« PreviousContinue »
nder the Toleration Act, but lost his cause. He appealed to the Court of Hastings, where the decision was affirmed. He then appealed to the Court of Common Pleas, where judgment went in his favor; the decisions of the courts below being unanimously reversed. The city now brought a writ of error through their Chamberlain, and carried the case before the House of Lords. Here the subject was taken up by Lord Mansfield, who, in commɔn with all the judges but one, of the Court of the King's Bench, was of opinion that Evans was protected by the Toleration Act and exempted from the obligation to act as sheriff. These views he maintained in the following speech, which had great celebrity at the time, and is spoken of by Lord Campbell as “one of the finest specimens of forensic eloquence to be found in our books." It was published from notes taken by Dr. Philip Furneaux, “ with his Lordship’s consent and approbation.” Though it has not, in every part, that perfection of style for which Lord Mansfield was distinguished, it is certainly an admirable model of juridical eloquence, being equally remarkable for the clearess of its statements, the force of its reasonings, and the liberal and enlightened sentiments with which it abounds. It rises toward the close into a strain of indignant reprobation, and administers a ter. rible rebuke to the city of London for suffering its name to be connected with so despicable a system of extortion.
SPEECH, &c. My Lords -As I made the motion for taking ant, therefore, a Dissenter, and in the eye of the opinion of the learned judges, and proposed this law a person dangerous and ill affected, is the question your Lordships have been pleased excluded from office, and disabled from serving. to put to them, it may be expected that I should Here they fail. make some farther motion, in consequence of the If they ground the action on their own by. opinions they have delivered.
law; that by-law was professedly made to proIn moving for the opinion of the judges, I had cure fit and able persons to serve the office, and two views. The first was, that the House might the defendant is not fit and able, being expressly have the benefit of their assistance in forming a disabled by statute law. Here, too, they fail. right judgment in this cause now before us, upon If they ground it on his disability's being owing This writ of error. The next was, that, the ques- to a neglect of taking the sacrament at church, lion being fully discussed, the grounds of our when he ought to have done it, the Toleration judgment, together with their exceptions, limita- Act having freed the Dissenters from all obliga. tions, and restrictions, might be clearly and cer- tion to take the sacrament at church, the defendtainly known, as rule to be followed hereafter ant is guilty of no neglect—no criminal neg. in all future cases of the like nature; and this lect. Here, therefore, they fail. determined me as to the manner of wording the These points, my Lords, will appear clear and question, “How far the defendant might, in the plain. present case, be allowed to plead his disability II. The Corporation Act, pleaded by the de. in bar of the action brought against him ?” fendant as rendering him ineligible to Intent and
The question, thus worded, shows the point this office, and incapable of taking it cooperative upon which your Lordships thought this case upon him, was most certainly intended Act curned; and the answer necessarily fixes a cri- by the Legislature to prohibit the persons thereterion, under what circumstances, and by what in described being elected to any corporation persons, such a disability may be pleaded as an offices, and to disable them from taking such exemption from the penalty inflicted by this by- offices upon them. The act had two parts . law, upon those who decline taking upon them first, it appointed a commission for turning out the office of sheriff.
all that were at that time in office, who would In every view in which I have been able to not comply with what was required as the conconsider this matter, I think this action can not dition of their continuance therein, and even be supported.
gave a power to turn them out though they I. If they rely on the Corporation Act; by the should comply; and then it farther enacted, Preliminary literal and express provision of that act, that, from the termination of that commission,
no person can be elected who hath not no person hereafter, who had not taken the sac.
within a year taken the sacrament in rament according to the rites of the Church of the Church of England. The defendant hath England within one year preceding the time of not taken the sacrament within a year; he is such election, should be placed, chosen, or electnot, therefore, elected. Here they fail. ed into any office of, or belonging to, the govern.
If they ground it on the general design of the ment of any corporation ; and this was done, as Legislature in passing the Corporation Act; the it was expressly declared in the preamble to the design was to exclude Dissenters from office, act, in order to perpetuate the succession in corand disable them from serving. For, in those porations in the hands of persons well affected times, when a spirit of intolerance prevailed, and to government in church and state. severe measures were pursued, the Dissenters It was not their design (as hath been said) "tɔ were reputed and treated as persons ill affected bring such persons into corporations by inducing and dangerous to the government. The defend them to take the sacrament in the Church of
England ;" the Legislature did not mean to a Lives of the Chancellers, v., 287.
tempt persons who were ill affected to the gov
view of the grounds of argument.
ernment occasionally to conform. It was not, I Persecution for a sincere thorgh erroneous say, their desigu to bring them in. They could conscience is not to be deduced from reason or not trust them, lest they should use the power the fitness of things. It can only stand upou of their offices to distress and annoy the state. positive law. And the reason is alleged in the act itself. It IV. It has been said (1.) That “the Toleration was because there were "evil spirits" among Act only amounts to an exemption Refutation of them; and they were afraid of evil spirits, and of the Protestant Dissenters from the plaintiff's ar determined to keep them out. They therefore penalties of certain laws therein parput it out of the power of electors to choose ticularly mentioned, and to nothing more; that, such persons, and out of their power to serve ; if it had been intended to bear, and to have any and accordingly prescribed a mark or character, operation upon the Corporation Act, the Corpo. iaid down a description whereby they should be ration Act ought to have been mentioned there. known and distinguished by their conduct pre- in; and there ought to bave been some enacting vious to such an election. Instead of appointing clause, exempting Dissenters from prosecution a condition of their serving the office, resulting in consequence of this act, and enabling them to from their future conduct, or some consequent plead their not having received the sacrament action to be performed by them, they declared according to the rites of the Church of England such persons incapable of being chosen as had in bar of such action.” But this is much toc not taken the sacrament in the Church within a limited and narrow a conception of the Tolerayear before such election; and, without this tion Act, which amounts consequentially to a mark of their affection to the Church, they could great deal more than this; and it hath consenot be in office, and there could be no election. quentially an inference and operation upon the But as the law then stood, no man could have Corporation Act in particular. The Toleration pleaded this disability, resulting from the Corpo Act renders that which was illegal before, now ration Act, in bar of such an action as is now legal. The Dissenters' way of worship is perbrought against the defendant, because this dis- mitted and allowed by this act. It is not only ability was owing to what was then, in the eye exempted from punishment, but rendered inno. of the law, a crime; every man being required cent and lawful. It is established; it is put by the canon law (received and confirmed by the under the protection, and is not merely under statute law) to take the sacrament in the Church the connivance of the law. In case those who at least once a year. The law would not then are appointed by law to register dissenting places permit a man to say that he had not taken the of worship refuse on any pretense to do it, we sacrament in the Church of England; and he must, upon application, send a mandamus to could not be allowed to plead it in bar of any ac- compel them. tion brought against him.
Now there can not be a plainer position than III. But the case is quite altered since the Act that the law protects nothing in that very re Elect of the of Toleration. It is now no crime spect in which it is (in the eye of the law) at Toleration Act for a man, who is within the descrip- the same time a crime. Dissenters, within the tion of that act, to say he is a Dissenter ; nor is description of the Toleration Act, are restored it any crime for him not to take the sacrament to a legal consideration and capacity; and a according to the rites of the Church of England; hundred consequences will from thence follow, nay, the crime is, if he does it contrary to the which are not mentioned in the act. For indictates of his conscience.
stance, previous to the Toleration Act, it was If it is a crime not to take the sacrament at unlawful to devise any legacy for the support of church, it must be a crime by some law; which dissenting congregations, or for the benefit of must be either common or statute law, the canon dissenting ministers; for the law knew no such law enforcing it being dependent wholly upon assemblies, and no such persons; and such a dethe statute law. Now the statute law is re- vise was absolutely void, being left to what the pealed as to persons capable of pleading (under law called superstitious purposes. But will it the Toleration Act) that they are so and so be said in any court in England that such a de. qualified; and therefore the canon law is re- vise is not a good and valid one now? And pealed with regard to those persons.
yet there is nothing said of this in the ToleraIf it is a crime by common law, it must be so tion Act. By this act the Dissenters are freed, either by usage or principle. But there is no not only from the pains and penalties of the laws usage or custom, independent of positive law, therein particularly specified, but from all ecclewhich makes nonconformity a crime. The eter- siastical censures, and from all penalty and pun. nal principles of natural religion are part of the ishment whatsoever, on account of their non. common law. The essential principles of re- conformity, which is allowed and protected by vealed religion are part of the common law; this act, and is therefore, in the eye of the law, so that any person reviling, subverting, or ridi- no longer a crime. Now, if the defendant may culing them, may be prosecuted at common law. say he is a Dissenter; if the law doth not stop But it can not be shown, from the principles of his mouth; if he may declare that he hath not natural or revealed religion, that, independent taken the sacrament according to the rites of the of positive law, temporal punishments ought to Church of England, without being considered as be inflicted for mere opinions with respect to criminal; if, I say, his mouth is not stopped by carticular modez of worship.
the law, he may then plead his not havin z takes the sacrament accor ling to the rites of the Church | the shadow of an objection to his pleading what of England, in bar of this action. It is such a is an excuse-ploading a legal disqualification disability as doth not leave him liable to any ac- If he is nominated to be a justice of the peace, tion, or to any penalty whatsoever.
he may say, I can not be a justice of the peace, (2.) It is indeed said to be " a maxim in law, for I have not a hundred pounds a year. In like that a man shall not be allowed to disable him- manner, a Dissenter may plead, “I have not qualself.” But, when this maxim is applied to the ified, and I can not qualify, and am not obliged to present case, it is laid down in too large a sense. qualify; and you have no right to fine me for When it is extended to comprehend a legal dis- not serving." ability, it is taken in too great a latitude. What! (3.) It hath been said that “the King hath a Shall not a man be allowed to plead that he is right to the service of all his subjects.” And not fit and able? These words are inserted in this assertion is very true, provided it be propthe by-law, as the ground of making it; and in erly qualified. But surely, against the operation the plaintiff's declaration, as the ground of his ac. of this general right in particular cases, a man tion against the defendant. It is alleged that the may plead a natural or civil disability. May defendant was fit and able, and that he refused not a man plead that he was upon the high seas? to serve, not having a reasonable excuse. It is May not idiocy or lunacy be pleaded, which are certain, and it is hereby in effect admitted, that if natural disabilities; or a judgment of a court of he is not fit and able, and that if he hath a rea- law, and much more a judgment of Parliament, sonable excuse, he may plead it in bar of this ac- which are civil disabilities? tion. Surely he might plead that he was not (4.) It hath been said to be a maxim" that no worth £15,000, provided that was really the man can plead his being a lunatic to avoid a case, as a circumstance that would render him deed executed, or excuse an act done, at that not fit and able. And if the law allows him to time, because,” it is said, "if he was a lunatic, say that he hath not taken the sacrament accord- he could not remember any action he did during ing to the rites of the Church of England, being the period of his insanity;" and this was doctrine within the description of the Toleration Act, he formerly laid down by some judges. But I am may plead that likewise to show that he is not fit glad to find that of late it hath been generally and able. It is a reasonable, it is a lawful excuse. exploded. For the reason assigned for it is, in
My Lords, the meaning of this maxim, “ that my opinion, wholly insufficient to support it; bea man shall not disable himself," is solely this : cause, though he could not remember what pass. that a man shall not disable himself by his own ed during his insanity, yet he might justly say, willful crime; and such a disability the law will if he ever executed such a deed, or did such an not allow him to.plead. If a man contracts to action, it must have been during his confinement sell an estate to any person upon certain terms at or lunacy, for he did not do it either before ou such a time, and in the mean time he sells it to since that time. another, he shall not be allowed to say, “Sir, I As to the case in which a man's plea of in can not fulfill my contract; it is out of my power; sanity was actually set aside, it was nothing I have sold my estate to another." Such a plea more than this: it was when they pleaded ore would be no bar to an action, because the act tenus (or verbally); the man pleaded that he was of his selling it to another is the very breach of at the time out of his senses. It was replied, contract So, likewise, a man who hath prom. How do you know that you were out of your ised marriage to one lady, and afterward marries senses? No man that is so, knows himself to another, can not plead in bar of a prosecution be so. And accordingly his plea was, upon this from the first lady that he is already married, quibble, set aside; not because it was not a valid because his marrying the second lady is the very one, if he was out of his senses, but because breach of promise to the first. A man shall not they concluded he was not out of his senses. If be allowed to plead that he was drunk in bar of he had alleged that he was at that time cona criminal prosecution, though perhaps he was fined, being apprehended to be out of his senses, at the time as incapable of the exercise of reason no advantage could have been taken of his man. as if he had been insane, because his drunken- ner of expressing himself, and his plea must ness was itself a crime. He shall not be allow. have been allowed to be good. ed to excuse one crime by another. The Roman (5.) As to Larwood's case, he was not allowsoldier, who cut off his thumbs, was not suffered ed' the benefit of the Toleration Act, because he to plead his disability for the service to procure did not plead it. If he had insisted on his right his dismission with impunity, because his inca. to the benefit of it in his plea, the judgment must pacity was designedly brought on him by his have been different. His inserting it in his repown willful fault. And I am glad to observe so lication was not allowed, not because it was not good an agreement among the judges upon this an allegation that would have excused him if it point, who have stated it with great precision had been originally taken notice of in his plea, and clearness.
but because its being not mentioned till after When it was said, therefore, that “a man can ward was a departure from his plea. not plead his crime in excuse for not doing what In the case of the Mayor of Guilford, the Tel he is by law required to do,” it only amounts to eration Act was pleaded. The plea was allow this, that he can not plead in excuse what, whened good, the disability being esteemed a lawful pleaded, is no excuse; but there is not in this one; and the judgment was right.
And here the defendant hath likewise insisted | in their verdict. If a man ther. alleges he is a on his right to the benefit of the Toleration Act. Dissenter, and claims the protection and the ad. In his plea he saith he is bona fide a Dissenter, vantages of the Toleration Act, a jury may within the description of the Toleration Act; justly find that he is not a Dissenter within the that he hath taken the oaths, and subscribed the description of the Toleration Act, so far as to declaration required by that act, to show that he render his disability a lawful one. If he takes is not a popish recusant; that he hath never re- the sacrament for his interest, the jury may ceived the sacrament according to the rites of "fairly conclude that this scruple of conscience is the Church of England, and that he can not in a false pretense when set up to avoid a burden. conscience do it; and that for more than fifty The defendant in the present case pleads that years past he hath not been present at church he is a Dissenter within the description of the at the celebration of the established worship, but Toleration Act; that he hath not taken the sachath constantly received the sacrament and at- rament in the Church of England within one tended divine service among the Protestant Dis- year preceding the time of his supposed elecsenters. These facts are not denied by the tion, nor ever in his whole life; and that he can plaintiff, though they might easily have been not in conscience do it. traversed; and it was incumbent upon them to Conscience is not controllable by human laws, have done it, if they had not known they should nor amenable to human tribunals. Persecution, certainly fail in it. There can be no doubt, or attempts to force conscience, will never protherefore, that the defendant is a Dissenter-an duce conviction, and are only calculated to make honest, conscientious Dissenter; and no conscien- hypocrites or martyrs. tious Dissenter can take the sacrament at church. V. My Lords, there never was a single in. The defendant saith he can not do it, and he is stance, from the Saxon times down to Concluding not obliged to do it. And as this is the case, as our own, in which a man was ever the law allows him to say this, as it hath not punished for erroneous opinions concerning rites stopped his mouth, the plea which he makes is or modes of worship, but upon some positive a lawful plea, his disability being through no law. The common law of England, which is crime or fault of his own. I say, he is disabled only common reason or usage, knows of no prosby act of Parliament, without the concurrence or ecution for mere opinions. For atheism, blasintervention of any fault or crime of his own; phemy, and reviling the Christian religion, there and therefore he may plead this disability in bar have been instances of persons prosecuted and of the present action.
punished upon the common law. But bare non. (6.) The case of " atheists and infidels” is out conformity is no sin by the common law; and of the present question ; they come not within all positive laws inflicting any pains or penalties the description of the Toleration Act. And this for nonconformity to the established rites and is the sole point to be inquired into in all cases modes, are repealed by the Act of Toleration, of the like nature with that of the defendant, who and Dissenters are thereby exempted from all here pleads the Toleration Act. Is the man ecclesiastical censures. bona fide a Dissenter within the description of What bloodshed and confusion have been oc. that act? If not, he can not plead his disability casioned, from the reign of Henry the Fourth, in consequence of his not having taken the sac- when the first penal statutes were enacted, down rament in the Church of England. If he is, he to the revolution in this kingdom, by laws made may lawfully and with effect plead it in bar of to force conscience! There is nothing, certainly, such an action ; and the question on which this more unreasonable, more inconsistent with the distinction is grounded must be tried by a jury. rights of human nature, more contrary to the
(7.) It hath been said that “this being a mat. spirit and precepts of the Christian religion, more ter between God and a man's own conscience, it iniquitous and unjust, more impolitic, than percan not come under the cognizance of a jury." secution. It is against natural religion, revealed Bat certainly it may; and, though God alone is religion, and sound policy. the absolute judge of a man's religious profes- Sad experience and a large mind taught that sion and of his conscience, yet there are some great man, the President De Thou, this doctrine. marks even of sincerity, among which there is Let any man read the many admirable things none more certain than consistency. Surely a which, though a Papist, he hath dared to adrtan's sincerity may be judged of by overt acts. vance upon the subject, in the dedication of his It is & just and excellent maxim, which will hold History to Harry the Fourth of France, which I good in this, as in all other cases, " by their never read without rapture, and he will be fully fruits ye shall know them.” Do they, I do not convinced, not only how cruel, but how impolisay go to meeting now and then, but do they tic it is to prosecute for religious opinions. I frequent the meeting-house ? Do they join gen- am sorry that of late his countrymen have begun erally and statedly in divine worship with dis- to open their eyes, see their error, and adopt his senting congregations ? Whether they do or sentiments. I should not have broken my heart act, may be ascertained by their neighbors, and (I hope I may say it witbout breach of Christian by those who frequent the same places of wor- charity) if France had continued to cherish tho ship. In case a man hath occasionally con- Jesuit and to persecute ine Huguenots." formed for the sake of places of trust and profit; in that case, I imagine, a jury would not hesitate This is a most dexterous preparation for the cum There was no occasion to revoke the Edict of The prosessed design of making this by-law Nantes. The Jesuits needed only to have ad. was to get fit and able persons to serve the vised a plan similar to what is contended for office; and the plaintiff gets forth in his declara. in the present case, Make a law to render them tion, that, if the Dissenters are excluded, they incapable of office, make another to punish them shall want fit and able persons to serve the for not serving. If they accept, punish them office. But, were I to deliver my own saspi (for it is admitted on all hands that the defend. cion, it would be, that they did not so much wist ant, in the cause before your Lordships, is pros: for their services as their fines. Dissenters have ecutable for taking the office upon him)—if they been appointed to this office, one who was blind, accept, punish them; if they refuse, punish them. another who was bed-ridden ; not, I suppose, ob If they say yes, punish them; if they say no, account of their being fit and able to serve the punish them. My Lords, this is a most exqui- office. No: they were disabled both by nature site dilemma, from which there is no escaping and by law. It is a trap a man can not get out of; it is as We had a case lately in the courts below, of bad persecution as that of Procrustes. If they a person chosen mayor of a corporation while are too short, stretch them; if they are too long, he was beyond seas with his Majesty's troops in lop them. Small would have been their consola- America, and they knew him to be so. Did tion to have been gravely told, “The Edict of they want him to serve the office? No; it was Nantes is kept inviolable. You have the full impossible. But they had a mind to continue benefit of that act of toleration; you may take the former mayor a year longer, and to have the sacrament in your own way with impunity; pretense for setting aside him who was now you are not compelled to go to mass." Were chosen, on all future occasions, as having beer. this case but told in the city of London, as of a elected before. proceeding in France, how would they exclaim In the case before your Lordships, the de fend. against the Jesuitical distinction ? And yet, in ant was by law incapable at the time of his pretruth, it comes from themselves. The Jesuits tended election; and it is my firm persuasion never thought of it. When they meant to per- that he was chosen because he was incapable. secute by iheir act of toleration, the Edict of If he had been capable, he had not been chosen, Nantes was repealed.
for they did not want him to serve the office. This by-law, by which the Dissenters are to They chose him because, without a breach of be reduced to this wretched dilemma, is a by-law the law, and a usurpation on the Crown, he could of the city, a local corporation, contrary to an not serve the office. They chose him, that he act of Parliament, which is the law of the land; might fall under the penalty of their by-law, a modern by-law of a very modern date, made made to serve a particular purpose ; in opposilong since the Corporation Act, long since the tion to which, and to avoid the fine thereby im. Toleration Act, in the face of them, for they posed, he hath pleaded a legal disability, ground knew these laws were in being. It was made ed on two acts of Parliament. As I am of opia in some year in the reign of the late King—1 ion that his plea is good, I conclude with moving forget which; but it was made about the time your Lordships, of building the mansion house ! ! Now, if it “That the judgment be affirmed." could be supposed the city have a power of making such a by-law, it would entirely subvert the Toleration Act, the design of which was to ex- The judgment was accordingly affirmed, and empt the Dissenters from all penalties; for by an end put to a system of extortion so mean and such a by-law they lave it in their power to scandalous, that it seems difficult to understand, make every Dissenter pay a fine of six hundred at the present day, how an English community pounds, or any sum they please, for it amounts could have endured, or English courts have up to that.
held, it for a single hour.
OF LORD MANSFIELD ON A BILL TO DEPRIVE PEERS OF THE REALM OF CERTAIN PRIVILEGES,
DELIVERED IN THE HOUSE OF LORDS, MAY 9, 1770.
INTRODUCTION. This speech is the best specimen extant of Lord Mansfield's parliamentary eloquence. It has that felicity of statement and clearness of reasoning for which he was so much distinguished, counected with an ardor and elevation of sentiment, that give double force to every argument he uses. The style is on. commonly chaste and polished. It has a conversational ease, and yet entire dignity throughout, which bave made it the favorite of all who love pure and simple English. ting rebuke which follows. Nothing could be more of Popish cruelty, than to be thus beld out to the mortifying to the citizens of London, among whom world as more cruel and Jesuitical than the detested the fires of Smithfield had left a traditional horror persecutors of the French Huguenots