inhabited when first passed by patent ; ao if a 
conquest gave any right, he said it must be 
over the persons of the conquered people, oot 
over the country. 

Upon a state of the history of Jamaica, sop- 
posibOB of (act being mistakeoi the aiigameiit 



WE 



Campbell V. Hall. 

('■!lt. TliRt pmiiioD, M JoBily 
ia Calvin'i caie, is tbe point at- 

Thr opininn conleoded to be settled in tliai 

I! or Blincliaril and GMy, is IbuDited qd 
lord Uoke'iUkiii^ them, wiilinut civil pn- 
, lo be K<i*erneil arbitrnrily, accnrdiiti; *° 
triauun nf Die kmg, mi he should lliink 
ty and juitice ; ir the concession be any 
I il is lo be appUed lo ihtt pnint ; wliidi 
11 HOI to be nanicid in a court of Jaiticc. 
I M the [H-incipal ffrnund sFo c*K wliich, 
I iia inieciiracy, ^Ined so lillle weight 
I >our litrdahip upon tlie last arguLiieal ; \t 
Ikera hail been others, ilie induilry ol' Ihe 
Inmcd ^fotletuen who msde Ihe best nr the 
IM v^menl for the del'endant, noiild hate 
pnidoced ihcin. Taking: ''>e expression from 
% public writer, 1 a|>prel)eni] my lord Coke 
HMnt niertly to slate the principle, not applied 
la taj particular country ; and then the king, 
when atiplieil In Englanit, means not the king 
icMy, but IliF king and psrliamenl. Il is the 
MM Dstural and rational construction, and is 
neb, I think, as llie argument admits. 

I Ihink it cin never escape your lorJship, 
Uiu my lord Coke, writing wilhont precedents 
»r luttiiirify, roast necessarily reler to the 
"'iHm "t [mblio law. Mr. BlacUonald has well 
tkcrred, ibo«e wrilera generally used the itord 
fn^cron'r king asan arbilrary power includ- 
.■ tbe nhole. It lord Coke Is supposed lo 
' -It laid down the point, tl must bare been 
'u Ibe httlory of his country, and thai the 
. ••x Iroffl the earliest time exercised this pre- 
;iit»e. ThoDgh I should not have laid great 
Fn npoa Kuthuriliea deduced from dark and 
iritlnl timet; nor from uur Henrys, or eren 
'r Edwards, 1u prote, from ihe exercise of aa 

■ ■- M power, liie legabty of the claim ; (when 
' '1 m ihit reign, wlien llie (;reat charter was 

i^, Ibrre wvre so many TJtilatlooi of it, and 
many afterwards, anj so tnany coiilirma- 
tn mlirrwiM^ not necesiary.) Though for 

■ " rraaoni. I cannot allow moeh weight lo 
i'l ia ehiiiii of ■ prerogative In those reigns, 

' -e i( na instance ol' an ahsulule authority by 

iiii-r a coni[Uered iwuntrv. I don't 

lip Ihe beoelit of what bis been bo 

:ivi;oed, wilh respect lo Ihe Jnlro- 

' I i3»s into Ireland by Ihe charier; 

>, • iKiiik Mr. Mardonald lias produced an 

4>iiiKui in proof, that the laws of EngUnd 

■ I ■ird before that linie, as it refers in Ibem. 

I tlhak, lliererore, an Englinh conslitulioo 

I paaat-d ; and In general that it is part of 

11' -tuly of the kiag lo proTide, that the Bng- 

I] conatilution shall be exeroised every whtre 
' " ail tbe aahjecls of Hnghind. however eon- 

•tMl, bowevtr acijuirvd, or wherever Ih^r 
iL^atiM. 

tlw power of promulgation nf laws, iaau lug 
I iawt, tbe making preparalions and proper 

.tilawna, tor Ihe iDlroduelion and esecatton 
' i!>ii« l>w« in a cnmilry a<i talely receiving 

■ -m, ia tbe prculisi' prerogalire. Though 
■ni* aaanlecedcm titltby birth or lilua- 



A. D. I??*. 



[310 



tion, it can only be exercised hy means of tb« 
trust rtposed ia llie cmwn, ao'as lohe applied 
10 the benelil of llie public. 

The enquiry is nut what is ex|iedieiil for the 
peculiar good of mankind »o much as what is 
necessarv or capable of beiu^ admitted. Wliere 
new laws hare been ID lie iniruduced, or -AA 
ones lo he allered, it b»* always been by llie 
act of the supreme legislalioa upenly, either 
here or over the stales lo Ireland. If ihe pro- 
viding for the exeriUion of au aniient right b« 
called legislation, we will readily allow this le- 

S'slnllon In liave always exitited in the king. 
lit it is necessary, in order to prove Ihe au- 
Iborily claimed ia the present case, lo sheir 
thai the king has abrogated, allrred or intro- 
duced laws. This has tiol been dune, ibe king 
has never exercised such au aulhuniy ; ana 
the very expression of au idea of such a right 
has been rejrcleil with resenlment and iudigua- 
lionas against the cnnstiiuiiou. 

Audio say, if allowed, ihai the king legisla- 
lively inlroduced law* in Ireland, hy providing 
for liieir being received aud eseculed, is lu say 
thai be uerformeil this executive trust; which 
we aH allow ; and if this be meant by the l^ia- 
lalion ascribed lo him, il is a salutary and ue- "^ 
cestary legislalion. I know if it be, il hanily 
will be 10 inlerpreleit as belonging to that 

Wilh rpyard lo Wales, (I presome many 
other instances ivill nut he found of cnn<|uered 
countries,) the Elalutc has always been consi- 
dered as an act uf parliameui. 

Tbe peculiar nutborily given lo king Edward, 
which could have been by no meaua pecessary, 
if there bad been a legislative power aluoluieiy 
and iudependenlly in him (and which puwer 
was never exerciied, and was lield by the judges 
so ill ai;reeing with the conslitulioo, as to ba 
oonlinedlo Ihe person of king Edwafd 1.) gives \ 

iforaslrong inference thai the regulalion 

nut originally and properly in hiiu, as of 
wn iudrpcndant right, buiderivaiively from 
Ihe pnrliament ; and that in such a manner m 
at least conlined tu himself, and nul ex- 
lend lo his successors. 

The king would never have furnishad such 

I arguinenl agaihsl the exercise of legislalivo 
Buihnriiy, had iliat power then resided in him. 

All tbecBseKi huve lieen the ohjecia of parlia- 
nteniary regulations. It' he had undrrslood it 
to be of his right in give laws over those coun- 
tries arbilrarily, and parliament bad reco^niseU 
:his claim ; the power of making and altering. 
tlie power of *brngalin<.' woidd have breu in 
him, and we shouM not have had Ihe interpo- 
aitinu of parliament. 

From the aulbor cileil by Vlt. Macdonahl, I 

Tlial all cmiquesls are made for Ihe benefit 
of Ihe coniinering stale; and wherever llie 
people Br« com|iused and pay allegianre, in- 
•lead of constrained submission, then ibey are 
subjecu ; and owe obedience to the laws urihu 
conijuering ilate, aud hold their prot>ciiy frau^ 
I hem. 



Sll] 



15 G£ORGE III. The Case rfthe Island tf Grenada^ [312 



When this conquest was madef from that 
bonr when the kiu^*ri right was recognized and 
a rom|)(»<iiiion made, it was for the benefit of 
the i^euple of this country. Here particularly, 
its conquest beint;^ made with a Ticw lo coloni- 
sation, it is establisheil bv the best authority, 
that of lord VHUi^han, on the question, whether 
a nuturalizatiou in Ireland made a iDan a na- 
tural- txtrn bubject of Great Britain ? 

Lord Vnughan — A conquest is not solely 
for ihebeot'fit of tlie conqueror, but of the sub* 
jecis ; and those who come to reside there have 
a ri^ht to acquire |>ro|)ertv ; lands by purchase ; 
•—and be proierted in all those particulars, by 
tlie laws of 1 heir mother country. 

The inhabitauts then of Grenada, are the 
objects of all those urovisions. 

They may a«-quire property, with the right 
of residence anil purchase ; and hare the otoer 
rights or British subjects. 

As to expcdif oce ur value, we are not speak- 



ing u> the equality but the legalitv ; and what 
over p4»wer has taken a part has 



the nine 



claim to half or the whole. 

The authority here contended fbrb inoon- 
■istent with that right which Mr. Campbell 
had as a resident, if nothing else was afecWi 
by it. 

It will be incumbent, by new trgnmenta, to 
prove a power in the crown of disposal of these 
acquisitions, without the coucnrrence of the 
constitution. 

Will this right bear the examination of the 
laws of England ? 

Ordinances of necessity, on instant emer-i 
gencies, provisions for the administration of 
constitutional rights — I shall not presume to 
•ay how fur these may be maintained: but 
they must expire with that necessity, and be 
occasional and temporary only. 

In the present case, no pretence of a ne- 
cessity. 

A conquest of the people, and not of the 
lands, niusit mean a power most extensively 
taken in the times of barbarism, but qualified 
in these times. 

Both in the case of the conquered and con- 
quering people, the laws of the general govern- 
ment are upon the conquest conveyed thither, 
as a common right of all the subjects : but they 
rejiaire to be actually carried into effect, main- 
tained and executed by that power in which the 
execution of the laws is lodged, which, with us, 
is the king. The title is there before the en- 
joyment; i-'hen the king has executed that 
trust, then is the enjoyment. 

The colonies cannot have the power of 
enforcinof those laws: they have the right, 
though the trust b reposed in the king to ef- 
fectuate them. 

The king has given assurance that they shall 
be protected in all their rights, honours and 
possessions, and the free exercise of the Roman 
Catholic religion — this to the conquered ; shall 
the conquerors be in a worse state ? 

The king has pro? ided, that, as immutable 
laws may become inconrenient, therefore there 



shall be a local one, subject to alteration bj 
their own legislature. 

A distinction is taken between Grenada and 
the other Inlands; I answer, the grant is not 
a matter of grace and favour^ bat tne discharge 
of a trust. If it be a gift, it is not revocaUey 
but an irrevocable ri^ht; what distinction then 
is there between this and the other ialands^ 
whose rights the king has recognized by re- 
ceiving the imposts as a benevolence? 

What power antecedent to the patent bad 
existed in the king, is annihilated then. Even 
considering .them as subject before to the sole 
law of the conqueror, and iH)t as subject to the 
legislative power of the state, the king baa 
waived the power of taxation if it wars ad- 
mitted he had it before, by granting them a«- 
semblies to tax themselves. 

The construction cannot be that the inha- 
bitants are not to reap the benefit till a futurr 
time : this is so inconsistent with the end, with 
the conBtructkm in which the grants of the 
king are always received, and the benefit de» 
signed, that it will find no weight with your 
loraship. 

Takmg it by way of aigument that the con* 
quest has annihilated their ancient law, their 
law cannot hate been annihilated and none 
given them m their plaee. 

If their ancient oonatitution is gone, the laws 
of K"gl*"f* by their proper force introduce 
themselves. 

It ii A fbtnre grant, it ii said-r-wben the 
power ia given them to call assemUiee, thej 
htf e a provision for a legialature : 1 don't nseat 
to derogate from the supreme legislature. 

The assembly is to be called when circum* 
stances will admit and convenience shall re- 
qnire : so it is here ; hot yet it is the unalter* 
able privilege of this country. 

The people who should come, in confidence 
of the promise of the rights of British suhjectii 
wtmld, according to this construction, come, and 
find themselves without one of the most re- 
markable of those rights, and that which securet 
all the rest. They would, on coming to reaidei 
find themselves sul^ect to an arbitrary dis- 
posal of their property, and might have iIm 
whole taken away without their own consent. 

My lord, on the whole of the case I presume, 
whetner as a conquered people ur as colonies, 
they had a right to tax themselves, and weri 
not subject to imposts under any claim of pre- 
rogative, without their own consent. 

Secondly, If they had been subject to taxei 
by iNrerogative, that the king, by bis procla* 
mation, has concluded himself from this right 

Mr. Thurlov (Attorney General). I havi 
erer looked on this aa one necessary ground ol 
argument to a doubtful question, that we shook 
see and attend to the nature of the claim, iti 
fitness and expediency ; and not confound tin 
idea of it by substituting, in its place, some- 
thing of a very different nature, and auppoeing 
that to be the right whiob is inaiited on mid in^ 
tended to be pro? ed. 



CampidlvHuU. 

ad for an ahiAlule in- 

puwer in liis iDBJeBly. I 

1 ihat tiica lit iiuihoriti«^. or u( lUe Ju- 

; proTcwiuiiiliiiii I cuulil bxve eoaagr<l 

ithv twk (il'»ii|>(iortin^ it. Nur snnnlrl 

- pUCF, ruuuK IrHia «courlofj>Mii.t!. 
utUkiDU Uidtlvr lu^ (jroiyid,^ idckli 
L Ihu bis iQ^CHijr. I'l mi BtUcle ol' exe- 
'iB* >n dinliurity, l«pisl<Ui>e iu 
mbordiuatt Ut (lie Buprcme le* 
lit ol iui|iQsiii^ lam, aaci im- 
: odicra tu iiDiwse ihem. 
sliiU relet la corporalions in £ng- 
': I'l iBT«Meil *Uh (>o»eri lo praviJe laws uter 
.:'. of itie iJoniinioni* at ihs king of Eujflaoil, 
• m ivhicli tlunr were ilUtnut. btuI not nulivps 
I ^iMbiunls, I abill tliink myself eiitilleJ to 
rwiend ilial a power wbicli be cau ikkjEralc be 
riH cmrci»e iu bit owu iieraanal aulborily. 

A nMib'id has been ItJiea irbicli requires the 
r^ hi III be coiuidered in r>lber ■ dilTiereat view, 
ij.<l exauiineil in ■ iliflert-at tnoile. 
I ibink ii bat beea endeavoured In be iasi- 
i>i«l, or rallier dtdaieij, ihat in llie artii^le 
>! ru(»|Ut!it ibu Uvr* of Bni^laitd inslvolly lake 
>lMain lbs cmN|iured counlrv. and theuun- 
[■ i W H prople varrv ibe Eii^lisli laws wiib 
•■B. Al lb« aauiH limr tUai ibia puiul baf 
Im M«leadc(l. it bai bfeu aigueJ Ihal the 
Uifi by kit kxecmite pov 



; Mua to esiablisb 



as beinir 

•Nk lubonliiiatr with r^rd to tlie dominions 
MiefiJ U> lb' kiiiK. a« wnb regard lo tbe aiale 
HjinBMicau of (lie lUle herr), (be king re- 
Wblra lb* farerunieai, aud tequirei impoila 
mm i1m oovolrj/, in aucb manner as he seei 

ilul it M Mr4 " oiil^ particular necettjty jus- 
:n ihM cldim, and it inuu be nnly uccaakinal 
'aJ MntMirBi}' : <* ben the loTereign itutboriiy 
Msbuoil it rxiKilienl lo yife laws fnr pa)li- 
(A* local nMeiMiiy, errry iudividual cairies 
■ak b>ni >|l Ibv Uwa el' &i||Uuil ." tbai is. il ' 
m; f(r^u«ill« bapiwo, laws siilivprsiie ol ilie ' 
'•1 i{iim. TUf imiividual Ibeo will bave a ' 
• cr drwnl lt> thr tiUtereien. I 

I hate the autboriiv ut* Ibe same celelirsleil 
...tiuT (iioaled no lb> uibrr aide) ibat (here i* i 
rf<lifa*«»ra l>eltTeei) acoiiiitry cunquercd by 
iW arsM ol' anotber, and diacnrcrtU. Vat, a, i 
S»~flU. I 

ilwaw iiUtcd in ibe lail arKumenl, in nrder ' 
* Am Nlwrevrr a i-uunlry ia e.tnqiipreil il lie- i 
"ii»» (wrt (if lbs c<>iHju«rin|[ people, ami their ) 
'• are ititrodiiDrd wiib (he cuuqueal> (bat in 
-i>ui'i COM Itata poial had been decided. The 
,>^IMa iitvr* wa>. wbetbar (be dntnioiau of 
I MeoDqvmif or utily lb» realm in included. 
1 Tkatawaof Ibe couquered remain (ill altered. 
I IWy ti><v liem acciiatimied tn them aa model 
1 <la||«lBtlnv ■oil diiposing jirnperly. They 
I *>■■ M Mkti: if tliere be belter, aud more 
. . they are aatiaO«d 
litry kaie been accuatgna^ 




n all Dcca- 
ejijuy under (Item all the btesKinga 
and uainfur(a Ibey have enjoyed. 

The i]iieslion is, wbelher by ibe laiaa of 
Great Britain, which are Ibe only rule here^ 
tbe kin|T bna beeu adiised jnsdy, and acied 
nilliio the rouitiaas of Ibona btws ; or whether 
those lawa are exuaeded? This ia merely ibe 
^iieiiioii. 

My reaMii for slsliug tbat dumiiiioa aai 
pru|ierty were acquired by iwnqoett was, be- 
enuse I shall infer lliat Ibe consulutiai) baa ia- 
triuied the bio^; <vitb the disposition of the pro* 
perty, aod with ibe ordering of ibai dnmioion 
conquered ; tubjecl to ibc legislation of tbe 
couDtry. 

The king, bntb io conqiieaU and calnniea, 
has hod ibis right: there nas not been ati in- 
stance in which llie king has not eaerciijed the 
disposilion of the laws and property uf (he cnn- 
qiiered country. 

He has graoted by bis charter tbe island of 
Si. John. 

Tbe kin{ may exercise the ri^bt of disposing 
the lands fonqiiered. With respect to tbe laws, 
if we shnuld lie carried back (o tbe eunqueat of 
Ireland, (wbicb, I think, reraaiiis In p^eat 
doobi, wbetber by Edward or king Jobo, or 
whether indeed L'omjilelely till Ibe reign of 
E.'izahetb, at any period) (be ^reai bjsa uf the 
records of Ireland baa made it iinpnshible logo 
into an accurale discnasioD. Lord Cuke is of 
opinion tbsl, in point uf fact, Heury the sccood 
did give ihe laws of England to Ireland. King^ 
Jidin was not, in trulb, Ihesuvere^gn uf Ire* 
Isiiil; tbe actual sovereign was IJeury Ihe 
third. Il was not (ill after two desixuts bad 
been cast ilisl king Henry the third grautadl 
(be English laus. 

8iippuBiDg king John ^*e tbein ibose laws, 
or that ibey were exiabh^bed ibere before. Ii 
iscouleuded this was a mere act of executive 
power. I( will appear lo what extent this 
power, called executise, was carried. 

On Ibe snbjecl of the ^nglisb laws another 
ambiguity runs : tbat i( la not only the laws of 
prupci'ty anil |iitnishmea( of ctiroea, but Um 
political lau a and ciinltitution of the country. 

Kupimse ibe king could ool make, nor aiubo> 
rize oibns lo moke taus occaaioually, the au- 
iburity of parliameol would be neceasary to 
(iiake ilie change 

Willi respect lu Scotland, whenever (bey did 
call a parliament, il was by Ibe bing'a com- 
mand and instance, as at Newark ; and it m 
lou much lo say that tbe king, in tbe cha- 
racter of an exei-'Utiie inagistraie, baa a right 
nol only lo create aaaembliea, but to appoial 
Ibeir meeliog ; and bIbu thai b« carries witji 
him, a' a pari of merely executive power, the 
power lo niter laws. 

Wiib reapect to VVales, thotigh I believe in 
luy connrieDce it was in liict obtained by no 
better pretence Iban that ut (be sword, yet Eil- 
»ard did iint consider i( as such. 

Plowden, 186. Tliero ia no pretence Ibal 
Ibe ordiDBDce tbau made was by kiug, lords, 



IS GEORGE III. The Case of the Island of Grenada^ [316 

bectuse by the treaty of peace the kin|? of 
France says he cedes all his right to the kiog 
and crown of Great Britain P What dovs the 
treaty more than affirm the right of Great Bri- 
tain, "by ceding all right or pretensions of ri^ht. 
If his' majesty thought fit, alter hating im- 
poseif one sort of lavrs, to give another repag- 
naot sort of laws, or the parliament were to do 
this, it would be by an authority acting in sbS^ 
version -of the first. 

This drives on to another incousisteDcy upoD 
the claim of political liberty. 

The king by his conquest acquired t power 
to provide laws for his subjects, a power which 
has been so repeatedly and extensively exer- 
cised in other instances. 

Has the king sufierseded that rigb|P The 
proclamation, it is said, gives the English lar^t 
to all the subjects. It was said that it pre- 
sumed the laws of England prevailed in the 
country, and that it made a provision in the 
commission to be given to the judges. What, 
that they should bring those laws which, by 
this hypothesis, were inere before ! 

The proclamation might convey the Eng- 
lish laws, but not the jioUtical and conatitn- 
tional system in general m this kingdom. 

The promise is said to be the same which 
the king gives here. I don't know by what 
record it appears that the king has engaged 
himself to his subjects of this country, that, 
when couvenience shall permit, or occaaite 
shall require, be will permit a pariiament to be 
called. 

The king, by his commission, empowers the 
governor to call an assembly when be shaN 
think convenient, or receive mstnictions : and 
his authority was so much executory, that he 
might have established assemblies either of the 
five islands together, or in Grenada apart and 
severally. 

It would be of the utmost danger to this con- 
stitution to say, till the king or parliament 
gives them a constitution, he might act in full 
power, without any laws to decide. 

The commission to call assemblies was not 
executed till above a year after the patent im- 
posing the duty. 

In the case of chartered governments the 
argument would, undoubtedly, take a different 
turn. It might be said a charter is a grant of 
an interest to persons named in the grant ; but 
in this nothing could pass, but the constitutioB 
existing till some new grant. 

The special verdict has not found the time 
in which ihe commission passed the great seal. 
The patent passed for raising the tax in July ; 
the governor did not go over till October ; both 
cante together. The king, therefore, had in- 
troduced his claim to the imp<»st on the country 
prior to the time in which any assembly couA 
be called ; for his right was introduced the very 
instant of the governor's landing: and the 
elder right, in the king especially, will be pre- 
ferred above all, when it appears the procln- 
mation coald not be intended to waive the im- 
'pott 



315] 

and commons : the king considered it as a fief 
under his own personal dominion. 

With regard to many places in France, 
taken certainly by right of conquest, and ceded 
by the treaty of Bretigny, my doubt is, whe- 
ther the English laws came thither. 

With respect to the market of Calais, the 
resort of English introduced the laws there, 
for convenience, but not in the castle, nor in 
the town of Calais. 

With respect to Minorca, the laws of Eng- 
land do not take place there. 

lu the year 1713 they were referred to cer- 
tain of the council, the archbishop of Canter- 
bury, and others ; in the 3'ear 17S7 somewhat 
was done; in the year 1740 a little more: in 
1752 the privy council sent over a great mul- 
titude of laws, but the war interfered. 

[liord Jlfan{/!€/(/.— This, I think, was after 
Ihe complaint against governor Melville.] 

1606. King James grants a charter, with a 
power of making laws, and an exclusive 
fishery, from 84 to 95 degrees of latitude, to 
-the corporation of Plymouth. 

It is said this charter came into parliament. 
They came because an exclusive fishery had 
been granted to a corporation residing at Ply- 
mouth, with a power of imposing penalties. 

The objection was, that at the time the cor- 
poration of Plymouth had not sent colonies. 

Charter of'Massachuset's bay, with power 
to call assemblies, granted by the king ; va- 
cated and granted anew after the revolution 
by king Wuliara. 

I observe, when a passage has been cited 
from the history of former times, it is the cus- 
tom to say they were bad times. Where are 
we to look for the history of this country but in 
those times, separating the bad from the good ? 

In the case of St. Christopher's there were 
given by eminent lawyers very distinct opi- 
nions, in favour of the right in the crown to 
impose duties. I don't recollect there was any 
evidence of want of exercise of that right ; 
yet it was contended against because an act of 
assembly twenty- five yean after granted the 
duties. 

Yet, if one was to infer from every act that 
has been made in any of the political constitu- 
tions of this country that there was no law 
before that act was made, it would subvert 
most of the most important laws of this country. 

It was said the king might have enacted a 
law, but only before the time of the actual sur- 
render ; but that, after it surrendered to the so- 
vereignty, it becomes part of the conquering 
state in a different right ; and the ordinances 
roust he only temporary till the king and par- 
liament provides others. 

From the moment the conquest has esta- 
blished itself, from the instant in which he has 
compelled the inhabitants to give up their 
arms,— there is not any hour in which the 
parliament cannot bind -it. 

Suppoee this ordinance had been before the 
tapituulion and cesHOOi would it have ceased 



Campiell c. Hall. 

'C/ynn, io rctilv. Berore I go into 

I quanioti I ihall apeak upon Iwo 

rUpt poinu, llioiigjh »u eoi) is msne ol the 

wid till ohjecl isIiHlicif to the plainliff liy 



tt< g«iw^ quenioti I 
tiD|rarUpt poinu, llioiigjh 



tbedi 

mt importaiil an one in the ^eu 

in llist I «tn persiiailed your lordship will 

Wp«« o»»!riii judgment. 

Tlie ux ia contendeil to be legally letieil, 
ifDo • claim ul' which the fery slating of ihe 
oar prore* the il leg* lily. 

My learned I'riend has set out with disaron-- 

iDi; thf cUini of an abaolule indepeodeut sn- 

iiitbecrowD; but lie boa 

riitdt, and wais obliged It 

.'.-II ia a subordinate legislature. A 
(■orflinaie legislature, in this aeuse at least, 
a^fficolt to be conceived to ihoie who know 
Mbaw to wake dependence consist with in- 
: but llie stale or Grenada Jiatin- 
jr. It i» a tax imposed by an act 
sfltntuire power, which includes the entire 
kg^^f ereigniy ; but it is not m unconirouled 
laAorily, Ifecauie Ihe king, <rilh consent of 
prfaamcDt, nay depart from Ibis claim, so as 
IS Mail lii« aiiccnaors : the supreme legifila< 
(Ma may repeal it. The king makes up es- 
■Nlwl fMrt of that legislnlure. Is it a mark 
rf > limited, «ubutUinat«, authority, llial he 
eu iinptwe without ihem wbai they canaol 
l^a inray without him ? And that he may 
iqun Trocn this is what any man may do io 
lay mitaace of the must unconirouled legisla- 
Ml auUiqrily. 

My |*4innl frieud saya it is a sulionlinale act 
tf bjfialatioD ; on act of eneculion, not of le- 
^riaUDd. It docs nol depeod up'in the king 
•MuT ihv laws n|' England iiilmluce tbem- 
wtris, hccaaiw the parliament may alter or 
IfHlnl laws. The king may lety taxes by his 
W ainhority, which shall staoil in force lill 
1 fBliBinenl repeals lliem, which they canuot 

I bclieTo my learneil Iriend will hardly prote 

■ j>nw«r Te«led in the person of Ibe king. It 

•iittia great point our Hampden contended, 

iiW 00 t»x can be imposed by the aulhnnty 
•( like king. It must, therefore, depend aale- 
^ mM ili« iiueHiiou, whether the king has un 
BMOU ii»d«iicudeul legislation i or whether 
It" |iown uf the cruwi) ia not truly exe- 

Tlie profiiulgating and inlrnilueing the ad- 

M'Mraliua uf Ihe lawa uf Engliiiirl we ad- 

: IO be in ihe king, s« his peciili^irand oe- 

■ittry l>u«l, Iha piaking, altering, or suspeud- 

</ nl ihooe Uw«, WB deny- 

VritwillMSMidliig the ohMrralion on the go- 

"<saM>>i Af Hcotlund, ihesiatft were convened 

, I I* lb« flrU intunce of Kdward'a claim : and 

, d W claiasnl it a> n fieli and obtained as a 

f nwHrar, abll be gnvrmrd it as a king of 

E^M»d, with exrcuiive and not legislalire 

aaliwiij. 

Aato llie claim uf ■ feudal duehy in Wales, 
<>b«BMBpp(«t that the king tier introduced 



A. D. 1774. [318 

■ny fant but the laws of EngloDd : and when 
be t'oiisidera il expressly, as intimately aod 
vitally couoecied with England, as a part i a 
the body, iu one entire ilominion, eta it be 
doubled whether he underalood Ibat he was to 
govern ll by the laws of England T 

Whether lord Coke is righl in supposing 
king Jolwior aoji other prince, introduced tli« 
laws of England iolo Ireland, 1 don't think ia 
material; unless it appears some prince, bv 
his authority, made laws and regulaliona there, 
without the concurrence of Ihe Englisb pat . 

The king has tbe power, because it has been 
delegated. Thu case was not that ihe king, 
in tbe grant In tbe corporation, made laws ta 
bind others without their consenl ; bul be em- 
powered them to make laws which should hind 
themselves. The case is so fir from proving a 
power to make laws coulradictory to the laws 
of England, that it only proves ibe pitwer of 
the king to convey ibe laws of England. 

Aod because the king can erect a corporation 
which shall make bye-lawi obligatory upon 
Ihe particular community, Iherefure ihe ki^og, 
il is inferred, can make laws which shall bind 
those who never gave their consent to them. 

The strooaest authorities, ooilbrm expe- 
rience, as well as the principles of the consli- 
tuliun. and rules of law, ate against il. 

Setdcu's opinion ia agaiost it, and those of the 
other great lawyers. It has the testimony of 
the best co nsli lull una 1 lawyers, of wbicb no 
age was ever more fruitful than that of Jsmea 
the Isl, to negative it. It ought to have beeu 
not unsupponeil l>^ precedeots. Tbe character 
ofihe prince who is made the example of iht 
claim, ought to have been other Ihun il was; 
he ought to have been a prince who haled pre- 
rogative; who was desiroua of keeping llie 
right of Ihe crown within its con slit uiional 
limits, and hy no meona of extending it beyond 

The next are mere private opinions given 
by great lawyers, but in private. Though 
tney will have great weight, as far a* extra- 
iiulicial opinions in courts of law, they^re not 
leading principle* of decision: indiliad any 
private opinion been decisive. Ibis cause bad 
never beeo nnw before the court. No man re- 
veres opinions of men of great abilities mors 
ihno 1 da : but there is nni the opinion of any 
man which standing simply on the l<>oling of 
authority', I aball not think myself at liberty 
to question ; aod even Ihe greatest have been 
hei'Btolbrc queslioned successfully. I never 
could be drierred by great opinions, when I 
cousidrred by what aulhorilies the liberty of 
Ihe press hss been op|)Osed ; by what autho- 
rilies the claim of ship-money wns supported ; 
and what the event was upon both those que8> 

What was done upon the forfeiture of lb* 
charter, belbre <be Itevoluilon, is do authority ; 
bul rather an argument of error. After ibe 
Revolution some law) en gave their apinioit 
fur collecting tbe revenues a* ibey used to b« 



310] 15 GEORGE III. The 

Gollecttd ; Ail ww done mil; in tbe hitRTal 

oTiuipwiioii of lesiilitum. 

A qnetliob oT tbii mlnre, a power of ■ midq 
fihe will i* not to bf gathnrd from idcIi aniho- 
ittiM mnd circnmitiiicei ■■ thoK which have 
bwD itated. Mr. Attoraeji GcnenI wu snp- 

n'Bg an iniUnt Bliro^tMO of all farmer Uwi. 
id not aay to whea it wai a tooqiiMt. 
There are Mme aoallenble lawi In coatioue. 
Aa lb the ol^eclioa made o/S claiming of pro- 

Cfty, tbe former mode mutt remam till the 
Dg appoioti BDUther by hU euciiliTe power. 

Hy tord Vaoghan uyi Ihe inbjecU don't 
Acqaire » properly io the ioil. If the inhahit- 
wu had been turned out of il, it would have 
been in tbe king. In the idea of tlii« coanlry 
tbb property ot all Inndi wai oriffinBtly in tlie 
Wag. If Mr. Attorney General hod been con- 
teilding for Hii» aa ■ feotlal right, tlie irgurarnl 
would hare had weiifht ; bol we are not argu- 
hifffor the property of the inil. 

The aabjecU of En^and liive a right to the 
Engliah lawi : tliey hare a riglrt «o aisf mble : 
■urtbe reason why the king nerer wiys to 
them, " that ha will call aueroblioi aa noun aa 
COnTenience pecmita and occaaion alialj re- 
quire," ia, becajie io thia coanlry conrenience 
alwaya permitt. and occaaion require*. But 
alill the trust of calling them ia itpoaed in the 

Mr. Attorney Oeiieral,aflerha»ingJi»cn«ied 
(be point of aorereigniy in the caae of Ireland, 
«ah rcapect t« Ibar aaMoblieii, haa said, this 
ia in exeealioo of authority iu the king; ifao, 
then the lawa were there before, and aiieDiblies 
called npoa the aame tenna aa in England. 
And thai the acta concerning them were by 
kaihority of ptrUameiit. \ 

Willi reapect to the power nf the (ting to 
nakelawa. 

He can make no other lawa than what ghall 
hafa been made by the cnnttitiitiand aaaemUiei : 
lie can repeal none ; nor alter without them. 

Hr. Atlorney General aays that by his pro- | 
damalion the tini; promiaea thai he will grant J 
them the privilegea of Britiah avtyeeiai |iul | 
then thi« promiae cannot lake effect befbrt the i 
geternor landt, and an avembly i* called, an^ ' 
immnl lately on his landing, and before an aa- 
senibly can be called, he hai a right Io ley 
imiKiaia. 

1 lake the coniitruclinn to be, that tbe pro- 
mke taket placn from the lime nf iituingit; 
A canstitnlinn likei place immediately. We 
■re not le»« gnverned hy the lawa of ihiacoun- 
try because a parliamenl la not cautantly ail- 
tiw- 

Thii cannot l)e diatinifuiibed from the ca*e 
of any olher colony ; and if tbe power claimed 
|>e in this ca»e diulluwed, the colnniea in gene- 



Cate nfthe Ttlaiid ofGrtnada — [J 
Lord Mati^eld. I dnn'l remember Ha b( 
argued in thia caie on the queatioD whel 
ibere ia any aulhoniy which cnrnidera i 
luiny a* a part of tbe dominiona of the en 
of England. Aquitaina and ^leloa ho hd 
heir to tbe home of Anjon. 

The jiariB aeparated from the crown, 
comidered aa feodal, were governed by a 
apolic authority. Il appeara that Calaia 
Ihe proceaa and judicial writs of thu go 
Writ! of error returnable to lliii court. 
How do you nodetaland the capilnlation 



il not neceaaary for (he right. J 

haa been Ceded, I t>rliev«, inthii hnnr. 

How do you undtrstand the capitnlati 
There ii an artirle that they (hall pay nooi 
dutiea but what lliey paid to tbe king- of Frai 

Mr. Jutt. Alton.— ¥inX of all in thi* ape 
Tenlict the ariiclei of capitulation, tomt 
Ihem are alaled. I ilon'i iinderitaoil bow 
capitulation and treaty of peace agree, fii 
am to judge uj>un the verdict. 



ral vrill ilipii att all of them with the 
peodence on the supreme l^alalure, ai>it tbe 
fame conformity in the priuciplet of tb^ B'iliib 
Coaitilu^oB. (fotherwite, there will beUriiiih 
autgecta under the aaroe name, and with tbe 
aama noninal righia, aome free and olheia io 
Kiic«i«iluti«iial aubjeatioD. 



Judgment of the Court wai Ihis day gi 
by lord Mansfield, asfnUows; 

Lord Mantfitld. In this cauieof Aleni 
Campbell agiinat William Hall ; 

This il an action liruught by the plain 
who is a natural -burn sutijcct nt Great Brii 
and who, uuon the third uf Muy, 1763, ] 
chased lands in Ihe iijaud nf Grenada, i 
it il brought against the ilefendaot, Willi 
Hall, who was collector fur bit matesty at 
time of lerying the impost, and of the >e 
brought, of a duty of four and a half per o 
upon goods exporteil fiom the i&lautl uf G 
Dnda. And il is to recover a sum if mo 
which Has levied by the defendant and paid 
the plaintiir, as for this <luty nf four and a I 
per cent, for sagara whirh Here expoiteil fi 
tbe island of Grenada, from the estate and 
the cnnti^nment of the plaint<lF. 

And tlie case ia laid upon ruoncy had and 
eetved ; and plainliff, as fur niuney paid wl 
out consiili-ritiiin, the dutiea hating been i 
posed without sufficient nr lawful autlioritj 
warrant the same, demands Jud^'ment to 
cover the same aKsiusI tlie defendaiil. 

And it it kUted in ihe snecisi verdict that 
money it not |wid over, but continues in 
defeDilant'a hands, by consent of llie aituro 
general, fur bia m<je«ly, in order that llie qi 
linn may be liied. 

The special verdict atales Grenada to h 
been uouijuf^red by tbe Brilisb am is from 
Freiicli king on the 71): of l''e>'ruary, I7i 
and ihit the iiland uf G'lnada was crded 
cipiiulatiou ; and that ihe capiiululion u 
which th*y Burreiid. reil, was bj referenct 
the raiiilulation upon nhidi ihe ialaod 
Murtinicti had been aiirrenUcred. 

Tbe special vcrdn'i then slaleii tome artii 
of ihat capitiilaiion, pdrtiruUr'y the H' 
which grauit that Matiioico ihaH be gorer. 



»l] 



Campbdl v. HalL 



A. D. 1774k 



[SM 



bj it* OWD lawt till luB iqajefty's pleaiure be 
known. 

Cootiotuuice of property, relif^on, honoars, 
pnTilegei, aad exemptions, » demanded. 
Thejf are referred to the article last stated for 
•oswer, which is, that the inhabitants, being 
i i l flecti of Great Britain, will enjoy their nro- 

Ey and the same prifi leges, derived from 
r aol^ectioDy as id his majesty's other 



Eiglilh article* that they shall be subject 
Miy to the capitation tax imposed by his ma> 
ynty the king of France, expences of justice 
UM puhlic government to be paid out of the 
kiac's domain. 

Referred to the 7th article, which states the 
rafe— and refers to the duties paid by the inba- 
hitaats of the Leeward islands. 
. The next instrument is the treaty of peace 
Ae lOth of February 1763, wbicli states the 
ecaioQ, and other articles not material. 

The next and material instrument which 

ar slate is a proclamation un(i«ir the great 
, the 7th of October 17G3, reciting thus : 
* Whereas it will greatly contribute to the 
' Mtliog of our said islands, of which Grenada 

* if one, that they be informed of our love and 
'paternal care for the liberties and rights of 
' Ibose who are or shall be inhabitants thereof; 
< we have thought (it to publish and declare by 

* this our proclamation, that we have by our let- 
' Ins patent under our great seal of Great Bri- 
' In, whereby our said governments are con- 
' i(6Medf given express power and direction to 
' iv goremora of our said colonies respectively, 
'iMt, so lOon as- the state and circumstances 
*af the mid colonies will admit thereof, they 
■Aally with the advice and consent of our said 
f canncilv call and summon general assemblies, 
*Ib snch manner and form as is used iii the 
' slhcr ooloniea ander our immediate gpvern- 
f Meat. And we haTe also given power to the 
'mii governorsy with the advice and coQsent 
'afonr said council and assenobly of repreaen- 
'tMives as aforesaid, to make, constitute and 

* ordain laws, statutea and ordinances for the 
' IfMc peace, welfare and ^ood government of 
'•arsaiu colonies and the inhabitants thereof, 
' IS sear as may be agreeable to this laws of 
' Eagland, and under such regulations and re- 
■ Mrictioos as are used in our other colonies.' 

Then follow letters patent under the great 
ml, or rather a pniclamation of the 26tb of 
karch 1764, whereby the king recites, that he 
M ordered a survey and division of the ceded 
iriaads, as an invitation to all purchasers to 
csmeaod purchase upon certain terms and con- 
AioDS specified in the proclamation. 

The next instrument stated in the verdict, 
htters iMtent on the 9th of April 1764, gives 
MounissioD and authority to Robert Melville, 
<^. appointed governor of this island of Ore- 
ia4a, to summon assemblies as soon as the 
titaaiion and circumstances of the island would 
idniit ; and to make laws in all the usual forms, 
■itb reference to the other plantations where 
aMembUes are established. 



The governor arrived in Grenada the 14tbL 
of December 1764; before the end of 1765, 
particular day not stated, the assemblies actu* 
ally met : but before the arrival of the governor 
in Grenada, indeed before his commission, and 
before bis departure from London, there is an* 
other Instrument upon the validity of which tha 
whole turns. 

Letters patent under the great seal, hearing 
date the SOth of July 1764, reciting that ii^ 
Barbadoes, and all other of the British Lee^ 
ward islands, a duty of four and a half pei^ 
c^nt. is paid upou goods exported ; and re- 
citinir farther : 

' Whereas it is convenient and expedient, 
' and of great importance to our other sugar 

* colonies, that the like dufies should taka 

* place in Grenada ; we do Tiereby , by virtue of 

* our authority and prerogative royal, ordaiq 

* that an impost of four and a half per eenC 

* in specie shall, from and after the 29tb day of 

* September next, be raised and paid to us, our 

* heirs and successors, for and upon all dead 

* commodities of the growth or produce of our 
' said island of Grenada that shall be shipped 

< off from the same, in lieu of all customs an(| 

< impost duties hitherto collected upon goods 

* imported and exported into and out of the said 
' island, under the autj^prity of his most Chris* 

* tian majesty, and that the same shall be col* 

* lected :' then it goes on with reference to the 
island of Barbacu^es and the other Leeifard 
islands. 

The jury find that ip fact such duty of fot||p 
and a half per cent, is paid tp Lis majesty in 
all the British Leeward ulands. 

And they find several ^is of assembW whjch 
are relative to ttie state of tUe 'seyeraiisla^dsy 
and which I shall not state, a^' tl)ey are 
public, and ev^ry gentlenuui may ' have* acf^s^ 
to them. 

These letters patent of the SOth of July 
1764, with what 1 stated in the opening, ara 
all that is material in this special ve)r({ict. 

Upon the whole of the case tliis general 
question arjses, beipg the substance of what is 
submitted to the Oo^rt by the verdict : <* Whe- 
ther these letters patent of the 30th of July 
1764, are good and valid to abrogate the Frencn 
duties, and in lieu thereof to impose this duty 
of four and a half per cent." which is paid by 
all the Leeward islands subject to bis majesty. 

That the letters are void lias been contended 
at the bar, upon two points. 

1st, That although they had been made 
before the prociaiiation, the kin^ by his pre- 
rogative could not have imposed them. 

!2dly. That, although the king had sufficient 
authority Mure the 20tli of July 1764, he had 
divested himself of thatauthority by the procla- 
mation. 

A great deal has been said and authorities 
cited — relative to propositions in whicli both 
sides exactly agree, or which are too clear to 
be denied. The stating of these will lead us 
to the solution of the first point. 

1st, A country contjuered by tlie British 



15 GEORGE III. 



The 



883] 

arms becomes a domiDion of the kinff'toright 
of hit crown, and therefore necessartly inbject 
to the legislatWe power of the parliament of 
Great Britain. 

Sdiv, The conqucreil inhabitants once re- 
ceived into the conqiieror'i protection become 
tnbjects ; and are universally to be considered 
in that light, not as enemies or aliens. 

Sdly, Articles of capitolation u|H)n which the 
conquest is surrendered, and treaties of peace 
by which it is ceded, are sacred and inviolable, 
according to their true intent. 

4thly, The law and legislation of every do- 
minion equally aflTects all persons and pro|ierty 
within the limits thereof, and is the true rufe 
for the decisiuu of all questions which arise 
there : whoever purchases, toes or lives there, 
puts himself under the laws of the place, and 
in the situation of its inhabitants. An English- 
man in Minorca or the isle of Man, or the 
plantations, has no distinct right from the i»- 
tives while he continues there. 

5thly, Laws of a conquered country con- 
tinue until they are alteretl by the cor.qaeror. 
The justice and antiquity of this maxim is un- 
convertible ; and the absuni exception as to 
pagans, in Calvin's case, shews the universa* 
lity of the maxim. The exception could* not 
exist before the Christian sra, and in all pro- 
bability arose from the mad enthusiasm of the 
crusades. — In the present case the capitulation 
expressly provides and agrees, that they shall 
continue to be governed by their present laws, 
until bia majesty's pleasure be further known. 

6thly, If the kin|^ has power (and, when I say 
the king, I mean in this case to be understood 
** vrithont concurrence of parliament*') to make 
new laws for a conquered country, this beiug a 
power subordinate to his own authority, as a 

£art of the supreme legislature in parliament, 
e can make none which are contrary to fun- 
damental principles ; none excepting from the 
laws of trade or authority of parliament, cr 
privileges exclusive of his other subjects. 

The present proclamation is an act of this 
tobordinate legislative power : if made before 
the 11th October 1763, it would have been 
made on the most reasonable and equitable 
grounds; putting the island of Grenada on the 
aame footing as the other islands. 

If -Grenada paid more duties, the injury 
would have been to her ; if less, to the other 
islands. 

It would bare been carrying the capitulation 
into execution, which gave ho|ies, if any new 
duties more were laid on, their comiiiion would 
be I he same as that of the other Leeward 
islands. 

The only question which remains then is, 
whether the king had power nfier ihe 4ih of 
Fehniary ITdS, of himself, to impose ihi« duty. 

Taking these propositions to be grantetl, he 
has a legislative power over a conquered coun- 
try, limited to him by the constitution, and 
■ohiordinate to the conatituiton and parliament ; 
and a power lo grant or refuse capitulation. 

if Im rfefuM, and pun lo tin aaord or extii^ 



Case of the Island ofGretiada'^ [S24 

Ktes the inhabitants of a coontry, obtaiDing it 
^ conquest, the lands are his ; and if be plaota 
a'' colony, the new settlers share the land be* 
tween them, subject to the prerogative of the 
, conqueror.* If he receives them into obedi* 
ence and grants them property, be has power 
to fix a tax. He is intrusted with the terms of 
making |)eace at his discretion ; and be maj 
retain the conquest or yield it up, on such con- 
dition as he shall think fit to agree. 
This is not a matter of disputed richt;^ it 
! has hitherto been uncontroverted that the king 

- may change part or all of the political ibrm of 
government over a conqoered dominion. 

To go into the history of conquests made by 

j the crown of England. The alteration of tba 

I laws of Ireland, has been much discosaed by 

the Uwyers and writers of great fame, ffo 

, man ever said the change was made by the 

{larliament ; no man, unless perhaps BIr. Mo« 
yneux, ever said the king could not do it. 

The fact, in truth, after all the researchct 
that could be made, comes out clearly lo be at 
laid down by lord chief justice Vaugbao. 

**• Ireland received the laws of England by 
the charters and command of H. 3, king JohOi 
H. 3, and he adds, &c. to take in Edward, and 
the successors of the princes named. Tliat 
the charter 12 king John, was by aaaent of 
parliament in Ireland, be shews clearly to be 
a mistake. Whenever a pariiament was called 
in Ireland, that change in their oonstitotioa 
I was without an act of pariiament in Englandp 
I and therefore must have been derived from 
the king." 

Mr. Barrington is well warranted. Tba 
12tb of Edward 1st, called the statute of Waled^ 
is certainty no more than a regulation made by 
the king as conqueror, for the government 'oi 
the country, which, the preamble snj's, wm 
then totally subdued; aua, however for par- 
poses of policy he might think fit to claim it ai 
a fief, appertaining to the realm of Englandlf 
he could never think himself entitled to make 
laws without assent of parliament, to bind tbc 
subjects of any part of the realm. TherefiMf^ 
as he did make laws for Wales without assent 
of parliament, the clear consequence is, ht 
governed it as a conquest : which was his title 
in fact, and the feodal right but a fiction. 

Berwick, after the conquest of it, was go» 
vemed by charters from the crown, till the 
reign of James the 1st, without interposition ef 
parliament. 

Whatever chanj^es vere made in the lawi of 
Gasconv, Guyenr.e and Calais, must have beca 

- under tbe kind's authoiity ; it* by act of par* 

* '* Those u ords seem to mean, that Ibt 
kiiiv:*f« irtrislauvo auilioritv "ver these new aet* 
tiers, is derived tVoin tlie circumstance of hit 
having granted tin^m their lands ; though, still« 
> the last wonis * suhject to the prerogative of tba 
conqueror* seem very obscure, since the wbola 
matter in question is to know what is the prc^ 
rontive of the cooqueror." 8 Canadian Fn^ 
holidcra 51. 



_ tlimenl thrre btk commercial ^ 
TttiliTC lo »'acli uf the canqu»ts wliich I 
bue nameil ; iinne making- any cbaugi 
ih«ir cDOEtiluii'in anil laws. 

Vc| •• to Calais, there was a great change 
made in llieir coii'liluljoo : Tur ihey nereaiini' 
aoocd bj nril lu irni hurgesset lit Ihe Eai;li»h 
Mdiamenl ; Bod. ai this waa nnt by act of par- 
liitncDt, ii muat ba*e been by the eole act or 
liif kiug. 

tt ilfa re^rd 10 tlie inbahitanli, llieir properly 
i:i<l trtile, at Gibraltar, the king, elet diice 
lui cunqiml, has Tram time to tiroe made 
wdara and rrgulaliona cuilable lo the conililion 
M ibosQ a ho lire, trade, or enjoy properly la a 
prriaiiD lonto. 

Mr. AUorney General has alludeil to a *a- 
Mljr of iiuiaace«, several wilhiu theie twenty 
fW*! in which the king has exerciied legisls' 
<tm ortt Blinorca. Id Minorca il has ap- 
fmwd Ulely, thai there are and have been lor 
JIM* b*ck a great manv iahabitaDle or trortti, 
■i ■ OTMI trade carried ud. 

If ■£> king doet it there aa coming in the 
paM vt ihe king uC Spain, because Ibeir old 



continues (which by Ihe by it 

tm pfOof that Ihe coDstilution of England does 
HI ■cecMarlly follow a conqueM by the king- 
it Ewhiid) llie same argument applies here ; 
irUSre the Tlh of Oclober, 1763, the consli- 
Mi«tt ef Grenada conlinueU, and Ihe kiug slirad 
■ Ihe place of their lurmer aorereign. 

After the conquest of New York, in which 
Ml of Ihe oM Dulcb inhnbltnnU remained, 
img Chariea the 'id changed iheir conFiilulion 
wd palilicsl fnrm of govemmeot, and granted 
M M Ifae ttukc of York, to hohl from bii crawn 
aaderall ilie r^ulatiuna coulaiued in the let- 

II is no* 10 be wondered ihat an adjudged 
MM in |inint ti out to he found ; no dispute 
ft wa« Rtarlvd before opon Ihe king's legii- 
Ittnr ritftal over ■ couqiieei : ii never was de- 
aiiri ui ■ ciiut of Uw or equity iu Weslmin- 
Mct-b*l). tieter waa questioned in parliameiil. 

LiwJ Cokv'c report of ihe argumenU and 

rHOlationa at the judges in Caldn's esse lays 

tl^aim as clear. (Aiul ihat strange enirnju- 

4iaai upftion, as loa uonqueal from a pagan 

CMMlrjr, Mill not make reason not lo be reasOD. 

■arf taw aot to be law, as to the rest.) And ihe 

tfohaa^, that if aking~~l omil the dislino- 

■ian belw*«B a Christian and infidel kingdom, 

•WU M 10 Ibis pur|Hise ia wholly groundless, 

mi DMI dcMnredly exploilcd—" If a king 

Dana Ut a biogdom by cooqnesi, he may, at 

*- ^ pIcNWirv, alter and change the laws of lliat 

L'dofD i bot, until he doUi make an allera- 

'-. lim lactnit laws of that kingdom remuin : 

' fa kioc bath a kingdom by deaceni, there, 

'!>:< by iKc Iswi of iho kingdom he doth in* 

i: lb* kJHgdom, lie caanol change the laws 

liinwilf nitbaat couaeat of padiameui. 



king JdIih bad given In them, being under hia 
obedience and aubjecliun, the laws of England 
for lbs government of iheir native couulry, no 
succeeding kinu could alter Ibe same without 
parliament. Which is ver^ jusi, and it ne- 
cesiBi'jIy includes that king John himself 
could not alter the grant of the lawa of Etig- 

Besidea this, the authorily of two great 
uames has been cited, who took the propvsitiun 
for granted. Anil though opioiooB of counsel, 
whether acting officially in a public charge or 
ID private, are not properly aulhority to found 
n decision, yet I cilelliemi — not to eslablisb 
so clear a point, but to sbew that when il has 
been matter of legal enquiry Ihe answer it ha* 
received, by gentlemen of eminent fcbarsoler 
and abilities in llie profession, has been imme' 
diate and without hesilation, aod coaformabla 
t» these principles. 

Id 179!, the assembly of Jamaica refusing 
the nsnal supplies, it was referred to sir Philip 
Yorke and sir Clement Wearg, what was to 
be done if ihey shouhl persist in their refusal. 

Their answer is — '• thai, if Jamaica wassljll 
to be considered as a conquered country, Iha 
king had a right to lay laxvs upon the iiiliahi* 
; but, if it was to be considered in Iba 
I light as the oiber colonies, no lax could 
iposed upon ihe inhahiUuis, but by an as- 
aeniblv of the island, or by an jicl of parlia- 

Tbe dislinctioD in law between a conquered 
country and a colony tliey held to be clear and 
indisputable ; whether, as to the case bcfor* 
lliem of Jamaica, lliat island reinamed a con- 
quest or was made a colony, ibey had not 
examined. 

I have, upon former occasions, traced iha 
constitution of Jamaica as far as there ara' 
honks or papers in Ihe offices: I cannot find 
that any Spaniard remained upon the islaud ao 
late a* the Bestoralion ; if any, they were fevr, 

A gentleman, lo wlmm 1 put the question oq 
one of the aigunieols in tills cause, said ha 
knew uf no Spanish slave of the while iuhabl- 
tanlB of Jamaica; but there were amunfa^ttha 
negroes.* 

The king, I mean Charles ihe second, afler 
Ihe Itesliiration invited settlers by pruclaraation, 
promising them his protection. He appointed 
at first a goiemor and council only ; nfier- 
wsrds he granted a couimiisiun to the governor 
to callan assembly. 

The cunstitulion of every province imme< 
dialely under the king has arisen in the aama 
manner ; not by the graoii, but by Ibe com- 
mission subsequent to call an assembly. And 
Iherelore, all the Spaniards huTing lei) Lba 

Upon this subject see Edwards's History 
of the We«t Indies, book !. chap. S, nift./n. 
chap. 3,Tol. 1, pp. US, 159, l6S. 



927] 



li GEORGE 111. The Case of the hlani nf Grenada^ [flSB 



isUnd, of hfcrin^ Been killed or driren out of 
it, the first settHpgf was by an Enj^lidh colouy, 
who iiAiler the authority of the kirig;^ planted a 
Vacant island, belonging to him in right of his 
crown. 

The like is the case of tbie islands of St. 
Helena and St. John, mentioned by Mr. 
Attoniey-Oeneral. 

A maxim of constitdtional law with all the 
jndres in Cal fin's case, and two such men in 
modem times as sir Philip Yorke and sir Cle- 
ment Wearg,* 1 take it for granted, will aconire 
tome anthoritv, even if there were any thing 
which otherwise made it doubtFul ; but on the 
isbhtrary no book, no saying of a judge, no not 
even an opinion of any counsel publiic of pri- 
vate, has been cited ; no instance is to be found 
■ ■ ■ r 

* ** Frenchman, The opinion of sir Philip 
Yorke and sir Clement Wearg, must indeed be 
allowed \n be an authority in point to the ques- 
tion; because those two learned gentlemen 
•eem to bare meanj^ ascribe to tlie crown the 
same perfect and permanent sort of legislali? ie 
authority over Jamaica, in case it was still to 
be conNideripd as a conquered country, as lord 
HansBeld has ascribed to it with respect to the 

^island of Grenada before the proclamation of 
October, 17*63 : but yet 1 cannot think it a ? ery 
inespectable authority, notwithstanding the 
threat learning and eminence of those gentle- 
men ; partly, because it seems to hare been 
rather a hasty oniniun, upon which the}' had 
iiestowed very little consideration, since they 
did not take the pains to enquire whether Ja- 
maica was to he still considered as a conquered 
country, or u hether, by events subsequent to 
the conquest of it, it was become a colony ; and 
partly, because it may well be supposed that 
persons who serve the crown in the offices of 
attorney and solicitor general, have, in all 
doubtful matters relating to the royal preroga- 
tive, a bias on their minds in favour of it. 

** Englishman, Persons in their then situa- 
tions must always be liable to the suspicion of 
inclining a little to favour the prerogative of 
the crown: and, as you well observed, this 
opinion of theirs seems to have been given very 
hastily and with very little attention to the sub- 
ject, since they did not take care to inform 
themMves concerning the then present condi- 
tion of Jamaica, so as tu determine whether it 
bught to be considered as a conquest or a 
colony, though this was absolutely necessary 
to make their opinion of any use to the minis- 
ters of state who had consulted them. It must, 
however, be confessed that, crude and hasty as 
this opinion seems to have been, it sdrves to 
ghew that those two great lawyers bad a gene- 
ral, loose, floating, idea of the king's being the 
absolute legislator of all countries acquired by 

' cotaquest, which, (as 1 observed to you in the 
beginning of our conversation,) was an opinion 
ihat had been adopted by a grelit many private 
Uwyers, though 1 never could see aby fonnda- 
tM>ft fbr It." CauiditB Frteholdcr, DM. f, 
p. 297| et Iff. 



in any period of oar history where it waa ^cr 
questioned. 

The counsel for the plaintiff ondoubtedly Ik- 
beared this point from a diffidence what migllt 
he our opinion on the second. 

but U|K>n full consideration we are all df 
opinion tnat before the SOtb of July, 1764, the 
king had precluded himself from an exerciM 
of the legislative aothoritv by rirtueof his bre- 
roptive, which he had before over tbe islairtl 
ofGrenada. 

The first and material instrnnient is the pro- 
clamation of the 7th of October 1763. 8m 
what it is that the king says, and with wbit 
view be says it ; bow and to what he lengigei 
himnself and pledges his word. ** WhereAi H 
t^ill greatly contribote to the speedy aettliAg 
our said new governments, that our loving «lC 
jects should he informed of our paternal cart 
for the security of tlie liberties and propertiai 
df those who are and shall become inhamtanti 
thereof; we hate thought fit to pablftb «bS 
declare by this our proclamation, that we bati 
in the letters patent nnder our great teil taH 
Greal Britain, by which tiie said gdvemmMili 
are constitnted, given express power and dirii6 
tion to our governors of our said coldniei r^ 
spectively, that, so soon as the state and bir 
cunfistances of our said cotonies will ndtaril 
thereof, they shall, with the advice and edb'< 
sent of the members of oar council, aamnKMI 
and call Mieral atoembliea" (and then folibi 
the directions for that purpose.) And to wM 
end P •* To make, confetitnte and ordaia bM 
statotes, and onlinaneet, for the public peafl0 
welfare and good of our said colonies (of wbid 
this of Grenada is one) and of the people ani 
inhabitants thereof, as near as may be agredk 
ble to the laws of England.** 

With what view is the promise reciting^ tH 
commission actually given P To invite setUiets 
to invite subjects. Why? The reason I 
given. Tliey may think their liberties aai 
properties more secure when they have a legii 
lative assembly. The governor and coand 
depending on the king he can recall them i 
pleasure, and give a new frame to tbe cotM 
tution ; but not so of the other which haa a rie 
gative on those parts of the legislature wbid 
depend on the king. 

Therefore that assurance is given them fc 
the security of their liberties and properticj 
and with a view to invite them to go and setll 
there after this proclaniation that assured tlM^ 
of tbie constitntiod under which they were I 
five. 

The next act is of the €6th of March tttA 
which, the constitution having been estaMiab^ 
by proclamation, invites further, such as atM 
be disposed to cOlme and purchase, to live iillctt 
the constitation. It states certain terms ail 
conditions on which the allotments were to I 
taken, cstabliabed with a view to permaoitft 
colonization and the encrease and caltlvfctiod i 
th6 new ftettlement 

In farthier confinttatiMi, on the Sfth tof Aj^ 
1764^ tiH^ ttODdM Mbre tflte f mpM ft qud 




Campbell v. HaU. 

fTibiweiiiQ Bctual coTniiil«> 

Mi^lviltr, lu <Mi1l in issi!<i>hlv 

kle mil cirFiiiii.tantts nl' (lie 

aUmii. — Vow will oWrvp in the 

llierE ia no t^itltture rea^rreJ to 

bj th« ktni>; or by ihe governor 

uihln hJ!i aulhorily, or iu anj niher 

ttiktioer uniil ilieaRjemblyihould be 

pr0nti«c iitlttmis rlie contnry ; Tor 

niuttucilon is tu be put uiMn il, 

iii|is it may be somewliat oilHeult 

R (liruii(>h bII ilie csacs to nhieh il 

r Kpjilleii) il ap|iarenlly cnniidera Iiiivi 

KJHK IB llle iiHiiad, arxt to li« ailmilii^- 

* c<tart« iX juilicp; nai an ialei'|l(»ition 

natin aiiihuritj brtwMD the lime of the 

and of fallioj,' ilie asBCntbly, 

I iHtt appear IVom Die appcitl terilict 

1 Hrd auembly was i^allFil ; it mnst 

n in ■bout a year at t'artlieiit from (he 

'• krrital. Tor Ilie Jury tiiid lie arrired 

rr 1764. anil ibat an aiMmbly was 

I Ihe latter end ol the year 1765, 

e been nolbiny; in 

WUItl olrc-.imalaucM ot'lhe i'^land to prc- 

Sllhl^ an uicmbly. 

flitorvfore think by Ihelwn pMclainationa 
fl IMAInlikiion tu gotemor Metrilte, (be 
d iiDmedfalely and irrcTiicahly graoted 
m did Or ahould inUthii. ur who bad or 
U hnVe properly in the isliad of Grenada 

rerftl to all whom il ahould roneern — 
soiiordiflaie legialatiuo oier Ihe iatand 
aaulil be exercited by ibeaasembly with Ibe 
.ad ruuiiri'. in like luaQDer as in the 
'ir>-4 under ibpbing. 
< Inre, IhouKli the rlgbl of Ihe king 
. lEcl taxe* on ■ conquered cnliniry, 
l»iii in ri^t of liii rruwii, wat (rood, 
Lltia duty reaaoiiahle, equitable and etpe- 
^ aiMl acrordins lo the nodinK of ih^ rer- 
'i \m BarOadoei, and til ihe other Lee- 
; yet by thr inadierlenry of Ihe 
tiafi'a vrrTanIa ill the urder lii whteh lb 
Tit iMiramfnti paiseil ibeuffipe, (rorlbi 
; -I of the toib of July 1764. lor taJaing the 
1 r,! .liiie.l, sboolil hVve lie»n firsi) Ihe ordei 
' niid the bsl ne Ibliik contrary lo 
Ij-.iuq of the first; and therefore 



A. D. 1774. 



[330 




^^^iim UUer* patent lin|>osinii ihe diUv of 

^^^~~*^-1f pet cent, were publiahed in July 

''~mtimiaaie«of goTemor MeNille 

Vtral and ^vernnr in chief of 

' V Amniif; other ihineu he nan 

' 11 in UMemhty nf ihefree- 

I It), hud pMsed the ^eal 

: inonlh of April of* the 

i: Ihe lirst asaerubly nf ih« 

nn\ intrt till abont Detemhei 

liH near a year and a half after 

I (he letlera patent, thai impiraed 

of fiiir and k half per cent, and 

I limyearaDfierthRpnlilicatlon of Ihe 

Hon Of October UtX, which prO- 

i'^mI Uw pM>pl« of Grenada » jjof eruBaem by 



How proper toerer the thing iftij be rea- 

peeiinic Ibe object of the»e letteotpaiint, il ran 
..nlv no» be done (to Osfc the rtordsuf air Philip 
Yorke and lir Clement Wrtre) ■• by an act of 
assemblv uf (beiilami, or by ihe oaHiiuiint of 
Great griiaio." 

TbecoDaequenceitJiidgineolfor ibePlaiatifT. 

fNule. I have here u^aiii the pleasnre of re* 
lutniog my thanlo to Mr. Alleyne, by whom 1 
have been thionred with ihe copy of t|ie Special 
Verdict in this remarkable cau»e. 1 have ilti> 
u^ some material a I argelv with which I bare 
been obli^eil in the first Jay'a argument; tbi 
crowd being then ao great tbal 1 wai hindered 
in taking notes of ray unn; and for the same 
reason I have used the liherly in ihe judgment 
of supplying what I found imperfect or mia. 
laken in my own nolea io leveral placet, I'rntn 
a printed note of It wbicb ilas been publiiihed ; 
and correclinir that iu some placet where t 
(bund it uiialaken.] 

[Here cnrfl the Caii at rqtarted ty L^.'j 



In llie report of Rex v, Samuel Taughant 
4 Burr. 9494, Upon a queaiiou wlielher the 
slatutei 13 R. 3, c. -2, and 5 and Edw. $, c. 
16, extended to Jamaioa, lord Manifield taya, 

" If Jaitiaica was considered as a conqueitf 
they would retain tbelf old lawa, lit) the con- 
queror hail ihonght fii Io alter Ihcm. If H U 
cousiileVed as i colony, (wliicli il oosht to be, 
Ihe oht inhabitants hating lelt Ibe itiatid) then 
(hese ainiutes art |H)iotT>eret;ulaiiona uf policfe, 
nut adapleil to the cii-eiim«TancFs of a new co- 
lony ; and Iberefore no part of that law of 
Rngland, which every ci^ony fro-n neeeMilV 
ia Supposed to carry whh iheoi at their ftrii 
!>"'"'■!''"■" 

an assembly, not immMialely, but at loon ia 
the siluatiun and i'ircunMlani.-es of the aaid 
new governmeniB ivunld admit thereof. HetCj 
therefore, was an inlertal of mnr6 than lAo 
years after the pOblicHrion of the proeltnn- 
lion ofOctOber 1T63, before Ibe «swi»My of 
Grenada met; during whk-h, according In yoDt 
way of reagonirig, the king was not precluded 
by hisprnclnmaiion of Ooiober 1769, front tx- 
erciJing bial^i«1alifeaulboritv in ihe islani) of 
Grenaila, in the same manner as hefor* Ihe said 
nroclamation wai made, aupposing he had be- 
fore that act been legstly possm-ed of such an- 
thnrily; abd in Ihe former hairofihis inltrfaf,- 
nimely in July i761, histlmjesly did HercM 
tbi« legislalire aulhorily by iMning ihnM Itt* 
fer* patent which Imposed Ihe said duly of 
four and a half per cent. These kiit-ra psteM 
therefore, arrording lo yoor doctrine, miisl have 
been legal when ihey were ivsned if (hrr would 
have been so lief<ire die Ktid prodiimitioh of 
October 1793." J C»M9d. FreehuldW, p. !H. 
Hm bIm Ihe pasiBgM iUmUflMTy iRMMnJl; 
JiBd fullDlHtig thi*. 



531] 



15 GEORGE lU. The Case of the bland of Grenada^ [S89 



Mr. Edwards (Hist, of the West Indies, book 
S, chap. 2,) gives a brief account of this case 
of Campbell v. Hall, to which he subjoins ani- 
madrersioos on some of the most important 
passaf(es in lord Mansfield's argument. In 
nis introduction to those animadversions, he 
■ays, *^ It is impossible, I think, not to per- 
ceire, througfhout these and other parts of the 
learned judge's argument, a certam degree of 
Iwas arising from the unhappy dissentions, 
which about that period broke out into a civil 
war between Great Britain and her colonies : 
ID the progress of which, it is believed this noble 
person distinguished himself as an active par- 
tizan, and a powerful advocate for the uncon- 
ditional supremacy of the mother country." 

In the second edition of his work he inserted 
at the end of that chapter the following 

Postscript to the History of Grenada. 

** The first edition of this work having fallen 
into the hands of a gentleman of distinguished 
abilities and learning, (one of his majesty's 
aeijeant's at law) he was pleased, at the au- 
thor's request, to communicate his thoughts 
in writing on the doctrine maintained by lord 
MtiDsfield, concerning the legal authority of 
the crown over conquered countries, as stated 
in page S68 of this volume, which I have great 
pkai ure in presenting to the reader, in the pre- 
cise words in which tiiey were given : 

'' The ground upon which the Court rested 
their judgment in the case of Grenada, wu 
clearly sufficient to warrant that judgment, 
even admitting the doctrine laid down by 
lord Mansfield on the other point to be well 
founded ; but nothing can be more unfounded 
than that doctrine :— every proposition upon 
which it is made to rest, is a fallacy. I deny 
that the king (at least since the constitution 
has had its present form) can *• arbitrarily 
grant or refuse a capitulation.' The power 
of granting or refusing a capitulation^ in the 
case of a siege or invasion, is certainly vested 
in him ; but it is vested in him, hke every 
other power with which he is entrusted by the 
British constitution, to be exercbed according 
to the usage which has prevailed in like cases. 
If that power should be abused, his officers and 
ministers must answer to the public for their 
misconduct. 

'* For the same reason I deny that < the 
king can put the inhabitants of a conquered 
country to the sword, or otherwise exterminate 
Ihem,' unless such severity be fully justified 
by the laws of war, as they are imderstood 
amongst civilized nations. 

*' But, supposing that a case should hsppen 
wherein sucn severity would be justifiable, I 
deny that, upon the extermination of the 
enemy, the lands would belong to the king 
bimsdf : I say they would belong to the state ; 
mod that they would be subject not merely to 
the king, but to the sovereign power which go« 
verna the British dominions. If the king re- 
oiirti the inhabitmtf ander bit protactkm, and 



grants them their property, 1 deny that he has 
power to fix such terms sind conditions as be 
thinks proper ; for be cannot reserve to bimadf, 
in his individual capacity, legislative power 
over them : that would be to exclude tlie an* 
thority of the British legislature from the ^ 
vemment of a country subdued by Brilish 
forces, and would be an attempt to erect unpe- 
rium in imperio. One consequence of this 
would be, that such conquered territory might 
descend to an heir of the king not qualimd, 
according to the act of settlement, to succeed to 
the crown of Great Britain. The king[ might 
give it to a younger son, or bestow it on « 
stranger. A thousand other absurd conae- 
quences might be pointed out, ai resulting from 
such incongruity. 

<« 1 admit that the khig (subject to the re- 
sponsibility of his ministers,) may yield up a 
conquest or retain it as be sees best, but 1 day 
for the reasons above hinted at, that be can 
impose what terms he pleases, or that he can 
arbitrarily change the law or political form of 
its government. I think he may agree opon 
the capitulation, that the conquered people aball 
continue to enjoy their ancient religion and 
laws, and even this must be tub modo ; but t 
deny that he could, by his own authority, grant 
these things after the capitulation ; for thai 
would amount to an exercise of independent 
sovereignty. The fallacy of lord MansfieM'a 
argument, proceeds from an endeavour to coor 
found the king's civil and military characterSy 
and to perpetuate in the chief executive aia« 
gistrate, the vast powers with which it is neoes« 
sary to invest the generalissimo of^thearmieii 
during the continuance of military operations. 
The moment these operations cease, he re* 
sumes his civil character, and in that charactec . 
no man will venture to assert that, as king of ^ 
Great Britain, he has the prerogative of bang 
a despot io any part of his dominions. WKb 
respect to the cases of Ireland, Wales, and 
Berwick, even taking them precisely as lord 
Mansfield puts them, 1 think they do not weigh 
a feather in the argument. Those cases hap- 
pened long before the English constitution had 
reduced itself to its present form, consequently » 
before the rights of the people were ascertained 
and defined as they exist at present. If a few 
instances of the exercise of arbitrary power by 
the ancient kings of England, are to be received 
as decisive cases, to shew what are the powera 
of the crown at this day, I think it would be 
no very difficult task to find authorities,* even 
as low down as the reigns of the Plantagenet& 
and Stuarts, to prove that the British govern^ 
ment ought to be a pure despotism !" 



But the most valuable investigation which I 
have seen of the case of Campbell and Hail, and 

* See