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55

INFLUENCE OF ELOQUENCE ON ENGLISH FREEDOM.

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No. V.

LORD MANSFIELD DESCRIBED.- HIS JUDGMENT ON RELIGIOUS FREEDOM IN
THE CASE OF MR. EVANS. LORD CAMDEN DESCRIBED.
ON GENERAL WARRANTS.

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HIS JUDGMENT BURKE. HIS STYLE DESCRIBED. HIS ON AMERICAN TAXATION AND ON ECONOMICAL REFORM.

LORD CHATHAM's formidable rival and opponent, although afraid and unable fully to confront him, was the celebrated Lord Chief Justice, the Earl of Mansfield. His name is venerated by the legal profession, and is familiar to most men, from the bitter, but often unfounded, sarcasms of Junius, and the elegant praises of Pope. His dignified and elegant eloquence, exactly adapted to magistracy, and his great legal talents, admirably qualified him for the Bench; while his parliamentary powers, and graceful style and bearing, gave him a commanding position among his Peers. His judicial life was an æra in the history of English Jurisprudence. At the period of his elevation to the Bench, this country commenced that wonderful career of commercial and manufacturing activity and enterprise, which is yet without a parallel in the annals of mankind. The vast increase of personal property, -the exigencies of a rapidly expanding Commerce,-required a new and solid system of Jurisprudence, to replace the old, which was intended and adapted for the administration of real property, and was strongly animated by that spirit of feudalism out of which it arose. For the task of constructing that altered system, no man could be better qualified than Lord Mansfield. Unlike most of his predecessors and some of his successors, his mind was not instructed alone in the technicalities of law, but was enlarged by a wide acquaintance with Literature and Moral Philosophy. He had pursued the course which we have before observed * was so desired by Lord Bolingbroke for our lawyers; "had climbed up the vantage-ground of Science, had dived into the recesses of the human heart, and had become acquainted with the moral world, in order to discover the abstract reason of all laws." He was the first Judge since the time of Lord Bacon, who, like the illustrious Chancellor, united to the technical knowledge of his profession, a deep insight into human affairs. Nor had he only indulged in this wide and philosophical study; but had minutely investigated the principles of the Civil Law, which, although not binding as authority in our Jurisprudence, yet, as containing the best code of the rational principles of law extant in any language, was attentively studied by Lord Mansfield, and served him as a storehouse of rules and theories for the new cases continually arising before him. ideas," said Burke, "went to the growing melioration of the law, by making its liberality keep pace with the demands of justice, and the actual concerns of the world: not restricting the infinitely diversified occasions of men, and the rules of natural justice, within artificial circumscriptions, but conforming our jurisprudence to the growth of our commerce and of our empire. This enlargement of our concerns he appears, in the year 1744, almost to have foreseen, and he lived to behold it." He not only beheld it, but, thus instructed and animated, he laid the foundations of our present Commercial Legal System. His eloquence on the Bench, as in the Senate, was dis

See First Number of this Series of Articles.

"His

+ Burke's Report on Warren Hastings' Trial- -a most masterly work. See Childs's ed. vol. ii. p. 620.

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tinguished by its elegant perspicuity, which enabled him, as Grattan observed, "to conduct the understanding through the painful subtlety of argumentation," and by a dignified tone which well harmonised with his august functions as Lord Chief Justice of the King's Bench, and Speaker of the House of Peers. A most striking specimen of it was seen on the memorable occasion of the reversal of Wilkes's outlawry, when his lordship scornfully alluded to the threats with which he had been menaced from various quarters in the event of a decision unfavourable to the defendant. We do not quote it, because our object is to refer only to such efforts of eloquence as have contributed to the advance of public liberty. Nor shall we engage in the long and here unprofitable task of following Lord Mansfield through his active public career. It was, unfortunately, in the main, in continued opposition to popular rights. He was the chief opponent of Lord Chatham, the friend and confidential adviser of the King. His tastes and feelings and prejudices were thoroughly antipopular. Why, then, it may be asked, do we direct attention to his memory and character? why contribute even the very little that may in us lie, to withdraw from the obscurity which is the just punishment and the certain eventual destiny of all who have sought only their own individual aggrandisement, and not the improvement of mankind, the name of one who, in his own day, and with all the "feebleness of his strength,' endeavoured to retard the advance of political freedom? We reply, because the name of Lord Mansfield is most honourably identified with the great principle of religious liberty — of freedom of conscience; in the advocacy of which his exertions were constant and consistent, and to which he may indeed be justly called a martyr-" the lawless herd, with fury blind, have done him cruel wrong." ""* Here he was before his age. As Judge or Senator, in whatever form the question presented itself, he was unswerving in his devotion to the grand truth, that "conscience is not controllable by human laws, nor amenable to human tribunals." However much we may be disposed to feel disgust at the time-serving and truckling of his political course, let us honour his memory for this noble devotion in that day, be it remembered, equally opposed to the fanatic prejudices of the bigoted people and the equally bigoted King. It caused the destruction of his house and library, and nearly cost him his life, in the disgraceful riots of 1780, as it had led him to adopt the generous course of supporting the claims of the Catholics in the House of Lords. The most enduring and eloquent form in which his views on religious freedom were expressed, was on the delivery of his opinion in the House in the case of Mr. Allen Evans, against whom an action had been brought by the Corporation of London, for a fine imposed by a by-law of the city on every person neglecting to serve as sheriff'; an office to which he had been elected, but which he refused to serve, because it was a necessary preliminary, according to the Corporation Act of Car. II. then in force, that he should take the sacrament according to the rites of the Church of England. The Corporation levied 15,000l. in this manner on Dissenters, which was applied to the building of the Mansion House. Mr. Evans brought the case to the House of Lords on appeal. The House, on the motion of Lord Mansfield, submitted the question to the Judges, and after they had delivered their opinion (all except that of Mr. Baron Perrott favourable to the defendant, Mr. Evans), Lord Mansfield addressed the House as a Peer. He said :

"It is now no crime for a man who is within the description of the Toleration Act, to say he is a Dissenter; nor is it any crime for him not to take the sacrament according to the

Cowper-on the burning of his library by the mob in 1780.

rites of the Church of England; nay, the crime is, if he does it contrary to the dictates of his

conscience.

"The eternal principles of natural religion are part of the common law,-the essential principles of revealed religion are part of the common law; so that any person reviling, subverting, or ridiculing them, may be prosecuted at common law. But it cannot be shown from the principles of natural or revealed religion, that, independent of positive law, temporal punishments ought to be inflicted for mere opinions with respect to particular modes of worship. Persecution for a sincere though erroneous conscience is not to be deduced from reason or the fitness of things: it can only stand upon positive law. Conscience is not controllable by human laws, nor amenable to human tribunals. Persecution, or attempts to force conscience, will never produce conviction, and are only calculated to make hypocrites or martyrs. What bloodshed and confusion have been occasioned from the reign of Henry IV., when the first penal statutes were enacted, down to the Revolution in this kingdom, by laws made to force conscience! There is nothing certainly more unreasonable, more inconsistent with the rights of human nature, more contrary to the spirit and precepts of the Christian religion, more iniquitous and unjust, more impolitic, than persecution. It is against natural religion, revealed religion, and sound policy. Sad experience and a large mind taught that great man, the President de Thou, this doctrine. Let any man read the many admirable things, which, though a papist, he hath dared to advance upon this subject in the Dedication of his History to Henry IV. of France, which I never read without rapture; and he will be fully convinced, not only how cruel, but how impolitic, it is, to persecute for religious opinions."

Mr. Evans was successful; - the House of Lords, thus instructed by Lord Mansfield, declaring that he was not subject to the fine, as he declined serving for a reason which, since the Toleration Act, was a legal and sufficient cause of excuse. Honoured be the memory of Lord Mansfield for this courageous avowal of such noble principles !

A third Peer, the cotemporary of Mansfield and Chatham, the constant opponent of the one, the firm friend of the other, next demands our attention,― the excellent Lord Camden, whose name will be dear to Englishmen so long as incorruptible integrity and an inextinguishable attachment to the principles of constitutional liberty are reverenced among them. He was successively Lord Chief Justice of the Common Pleas, and Lord Chancellor ; and, both as Judge and Senator, invariably and unswervingly maintained the principles of rational freedom, which were so gloriously asserted by his friend Chatham, at whose side he fought in the House of Peers, and whom he fortified by his sound legal knowledge. He supported Lord Chatham against Lord Mansfield on the constitutional right of the Americans to tax themselves; on the right of juries to find a general verdict in cases of libel; and on the conduct of the House of Commons in relation to Wilkes. The subject, however, with which the name of Camden is most honourably and peculiarly associated, is that of General Warrants issued by the Secretary of State, viz. warrants not specifying the exact nature of the offence; which he pronounced illegal in the celebrated case of Wilkes, who brought an action of false imprisonment against Lord Halifax for issuing such a warrant against him, authorising his apprehension and the seizure of his papers. Lord Camden delivered this judgment from the Bench, and does not seem to have afterwards spoken upon the subject in the Lords; for, although the matter was debated in the Commons, no report appears of any discussion in the House of Lords. The question was raised three or four times, and the occasion on which Lord Camden delivered the most elaborate judgment was in the case of Entick v. Carrington.* The judgment is a model of judicial reasoning on constitutional topics, full of learning, yet animated by that strong (there subdued) spirit of liberty, which informed the soul of Camden. It is full of maxims of the highest public interest and importance, especially when he is dealing with the arguments deduced from the continued practice which had prevailed, of the issuing of general warrants.

* State Trials, vol. xix. p. 1044.

"The practice has been correspondent to the warrant.

"Such is the power; and therefore one should naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant.

"If it is law, it will be found in our books. If it is not to be found there, it is not law. "The great end for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.

Accordingly it is now incumbent upon the defendants to show the law by which the seizure is warranted. If that cannot be done, it is a trespass.

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Papers are the owner's goods and chattels : they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us, without such authority, to pronounce a practice legal, which would be subversive of all the comforts of society.

"I come now to the practice since the Revolution, which has been strongly urged, with this emphatical addition, that an usage tolerated from the era of liberty, and continued downwards to this time through the best ages of the constitution, must necessarily have a legal commencement. Now, though that pretence can have no place in the question made by this plea, because no such practice is there alleged; yet I will permit the defendant for the present to borrow a fact from the special verdict, for the sake of giving it an answer.

"If the practice began then, it began too late to be law now. If it was more ancient, the Revolution is not to answer for it; and I could have wished that, upon this occasion, the Revolution had not been considered as the only basis of our liberty.

"The Revolution restored this constitution to its first principles. It did no more. It did not enlarge the liberty of the subject, but give it a better security. It neither widened nor contracted the foundation, but repaired, and perhaps added a buttress or two to the fabric; and if any minister of state has since deviated from the principles at that time recognised, all that I can say is, that, so far from being sanctified, they are condemned, by the Revolution.

"This is the first instance I have met with, where the ancient immemorable law of the land, in a public matter, was attempted to be proved by the practice of a private office.

"The names and rights of public magistrates, their power and forms of proceeding as they are settled by law, have been long since written, and are to be found in books and records. Private customs, indeed, are still to be sought from private tradition. But whoever conceived a notion that any part of the public law could be buried in the obscure practice of a particular person?

"But still it is insisted, that there has been a general submission, and no action brought to try the right.

"I answer, there has been a submission of guilt and poverty to power and the terror of punishment. But it would be a strange doctrine to assert that all the people of this land are bound to acknowledge that to be universal law, which a few criminal booksellers have been afraid to dispute.

"It is then said, that it is necessary for the ends of government to lodge such a power with a state officer; and that it is better to prevent the publication before, than to punish the offender afterwards. I answer, if the legislature be of that opinion, they will revive the Licensing Act. But if they have not done that, I conceive they are not of that opinion. And with respect to the argument of state necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions.

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If the King himself has no power to declare when the law ought to be violated for reasons of state, I am sure we, his Judges, have no such prerogative."

These are the genuine principles of a constitutional Judge, and afford a convincing proof of the spirit of Camden, which animated him on all occasions, in the Senate and on the Bench, and which secured him the friendship of Chatham!

The great cotemporary Commoner of these Senatorial Orators was Edmund Burke. He fought the battle of American independence in the House of Commons, while Lord Chatham was so bravely defending that cause in the House of Peers. He continued in the public arena during part of the brilliant epoch of Pitt, Fox, and Sheridan; indeed, he introduced Mr. Fox into public life. His appearance in the Senate is a most interesting event

in the history of parliamentary eloquence. He was the first man in our country who introduced a philosophical style, varied with rich illustration, into our Senatorial Oratory. In our mind, he evidently designed as his model the great Roman orator, and desired to found a new style of eloquence in the English Parliament on the basis of the Ciceronian: for the splendid style adopted by Burke is that for which Cicero is peculiarly distinguished, not only from Demosthenes, but from all other orators; his eloquence being, to adopt his own idea of what it should be, copiosè sapientia loquens. The grand peculiarity and beauty of that style is a philosophical mode of treating the subject, and a rich diversity of illustration in respect to it. Such a style had never been attempted with any power in our Senate, - at least, by any speaker whose orations remain recorded. We know of the wonderful talents and effect of Lord Bolingbroke only by tradition. Lord Chatham's style was not that. He stood alone in his own peculiar manner, in terse and spirited sentences, in courageous sentiments, in impetuous and overwhelming bursts of invective :—

"In that dread circle, none durst walk but he !"

He completely revolutionised, indeed, the system of debate in parliament, but it was reserved for Edmund Burke to go a step farther, and not only place political subjects on an enlarged and liberal basis of constitutional views, but discuss them with reference to reasonings of philosophical legislation, and the grand principles of humanity. Coleridge has well said, in "The Friend,

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"Burke was an orator, whose eloquence has taken away for Englishmen all cause of humiliation from the names of Demosthenes and Cicero, and a statesman who has left to our language a bequest of glory unrivalled, and all his own, in the keen-eyed yet far-sighted genius with which he has almost uniformly made the most original and profound general principles of political wisdom, even the recondite laws of human passions, bear upon particular measures and events."

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Cicero and Burke founded their eloquence on the principle that public questions should not be debated on grounds of personality or partisanship, but on comprehensive views of an enlarged philosophy. Of them it may be said as truly as of Socrates and of Lord Bacon, that they applied Philosophy to her proper uses, that they brought her down from Heaven to dwell on Earth, and engaged her in the practical service of men. They felt that it was especially incumbent upon all invested with power for national purposes, to inform their minds with an enlightened Philosophy of Legislation and Magistracy, and with a knowledge of those events in the long annals of man which serve as beacons and examples to wise rulers. The description of Cicero by Dr. Conyers Middleton, in his interesting Life of that great orator, may, with slight alterations, be applied to Burke; and of both we may say, that "their learning, considered separately, will appear wonderful, yet much more so, when found in the possession of the first statesmen of mighty empires; their abilities as statesmen are glorious -yet surprise us still more, when they are observed in the ablest scholars of their age; but an union of both these characters exhibits that specimen of perfection to which the best parts with the best culture can exalt human nature."*

The exquisite style of Burke "whose copious tone with Grecian greatness flowed +"-is peculiarly distinguished by the richness and universality of his illustrations, fetched from all regions of science and art, of nature and of letters. "The commonest subjects," as Lord Erskine well said, "swell into eloquence at the touch of his sublime genius." And this characteristic Canning New Morality.

* Vol. ii. p. 523,

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