I am in this case Counsel for Mr. John Magee, the alledged Proprietor of a News Paper, called, The Dublin Evening Post; and I could wish that the notice on his behalf, and on which I move, had not a double aspect; I could wish that it had been confined to his claim of right, and not ex­tended to an application for favor.

When we move, that a common appearance may be taken, without holding him to Special Bail, a great question of constitutional and public im­portance is involved in the subject; but when we apply to reduce the sum, the application appears like an appeal to the discretion of the Court. My duty to my client, obliges me to submit my ob­servations in each point of view, though I should rather argue it in the abstract, for another reason, I might thereby avoid the strange stuff and mate­rial which the Plaintiff has introduced as merits into his affidavit, and I might thereby avoid (to use a dramatic quotation in a case partly theatri­cal) [Page 10] that stile of speech ‘"which though it may make the unskilful laugh, cannot but make the judicious grieve; the censure of one of whom, out-weighs, in my mind, a whole theatre of others."’

My Lords, I am in this case, with due defer­ence, to contend, that the learned Judge was not warranted by law in issuing his Fiat for any sum; for that in this case common bail, which is no more than an appearance for the party, and properly speaking no bail at all, is all that the law re­quires; but if your Lordships shall be of opini­on that the learned Judge was authorised by law in issuing such Fiat, holding the Defendant to 4000 l. bail, then I am to submit to your Lord­ships, that you are bound in conscience to reduce the sum, because you are bound, and it is the true spirit of the law, to hold him to no greater bail, than in your conscience you shall think the Plaintiff can recover: and here my Lords it is ne­cessary to call your attention to the affidavit of the Plaintiff; it is his case, and therefore I presume, put in the strongest and best manner that the na­ture of that case would allow; it is the ground upon which a Judge's Fiat for 4000 l. issued; and there never was an affidavit containing the griev­ance of the party complaining, more weak, and more defective: THERE IS NOT THROUGHOUT [Page 11] THIS AFFIDAVIT A SINGLE PER QUOD. The al­legded Libel is libellous only by forced construc­tion, by violent interpretation of an apparently unmeaning poem: the damages in amount are so far from approaching to any degree of certainty, that it is rather obvious, that none were actually sustained: it hints at damages which may be, not which are suffered; and such damages are ima­ginary: they are poetic; they are in the fancy; the conception of the party interested; of him who seeks redress in damages.

Mr. Richard Daly stiles himself, in this, his affidavit, Manager of the Theatre Royal in the City of Dublin. He states that the Defendant, Mr. John Magee, is (as he believes) Printer and Publisher of a certain News Paper, called The Dublin Evening Post, in which Paper he, John Magee, caused to be published a defamatory Poem of the tenor in the Affidavit.

I should be sorry to feel myself under any ne­cessity to recite this Poem to the Court; it is in truth a very strange composition, but may have its merit with those who understand it; but as it is the cause of a Fiat, for 4000 l. and as it con­tains, or rather is itself, the offence for which my client is in duress, until he shall procure bail to that amount; I have selected and shall faithfully [Page 12] state such passages or parts of this poem, as by possibility may be deemed libellous.

I am free to admit that Mr. Daly, being Manager of the Theatre, may be the Roscius intended by the Poet, but this concession is somewhat unne­cessary, as Mr. Daly in his Affidavit, swears that he is the person so described, or in other words that he is ROSCIUS.—How far this may be a Libel on Roscius deceased, on Roscius the companion of Cicero, the name at least will scarcely be deemed a Libel on Roscius the companion of Higgins.

Roscius laments:

That,

He then proceeds to kill himself,

Then Cupid arrives, to whom Roscius says,

[Page 13] Cupid replies,

Here a Judge is to conceive, and a jury here­after are to conceive, that the Lottery-Office Keepers are understood, who sometime ago were so successfully, and so surprisingly hit. I am en­deavouring to give to this silly poem all the wick­ed effect that conjecture can admit:

These are the criminal extracts from the alledg­ed Libel, a poem full of nonsense, ribaldry, and bombast, not to be matched in a Mock Tragedy, truly farcical, were it not that the sum of 4000 l. has changed the performance to a Tragi-Comedy.

[Page 14] For the publication of this poem the defendant has been arrested under a writ issued by authority of a Fiat, and marked for 4000 l.

My Lords, there have been of late, and I la­ment it, many bold, impudent, plain, and inde­fensible Libels; why are the weakest selected to disgrace the records of the Court, and to bring contempt upon the Justice of the country.—And now, my Lords, let me call your attention to what ought to be the material part of an affidavit, to warrant a Fiat in any case; to that part which relates to the damage sustained. In this case the single instance in which the Plaintiff endeavours to shew any special damage, HE FAILS IN THE AT­TEMPT, and the fair inference, from his own words, is, that he has suffered little, if any.

After swearing that he had expended consider­able sums, in the embellishment of the Theatre Royal, and that he has hitherto supported a good repute and credit; he proceeds, and states in his affidavit ‘"that by the false and scandalous publications concerning him, he has already experienced their injurious tenden­cy, as a very eminent performer, whom he had retained in Great Britain to act at his Theatre in this City, did, from the false and scandalous publications against him, express a doubt of [Page 15] his credit and punctuality, and that therefore a large and considerable sum must be paid in ad­vance; and if it had not been for the interfer­ence of some friends, he would have been de­prived of the advantage of such performer."’

Now, what is the inference here?—he ad­vanced nothing, and the actress came and ful­filled her engagement:—take it, that he did ad­vance— how much—and where is the magnitude of the injury, in advancing to a performer a sum, on account, if the manager ever intended to pay? and this is the only statement of an injury actually sustained.

The use of indefinite words in an affidavit, may be sometimes very convenient, but when injury is to be redressed in damages, and the party held to bail, the security should be proportioned to the probable redress; and the law requires some measure, whereby such security may be limited and not extended.

The Plaintiff in this case feeling, perhaps, that a Fiat for 4000 l. on the ground he has stated, and which I have followed, would be as ridicu­lous as it is outrageous, adds, that he has chil­dren, among whom are sour growing-up daugh­ters, [Page 16] who, in their future prospects in life, may receive considerable injury; and he then swears, that he has good reason to be convinced he has suf­fered damages to the amount of FOUR THOU­SAND POUNDS and upwards—how?—by an advance to a performer, and the injuries his family or himself may hereafter suffer. See, my Lords, the danger that might arise from any man carving the measure of his own redress, in estimating the value of the injury he has sustained; that which is but ideal will become real, and he will tell you he has good reason to be convinced: and I beseech your Lordships attention to this, because it illustrates the doctrine of the law (which I shall submit to you) with respect to bail in actions of defamation.

The Plaintiff concludes his affidavit in stating, that John Magee (the Defendant) gives out that he is a man of very considerable property, as well in money as in several News Papers. Why this is introduced I cannot discover, it is introduced as true, and if true, it is a reason for a common appearance, because the Plaintiff himself alledges a sufficient responsibility in the Defendant whom he sues.

The Defendant, John Magee, has made an affidavit in aid of the present application, in which [Page 17] he swears, that a writ issued in or as of last Trinity Term, to the Sheriffs of the City of Dublin, marked for the sum of 4000 l. under authority of a Fiat granted by the Lord Chief Justice, and founded on an affidavit of Richard Daly the Plaintiff; that upon such writ he was arrested in June last; that in consequence of a number of vexatious suits and prosecutions against him, and in conse­quence of the proceedings in this cause, and from the reiterated abuse he has received in the Free­man's Journal, he is extremely injured in his credit, insomuch, that though he has used every effort in his power, he cannot now procure bail in this cause for the amount of the sum marked at the foot of said writ, or to any larger amount than 500 l. and saith, he verily believes, that the Plaintiff hath not suffered damage in this cause to any amount whatsoever.

Your Lordships have now before you the facts or merits of the case, but I trust your Lordships will decide on a great question of public and of con­stitutional importance, without any reference to the particular circumstances of the present case; I reject them as unnecessary, save only to the se­cond part of the application, the reducement of the bail, which will also become unnecessary, if your Lordships shall be of opinion, that the De­fendant [Page 18] is not bound by law to give any security whatever.

Then, my Lords, I with confidence assert, that a common appearance is all the law requires in actions of defamation, and to compel any secu­rity to any amount is an extortion on the subject, and illegal.

It is pleasing to observe in what great esteem the law holds personal freedom, justly considering the general liberty of the subject, as dependant on that of the individual; and so tender has the law been of this liberty, that no man could be deprived of his personal freedom, unless for some criminal, fla­grant offence, injurious to the government under which he lived, or for some tortius act, commit­ted with force, and consequently in breach of the peace, which his allegiance and duty required him to keep and preserve. It is thus well ex­pressed in Crompton's admirable introduction to a late very excellent compilation.

I grant that the legal requisition of bail, pro­perly called Special Bail, is, and has been, for many years less confined; but then, it has been extended from necessity, and upon principle; as in DEBT,—what is the rule of law—if the debt abso­lutely [Page 19] amounts to a sum certain, then the debtor may be held to special bail; but where the de­mand is not absolute but uncertain, and sounds in damages—NOT SO:—And the principle, is;—the Plaintiff shall not be the judge of the injury he cannot ascertain, because it would make the Defendant the victim of the Plaintiff's conception.

A Judge indeed may in several cases grant a Fiat, to hold a party to special bail, but in every case, it can only be where the demand is certain as IN DEBT, or where the injury is so outrageous, that damages must necessarily have been suffered; there the Judge has some measure, some guide; but even there he is bound to be moderate; for in the language of the Bill of Rights ‘"excessive bail ought not to be required."’

And here, my Lords, I think I take the doc­trine in its utmost latitude: In cases of DEFAMA­TION or SLANDER (save only two exceptions which I shall mention,) a Judge is not warranted to grant a Fiat, for the Defendant shall be held only to common bail. As to SPECIAL BAIL, cases of defamation are excepted in every authority, from the oldest down to Crompton's late Digest on the subject.

[Page 20] The first mention of Special Bail in slander was in the reign of Charles II. and that only in the case of slandering the title of lands; previous to that time, special bail was required in no case of personal slander: Afterwards special bail was ex­tended to Scandalum Magnatum, and no further; so that the two exceptions evidently support the doctrine.

In Crompton 29, title BAIL, "in trespass, as­sault, battery, conspiracy, false imprisonment, there shall be common bail only, unless on a motion or order made by the Court or a Judge: your Lord­ships will observe, that this saving of motion, or order, applies only to such actions, in which, in the first instance, common bail is all the law re­quires; and you will observe what follows: ‘"IN SLANDER common bail only, unless in slander of title, and then common or special in the dis­cretion of the Court."’ This is laid down as the law in Michaelmas 1654: and the authority adds, as the practice after that period, ‘" or unless spoken of a person of quality."’

This complimentary concession was introduced, perhaps, considering peers as the hereditary legisla­tors of the realm, the king's hereditary counsellors, and forming the Court of ultimate appeal and final jurisdiction; the welfare of the empire depend­ing, [Page 21] in a degree, on their good name and repu­tation. So in Ray. 74—Earl of Stampford against Goodall, ‘"in scandalum magnatum, the Plaintiff may have special bail on motion and order."’

Lord Chief Baron Comyn in his Digest Vol. I. Fol. 507, enumerates the cases where special bail, may be required; where the debt or damage in an action of debt, detinue, trespass, action upon the case ( except in slander) amounts to 20 l. SPECI­AL BAIL, so where the damages are uncertain, the Judges in their discretion may grant special bail, as in battery, if it appears to be outrageous, in conspiracy, false imprisonment— in slander of title, or, scandalum magnatum. There in slander special bail is confined to the two instances; in the cases where special bail is allowed of right, it is founded on the certainty of the injury, where it arises from discretion, it is measured by the enor­mity of the offence.

In 1 Blackstone 192, Smith against Frazer.—In trespass and assault, the Plaintiff made affidavit before Forster Justice, to hold the Defendant to bail; on the flagrant circumstances of which he di­rected 200 l. bail to be given.

My Lords, there is not any distinction taken with respect to bail, between slander written and [Page 22] uttered; between defamation by libel or parole.—there is no variance, as to the doctrine to be found in the books, and the principle cannot be affected by the nature or class of the DEFAMATION.

1 Siderfin, 183, Chetwin against Skinner: it is there laid down, ‘"in action sur le case pur parole ou outrement, NUL SPE BAIL."’

I call upon gentlemen to shew any distinction taken in any authority, between slander written and SLANDER spoken, with respect to the doctrine of bail, I know there are distinctions between libel and slander spoken; I know one has justly a greater degree of criminality annexed to it, than the other: but with regard to bail, I say, DEFA­MATION is the general head, including every species of slander, written, painted, engraved, spoken, ou outrement, or otherwise.

My Lords, so tenacious is the law of personal liberty, and so tender have Judges been with re­gard to it, that even in cases where the law re­cognised, and allowed special bail, where even the ground of the application seemed fair and reasonable, Courts have refused to hold the sub­ject to special bail, because the case might not ulti­mately warrant it.

[Page 23] In 2 Strange, 1157, Heathcot against Goslin.—The affidavit to hold to bail was, that the Defen­dant borrowed 2000 l. of the Plaintiff on bottom­ree, which money is now due and owing to this De­ponent, by virtue of the said bond, as thereby may appear—Objected, that this was no oath of the debt; for suppose every penny is paid, and a separate receipt taken, yet upon the face of the bond the whole will appear due, et per curiam; it is not sufficient; the Plaintiff would have made a supplemental affidavit, but the court refused to receive it; for the act of parliament requires a full oath, previous to the issuing the process, that Defendants may not be harased; and therefore in this case the Defendant was discharged upon com­mon bail.

In the present case, Mr. Daly has made a subse­quent affidavit; but such affidavit could be no ground for the arrest, for it was not in esse, when the Fiat was granted.

2 Strange, 975, Gammage against Watkin—The original debt was under the sum entitled to speci­al bail; but the costs swelled it over; and the Plaintiff had judgment, on which he brought debt, and held the Defendant to bail; and now upon motion the court ordered common bail to be accepted; for as the original demand did not re­quire [Page 24] bail, the addition of costs will not alter the case.

And yet, my Lords, here, the costs and the original demand were liquidated, and in law became one debt; but the Court in its decision, guided by attention and attachment to personal li­berty, made the distinction in its favour; and the like attention and attachment appear to govern in every case.

4 Burrow, 655, Pomp. vers. Ludrigson.—A rule for discharging the Defendant upon common bail was made absolute; the affidavit to hold him to special bail, not being possitive; which, it is the established rule of the court, ‘"that it must be."’ This was the case of a merchant in London, whose correspondent in Sweden had sent him over the accounts from Sweden, where the debt arose: and consequently the Plaintiff, the merchant in London, could only swear to his belief, with a re­ference to the accounts sent to him from Sweden; the fact itself not being within his own personal knowledge: so that the affidavit could not have been more positive than it was, unless the corres­pondent in Sweden could have come over to Lon­don to swear it.

[Page 25] 2 Strange, 1209, Rios vers. Relifante.—The affi­davit to hold to special bail was made by a mer­chant in London, swearing that the Defendant owed the Plaintiff 270 l. as appears by an affidavit made by the Plaintiff in Amsterdam, which he, the Deponent, believes to be true, et per curi­am; there can only be common bail; the oath abroad is no ground, and there is nothing but belief, which is not sufficient.

Your Lordships will observe, that these are commercial cases, and from the nature of com­merce, and the situation of parties connected with it, similar cases may every day occur; yet we find no attempt at an argument founded on ne­cessity or public benefit to extend the power of the Court.

2 Strange, 1226, Claphamson vers. Bowman. The Plaintiff's BOOK-KEEPER, swore, that the De­fendant was indebted to the Plaintiff in 3400 l. for money had and received by the Defendant, to the use of the Plaintiff, as this Deponent verily believes; and the Court held it not sufficient to hold the Defendant to special bail.

This was the case of a book-keeper, swearing as fully as he conscientiously could; no merchant keeps his own books, because he cannot be a wit­ness [Page 26] to prove any debt due to himself; his clerk who must be his witness, who should be privy to the dealing, and who keeps the account, can scarcely extend his oath, were he ever so correct beyond the best of his belief; yet, in such case, if the charge be not POSITIVE common bail only is allowed.

2 Strange, 1219, Walrond vers. Fransham, an executrix in order to hold the Defendant to bail, made an affidavit, that he was indebted to her testator (so much) as appears by the books of the testator; and it was held insufficient and common bail ordered.

Here could have been no positive affidavit; the creditor was dead; the Plaintiff was an exe­cutrix, and sued in such right; the office is highly favoured in law; the assets (of which credits may make a principal part) are com­mitted for the best purposes; and among the first, the payment of the testator's debts: yet in this case, the case, I say, of an executrix, suing in the right of another, in whom no private or personal interest could be presumed, and laying before the Court the best foun­dation in her power— common bail only.

[Page 27] Compare, my Lords, such cases with the present, and can you doubt; compare such af­fidavits with that of Mr. Daly, whose present losses are the conjecture, surmise, apprehension and belief of future injuries.

The cases I have quoted are cases within the description, and reach of special bail; the case of Daly is that of defamation, entitled only, as I apprehend, to common bail; certain­ly to no more, where no actual damage is sworn to have been suffered, certainly, not to the extent, which confines him before trial to an amount, which might be considered as exces­sive in damages after verdict.

But, my Lords, laying aside the parties, and the particular circumstances of the case, what is the great and important question?—if the exten­sive and extending conscience of a suitor, par­tial to himself, in fancied injuries and imagi­nary ills, can impose on the credulity of a Judge; if the Judge may, at his discretion, hold a sub­ject in prison previous to trial, on terms with which he cannot comply; the discretion of the Judge may become the pleasure of the Man; where then will be the difference between FIAT and LETTER DE CACHET: if such be the practice, we are not safe; we have obtained [Page 28] nothing by the glorious Revolution; we have no security in the great Charter, in the Bill of Rights, in the Habeas Corpus: the atchieve­ments of liberty may decorate the monument of a former constitution, or be like standards taken from an enemy, hung up, old, torn and useless, save only to shew a degraded posterity, the virtue and valour of their ancestors.—No, my Lords, I trust, that a great and able Judge, will this day add a brighter glory to his name, his rank, and office, than any in the power of Majesty to confer, by nobly saying, what the best have said, and what none but the best will say, I have been wrong:—a generous and a grateful people will applaud, bless, record the expression, and honour even the error that caused it.