self would buy it at a fixed price. This officer | gentlemen, we now presume to treat as the refused to comply with either: Mr. Fabrigas acts of governor Mostyn; and the governor therefore was reduced to the necessity of mak- says, he is justified in so doing, as governor of ing an humble application to governor Mostyn, Minorca. I should be glad to know upon what to permit him this alternative, either to sell his idea of justice the governor grounds that prewine under a certain afforation and regulated | tence. I conceive, that in this case, there canprice, or that the government would buy his not be the least colour or pretence of any judiwine of him for their use, or the use of the gar-cial examination, or the least form of judicial rison. This petition was thought reasonable at first, and bad a kind answer; it was received, and it appears to have been taken into consideration, but nothing was done in consequence of it. Mr. Fabrigas therefore repeats his application, and be receives encouragement to expect that the reasonableness of his petition would be taken into consideration, and that he should be at liberty to sell the produce of his land. But, gentlemen, at last this answer was given to Mr. Fabrigas: that if it appeared to | be the sense of a considerable number of the inhabitants of the island, that it was for their benefit that such permission should be given, his application should be complied with. Mr. Fabrigas then prepares such a petition; he gets it signed, and he presents it to governor Mostyn. Now, gentlemen, here it is impossible to state what passed between the parties. If it can be pretended that there was any thing mutinous, menacing, or improper, in this last petition, I presume that petition will be produced to you, and it will speak for itself; but some indignation was conceived by governor Mostyn against the plaintiff, Mr. Fabrigas, which produced that strange, unaccountable, unwarrantable, and alarming conduct, which we now, by evidence, inpute to Mr. Mostyn. For gentlemen, instantly upon this, Mr. Fabrigas is conducted in the manner before-mentioned to that horrible dungeon, where he continues for a considerable time under such orders as I have stated to you, till he was hurried on board a ship, and was conveyed to Carthagena in Spain. Here, for the first time, he receives intelligence of what was the provocation that he gave, what was the ground of such treatment of him, what charge was imputed to him, by what authority he was so detained and so treated for here appears a letter under the hand of governor Mostyn, avowing this act, and telling him that he thought it necessary and expedient, for the punishment of his offence, to send him into exile, and to direct him to be conveyed to Carthagena in Spain. Here then you find the governor avowing the whole; and if he did not avow the whole, you could have no doubt under what authority these things were done; because you will hear from all, that they cannot be done but under the autho. rity of the governor. Then, gentlemen, the imprisonment, and the sending this man into exile, are the acts of governor Mostyn. The imprisonment under such strange aggravating circumstances of horror and ignominy, and the sending him without notice, without time for preparation, without giving him the opportunity of paying the least aftention to the concerns of his estate and family, into exile; these, proceedings. Governor Mostyn, after having been guilty of this outrage to the plaintiff, would have acted much better, if he had not added this insult to the laws of his country, by assuming an authority incompatible with the least possible idea of justice that can be entertained in this or in any country whatsoever. Gentlemen, if governor Mostyn complains that justice is not done to his defence by his plea, that he is fettered and embarrassed by it, and could now justify his conduct upon better grounds, we will freely give him the opportunity of doing it; he shall do it in what character he thinks proper. If he has acted under the colour of any judicial proceedings in civil judicature, let those proceedings be produced, let him desert and abandon the shameful plea that he has presented; he has even our liberty to do it. If the governor means to be justified in his military character, I need not tell you, gentlemen, that it is necessary in that character, that there should be judicial proceedings likewise of a military court of justice. I will be bold to say, that the idea governor Mostyn has adopted, that the lives, fortunes, and being of the inhabitants of the island of Minorca are at his mercy, and that by his sole authority he can inflict bonds and imprisonment on any inhabitant of that island, is the single idea of governor Mostyn; and I say the governor does not, in this case, talk like a military man, for his ideas are as foreign to the notions of a soldier, as of a lawyer. Gentlemen, this is the nature of the case that we shall offer to you, and which we shall produce in proof to you against governor Mostyn: an imprisonment, if it had been attended with all the circumstances of comfort that could have been administered to a person in that situation, unjustifiable, and without colour or pretence of legal authority, sufficient to entitle this gentleman to call for considerable damages from a verdict of a jury: a banishment into a foreign country of a subject of England, intitled to be protected, to whom the laws cannot be denied without breach of public faith, and a dangerous wound to the general system of our constitutional liberties. Thus, by the sole authority of governor Mostyn, without pretence of judicial examination, was Mr. Fabrigas sent into banishment. If all other circumstances were away, the being sent out of his native country by an arbitrary act of the governer of that island, is surely ground enough to call for the most considerable damages. But, gentlemen, you are to add to it every circumstance of discomfort. He was, during the whole time of his imprisonment, kept in a gloomy dungeon; no circumstance o ignominy that to yourselves, your country and posterity; and Basil Cunningham sworn. could affect the mind of a man of feeling was "Governor, take your ideas of law from Baromitted: he was put into a place set apart and bary or Turkey, produce your precedent, India designed only for the reception of the worst of or negro law, you are still unable to justify malefactors, secluded from any conversation or your conduct." Gentlemen, these are the communication with his friends or acquaint-circumstances we are to lay before you in eviance, his nearest relations, his wife or his fa- dence. The governor may, if he pleases, enmily, deprived of the comfort of a bed, and deavour to charge this gentleman with mutiny. obliged, for a considerable number of days, to If he does, I presume he will adduce his proof subsist upon bread and water. This is a case of it. But if it was possible to decide that Mr. of the most unparalleled cruelty; the most in- Fabrigas was a mutinous inan, though the regenious circumstances of torture being added verse of that character is but justice to him; to the most unjustifiable and the most lawless nay, if you could decide that he was the worst exertion of authority, that I am persuaded has and most dangerous of offenders, governor ever appeared before any court. If governor Mostyn's conduct is still destitute of any colour Mostyn can support the powers of this claim, of justice or law. His conduct is totally unand vindicate himself, as governor, by the warrantable, and the pretence he has here set plenitude of his powers, and that the sole ju- up, that he is a prince with a power unbounded dicature of the island resides in his person; and unlimited by any rule or law whatsoever, if it was for a moment possible for you to en- that he is authorized to act by his own will and tertain the idea of the legality of such a power pleasure, must represent this case in so alarmbeing placed in any man, in consequence of an ing a light to you, that I am persuaded that authority derived from the crown of England: you, who have taken your ideas of law and I say, if it was possible for you to conceive that justice from conversation with Englishmen, such a power could exist; try him even by that and observation on the English constitution, rule, try him by that rule, and he is without will give all attention to the particular sufferexcuse; for the most despotic, the most arbi-ings of the man, as well as to what you owe trary and uncontroulable power that is ever exercised, professeth at least to act by calling upon the party accused to make his defence, and I believe in no part of the globe is it looked upon as just to condemn a man unheard. Let general Mostyn travel into Asia, or visit his neighbours on the continent of Barbary, he will not find examples there to justify his conduct, in any of the powers assumed, or in the use he has made of them: for if their powers are not circumscribed or restrained by any laws; if they act, as the general professes he has a right to, by their sole will and pleasure; if that is the rule of their government, yet still there is an idea of a principle of natural justice that should govern their proceedings there; at least an appearance of it they are anxious to produce. I never heard in my life that it was the avowed privilege of any country, that a man should be charged with an offence, that he received the punishment for that offence, without the offence being explained and stated to him, and an opportunity given him of hearing the charge and the evidence by which it was produced; but this is the case of a transaction in the dark, a secret indignation conceived, that indignation immediately followed by the most horrid exertions of power upon the person of Mr. Fabrigas-committed to a dungeon, and unapprized of the charge against him till sent out of his native country, and upon the voyage to the destined place of his banishment. The offer made to general Mostyn not to tie him down merely to the justification specified in his plea, but to give bim leave to offer any justification that may be consistent with the idea of civil or military justice, may be called insidious, because I inust disbelieve every thing suggested on any trust, if I think the offer can be of no benefit to him if wanted; but it may be added to it, Mr. Lee. You are in some military capacity?—Cunningham. Yes. Were you in the year 1771 in the island of Minorca !--- Yes. In what character?-Acting serjeant major for the royal artillery. Do you remember Mr. Anthonia Fabrigas being at Minorca ?—Yes. Were you serjeant major at the time he was seized and taken into custody?—I was, when I saw him brought into prison. Do you recollect any orders at that time coming in any body's name touching his confinement? There was a general order given us, that three more men should be added to | the artillery guard. Court. Have you that order?-A. No. Q. Was it not your office as serjeant major to transcribe that order into your book ?—A. I gave that order out in the company's order book. To whom does the custody of that order book belong?-When the books are written out, they give them to the captain to whom they belong. They put three additional men sentry upon that occasion?-Yes. Court. Why?-A. To do duty upon the prisoner Mr. Fabrigas. How long had Mr. Fabrigas been in custody at that time when this order was given out? Was it immediately upon his coming into custody, or after he had been put there? To the best of my recollection, I believe about twenty-four hours after he had been in custody, or the evening of the same day; I cannot be certain as to that. You can tell us what prison it was that Mr. Fabrigas was committed to?—A. He was put into prison No. 1. What is the general use of that prison? to what is it applied?-All the prisoners that are guilty of capital offences, or for desertion, we commonly put in there. Do you recollect any circumstances attending Mr. Fabrigas's imprisonment? mention any that occur to you. Do you recollect the manner in which he was brought or confined? -To the best of my recollection he was brought by a party of soldiers, whether of the 25th regiment or the 6th, I can't say; he was brought in handcuffed, I think, but am not certain. How long was he confined there?-As near as I can recollect, about five or six days. In that prison ?—Yes. Do you know of your own knowledge ?— I did not see him taken away. Do you know of any orders touching his being sent ?-I did not see any orders. You being at St. Phillip's at this time, when he was in prison, you can tell us whether he was tried for any offence previous to his commitment there, or after?-No: he was not tried. Cross-examination by Serj. Davy. How long had you known this Fabrigas be fore the time of his being brought to this prison?-1 had seen him different times, being in the island for between eight and nine years. I wish to know in the first place whether he was a quiet subject, or otherwise?—I never heard any thing to the contrary. What? but that he was a quiet, inoffensive subject ?-I never heard to the contrary. He was looked upon as a very good friend to the garrison, I believe?—I really can't tell what he was; he was an inhabitant of the island. I don't know that ever I spoke to him in my life. What part of the island did he live in ?—At St. Phillip's. During his confinement there, can you tell the court or jury whether he was permitted to be visited by his wife or family ?-No: the sentries had orders that he should have no There it was he was imprisoned, I presume? conversation with any body but the prevost-Yes: he was brought a prisoner to St. Philmarshal. Do you know of any orders that he should not be seen hut by the prevost marshal ?-The sentry informed me that was his orders; besides, it was put into the general orders too. Serj. Davy. If you mean to affect the defendant with that, you should produce the order. Mr. Lee. Well then, we shall produce it. Q. In fact, do you know whether any body was permitted to visit him but this prevost marshal?-A. I don't know of any; if they did, it was contrary to orders. Do you know if any body applied to see bim?-His wife applied to see him, but was refused, as I was informed. What is this prevost marshal?-One that has the charge of all prisoners that are confined for capital crimes; he has the keys of the prison. Is this an executioner too, as well as a gaoler? -No. lip's castle. I think you say you have been in the island five years?-Almost nine years. Then you were there before Mr. Mostyn was appointed governor ?—Yes. You were there in governor Johnston's time? -Yes. Were you there in governor Blakeney's time?—No. James Tweedie sworn. Examined by Mr. Grose. What were you in the year 1771?—A corporal in the royal artillery in the island of Mi norca. Did you see the plaintiff brought to the castle? No: 1 did not see him brought; I was a serjeant of the guards when he was delivered up to me, from the 61st regiment. Court. Can you recollect the time?—A. No ; it was some time about the middle of SeptemCan you tell us the cause for which this gen-ber, to the best of my knowledge, in the year tleman was committed-the occasion of it -I cannot. Do you know what Mr. Fabrigas is ?-He is an inhabitant of the island of Minorca. A native?—Yes: a Minorquin. Do you know whether Mr. Fabrigas is a man of any property, or was a grower of any vines upon that island? Do you know in what manner he lived?—He lived like a gentleman there. Were you acquainted with any disputes touching his liberty to sell his wine?-1 know nothing at all of it, Do you know any thing of what happened to him after his confinement in this prison? what became of him after ?-He was sent out of the island. 1771. In what way was he delivered?-He was delivered to me in the prison N° 1. What were the particulars of that delivery to you? in what way was he delivered?-He was in but a very mean habit; for, by what I could learn, his clothes and every thing that he brought in with him had been taken from him. Counsel for the Defendant. That will not do. What condition was he in ?-A. He was in the prison; he had been in the prison almost twenty-four hours, before he was delivered to the artillery. What orders did you receive concerning him?-That I was to suffer no person to approach the grate. What grate ?-The prison door. From whom did you receive these orders? From the adjutant lieutenant Frost; he was our acting adjutant; be read the orders. Not to let any one come to that grate?-Or converse, or have auy communication with him, upon any account. Whose orders does the adjutant lieutenant give out?-I imagined it was a general order. What do you mean by a general order?Coming from the commander in chief. Do you mean from governor Mostyn?Yes: he was commander in chief then of the island. What order? Serj. Davy. I will give you no trouble about these things. With regard to orders, you have given us notice to produce the orders. The fact is as you contend. We mean to conceal no circumstances. Court. I think the right way will be, as it is now admitted, that this was done by the defendant's order, to proceed with your parole evidence, and read that at the conclusion. Counsel for the Plaintiff. If your lordship pleases, we will read the order of imprisonment, and the sentence of banishment. The Associate. The title is, "Orders given out to the troops in Minorca by lieutenant general Mostyn, governor of the island, who arrived the 21st of January, 1771. September 15: In order to relieve the main guard at St. Phillip's, which now wants a sentry extraordinary upon Antônio Fabrigas, confined in prison N° 1, general Mostyn orders, that three men be added to the artillery guard in the castle square, as they are most contiguous; and that duty taken by them, the sentry must be posted night and day, and is to suffer no person whatever to approach the grate in the door of the said prison, either to look in, or have any communication with the prisoner, the prevost marshal excepted, who is constantly to keep the key in his possession." "To Anthony Fabrigas de Roche. "You Anthony Fabrigas, inhabitant of the arraval of St. Phillip's, are by me, chief governor of Minorca, banished this island for twelve months from the date hereof, not to return hither until that time is expired at your peril, for your seditious, mutinous, and insolent behaviour to me the governor, and for having dared most dangerously and seditiously to raise doubts and suspicions amongst the inhabitants of the arraval of St. Phillip's, and to excite them to dispute my authority, and disobey my orders; and for having further presumed most dangerously to insinuate, that his majesty's troops under my command, without any authority from them for such false and scandalous insinuations, were imposed upon. "J. MOSTYN, Governor." "Mahon, 17th day of September, 1771." Q. You say you received this order to permit no person to approach the grate of the | prison, or have any communication with the plaintiff: did you obey this order?-A. Yes. Did you obey it strictly?-Yes, as strict as it was in my power. Did any person apply to see the plaintiff?— Yes, his wife and two children. Were they permitted to see him?-No. How near were they permitted to come to the prison ?-As nigh as I can guess, about thirty yards. They were not permitted to come nearer ?— They were not permitted to come nearer. Do you know in what way the plaintiff laid ? -He lay upon the boards. Were there no beds ?-No beds.. Was any bedding sent to him ?--I saw his wife with bedding, which was not permitted to be brought to him. In short, tell the jury whether the guard would suffer any thing whatsoever to pass them?-If they did, they were sure to come to trouble, to punishment, by it; and I am certain they never did. Tell us what his subsistence was?-Bread and water. What sort of subsistence has a deserter if he is confined in this place?-It is a general rule in Minorca, that deserters and prisoners, even for capital crimes, should have provisions sent them. What provisions?-Such as the island affords, bread and beef. Court. Do you know whether any provisions were brought him?-A. I never saw any; there was such a strict order, that nobody ever attempted it. I believe there was an air-hole at the top of the prison ?—Yes. Was any body placed over the air-bole?— No; but there was a sentry upon a bastion near to it, who had orders given him, that nobody should approach this air-bole. Upon what account ?-For fear any thing should be dropped down to him. Court. Was that particularly upon this occasion, or generally when deserters were there? -No; kind, but during the time Mr. Fabrigas was in I never heard a circumstance of the prison. Did you know the plaintiff?-Yes, I have island almost nine years. been at his house several times; I was at the was in prison, and five children, to the best of What family had he?-A wife, when he my knowledge. have you never heard him say any thing dis Now, during the time you have known him, respectful of the governor ?-No; he only complained of his hardships, of his own bodily sufferings. William Johns sworn. Q. Was you at Minorca in 1771?-A. Yes. In what situation and capacity?—I was garrison gunner. How long were you in the island?—Almost nine years. Did you know Mr. Fabrigas?—Yes. Did you know Mr. Fabrigas's situation in the island?-He lived very genteel in St. Phillip's. Did he live in the same state as the principal inhabitants of St. Phillip's?-Yes, as much so as any man in St. Phillip's. Do you remember any thing of his being imprisoned?—I saw him brought to the prison. In what manner was he brought?-By a file of men. Were his hands bound?-I cannot say. Serj. Davy. I admit that he was with his hands bound, as the first witness said, and that he was kept in prison by order of the governor. Mr. Peckham. Do you admit that he was hand-cuffed? Serj. Davy. Yes, that he was hand-cuffed, and kept in the way described by the former witness. Q. Was he kept hand-cuffed in prison ?—A. I believe not. What sort of a place is this prison?-It is set apart for capital punishments, for prisoners that are under sentence of death. Is it a prison dug out of a rock ?—It is a subterraneous place in the body of the castle. Is it under ground?—No, under the top of the castle. Is it a ground floor?-A ground floor, I believe. This being the prison, and you standing there to guard him, do you remember any of his children coming to see him?—I saw his son the first day he was confined there, a boy about 15, come to see him. What did be come for?-He had some provisions in a basket. Did he apply to you, that those provisions might be given to his father?-He applied to the regiment then upon duty to give them to his father, but was denied. Serj. Davy. I admit he was sent hand-cuffed to the prison, as described by the former witness: 1 meant to include the matters of belief as well as matters of knowledge. Court. For my part, I like to hear the evidence in any case, to know the truth, and theu we have no squabbles afterwards. John Craig sworn. Examined by Mr. Serjeant Glynn. What are you?—A matross. How many days after his first imprisonment? I am not certain of the days. About what number of days was he in confinement?-Five or six days, to the best of my knowledge. In what manner was he taken out of prison, and put on board a ship?-I happened to be down at the quay, and saw him put on board a boat, to be taken to the vessel. What time was this ?-Early in the morning, I am not sure to the time, but to the best of my knowledge I think between three and four in the morning. Had he any time allowed him on shore?— No, he was burried on board; his wife and family were coming down to speak to him, and the soldiers kept them off, and would not let them. I wanted to speak to him myself, and the soldiers would not let me. You saw his wife and children come to him, do you remember whether they brought any thing for him?-I think they had some bedding, to see if they could get it on board the ship he was going to, and it was turned back again, they would not allow any thing to come to him; he was put on board a boat and taken into a ship which was laying in the harbour there, the ship was under sail. Serj. Davy. I admit he was banished to Carthagena. Coun. for the Plaintiff. You admit he was banished by governor Mostyn for a year? Serj. Davy. Yes, I do. Colonel John Biddulph sworn. Examined by Mr. Lee. Q. You are an officer in the regiment that was at Minorca ?-A. I was not in Minorca at the time this matter passed. But you have been at Minorca ?—Yes. Did you know Mr. Fabrigas ?--Yes; I knew him from the time I arrived in the island until I left it. When did you arrive there?—I think in the year 1763, about May or June, and stayed about Was you in the island of Minorca in 1771 ? eight years. -Yes. Do you know Mr. Fabrigas?—Yes. How long have you been in Minorca ?— Pretty nigh nine years. What condition was Mr. Fabrigas in?-In very good circumstances there; he is reckoned one of the best in circumstances in the island. Do you remember the time when he was in the dungeon there?-Very well. You did not do any duty upon him, I suppose? Yes, I did. VOL. XX. When you knew Mr. Fabrigas, in what condition and circumstances was be ?-He seemed to me to be of the second sort of people in the island; he had some vineyards and some houses, and some property, and was received not as of the first quality, but as a gentleman; he was esteemed a man of property: I should call him a gentleman farmer. While you knew him what character did he bear? or how did he behave himself, as far as you had an opportunity of observing ?-As far Н |