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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. Dissenter, and claims the protection and the adIn 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-anduce 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 inThe 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 But 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 adman's sincerity may be judged of by overt acts. vance upon the subject, in the dedication of his It is a 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 freqnent 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 not, may be ascertained by their neighbors, and (I hope I may say it without breach of Christian by those who frequent the same places of wor- charity) if France had continued to cherish the ship. In case a man hath occasionally con- Jesuits and to persecute the Huguenots.3 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 cat
There was no occasion to revoke the Edict of The professed 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 sets forth in his declarain 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 suspi(for it is admitted on all hands that the defend- cion, it would be, that they did not so much wish 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, on 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
have a 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 been 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 defendagainst 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 their 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 imToleration Act, in the face of them, for they posed, he hath pleaded a legal disability, groundknew these laws were in being. It was made ed on two acts of Parliament. As I am of opinin some year in the reign of the late King-Iion 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 have 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 upto that.
held, it for a single hour.
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. ting rebuke which follows. Nothing could be more of Popish cruelty, than to be thus held 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.
SPEECH, &c. My LORDS,—When I consider the importance der it self-evident. It is a proposition of that of this bill to your Lordships, I am not surprised nature that can neither be weakened by arguit has taken so much of your consideration. It ment, nor entangled with sophistry. Much, inis a bill, indeed, of no common magnitude. It is deed, has been said by some noble Lords on the no less than to take away from two thirds of the wisdom of our ancestors, and how differently they Legislative body of this great kingdom, certain thought from us. They not only decreed that privileges and immunities of which they have privilege should prevent all civil suits from probeen long possessed. Perhaps there is no situ- ceeding during the sitting of Parliament, but likeation the human mind can be placed in, that is wise granted protection to the very servants of so difficult, and so trying, as where it is made a members. I shall say nothing on the wisdom of judge in its own cause. There is something im- our ancestors. It might perhaps appear invidplanted in the breast of man so attached to itself
, ious, and is not necessary in the present case. so tenacious of privileges once obtained, that, in I shall only say, that the noble Lords that flatter such a situation, either to discuss with impartial themselves with the weight of that reflection, ity, or decide with justice, has ever been held as should remember, that, as circumstances alter, the summit of all human virtue. The bill now things themselves should alter. Formerly it was in question puts your Lordships in this very pre not so fashionable either for masters or servants dicament; and I doubt not but the wisdom of to run in debt as it is at present; nor formerly your decision will convince the world, that, where were merchants or manufacturers members of self-interest and justice are in opposite scales, the Parliament, as at present. The case now is very latter will ever preponderate with your Lord- different. Both merchants and manufacturers ships.
are, with great propriety, elected members of the Privileges have been granted to legislators in Lower House. Commerce having thus got into all ages and in all countries. The practice is the legislative body of the kingdom, privilege founded in wisdom; and, indeed, it is peculiarly must be done away. We all know that the very essential to the Constitution of this country, that soul and essence of trade are regular payments; the members of both Houses should be free in and sad experience teaches us that there are their persons in cases of civil suits; for there men who will not make their regular payments may come a time when the safety and welfare without the compulsive power of the laws. The of this whole empire may depend upon their at- law, then, ought to be equally open to all. Any tendance in Parliament. God forbid that I exemption to particular men, or particular ranks should advise any measure that would in future of men, is, in a free commercial country, a soleendanger the state. But the bill before your cism of the grossest nature. Lordships has, I am confident, no such tendency, But I will not trouble your Lordships with arfor it expressly secures the persons of members guments for that which is sufficiently evident of either House in all civil suits. This being the without any. I shall only say a few words to case, I confess, when I see many noble Lords, some noble Lords, who foresee much inconvenfor whose judgment I have the greatest respect, ience from the persons of their servants being standing up to oppose a bill which is calculated liable to be arrested. One noble Lord observes, merely to facilitate the recovery of just and legal that the coachman of a peer may be arrested debts, I am astonished and amazed. They, I while he is driving his master to the House, and doubt not, oppose the bill upon public principles. consequently he will not be able to attend his I would not wish to insinuate that private interest duty in Parliament. If this was actually to haphas the least weight in their determination. pen, there are so many methods by which the
This bill has been frequently proposed, and as member might still get to the House, I can hardly frequently miscarried; but it was always lost in think the noble Lord to be serious in his objecthe Lower House. Little did I think, when it tion. Another noble Lord said, that by this bill had passed the Commons, that it possibly could one might lose his most valuable and honest servhave met with such opposition here. Shall it be ants. This I hold to be a contradiction in terms; said that you, my Lords, the grand council of the for he neither can be a valuable servant, nor an nation, the highest judicial and legislative body honest man, who gets into debt, which he neither of the realm, endeavor to evade by privilege is able nor willing to pay till compelled by law. those very laws which you enforce on your fellow. If my servant, by unforeseen accidents, has got subjects ? Forbid it, justice. I am sure, were in debt
, and I still wish to retain him, I certainly the noble Lords as well acquainted as I am with would pay the debt. But upon no principle of but half the difficulties and delays that are every liberal legislation whatever can my servant have day occasioned in the courts of justice, under pre- a title to set his creditors at defiance, while, for tense of privilege, they would not, nay, they could forty shillings only, the honest tradesman may be not, oppose this bill.
torn from his family and locked up in jail. It is I have waited with patience to hear what ar- monstrous injustice ! I flatter myself
, however, guments might be urged against the bill; but I the determination of this day will entirely put an have waited in vain. The truth is, there is no end to all such partial proceedings for the future, argument that can weigh against it. The jus. by passing into a law the bill now under your tice and expediency of this bill are such as ren- Lordships' consideration.
I now come to speak upon what, indeed, I | very decisions of some of the courts were tincwould have gladly avoided, had I not been par- tured with that doctrine. It was undoubtedly ticularly pointed at for the part I have taken in an abominable doctrine. I thought so then, and this bill." It has been said by a noble Lord on think so still. But, nevertheless, it was a popular my left hand that I likewise am running the race doctrine, and came immediately from those who of popularity. If the noble Lord means by pop- were called the friends of liberty, how deservedly ularity that applause bestowed by after ages on time will show. True liberty, in my opinion, good and virtuous actions, I have long been strug- can only exist when justice is equally adminisgling in that race, to what purpose all-trying tered to all—to the King and to the beggar. time can alone determine. But if the noble Where is the justice, then, or where is the law, Lord means that mushroom popularity which is that protects a member of Parliament more than raised without merit, and lost without a crime, any other man from the punishment due to his he is much mistaken in his opinion. I defy the crimes? The laws of this country allow no noble Lord to point out a single action in my place nor employment to be a sanctuary for life where the popularity of the times ever had crimes; and, where I have the honor to sit as the smallest influence on my determinations. I judge, neither royal favor nor popular applause thank God I have a more permanent and steady shall ever protect the guilty. rule for my conduct — the dictates of my own I have now only to beg pardon for having embreast. Those that have foregone that pleasing ployed so much of your Lordships' time; and I adviser, and given up their mind to be the slave am very sorry a bill, fraught with so good conof every popular impulse, I sincerely pity. I sequences, has not met with an abler advocate ; pity them still more if their vanity leads them to but I doubt not your Lordships' determination mistake the shouts of a mob for the trumpet of will convince the world that a bill, calculated to their fame. Experience might inform them that contribute so much to the equal distribution of many who have been saluted with the huzzas of justice as the present, requires, with your Lorda crowd one day, have received their execrations ships, but very little support. the next; and many who, by the popularity of their times, have been held up as spotless patriots, have nevertheless appeared upon the histori
The act was finally passed. an's page, when truth has triumphed over delusion, the assassins of liberty.
1 This refers to the case of Mr. Wilkes, who was Why, then, the noble Lord can think I am am- arrested under a general warrant for a seditious bitious of present popularity, that echo of folly libel on the King. He was taken before the Court and shadow of renown, I am at a loss to determ- of Common Pleas by a writ of Habeas Corpus, and ine. Besides, I do not know that the bill now there pleaded his privilege against arrest as a membefore your Lordships will be popular. It de- ber of Parliament. The court
, with Lord Camden
at their head, unanimously decided, that members pends much upon the caprice of the day. It were free from arrest in all cases except treason, may not be popular to compel people to pay their felony, and actual breach of the peace. Whatever debts; and in that case the present must be an may have been the merits of this case, it was ununpopular bill. It may not be popular, neither, worthy of Lord Mansfield to speer at Lord Camden to take away any of the privileges of Parliament; and his associates as “weak minds." "As author. for I very well remember, and many of your ities then stood," says Lord Campbell, “ I think a Lordships may remember, that not long ago the court of law was bound to decide in favor of privi. popular cry was for the extension of privilege. lege in such a case." This, it is believed, has been And so far did they carry it at that time, that it the general sentiment of the English bar; while all
agree that this extension of privilege to criminal was said that privilege protected members from cases was wrong in principle, and was very propcriminal actions ; nay, such was the power of erly set aside a short time after, by a joint resolu. popular prejudices over weak minds, that the tion of the two houses of Parliament.
STAT NOMINIS UMBRA.1
THE LETTERS OF JUNIUS have taken a permanent place in the eloquence of our language. Though often false in statement and malignant in spirit, they will never cease to be read as specimens of powerful composition : For the union of brilliancy and force, there is nothing superior to them in our literature. Nor is it for his style alone that Junius deserves to be studied. He shows great rhetorical skill in his mode of developing a subject. There is an arrangement of a given mass of thought, which serves to throw it upon the mind with the greatest possible effect. There is another arrangement which defeats its object, and renders the impression feeble or indistinct. Demosthenes was, of all men, most perfectly master of the one; the majority of extemporaneous speakers are equally good examples of the other.
Junius had evidently studied this subject with great care ; and it is for the sake of urging it upon the young orator that some of the ablest of his productions will now be given. Happily, the selection is easy There are ten or twelve of his letters which stand far above the rest for strength of thought and elegance of diction. These will be found below, with the exception of his Letters to Lord Mansfield, which, though highly finished in respect to style, are now universally condemned for their errors, both in law and fact, and their unmerited abuse of the greatest of English jurists. In regard to his treatment of others, it is hardly necessary to say that the statements of Junius are to be taken with great allowance. He was an unscrupulous political partisan; and though much that he said of the Duke of Grafton and the other objects of his vengeance was strictly true, they were by no means so weak or profligate as he here represents them. We might as well take Pope's Satires for a faithful exhibition of men and manners in the days of George II.
It is, therefore, only as an orator—for such he undoubtedly was in public life, and such he truly is in these letters—that we are now to consider him. In this character his writings are worthy of the closest study, especially in respect to the quality alluded to above. Each of these letters was the result of severe and protracted labor. We should have known it, if he had not himself avowed the fact, for we see every where the marks of elaborate forecast and revision ; and we learn, from his private correspondence with Woodfall, that he expended on their composition an amount of anxiety and effort which hardly any other writer, especially one so proud, would have been willing to acknowledge. Yet it is certain that by far the greater part of all this toil was bestowed, not upon the language, but on the selection and arrangement of his ideas. His mind, in early life, had clearly been subjected to the severest logical training. Composition, with him, was the creation of a system of thought, in which every thing is made subordinate to a just order and sequence of ideas. One thought grows out of another in regular succession. His reasonings
1 This celebrated motto was taken from the first book of Lucan's Pharsalia, line 135. The poet there speaks of Pompey, when he entered into the war with Cesar, as having his name, or reputation, chiefly in the past; and adds, in reference to this idea, “Stat magni nominis umbra" He stands the shadow of a mighty name. When the author of these letters collected them into a volume, he beautifully appropriated these words to himself, with the omission of the word magni, and a change of application. He placed them on the title-page, in connection with the word Junius, which “ stands the shadow of a name," whose secret was intrusted to no one, and was never to be revealed.