« PreviousContinue »
the laws of every Englishman, here 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, bigb 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 vanis here. The increase of such inbabitants, to the political regulations of that other country. not interested in the prosperity of a country, (See the cases cited in Pabrigas o. 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 foreigo to bitants, dangerous in excess. Movey 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 regulatioos, consupport it, any farther than the produce of the sidered in their proper pature, have been treated earth will answer the demand of necessaries. so fully, so learnedly, and ably, as scarce to In that case money enriches the inbabitants, 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, con)imaginary and useless, it 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 inbabitants augmenting perpetu- the negro may contract to serve ; nor deny ally, are ill to be allowed ; a pation of enemies the relation between them, while he continues in the heart of a state, still worse. Mr. Dup- under his original proprietor's roof aod, proning availed himself of a wrong interpretation tection. It is remarkable, in all Dyer, (for I of ibe word.' natural:' it was not used in the hare caused a search to be made as far as the sense 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 villeiu who denied no laws can supersede. All contracts, I do himself to be one, nor can lifind a confession of pot 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, théceptionable part of slavery; that of being legitimacy 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 pleanicipal 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 pare blished forms they submit the relation to be re- ties, (the latter found in its consequences ex. gnlated, so far as its consequences, not con- ceedingly pernicious ;) both these are provided cerning the moral obligation, are interested. by special statutes of our own municipal law, In the case of Thorn and Watkins, in which I made in France, or any where but here, your lordship was counsel, determined before they would not have been binding here. To lord Hardwicke-A man died in England, punish not even a criminal for offences against with effects in Scotland ; having a brother of the laws of another country; 'to set free a the wbole, aod a sister of the half blood : the galley-slave, who is a slave by his crime; and latter, hy the laws of Scotland, could not take. make a slave of a negro, who is one, by his The brother applies for administration to take complexion ; is a cruelty and absurdity that I the whole estate, real and personal, into his trust will never take place bere : such as, if own hands, for his own use; the sister files a promulged, would make England a disgrace to bill in Chancery. The then Mr. Attorney-Ge- the nations under heaven : for the reducing Deral puts in answer for tbe defendant; and af- a man, guiltless of any offence against the firms, the estate, as being in Scotland, and de. laws, to the condition of slavery, the worst and scending from a Scotchman, should be go- most abject state. Mr. Danding hias mentioned, verned by that law. Lord Hardwicke over- what he is pleased to term philosophical and ruled the objection against the sister's taking ; moral grounds, I think, or something to that declared there was no pretence for it; and effect, of slavery; and would not by any means spoke to this effect, and nearly in the fol have us think disrespectfully of those nations, lowing words "Suppose a foreigner has ef whom we mistakenly call barbarians, merely fects in our stocks, and dies abroad; they must for carrying on that trade: for my part, we be distributed according to the laws, not of may be warranted, I believe, in affirnsing the lke place where his effects were, but of that to morality or propriety of the practice does not enter their heads; they make slaves of whom | 700,000l. sterling. How would the law stand they think fit. For the air of England; I with respect to their settlement ; their wages ? think, however, it has been gradually purifying How many actions for any slight coercion by ever since the reign of Elizabeth. 'Mr. Dan- tbe master ? We cannot in any of these points ning seems to have discovered so much, as be direct the law; the law must rule us. la finds it changes a slave into a servant; though these particulars, it may be matter of weighty upbappily be does not think it of efficacy consideration, what provisions are made or set enough to prevent that pestilent disease re- by law. Mr. Steuart may end the question, viving, the instant the poor man is obliged to by discharging or giving freedom to the negro. quit (voluntarily quits, and legally it seems we I did think at first to put the matter to a more ought to say,) ibis bappy country. However, solemon way of argument: but if my brothers it has been asserted, and is now repeated by agree, there seems no occasion. I do not ima. me, this air is too pure for a slave to breathe in: gine, afier the point has been discussed on both I trust, I shall not quit this court without cer- sides so extremely well, any new light could be taju conviction of the truth of that assertion. 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 com. Io five or six cases of this nature, 1 bave known mercial concern, is the best, and perhaps the it to be accommodated by agreement between only method of settling the point for the fatore. the parties : on its first coming before me, I The Ceurt is greatly obliged to the gentlemen strongly recommended it here. But if the parties of the bar who bave 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 law: in which the difficulty will be principally omit to express particular bappiness in seeing from the inconvenience on both sides. Con young mei, 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 staod over ; dily attaches, and will maintain the price ac- and if we are called on for a decision, propes 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 ma
Trinity Term, June , 1779. terial difference. The now question is, Whe- Lord Mansfield.-On the part of Sommersett, ther any dominion, authority or coercion can the case which we gave notice should be debe exercised in this country, on a slave accord- cided this day, the Court now proceeds to give ing to the American laws? The difficulty of its opinion. "1 shall recite the return to the adopting the relation, without adopting it in writ of Habeas Corpus, as the ground of our all its consequences, is indeed extreme; and determination ; omitting only words of form. yet, many of those consequences are absolutely The captain of the sbip on board of which the contrary to the municipal law of England. negro was taken, makes bis return to the writ We have no authority to regulate the condi- in terms signifying that there have been, and tions in which law shall operate. On the still are, slaves to a great number in Africa; other hand, should we think the coercive power and that the trade in them is authorized by the cannot be exercised : it is now about 50 years laws and opinions of Virginia and Jamaica ; since the opinion given by two of the greatest that they are goods and chattels; and, as such, men of their own or any times, (since which no saleable and sold. That James Sommersett is contract has been brought to trial, between the a negro of Africa, and long before the return of masters and slaves ;) the service performed by the king's writ was brought to be sold, and was the slaves without wages, is a clear indication sold to Charles Steuarl, esq. then in Jamaica, they did not tbiok themselves free by comiog and has not been manumitted since; that Mr. hither. The setting 14,000 or 15,000 men at Steuart, having occasion to transact business, once loose by a solemn opinion, is very dis- came over bither, with an intention to return; agreeable in the effects it threatens. There and broughtSommersett to attend and abide with is a case in Hobart, (Coventry and Woodfall,) bim, and to carry bim back as soon as the busiwhere a man had contracted to go as a ma- tiess should be transacted. That such intenrimer: but the now case will not come within tion has been, and still continues; and that the that decision. Mr. Steuart advances no claims begro did remain till the time of his departare on contract; be rests his whole demand on a in the service of his master Mr. Steuart, and right to the negro as slave, and mentions the quitted it without his consent; and thereupon, purpose of detaioure to be the seading of him before the return of the king's writ, tbe said over to be sold in Jamaica. If the parlies will Charles Stewart did commit ihe slave on board have judgment, 'fial justitia, ruat cælnm ;' let the Anne aod Mary, to safe custody, to be kept justice be done whatever be the consequence. till he should set sail
, and then to be taken sol. a-bead may not be a high price ; thep with bim to Jamaica, and there sold as a slave. 1 loss follows to the proprietors of above and this is the cause wby be, captaio Kuoples, who was then and now is, commander of the before all the judges, as is usual, for obvious above vessel, then and now lying in the river reasons, on a return to a Habeas Corpus. The of Thames, did the said negro, committed to only question before us is, whether the cause his custody, detain ; and on which he now on the return is sufficient? If it is, the negro readers him to the orders of the Court. We must be remanded; if it is not, he must be pay all due attention to the opinion of sir Philip discharged. Accordingly, the return states, Yorke, and lord chancellor Talbot, whereby that the slave departed and refused to serve ; they pleiiged themselves to the British planters, whereupon he was kept, to be sold abroad. So for all the legal consequences of slaves coming bigh an act of dominion must be recognized by over to this kingdom or being baptized, recog- the law of the country where it is used. The nized by lord Hardwicke, sitting as chancellor power of a master over his slave has been ex. on the 19th of October, 1749, that trover would tremely different, in different countries. The lie: that a notion had prevailed, if a negro state of slavery is of such a nature, that it is came over, or became a Christian, he was incapable of being introduced on any reasons, emancipated, but no ground in law: that he moralor political, but only by positive law, which and lord Talbot, when attorney and solicitor- preserves its force long after the reasoos, occageneral, were of opinion, that no such claim for sion, and time itself from whence it was created, freedom was valid; that though the statute of te-is erased from memory. It is so odious, that nures had abolished villeios regardant to a manor, nothing can be suffered to support it, but posiyet he did not conceive but that a man might still tive law. Whatever inconveniences, therefore, become a villein in gross, by confessing himself may follow from the decision, I cannot say this such in open court. We are so well agreed, case is allowed or approved by the law of that we think there is no occasion of having it England; and therefore the black must be argued (as I intimated an intention at first,) discharged.
$49. Proceedings in an Action by Mr. Anthon Y FABRIGAS, against
Lieutenant-General Mostyn, Governor of Minorca, for False
which was printed from the Notes in short- over, and the following were sworn to try the hand of Mr. Gurney, soon after the hearing. issue joined between the parties.
JURY. From the Address to the Bookseller, which preceded the Trial, it is plain, that Mr. Gur- Thomas Zachary, esq. Mr. Thomas Bowlby, ney was employed to take notes for the Thomas Ashley, esq. Mr. John Newball,
David Powel, esq.
Mr. John King, plaintiff
, and that the Trial was published by Walter Eaver, esq. Mr. James Smith, the plaintiff or his friends :t Former Edi- Mr. William Tomkyo, William Hurley, esą. tion.]
Mr. Gilbert Howard, Mr. James Selly.
Mr. Peckham: May it please your lord-
action for an assault and false imprisonment, Counsel for the Plaintiff:- Mr. Serjeant Mostyn, esq. The plaintiff states in his decla
brought by Anthony. Fabrigas against Joba Glynn, Mr. Lee, Mr. Grose, Mr. Peckham.
ration, that the defendant, on the 1st of SepCounsel for the Defendant.--Mr. Serjeant tember, 1771, with force and arms, made an Davy, Mr. Serjeant "Burland, Mr. Serjeant assault upon bim at Minorca and then and Walker, Mr. Boller.
there imprisoned him, and caused bim to be See 2 Blackstone, 929. Cowp. 161. against lieutenant-geueral John Mostyn, go† The title of tbe proceedings first published, vernor of the island of Minorca, colonel of the being only the trial of the cause at Nisi Prias first regiment of dragoon guards, and one of the before Mr. Just. Gould, who sat for the chief grooms of his majesty's bed-chamber; for justice of the Common Pleas, was ihus ex. False Imprisonment and Banishment from Mipressed :
norca to Carthagena in Spain. Tried before " The Proceedings at large, in a Cause on Mr. Just. Gould, in the Court of Common. an Action brought by Anthony Fabrigas, gent. Pleas, in Guildhall, London, on the 13th of
carried from Minorca to Carthagena in Spain. I to his damage at 10,000l. To this declaration There is a second count in the declaration, for the defendant bas pleadeil, Not Guilty; and an assault and false imprisonment, in which the for further plea, bas admitted the charges in banishment is omitted. These injuries he lays the declaration mentioned, but justifies what he July, 1773. Cootaining the evidence verbatim siderable number of inliabitants, 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 Before the Trial there was the following Ad- to make pecessary that slavery which Englishdress to the Bookseller.
men abhor, and if it exists, must have been es“I am very glad to find you are going to tablished by some particular provision. If it publish the trial between Fabrigas and Mostyn, had been said, that in the fort of St. Phillip's, as the knowledge of the particulars of this in- in time of actual siege, an absolute military goteresting cause must be worthy the attention vernment must prevail, the objects and the reaof the public.
sons could easily be understood. But to say * As I have passed a great part of my life that in time of profound peace not only the in in Minorca, and bave some knowledge of the habitants of fort St. Phillip's, but all those of parties, I was induced from curiosity with many the arraval, which contains a large district of others to attend this trial at Guildball
, where. I country, with many hundred inhabitants, living was greatly surprised to hear the account given out of all reach of ibe garrison, should be subby gorernor Mostyn's witnesses, Mess. Wright ject not to military government, for that has its and Mackellar, of the constitution and form of written laws and forms of trial, but to the abgovernment of that island.
solute will of the governor, without any law or “ I did indeed expect that Mr. Fabrigas's trial, is in itself so absurd, and so contradictory counsel would have called witnesses to contra- to every idea of reason, justice, and the spirit dict the very extraordinary account those gen- with which this country governs its foreign dotlemen bad given, which they might easily minions, tbat, I trust, my countrymen will not have done by any person who bad the least believe such a monster exists in any part of knowledge of the matter. I sappose they this einpire, without better proof than the indid not, either from tbinking the subject im formation of these gentlemen. material to their case, or perbaps to preserve
"I would pot have the reader think that this to Mr. Serj. Glyno the closure of the trial by strange idea originated in the brain of Mess. that most eluquent and masterly reply with Wright and Mackellar, for I know it is a fawhich it was concluded.
vourite point, which the governor of Minorca “ Whatever the motives of Mr. Fabrigas's bas endeavoured to establish ; not so much, I counsel might be for leaving this account un believe, for the pleasure of exercising absolute contradicted, I think it very material that the authority, as on account of some good perquiworld should not now be misled, as they would sites, wbich he enjoys, and which can be de. be, should they read the evidence of these gen- fended on no other ground. tlemen, and not be informed of their mistakes; “ To establish this, it has been endeavoured I call them mistakes, for however extraordinary to alter the ancient distribution of the districts some parts of their depositions may appear to or terminos of the island from four to five. an observant reader, I am unwilling to charge “ The four terminos Cieutadella, Alayor, them with any other crime than ignorance. Marcadal, and Mahon, have their separate
“ I am therefore induced to trouble you with magistrates and jurisdictions, and comprehend this letter, that (if not too late) you may pub- the whole island. The arraval of St. Phillip's Jish it with the trial; my sole object is, that the was always a part of the termino of Mabon; public may be apprized of the misinformation in order iberefore to establish the governor's given by these gentlemen. I do not expect claim, it became necessary to set up the arrathat the bare contradiction of an anonymous val of St. Phillip's as a separate and distinct person should overset the declarations upon oath termino. If this could be done, it ceased to be of two gentlemen given in open court. "All within the jurisdiction of the magistrates of the mean is, to apprize the public of the truth, and island, who have power only in their four ter. to leave them to make such farther inquiry as minos, and accordingly, Mess. Wright and they shall think fit.
Mackellar adrance, that there are five terminos "The purport of that part of the evidence instead of four; but those wbo are acquainted given by those gentlemen, which I mean to with the island well know, that this is a inodern dispute, was, that a part of the island called invention; that in the records of the country, the arraval of St. Phillip's is not under the juris- there is not the least foundation for such an diction of the magistrales, por governed by the idea ; on the contrary, that every proof of the same laws which prevail in the rest of the reverse exists. The inbabitants of the arraval island, but is under the sole authority of the are subject to the particular jurats of Mahon, governor, and bas no law but his will and they differ in no respect from the other inhabipleasure.
tanis of that termino, and the ji dges possess " It should seem that so very extraordinary and exercise the same jurisdictio.and authoa constitution as absolute despotism for a con- rity in the arrayal, as they do in the other parts has done, by alledging that the plaintiff endea- | not guilty of those injuries ; in the next, he has voured to create a mutiny among the inhabi- offered this justification for himself, that the tants of Minorca, whereupon the defendant, as plaintiff, Mr. Fabrigas, was guilty of practices governor, was obliged to seize the plaintiff, to tending to sedition, and that Mr. Mostyn, for confine him six days in prison, and then to ba- such misbehaviour, by his sole authority as nish bima to Carthagena, as it was lawful for governor, thought proper to inflict upon bim as him to do. To this plea the plaintiff replies, a punishment, what Mr. Fabrigas, io bis de. and says, that the defendant did assault, impri- claration, complaius of as a grievance. This son, and banish bim of his own wrong, and Mr. Mostyn takes upon him to insist, in an without any such cause as he bas above al- English court of justice, is the justifiable exledged, and thereupon issue is juined. This, ercise of an authority derived from the crown gentlemen, is the nature of the pleadings. Mr. of England. And the facts wbich be under Serjeant Glyon will open to you the facts on takes thus to justify, are, in the first place, a which our declaration is founded, and if we length of severe imprisonment upon a native of support it by evidence, we shall be entitled 10 the island of Minorca, a subject of Great Bri. your verdict, with such damages as the injury tain, living under the protection of the English requires.
laws; and, secondly, by bis sole authority,
without the intervention of any judicature, the Serj
. Glynn. May it please your lordship, sending him into exile into the dominions of a and you gentlemen of the jury, I am of coun- foreign prioce. Gentlemen, some observations sel in this cause for the plaintiff
. Gentlemen, must strike you upon the very state of this this is an action that Mr. Fabrigas, a native and plea; they must alarm you, and you must be inbabitant of the island of Minorca, bas brought anxious to know the particulars of that case, to agaiost the defendant,Mr. Mostyn, bis majesty's which, in the sense of any man who bas regovernor in that island, for assaulting, false im- ceived his education in this country, or ever prisoning, and banishing him to a foreign coun. conversed with Englishmen, it can be applied try, the dominions of the king of Spain. Mr. as justification; that case, therefore, I will Mostyn bas, in the first place, pleadeil that he is shortly state to you :-Mr. Fabrigas is a gen
tleman of the island of Minorca, of as good a of the island, which could not be the case, if condition as any inhabitant of that island, of as the claim set up by the governor really existed. fair and unblemished a character too as that
“ No proof whatever has been or can be island produces. It is however enough, for produced that this claim has any foundation; nor indeed did Mess. Wright and Mackellar at. England has not given them others, it is true tempt to give any but their own assertions. the Spanish laws do prevail in Minorca, both in The only thing that had the least similitude to civil and criminal matters, among themselves : proof, was their saying, that in one instance but it is equally true that they have the proihe officer acting as coroner to examine a tection of the English laws against their gocorpse that bad met with a violent death in the vernor, who cannot be amenable to their local arraval, asked the governor's leave before he laws, and that bowever despotically a Spanish proceeded.
governor may formerly have acted, it cannot “This fact I do not pretend to dispule; it be the law of Spain, or of any country (because proves nothing; and was evidently only a mark it is contrary to natural justice) that a man of respect, wbich it is no wonder magistrates should be condemned and punished without in that island pay to a governor who really has either trial or bearing: so much power. But to have made this amount " It would have been easy for governor to any thing like proof, it should have been Mostyn, if Mr. Fabrigas bad committed a shewn, that the like attention was not paid to crime, to have followed the mode of proceed. the governor at Mabon, and in other parts of ing established there in crimioal cases, which the island. The truth is, that the inhabitants is for the advocate fiscal to prosecute in the are so dependant on the military, that I have court of royal government, where the chief knowo the same civility shewn in another part justice criminal is the judge. of the island to the officer who happened to “ If I was not afraid of swelling this letter command there, but certainly without any io. to too great a length, I should make more retention of surrendering to him their authority marks on what passed at this trial, and point as magistrates.
out many more instances of power unjustifiably " Mess. Wright and Mackellar also said, assumed by the governors. But I hope that that the Minorquins claimed to be governed what appears from this publication will he sufsometimes by the Englisb, and sometimes by ficient to induce administration to consider the the Spanish laws, as suited best for the mo- state of this island, and give the inhabitants ment; but insinuated that the Spanish laws some better security for the safety of their perprevailed, and that by them the governor had sons, and enjoyment of their property ; for, a right by his sole authority to banish. exclusive of the meanness there is in ill using
"The fact most undoubtedly is, that Mic those who cannot resist, it is undoubtedly the norca, a conquered country, preserves its an- best policy, for the bonour aud stability of our cient (the Spanish) laws, till the conqueror empire, to make all its dependencies bappy." cluses to give them others; and therefore as Former Edition.