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. Duaning 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 certaiu conviction of the truth of that assertion. Lord Mansfield.-The question is, if the owner had a right to detain the slave, for the sending of him over to be sold in Jamaica. In five or six cases of this nature, I have known it to be accommodated by agreement between the parties: on its first coming before me, I strongly recommendedit here. But if the parties will have it decided, we must give our opinion. Compassion will not, on the one band, nor inconvenience on the other, be to decide; but the Jaw: in which the difficulty will be principally from the inconvenience on both sides. Contract for sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement. But here the person of the slave himself is immediately the object of enquiry; which makes a very ma terial 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; be 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 700,000. 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 themselves that satisfaction whenever they think fit. An application to parliament, if the merchants think the question of great commercial concern, is the best, and perhaps the only method 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 reduced 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 much 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 22, 1772, 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. Stenart, 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 busiuess should be transacted. That such intention has been, and stili 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, Thomas Ashley, esq. David Powel, esq. Walter Eaver, esq. the plaintiff or his friends:† Former Edi-Mr. William Tomkyn, Mr. Gilbert Howard, tion.] In the Common Pleas, Guildhall. ANTHONY FABRIGAS, gent. Plaintiff. JOHN MOSTYN, esq. Defendant. See 2 Blackstone, 929. Cowp. 161. "The Proceedings at large, in a Cause on an Action brought by Anthony Fabrigas, gent. VOL. XX. 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, brought by Anthony Fabrigas against John Mostyn, esq. The plaintiff states in his declaration, 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 Banishment from Minorca to Carthagena in Spain. Tried before Mr. Just. Gould, in the Court of CommonPleas, in Guildhall, London, on the 13th of G 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, bas 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 established 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 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 gentlemen 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 án 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. "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 Mahon, 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 "It should seem that so very extraordinary and exercise the same jurisdiction and authoa constitution as absolute despotism for a con-rity in the arraval, as they do in the other parts "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. 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 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 prince. Gentlemen, some observations sel in this cause for the plaintiff. Gentlemen, must strike you upon the very state of this this is an action that Mr. Fabrigas, a native and plea; they must alarm you, and you must be inhabitant of the island of Minorca, has brought anxious to know the particulars of that case, to against the defendant, Mr. Mostyn, his majesty's which, in the sense of any man who has 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 has, in the first place, pleaded that he is 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. 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 arraval, 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 ancient (the Spanish) laws, till the conqueror eliuses to give them others; and therefore as "It would have been easy for governor Mostyn, if Mr. Fabrigas bad 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. this present purpose, to say that Mr. Fabrigas is a descendant of the antient inhabitants of Minorca that he lived there under the capitulated rights: that, as such, the national faith was pledged for his enjoyment of those rights that his ancestors capitulated for; but what is of more consideration, being born in Minorca since its subjection to the crown of England, he was a free-born subject of England, and claimed, as his birth-right, the privileges due to that character, 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 certain regulations and restrictions, to the produce of his lands, and to such profit as by his industry he could make of them. Upon that ground a dispute arose, to which alone can be imputed the displeasure of Mr. Mostyn towards the plaintiff, and the treatment he received from him, in the progress of it. Mr. Mostyn, as governor, was appealed to, and his 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, untried, 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 most 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 any previous accusation, without any call upon him to make his defence, or being informed there was any crime or offence that was alledged against him, 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 prison to accommodate him with a bed; but it seems that accommodation was by the power of that island thought too much for him, and the bed was taken from him; 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 him: that consolation too was denied him. In this manner was Mr. Fabrigas deprived of his liberty for a considerable 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 continue under this imprisonment, nor did his sufferings determine with it; bis removal from the dungeon was only a substitute of one species of cruelty in the place of another: for the instant he was taken from prison, he was carried 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 probably to be separated for ever. Thus was this man taken from his native country, and the insupportable hardships of a dungeon 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's case. Now, gentlemen, for a moment, let me remind you of the pretence under which this imprisonment is inflicted. It is said Mr. Fabrigas excited sedition, or attempted to excite sedition; that he acted or spoke in a turbulens and mutinous manner; and therefore that the governor, as his plea states he was well authorized to do, committed him to prison, and banished him out of the island; or rather committed him to prison for the purpose of banishing 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 Mr. 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 sitting 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 state 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 inhabitants and possessors of lands in the island, a right of selling the produce of his lands, under certain restrictions. The produce of the lands is chiefly wine: Mr. Fabrigas had a considerable quantity. His majesty, by his proclamation, had 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 afforation price. Notwithstanding his majesty's proclamation, by an act and order, not of governor Mostyn, but of his lieutenant-governor, there was a prohibition that no wine should be sold without the imme| diate authority of the mustastaph. An application 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 relief and benefit of the islanders, and of the garrison, or that he him |