LETTER LXIII.

October 22, 1771.

A FRIEND of Junius, desires it may be ob served (in answer to A Barrister at Law)

1mo. That the fact of Lord Mansfield's having ordered a juryman to be passed by (which poor Zeno never heard of) is now formally admitted. When Mr. Benson's name was called, Lord Mansfield was observed to flush in the face (a signal of guilt not uncommon with him) and cried out, Pass him by. This I take to be something more than a peremptory challenge: it is an unlawful command, without any reason assigned. That the counsel did not resist, is true; but this might happen either from inadvertence, or a criminal complaisance to Lord Mansfield. You barristers are too apt to be civil to my Lord Chief Justice, at the expence of your clients.

2do. Junius did never say, that Lord Mansfield had destroyed the liberty of the press. "That "his Lordship has laboured to destroy, that "his doctrine is an attack upon the liberty of "the press, that it is au invasion of the right of "juries," are the propositions maintained by Junius. His opponents never answer him in point; for they never meet him fairly upon his own ground.

3tio. Lord Mansfield's policy, in endeavouring to screen his unconstitutional doctrines behind an act of the legislature, is easily understood. Let every Englishman stand upon his guard: the right of juries to return a general verdict, in all cases whatsoever, is a part of our constitution. It stands in no need of a bill, either enacting or declaratory, to confirm it.

4to. With regard to the Grosvenor cause, it is pleasant to observe, that the doctrine attributed by Junius to Lord Mansfield, is admitted by Zeno, and directly defended. The Barrister has not the assurance to deny it flatly; but he evades the charge, and softens the doctrine, by such poor contemptible quibbles as cannot impose upon the meanest understanding.

5to. The quantity of business in the Court of King's Bench, proves nothing but the litigious spirit of the people, arising from the great increase of wealth and commerce. These, however, are now upon the decline, and will soon leave nothing but law suits behind them. When Junius affirms, that Lord Mansfield has laboured to alter the system of jurisprudence in the Court where his Lordship presides, he speaks to those who are able to look a little farther than the vulgar. Besides, that the multitude are easily. deceived by the imposing names of equity and substantial justice, it does not follow that a judge, who introduces into his court new modes of proceeding, and new principles of law, intends, in every instance, to decide unjustly. Why should he, where he has no interest? We say, that Lord Mansfield is a bad man, and a worse judge; but we do not say that he is a mere devil. Our adversaries would fain reduce us to the difficulty of proving too much. This artifice, however, shall not avail him. The truth of the matter is plainly this; when Lord Mansfield has succeeded in his scheme of changing a court of common law to a court of equity, he will have it in his power to do injustice whenever he thinks proper. This, though a wicked purpose, is nei ther absurd nor unattainable.

6to. The last paragraph, relative to Lord Chatham's cause, cannot be answered. It partly refers to facts of too secret a nature to be ascer tained, and partly is unintelligible. "Upon one

"point the cause is decided against Lord Chat"ham: upon another point it is decided for "him." Both the law and the language are well suited to a Barrister! If I have any guess at this honest gentleman's meaning, it is, That "whereas the commissioners of the great seal saw the question in a point of view unfavour"able to Lord Chatham, and decreed accordingly; Lord Mansfield, out of sheer love and "kindness to Lord Chatham, took the pains to "place it in a point of view more favourable to "the appellant." Credat Judæus Apella. So curious an assertion would stagger the faith of Mr. Sylva.

"

LETTER LXIV.

November 2, 1771.

We are desired to make the following declaration, in behalf of Junius, upon three material points, on which his opinion has been mistaken or misrepresented.

1mo. Junius considers the right of taxing the Colonies, by an Act of the British Legislature, as a speculative right merely, never to be exerted, nor ever to be renounced. To his judgment it appears plain, "That the general reasonings "which were employed against that power,

went directly to our whole legislative right; "and that one part of it could not be yielded to "such arguments, without a virtual surrender "of all the rest."

2do. That, with regard to press-warrants, his argument should be taken in his own words, and answered strictly; that comparisons may sometimes illustrate, but prove nothing; and that, in this case, an appeal to the passions is

unfair, and unnecessary. Junius feels and acknowledges the evil in the most express terms, and will show himself ready to concur in any rational plan that may provide for the liberty of the individual, without hazarding the safety of the community. At the same time he expects that the evil, such as it is, be not exaggerated or misrepresented. In general, it is not unjust, that, when the rich man contributes his wealth, the poor man should serve the state in person; otherwise, the latter contributes nothing to the defence of that law and constitution from which he demands safety and protection. But the question does not lie between the rich and poor. The laws of England make no such distinctions. Neither is it true, that the poor man is torn from the care and support of a wife and family, helpless without him. The single question is, Whether the seaman, in times of public danger, shall serve the merchant, or the state, in that profession to which he was bred, and by the exercise of which alone, he can honestly support himself and his family? General arguments against the doctrine of necessity, and the dangerous use that may be made of it, are of no weight in this particular case. Necessity inIcludes the idea of inevitable. Whenever it is

so, it creates a law to which all positive laws, and all positive rights, must give way. In this sense, the levy of ship-money by the King's warrant was not necessary, because the business might have been as well or better done by Parliament. If the doctrine maintained by Junius be confined within this limitation, it will go but a very little way in support of arbitrary power.

I confine myself strictly to seamen. If any others are pressed, it is a gross abuse, which the magistrate can and should correct.

That the King is to judge of the occasion, is no objection, unless we are told how it can possibly be otherwise. There are other instances, not less important in the exercise, not less dangerous in the abuse, in which the constitution relies entirely upon the King's judgment. The executive power proclaims war and peace, binds the nation by treaties, orders general embargoes, and imposes quarantines; not to mention a multitude of prerogative writs, which, though liable to the greatest abuses, were never disputed.

3tio. It has been urged, as a reproach to Jn. nius, that he has not delivered an opinion upon the game laws, and particularly the late dog act. But Junius thinks he has much greater reason to complain, that he is never assisted by those who are able to assist him: and that almost the whole labour of the press is thrown upon a single hand, from which a discussion of every public question is unreasonably expected. He is not paid for his labour, and certainly has a right to choose his employment. As to the game laws, he never scrupled to declare his opinion, that they are a species of the forest laws: that they are oppressive to the subject; and that the spirit of them is incompatible with legal liberty; that the penalties imposed by these laws bear no proportion to the nature of the offence: that the mode of trial, and the degree and kind of evidence necessary to convict, not only deprive the subject of all the benefits of a trial by jury, but are in themselves too summary, and to the last degree arbitrary and oppressive: that, in particular, the late acts to prevent dog-stealing, or killing game between sun and sun, are distinguished by their absurdity, extravagance, and pernicious tendency. If these terms are weak or ambiguous, in what language can Junins express himself? It is no