Letters of Junius/Letter LXI
LETTER LXI.
TO ZENO.
17. Oct. 1771.
- SIR,
THE sophistry of your letter in defence of Lord Mansfield is adapted to the character you defend. But Lord Mansfield is a man of form, and seldom in his behaviour transgresses the rules of decorum. I shall imitate his Lordship's good manners, and leave you in the full possession of his principles. I will not call you liar, Jesuit, or villain; but, with all the politeness imaginable, perhaps, I may prove you so.
Like other fair pleaders in Lord Mansfield's school of justice, you answer Junius by misquoting his words, and mis-stating his propositions. If I am candid enough to admit that this is the very logic taught at St. Omer's, you will readily allow that it is the constant practice in the Court of King's Bench. —Junius does not say, that he never had a doubt about the strict right of pressing, till he knew Lord Mansfield was of the same opinion. His words are, until he heard that Lord Mansfield had applauded Lord Chatham for maintaining that doctrine in the house of lords. It was not the accidental concurrence of Lord Mansfield's opinion, but the suspicious applause given by a cunning Scotchman to the man he detests, that raised and justified a doubt in the mind of Junius. The question is not, whether Lord Mansfield be a man of learning and abilities (which Junius has never disputed,) but, whether or no he abuses and misapplies his talents.
Junius did not say that Lord Mansfield had advised the calling out of the guards. On the contrary, his plain meaning is, that he left that odious office to men less cunning than himself.—Whether Lord Mansfield's doctrine concerning libels be or be not an attack upon the liberty of the press, is a question which the public in general are very well able to determine. I shall not enter into it at present. Nor do I think it necessary to say much to a man, who had the daring confidence to say to a jury, "Gentlemen, you are to bring in a verdict guilty or not guilty: but whether the defendant be guilty or not guilty, is not matter for your consideration." Cloath it in what language you will, this is the sum total of Lord Mansfield's doctrine. If not, let Zeno show us the difference.
But it seems, the liberty of the press may be abused", and "the abuse of a valuable privilege is the certain means to lose it. The first I admit,—but let the abuse be submitted to a jury; a sufficient, and, indeed, the only legal and constitutional check upon the licence of the press. The second I flatly deny. In direct contradiction to Lord Mansfield, I affirm, that "the abuse of a valuable privilege is not the certain means to lose 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 false in reason 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 says so, consistently enough with his principles; but I wonder to find him so explicit. Yet, for one concession, however extorted, I confess myself obliged to him.—The liberty of the press is, after all, a valuable privilege. I agree with him most heartily, and will defend it against him.
You ask me, What juryman was challenged by Lord Mansfield?—I tell you; his name was Benson. When his name was called, Lord Mansfield ordered the clerk to pass him by. As for his reasons, you may ask himself, for he assigned none: but I can tell you what all men thought of it. This Benson 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, honest Zeno, know nothing of the matter! You never read Junius's letter to your patron! You never heard of the intended instructions from the city to impeach Lord Mansfield!—you never heard by what dexterity of Mr. Paterson that measure was prevented. How wonderful ill some people are informed!
Junius did never affirm, that the crime of seducing the wife of a mechanic or a peer, is not the same, taken in a moral or religious view. What he affirmed, in contradiction to the levelling principle so lately adopted by Lord Mansfield, was, that the damages should be proportioned to the rank and fortune of the parties; and for this plain reason; (admitted by every other judge that ever sat in Westminster Hall) because what is a compensation or penalty to one man, is none to another. The sophistical distinction you attempt to draw between the person injured and the person injuring, is Mansfield all over. If you can once establish the proposition, that the injured party is not entitled to receive large damages, it follows, pretty plainly, that the party injuring should not be compelled to pay them; consequently the King's brother is effectually screened by Lord Mansfield's doctrine. Your reference to Nathan and David come naturally in aid of your patron's professed system of jurisprudence. He is fond of introducing into the court of King's Bench any law that contradicts or excludes the common law of England; whether it be canon, civil, jus gentium, or levitical. But, Sir, the Bible is the code of our religious faith, not of our municipal jurisprudence; and though it was the pleasure of God to inflict a particular punishment upon David's crime (taken as a breach of his divine commands) and to send his prophet to denounce it, an English jury have nothing to do either with David or the prophet. They consider the crime only as it is a breach of order, an injury to an individual, and an offence to society; and they judge of it by certain positive rules of law, or by the practice of their ancestors. Upon the whole, the man after God's own heart is much indebted to you for comparing him to the Duke of Cumberland. That his Royal Highness may be the man after Lord Mansfield's own heart, seems much more probable; and you, I think, Mr. Zeno, might succeed tolerably well in the character of Nathan. The evil deity, the prophet, and the royal sinner, would be very proper company for one another.
You say, Lord Mansfield did not make the commissioners of the Great Seal, and that he only advised the King to appoint. I believe Junius meant no more; and the distinction is hardly worth disputing.—
You say he did not deliver an opinion upon Lord Chatham's appeal.—I affirm that he did, directly in favour of the appeal. This is a point of fact to be determined by evidence only. But you assign no reason for his supposed silence, nor for his desiring a conference with the judges the day before. Was not all Westminster-hall convinced that he did it with a view to puzzle them with some perplexing question, and in hopes of bringing some of them over to him? You say the commissioners were very capable of framing a decree for themselves. By the fact, it only appears, that they were capable of framing an illegal one; which, I apprehend, is not much to the credit either of their learning or integrity.
We are both agreed, that Lord Mansfield has incessantly laboured to introduce new modes of proceeding in the court where he presides; but you attribute it to an honest zeal in behalf of innocence, oppressed by quibble and chicane. I say, that he has introduced new law too, and removed the landmarks established by former decisions. I say, that his view is, to change a court of common law into a court of equity, and to bring every thing within the arbitrium of a prætorian court. The public must determine between us. But now for his merits. First, then, the establishment of the judges in their places for life, (which you tell us was advised by Lord Mansfield) was a concession merely to catch the people. It bore the appearance of a royal bounty, but had nothing real in it. The judges were already for life, excepting in the case of a demise. Your boasted bill only provides, that it shall not be in the power of the King's successor to remove them. At the best, therefore, it is only a legacy, not a gift, on the part of his present Majesty, since, for himself, he gives up nothing.—That he did oppose Lord Camden and Lord Northington upon the proclamation against the exportation of corn, is most true, and with great ability. With his talents, and taking the right side of so clear a question, it was impossible to speak ill.—His motives are not so easily penetrated. They who are acquainted with the state of politics at that period, will judge of them somewhat differently from Zeno. Of the popular bills, which you say he supported in the house of lords, the most material is unquestionably that of Mr. Grenville for deciding contested elections. But I should be glad to know upon what possible pretence, any Member of the Upper House could oppose such a bill, after it had passed the house of commons?—I do not pretend to know what share he had in prompting the other two bills; but I am ready to give him all the credit you desire. Still you will find, that a whole life of deliberate iniquity is ill atoned for by doing now and then a laudable action, upon a mixed or doubtful principle.—If it be unworthy of him, thus ungratefully treated, to labour any longer for the public, in God's name, let him retire. His brother's patron (whose health he once was anxious for) is dead; but the son of that unfortunate prince survives, and, I dare say, will be ready to receive him.
PHILO JUNIUS.