of the faid Opinion of Mr. M'Carty, judicially declare, That finding the fame publifhed in the faid Edinburgh Weekly Journal, they did feverally caule, reprint and publish, by themselves or fervants, the faid Opinion in the Edinburgh Evening Courant, Caledonian Mercury and Scots Magazine, wherein they are respectively concerned, and which they took from, and as previously published in the faid Weekly Journal: That they are now fenfible, that in doing this they have done wrong; and fubmit themfeves to the court. [Signed] Robert Fleming, Robert Fleming, jun. Walter Ruddiman, John Richardjon, James Cochran, Alexander Murray. GILB. ELLIOT, I. P. D.

The Lords Justice-Clerk and Commiffioners of Justiciary, having confidered the acknowledgments and declarations of the faid William Auld, Robert Flemings elder and younger, Walter Ruddiman elder and Jolin Richardfon, James Cochran and Alexander Murray, printers before written, find it proved, That the Opinion of Mr. M'Carty was by their authority published in the respective newspapers and Magazine: Find, That the publication of the faid Opinion, efpecially with the notes prefixed to it, was a high indignity to this court, and a precedent dangerous to the conftitution of this Country: But in refpect of the fpecial circumftances of this cafe, and more particularly that the faid printers have acknowledged their fault, and fubmitted them felves to the court, the faid Lords, in the prefent cafe, do not proceed to inflict any punishment by fine, imprisonment, or otherwife; but difmifs them with a rebuke; which they appoint to be given them by the Lords Juftice-Clerk; and which they hope will prevent the like from being done for the future. [Signed] GILB. ELLIOT, I. P. D.

For the better understanding these proceedings, we fhall here relate the facts which were the occafion of them, and fome particulars that did not fall to entered in the record.

be

The first respite for Lieut. Ogilvie ar rived at Edinburgh on Saturday Sept. 21; and a copy of Mr. M'Carty's Opinion came along with it.

The Opinion was inferted in the Edinburgh Weekly Journal of O&t. 2. with a 'note prefixed in thefe words: "Moft people were furprised when the unfortu

nate Mr. Ogilvie, now under sentence of death for the crimes of murder and incest, received his Majesty's gracious reprieve for the space of fourteen days. As the proceedings of that trial are now under the confideration of his Majesty and his privy council, we here prefent our readers with the figned Opinion of an eminent English counsellor, which points out to us the reafons of granting a reprieve to this unfortunate gentleman;"

and the following note fubjoined to it: "As this Opinion feems to be compofed with great art and ingenuity, it would be extremely obliging to the public, if any gentleman of the law would take the trouble of tranfmitting to the publishers his obfervations upon it.

The Opinion was inferted in the Edinburgh Courant of Oct. 7. and in the Caledonian Mercury of O&. 9. with the following note prefixed, (but no note subjoined,) viz. "The proceedings in the trial of Lieutenant Patrick Ogilvie and Katharine Nairn, being now under the confideration of his Majesty and his privy council, the following figned Opinion of Mr. M'Carty, an eminent English counsellor was prefented along with them; which fhews the reasons why reprieves have been granted this unfortunate gentleman."

The Opinion was inferted in the London Chronicle of Oct. 12. with the date Edinburgh, Oct. 7. and the note that was in the Courant and Mercury, prefixed to it.

The Trial of Katharine Nairn and Lieut. Patrick Ogilvie was published at Edinburgh on the 16th of October.

The

The Scot's Magazine for September, that in which the Opinion is inferted, was published on the 23d of October. note prefixed in the Magazine (687.) gave no offence: for it only relates facts, and these facts were admitted to be true.

Neither the unhappy pannels, nor any of their friends or doers, had any hand in this publication; which, it is believed, was fufpected.

No lawyer appeared for any of the publifhers: nor was there any thing faid by them in their own defence, other than that it was reprefented, by the publishers of the Courant and Mercury, that they were not the first publishers; and by the publishers of the Magazine, that they did

not

not infert the opinion, till after it had appeared, not only in the Edinburgh, but likewife in the London news-papers, and till after the Trial was published.On the publication of the Trial, we immediately set about making such extracts from it, (which are now inferted,) as must take off any wrong impreffion that may have been occafioned by our infertion of the Opinion; and on the cover of our September Mag. that in which the Opinion is inserted, we take notice that the Trial is published.-The Opinion is inferted likewife in the London Magazine for October, which was published Nov. 1; and the London, and every other English, as well as the Scot's Magazine, is to be had of any bookfeller in Scotland. But this was not mentioned to the court.

After the publishers had made their acknowledgments and fubmiflion to the court, the Lord Advocate stood up, and took notice, That it was of the utmost importance to the country, that a due regard fhould be had to the courts of juftice, especially to the high court of jufticiary; that trials by juries, by men of equal rank with the perfons tried, is a very high privilege enjoyed by the people of thefe iflands; that nothing fhould be fuffered that had a tendency to deter gentlemen from accepting the office, or from faithfully performing the duties of jurymen; that the publication in queftion was a kind of challenge to enter into a paper-war in the news-papers, in vindication of a moft refpectable jury; and that on these accounts he had thought himself bound, by the duty of his office, to take notice of this publication; fubmitting the matter entirely to the court. The like obfervations were made from the bench; and with regard to a first and fubfequent publication, it was observed, that though the first was the most culpable, yet none of the reft were to be held blameless; for that otherwife the law might be eluded, by causing a person not worth 10l. to publish a blameable paper firft, whofe lofs might eafily be made up to him by the fubfequent publishers, as they would thus be held impune.But though the Lord Advocate and the judges spoke with a high degree of difapprobation of this publication, they all expreffed a tenderness towards the preDecember, 1765.

fent delinquents, being fatisfied that their only defign was, to gratify the curiofity of their readers.

It was likewife obferved from the bench, that one publisher in Edinburgh had refused to infert this Opinion. One of the Lords read the following note from the Edinburgh Advertiser of Nov. 1. "The epiftle figned Criticus, of the 24th current, came to hand two days ago. The publisher of the Advertiser thanks him for his well-meant hints, which will be attended to in due time.-There were feveral very good reasons for not inferting Mr. M'Carty's Opinion in the Advertiser, of which Criticus may be fatisfied if he will take the trouble to call upon the publisher;"and the publifher's difcretion was commended by the

[Inoculation for the fmall pox having met with great oppofition in France, any little mifcarriage that happens from ignorance or inexperience, is mifreprefented by its enemies, as a juft reason for prohibiting the practice. The cafe of the Duchefs of Boufflers gave the oppofers great advantage; it was therefore neceffary for her physician, one of the most eminent in France, to ftate her Grace's cafe, as it really happened; by which he is forced to confefs his own mistake, in order to undeceive the public. The affair has made a great noise abroad, but has not been generally understood here, and, therefore, the following authentic account is inferted.]

Tranflation of Monf. Gatti's own letter to a friend on the subject.

I

SIR,

Tis but too true, that the Duchefs of Boufflers, whom I inoculated, about two years and a half ago, is juft recovered from the natural fmall pox, which proved to be a distinct and favourable fort. This event having greatly excited the attention of the public, I thought it my duty to give the world a particular account of the Duchefs's inoculation and the has, upon my application, been pleafed to recollect all the circumstances, and to favour me with the following certification figned with her own name. Есесе

;

"On

"On the 12th of March 1763, I was inoculated for the fmall pox; and about four or five days afterwards, a redness appeared round the orifice, which Monf. Gatti called an inflammation, and affured me was a fign that the small pox had taken effect, These were the very terms he ufed. This redness or inflammation increased every day; and about the feventh or eight day, the wound began to fuppurate. There appeared alfo about the wound fix fmall rifings, or pimples, which fucceffively fuppurated, and difappeared the next day. Monf. Gatti, upon thefe appearances again affured me, that the fmall pox had taken effect. In the afternoon of the eleventh or twelfth day of my inoculation, I felt a general uneafinefs and emotion; a pain in my head, and my back, and about my heart; in confequence of which, I went to bed fooner than ordinary; I flept well, however, and rofe without any diforder in the morning. These symptoms Monf. Gatti affured me were the forerunners of the erruption. The next day a pretty large rifing, or pimple, appeared in my forehead; which came to a head, turned white, and then dried away, leaving a mark which continued many days.

The wound in my arm continued to fuppurate feven or eight days, and Monf. Gatti now affured me that I had nothing to fear from the fmall pox; and upon this affurance I relied without the leaft doubt, and continued in perfect confidence of my fecurity till the natural fmall pox appeared. I continued very well during the whole time of my inoculation, except one day, as mentioned above, and I went out every day.

Monmorency, D. de Boufflers."

It is very true that I affured the Duchefs, fhe had nothing to fear from the fmall pox; but the event has proved that I was mistaken.

I confidered the accidents or fymptoms which followed the incifion, as certain figns that the inoculation had taken effect as the characteristic fymptoms of the inoculated fmall pox did not follow, I mean a fever fucceeded by a fuppuration of the wound, a fuppuration different from that which might take place before the fever, I thought that the action of the variolous virus could produce no other effect in the patient, than what appeared

round the incifion, and that the was therefore fecure from the fmall pox; and I was confirmed in this opinion, by her continuing expofed to the contagion with her daughter and another lady who were inoculated at the fame time, and had the fmall pox with the usual symptoms.

I was perfuaded, according to the general opinion, that when figns of the fmall pox having been taken, appear round the incifion, that disease will certainly follow, fuppofing the patient to be fufceptible of it; and that if the disease does not then follow, the patient is not fufceptible of it. The cafe of the Duchefs proves that this opinion is false, whether the figns of the fmall pox having been taken are equivocal, or whether the virus may act upon that particular part without spreading to the rest of the body. I make no account of the pimple which appeared upon her forehead; because it had neither the form, or the course of a variolous puftule; and the Duchefs herfelf, who has now good reason to be well acquainted with variolous puftules, is of the fame opinion.

As the fame thing that has happened to the Duchefs has happened alfo to many others where inoculation is frequent, and as it may and muft happen again, it is of great importance to prevent the mistakes and calm the anxieties that it may produce: and for this purpose I have always thought, that every patient who has re ceived the real fmall pox by inoculation, ought to have a certificate of it given them by their phyfician.I have given many fuch certificates, and I should be glad if every perfon whom I have inocuJated would apply to me for one. G. M. Extract of a letter from a North-American in London, to his friend in America, relative to fome parliamentary proceeding; dated July 11, 1765.

Depend upon it, my good friend, every poffible ftep was taken to prevent the paffing of the ftamp-act. But the tide was too ftrong against us. The nation was provoked by American claims of independence, and all parties joined in resolving by this act to fettle the point. We might as well have hindered the fun's fetting. But fince it is down, my friend, and it may be long ere it rifes again, let us make as good a night of it as we can. We may ftill light candles. Frugality

and

and Induftry will go a great way towards indemnifying us. Idleness and Pride tax with a heavier hand than kings and parliaments. If we can get rid of the former, we may easily bear the latter. Our country produces, or is capable of producing, all the necessaries of life, the wafting fuperfluities come from hence. Let us have but the wisdom to be content awhile with our own, and this country will foon feel, that its lofs in point of commerce, is infinitely more than its gain in taxes.

The Anfwer, dated Philadelphia, Sept. 24. Yes, my friend, I grant that "Idlenefs and Pride tax with a heavier hand than kings and parliaments," and, " that frugality and industry will go a great way towards indemnifying us." But the miffortune is, the very thing that renders induftry neceffary, cuts the finews of it. With induftry and frugality the fubjects of eastern tyrants might be wealthier than thofe of England or Holland: but who will labour or fave who has not a fecurity in his property? When people are taxed by their own reprefentatives, though the tax is high, they pay it chearfully, from a confidence that no more than enough is required, and that a due regard is had to the ability of the giver.. But when taxes are laid merely to" fettle the point of independence," and when the quantity of the tax depends on the caprice of those who have the fuperiority, and who will doubtlefs lay it heavier in order to bring down the fpirits or weaken the power of thofe who claim independence, what encouragement is there to labour or fave? The wealth we thereby acquire, will be a new motive, which fear or avarice will fuggeft, to tax us anew. No wonder then if people poor and lazy rather than labour to enrich their tax-mafters, or fur. nish matter for new oppreffion. There never was any mention of the colonies aiming at independence, till the miniftry began to abridge them of their liberties. I will venture to affirm, and to you I can appeal for the truth of what I fay, that history cannot fhew a people fo numerous, fo far removed from the feat of royalty, who were fo loyal, fo attached to their King, and who at the fame time had fuch true fentiments of liberty, as the

will chufe to live

British American colonies. How long this will continue, God knows.

The fun of liberty is indeed fast fetting, if not down already, in the American colonies: but I much fear, inftead of the candles you mention being lighted, you will hear of the works of darkness. They are in general alarmed to the last degree. The colonies expect, and with reafon expect, that fome regard fhall be had to their liberties and privileges, as well as trade. They cannot bring themfelves to believe, nor can they fee how England with reafon or juftice could expect, that they fhould have encountered the horrors of a defert, borne the attacks of their blood and treafure, fettled this of barbarous favages, and, at the expence land, and after all quietly fubmit to be country, to the great emolument of Enghas been taught to hold dear. It is not deprived of every thing an Englishman Berty and most effential privileges are property only we contend for. Our hiftruck at: Arbitrary courts are fet over us, and trials by juries taken away: The prefs is fo reftricted, that we cannot comed to be billeted on us: The fources of plain: An army of mercenaries threatenour trade stopped; and, to complete our ruin, the little property we had acquired, taken from us, without even allowing us the confequences. The parliament infift the merit of giving it. I really dread on a power over all the liberties and privileges claimed by the colonies, and hence in whatever they do: fhould the behaviour require a blind obedience and acquiefcence of the colonies happen not to fquare with will not) what remains but by violence to thefe fovereign notions, (as I much fear it compel them to obedience? Violence will beget refentment, and provoke to acts

never dreamed of. But I will not anti

cipate evil; I pray God avert it."

Particulars of the Proceedings of the French in Africa.

We have loft the valuable fettlement of Poydor, on the river Senegal; which lofs is thus accounted for.

66

In the neighbourhood of Poydor there is a powerful African king, with whom the French, while there, cultivated a strict friendship. This prince is a man of fpirit, and impatient of affronts; but

Eeeeez

his

his alliance is easily won by beneficence, and that air of politeness fo natural to our fawning neighbours. He entertains in his fervice a French secretary, who perfectly understands, and very elegantly writes Arabic, the court-language of all Mohammedan princes. And while the French were masters of Senegal, they always kept an agent, vefted with a public character, about the perfon of this petty king, who was with him when we made that important conqueft.

After the French were gone, we neglected to honour this negro with the fame diftinguishing marks of our esteem; and the French fecretary, for whoin this African has a great regard, failed not, on all occafions, to expatiate upon this neglectful contempt of fo illuftrious a monarch, and to inflame his mind against us by malevolent repetitions of the difference between thofe honours which were paid to him by our predeceffors, and that regardless behaviour of ours. Thus his hatred to the English daily gathered new ftrength, and communicated to all his fubjects a growing diflike of the British ftrangers, till these animofities ended in an open rupture; and our countrymen were conftrained to fly, when their harvest was just ready for the fickle.

The negro prince, fenfible of his inability to withstand the British power upon the river Senegal, by the perfuafion of his French fecretary, wrote a letter in Arabic on fine vellum to the late French refident at his court. In this letter he pathetically fets forth the provocations which his fubjects have, as he pretends, met with from the English fince the departure of his allies of France, intreats affiftance from the French court by the mediation of his friend, to whom the letter is addreffed, and requests that gentleman's immediate return to Poydor on all events; ever and anon swearing, in a manner fuitable to his religion, that he never will hereafter fuffer the vifits of the English in his do

that purpose, where I faw and heard what I have above related, from a gentleman who boasted of his being the perfon to whom the Arabic letter was directed, and that he was immediately upon his return to Paris, to be sent over to the affiftance of his African friend, of whom he gave an amiable character."

Orders have been fent to Woolwich for a quantity of military ftores to be got in readiness to be shipped for Senegal, to go along with the new-raifed troops which are foon to embark for that place.

The Petition of the unhappy Mrs. Ogilvie, prefented to the Court of Seffions, on the 21ft day of November, 1765.

Sherweth,

TH

"In

HAT being fo unfortunate to be indicted as guilty of incest and murder, and to be found guilty by the jury; that sentence of death had been pronounced against Lieut. Ogilvie, and executed; and that five midwives appointed to infpect her, having on Monday (then) laft, unanimously reported their opinion, that fhe was with child, the Lords of Justiciary continued the diet till the fecond Monday of March, and delayed pronouncing fentence against her till then.this unfortunate fituation, fays fhe, the petitioner fhould not have thought of giv ing your Lordships any trouble on account of her own temporal concerns, when the has eternity fo immediately in view; but the is not fo totally divefted of natural affection, as not to feel for the unhappy infant in utero, whofe fituation in life must at any rate be extremely deplorable.Mr. Ogilvie of Eaftmiln, the father of this child, was unlimited proprietor, and died in poffeffion, of the estate of Eaftmiln, comprehending, &c.—Under thefe circumftances, the petitioner is called upon, by the duty the owes her helpless infant, to make this her humble application to your Lordthips, for that protection to her infant which he is advised the law gives in cafes of fuch neceffity.The remedy which the law has provided for cafes of this nature is, that the estate to which the infant in utero may fucceed, fhould be fequeftered, and a curator bonis appointed by proper authority. Such was the edict of the Roman prætor, de ventre in poffeffionem mittendo, et curatore ejus,

(of