SPEECH

OF LORD MANSFIELD WHEN SURROUNDED BY A MOB IN THE COURT OF THE KING'S BENCH, ON A TRIAL RESPECTING THE OUTLAWRY OF JOHN WILKES, ESQ., DELIVERED JANUARY 8, 1768.

INTRODUCTION.

IN 1764, Mr. Wilkes was prosecuted for a seditious libel upon the King, and for an obscene and impious publication entitled an Essay on Women. Verdicts were obtained against him under both these prosecutions, and, as he had fled the country, and did not appear to receive sentence, he was outlawed in the sheriff's court for the county of Middlesex on the 12th of July, 1764. In 1768 he returned to England, and applied to the Court of the King's Bench for a reversal of the outlawry; alleging, among other things, that the sheriff's writ of exegent was not technically correct in its wording, since he merely described the court as "my county court," whereas he ought to have added a description of the place, viz., "of Middlesex." Mr. Wilkes was now the favorite of the populace. Tumultuous meetings were held in his behalf in various parts of the metropolis; riots prevailed to an alarming extent; the Mansion House of the Lord Mayor was frequently assailed by mobs; members of Parliament were attacked or threatened in the streets ; and great fears were entertained for the safety of Lord Mansfield and the other judges of the Court of the King's Bench during the trial. On the 8th of June, 1768, the decision was given, the court being surrounded by an immense mob, waiting the result in a highly excited state. Under these circumstances, Lord Mansfield, after reading his decision for a time, broke off suddenly, and, turning from the case before him, addressed to all within the reach of his voice a few words of admonition, in which we can not admire too much the dignity and firmness with which he opposed himself to the popular rage, and the perfect willingness he showed to become a victim, if necessary, for the support of law.

But here let me pause.

SPEECH, &c.'

It is fit to take some notice of various terrors being out the numerous crowds which have attended and now attend in and about the hall, out of all reach of hearing what passes in court, and the tumults which, in other places, have shamefully insulted all order and government. Audacious addresses in print dictate to us, from those they call the people, the judgment to be given now, and afterward upon the conviction. Reasons of policy are urged, from danger in the kingdom by commotions and general confusion. Give me leave to take the opportunity of this great and respectable audience to let the whole world know all such attempts are vain. Unless we have been able to find an error which bears us out to reverse the outlawry, it must be affirmed. The Constitution does not allow reasons of state to influence our judgments: God forbid it should! We must not regard political consequences, how formidable soever they might be. If rebellion was the certain consequence, we are bound to say, "Fiat justitia, ruat cœlum." The Constitution trusts the King with reasons of state and policy. He may stop prosecutions; he may pardon offenses; it is his to judge whether the law or the criminal shall yield. We have no election. None of us encouraged or approved the commission of either of the crimes of which the defendant is convicted. None of us had any hand in his being prosecuted. As to myself, I took no part (in another place) in the addresses

1 From Burrow's Reports, iv., 2561.

2 Be justice done, though heaven in ruirs fall.

for that prosecution.
sist the defendant to fly from justice; it was his
own act, and he must take the consequences.
None of us have been consulted or had any thing
to do with the present prosecution. It is not in
our power to stop it; it was not in our power
to bring it on. We can not pardon. We are to
say what we take the law to be. If we do not
speak our real opinions, we prevaricate with
God and our own consciences.

We did not advise or as

I pass over many anonymous letters I have received. Those in print are public, and some of them have been brought judicially before the court. Whoever the writers are, they take the wrong way! I will do my duty unawed. What am I to fear? That "mendax infamia" [lying scandal] from the press, which daily coins false facts and false motives? The lies of calumny carry no terror to me. I trust that the temper of my mind, and the color and conduct of my life, have given me a suit of armor against these arrows. If during this King's reign I have ever supported his government, and assisted his measures, I have done it without any other reward than the consciousness of doing what I thought right. If I have ever opposed, I have done it upon the points themselves, without mixing in party or faction, and without any collateral views. I honor the King and respect the people; but many things acquired by the favor of either are, in my account, objects not worthy of ambition. I wish popularity, but it is that popularity which follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble

ends by noble means. I will not do that which my conscience tells me is wrong upon this occasion, to gain the huzzas of thousands, or the daily praise of all the papers which come from the press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels-all that falsehood and malice can invent, or the credulity of a deluded populace can swallow. I can say with a great magistrate, upon an occasion and under circumstances not unlike, "Ego hoc animo semper fui, ut invidiam virtute partam, gloriam non invidiam, putarem."

The threats go farther than abuse-personal violence is denounced. I do not believe it. It is not the genius of the worst of men of this country, in the worst of times. But I have set my mind at rest. The last end that can happen to any man never comes too soon, if he falls in support of the law and liberty of his country (for liberty is synonymous with law and government). Such a shock, too, might be productive of public good. It might awake the better part of the kingdom out of that lethargy which seems to have benumbed them, and bring the mad part back to their senses, as men intoxicated are sometimes stunned into sobriety.

Once for all, let it be understood, that no endeavors of this kind will influence any man who at present sits here. If they had any effect, it would be contrary to their intent; leaning against their impression might give a bias the other way. But I hope and I know that I have fortitude enough to resist even that weakness. No libels, no threats, nothing that has happened,

|

nothing that can happen, will weigh a feather against allowing the defendant, upon this and every other question, not only the whole advantage he is entitled to from substantial law and justice, but every benefit from the most critical nicety of form which any other defendant could claim under the like objection. The only effect I feel is an anxiety to be able to explain the grounds on which we proceed, so as to satisfy all mankind "that a flaw of form given way to in this case, could not have been got over in any | other."

Lord Mansfield now resumed the discussion of the case, and stated in respect to the insertion of the qualifying phrase "of Middlesex," mentioned above, that "a series of authorities, unimpeached and uncontradicted, have said such words are formally necessary; and such authority, though begun without law, reason, or common sense, ought to avail the defendant." He therefore (with the concurrence of the other judges) declared a reversal; adding, "I beg to be understood, that I ground my opinion singly on the authority of the cases adjudged; which, as they are on the favorable side, in a criminal case highly penal, I think ought not to be departed from.'

This reversal, however, did not relieve Mr. Wilkes from the operations of the verdicts already mentioned. Ten days after, Mr. Justice Yates pronounced the judgment of the court, sentencing him to be imprisoned for twenty-two months, and to pay a fine of one thousand pounds.

SPEECH

OF LORD MANSFIELD IN THE CASE OF THE CHAMBERLAIN OF LONDON AGAINST ALLAN EVANS, ESQ., DELIVERED IN THE HOUSE OF LORDS, FEBRUARY 4, 1769.

INTRODUCTION.

THIS case affords a striking example of the abuses which spring up under a religious establishment. The city of London was in want of a new mansion house for the Lord Mayor, and resolved to build one on a scale of becoming magnificence. But, as the expense would be great, some ingenious churchmen devised a plan for extorting a large part of the money out of the Dissenters, who had for a number of years been growing in business and property, under the protection of the Toleration Act. The mode was this. A by-law of the city was passed, imposing a fine of £600 on any person who should be elected as sheriff and decline to serve. Some wealthy individual was then taken from the dissenting body, and, by a concert among the initiated, was chosen to the office of sheriff. Of course he was not expected to serve, for the Test and Corporation Acts rendered him incapable. He was, therefore, compelled to decline; and was then fined £600, under a by-law framed for the very purpose of extorting this money! Numerous appointments were thus made, and £15,000 were actually paid in; until it came to be a matter of mere sport to "roast a Dissenter," and bring another £600 into the treasury toward the expenses of the mansion house.

At length Allan Evans, Esq., a man of spirit, who had been selected as a victim, resolved to try the question. He refused to pay the fine, and was sued in the Sheriff's Court. Here he pleaded his rights

3 This is one of those sentences of Cicero, in his first oration against Catiline, which it is impossible to translate. Striking as the sentiment is, it owes mach of its force and beauty to the fine antithesis with which it flashes upon the mind, and even to the paronomasia on the word invidiam, while its noble rhythmus adds greatly to the effect. To those

who are not familiar with the original, the following may give a conception of the meaning: Such have always been my feelings, that I look upon odium incurred by the practice of virtue, not as odium, but as the highest glory.

1 See Parliamentary History.

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.

view of the

argument.

I. If they rely on the Corporation Act; by the Preliminary literal and express provision of that act, grounds of no person can be elected who hath not 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 of the law, a crime; every man being required by the canon law (received and confirmed by the statute law) to take the sacrament in the Church at least once a year. The law would not then permit a man to say that he had not taken the sacrament in the Church of England; and he could not be allowed to plead it in bar of any action brought against him.

III. But the case is quite altered since the Act Effect of the of Toleration. It is now no crime Teleration 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.

exempted from punishment, but rendered innocent and lawful. It is established; it is put under the protection, and is not merely under the connivance of the law. In case those who are appointed by law to register dissenting places of worship refuse on any pretense to do it, we must, upon application, send a mandamus to compel them.

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."

When it was said, therefore, that " a man can not plead his crime in excuse for not doing what In the case of the Mayor of Guilford, the Tolhe is by law required to do," it only amounts to eration Act was pleaded. The plea was allowthis, 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.