the cabinet puts forth the countenance of parliament, and marches against the constitution under the shelter of the hallowed frailty. What has an Englishman now to hope for? He must turn from King. Lords, and Commons, and look up to God and himself if he means to be free. He sees the representation of the kingdom taken from the people, the law dispensed with, the obligation of a contract erased, the liberty of the subject invaded, the freedom of the press violated, by the House of Commons. By the House of Lords he sees liberty, property, and the freedom of the press assaulted likewise, and the decision* of justice in its last resort a question of influence, not of law. He beholds three supreme powers instead of one, and the constitution a separate plunder to each; or rather he beholds one estate possessed of the power by the profligacy of the rest. If the cabinet should prevail, we shall not only be enslaved, but disgraced. The man and means that enslave s would be an additional dishonour. An Englishman, and Enemy to the Cabinet therefore. LETTER XCIII+. For the Public Advertiser. March 29, 1771. TO THE LORD MAYOR, MR. ALDERMAN OLIVER, AND MP MY LORD AND Gentlemen, As your conduct in regard to the business of the printers is become the universal subject of conversation, I will take the liberty of communicating my sentiments to you in this public In the case of Lord Pomfret and Smith. + There is some doubt as to the genuineness of this as well as of the ensuing letter; but as they are illustrative of one of Junius's most important letters, No. 44, vol. i. p. 328, as they are excellently composed, and the subject has been in some measure recently agitated, the editor could not consent to suppress them. The quotation from Hawkins, inserted in the secono letter, will be found adopted by Junius as one of his notes to the letter jus raferred to. manner. In con The business first opened with a printer's being taken up by virtue of the King's proclamation, and carried before Mr. Alderman Wilkes (who was sitting as a justice of the peace for the city of London) in order to his being committed by virtue of that proclamation only. Mr. Wilkes dis charged the printer, and upon his complaint, verified upon oath, bound over the apprehender to appear at the quartersessions, and the printer to prosecute for an assault. sidering the legality of this proceeding I will totally lay out of the question the privileges and franchises of the city of London, as I think this part of the case does not require any assistance from them, though they may be very material in the subsequent proceedings as to the messenger of the House of Commons. The first consideration then will be, what was the force and effect of the proclamation? In Judge Dalison's Reports, which is a book of authority, p. 20, 2 and 3 Phil. and Mary, it is said, "Note, It was agreed for law, that the king may make a proclamation to his subjects quo ad terrorem populi, to put them in fear of his displeasure, but not upon other pain certain, as to forfeit their lands or goods, or to make fine, or to suffer imprisonment or other pain: for no proclamation shall make a law which was not before, but may confirm and ratify an ancient law, but not change it, or make a new one; yet diverse precedents were shewn out of the exchequer to the contrary, but the justices would not have any regard to them, quod nota." And in the 12th part of Sir Edward Coke's Report, which is a book of the highest authority, p. 74, in the 8 Ja. 1st (when prerogative ran high), you will find a case, called the case of proclamations, which, amongst other things, contains these resolutions: That the King by his proclamation or otherways cannot change any part of the common law, or statute law, or the customs of the realm." That the King cannot create any offence by his prohibition or proclamation which was not an offence before;" and that "that which cannot be punished without proclamation cannot be punished with it." That the King may by his proclamation admonish his subjects to keep the laws, but cannot make a thing unlawful which the law permits And this, as the learned reporter observes, was well proved by the ancient and continual forms of indictments, for all indictments conclude contra legem et consuetudinem Anglia, or con**a 66 Leges et statula, &c.—" but never was seen an indictment tc conclude contra regiam proclamationem." Vide Here The learned reporter puts several instances of illegal proclamations, and amongst the rest this: An act was made by which foreigners were licensed to merchandise within London. Hen. IV. by proclamation prohibited the execution of it, and that it should be in suspense usque ad proximum parliamen tum, which, says the learned reporter, was against law. Dors. Claus. 8 Hen. IV.-Proclamation in London. give me leave to make one observation, that any proclamation which infringes the ancient customs, privileges, and franchises of the city of London, infringes the statute laws of this land; for the customs, privileges, and franchises of the city of London are confirmed and established by various acts of parlia ment. The case still goes on, and says that the law of England is divided into three parts, common law, statute law, and custom; "but the King's proclamation is none of them." And the learned reporter concludes in saying: "after this resolution no proclamation imposing fine and imprisonment was made;" and I have no doubt but the learned reporter thought that after this solemn decision no such proclamations would ever be issued in any future times; but alas! he did not see the jurisprudence of the reign of George the Third. I think I may call this case a solemn determination, because it was settled upon great deliberation by the two Chief Justices, the Chief Baron, and Baron Altham, upon conference betwixt the Lords of the Privy Council and them. When the printer was brought before Mr. Wilkes, Mr. Wilkes acted as a magistrate, and in a judicial capacity; and had he imprisoned the printer, or any other subject of this kingdom upon less evidence than the law required, he would have been highly criminal. And in a case where the liberty of the subject was concerned, it required the best and the highest evidence to justify the deprivation of that liberty. The law and rules of evidence are part of the common law of the land," and the King cannot "by his proclamation alter or suspend any of those laws or rules;" for that would be to alter the law of the land, and be in direct opposition to those respectable authorities I have cited. It is a law and a rule of evidence, that no judge or justice can judicially take notice 66 A A of a private act of parliament, much less can they judicially take notice of a private order of the House of Commons relative to two individuals only. Nay, if you add to it the sanction of the royal proclamation, and consider it as the act of the King and Commcns, does it mend the matter? Does it give it greater authority in point of legal evidence than an act of parliament? I should be glad to be informed if the constitution has given such an arbitrary power of imprisonment to the House of Commons as they claim, why it has not given them proper officers to enforce it without resorting to the King? Why has not the serjeant-at-arms a power to raise the posse comitatus? Why are not people punishable for not giving him assistance? And yet I dare say there is not a law book that has attributed this power to him, nor did we ever hear of a person punished for refusing him assistance, which in my apprehension is a strong argument against the power claimed by the House of Commons against the printers. I should be glad, too, to be informed what law, usage, or custom, has made the King the minister to authenticate the orders of the House of Commons; when it first began, and where it is to be found. By what writ or authority does the order come before the King to be authenticated, and where is it to be found? I never yet saw any statute, case, or even dictum to authorise this. And if the law has not intrusted the King with the power of authenticating the orders of the House of Commons by his royal proclamation, every judge and justice in this kingdom will do right in paying no regard to them under such a sanction. I have known trials where it has been necessary to give in evidence the proceedings and determinations of the House of Commons, which have always been done by proving them upon oath to be true copies of the journals by the witness who examined them. And though Mr. Wilkes might be convinced in his mind that there was such an order as stated in the proclamation, he could not in his judicial capacity take notice of it, as it was not authenticated according to law. This doctrine has been illustrated in a modern instance. Did not the present Chief Justice of the King's Bench and his brethren refuse to take judicial notice of Mr. Wilkes when he surrendered himself in order to the reversal of his outlawry, because he did not come properly authenticated before them, although I fancy they had very little doubt in their minds as to the identity of his person? So upon the same principles Mr. Wilkes was well warranted in rejecting the proclamation; and that being out of the way, I think it will then be so clear that Mr. Wilkes would have done right in committing the assailant upor. the printer, if he had not given bail, as not to admit of an argument. I have two observations to make upon the late attempt of enforcing the order of the House of Commons by the royal proclamation. First, that the calling in the aid of the King upon that occasion was weakening the authority and dignity of the House, and tends to make the execution of the orders of that House dependent upon the pleasure of the King; and in the next place such an interposition on the part of the King carries this appearance with it to the public, that it is not the independence or the just liberties and privileges of the Commons of England that are thus anxiously sought to be preserved, but the gratification of the spleen and resentment (to say no worse of it) of the administration. I shall conclude this letter by saying, and thinking till I am better informed, that the late proclamation was an unwarrantable exertion of power, tending to mislead all judges and justices throughout England, and to put them upon imprisoning an English subject contrary to law, and the rules of evidence, which make part of the law of this kingdom; and therefore I, for one, applaud the conduct of Mr. Wilkes in this instance In another letter I shall deliver my sentiments as to the proceedings of your Lordship, Mr. Alderman Oliver, and Mr. Alderman Wilkes, when the messenger of the House (f Commons was brought before you. I have forborne to take this business up on the same grounds that Mr. Morris has done, as it would only be a repetition of what he has very judiciously before transmitted to the public. It is sufficient *Robert Morris, Esq., was a member of, and secretary to, the Bill of Rights Society. At their meeting in order to discuss the question of the arrest of the printers, he thus addressed the chairman; and it is to this speech the writer of the above letter refers : "Mr. Chairman,The proclamation issued for apprehending the printers is, on all hands, I think, allowed to be illegal. I do not believe that there is in the whole kingdom a lawyer's clerk who does not know it to be equally repugnant to the spirit and letter of the law and the constitution. The law, though not so well known, is as clear against commitments by the House of Commons. They have nothing to support their pretensi: ns but their own |