The Age of George III

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The Letters of Junius

Letter LX: To the Printer of the Public Advertiser; 15 October 1771.

[245] SIR

I AM convinced that Junius is incapable of wilfully misrepresenting 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 correspondent Scævola, who seems to make a distinction without a difference. Lord Camden it is agreed, 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 suspend the operation of an act of the legislature; and he founded his doctrine upon a supposed necessity, of which the king, in the first instance, must be judge. The Lords and commons cannot be judges of it in the first instance, for they do not exist. Thus far Junius.

But, says Scævola, Lord Camden made parliament, and not the king, judges of the necessity. That parliament may review the acts of ministers, is unquestionable; but there is a wide difference between saying, that the crown has a legal power and that the ministers may act at their peril. When we say that an act is illegal, we mean that it is forbidden by a joint resolution of the three estates. How a subsequent resolution of two of those branches can make it legal, ab initio, will require explanation. If it could, the consequence would be truly dreadful, especially in these times. There is no act of arbitrary power which the king might not attribute to necessity, and for which [246] he would not be secure of obtaining the approbation of his prostituted Lords and commons. If Lord Camden admits, that the subsequent sanction of parliament was necessary to make the proclamation legal, why did he so obstinately oppose the bill, which was soon after brought in, for indemnifying all those persons who had acted under it? If that bill had not been passed, I am ready to maintain, in direct contradiction to Lord Camden's doctrine, (taken as Scævola states it) that a litigious exporter of corn, who had suffered in his property, in consequence of the proclamation, might have laid his action against the custom house officers, and would infallibly have recovered damages. No jury could refuse them: and if I, who am by no means litigious, had been so injured, I would assuredly have instituted a suit in Westminster-hall, on purpose to try the question of right. I would have done it upon a principle of defiance of the pretended power of either or both houses to make declarations inconsistent with law; and I have no doubt that, with an act of parliament on my side, I should have been too strong for them all. This is the way in which an Englishman should speak and act, and not suffer dangerous precedents to be established, because the circumstances 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. Instead of asserting, that the proclamation was legal, he should have said, "My Lords, I know the proclamation was illegal; but I advised it because it was indispensably necessary to save the kingdom from famine: and I submit myself to the justice and mercy of my country."

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


P. S. If Scævola should think proper to write again upon this subject, I beg of him to give me a direct answer; that is, a plain affirmative or negative, to the following questions: — In the interval between the publishing such a proclamation (or order of council) as that in question, and its receiving the sanction of the two houses, of what nature [247] 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 consequence of his answer either way. If it be legal, it wants no farther sanction; if it be illegal, the subject is not bound to obey it, consequently it is an useless, nugatory act, even as to its declared purpose. Before the meeting of parliament, the whole mischief which it means to prevent will have been completed.

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