said that Sureties were demanded or denied, or that he had Notice of the Charge; and surely this was bailable.
Jurisdiction.—As to the Quære, If conusable here; 'twas argued, That they had not pleaded to the Jurisdiction, nor any Matter to oust the Court of its Jurisdiction: If they intended by this Plea to have done that, they should have given Jurisdiction to some other Court in some other Place; but this is not done; for if an Injury, 'tis relievable somewhere in the King's Dominions; and whether it be so, or not, is examinable somewhere: Now here is a Wrong complain'd of, as done by one Englishman to another Englishman, and a Jurisdiction attacht in the King's Bench, both of Cause and Person, by the Bill filed, and his Defence to it: Besides Jurisdiction could not be examined in the Exchequer Chamber, because both the Statute and the Writ of Error expressly provide against it; and this Writ of Error is founded upon that Affirmance, and therefore questionable, whether that could be insisted on here? But supposing it might, 'twas argued that the Action lies, for that 'tis a transitory Action, and follows the Person wheresoever he comes under the Power of the Common Law Process: And that a Man may as well be sued in England for a Trespass done beyond Sea, as in Barbadoes, or the like Place; as for a Debt arising there by Specialty, or other Contract; that no Body but Prynne ever denied it, and he did so only in case of Bonds dated there: That many Actions have been maintained and tried here for Facts done in the Indies, notwithstanding special Justifications to them, and the Trials have been where the Actions were laid: There was quoted Dowdale's Case, 6 Rep. 47, 48. and 7 Rep. 27. and if otherwise, there would be a Failure of Justice in the King's Dominions. 32 Hen. 6. 25. vide Jackson and Crispe's Case, Sid. 462. 2 Keble 391, 397.
'Twas then argued, That whatsoever Question might be made about the Trial of the Issue, if one had been joined; yet now Demurrer being to the Plea, if that Plea be naught, then the Plaintiff is to have Judgment upon his Declaration, and that is all right.
It was further said, That the Justification of such a Tort or Wrong ought to be according to the Common Law of England, for that Barbadoes is under the same Law as England; and if 'twere not, upon his pleading it must be intended to be so; and tho' they should be intended different, yet the Defendant in the Action was obliged to the same Rules of Pleading; for tho' the Matter may justify him for an Act done there, which would not justify him for the same Act done here, yet he must shew that he hath [31] pursued the Rules of Law in that Place; or in case of no positive Laws, the Rules of Natural Equity: For either the Common Law, or new instituted Laws, or Natural Equity, must be the Rule in those Places.
Barbadoes a Plantation, and not a Conquest.—'Twas agreed, That according to Calvin's Case, 7 Rep. 17. upon the Conquest of an Infidel Country, all the old Laws are abrogated eo instante, and the King imposes what he pleases; and in case of the Conquest of a Christian Country, he may change them at Pleasure, and appoint such as he thinks fit; tho' Coke quotes no Authority for it, yet 'twas agreed, that this might be consonant to Reason. But 'twas denied that Barbadoes was a Conquest, 'twas a Colony or Plantation, and that imports rather the contrary; and by such Names these Plantations have always gone in Letters Patent, Proclamations, and Acts of Parliament. But whatsoever may by some be said as to Statutes in particular binding there, the Common Law must and doth oblige there, for 'tis a Plantation or new Settlement of Englishmen by the King's Consent in an uninhabited Country; and so is the History of Barbadoes written by Richard Ligon, Printed at London 1673. pag. 23. says he, 'Twas a Country not inhabited by any, but overgrown with Woods. And pag. 100. They are governed by the Laws of England. And Heylin in his Geography, lib. 4. 148. says, The English are the sole Colony there; they are called the King's Plantations, and not his Conquests; and he neither could, nor can now impose any Laws upon them different from the Laws of England. 'Twas argued that even our Statutes do bind them; and many of them name these Plantations as English; they have some Municipal Rules there, like our By-laws in the Stanneries or Fenns; but that argues nothing as to the General; which shall prevail when the one contradicts the other, may be a Quære another Time.
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