missing it totally from your consideration; | I own therefore, gentlemen, upon these grounds and these considerations 1 feel a warmth and a zeal in this cause, which I hope will justify me for the pains that I mean to take, if my strength will support me in it, in laying before you what I conceive necessary for your consideration. I have said, that 1 mean to deprive general Mostyn of nothing that is not necessary to the reparation of the wrongs of this much-injured plaintiff; that he shall enjoy his good name and his character as far as my duty will permit him to enjoy them; I shall make no observations upon him but what arise from the cause now before you. I have some reason to wish, and to complain that the like conduct has not been observed on the other side. General Mostyn is to be graced with the countenance of great men; and a plain English jury is to hear the titular testimonies of the character of a man invested with a high office, in high power, and possessed of great riches; yet the character of a poor, unhappy, helpless individual, an inhabitant of an island, part of the territories belonging to the crown of Great Britain (confident too that he lived under the protection of the constitution of Great Britain,) is to be treated as a subject of Having dismissed, I hope, from the cause these considerations, let us now recur to the defence that is set up by general Mostyn. And, gentlemen, the defence set up by the general is, that Mr. Fabrigas is a man dangerous, seditious, and turbulent; that he was in the act of perpetrating sedition in the garrison of Minorca; that there was danger even of the loss of Minorca itself; that it affected the commercial interests of this country; and, as wellwishers to this country and the commerce of it, you are called upon to give a verdict for the defendant, or to reduce the consideration of damages so as to pronounce something worse for the plaintiff, if possible, than even a verdict for the defendant.-Gentlemen, their state of it is, that this man, Mr. Fabrigas, being a factious, turbulent, and unquiet man, was pursuing general Mostyn with an improper importunity; that he was endeavouring to spread sedition, to raise discontents in the garrison itself that affected the very safety of the government, and the island was in danger; that he uttered a threat that would have made general Mostyn responsible with his head, if he had not prevented such a scheme from being carried into execution; that he said, if his petition was again rejected, that he would come at the head of 150 men, a menace represented as if it imported a threat that he would come at the head of an armed force: such was the construction his counsel put upon it, that he would appear in such a way, as to make it neeessary for the general to comply with his decision: it is of all cases in the world that case mands; that there was an end of all government and all order in the island of Minorca, and a valuable part of the British dominions by then at the mercy of our enemies. Gentlemen, this is a well-drawn picture, and was very powerfully urged to you. It was something over-painted, as I conceive you will judge. And the necessity of doing it is an observation that will not escape you; for less than this, I do conceive (I rest myself satisfied in the general humanity that prevails in the breasts of Englishmen, and inhabitants of the city of London) less than this could never have served as any colourable justification for such conduct as has been proved upon general Mostyn: this therefore was necessary to be stated to you, that it was extorted, (contrary to the feelings of humanity which are said to sway and influence that gentleman in all his conduct) that this was extorted from necessity; that there was no time for consideration; that it was an emergency he was required to decide n; it superseded therefore all forms; it was blutely necessary, for his government would not have existed if he had been at all induced to postpone it; and that possession of which be was the guardian, and for which he is said to be responsible with his head, was in danger of being for ever lost to Great Britain. I can conceive a case like that, adding more circumstances than even the ingenuity of the counsel furnished, which would not justify, though it might extenuate indeed, the conduct of the commander. But was there any thing like it in this case? This, I submit to you, gentlemea, is a case that the counsel thought necessary to open; and less than this furnishes no pretence or colour of justification for general Mostyn. Gentlemen, when this cause was opened to you, and when the general's defence was stated to you, that the general was obliged to act in an emergency; bound by the most religious of all duties, to look with circumspection to the care of the garrison in insant danger, it was necessary to act as he did; it was an act therefore not of inclination nor of debberation, it was an act of absolute cogent irresistible necessity, and which he had been njustifiable if he had either omitted or deferred for a day. That is the nature, and that is the colour of the general's justification: but did the general know how different the case that would appear upon evidence would be from that which he had instructed his counsel to represent to you? It was necessary that the defence should be guarded ; and then there is a prefatory defence made, which in my opinion very much deserves your consideration. General Mostyn, with the prudence that from this hour I shall think makes part of his character, chose to decline the jurisdiction of an English jury. I don't wonder that he did; and I am not amazed that you are told that this is a matter extraneous to the jurisdiction of the courts of judicature in this country; that you, as a jury, are incompetent for its dewhich, as a defendant, general Mostyn must be inclined to wish might never appear before an English jury. It is a tribunal that he must dread; it is a tribunal that he must shrink from; and he acts upon the soundest motives of policy and prudence when he endeavours to evade it. If that should prove insufficient to him, the next resort is in the general law and doctrine respecting the power of the governor in the island of Minorca; and you are repeatedly cautioned not to consider yourselves as administering justice by the laws of England. You are told, that you are deciding a question of the laws of another country, far different indeed and materially opposite to those of the laws of England: you are called upon therefore to judge this cause by another rule, and by another standard, than that which you are in the habit of. Considering and trying causes by something more than this must be desired of you, before the ends of the defendant can be completely answered. You are desired to divest yourselves too of the feelings of humanity; and they are endeavoured to be suppressed by representing to you circumstances of horror and danger to the general trade of this country, in case you should suffer even principles of law, of justice and humanity, to prevail in this cause. Gentlemen, it was stated to you, that in this island of Minorca there is no law whatsoever; that the form of government is despotism; that what may be called the law, is the will and pleasure of the person that governs; that the king is absolately despotic; that be may change and alter the laws of this island as he pleases; and not only he himself can do it, but that he has delegated that power to his substitute; that he is sent over to govern, not by any fixed invariable plan of laws, but such as he thinks proper to make, such as he thinks proper to prescribe to the inhabitants, at any time that in his wisdom it shall appear just and expedient that it should be so. This is the state of an English government, and this is the construction put upon an English patent that passes the great seal of Great Britain. I will be bold to say, that if that construction is ever attempted to be put, it must be put repugnant to the words of that patent. I will be bold to say, that if a patent passes the great seal containing such words, there is not so feeble a judicature in this kingdom that would not dare to pronounce it void, and every act done under it illegal. And I will venture to say too, it is impossible that the great man that should dare to put the great seal, and prostitute public authority to a patent of that kind, but he must answer to public justice with his head.---And yet this has been contended to be the true genuine construction of an English patent, the authority under which this same general Mostyn, this governor of the island of Minorca, has presumed to act. Gentlemen, having stated how repugnant it is to every idea and principle of law and justice, it gives me concern to bear in what habits, possessed with what ideas, men return from the island of Minorca. It has been contended to be right, because it has been done before. If it has been done before, I say it is alarming, and it is time to put an end to it. You have had gentlemen with military commissions appearing here in red coats, to give you legislative constructions; to tell you, as lawyers, what is the law of the island of Minorca. You have had a gentleman who served as a secretary to governor Mostyn, who comes home and tells you, that the governor with respect to the administration of laws that regard only questions of civil property, is limited by the laws of the country; but with regard to criminal jurisdiction, his power is uncircumscribed, and totally unlinited; that by his proclamation he can change laws whenever he pleases, and the law of tonight is not the law of to-morrow, if that man thinks proper to issue his proclamation to repeal it; that the courts of justice are under a tye to respect these proclamations as laws; that the individuals of the island are all to be bound by it, and if these laws are issued but an hour before, they are as binding as if of long standing in the island. These are the ideas of law that these gentlemen bring from the island of Minorca, under the government either of this general Mostyn, or his lieutenant-general; and upon the authority of these gentlemen that have furnished themselves with such ideas of law and justice, you are at once to be prevailed upon to determine that the laws, liberties, and privileges of this kingdom in no respect extend there. It is something shocking to English ears; a despotic, an arbitrary, an unlimited power! (for even the words have not been spared) and yon are here, as an English jury, to pronounce that the king of Great Britain, and persons acting under him, are to exercise this unlimited power within a part under the jurisdiction of the judges of England. If this is offered in extenuation of the conduct of general Mostyn, added to the strong irresistible calls of justice and humanity that must press your minds more than words can, there must be added to it the most powerful political considerations; for you have been told in the course of this argument, that the island of Minorca is an insecure possession to the crown of Great Britain; that its inhabitants are in a great measure disaffected. If they are, has not the cause of the disaffection been very explicitly set forth to you? Is not the cure as evident ! Correct these gentlemen, who think that their hands are not bound by law and justice, that go over to exercise power over these helpless men. Teach the poor Minorquins that the English law will protect them; that their governors are bound by law and justice to teach them the blessings of an English government; you'll remove disaffection; you'll get a stronger guard than all the caution and wisdom of governor Mostyn, his secretary and friends, powerful and titled as they are, and this fatal system of military despotism; you will have the island to serve you, you will have the affections of the inhabitants to assist you, you may command them whenever you will. Yet, gentlemen, it has been dwelt upon as a topic, that this island is disaffected; that their inclinations are against the English government. And who can wonder at it, if what Mr. Blakeney says he is clear in his recollection of? I hope he is not; I don't mean to derogate from his veracity ;-that a power like this has been used of arbitrarily sending a man, a native, an inhabitant, from the island, his friends living there, his possession there, for no offence committed, but at the absolute will and pleasure of the governor. You have heard a great deal of Turkey, you have heard something of the laws of Japan, you have heard of other despotic powers, whose names I trust are sufficiently odious in the ears of all English hearers; and yet you are told that the governor of this island is equally despotic with any of these powers; that he has no limits but his will, no bounds but his pleasure, no law but his inclinations; that the lives and persons, if not the properties, of all the inhabitants of this island lie prostrate before him, and they must depend upon his natural good inclination and humanity in what degree they are permitted to enjoy them. This is the state of this island; and I will be bold to say, it would be speaking injuriously of the government of Japan,---it would be speaking injuriously of the government of Turkey,it would be speaking injuriously of the emperor of Morocco's government, to describe that as the general state of these subjects; it never was in the idea of even despotism itself till this very hour: it is violence and outrage, it is the law of robbery; it never obtained in any place where the idea and form of a civil government ever was allowed; because, if the legislative power and the executive meet in one person, that distinguishes a despotic government from the happy state that we enjoy in this kingdom. Our king can't prescribe us laws, but he must administer us justice by those laws that our representatives make for us. That is the state of this country, happily distinguished from the state of despotic countries. But in no despotic country whatever did this idea ever obtain, that the prince, the despotic sovereign, call him by what name you will, was to administer justice by his incident pleasure, will and power. If he made laws, he made them, proclaimed and divulged them, and the subjects were governed by them, and their kings were ruled by those laws. But here this gentleman, Mr. Blakeney, goes wide beyond his counsel, (his counsel would not state any thing like this) but according to this gentleman, the inhabitants of this island, without the least imputation of delinquency, without any mode or form of trial, were sentenced, instantly transported, and removed from their friends and relations for ever, unless it is the good will and pleasure of the governor ever to permit them to return. I say, it is the most shameful anecdote that ever was found of any government whatever; and a bashaw of Egypt would merit the bow-string for behaving in so illegal and so indecent a manner. The form, the appearance, the semblance of justice, are all of importance to be observed, and which the policy even of the lawless prescribe; yet have our ears been tortured, and our patience and time been spent with doctrines of this sort, by gentlemen who have enjoyed trusts in that island, and which bave constantly been exercised by them. This is what general Mostyn has set up in his defence. His majesty, it is said, makes laws whenever be pleases; it is in his sole will and power to impose what laws he pleases upon a conquered country. It is more than ever I heard. The prerogative goes further than any book, that ever I read, can justify me in allowing; because, as I have understood it, if true, the strongest authorities support these prerogatives. One Christian prince conquers a Christan kingdom, that is governed by its own laws, unless it is the will of the conqueror to abrogate those laws. The conquest of the island of Minorca was not made by queen Anne personally, but it was made by the subjects of Great Britain, and belongs to the supreme state of Great Britain. But if you give the power to the sovereign to make those laws, allow them to be rightly exercised. Can you suppose that it belongs to the governor appointed, and that they are sent out of this island not to be governed by any laws, any instructions that they shall receive, but to govern and administer justice arbitrarily and incontrolably, according to their own will and pleasure? For in order to furnish the defendant with any colourable defence whatever, he is to be justified by precedents, which you must condemn as precedents of robbery and burglary, equal in point of violence to either of those terms; or you must allow of such a power which has hitherto been held not only incompatible with the law, the spirit, the genius, and the constitution of Great Britain, but with the idea of any law whatever that ever obtained in any state or climate: both these you must subscribe to before you can comply with the request that is made you, and pronounce a verdict for gen. Mostya-The gentlemen then having taken this broad and extensive line of defence, which they thought would contain and embrace any defence that they thought proper to offer to you, they next proceed with their defence. And, gentlemen, you are told, that as it was the authority, so it was the duty of the general to proceed as he did; that he could have no per sonal malevolence to a man so remote from his situation, so unlikely to fall in with his connections; that the man was mutinous in the whole of his conduct; and that at last he committed that dangerous act of mutiny that made it an indispensible act of justice in the governor to commit him, and to send him out of the island; that if he had not done it, and a consequence had happened fatal to the island, the governor would have been responsible for it. Why, gentlemen, the state of it so much exceeded the facts, it certainly was expected by the learned counsel who offered it to you that he should prove something less, and therefore something that required bold and strong positions to support it; because, if he could have proved this, though I should conceive it would by no means have intitled the general to a verdict, yet such considerations,-an act of absolute necessity, the alternative of seeing such a trust as the island of Minorca lost through his remissness, or the removing of this man out of the island-I should have conceived might very well have furnished an excuse for him in his conduct: I am sure it would have taken off from any edge, any warmth, or keenness in which an action would have been supported that would have been brought against him. But, large as the ground was laid, it was to take in certainly another case than this. Nothing, as I conceive, and as I submit to you, of this kind has been proved. Petitions, letters, messages have been given in evidence before you, and comments are made upon the very petitions themselves, as carrying with them stroug proofs of a mutinous inclination; and at last there is a broad fact asserted, that there was a downright threat of appearing in arms at the head of 150 men. Now, gentlemen, give your attention to these letters, to these petitions that have been read. They are expressed, as I conceive, in decent and in respectful terms; and if it is an act of mutiny, I do conceive that it is impossible for any one man to complain that he has received wrong from another, either by word or letter, but he must be condemned as a mutineer in the island of Minorca; and the public faith, the national faith that is pledged for the protection and enjoyment of their property, is reduced to that state- You shall enjoy it, but if another presumes to wrong you, you must not dare, upon the pain of transportation and long imprisonment, to utter a word of complaint; for it is judged dangerous, it is not consistent with the wisdom of government to permit it, and we are called upon to punish you most severely.'-Gentlemen, the transaction appears to be this: that an officer in the island of Minorca, called a mustastaph, was the man from whom the islanders were to receive what they call the afforation or the assize price: this was the conception of Mr. Fabrigas the petitioner. Another notion prevailed, that the order of Mr. Fabrigas, which he apprehended to be of a dangerous kind, and therefore discouraged, and advised him never to repeat again. He does not know, he says, whether the expression was to this purpose, that he would come again if permitted, and that there should be another petition backed with 150 men, or that he would come with 150 men to back his forbear a comment; it would be betraying my cause and my own judgment if I did. This gentleman is very sure that one or the other of these were the expressions. He professed to refresh his memory by a paper he had written down within an hour and a half of the transaction; and he thought proper to add, that it gave him an alarm, as if something dangerous might follow. Now, gentlemen, what are the words which he has written, from which he said he made his communication to the governor, and which certainly contains the truth, as he recently wrote it down? Why, that Mr. Fabrigas said he would come next day with a petition of the people concerned in grapes and wines, which they would sign and come with to the number of 150! These are the words wrote down by Mr. Wright himself. Why, gentlemen, I submit it to you, whether in common sense and plain honest interpretation there can be any mistake about these words. council received from the crown, which is consistent with their capitulation and the rights stipulated to them, ought to be observed; by which order they were at liberty to sell their wines after a certain price had by a public officer been once assized, which is called the afforation. But the mustastaph of the island thought proper to say that the order of council was superseded by another order, which competition. I am sorry for it. But here I can't ing from the active person in the government, though not the principal at the time, must necessarily supersede that order of council; and it was insisted upon that governor Johnston's order, judging of the inexpedience and impropriety of the former, must take place; and that Mr. Fabrigas was wrong in his conception of what should be understood to be the law of Minorca. Upon his presenting his complaint to Mr. Mostyn, be received for answer, that Mr. Mostyn would immediately call upon the mustastaph for his answer. The answer is given; and in consequence of it Mr. Fabrigas is told that his petition was groundless, for that the mustastaph had most perfectly satisfied the governor. Mr. Fabrigas then desires to see, for confident as he was that he was well grounded in his complaint, yet he desires to see the reasons that the mustastaph has assigned. The sight of these reasons is denied him. In consequence of that, he presents another petition; which is, I think, referred to some of the law officers of the island for their consideration. They run it over, and they report themselves satisfied; and they insert the answer of the mustastaph, which answer the plaintiff Mr. Fabrigas is very desirous of seeing and answering. The business then proceeds, as it is said, in repeated petitions; Mr. Fabrigas conceiving that the governor is misled, not that he wilfully denies him justice, but is misled through the influence and misrepresentation of this mustastaph; and that produces at last a convention of some of the island, in order to take their sense of the matter. Here it is not clear what was the sense of the majority; but here the mustastaph had weight and interest enough to get that represented by the majority, which he wished to have received. This being on a Sunday, when many of the inhabitants were in the country following their diversions, and Mr. Fabrigas thinking that the sense of the people had not been properly taken, comes again to the governor with another petition, not censuring the governor, not upbraiding the governor, not intimating the least disapprobation of the governor's conduct, or jealousy of his inclination, couched in terms of the utmost decency. The consequence of it was an answer, which produced from Mr. Fabrigas that very answer upon which the defence of Mr. Mostyn has been in so great a measure built; to which the gentle men have applied that evidence which was produced by Mr. Wright, Mr. Mostyn's secretary. Mr. Wright says, that first of all the conversation was interpreted by a priest, and then by another interpreter; but he does not know who interpreted those expressions which fell from You hear, gentlemen, this was a contest between the mustastaph and Mr. Fabrigas. The governor is appealed to as a judge expected to be, and who ought to be, impartial between them: he was appealed to with decency on one side, but leaned rather with friendship on the other; for the interest of the governor is not unconnected with the emoluments of the mustastaph. On one side it is insisted that this was not the sense of the majority of the inhabitants; on the other side, notwithstanding what had appeared from the advantage taken upon a Sunday, when many could not appear, yet still that the real sense of the majority of the inhabitants was on the side of Fabrigas. Gentlemen, is not that the most natural key? does not that furnish the most obvious interpretation to this? He would come with 150, in answer to what he had been told; for his petition had been rejected upon the ground that it was not consonant to the wishes of the inhabitants, for they had been summoned, had declared and signed against it. He answers, that I will come the next day with a petition signed by 150 men. And who are these men to be? Why, he says, persons concerned in grapes and wine. Can you conceive then that he threatened to bring an armed force, that he threatened danger to the garrison? Was it not a natural answer in that dispute that then subsisted between him and the mustastaph? Is it not clearly explained by the words, "the persons concerned in grapes and wines," that he meant the mistake should be rectified the next day, and that it might appear from the number attending that petition, upon which side the |