this present purpose, to say that Mr. Fabrigas is a descendant of the antient inhabitants of Minorca that he lived there under the capitulated rights: that, as such, the national faith was pledged for his enjoyment of those rights that his ancestors capitulated for; but what is of more consideration, being born in Minorca since its subjection to the crown of England, he was a free-born subject of England, and claimed, as his birth-right, the privileges due to that character, and the protection of the English laws. There was a particular stipulation upon the surrender of the island, that every occupier or possessor of land should be intitled, under certain regulations and restrictions, to the produce of his lands, and to such profit as by his industry he could make of them. Upon that ground a dispute arose, to which alone can be imputed the displeasure of Mr. Mostyn towards the plaintiff, and the treatment he received from him, in the progress of it. Mr. Mostyn, as governor, was appealed to, and his good-nature appeared to be so serviceable to the adversary of Mr. Fabrigas, that early in the morning Mr. Fabrigas was suddenly taken from his house by a file of soldiers, and by them conducted to a dungeon, unaccused, untried, unconvicted. Thus, without any form of judicial proceedings, this gentleman, who then lived in esteem in the island, finds him self all of a sudden committed to a dungeon, dungeon that was made use of only for the most dangerous malefactors, and that only when they were ready to receive the last of punishments. In this gloomy, damp, dismal, and horrid dungeon, was this man detained without any previous accusation, without any call upon him to make his defence, or being informed there was any crime or offence that was alledged against him, and without any notice either to him or his family. When he found himself in prison, there was humanity enough in the breast of the keeper of that prison to accommodate him with a bed; but it seems that accommodation was by the power of that island thought too much for him, and the bed was taken from him; a check was given to the lenity of the keeper. No notice having been given to his family that they might visit or administer comfort to him; he did, by humble request, desire that his wife might be permitted to visit him: that consolation too was denied him. In this manner was Mr. Fabrigas deprived of his liberty for a considerable time. It is unnecessary for me to state particularly the precise time that this imprisonment continued; that you will hear from the witnesses. Nor does a case like this depend upon minutes, hours, or days, but this is the nature and kind of imprisonment that Mr. Fabrigas endured: so closely watched that no man could have access to him, deprived of the consolation of his family, severed from all communication with his friends, relations, or acquaintance, that could administer the least confort to him. For several days did this man Continue under this imprisonment, nor did his sufferings determine with it; his removal from the dungeon was only a substitute of one species of cruelty in the place of another: for the instant he was taken from prison, he was carried by the same arbitrary and despotic power on board a ship, without any previous notice, without any time allowed him to prepare for his departure, without the ordinary visit or comfort of friends and acquaintance, from whom he was probably to be separated for ever. Thus was this man taken from his native country, and the insupportable hardships of a dungeon were followed by an entire expulsion from his country, and every thing that was dear to him: he was sent instantly on board a ship by force, and carried to Carthagena, a foreign country, under the dominion of the crown of Spain. This is the nature of Mr. Fabrigas's case. Now, gentlemen, for a moment, let me remind you of the pretence under which this imprisonment is inflicted. It is said Mr. Fabrigas excited sedition, or attempted to excite sedition; that he acted or spoke in a turbulent and mutinous manner; and therefore that the governor, as his plea states he was well authorized to do, committed him to prison, and banished him out of the island; or rather committed him to prison for the purpose of banishing him out of the island, for I believe that is the true state of his plea. Gentlemen, you a would justly accuse me of a great and wanton waste of your time, if I should say a great deal for the purpose of exculpating Mr. Fabrigas from the charge and imputation that is thrown upon him in this place, because I am persuaded that you, an English jury, if you were sitting in judicature upon the case of confessedly the vilest of offenders, you would not suffer the atrocity of the offence to mitigate that censure and animadversion which is due to a behaviour like this of the governor's. In private justice to the character of Mr. Fabrigas, and not as the least relating to any question here to be tried, gentlemen, I will state to you upon what grounds and pretence this mutiny is alleged against Mr. Fabrigas. Mr. Fabrigas, as I have told you, claimed, among all the other inhabitants and possessors of lands in the island, a right of selling the produce of his lands, under certain restrictions. The produce of the lands is chiefly wine: Mr. Fabrigas had a considerable quantity. His majesty, by his proclamation, had given free liberty to the inhabitants of that part of the island where Mr. Fabrigas lived, to sell their wines, the price being first settled by the authority of the governor :-that price is called the afforation price. Notwithstanding his majesty's proclamation, by an act and order, not of governor Mostyn, but of his lieutenant-governor, there was a prohibition that no wine should be sold without the imme diate authority of the mustastaph. An application therefore, by Mr. Fabrigas, was made to this officer, either to permit him to sell his wines under the afforation price, which would be for the general relief and benefit of the islanders, and of the garrison, or that he him self would buy it at a fixed price. This officer refused to comply with either: Mr. Fabrigas therefore was reduced to the necessity of making an humble application to governor Mostyn, to permit him this alternative, either to sell his wine under a certain afforation and regulated price, or that the government would buy his wise of him for their use, or the use of the garrison. This petition was thought reasonable at first, and had 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 he 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 he 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, impute 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 of fence, 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. my of the governor. Then, gentlemen, the Emprisonment, 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 opportuway of paying the least aftention to the conseras of his estate and family, into exile; these, gentlemen, we now presume to treat as the acts of governor Mostyn; and the governor says, he is justified in so doing, as governor of Minorca. I should be glad to know upon what idea of justice the governor grounds that pretence. I conceive, that in this case, there cannot be the least colour or pretence of any judicial examination, or the least form of judicial 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 governor 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 of ignominy that "Governor, take your ideas of law from Barbary or Turkey, produce your precedent, India or negro law, you are still unable to justify your conduct." Gentlemen, these are the circumstances we are to lay before you in evidence. The governor may, if he pleases, endeavour to charge this gentleman with mutiny. If he does, I presume he will adduce his proof of it. But if it was possible to decide that Mr. Fabrigas was a mutinous man, though the reverse of that character is but justice to him; nay, if yon could decide that he was the worst and most dangerous of offenders, governor Mostyn's conduct is still destitute of any colour of justice or law. His conduct is totally unwarrantable, and the pretence he has here set up, that he is a prince with a power unbounded and unlimited by any rule or law whatsoever, that he is authorized to act by his own will and pleasure, must represent this case in so alarming a light to you, that I am persuaded that you, who have taken your ideas of law and justice from conversation with Englishmen, and observation on the English constitution, will give all attention to the particular suffer Basil Cunningham sworn. could affect the mind of a man of feeling was omitted: he was put into a place set apart and designed only for the reception of the worst of malefactors, secluded from any conversation or communication with his friends or acquaintance, his nearest relations, his wife or his family, deprived of the comfort of a bed, and obliged, for a considerable number of days, to subsist upon bread and water. This is a case of the most unparalleled cruelty; the most ingenious circumstances of torture being added to the most unjustifiable and the most lawless exertion of authority, that I am persuaded has ever appeared before any court. If governor Mostyn can support the powers of this claim, and vindicate himself, as governor, by the plenitude of his powers, and that the sole ju dicature of the island resides in his person; if it was for a moment possible for you to entertain the idea of the legality of such a power being placed in any man, in consequence of an authority derived from the crown of England: 1 say, if it was possible for you to conceive that such a power could exist; try him even by that rule, try him by that rule, and he is without excuse; 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 ex- to yourselves, your country and posterity; and ercised, professeth at least to act by calling we trust, even in the very best construction upon the party accused to make his defence, that is possible to put on governor Mostyn's and I believe in no part of the globe is it conduct, that you will think the damages laid looked upon as just to condemn a man un-in the declaration are not extravagant. heard. 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 be 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 Do you recollect any orders at that time an offence, that he received the punishment coming in any body's name touching his confor that offence, without the offence being ex-finement?-There was a general order given plained and stated to him, and an opportunity us, that three more men should be added to given him of hearing the charge and the evi- the artillery guard. dence 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 him leave to offer any justification that may be consistent with the idea of civil or military justice, may be called insidious, because I must 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. Court. Have you that order?-4. 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 wist is it applied?-All the prisoners that are guity of capital offences, or for desertion, we commonly put in there. Do you recollect any circumstances attending Mr. Fabrigas's imprisonment? mention aay 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 before the time of his being brought to this prison?-I 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. Philmarsbal. Do you know of any orders that he should not be seen but by the prevost marshal ?-The sentry informed me that was his orders; bedes, 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 la fact, do you know whether any body was permitted to visit him but this prevost marshal?-4. I don't know of any; if they did, it was contrary to orders. lip's castle. Do you know if any body applied to see What were you in the year 1771?—-A_corbu-His wife applied to see him, but waspora! in the royal artillery in the island of Mirefused, as I was informed. What is this prevost marshal?-One that bas the charge of all prisoners that are confioed for capital crimes; he has the keys of the prison. Is this an executioner too, as well as a gaoler? -No. 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 deman was committed-the occasion of it -I cannot. Do you know what Mr. Fabrigas is ?-He 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 Des upon that island? Do you know in what manner he lived?-fle lived like a gentleman there. Were you acquainted with any disputes tebing his liberty to sell his wine?-1 know Dothing at all of it. Do you know any thing of what happened 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; he 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 Antonio 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 bither 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 plaintiff: did you obey this order?-4. Yes. Did any person apply to see the plaintiff?Yes, his wife and two children. Were they permitted to see him?—No. They were not permitted to come nearer. Do you know in what way the plaintiff laid ? Were there no beds?-No beds. wife with bedding, which was not permitted to Was any bedding sent to him ?--I saw his be brought to him. In short, tell the jury whether the guard them ?-If they did, they were sure to come would suffer any thing whatsoever to pass 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. fords, bread and beef. Court. Do you know whether any provisions was such a strict order, that nobody ever atwere brought him?-A. I never saw any; there tempted it. the prison?—Yes. No; but there was a sentry upon a bastion should be dropped down to him. Court. Was that particularly upon this occasion, or generally when deserters were there? kind, but during the time Mr. Fabrigas was in -No; 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 What family had he?-A wife, when he was in prison, and five children, to the best of my knowledge. Now, during the time you have known him, respectful of the governor ?-No; he only have you never heard him say any thing discomplained 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. |