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had been always governed daring the time of the Spanish command, which was accordingly granted to them; but his Majesty in Council has ever 11 nee made such regulations for the better management of the internal police of the ifland as appeared necessary : That it was the construction of one of these regulations that had given rife to the present action. An order of the PrivyCouncil was made in the year 1752, and transmitted to Minorca, to regulate the sale of wine in the ifland, which enacted, among other things, < that the natives and inhabitants be at all times permitted to fell. their wine at or under the afforation price (which was a stated regular market pi ice) without any intervention of the Governor, or any person acting under his authority.' That it appeared, however, that this order did not extend to St.- Philip's, the district of the ifland in which the plaintiff Fabrigas lived. Within that district the Governor had from time to time made such regulations with respect to the sale of wine as to him appeared proper; and at that very time, in the year 1771, an order of Governor Johnson's was in force, which only allowed a certain number of wine houses to be opened at a time: and that the inhabitants mould ballot for the felling of their wine. There is an officer called Mustasaph, in this district, whose duty it is to inspect and regulate the several markets, and to grant licences for the sale of wine; and it was pretended that he had behaved to the plaintiff in a manner inconsistent with the duty of his office, by refusing him the liberty of felling his wine under the afforatton price, and therefore a com
plaint was exhibited by Fabrigai
to the defendant, Governor M ,
against the Mustasaph; wherein he asserted his demand to be very reasonable, and conformable to the express disposition of the order of the year 1752, which says, ' that the inhabitants (hall be permitted to fell at the price of the assorttion or under it." The Governor ordered the Mustasaph to answer this charge, which he did to the Governor's satisfaction. Fabrigas upon this presented a second petition to the Governor, which being referred to the law officers of the island, they made an unfavourable report of it. Upon which he presented a third, complaining of~ the Judges, and seemed determined to
force Governor M to take
some steps against him, of which he might take an undue advantage. This having no effect, he presented a fourth to the Governor's Aid de Camp, and told him, that he would back it, or get it backed, by 150 or 200 men, at the head of whom he would come to the Governor's the next day for an answer. This message being told to the Governor, it alarmed him much, and, as he knew the turbulent disposition of the plaintiff, he conceived is as a menacing and hostile purpose, and therefore the next day called a counsel of his officers, who were unanimously of opinion, that the plaintiff was a dangerous person, and that mutiny and sedition would arise if he continued longer in the island; upon which he was seized, imprisoned, and at the end of six days sent out of the island to Carthagena.
This was the matter and substance of the defence. Serjeant Davy talked a great deal besides
about about the characters of the plaintiff and defendant, and said, that some of the most respectable personages in the kingdom were ready (if found necessary) to prove the humane, tender, and amiable character of the Governor, meaning a Jill of 26 noblemen and gentlemen who were subpœnaed for that purpose; whereas the evidence produced would prove the plaintiff to be a dissolute, immoral person, of a seditious and turbulent nature and disposition. The witnesses on behalf of the defendant, viz. James Wright, Esq; Secretary to the Governor; John Pleydell, Esq; his Aid de Camp; Robert Hudson, Esq; Fort Adjutant, Sec. were then called, who proved the facts stated in Serjeant Davy's speech, and spoke to the badness of the plaintiff's character, and the excellency of the defendant's. They deposed likewise, that the authority of the Governor was aibkrary and unlimited on the island—that his proclamations had the force of laws, and inflicted penalties and punishments on such as dared to disobey them.
Serjeant Glynn then arose, and made his reply to the following effect: " That, since he had addressed the Court and Jury last, the cause had been perplexed and purpusely directed from its trpe meaning, to an enquiry foreign to the real question; which queilion was, whether the plaintiff, a subject os Great Britain, circumstanced as has been proved, was entitled to have redress for the injuries he had suffered, from an Engliso Jury ?—That every consideration of the characters of plaintiff and defendant, other than what arose from the case then under consideration, should be dis
missed from -the attention of the Jury; that he had made no malicious or uncandid enquiries into
Governor M 's character, nor
pretended to question the existence of those virtues and excellencies, that his advocates and adherents had so liberally expatiated upon, and held up to public view, nor made any comment upon his behaviour but such as of necessity resulted from the present questionthat he should have been happy had the same caution and circumspection been observed on the other side, instead of that ungenerous mode ot procedure which he now complained of. A native of Minorca, though a subject os England, yet a stranger to our country, our language and customs, comes here to seek redress from an English Jury for his cruel and ill treatment abroad; in the court where his adversary's defence is made, a principal article of that defence is the plaintiff's immoral
and flagitious character This
unhappy foreigner is thought rot to have suffered a sufficient degree of punishment by his rigorous confinement in the dungeon, and banishment from his native country, and the society of his family and friends, but new modes of torture are added. — His domestic character is ransacked—Isc is charged with crimes which arraign hy conduct as a father, a busbard, a citizen— he is most ignominioufly traduced by every method of illegal cruelty, more fatal to his repose and happiness than the utmost excess of corporal sufferings.—la such a case as this, the Serjeant said, ' he felt somewhat be)ond th< line of an advocate'—the feelin/s of humanity were warmly inerflld on the occasion, and he hoped jey
would not claim the attention of Jury in vain.
The defence, however, set up and principally urged in behalf of General Mostyn, is, that the plaintiff is a dangerous and seditious man; that his behaviour was such as threatened even the loss of the island; that he pursued Governor M—— with an improper importunity, and endeavoured to avail himself of a popular disaffection among the Mincrquins to the English government,; that he threatened to come at the head of 150 or 200 men to receive an answer to h:s last petition, as if he meant to appear at the head of an armed force; that the island would have been in danger had the plaintiff continued in it; the defendant's Caunsel should certainly have proved the existence, or, at least, the probability of such considerations, before they proceeded to vindicate his conduct upon them. The plaintiff's petitions to the Governor have been read in Court; they are expressed in very submissive and respectable terms, and do not convey the least idea of a seditious or turbulent purpose. The charge of his saying that he would appear at the head of 150 or 200 men is sufficiently explained even by one of the defendant's own witnesses, Mr. Pleyefell, who fays that he did not think the plaintiff meant by such a declaration any ho iie or mutinous purpose, but merely intended to produce that body os men lo (hew that iie was not singular in his wish to have Governor Johnson's regulation altered, but that the laid 150 or 200 men were of the fame »pinion with him and would back Ks petition : That, if any different construction could be, or was put
upon this declaration, an enquiry should certainly have been made after this body of men, and the Governor not have rested satisfied with the punishment inflicted on the plaintiff as long as he thought that the plaintiff had 150 or 200 adherents behind him in arms mutinous and disaffected: Had the Governor conceived the island to have been in any danger (which his Counsel declare he did, and that he was driven to act as he did in consequence of such an opinion) is it probable to believe that he made no enquiry after this body of malecontents? That the plaintiff had acted upon no other motive than that warmth of inclination which every man must feel who knows himself injured, and has the mortification to find, as an addition to his sufferings, his complaints unheard, and his grievances unredressed. Even if his warmth had betrayed him into some unguarded behaviour or language (which however had not been proved) still the defendant's conduct towards him was not justifiable, and even if the law of Spain allowed his being banished from his native place of residence, yet it gave no sanction to the cruelty of his previous imprisonment, nor justified the severity of his being punished without even the ceremony of judicial process. In this the form as well as spirit of law was lost. That such illegal punishment without the forms of trial or judicial examination, and inflicted merely upon report, required great and exemplary damages. The defence of Governor M——, the Serjeant said, was guarded by a prefatory vindication of the defendant's conduct, which declines the jurisdiction) Jurisdiction of an English Jury, and tells them that such conduit was strictly conformable to the rules and maxim* of arbitrary power, and therefore not cognizable by their authority and jurisdiction; that, if arbitrary power is avowed and exerciled in any part of the British dominions, a British tribunal is not to examine into and punish it; but the true realon why G vernor M < tells the jury that they are incompetent for the examination of this question, is because this is the tribunal he must ever dread, as this it is, which has always been the terror of evil ministers and the scourge of arbitrary power. He then proved in an able manner that the consideration of the jury should be built on a broad and extensive foundation, and said that the power of the Ring could never be delegated to a Governor of even a conquered island to alter laws in an arbitrary manner; and that, if such a construction was put to a patent that passed the seal, he hoped to see the day when the Minister that passed such patent stjouid an wer it with his head, it being repugnant to every idea of law and justice; that, if this power had been long acquiesced in and established on the island, it was now high time to put a stop to it, as no precedent could justify oppression, nor give a sanction to the illegal exercise of authority; and that if no other method could be found out to secure the island, and preserve our trade in the Mediterranean, but the exercise of that power which was now the subject of complaint, he freely gave his consent that the whole should be sacrificed, and would admit of no idea of preference to purchase or
preserve them at the expence of humanity, justice, and law; that a Governor could not act in a legislative capacity without receiving instructions from home, the union ot the legislative and executiveauthority being an union that the law abhorred; and that a Bashaw of Egypt would have lost his head had he presumed to act in :he manner Governor M——— had done. He them enlarged uoon the evidence given to prove the defendant's con» duct justifhbl'' under the Spanish laws; and after very severely com- ■ menting upon the circumstance of a number of red coats coming to tell an English Jury what was law at Minorca, and remarking on the miserable Irate of those wretched lawyers who lived in an island where laws are unnecessary, (if the idea of the Governor's absolute power be admit-ed) and their slavish doctrines and opinion that the Governor's power extended over this unhappy man in any shape that he pleased so that immediate execution, perpetual imprisonment, or the most painiul death that inventive torture could inflict, would have been as justifiable to the full as banishment. He answered the argument alledged on the other side, that the island of Minorca would be a very insecure possession, unless military discipline and the strictest system of authority was adhered to, by declaring it to be his opinion, that the affections of the Minorquins would be sooner and more easily reconciled to our government by admitting them, with the other subjects of Great Britain, to a free participation of the priviledge of having their complaints heard, and their grievances redressed by the verdict of a British
Jury, and by their being taught the bleflings of the English law, than by their being kept under the rigour of military discipline, and being ruled by the coercive sway of a rod of iron.'
This was the ma'ertal part of the Serjeant's reply. Mr. Justice Gould then summed up the evidence to the Jury with minuteness and accuracy; he hinted his opinion, that the defendant mould have pleaded in abatement to she jurisdiction of courts, how far a Governor of a conquered island, which island )»ad petitioned for a continuance of their native laws, was amenable tefore an English judicature at Guildhall, on the complaint of a native of such conquered island, and how the jurisdiction of such court had cognizance of the complaint. Towards the conclusion of his speech, he observed how very necessary it certainly was for the Governor of an island, answerable with his life for the proper execution of the important trust committed to his charge, to check the first feeds and appearance of mutiny and sedition in the island—but at the same time spoke much in savour of that express provision in Magna Charta, which fays, Nullus liber homo cxuletur, and mentioned Lord Coke's opinion that the King cannot even fend a man Lord Lieutenant to Ireland against his will, since that might be only a more honourable banishment. He however humourously observed, that there were sew, he believed, who would, in the present age, recoil at the royal proposal. He entered a little into the doctrine of conquered islands, and the laws relating to them; but as he forbore being decisive on the point, his observation is here omitted.
The jury then withdrew, and in about two hours time brought in their verdict lor Mr. Fabrigas the plaintiff, with 3000 1. damages.
The defendant's counsel then tendered a bill of exceptions, which is in the nature of a writ of error, lying to the court of King's-bench; which, after some altercation, was admitted, and remains to be argued before the,judges of the court ot King's-bench, wherein the validity of the jurisdiction of the court, and the objections stated by Mr. Justice Gould, will be examined into and decided
Summary of the Proceedings at Guilds hall on the Trial relative to the Rej'ratioiy Companies.
ON Wednesday, the 14th os July, came on, upon the hustings at Guildhall, the longdepenJing and important cause between the Common Serjeant of the city of London, plaintiff, and Samuel Plumbe, Esq; Prime-Warden (or Master) of the company os Goldsmiths, defendant. This suit was instituted against the defendant on occasion of his refusal to obey a precept issued in the year 1770, by the then Lord-Mayor, (Mr. Becksord) to convene the livery of the said company to a cominonhall.
The cause was opened in a brief manner by Mr. Allen, on the part of the plaintiff.
Mr. Dunning then entered more minutely into the business, and spoke for near two hours. He acquainted the Jury, that the charge brought against the defendant was a wilful disobedience of that authority, to which (in the present