Forbes v Cochrane and Cockburn

State Trials Cited authorities (7) Cited in (1) Precedent Map Related
JurisdictionEngland & Wales
Judgment Date01 January 1824
Date01 January 1824
CourtState Trial Proceedings
9 Will. 3. c. 26. Slaves
47 Geo. 3. sess. 1. c. 36. Abolition of Slave Trade
51 Geo. 3. c. 23. Slave Trade
FORBES against COCHRANE AND COCKBURN. PROCEEDINGS IN THE COURT OF KINGS BENCH IN 1824, IN AN ACTION OF TROVER FOR FUGITIVE SLAVES RECEIVED ON BOARD A BRITISH SHIP OF WAR. JUDGMENTS OF BAYLEY, HO LROYD, AND BEST, J.J. (Reported in 2 B. & C. 448 and 3 Dow. & Ryl. 679.) The plaintiff, a British subject, was in 1815 a merchant in Florida, then belonging to Spain, and was the owner of about 100 wgro slaves. The defendant, Sir A. Cochrane, was the commander-in chief of his Majestys fleet on the North American station ; the defendant, Sir G. Cockburn, was the second in command. On the 24th February 1815, 38 of the plaintiffs slaves, escaping from his plantation, went on board one of his Majestys vessels lying not in Spanish waters. The plaintiff asked the defendant G. C. to deliver up the slaves. G. C. told him that he might see them, and endeavour to persuade them to return. They refused, and the defendant G. C. declined to compel or order them to quit the ship. The defendant A. C. instructed the defendant G. C. to convey the slaves to the British colony of Bermuda, whither they were taken. Action of trover. Verdict for the plaintiff, subject to the opinion of the Court on a special case. 1. Slavery.--Bight of Action for harbouring Fugitive Slaves. Held, on motion for new trial, by Bayley, Hoiroyd, and Best, J.J., That no action would lie in the above circumstances against the defendants. By Hoiroyd and Beat, J.J., That the defendants were not bound (even if they were entitled) to use force, or permit force to be used, to compel the slaves to quit the ship and return to the plaintiff ; That the law of slavery is a local law only. " The law of slavery is a law in invitum; and when a party gets out of the territory where it prevails, and out of the power of his master, and gets under the protection of another power without any wrongful act done by the party giving that protection, the right of the master, which is founded on the municipal law of the particular place only, does not continue, and there is no right of action against a party who merely receives the slave in that country without doing any wrongful act." Holroyd, J. 2. Status of British Ship of War. By Holroyd and Best, J.J., That when on board an English ship not lying in territorial waters, the fugitives were in the same position as on an island subject to English law. " The moment that they (the fugitive slaves) put their feet on board of a British man-of-war not lying within the waters of East Florida * * * those persons who before had been slaves were free." Best, J. 3. Liability of Public Officers acting in Good Faith. By Bayley, J., That in order to support an action against persons in the position of defendants for such conduct as that complained of it was necessary to show that they had acted maid fide. 4. Law of Colony and of Conquered Country. Held by Hoiroyd J., If a country is discovered and colonised by Englishmen the inhabitants are governed by English law. In a conquered country the old law prevails until altered by the King in Council. 149] Forbes against Cochrane and Cockburn 1824. [150 The declaration stated that the plaintiff was lawfully possessed of a certain cotton plantation, situate in parts beyond the seas, to wit, in East Florida, of large value, and on which plantation he employed divers persons, his slaves or servants. The first count charged the defendants with enticing the slaves away. The second count stated that the slaves or servants having wrongfully and against the plaintiffs will, quitted and left the plantation and the plaintiffs service, and gone into the power, care, and keeping of the defendants ; they, knowing them to be the slaves or servants of the plaintiff, wrongfully received the slaves into their custody, and harboured, detained, and kept them from the plaintiffs service. The last count was for wrongfully harbouring, detaining, and keeping the slaves or servants of the plaintiff after notice given to the defendants ; that the slaves were the plaintiffs property, and request was made to the defendants by the plaintiff to deliver them up to him. Plea, not guilty. At the trial before Annorr, C.J., at the London sittings after Trinity term, 1822, a verdict was found for the plaintiff, damages 3,8001., subject to the opinion of the Court on the following case :- The plaintiff was a British merchant in the Spanish provinces of East and West Florida, where he had carried on trade for a great many years, and was principally resident at Pensacola in West Florida. East and West Florida were part of the dominions of the King of Spain, and Spain was in amity with Great Britain. The plaintiff, before and at the time of the alleged grievances, was the proprietor and in the possession of a cotton plantation called San Pablo, lying contiguous to the river St. Johns, in the province of East Florida, and of about 100 negro slaves whom he had purchased, and who were employed by him upon his plantation. The river St. Johns is about thirty or forty miles from the confines of Georgia, one of the United States of America, which is separated from East Florida by the river St. Mary, and Cumberland island is at the mouth of the river St. Mary on the side next Georgia, and forms part of that State. During the late war between Great Britain and America in the month of February 1815, the defendant, Vice-Admiral Sir Alexander Inglis Cochrane, was commander-in-chief of his Majestys ships and vessels on the North American station. The other defendant, Rear-Admiral Sir George Cockburn, was the second in command upon the said station, and his flag- ship was the Albion. The British forces had taken possession of Cumberland island, and at that time occupied and garrisoned the same. The Albion, Terrorbomb, and others of his Majestys ships of war, formed a squadron under Sir George Cock-burns immediate command off that island, where the head-quarters of the expedition were. Sir Alexander Cochrane was not off Georgia during the war, and at the time of the capture of the island he was at a very considerable distance to the southward of Cumberland island ; but Sir George Cockburn was in correspondence with him while he was at the said island. In the year 1814 a proclamation had been published by the said Sir Alexander Cochrane as such commander-in-chief, and Sir George Cockburn had received great numbers of copies thereof whilst the ships under his command were lying off the Chesapeake, and distributed them at the Chesapeake and amongst the different ships, but none were distributed by the order of the defendant, Sir George Cockburn, to the southward of the Chesapeake, the southern extremity of which is full 400 miles distant from Cumberland Island. The proclamation stated that it had been represented to him, Sir A. Cochrane, that many persons then resident in the United States had expressed a desire to withdraw therefrom, with a view of entering into his Majestys service, or of being received as free settlers into some of his Majestys colonies ; and it then notifies that all those who might be disposed to emigrate from the United States would, with their families, be received on board his Majestys ships or vessels of war, or at the military posts that might be established upon or near the coasts of the United States, when they would have their choice of either entering into his Majestys sea or land forces, or of being sent as free settlers to the British possessions in North America or the West Indies, where they would meet with all due encouragement. One of these proclamations was seen on Amelia Island, East Florida, which is less than a mile from Cumberland Island, and about 30 miles from San Pablo plantation. In the night of the 23rd February 1815, a number of the plaintiffs slaves deserted from his said plantation, and on the following day thirty-eight of them were found on board the Terror bomb, part of the squadron at Cumberland Island, and entered on her muster-books as refugees from Saint Johns. It was reported that they came from seaward ; they were mixed with other refugees ; and they all spoke English. On the 26th of the same month of February, Sir George Cockburn received from the plaintiff a memorial, stating that the plaintiff had been a resident in the Spanish provinces of East and, West Florida for nearly thirty years, as clerk and. partner of a mercantile house established under the particular sanction of the Spanish Government for the purpose of trade with the southern nations of Indians. and which they were allowed to continue by special pern;ission from his Britannic Majesty, pending the two Spanish wars that occurred during that period. The said mercantile house had acquired considerable property in these provinces, and particularly that the plaintiff possessed in East Florida a 151] Forbes against Cochrane and Cockburn, 1824. [152 cotton plantation on the river St. Johns, of which lie was sole proprietor, and held the same with upwards of 100 negroes at the period of the invasion of the State of Georgia by his Britannic Majestys forces under the command of him, Sir G. Cockburn, in January preceding ; that on the night of the 23rd instant sixty-two of his said negroes deserted from the plaintiffs plantation (together with four others belonging to Lindsay Tod, his manager), of whom he had found thirty-four, namely, eighteen men, eight women, and twelve young children of both sexes, together with the aforesaid four negroes belonging to Mr. Todd, on board of his Majestys ship Terror, Captain Sheridan. But that the said slaves refused to return to their duty, under pretence that they were then free, in consequence of having come to this island in possession of his Britannic Majesty. The plaintiff therefore prayed " that the defendant, Sir G. Cockburn, would order the said thirty-eight slaves to be forthwith delivered to him...

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1 cases
  • R v Gordon-Finlayson, ex parte an Officer
    • United Kingdom
    • Divisional Court
    • 14 January 1941
    ... ... In Forbes v. Cochrane F4 it was held that where a slave had escaped from a foreign country where slavery was ... ...