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to yourselves, your country and posterity; and we trust, even in the very best construction that is possible to put on governor Mostyn's conduct, that you will think the damages laid in the declaration are not extravagant.

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Basil Cunningham sworn.
Examined by Mr. Lee.

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 man, 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 yon 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 bimself, 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 alarm. being 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 1 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 Jife 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?-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.

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 commitWhat is the general use of that prison ? toment there, or after ?—No: he was not tried. 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, bat am not certain.

How long was he confined there?—As near as I can recollect, about five or six days. In that prison?—Yes.

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 conversation with any body but the prevost marshal.

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; be. sides, 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 him?-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.

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.

There it was he was imprisoned, I presume? -Yes: he was brought a prisoner to St. Phillip'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: I 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 maoner 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.

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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.

| 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.

fords, bread and beef. What provisions?-Such as the island af

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-hole?No; but there was a sentry upon a bastion body should approach this air-hole. near to it, who had orders given him, that no

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; I never heard a circumstance of the kind, but during the time Mr. Fabrigas was in

Did you know the plaintiff?-Yes, I have been at his house several times; I was at the island almost nine years.

What family had he?-A wife, when he was in prison, and five children, to the best of my knowledge.

"You Anthony Fabrigas, inhabitant of the arraval of St. Phillip's, are by me, chief gover-prison. nor 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

have you never heard him say any thing disNow, during the time you have known him, complained of his hardships, of his own bodily respectful of the governor ?—No; he only

sufferings.

William Johns sworn.
Examined by Mr. Peckham.

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 he 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: I 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.

Was you in the island of Minorca in 1771?

-Yes.

Do you remember whether people were admitted to see him?-I am sure there were none admitted to see him.

Do you know whether any person came to see him that was refused?-I know his wife and children came, and they were refused.

Do you know of his being taken out of the prison?—I saw him put on board a ship in the harbour.

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 hurried 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 eight years.

When you knew Mr. Fabrigas, in what conDo you know Mr. Fabrigas?—Yes. dition and circumstances was he?-He seemed How long have you been in Minorca ? to me to be of the second sort of people in the 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.

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

H

as I could observe, he behaved very well, and had a very good character. I used to employ him in getting wine for me, and other things the island produced, because I had a family; and often he was very useful to me in procuring things at a reasonable price. When I was at Citadella, at the other end of the island, he came there, and was with some of the better kind of people; he was always with a don Vigo, or a don Sanchio, who were reckoned the principal people of the place; they are nobles in that island.

While you knew him, I ask you what was his behaviour? Did he behave like a peaceable subject, or like an unruly and factious one?He always behaved with very great decency and decorum.

Cross-examined by Serj. Burland.

Q. Do you know whether he was a man of property in the island ?-A. As far as I understand he was, but it is impossible for me to say positively; he was reported such.

He had a father living?-I believe he had, an old man.

You do not know whether it was his own property or not?-It seemed to be his.

He conversed with the two noblemen you mentioned ?-Yes; he was at their houses as a gentleman.

Did you use to visit at his house?-I have

been there.

Did you ever dine or sup with him?-I think 1 dined with him once.

cessor was general Blakeney. So far I am able to trace back the governors of this island, whom the questions before you have any sort of relation to; and any further is unnecessary. I don't know whether it may be new to any of you, gentlemen, to inform you, most probably not, the history of your country will tell you, that this island of Minorca, whose situation is in the Mediterranean, and which is of extreme use in the protection of the Mediterranean trade, was taken in queen Anne's wars from the crown of Spain, and was ceded by that crown to Great Britain, by the treaty of Utrecht in 1713: that upon the ceding of that island, the condition annexed was a requisition on the part of Spain, which was acceded to on the part of Great Britain, that the inhabitants of this island of Minorca should continue in the free exercise of the Roman Catholic religion, which could be no farther than was consonant to the laws of Great Britain. For whereas the laws of Great Britain will not allow the pope's bulls, excommunication from the court of Rome, the inquisition, and some other matters of that sort; therefore a free exercise of the Roman Catholic religion was not with the exercise of any powers in the bishop of Rome, but what were acknowledged by the laws of Great Britain. They had only the free exercise of their religion, as Roman Catholics. All other rights which they had, and all laws by which they were to be governed, were to be given to them by the king of England. He was to establish what code of laws he thought proper in that country. They were to be subject either to civil jurisdiction of particular sorts, or military, or whatever sort the king of England pleased. They were a conquered people, a conquered island, and no terms were annexed to that treaty of Utrecht, but only the exercise of the Roman Roman Catholic religion. The king was to appoint his governor of the island, to govern them by such laws as he thought proper to direct; an arbitrary despotic government, or a qualified government, or whatever government, under whatever sort of magistrates, or whatever order the crown of England should think proper. There is a manifest and very wide distinction, to be sure, between a Minorquin by birth (I don't speak of an Englishman that goes over there), and the case of an EnglishSerj. Davy for the defendant. May it please man: I just mention these things, which will your lordship, and you, gentlemen of the jury, be very proper for your consideration throughI am of counsel in this cause for the defendant, out the progress of the several facts I sball general Mostyn, who is charged with a misbe- mention in this cause. They are, in my humhaviour towards the plaintiff, in the defendant's ble apprehension, essentially necessary to your capacity, as governor of this island; the consideration. Some time after these people plaintiff, Fabrigas, being a subject of the crown (I don't know exactly the date of it) had be of England, a native of that island, a Minor- come subject to the crown of England; after quin by birth, and living in the town of St. 1713 they petitioned for a confirmation of the Phillip's, (there is a reason why his residence usages and customs of Spain, and to be goin the town of St. Phillip's is, in my apprehen- verned by the laws of Spain, as they had been sion, material, for some matters which I shall used to be before: and that was granted, so far trouble you with before I sit down.) The de- as the wisdom of the crown thought proper to fendant was appointed governor of the island of grant; and there were certain regulations, Minorca on the 2nd of March, 1768. His pre- which I will take notice of by-and-by. Many decessor was governor Johnston, whose prede-regulations were made from time to time occa

Court. The gentlemen suggest, but you don't mean to make a distinction between the classes there?-A. I do make a great distinction. Q. What promotion has general Mostyn in the army at this time?-A. He is a lieutenant general, and commander in chief of the island of Minorca.

Has he any military promotion at home? has he any regiment?—Yes.

What regiment is it ?—I don't recollect the number; it is a regiment of dragoons.

Do you know of any office that the general has about his majesty's person, any place at court?-I don't recollect it; I believe he has. Serj. Glynn. My lord, we have done for the plaintiff.

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