Letters of Junius/Letter LXIV
LETTER LXIV.
2. November, 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.
1°. 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."
2°. 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 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[1], 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 includes 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. 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, nor 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.
3°. It has been urged, as a reproach to Junius, 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 Junius express himself?—It is no excuse for Lord Mansfield to say, that he happened to be absent when these bills passed the house of lords. It was his duty to be present. Such bills could never have passed the house of commons without his knowledge. But we very well know by what rule he regulates his attendance. When that order was made in the house of lords, in the case of Lord Pomfret, at which every Englishman shudders, my honest Lord Mansfield found himself, by mere accident, in the court of king's bench.—Otherwise he would have done wonders in defence of law and property! The pitiful evasion is adapted to the character. But Junius will never justify himself by the example of this bad man. The distinction between doing wrong, and avoiding to do right, belongs to Lord Mansfield. Junius disclaims it.
- ↑ I confine myself strictly to seamen;—if any others are pressed, it is a gross abuse, which the magistrate can and should correct.