the laws of every Englishman, bere or abroad, which as a subject he belonged at the time is now concerned. He observes, the number of his death." All relations governed by muis 14,000 or 15,000; if so, high time to put nicipal laws, must be so far dependant on an end to the practice; more especially, since them, that if the parties change their country they must be sent back as slaves, though ser- the municipal laws give way, if contradictory vants here. The increase of such inhabitants, to the political regulations of that other country. net interested in the prosperity of a country, [See the cases cited in Fabrigas v. Mostyn, inf.] is very pernicious; in an island, which can, as In the case of master and slave, being no such, not extend its limits, nor consequently moral obligation, but founded on principles, maintain more than a certain number of inba- and supported by practice, utterly foreign to bitants, dangerous in excess. Money from fo- the laws and customs of this country, the law reign trade (or any other means) is not the cannot recognize such relation. The arguwealth of a nation; nor conduces any thing to ments founded on municipal regulations, consupport it, any farther than the produce of the sidered in their proper nature, have been treated earth will answer the demand of necessaries. so fully, so learnedly, and ably, as scarce to la that case money enriches the inhabitants, leave any room for observations on that subas being the common representative of those ject: any thing I could offer to enforce, would necessaries; but this representation is merely rather appear to weaken the proposition, comimaginary and useless, if the encrease of peo-pared with the strength and propriety with ple exceeds the annual stock of provisions re- which that subject has already been explained quisite for their subsistence. Thus, foreign and urged. I am not concerned to dispute, superfluous inhabitants augmenting perpetu- the negro may contract to serve; nor deny ally, are ill to be allowed; a nation of enemies the relation between them, while he continues in the heart of a state, still worse. Mr. Dun- under his original proprietor's roof and pro ning availed bimself of a wrong interpretation tection. It is remarkable, in all Dyer, (for I of the word natural:' it was not used in the have caused a search to be made as far as the sease in which he thought fit to understand 4th of Henry the 8th,) there is not one instance that expression; it was used as moral, which of a man's being held a villein who denied no laws can supersede. All contracts, I do himself to be one; nor can I'find a confession of not venture to assert, are of a moral nature; villenage in those times. [Lord Mansfield ;but I know not any law to confirm an immoral The last confession of villenage extant, is in the contract, and execute it. The contract of 19th of Henry the 6th.] If the Court would marriage is a moral contract, established for acknowledge the relation of master and sermoral purposes, enforcing moral obligations; vant, it certainly would not allow the most exthe right of taking property by descent, the ceptionable part of slavery; that of being legimacy of children; (who in France are obliged to remove, at the will of the master, considered legitimate, though born before the from the protection of this land of liberty, to a marriage, in England not): these, and many country where there are no laws; or hard laws other consequences, flow from the marriage to insult him. It will not permit slavery susproperly solemnized; are governed by the mu-pended for a while, suspended during the pleaBicipal laws of that particular state, under sure of the master. The instance of master whose institutions the contracting and disposing and servant commencing without contract; and parties live as subjects; and by whose esta- that of apprentices against the will of the parbished forms they submit the relation to be re-ties, (the latter found in its consequences exgulated, so far as its consequences, not conCerning the moral obligation, are interested. In the case of Thorn and Watkins, in which your lordship was counsel, determined before Lord Hardwicke-A man died in England, with effects in Scotland; having a brother of the whole, and a sister of the half blood: the latter, by the laws of Scotland, could not take. The brother applies for administration to take the whole estate, real and personal, into his own hands, for his own use; the sister files a ball in Chancery. The then Mr. Attorney-Geseral puts in answer for the defendant; and affirms, the estate, as being in Scotland, and descending from a Scotchman, should be goversed by that law. Lord Hardwicke overruled the objection against the sister's taking; declared there was no pretence for it; and poke to this effect, and nearly in the following words-"Suppose a foreigner has effects in our stocks, and dies abroad; they must be distributed according to the laws, not of the place where his effects were, but of that to ceedingly pernicious ;) both these are provided by special statutes 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 against the laws of another country; to set free a galley-slave, who is a slave by his crime; and make a slave of a negro, who is one, by his complexion; is a cruelty and absurdity that I trust will never take place here: such as, if promulged, would make England a disgrace to all the nations under heaven for the reducing a man, guiltless of any offence against the laws, to the condition of slavery, the worst and most abject state. Mr. Dunning has mentioned, what he is pleased to term philosophical and moral grounds, I think, or, something to that effect, of slavery; and would not by any means have us think disrespectfully of those nations, whom we mistakenly call barbarians, merely for carrying on that trade: for my part, we may be warranted, I believe, in affirming the morality or propriety of the practice does not enter their heads; they make slaves of whom they think fit. For the air of England; I think, however, it has been gradually purifying ever since the reign of Elizabeth. Mr. Dunning seems to have discovered so much, as he finds it changes a slave into a servant; though unhappily he does not think it of efficacy enough to prevent that pestilent disease reviving, 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 certain conviction of the truth of that assertion. Trinity Term, June 22, 1772. 700,000l. sterling. How would the law stand with respect to their settlement; their wages? How many actions for any slight coercion by the master? We cannot in any of these points. direct the law; the law must rule us. In these particulars, it may be matter of weighty consideration, what provisions are made or set by law. Mr. Steuart may end the question, by discharging or giving freedom 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 imagine, after the point has been discussed 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 Lord Mansfield.-The question is, if the themselves that satisfaction whenever they owner had a right to detain the slave, for the think fit. An application to parliament, if the sending of him over to be sold in Jamaica. merchants think the question of great comIn five or six cases of this nature, I have known mercial concern, is the best, and perhaps the it to be accommodated by agreement between only method of settling the point for the future. the parties: on its first coming before me, I The Court is greatly obliged to the gentlemen strongly recommended it here. But if the parties of the bar who have spoke on the subject; and will have it decided, we must give our opinion. by whose care and abilities so much has been Compassion will not, on the one hand, nor in-effected, that the rule of decision will be reconvenience on the other, be to decide; but the duced to a very easy compass. I cannot Jaw: in which the difficulty will be principally omit to express particular happiness in seeing from the inconvenience on both sides. Con- young men, just called to the bar, have been tract for sale of a slave is good here; the sale able so much to profit by their reading. I is a matter to which the law properly and rea- think it right the matter should stand over; dily attaches, and will maintain the price ac- and if we are called on for a decision, proper cording to the agreement. But here the per- notice shall be given. son of the slave himself is immediately the object of enquiry; which makes a very material difference. The now question is, Whether any dominion, authority or coercion can be exercised in this country, on a slave according to the American laws? The difficulty of adopting the relation, without adopting it in 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 conditions 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 brought to trial, between the masters and slaves;) the service performed by the slaves without wages, is 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 disagreeable in the effects it threatens. There is a case in Hobart, (Coventry and Woodfall,) where a man had contracted to go as a mariner: but the now case will not come within that decision. Mr. Steuart advances no claims on contract; he rests his whole demand on a right to the negro as slave, and mentions the purpose of detainure to be the sending of him over to be sold in Jamaica. If the parties will have judgment, fiat justitia, ruat cœlum ;' let justice be done whatever be the consequence. 501. a-head may not be a high price; then a loss follows to the proprietors of above Lord Mansfield. On the part of Sommersett, the case which we gave notice should be decided this day, the Court now proceeds to give its opinion. I shall recite the return to the writ of Habeas Corpus, as the ground of our determination; omitting only words 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 Charles Steuart, esq. then in Jamaica, and has not been manumitted since; that Mr. Steuart, having occasion to transact business, came over hither, with an intention to return; and brought Sommersett to attend and abide with him, and to carry him back as soon as the business 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 thereupon, before the return of the king's writ, the said Charles 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 sold as a slave. And this is the cause why he, captain Knowles, who was then and now is, commander of the above vessel, then and now lying in the river of Thames, did the said negro, committed to his custody, detain; and on which he now renders him to the orders of the Court. We pay all due attention to the opinion of sir Philip Yorke, and lord chancellor Talbot, whereby they pledged themselves to the British planters, for all the legal consequences of slaves coming over to this kingdom or being baptized, recognized by lord Hardwicke, sitting as chancellor on the 19th of October, 1749, that trover would lie: that a notion had prevailed, if a negro came over, or became a Christian, he was emancipated, but no ground in law that he and lord Talbot, when attorney and solicitorgeneral, were of opinion, that no such claim for freedom was valid; that though the statute of tenures had abolished villeins regardant to a manor, yet he did not conceive but that a man might still become a villein in gross, by confessing himself such in open court. We are so well agreed, that we think there is no occasion of having it argued (as I intimated an intention at first,) before all the judges, as is usual, for obvious reasons, on a return to a Habeas Corpus. The only question before us is, whether the cause on the return is sufficient? If it is, the negro must be remanded; if it is not, he must be discharged, Accordingly, the return states, that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged. 549. Proceedings in an Action by Mr. ANTHONY FABRIGAS, against Lieutenant-General MOSTYN, Governor of Minorca, for False Imprisonment and Banishment; first in the Common-Pleas, and afterwards in the King's-Bench: 14 GEORGE III. A. D 1773-1774.* THE Court being sat, the jury were called over, and the following were sworn to try the issue joined between the parties. JURY. [The following Case is taken from the Trial, In the Common Pleas, Guildhall. JOHN MOSTYN, esq. Defendant. Counsel for the Plaintiff.-Mr. Serjeant Glynn, Mr. Lee, Mr. Grose, Mr. Peckham. Counsel for the Defendant.-Mr. Serjeant Davy, Mr. Serjeant Burland, Mr. Serjeant Walker, Mr. Buller. • See 2 Blackstone, 929. Cowp. 161. + The title of the proceedings first published, being only the trial of the cause at Nisi Prins before Mr. Just. Gould, who sat for the chief justice of the Common Pleas, was thus expressed: "The Proceedings at large, in a Cause on as Action brought by Anthony Fabrigas, gent. VOL. XX. Thomas Ashley, esq. Mr. Thomas Bowlby, Mr. Peckham. May it please your lordship, and you gentlemen of the jury, this is an action for an assault and false imprisonment, Mostyn, esq. The plaintiff states in his declabrought by Anthony Fabrigas against John ration, that the defendant, on the 1st of September, 1771, with force and arms, made an assault upon him at Minorca and then and there imprisoned him, and caused him to be against lieutenant-general John Mostyn, governor of the island of Minorca, colonel of the first regiment of dragoon guards, and one of the grooms of his majesty's bed-chamber; for False Imprisonment and Panishment from Minorca to Carthagena in Spain. Tried before Mr. Just. Gould, in the Court of CommonPleas, in Guildhall, London, on the 19th of C Before the Trial there was the following Address to the Bookseller. "I am very glad to find you are going to publish the trial between Fabrigas and Mostyn, as the knowledge of the particulars of this interesting cause must be worthy the attention of the public. carried from Minorca to Carthagena in Spain. | to his damage at 10,000l. To this declaration There is a second count in the declaration, for the defendant has pleaded, Not Guilty; and an assault and false imprisonment, in which the for further plea, has admitted the charges in banishment is omitted. These injuries he lays the declaration mentioned, but justifies what he July, 1773. Containing the evidence verbatim siderable number of inhabitants, in a country as delivered by the witnesses; with all the governed by law, and which is part of the dospeeches and arguments of the counsel and of minions of the crown of Great Britain, should the court," have had some very urgent and apparent cause to make necessary that slavery which Englishmen abhor, and if it exists, must have been esIf it tablished by some particular provision. had been said, that in the fort of St. Phillip's, in time of actual siege, an absolute military government must prevail, the objects and the reasons could easily be understood. But to say that in time of profound peace not only the inhabitants of fort St. Phillip's, but all those of the arraval, which contains a large district of country, with many hundred inhabitants, living out of all reach of the garrison, should be subject not to military government, for that has its written laws and forms of trial, but to the absolute will of the governor, without any law or trial, is in itself so absurd, and so contradictory to every idea of reason, justice, and the spirit with which this country governs its foreign dominions, that, I trust, my countrymen will not believe such a monster exists in any part of this empire, without better proof than the information of these gentlemen. "As I have passed a great part of my life in Minorca, and have some knowledge of the parties, I was induced from curiosity with many others to attend this trial at Guildhall, where I was greatly surprised to hear the account given by governor Mostyn's witnesses, Mess. Wright and Mackellar, of the constitution and form of government of that island. "I did indeed expect that Mr. Fabrigas's counsel would have called witnesses to contradict the very extraordinary account those gen tlemen had given, which they might easily have done by any person who had the least knowledge of the matter. I suppose they did not, either from thinking the subject immaterial to their case, or perhaps 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 uncontradicted, I think it very material that the world should not now be misled, as they would be, should they read the evidence of these gentlemen, and not be informed of their mistakes; I call them mistakes, for however extraordinary some parts of their depositions may appear to an observant 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) you may publish it with the trial; my sole object is, that the public may be apprized of the misinformation given by these gentlemen. I do not expect that the bare contradiction of an anonymous person should overset the declarations upon oath of two gentlemen given in open court, All I mean is, to apprize the public of the truth, and to leave them to make such farther inquiry as they shall think fit. "The purport of that part of the evidence given by those gentlemen, which I mean to dispute, was, that a part of the island called the arraval of St. Phillip's is not under the jurisdiction of the magistrates, nor governed by the same laws which prevail in the rest of the island, but is under the sole authority of the governor, and has no law but his will and pleasure. "It should seem that so very extraordinary a constitution as absolute despotism for a con "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 favourite 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 perquisites, which he enjoys, and which can be defended on no other ground. "To establish this, it has been endeavoured to alter the ancient distribution of the districts or terminos of the island from four to five. "The four terminos Cieutadella, Alayor, Marcadal, and Mabon, have their separate magistrates and jurisdictions, and comprehend the whole island. The arraval of St. Phillip's was always a part of the termino of Mahon; in order therefore to establish the governor's claim, it became necessary to set up the arraval of St. Phillip's as a separate and distinct termino. If this could be done, it ceased to be within the jurisdiction of the magistrates of the island, who have power only in their four ter minos, and accordingly Mess. Wright and Mackellar advance, that there are five terminos instead of four; but those who are acquainted with the island well know, that this is a modern invention; that in the records of the country, there is not the least foundation for such an idea; on the contrary, that every proof of the reverse exists. The inhabitants of the arraval are subject to the particular jurats of Mahon, they differ in no respect from the other inhabitants of that termino, and the judges possess and exercise the same jurisdiction and authority in the arraval, as they do in the other parts. has done, by alledging that the plaintiff endeavoured to create a mutiny among the inhabitants of Minorca, whereupon the defendant, as governor, was obliged to seize the plaintiff, to confine him six days in prison, and then to banish him to Carthagena, as it was lawful for him to do. To this plea the plaintiff replies, and says, that the defendant did assault, impriSon, and banish him of his own wrong, and without any such cause as he has above alledged, and thereupon issue is joined. This, gentlemen, is the nature of the pleadings. Mr. Serjeant Glynn will open to you the facts on which our declaration is founded, and if we support it by evidence, we shall be entitled to your verdict, with such damages as the injury requires. not guilty of those injuries; in the next, he has offered this justification for himself, that the plaintiff, Mr. Fabrigas, was guilty of practices tending to sedition, and that Mr. Mostyn, for such misbehaviour, by his sole authority as governor, thought proper to inflict upon him as a punishment, what Mr. Fabrigas, in his declaration, complains of as a grievance. This Mr. Mostyn takes upon him to insist, in an English court of justice, is the justifiable exercise of an authority derived from the crown of England. And the facts which he undertakes thus to justify, are, in the first place, a length of severe imprisonment upon a native of the island of Minorca, a subject of Great Britain, living under the protection of the English laws; and, secondly, by his sole authority, without the intervention of any judicature, the sending him into exile into the dominions of a foreign prince. Gentlemen, some observations must strike you upon the very state of this plea; they must alarm you, and you must be anxious to know the particulars of that case, to which, in the sense of any man who has re Serj. Glynn. May it please your lordship, and you gentlemen of the jury, I am of counsel in this cause for the plaintiff. Gentlemen, this is an action that Mr. Fabrigas, a native and inhabitant of the island of Minorca, has brought against the defendant, Mr. Mostyn, his majesty's governor in that island, for assaulting, false im-ceived his education in this country, or ever prisoning, and banishing him to a foreign coun try, the dominions of the king of Spain. Mr. Mostyn has, in the first place, pleaded that he is of the island, which could not be the case, if the claim set up by the governor really existed. "No proof whatever has been or can be produced that this claim has any foundation; nor indeed did Mess. Wright and Mackellar attempt to give any but their own assertions. The only thing that had the least similitude to proof, was their saying, that in one instance the officer acting as coroner to examine a corpse that had met with a violent death in the arrival, asked the governor's leave before he proceeded. "This fact I do not pretend to dispute; it proves nothing; and was evidently only a mark of respect, which it is no wonder magistrates in that island pay to a governor who really has so much power. But to have made this amount to any thing like proof, it should have been shewn, that the like attention was not paid to the governor at Mahon, and in other parts of the island. The truth is, that the inhabitants are so dependant on the military, that I have known the same civility shewn in another part of the island to the officer who happened to command there, but certainly without any intention of surrendering to him their authority as magistrates. "Mess. Wright and Mackellar also said, that the Minorquins claimed to be governed Sometimes by the English, and sometimes by the Spanish laws, as suited best for the moment; but insinuated that the Spanish laws prevailed, and that by them the governor had a right by his sole authority to banish. "The fact most undoubtedly is, that Minorca, a conquered country, preserves its aucient (the Spanish) laws, till the conqueror chases to give them others; and therefore as conversed with Englishmen, it can be applied as justification; that case, therefore, I will shortly state to you :-Mr. Fabrigas is a gentleman of the island of Minorca, of as good a condition as any inhabitant of that island, of as fair and unblemished a character too as that island produces. It is however enough, for England has not given them others, it is true the Spanish laws do prevail in Minorca, both in civil and criminal matters, among themselves: but it is equally true that they have the protection of the English laws against their governor, who cannot be amenable to their local laws, and that however despotically a Spanish governor may formerly have acted, it cannot be the law of Spain, or of any country (because it is contrary to natural justice) that a man should be condemned and punished without either trial or hearing. "It would have been easy for governor Mostyn, if Mr. Fabrigas had committed a crime, to have followed the mode of proceeding established there in criminal cases, which is for the advocate fiscal to prosecute in the court of royal government, where the chief justice criminal is the judge. "If I was not afraid of swelling this letter to too great a length, I should make more remarks on what passed at this trial, and point out many more instances of power unjustifiably assumed by the governors. But I hope that what appears from this publication will be sufficient to induce administration to consider the state of this island, and give the inhabitants some better security for the safety of their persons, and enjoyment of their property; for, exclusive of the meanness there is in ill using those who cannot resist, it is undoubtedly the best policy, for the honour aud stability of our empire, to make all its dependencies happy." Former Edition. |