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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 prosecations, 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 Jaly, 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 Middleser." Mr. Wilkes was now the favorite of the populace. Tumultuous meetings were held in his behalf in va. rious 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.
SPEECH, &c.' But here let me pause.
for that prosecution. We did not advise or asIt is fit to take some notice of various terrors sist the defendant to fly from justice; it was his being out-the numerous crowds which have at- own act, and he must take the consequences. tended and now attend in and about the hall, out None of us have been consulted or had any thing of all reach of hearing what passes in court, and to do with the present prosecution. It is not in the tumults which, in other places, have shame- our power to stop it; it was not in our power fully insulted all order and government. Auda- to bring it on. We can not pardon. We are to cious addresses in print dictate to us, from those say what we take the law to be. If we do not they call the people, the judgment to be given speak our real opinions, we prevaricate with now, and afterward upon the conviction. Rea- God and our own consciences. suns of policy are urged, from danger in the I pass over many anonymous letters I bave kingdom by commotions and general confusion. received. Those in print are public, and some
Give me leave to take the opportunity of this of them have been brought judicially before the great and respectable audience to let the whole court. Whoever the writers are, they take the world know all such attempts are vain. Unless wrong way! I will do my duty unawed. What we have been able to find an error which bears am I to fear? That “mendax infamia" [lying us out to reverse the outlawry, it must be affirm- scandal] from the press, which daily coins false ed. The Constitution does not allow reasons of facts and false motives? The lies of calumny state to influence our judgments: God forbid it carry no terror to me. I trust that the temper should! We must not regard political conse- of my mind, and the color and conduct of my quences, how formidable soever they might be. life, have given me a suit of armor against these If rebellion was the certain consequence, we are arrows. If during this King's reign I have ever
"Fiat justitia, ruat cælum.”3 The supported his government, and assisted his measConstitution trusts the King with reasons of state ures, I have done it without any other reward and policy. He may stop prosecutions ; he may than the consciousness of doing what I thought pardon offenses; it is his to judge whether the right. If I have ever opposed, I have done it law or the criminal shall yield. We have no upon the points themselves, without mixing in election. None of us encouraged or approved party or faction, and without any collateral the commission of either of the crimes of which views. I honor the King and respect the peothe defendant is convicted. None of us had any ple; but many things acquired by the favor of hand in his being prosecuted. As to myself
, I either are, in my account, objects not worthy of took no part in another place) in the addresses ambition. I wish popularity, but it is that pop
ularity which follows, not that which is run aft* From Burrow's Reports, iv., 2561.
It is that popularity which, sooner or later, · Be justice done, though heaven in ruirs fall. never fails to do justice to the pursuit of noble
bound to say,
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,
effect of the Corporation
SPEECH, &c. My LORD, -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, tion 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 obligations, and restrictions, might be clearly and cer- tion to take the sacrament at church, the defend. tainly known, as a rule to be followed hereafter ant is guilty of no neglect—no criminal negin 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 dein 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 upon which your Lordships thought this case upon him, was most certainly intended Act turned; 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, grounds of 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) “ to 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 ? Lives of the Chancellors, v., 287.
tempt persons who were ill affected to the gov
ernment occasionally to conform. It was not, I Persecution for a sincere thorgh erroneous say, their design 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 upon 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 ardetermined 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, sach 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 Corpolaid down a description whereby they should be ration Act ought to have been mentioned thereknown 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 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 reErect 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 dequalified; 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 punnal principles of natural religion are part of the ishment whatsoever, on account of their noncommon 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 particular modes of worship.
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, (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 passthat 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 or 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 incan 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 manas 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 afterWhen 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 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, when ed good, the disability being esteemed a lawful pleaded, is no excuse ; but there is not in this one; and the nt was ght.