Star.
London, England, 1806-12-10 00:00:00

LAW INTELLIGENCE►.

touitx OP CHANCERV, DEC. 9.
LIBERTY OP THE PRESS.
1, ftriCILL V. MAC AAAAAA .
This day the So&Acme G enewed his
application to the Court in this cafe, for the commit.
tal of the feveral proprietors, printers, and editors of the
Morning Herald and Morning Poll; newfpaper.,men
tinned upon a former occafion. The Learned Connfel
Hated, that it was then/ea necelrary to include thefe
Gentlemen in.the notice, fo as to bring them before
the Court I but as they bad *fled with the greater'
propriety, in doing every thing necelary towards an
Intrefliptlos if this matter, it vas not the with of the
. pany complaining, to prefs any thing againft them.
The lenient -application. therefore, was chiefly and
wholly irgainfl Mr. George Farquharfon, and John
. ildacsamerm Efq. the Defendant, for a molt grofs
. Mit feandalous mifreprefentation of the proceedings
ta_this mule, in the newfpapers before alluded to.—
Upon the former occallpn, his Lardfhip dirated that
affidavits floold he made, to thew that the publics
''tins complained of were not what they were Rated
to reprefcnt. Thefe affidavits, in conformity with
• that erder, were now ready ; and the quelion would
come before the Court in the regular way.
LORD CHaNCILLoI—" Yon could not raife the
'incline without them, Mr. Solicitor r
The SoLlciroa CAMERAL continued, that thefe
affidavits referred to certain palTages in the publiea
• tion in quellion, but he did not mean to confine him.
(elf to any particular pafage, for his complaint was
againfl the whole publication, which was moll ma-
. wifettly made with a particular view. There never
was a esti came before the Court, in which it made

more animadverfions upon the party ; but this ac-
count was alto meant to mifreprefent the conduit of
thole who were engaged in the invefligation of that
cattle. It was neceffary to obferve, that this publi•
cation let out with giving, as it formally implied, a
Ilatement of the fags, and it was impoaible to read
it without feeing the manufaaure in every line. His
Lordship would recollea, that in the coorfe of the
• caufe it appeared a deed was executed by the Mils
Purcells, at Calais, in 1786 ; the two fillers met
there for that purpofe ; and all that remained of their
• property was then conveyed to the Defendant ; Mr.
1..Mc,•1A had Rated in what manner the Pureelh were
compelled to fign that decd. The account alto given
by the Defendant himfelf, admitted, that harlh words
were made ufe of, and he declared they should not
receive one tingle (billing from him, unlefs the deed
was perfected. The account given by this reporter
was (after (peaking of other matters) " It alto ap-
peared in evidence, that at the time AA the Plaiatiff,
executed the deed, the expelled the utnsna grati—
tude to the Defendant, who had freed her horn the

surgeries of a gaol in a foreign land." Mr. Fon-
blanque Mr. Thompfon, and Mr. Agar, who were
the Defendant's Couttfel, were alto made the chan•
eel to throw flander and contempt upon the proceed.
ings of the Coon, and the ipftrnments of fcandal
and abufe upon the liberties of the prefs. After the
confirmation of the decree, thefe Gentlemen were
nude to fay, that the Court muft-vary its judgments,
and charged the Plaintiff and her Attorney with an
infamcus confpiracy ; and then MelTrs. Thompfon
and Apr are made to fry, a that the event of the
trial would ellablifh the upright concludt of the De-
fendant, and ezpae the Plaintiff and her confede-
rates ;" and Mr. Fonblenque, particularly, was made
to Outwit as a foul confpiracy againll the Defen
dant. This publication then went on to Rate the
opinion of the Mailer of the Rolls, and the panegyric
he is reprcfented to pafa upon the Defendant, and
his Lordfhip's encomium upon him ; and then fol.
lowed the judgment, declaring the deeds &mild be
fet Ade, and the coils all to be paid by the Defen•
dant. If, therefore, this account was not palpably cal-
culated to hold up to (corn and contempt the pro-
ceedings of the Cuott, it would no longer be a
Court of Jollier, but a Court of manifefl
in-
juilict. The affidavit of Mr. Adam, the fhort-hand
writer, fisted poiltively what had paired t--this
affidavit, with f .me ruheis, had been [worn fince
• the Fall application, and Mr. Adam (wore he atten•
ded the whale proceedings, and took minutes of
them is thin band. He Rated, that, to the bell of
• his belief, Mr. Macnernate was in Court upon that
ateotheiew-be pevufed the ttsternent in the papers. and
ornarcomparing it with his notes, he (wore that the
istement was neither true nor faithful, hut appeared
to hien a falfe and fabricated account. The fads im-

piked to Mr. Fonbranque's ilatensant sever appeared
•to hove been mentioned by him. neither did the
Lorrit:haneellor make rife of many capieffiona
potted to bis Lortlfhip. In adverting to the t.flidavit►
of 'Mr. Morgan and Mr. Farquhatton, the Learned
Counfel ally obterved, that the material point to be
confideresl leas, a► to the 1.,8, ..tielhe, the latter
patissiaa was ps.stoisaing Li► duty faialutly to tl.e

public., or whether he did not betray that try§ repriced,
i:t him, be not giving loch report faithfully and ins-,
partially ? But upon this head there could be little
'quettion, for the mere circumftance of his taking a
AMI of money, when he was paid by the public, was
fufficient to Mew the culpability of his ads. It was
for his Lordlhip to decide what was their motive in
this tranfaaion. The motive of the Gentleman who
brought forward this matter before the Court. was
only that id •y might (land well before the public, in.
Read of being conlidered confpirators of the wort!
and moll bafc charatter. The Learned Counfel alto
wifited, individually, that the public Mould be fads-
, fled upon this Cubit& He begged to he explicitly
onderflood, that on any obfervations be had made, or
fhould hereafter make, that be did not mean to mi-
litate in the flightell degree azaintt the liberty of the
prefs ; on the contrary, he thought we ought not Its
complain even of as error in the publication, pro-
tided it was not an abfolute mifreprefen:ation, and
done fur that poronfe. The public derived great ad-
vantages from the fait publication of the proceedings
1,4 Courts of jollice ; but it was dent iAlly neeetrAry
that the happinefs and the charaCber of Mitors of
that Court Ihould be protelted, and the honour and
dignity in the proceedinls of a Court of
_Eunice be
p eferved, and that it thoold not be made the infirm
meet of calumny and wilful mifreprefentation.
Some affidavits were about to be read, when Mr.
Matnamara, io perfon, requefted that all the affidavits
Ibould be read, which was immediately acquiefced
in by the Coost.
The joint affidavit of Mr. Morgan, the agent of
Mr. Lincoln, and of Mr. Macdonnell. the Editor of
7he Mona: Herald, related chiefly to an interview
thefe parties had with Mr. Fsrquharfon, who then
acknowledged that he made out the account for
publication, partly from documents furnithed to him
by Mr. Macnamara, and partly from his diaation,
that he was ?remunerated for his trouble by that
Gentleman, but never received any bribe.
1 The affidavit of Mr. Farquharfon Rated, that being
defired by his employers to make oat a full ttatement
of this cattle, and not having attended the whole of
the proceedings, he found himfelf inadequate to the
talk, and voluntarily applied to Mr. Macs:lama:a for
the necefEtry dccuments to affill him; who afterwards
engaged him to make nut a Itatement of the whole
cafe from thofe docoments, for which he received an
adequate compenfation ; but pofitively denied ever
having received or been @offered a bribe.
The affidavit of Mr. Matnarnara was nearly to the
fame effect—he employed. Mr. Farqnharfun to make
out a fair Ratement of the cafe ; in confequence of
mifreprefentations which had appeared in Tome of the
public papers ; but denied ever having offered or be-
llowed a bribe to him for fo doing, only having re-
munerated him for his trouble.

The affidavit cf Mr. Byrne, Editor of the Morn.
ug P 9, Rated an inter view which took place between
him and Mr. Maenarnara, a few days previous to the
final judgment, when the latter requelled he would
utfert an account of the caufe prepared by Mr. For.
guhar fon, and offered to pay any reafaneble lion for
its infertion ; but this letter Mr. Borne declined ; at
the fame time contenting to publilh the account,
provided Mr. Macnamara would pledge himfelf for
its faitnefs and impartiality. This was acguielced
in by Mr. Macnamara, and the account was taken
from a manufcript, in the hand waiting of Mr. Far-
quharson.
The fubflance of Mr. John Adam's affidavit, we
have already mentioned.
The affidavit of Mr. Alexander Frazer Rated, that
he was employed as a Rion hand writer, to take tome
part of the proceedings for Mr. Macnamara, that
took the minutes of Mr. Fonblanque's reply ; and
made a fair and impartial tranfcript from his notes,
which he gave to Mr. Macnamara. Mr. Fergnltat.
fon was afterwards outplayed in his place.
Same other affidavits of Mr. Morgan and Mr. Far
guherfn, contradiaory to each other, as to Come of
the tranfaaions, were alto read ; but our limits will
not permit usto go into the detail.
Mr. Hear, on the fame fide with the Solicitor Ge-
neral, entered into a very long and able argument
upon the nature of the contempt, fur which he fought
the committal of there parties. The publication in
quetlion was a moll profs and feandelous libel upon
the Court, and were it to be puffed over, without no-
tices the eonfeeptence which would enfue would be a
repetition of fienilar publications. This was a cafe
which had gene through a long and tedious invetti.
gation, and had taken up mnch of the time and at-
tention of his Lordthip's Noble Predeceffor, as well
as that of Come of the ablest Banitters in that
Court ; and was it then to be termed a concerted
fcheme, and a premeditated eonfpi-acy, of the
Plaintiff, her Attorney, and Mr. Lincoln ? Mr.
Lincoln was a perfon who was examined as a wit-
, Deft by Macnamara, who laid, at the time, that
I he was a creditable witnefs, boa afterwards chofe to
call him a difeardeci 'fervent, and now fought to
make him appear, in the eyes of the public, as an
infamous Confpirator, feeking to avert the ends of
jnflice. What was thi. but telling a witnefs, that he
was to give his evidence at his peril ? What man, with
common rte. sex or common feelings about him,would
COW into a Court of Mice to give teßimony ?
What man is there, who would not ff rink from doing
that juHice he owes to his country, if he is afterwards
to be branded as a conlpirator and a calumniator,
and the reward of his fair tellimony is to be libelled
and abufed ? In adverting to a libel of the prefent
kind being cognizable in that Court as a contempt of
the Court, the Learned Counfel cited a cafe from ad
Atkins, 469, where, on a motion that had been made
agairat rhe Chaartion and &. 7antes's Evening PO
Newfcmpert, Lord Hardwieke declared, that nothing
was more incumbent upon Courts of Junice than to
preferve their proceedings from mitt epaentation,
and the pat ties before it from shore.
Mr. .1.11n1.1 P CON appeared as Counfel for Mr. Mac.
Daman and Mr. Farguharilin, and laid, that when
he 6rll read the notice of motion, it Bruck him as
perfeally novel in that Court. It was nothing lets
than a motion to commit there two perfons to the
Fleet for a contempt of Court, before any fuch con-
tempt was venally proved to exit! in the publica-
tion alluded to. It appeared to him to be a as di
extraordinary motion, and fuch as he never tied
heard of before ; very little had been (aid as to aline
was really to be conftrued into a cuntcmpt of Come,
ahhough much had been laid as to si:taanatory es-
pteffions againft the parties in the caufe alluded to i
—The Solicitor General bad obierved upon fume-

r

• thing, which he deraltrninsted a libel upon the jullice
of the Coact. He hardly knew what was meant by
Inch term,. If it was meant to be the libelling of the
public, or the libelling of individuals, the cootie of
procedure to be adopted was well known—the party
aggrieved might profecute for damages in another
Court. It appeared wonderful, that none of his
Learned Friends haJ been able to trace the dolfrine,
they attempted to maintaimen be the prattice of the
Court. to arty authentic fount ; they had cited no
authority, but the cafe in ed Atkins ; but there was
lately a great difference between the two publics.
lions, both in regard to the eircumflances, and the
doOrine laid down by the C turf. The Solicitor Ge•
neral had, with great truth and juffice, animadverted
upon the liberty which belonged to fubjells in this
kingdom, to puh!ifh the proceedings of all the Courts.
He aloft completely agreed with him in faying, that
aotwithflanding all the inconvenience which might
occafi.onally reftilt to individuals, from the era-cite of
that right, it was a great advantage to the public, and
a privilege which particularly diltinguiffied this coon
try above all others. It tended to kerne the pure and
equal adnsiniaratioo of juliice. His Lordfhip would
recollett a cafe, which was attended with peculiar
hardthip, which bore Come refemblsnee to this mat-
ter ; it was the cafe of Currie and Walter, in which
a fpeech of Counfel had been publithed in The lista
Newfpaper, upon a motion to file a criminal infor-
mation againft Mr. Currie. The aftion was tried
before Lord Chief Juftice EYRE, who held, that the
'publication was pettedly true, and, therefore, not the
•
proper fubjeft for a profecution•—lt would be idle
to quote many cafes on that fubjeCt, becaufe it was
not to be denied, that if the publicsti n was true,
it was net puniftsable ; and if fake, it was ptiniffiable
by a Court of Law, either criminally or civilly. Lord
HARDWICILI'I opinion was, that unlefa a publication
WAS a contempt of the Court of Chancery, he could
not take cognizance of it. That Learned judge had,
in that cafe, acknowledged, that while a caule was
pending in Court, it was proper the individuals con-
cerned in it, or conducing it, fhould be protefted by
that Court, but in the preterit inflame the original
caufe was at an end.
The &mica roe Gilliam. here obferved, that this
was a point which he had not thought necetrary to
advert to; but who could fay that the publication
complained of did not amount to a threat againft the
Court, fremirroa file P He was far from confidering the
original cattle as finiffied before his Lordlhip ; and
one of the mandrill objets of that publication was to
influence the fissure proceedings in the caufe, both as
to the parties conflated with it, and as to the Court
itfelf ; and he therefore infifted upon that being a
grays aggravation of the criminality of Mr. Macna-
mare and Mr. Farquharfon.
Mr. Tame PSON continued and faid, that he did ant
confider this as a cafe Rill depending before his
Lordlhip. and therefore it could not have the (mall-
et etre& in influencing the Court. The idea of its
doing fo teemed to deferve the appellation of con-
tempt in a very different fence, Co far as Mr. Whit.
Iton and Mr. Morgan, the two agents, were concern.
ed. The cafe before Lord Hardwicke had gone no
further than the patting in of the Defendant's an-
fwers, and Come proceedings having taken place be-
fore the Matter as to appointing particular guardians.
In that cafe, thole who were condurfling the cattle,
were denominated affidavit men in the publication ;
and a caution was thrown out t a the public, warning
all fathers to take care to whom they corralled the
guardianfhip of their children, leg they Ihould he de-
frauded of their property. The particular eircum-
fiances of the two cafes were therefore worthy of
confideration, and then the judgment pronounced by
Lord Hardwicke might be eafily accounted for.
The contempt of the Court in that cafe was the pre-
judicing mankind before the mire was heard, but in
the prefent one, the faits had been only hated after
the cattle was finilhed. There was one Mang in-
Rance cited by Lord Hardwicke, the cafe of Captain
Parry, who printed his brief before a caufe in which
he was concerned came on. An aftion was brought
in that cafe alto, nut merely fur pt inting the brief to
give to his Counfel (a thing width any man m ght
do if be chore), but for circulating it, and prejudic-
ing the world, before the caufe was heard. Mr.
Wyat, in his Practical Regifier, in treating of con-
tempt of Cow, particularly Rates it to confift in
prejudicing trTankind before a caufe be heard, or the
ahufing parties concerted in a cattle before the
Court, holding out threats to witnefre,,&c. If a con-
trary do/trine citified, he could not help thinking,
that they fhould have had many applications to the
Court of a limiter nature. If, then, no practice could
be Rated, and no former decilion alluded to, which
was completely applicable to the prelent quellion,
how was his Lordfhip to decide, or lay down a title
which thould not only jullify the committal of the
parties complained againft, but (hall ferve as a rule l,
for his own and future Chancellors' lubfequent pro.
cedure In what manner was the Court to be rcgu-
lattd upnu this point, in order to fatisfy public jut-
lice ? The cafe appeared fo full of difficulty, that he!
trolled his Lordibip would difmifs the application.
He was totally at a lots how to deal with the argu-
ments which had been ofed. At one time it was
laid that they were particular pillages applying to
individuals ; ands at another. ;mirages applying to
the Court, that were complained of. All of thefe
pillages were alledged to be Cu puts, as to furnifls
fufficient grounds to maintain the application. At
one time it was alledged that Conte paffages were
worfe than others ; and at another, that the whole
I compofition was fo libellous, that it was impoffible
the Court Mould not confider it as a contempt.—
Thefe arguments were fu general and fo lumping,
that he hardly knew hew to confider them.
The SOLICITOR G laid, lie did not mean to
alTert that all the publication was libellous, or that
it was We in certain particulars ; loch as tlating
that fuck and fuels perfons fpuke, and that Mr. Fun-
blaoque made an eloquent fpeech.
Mr. Trioursum contiroting ; nor could the Solici-
tor General dilpute that it was a fad properly Rated
that Lott' Eldon's judgment was affirmed ; neither
could he deny the fads as to the difcarded Steward
Uncoil) ; nor that Mary Purcell had not only ac•
knowledged her gratitude to Mrs Macnasnara, but
had alto fuorn, that her fillet, Frances Puma. the
Plaintiff. would not have fired Come of the deeds.'
unlels prevailed on, and advifed by her agsats.
Lord k.lt• The accuracy of one part of
the flarement rather tends to aggravate the avocets-
racies of the others."

Mr. Tame it•on the pirliended, at great kmalls,
to animadvert strum thig Magary of this hafinek as
detailed in the (canal affidavits which bad been filed.
and read (hi, day in Citell, and endeavoured toiir,
rift' Mr. Farg.tharron in baying applied is Mr. ac-
namara fur Come particulars of Lech a lengthened
and intricate c.f.:, for the PurPore of anabliliff
frlf to Take out a report to facial, his employers. the
Eiitor and rcoprietors of the 3/ • Aral/ lb.
Macnamara having frornithed Fa rfba wish all
the papers in the wife. betides skins him fame ver-
bal informatinn, it was impoffible for the Court to
know what to fix upon as the Otigin of his informa-
tion. He near animadverted on the affidavit of Mr.
Adam, who, he thought, had dealt boldly in Affert-
ing. that fuch and Itch expreffions had not *dually
occurred in any part of the proceedings, and he
c• uld not fee on what footing he could have immured
to do In. Mr. Adam had not adverted that Mr.
Fonblangne, in his opening fpeech, had ufed the
fame expreffions whin he, in his affidavit, had dc.
vied having occurred in the reply ; he, Mr. Adam,
nut having been prefent on the firn day's difeuffion.
That was placing the Court in a very critical fins-
ation ; and, thetefine, they ought to petite well be-
fore they proceeded to commit upon tech teftionony.
As to what had fallen from his Lnrslihip I,AS• the
affidavit alluded to was dealing very largely--he-
caufe, when the grounds on which theft ladies had
granted the feveral deeds were coatidered, all the
venom of that part of the publication was done
away. A eircumnance worthy of notice was, that
all the other papers of the day contained accounts of
the proceedings pretty fimilar to the one complained
of, and an their, neither Mr. Macnamara nor Mr.
Farcotharfon had any concern.
The Sticicre,e G obferved,, that that dr-
cumnance did not appear to be material—but if it
was ft it ought to be made out by the evidence,
that they "'Pre not printed from the accounts in the
Herald or Pon, or paid for by Mr. Macnamara.
Mr. Tmostr.ort—lf there were miflakee in any of
the other papers, as well at in thofe complained of:
it cutely took away extremely from that part of the
cafe which he had been led to confider as she mon
important one, viz. the wilful milreprefentation of
fads. The cafe then came to this, that a perfon bad
very reinduantly, but from an bonen difcharge of
his duty, attempted to publins an account of a caufe
fo complicated, that he could not fail to commit er-
ror', or Rate fume nonfenfe, or that he has inkrted
in Mr. Fonblanque's reply what he ought to have
put into his opening fpeech. Yet theft were the
grounds for alledging a contempt of Court ; although
there were nothing proved to have been mifrepre.
rented, either through wilful or corrupt motives.—
Some Inore alltifinns had been made in the affidavits
of Mr. Macdonnell and Mr. Morgan, that Mr. Far.
quharfon, when firn charged as being the author of
the publication. had Rated, that he had wil ten it by
the direction of Mr. Macnatnara, and that he had
received mosey for it; but in a cafe like this, the
Court were tidy bound to proceed upon Mr. Far-
guhatfon's own natement, as contained in his lan
affidavit. (To this propufition Lord Easiest& al-
fatted.) Mr. Farqnharfon laid he did not receive
money till after the publication was out, and that
it was got Bidated by Macnamara, but that his for-
mer affertion of its having been was prompted
by the promife of the agents in this gneftion not
winting to proceed ageing him, bat only to fret at
my other client. As to Mr. Macnamara. I admit
that he was guilty of en indelicacy, in offering money
to Mr. Byrne, few the insertion of the publication in
The Mamie! Pe. (Here Mr. Macnamara raid, that
he thought it had been ufual fo to do, in order to
procure the infection of fuels matters in the f I
papers ) Mr. Byrne, in this refped, ailed very ho-
nourably, in refitting what was offered ; and the
blame attachable to Mr. Macnamara was certaiely
tliViAl. as it WAS natural to foppufe, that an Editor
. would retied money tor punting what another was
materially concerned in. Mr. Thumpfon then pro-
ceeded to point out various inaccuracies anti apparent
incontinencies in the various affidavits, to (hew the
liability for perfuns to err, in Rating inconfiderately
what they believe to be fads. Mr. Farquharfon's
haling Rated in his firs affidavit that Mr. Whitton
and Mr. Wigan induced him to fay things which
in his tubfecpient affidavit he contradids, (hewed that
their conduct deferred more the name of contempt
being applied to it, than the publication complain.
cd ot.
Lord That cannot be important, be-
mile Mr. Whitton, Mr. Morgan, or feveral other
Wimeffes, imputing any thing to Mr. Farquharfnn,
cannot be of avail in the prefent itinance, fu long as
he shooks to deny it."
'I he SOLICITOR G raid, he doubted very
much whether that was the courfe of that Court, al-
' thuegh it was fo is the Courts of Law. In the latter.
the party complained of wet ordered to enterer affi-
davits, and it be does nor, then interrogatories may
be received againß him. The matter was different
in the pier( at intlance. Stippofing that neither Mac.
namara nor Farquharfon hail given in soy affidavits,
we mall pottered on the faAs proved by others.
Lord Eames here obferved, that they muff give
in affidavits, otherwiTe they would have been taken
pro miff°. Suppofiog that it had been en informa-
tion by the Attorney General Int a libel, attributing
to a Judge an unrighteous judgment, to which the
defendant pleaded not guilty, then it soul be proved
that he is the publifher, and the Court is left to de-
termine whether it is a libel or not but in the cafe
of an attachment, the defendant has no trial; fads
are imputed to him. which fads, if not denied, ens•
fliture a carper, &hill. There fads may be proved by
affidavit, audit Le deny them, by a contrary affida-
vit, his one is to be taken as the evidence.

The SoLicrroa GE added, that he thought
his Lorenhip would find, that there never war an in-
aance of a perfon being forced to anfwer interroga-
tories in a Court of Chancery, although it couli be
done in Courts of Law.
After a few further obfervations from Mr. Tumor.
sox. the &idler proceedings were potlponed till to
.(this day.)

Real excelleace requires no pan-gylic ; or, as tb•
old adage fay5....14 Good nine Leal' no isufh."—
Under this happy dcfcrepdun fall, the prefent vest
aad 'nudist State Lottery Scheme. It i. fuflicieut
to pet ufe it to perceive the fuperior merit of its npu.
lent conllrtglion. In !hart. the internal excellence
of the is In fell. apparent, as to obvious la
neccEty for aidirg it Will Ate.