Governor of Minorca, Lord Mansfield thus disposes of the plea (i):

"The two grounds which are enforced to-day, are, if I take them right, first, that the defendant was governor of Minorca, and therefore for no injury whatsoever that is done by him, right or wrong, can any evidence be heard, and that no action can lie against him; secondly, that the injury was done out of the realm. I think these are the whole amount of the questions that have been laid before the court. Now as to the first, there is nothing so clear as that, in an action of this kind, which is for an assault and false imprisonment, the defendant, if he has 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 must plead to that jurisdiction, and he cannot take advantage of it upon the general issue.

"The point that I shall begin with, is the sacredness of the person of the Governor. Why, if that was true, and if the law was so, he must plead it. This is an action of false imprisonment; prima facie, the court has jurisdiction. If he was guilty of the fact, he must show a special matter that he did this by a proper authority. What is his proper authority? The King's commission to make him governor. Why, then, he certainly must plead it; but, however, I will not rest the answer upon that. It has been singled out that in a colony that is beyond the seas, but part of the dominions of the Crown of England, though actions would lie for injuries committed by other persons, yet it shall not lie against the governor. Now I say for many reasons, if it did not lie against any other man, it shall most emphatically lie against the governor. In every plea to the jurisdiction, you must state a jurisdiction; for if there is no other method of trial, that alone will give the King's Courts jurisdiction. Now in this case no other jurisdiction is shown, even by way of argument; and it is most certain that if the King's courts cannot hold plea in such a case, there is no other upon earth that can do it; for it is truly said that a gover

court

() Fabrigas v. Mostyn, Cowp. 161. It will be noticed that the C.J. animadverts upon the indefinite nature of the plea in this case, but treats it as a plea to the jurisdiction.

nor is in the nature of a Viceroy (j), and of necessity part of the privileges of the King are communicated to him during the time of his government. No criminal prosecution lies against him, and no civil action will lie against him, because what would the consequence be? Why, if a civil action lies against him, and a judgment is obtained for damages, he might be taken up and put in prison on a capias. And therefore locally during the time of his government, the courts in the island cannot hold plea against him. If he is out of the government, he leaves it; he comes and lives in England, and he has no effects there to be attached; then there is no remedy whatsoever if it is not in the King's Courts. . . . . 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 office, and in violation of the trust reposed in him by the King's commission. And therefore in every light in which I see this matter, it holds emphatically in the case of a governor if it did not hold with respect to any other man within the colony, province, or garrison. But to make question upon matters of settled law, where there have been a number of actions determined which it never entered into man's head to disputeto lay down in an English court of justice such monstrous propositions as that a governor acting by virtue of letters patent, 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 absolutely; that he may spoil, plunder, affect their bodies and their liberty, and is accountable to nobody—is a doctrine not to be maintained. . . . How can the argument be supported that in an Empire so extended as this, every governor in every colony, and every province belonging to the Crown of Great Britain, shall be absolutely despotic, and can no more be called in question than the King of France? And this after there have been multitudes of actions in all our memories against governors, and nobody has been ingenious enough to whisper them that they were not amenable."

From that day to the present, no plea to the jurisdiction has ever again been raised to an action brought in England,

(j) This proposition is untenable; see post.

and many governors have been mulcted in damages by English juries, for acts done within the limits of their colonial governments (k).

It will be noticed however that in his celebrated judgment in Fabrigas v. Mostyn, Lord Mansfield lent the weight of his high authority to certain propositions, which if correct, would on the one hand largely increase the powers, and on the other hand largely lessen the liability of a governor-both propositions however being really dependant upon the first. Adopting the proposition that a Governor is a Viceroy" with a certain measure of delegated sovereignty, he draws from it the further proposition (not necessary for the decision of the case) (7), that he is not amenable, civilly or criminally, to the courts of the colony over which he presides, during the term of his government. Practically considered, the position of parties having claims upon the governor, would in this view be one of much hardship, and in many cases would work a complete denial of justice. So no doubt Lord Aylmer's house-keeper thought, when the Court of King's Bench in Lower Canada, adopting Lord Mansfield's dictum, declined to entertain her action for wages due from His Excellency (m).

It is now however clearly settled that a governor is liable to civil action in the courts of the colony over which he presides, not merely (1) in respect of claims upon contracts entered into, and torts committed by him in his

(k) Wall v. MacNamara, 1 T. R. 536; Wilkins v. Despard, 5 T. R. 112; Glynn v. Houston, 2 M. & G. 337; Oliver v. Bentinck, 3 Taunt, 456; Wyatt v. Gore, Holt N. P. 299 (defendant was Lieut.-Gov. of Upper Canada, and had to pay £300 for libelling plaintiff in the colony). It is to be observed that the commissions of some of these Governors con ferred military authority, and the first three cases were in respect of military excesses, but the principle of the cases is throughout the same. See too Phillips v. Eyre, L. R. 4 Q. B. 225; 6 Q. B. 1.

(1) See Hill v. Bigge, 3 Moo. P. C. 465.

(m) Harvey v. Lord Aylmer, 1 Stuart 542.

private capacity, but also (2) in respect of any clair against him for acts done in the supposed exercise of his powers as governor. Of the former class, we may instance the case of the Governor of Trinidad, who was informed by the Judicial Committee of her Majesty's Privy Council (on appeal from the colonial court) that he must submit to the indignity of defending an action brought in the court of his own colony by certain vindictive jewellers whose bill he had omitted to pay before leaving England (n). Since that time the proposition may be considered settled, that for a cause of action wholly unconnected with his official capacity, the governor of a colony may be sued in the courts of that colony.

"They who maintain the exemption of any person from the law by which all the King's subjects are bound, or what is the same thing, from the jurisdiction of the courts which administer that law to all besides, are bound to show some reason or authority leaving no doubt upon the point. The reference to analogies, or the supposition of inconvenient consequences, must be much more pregnant than any that can be urged in this case, to support or even to countenance such a claim. If it be said that the governor of a colony is quasi sovereign, the answer is that he does not even represent the sovereign generally, having only the functions delegated to him by the terms of his commission, and being only the officer to execute the specific powers with which that commission clothes him."-Per Lord Brougham in Hill v. Bigge.

And speaking of Fabrigas v. Mostyn, Lord Brougham says:

"It is only a decision that he was liable to be sued in England for personal wrongs done by him, while Governor of Minorca. Nor does the decision thus given, rest upon any doctrine denying his liability to be sued in the island. There is no doubt a dictum of Lord Mansfield's in giving the judgment'that the governor is in the nature of a viceroy, and that therefore locally during his government, no civil or criminal action.

(n) Hill v. Bigge, 3 Moo. P. C. 465.

will lie against him.' And the reason and the only reason given for this position is, because upon process he would be subject to imprisonment. With the most profound respect for the authority of that illustrious judge, it must be observed that as has been shown, the governor being liable to process during his government would not of any necessity follow from his being liable to action, and that the same argument might be used to show that an action lies not against persons enjoying undoubted freedom from arrest by reason of privilege. But the decision in the case does The consequences imagined

not rest on this dictum.

to follow from holding the governors liable to action like their fellow-subjects, are incorrectly stated, and if true would not decide the question."

Since the decision in Hill v. Bigge, the notion that the governor of a colony is in the nature of a viceroy, may be considered as forever exploded. The extent of a governor's powers had previously been passed upon in the case of Cameron v. Kyte (0), to which, it is true, the governor was not a party, but the governor's order in council being set up as a defence to the action, its validity was-properly as the Judicial Committee of the Privy Council heldinquired into by the courts of the colony. In giving judgment, Parke, B., says:

"If a governor had by virtue of that appointment, the whole sovereignty of the colony delegated to him as a viceroy, and represented the king in the government of that colony, there would be good reason to contend that an act of sovereignty done by him would be valid and obligatory upon the subject living within his government, provided the act would be valid if done by the sovereign himself, though such act might not be in conformity with the instructions which the governor had received for the regulation of his own conduct. The breach of those instructions might well be contended on this supposition to be matter resting between the sovereign and his deputy, rendering the latter liable to censure or punishment, but not affecting the validity of the act done. But if the governor be an officer merely with a limited authority from the crown, his assumption (0) 3 Knapp. P. C. 332.