Letters of Junius/Letter XLI

by Junius

LETTER XLI.

TO THE RIGHT HONOURABLE LORD MANSFIELD.

14. November 1770.

MY LORD,

THE appearance of this letter will attract the curiosity of the public, and command even your Lordship's attention. I am considerably in your debt, and shall endeavour, once for all, to balance the account. Accept of this address, my Lord, as a prologue to more important scenes, in which you will probably be called upon to act or suffer.

You will not question my veracity, when I assure you, that it has not been owing to any particular respect for your person that I have abstained from you so long. Besides the distress distress and danger with which the press is threatened, when your Lordship is party, and the party is to be judge, I confess I have been deterred by the difficulty of the task. Our language has no term of reproach, the mind has no idea of detestation, which has not already been happily applied to you, and exhausted.—Ample justice has been done, by abler pens than mine, to the separate merits of your life and character. Let it be my humble office to collect the scattered sweets till their united virtue tortures the sense.

Permit me to begin with paying a just tribute to Scotch sincerity wherever I find it. I own I am not apt to confide in the professions of gentlemen of that country; and, when they smile, I feel an involuntary emotion to guard myself against mischief. With this general opinion of an ancient nation, I always thought it much to your Lordship's honour, that, in your earlier days, you were but little infected with the prudence of your country. You had some original attachments, which you took every proper opportunity to acknowledge. The liberal spirit of youth prevailed over your native discretion. Your zeal in the cause of an unhappy Prince was expressed with the sincerity of wine, and some of the solemnities of religion.^[1]. This I conceive, is the most amiable point of view, in which your character has appeared. Like an honest man, you took that part in politics, which might have been expected from your birth, education, country and connexions. There was something generous in your attachment to the banished house of Stuart. We lament the mistakes of a good man, and do not begin to detest him until he affects to renounce his principles. Why did you not adhere to that loyalty you once professed? Why did you not follow the example of your worthy brother?^[2] With him, you might have shared in the honour of the pretender's confidence—with him, you might have preserved the integrity of your character, and England, I think, might have spared you without regret. Your friends will say, perhaps, that altho' you deserted the fortune of your liege Lord, you have adhered firmly to the principles which drove his father from the throne;—that without openly supporting the person, you have done essential service to the cause; and consoled yourself for the loss of a favourite family, by reviving and establishing the maxims of their government. This is the way, in which a Scotchman's understanding corrects the error of his heart.—My Lord, I acknowledge the truth of the defence, and can trace it through all your conduct. I see through your whole life, one uniform plan to enlarge the power of the crown, at the expense of the liberty of the subject. To this object your thoughts, words and actions have been constantly directed. In contempt or ignorance of the common law of England, you have made it your study to introduce into the court, where you preside, maxims of jurisprudence unknown to Englishmen. The Roman code, the law of nations, and the opinion of foreign civilians, are your perpetual theme;—but who ever heard you mention Magna Charta, or the Bill of Rights with approbation or respect? By such treacherous arts, the noble simplicity and free spirit of our Saxon laws were first corrupted. The Norman conquest was not compleat, until Norman lawyers had introduced their laws, and reduced slavery to a system.—This one leading principle directs your interpretation of the laws, and accounts for your treatment of juries. It is not in political questions only (for there the courtier might be forgiven,) but let the cause be what it may, your understanding is equally on the rack, either to contract the power of the jury, or to mislead their judgment. For the truth of this assertion, I appeal to the doctrine you delivered in Lord Grosvenor's cause. An action for criminal conversation being brought by a peer against a prince of the blood, you were daring enough to tell the jury that, in fixing the damages, they were to pay no regard to the quality or fortune of the parties;—that it was a trial between A. and B.—that they were to consider the offence in a moral light only, and give no greater damages to a peer of the realm, than to the meanest mechanic. I shall not attempt to refute a doctrine, which, if it was meant for law, carries falsehood and absurdity upon the face of it; but, if it was meant for a declaration of your political creed, is clear and consistent. Under an arbitrary government, all ranks and distinctions are confounded. The honour of a nobleman is no more considered than the reputation of a peasant, for, with different liveries, they are equally slaves.

Even in matters of private property, we see the same byass and inclination to depart from the decisions of your predecessors, which you certainly ought to receive as evidence of the common law. Instead of those certain, positive rules, by which the judgment of a court of law should invariably be determined, you have fondly introduced your own unsettled notions of equity and substantial justice. Decisions given upon such principles do not alarm the public so much as they ought, because the consequence and tendency of each particular instance, is not observed or regarded. In the mean time, the practice gains ground; the court of King's Bench becomes a court of equity, and the judge, instead of consulting strictly the law of the land, refers only to the wisdom of the court, and to the purity of his own conscience. The name of Mr. Justice Yates, will naturally revive in your mind some of those emotions of fear and detestation, with which you always beheld him. That great lawyer, that honest man, saw your whole conduct in the light that I do. After years of ineffectual resistance to the pernicious principles introduced by your Lordship, and uniformly supported by your humble friends upon the bench, he determined, to quit a court, whose proceedings and decisions he could neither assent to with honour, nor oppose with success.

The injustice done to an individual^[3] is sometimes of service to the public. Facts are apt to alarm us more than the most dangerous principles. The sufferings and firmness of a printer have roused the public attention. You knew and felt that your conduct would not bear a parliamentary inquiry, and you hoped to escape it by the meanest, the basest sacrifice of dignity and consistency, that ever was made by a great magistrate. Where was your firmness, where was that vindictive spirit, of which we have seen so many examples, when a man, so inconsiderable as Bingley, could force you to confess, in the face of this country, that, for two years together, you had illegally deprived an English subject of his liberty, and that he had triumphed over you at last? Yet, I own, my Lord, that your's is not an uncommon character. Women, and men like women, are timid, vindictive, and irresolute. Their passions counteract each other, and make the same creature at one moment hateful, at another contemptible. I fancy, my Lord, some time will elapse before you venture to commit another Englishman for refusing to answer interrogatories^[4].

The doctrine you have constantly delivered, in cases of libel, is another powerful evidence of a settled plan to contract the legal power of juries, and to draw questions, inseparable from fact, within the arbitrium of the court. Here, my Lord, you have fortune on your side. When you invade the province of the jury, in matter of libel, you, in effect, attack the liberty of the press, and with a single stroke, wound two of your greatest enemies.—In some instances you have succeeded, because jurymen are too often ignorant of their own rights, and too apt to be awed by the authority of a chief justice. In other criminal prosecutions, the malice of the design is confessedly as much the subject of consideration to a jury, as the certainty of the fact. If a different doctrine prevails in the case of libels, why should it not extend to all criminal cases?—Why not to capital offences? I see no reason (and I dare say you will agree with me that there is no good one) why the life of the subject should be better protected against you, than his liberty or property. Why should you enjoy the full power of pillory, fine, and imprisonment, and not be indulged with hanging or transportation? With your Lordship's fertile genius and merciful disposition, I can conceive such an exercise of the power you have, as could hardly be aggravated by that which you have not.

But, my Lord, since you have laboured (and not unsuccessfully) to destroy the substance of the trial, why should you suffer the form of the verdict to remain? Why force twelve honest men, in palpable violation of their oaths, to pronounce their fellow-subject a guilty man, when, almost at the same moment, you forbid their inquiring into the only circumstance which in the eye of law and reason, constitutes guilt—the malignity or innocence of his intentions?—But I understand your Lordship.—If you could succeed in making the trial by jury useless and ridiculous, you might then with greater safety introduce a bill into parliament for enlarging the jurisdiction of the court, and extending your favourite trial by interrogatories to every question, in which the life or liberty of an Englishman is concerned.^[5]

Your charge to the jury, in the prosecution against Almon and Woodfall, contradicts the highest legal authorities, as well as the plainest dictates of reason. In Miller's case, and still more expressly in that of Baldwin, you have proceeded a step farther, and grossly contradicted yourself.—You may know perhaps, though I do not mean to insult you by an appeal to your experience, that the language of truth is uniform and consistent. To depart from it safely, requires memory and discretion. In the last two trials, your charge to the jury began, as usual, with assuring them that they had nothing to do with the law,—that they were to find the bare fact, and not concern themselves about the legal inferences drawn from it, or the degree of the defendant's guilt.—Thus far you were consistent with your former practice.—But how will you account for the conclusion? You told the jury, that "if, after all, they would take upon themselves to determine the law, they might do it, but they must be very sure that they determined according to law; for it touched their consciences, and they acted at their peril."—If I understand your first proposition, you meant to affirm, that the jury were not competent judges of the law in the criminal case of a libel; that it did not fall within their jurisdiction; and that with respect to them, the malice or innocence of the defendants intentions would be a question coram non judice.—But the second proposition clears away your own difficulties, and restores the jury to all their judicial capacities^[6]. You make the competence of the court to depend upon the legality of the decision. In the first instance you deny the power absolutely; in the second, you admit the power, provided it be legally exercised. Now, my Lord, without pretending to reconcile the distinctions of Westminster-hall with the simple information of common sense, or the integrity of fair argument, I shall be understood by your Lordship, when I assert that, if a jury or any other court of judicature (for jurors are judges) have no right to entertain a cause, or question of law, it signifies nothing whether their decision be or be not according to law. Their decision is, in itself, a mere nullity: the parties are not bound to submit to it; and, if the jury run any risk of punishment, it is not for pronouncing a corrupt or illegal verdict, but for the illegality of meddling with a point, on which they have no legal authority to decide^[7].

I cannot quit this subject without reminding your Lordship of the name of Mr. Benson. Without offering any legal objection, you ordered a special juryman to be set aside in a cause, where the King was prosecutor. The novelty of the fact required explanation. Will you condescend to tell the world by what law or custom you were authorised to make a peremptory challenge of a juryman? The parties indeed have this power, and perhaps your Lordship, having accustomed yourself to unite the characters of judge and party, may claim it in virtue of the new capacity you have assumed, and profit by your own wrong. The time, within which you might have been punished for this daring attempt to pack a jury, is, I fear, elapsed; but no length of time shall erase the record of it.

The mischiefs you have done this country are not confined to your interpretation of the laws. You are a minister, my lord, and, as such, have long been consulted. Let us candidly examine what use you have made of your ministerial influence. I will not descend to little matters, but come at once to those important points, on which your resolution was waited for, on which the expectation of your opinion kept a great part of the nation in suspense.—A constitutional question arises upon a declaration of the law of parliament, by which the freedom of election, and the birthright of the subject were supposed to have been invaded.—The King's servants are accused of violating the constitution.—The nation is in a ferment.—The ablest men of all parties engage in the question, and exert their utmost abilities in the discussion of it.—What part has the honest Lord Mansfield acted? As an eminent judge of the law, his opinion would have been respected.—As a peer, he had a right to demand an audience of his sovereign, and inform him that his ministers were pursuing unconstitutional measures.—Upon other occasions, my Lord, you have no difficulty in finding your way into the closet. The pretended neutrality of belonging to no party, will not save your reputation. In questions merely political, an honest man may stand neuter. But the laws and constitution are the general property of the subject: not to defend, is to relinquish;—and who is there so senseless as to renounce his share in a common benefit, unless he hopes to profit by a new division of the spoil. As a lord of parliament, you were repeatedly called upon to condemn or defend the new law declared by the house of commons. You affected to have scruples, and every expedient was attempted to remove them.—The question was proposed and urged to you in a thousand different shapes.—Your prudence still supplied you with evasion;— your resolution was invincible. For my own part, I am not anxious to penetrate this solemn secret. I care not to whose wisdom it is entrusted, nor how soon you carry it with you to your grave^[8]. You have betrayed your opinion by the very care you have taken to conceal it. It is not from Lord Mansfield that we expect any reserve in declaring his real sentiments in favour of government, or in opposition to the people; nor is it difficult to account for the motions of a timid, dishonest heart, which neither has virtue enough to acknowledge, truth, nor courage to contradict it.—Yet you continue to support an administration which you know is universally odious, and which, on some occasions, you yourself speak of with contempt. You would fain be thought to take no share in government, while, in reality, you are the main spring of the machine.—Here, too, we trace the little, prudential policy of a Scotchman.—Instead of acting that open, generous part, which becomes your rank and station, you meanly skulk into the closet, and give your Sovereign such advice, as you have not spirit to avow or defend. You secretly ingross the power, while you decline the title of minister, and though you dare not be Chancellor, you know how to secure the emoluments of the office.—Are the seals to be for ever in commission, that you may enjoy five thousand pounds a year?—I beg pardon, my Lord;—your fears have interposed at last, and forced you to resign.—The odium of continuing speaker of the house of lords, upon such terms, was too formidable to be resisted. What a multitude of bad passions are forced to submit to a constitutional infirmity! But though you have relinquished the salary, you still assume the rights of a minister.—Your conduct, it seems, must be defended in parliament. For what other purpose is your wretched friend, that miserable serjeant, posted to the house of commons? Is it in the abilities of Mr. Leigh to defend the great Lord Mansfield?—Or is he only the punch of the puppet-show, to speak as he is prompted by the chief juggler behind the curtain?^[9]

In public affairs, my Lord, cunning, let it be ever so well wrought, will not conduct a man honourably through life. Like bad money, it may be current for a time, but it will soon be cried down. It cannot consist with a liberal spirit, though it be sometimes united with extraordinary qualifications. When I acknowledge your abilities, you may believe I am sincere. I feel for human nature, when I see a man, to gifted as you are, descend to such vile practice.—Yet do not suffer your vanity to console you too soon. Believe me, my good Lord, you are not admired in the same degree, in which you are detested. It is only the partiality of your friends, that balances the defects of your heart with the superiority of your understanding. No learned man, even among your own tribe, thinks you qualified to preside in a court of common law: yet it is confessed that, under Justinian, you might have made an incomparable Prætor.—It is remarkable enough, but I hope not ominous, that the laws you understand best, and the judges you affect to admire most, flourished in the decline of a great empire, and are supposed to have contributed to its fall.

Here, my Lord, it may be proper for us to pause together.—It is not for my own sake that I wish you to consider the delicacy of your situation. Beware how you indulge the first emotions of your resentment. This paper is delivered to the world, and cannot be recalled. The persecution of an innocent printer cannot alter facts, nor refute arguments.—Do not furnish me with farther materials against yourself.—An honest man, like the true religion, appeals to the understanding, or modestly confides in the internal evidence of his conscience. The impostor employs force instead of argument, imposes silence where he cannot convince, and propagates his character by the sword.

JUNIUS.

1. This man was always a rank Jacobite. Lord Ravensworth produced the most satisfactory Evidence of his having frequently drank the Pretender's health on his knees.
2. Confidential Secretary to the late Pretender. This circumstance confirmed the friendship between the brothers.
3. The oppression of an obscure individual gave birth to the famous Habeas Corpus Act of 31 Car. II. which is frequently considered as another Magna Charta of this kingdom.

   Blackstone iii. 135.

4. Bingley was committed for contempt, in not submitting to be examined: He lay in prison two years until the Crown thought the matter might occasion some serious complaint, and therefore he was let out, in the same contumelious state he had been put in, with all his sins about him, unanointed and unanealed.—There was much coquetry between the Court and the Attorney General, about who should undergo the ridicule of letting him escape.—Vide another Letter to Almon, p. 189.
5.  The philosophical poet, doth notably describe the damnable and damned proceedings of the Judge of Hell,

   "Gnossius haec Rhadamanthus habet durissima regna,

   "Castigatque, auditque dolos, subigitque sateri."

   First he punisheth, and then he heareth: and lastly compelleth to confess, and makes and mars laws at his pleasure; like as the centurion, in the holy history did to St. Paul; for the text faith,

   "Centurio apprehendi Paulum jussit, et se catenis ligari, et tunc interrogabat quis fuisset, et quid fecisset;" but good Judges and Justices abhor those courses. Coke 2. Inst. 55.

6. Directly the reverse of the doctrine he constantly maintained in the house of lords and elsewhere, upon the decision of the Middlesex election. He invariably asserted that the decision must be legal, because the court was competent; and never could be prevailed on to enter farther into the question.
7. These iniquitous prosecutions cost the best of princes six thousand pounds, and ended in the total defeat and disgrace of the prosecutors. In the course of one of them Judge Aston had the unparallelled impudence to tell Mr. Morris (a gentleman of unquestionable honour and integrity, and who was then giving his evidence on oath, that he should pay very little regard to any affidavit he should make.
8. He said in the house of lords, that he believed he should carry his opinion with him to the grave. It was afterwards reported that he had entrusted it, in special confidence, to the ingenious Duke of Cumberland.
9. This paragraph gagged poor Leigh. I am really concerned for the man, and wish it were possible to open his mouth.—He is a very pretty orator.