Mr. Sheridan's argument in the case of Daly against Magee, on a motion to discharge the defendant on common bail
A JUDGE's FIAT is a Warrant or Authority to the Officer of the Court, to iſſue a Writ marked in ſuch Sum as the Fiat directs, on which Writ the Defendant is arreſted, and muſt either find Bail to the Amount of ſuch Sum or remain in Priſon.
MR. JOHN MAGEE being in confinement under a Writ, marked for the ſum of 4000l. at the ſuit of the Plaintiff for defamation, by Authority of A FIAT for that purpoſe, granted by the Lord Chief Juſtice, cauſed a notice of the following purport to be ſerved on the Plaintiff's Attorney.
COUNSEL on behalf of the Defendant will move the Court the firſt opportunity, to ſet aſide the [Page 8] order made in this cauſe, on the 27th day of June laſt, whereby it was ordered, that the Defendant ſhould give SPECIAL BAIL in this cauſe, to the amount of the ſum marked at the foot of the Writ of Capias ad reſpondendum, which iſſued in this cauſe; and that the Defendant's COMMON APPEARANCE may be taken, and ſtand without holding him to SPECIAL BAIL. But if the Court ſhould not be pleaſed to grant ſuch motion, Counſel will then move the Court to vary the ſaid order, and that the ſum for which the ſaid writ was marked, and the Defendant thereby required to find Bail to ſuch amount, may be REDUCED from 4000l. to 500l. and the notice concludes in ſuch caſe with a tender of Bail to the amount of the laſt mentioned ſum.
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 4000l. 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 4000l. 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 4000l. 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."The Gamblers retired and Roſcius alone."—
"That humble Actreſſes will no longer obedient bend:"
"Franciſco now delights the admiring throng."
"The tragic tin bent harmleſs on his breaſt."
"Does ſome lady court me to her arms,"And buy with brilliant gold my manly charms."
"There live, he ſaid, ſome men of fame well known,"For punctual dealing, and to candour prone:"—the Wights have money;"Honeſty againſt cunning has no force,"—we'll fleece the villains.
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:
"I know the wily plot RICARDO cry'd,"The DOCTOR in thoſe ſchemes is fully try'd:"The DOCTOR ſails to the Cambrian ſhore,"Then ſtraight to the enchanted fane,—"—the prieſts the cabaliſtic numbers cry,"The Doctor ties them round a pigeon's neck,"—who flies,"And on Franciſco's portal plumes his wings."
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 4000l. has changed the performance to a Tragi-Comedy.
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 4000l. 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 4000l. 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 500l. 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 20l. 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 200l. 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.
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 2000l. 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.
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 270l. 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 3400l. 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.