preferved; while every thing folid and valuable Links to the bottom, and is loft for ever.

JUNIUS.

LETTER LX.

TO THE PRINTER OF THE PUBLICK AD

VERTISER.

SIR,

I A

Oct. 15. 1771,

AM convinced that Junius is incapable of wilfully mifreprefenting any man's opinion, and that his inclination leads him to treat Lord Camden with particular candour and respect. The doctrine attributed to him by Junius, as far as it goes, corresponds with that stated by your correfpondent Scævola, who feems to make a diftinction without a difference. Lord Camden, it is a greed, did certainly maintain, that, in the recess of parliament, the King (by which we all mean the King in council, or the executive power) might fufpend the operation of an act of the Legislature; and he founded his doctrine upon a fuppofed neceffity, of which the King, in the first inftance, must be judge. The Lords and Commons cannot be judges of it in the first instance, for they do not exift.-Thus far Junius.

But, fays Scævola, Lord Camden made parlia ment, and not the King, judges of the neceflity.That parliament may review the acts of minifters, is unquestionable; but there is a wide difference between faying, that the Crown has a legal power, and that ministers may act at their peril. When we fay, that an act is illegal, we mean that it is forbidden by a joint refolution of the three eftates. How a fubfequent refolution of two of those branches can make it legal ab initio, will require explanation. If it could, the confequence would be truly dreadful, especially in thefe times. There

is

1

is no act of arbitrary power which the King might not attribute to neceffity, and for which he would not be fecure of obtaining the approbation of his proftituted Lords and Commons. If Lord Camden admits, that the fubfequent fanction of parliament was neceffary to make the proclamation legal, why did he fo obftinately oppofe the bill which was foon after brought in for indemnifying all thofe perfons who had acted under it ?-If that bill had not been paffed, I am ready to maintain, in direct contradiction to Lord Camden's doctrine, (taken as Scavola ftates it), that a litigious exporter of corn, who had fuffered in his property in confequence of the proclamation, might have laid his action against the cuftomhouse-officers, and would infallibly have recovered damages. No jury could refuse them; and if I, who am by no means litigious, had been fo injured, I would affuredly have inftituted a fuit in Weftminster-hall, on purpofe to try the queftion of right. I would have done it upon a principle of defiance of the pretended power of either or both Houses to make declarations inconfiftent with law; and I have no doubt, that, with an act of parliament on my fide, I fhould have been too strong for them all. This is the way in which an Englithman fhould fpeak and act; and not fuffer dangerous precedents to be established, because the circumftances are favourable or palliating.

With regard to Lord Camden, the truth is, that he inadvertently overshot himself, as appears plainly by that unguarded mention of a tyranny of forty days, which I myself heard. Inftead of afferting, that the proclamation was legal, he fhould have faid, "My Lords, I know the proclamation was illegal; but I advifed it, because it was indifpenfibly neceffary to fave the kingdom from famine; and I fubmit myself to the juftice and mercy of my country."

Such

Such language as this would have been manly, rational, and confiftent :-not unfit for a lawyer, and every way worthy of a great man.

PHILO JUNIUS.

P. S. If Scavola should think proper to write again upon this fubject, I beg of him to give me a direct answer, that is, a plain affirmative or negative, to the following queftions:-In the interval between the publishing fuch a proclamation (or or der of council) as that in question, and its receiv. ing the fanction of the two Houses, of what nature is it? Is it legal or illegal? Or, is it neither one nor the other?-I mean to be candid, and will point out to him the confequence of his anfwer either way. If it be legal, it wants no farther fanction; if it be illegal, the fubject is not bound to obey it; confequently, it is an ufelefs, nugatory act, even as to its declared purpofe. Before the meeting of parliament, the whole mifchief which it means to prevent, will have been completed.

SIR,

THE

LETTER LXI.

TO ZEN O.

OA. 17. 1771. HE fophiftry of your letter in defence of Lord Mansfield, is adapted to the character you defend. But Lord Mansfield is a man of form, and feldom in his behaviour tranfgreffes the rules of decorum. I fhall imitate his Lordship's good manners, and leave you in the full poffeffion of his principles. I will not call you liar, Jefuit, or vil lain; but, with all the politenefs imaginable, per. haps I may prove you fo.

Like other fair pleaders in Lord Mansfield's school of juftice, you answer Junius by mifquot

ing

ting his words, and mistating his propofitions. If I am candid enough to admit that this is the very logick taught at St. Omer's, you will readily allow, that it is the conftant practice in the court of King's-Bench.-JUNIUS does not fay, that he never had a doubt about the ftrict right of preffing, till be knew Lord Mansfield was of the fame opinion. His words are, until he heard that Lord Mansfield kad applauded Lord Chatham for maintaining that doctrine in the boufe of Lords. It was not the accidental concurrence of Lord Mansfield's opinion, but the fufpicious applaufe given by a cunning Scotchman to the man he detefts, that raised and juftified a doubt in the mind of Junius. The queftion is not, Whether Lord Mansfield be a man of learning and abilities, (which Junius has never difputed); but, Whether or no he abufes and mifapplies his talents.

Junius did not say that Lord Mansfield had advifed the calling out the Guards. On the contrary, his plain meaning is, that he left that odious office to men lefs cunning than himself.-Whe ther Lord Mansfield's doctrine concerning libels be or be not an attack upon the liberty of the prefs, is a question which the publick in general are very well able to determine. I fhall not enter into it at prefent. Nor do I think it neceffary to fay much to a man, who had the daring confidence to fay to a jury," Gentlemen, you are to bring " in a verdict guilty or not guilty; but whether "the defendant be guilty or innocent, is not matter for your confideration." Clothe it in what language you will, this is the fum total of Lord Mansfield's doctrine. If not, let Zeno fhow us the difference.

But it feems, the liberty of the press may be abufed, and the abuse of a valuable privilege is the certain means to lose it. The firft I admit :-but let the abuse be submitted to a jury; a fufficient, and

Dd

indeed

indeed the only legal and conftitutional check upon the licence of the prefs. The fecond I flatly deny. In direct contradiction to Lord Mansfield, I affirm, that "the abufe of a valuable privilege is

not the certain means to lofe it." If it were, the English nation would have few privileges left; for, where is the privilege that has not, at one time or other, been abused by individuals? But it is falfe in reafon and equity, that particular abuses should produce a general forfeiture. Shall the community be deprived of the protection of the laws, because there are robbers and murderers?-Shall the community be punished, because individuals have offended? Lord Mansfield fays fo, confiftently enough with his principles; but I wonder to find him fo explicit. Yet, for one conceffion, however extorted, I confefs myself obliged to him :-The liberty of the prefs is, after all, a valuable privilege. I agree with him moft heartily, and will defend it against him.

You afk me, What juryman was challenged by Lord Mansfield?-I tell you, his name is Benfon. When his name was called, Lord Mansfield ordered the clerk to pass him by. As for his reafons, you may ask himself, for he affigned none: but I can tell you what all men thought of it. This Benfon had been refractory upon a former jury, and would not accept of the law as delivered by Lord Mansfield; but had the impudence to pretend to think for himself.-But you, it seems, honeft Zeno, know nothing of the matter.

You ne

ver read Fanius's letter to your patron: You never heard of the intended inftructions from the city to impeach Lord Mansfield: You never heard by what dexterity of Mr. Paterson that measure was prevented. How wonderfully ill fome people are informed!

Junius did never affirm, that the crime of feducing the wife of a mechanick or a peer, is not the

fame,