under 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 common 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 clearness 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 terrible 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 the opinion of the learned judges, and proposed the question your Lordships have been pleased to put to them, it may be expected that I should make some farther motion, in consequence of the opinions they have delivered.

In moving for the opinion of the judges, I had two views. The first was, that the House might have the benefit of their assistance in forming a right judgment in this cause now before us, upon this writ of error. The next was, that, the question being fully discussed, the grounds of our judgment, together with their exceptions, limitations, and restrictions, might be clearly and certainly known, as a rule to be followed hereafter in all future cases of the like nature; and this determined me as to the manner of wording the question, "How far the defendant might, in the present case, be allowed to plead his disability in bar of the action brought against him?"

The question, thus worded, shows the point upon which your Lordships thought this case turned; and the answer necessarily fixes a criterion, under what circumstances, and by what persons, such a disability may be pleaded as an exemption from the penalty inflicted by this bylaw, upon those who decline taking upon them the office of sheriff.

In every view in which I have been able to consider this matter, I think this action can not be supported.

I. If they rely on the Corporation Act; by the Preliminary literal and express provision of that act, view of the no person can be elected who hath not grounds of argument. within a year taken the sacrament in the Church of England. The defendant hath not taken the sacrament within a year; he is not, therefore, elected. Here they fail.

If they ground it on the general design of the Legislature in passing the Corporation Act; the design was to exclude Dissenters from office, and disable them from serving. For, in those times, when a spirit of intolerance prevailed, and severe measures were pursued, the Dissenters were reputed and treated as persons ill affected and dangerous to the government. The defend

2 Lives of the Chancellors, v., 287.

ant, therefore, a Dissenter, and in the eye of this law a person dangerous and ill affected, is excluded from office, and disabled from serving. Here they fail.

If they ground the action on their own bylaw; that by-law was professedly made to procure fit and able persons to serve the office, and the defendant is not fit and able, being expressly disabled by statute law. Here, too, they fail.

If they ground it on his disability's being owing to a neglect of taking the sacrament at church, when he ought to have done it, the Toleration Act having freed the Dissenters from all obligation to take the sacrament at church, the defendant is guilty of no neglect-no criminal neglect. Here, therefore, they fail.

These points, my Lords, will appear clear and plain.

Corporation

II. The Corporation Act, pleaded by the defendant as rendering him ineligible to Intent and this office, and incapable of taking it effect of the upon him, was most certainly intended Act by the Legislature to prohibit the persons therein described being elected to any corporation offices, and to disable them from taking such offices upon them. The act had two parts: first, it appointed a commission for turning out all that were at that time in office, who would not comply with what was required as the condition of their continuance therein, and even gave a power to turn them out though they should comply; and then it farther enacted, that, from the termination of that commission, no person hereafter, who had not taken the sacrament according to the rites of the Church of England within one year preceding the time of such election, should be placed, chosen, or elected into any office of, or belonging to, the government of any corporation; and this was done, as it was expressly declared in the preamble to the act, in order to perpetuate the succession in corporations in the hands of persons well affected to government in church and state.

It was not their design (as hath been said) " "to bring such persons into corporations by inducing them to take the sacrament in the Church of England;" the Legislature did not mean to tempt persons who were ill affected to the gov

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.

guments.

IV. It has been said (1.) That "the Toleration Act only amounts to an exemption Refutation of of the Protestant Dissenters from the plaintiff's ar penalties of certain laws therein particularly mentioned, and to nothing more; that, if it had been intended to bear, and to have any operation upon the Corporation Act, the Corporation Act ought to have been mentioned there

ernment occasionally to conform. It was not, I say, their design to bring them in. They could not trust them, lest they should use the power of their offices to distress and annoy the state. And the reason is alleged in the act itself. It was because there were "evil spirits" among them; and they were afraid of evil spirits, and determined to keep them out. They therefore put it out of the power of electors to choose such persons, and out of their power to serve; and accordingly prescribed a mark or character, laid down a description whereby they should be known and distinguished by their conduct pre-in; and there ought to have 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 too 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 innoof 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.

III. But the case is quite altered since the Act Effect of the of Toleration. It is now no crime Toleration Act. for a man, who is within the description of that act, to say he is a Dissenter; nor is it any crime for him not to take the sacrament according to the rites of the Church of England; nay, the crime is, if he does it contrary to the dictates of his conscience.

If it is a crime not to take the sacrament at church, it must be a crime by some law; which must be either common or statute law, the canon law enforcing it being dependent wholly upon the statute law. Now the statute law is repealed as to persons capable of pleading [under the Toleration Act] that they are so and so qualified; and therefore the canon law is repealed with regard to those persons.

If it is a crime by common law, it must be so either by usage or principle. But there is no usage or custom, independent of positive law, which makes nonconformity a crime. 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 can not 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.

Now there can not be a plainer position than that the law protects nothing in that very respect in which it is (in the eye of the law) at the same time a crime. Dissenters, within the description of the Toleration Act, are restored to a legal consideration and capacity; and a hundred consequences will from thence follow, which are not mentioned in the act. For instance, previous to the Toleration Act, it was unlawful to devise any legacy for the support of dissenting congregations, or for the benefit of dissenting ministers; for the law knew no such assemblies, and no such persons; and such a devise was absolutely void, being left to what the law called superstitious purposes. But will it be said in any court in England that such a devise is not a good and valid one now? And yet there is nothing said of this in the Toleration Act. By this act the Dissenters are freed, not only from the pains and penalties of the laws therein particularly specified, but from all ecclesiastical censures, and from all penalty and punishment whatsoever, on account of their nonconformity, which is allowed and protected by this act, and is therefore, in the eye of the law, no longer a crime. Now, if the defendant may say he is a Dissenter; if the law doth not stop his mouth; if he may declare that he hath not taken the sacrament according to the rites of the Church of England, without being considered as criminal; if, I say, his mouth is not stopped by the law, he may then plead his not having taken

the sacrament according 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-pleading 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, for I have not a hundred pounds a year. In like manner, a Dissenter may plead, "I have not qualified, and I can not qualify, and am not obliged to qualify; and you have no right to fine me for not serving."

(4.) It hath been said to be a maxim "that no man can plead his being a lunatic to avoid a deed executed, or excuse an act done, at that time, because," it is said, "if he was a lunatic, he could not remember any action he did during the period of his insanity ;" and this was doctrine formerly laid down by some judges. But I am glad to find that of late it hath been generally exploded. For the reason assigned for it is, in my opinion, wholly insufficient to support it; because, though he could not remember what passed during his insanity, yet he might justly say, if he ever executed such a deed, or did such an action, it must have been during his confinement or lunacy, for he did not do it either before or since that time.

(2.) It is indeed said to be "a maxim in law, that a man shall not be allowed to disable himself." But, when this maxim is applied to the present case, it is laid down in too large a sense. When it is extended to comprehend a legal disability, 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 worth £15,000, provided that was really the case, as a circumstance that would render him not fit and able. And if the law allows him to say that he hath not taken the sacrament according to the rites of the Church of England, being | within the description of the Toleration Act, he may plead that likewise to show that he is not fit and able. It is a reasonable, it is a lawful excuse. My Lords, the meaning of this maxim," that a man shall not disable himself," is solely this: that a man shall not disable himself by his own willful crime; and such a disability the law will not allow him to plead. If a man contracts to sell an estate to any person upon certain terms at such a time, and in the mean time he sells it to another, he shall not be allowed to say, "Sir, I can not fulfill my contract; it is out of my power; I have sold my estate to another." Such a plea would be no bar to an action, because the act of his selling it to another is the very breach of contract. So, likewise, a man who hath promised marriage to one lady, and afterward marries another, can not plead in bar of a prosecution from the first lady that he is already married, because his marrying the second lady is the very breach of promise to the first. A man shall not be allowed to plead that he was drunk in bar of a criminal prosecution, though perhaps he was at the time as incapable of the exercise of reason as if he had been insane, because his drunkenness was itself a crime. He shall not be allowed to excuse one crime by another. The Roman soldier, who cut off his thumbs, was not suffered to plead his disability for the service to procure his dismission with impunity, because his incapacity was designedly brought on him by his own willful fault. And I am glad to observe so good an agreement among the judges upon this point, who have stated it with great precision and clearness.

When it was said, therefore, that " a man can not plead his crime in excuse for not doing what he is by law required to do," it only amounts to this, that he can not plead in excuse what, when pleaded, is no excuse; but there is not in this

As to the case in which a man's plea of insanity was actually set aside, it was nothing more than this: it was when they pleaded ore tenus [or verbally]; the man pleaded that he was at the time out of his senses. It was replied, How do you know that you were out of your senses? No man that is so, knows himself to be so. And accordingly his plea was, upon this quibble, set aside; not because it was not a valid one, if he was out of his senses, but because they concluded he was not out of his senses. If he had alleged that he was at that time confined, being apprehended to be out of his senses, no advantage could have been taken of his manner of expressing himself, and his plea must have been allowed to be good.

(5.) As to Larwood's case, he was not allowed the benefit of the Toleration Act, because he did not plead it. If he had insisted on his right to the benefit of it in his plea, the judgment must have been different. His inserting it in his replication was not allowed, not because it was not an allegation that would have excused him if it had been originally taken notice of in his plea, but because its being not mentioned till afterward was a departure from his plea.

In the case of the Mayor of Guilford, the Toleration Act was pleaded. The plea was allow ed good, the disability being esteemed a lawful one; and the judgment was right.

Dissenter, and claims the protection and the advantages of the Toleration Act, a jury may justly find that he is not a Dissenter within the description of the Toleration Act, so far as to render his disability a lawful one. If he takes the sacrament for his interest, the jury may fairly conclude that this scruple of conscience is a false pretense when set up to avoid a burden.

The defendant in the present case pleads that he is a Dissenter within the description of the Toleration Act; that he hath not taken the sacrament in the Church of England within one year preceding the time of his supposed election, nor ever in his whole life; and that he can not in conscience do it.

And here the defendant hath likewise insisted in their verdict. If a man then alleges he is a on his right to the benefit of the Toleration Act. In his plea he saith he is bona fide a Dissenter, within the description of the Toleration Act; that he hath taken the oaths, and subscribed the declaration required by that act, to show that he is not a popish recusant; that he hath never received the sacrament according to the rites of the Church of England, and that he can not in conscience do it; and that for more than fifty years past he hath not been present at church at the celebration of the established worship, but hath constantly received the sacrament and attended divine service among the Protestant Dissenters. These facts are not denied by the plaintiff, though they might easily have been traversed; and it was incumbent upon them to have done it, if they had not known they should certainly fail in it. There can be no doubt, therefore, that the defendant is a Dissenter-an honest, conscientious Dissenter; and no conscientious Dissenter can take the sacrament at church. The defendant saith he can not do it, and he is not obliged to do it. And as this is the case, as the law allows him to say this, as it hath not stopped his mouth, the plea which he makes is a lawful plea, his disability being through no crime or fault of his own. I say, he is disabled by act of Parliament, without the concurrence or intervention of any fault or crime of his own; and therefore he may plead this disability in bar of the present action.

(6.) The case of "atheists and infidels" is out of the present question; they come not within the description of the Toleration Act. And this is the sole point to be inquired into in all cases of the like nature with that of the defendant, who here pleads the Toleration Act. Is the man bona fide a Dissenter within the description of that act? If not, he can not plead his disability in consequence of his not having taken the sacrament in the Church of England. If he is, he may lawfully and with effect plead it in bar of such an action; and the question on which this distinction is grounded must be tried by a jury. (7.) It hath been said that "this being a matter between God and a man's own conscience, it can not come under the cognizance of a jury." But certainly it may; and, though God alone is the absolute judge of a man's religious profession and of his conscience, yet there are some marks even of sincerity, among which there is none more certain than consistency. Surely a man's sincerity may be judged of by overt acts. It is a just and excellent maxim, which will hold good in this, as in all other cases, "by their fruits ye shall know them." Do they, I do not say go to meeting now and then, but do they frequent the meeting-house? Do they join generally and statedly in divine worship with dissenting congregations? Whether they do or not, may be ascertained by their neighbors, and by those who frequent the same places of worship. In case a man hath occasionally conformed for the sake of places of trust and profit; in that case, I imagine, a jury would not hesitate

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.

observations.

V. My Lords, there never was a single instance, from the Saxon times down to Concluding our own, in which a man was ever punished for erroneous opinions concerning rites or modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no prosecution for mere opinions. For atheism, blasphemy, and reviling the Christian religion, there have been instances of persons prosecuted and punished upon the common law. But bare nonconformity is no sin by the common law; and all positive laws inflicting any pains or penalties for nonconformity to the established rites and modes, are repealed by the Act of Toleration, and Dissenters are thereby exempted from all ecclesiastical censures.

What bloodshed and confusion have been occasioned, from the reign of Henry the Fourth, 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 the subject, in the dedication of his History to Harry the Fourth of France, which I never read without rapture, and he will be fully convinced, not only how cruel, but how impoli tic it is to prosecute for religious opinions. I am sorry that of late his countrymen have begun to open their eyes, see their error, and adopt his sentiments. I should not have broken my heart (I hope I may say it without breach of Christian charity) if France had continued to cherish the Jesuits and to persecute the Huguenots.3

3 This is a most dexterous preparation for the cat

This by-law, by which the Dissenters are to be reduced to this wretched dilemma, is a by-law of the city, a local corporation, contrary to an act of Parliament, which is the law of the land; a modern by-law of a very modern date, made long since the Corporation Act, long since the Toleration Act, in the face of them, for they knew these laws were in being. It was made in some year in the reign of the late King-Iion forget which; but it was made about the time of building the mansion house!! Now, if it 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 exempt the Dissenters from all penalties; for by such a by-law they have it in their power to make every Dissenter pay a fine of six hundred pounds, or any sum they please, for it amounts to that.

SPEECH

OF LORD MANSFIELD ON A BILL TO DEPRIVE PEERS OF THE REALM OF CERTAIN PRIVILEGES, DELIVERED IN THE HOUSE OF LORDS, MAY 8, 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, connected with an ardor and elevation of sentiment, that give double force to every argument he uses. The style is uncommonly chaste and polished. It has a conversational ease, and yet entire dignity throughout, which have made it the favorite of all who love pure and simple English.