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And here the defendant hath likewise insisted 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

in their verdict. If a man then alleges he is a 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.

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 impolitic 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 cut

There was no occasion to revoke the Edict of Nantes. The Jesuits needed only to have advised a plan similar to what is contended for in the present case, Make a law to render them incapable of office, make another to punish them for not serving. If they accept, punish them (for it is admitted on all hands that the defendant, in the cause before your Lordships, is prosecutable for taking the office upon him)-if they accept, punish them; if they refuse, punish them. If they say yes, punish them; if they say no, punish them. My Lords, this is a most exquisite dilemma, from which there is no escaping. It is a trap a man can not get out of; it is as bad persecution as that of Procrustes. If they are too short, stretch them; if they are too long, lop them. Small would have been their consolation to have been gravely told, "The Edict of Nantes is kept inviolable. You have the full benefit of that act of toleration; you may take the sacrament in your own way with impunity; you are not compelled to go to mass." Were this case but told in the city of London, as of a proceeding in France, how would they exclaim against the Jesuitical distinction? And yet, in truth, it comes from themselves. The Jesuits never thought of it. When they meant to persecute by their act of toleration, the Edict of Nantes was repealed.

The professed design of making this by-law was to get fit and able persons to serve the office; and the plaintiff sets forth in his declaration, that, if the Dissenters are excluded, they shall want fit and able persons to serve the office. But, were I to deliver my own suspicion, it would be, that they did not so much wish for their services as their fines. Dissenters have been appointed to this office, one who was blind, another who was bed-ridden; not, I suppose, on account of their being fit and able to serve the office. No: they were disabled both by nature and by law.

We had a case lately in the courts below, of a person chosen mayor of a corporation while he was beyond seas with his Majesty's troops in America, and they knew him to be so. Did they want him to serve the office? No; it was impossible. But they had a mind to continue the former mayor a year longer, and to have a pretense for setting aside him who was now chosen, on all future occasions, as having been elected before.

In the case before your Lordships, the defendant was by law incapable at the time of his pretended election; and it is my firm persuasion that he was chosen because he was incapable. If he had been capable, he had not been chosen, for they did not want him to serve the office. They chose him because, without a breach of the law, and a usurpation on the Crown, he could not serve the office. They chose him, that he might fall under the penalty of their by-law, made to serve a particular purpose; in opposi tion to which, and to avoid the fine thereby imposed, he hath pleaded a legal disability, grounded on two acts of Parliament. As I am of opin

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 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 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.

"That the judgment be affirmed."

The judgment was accordingly affirmed, and an end put to a system of extortion so mean and scandalous, that it seems difficult to understand, at the present day, how an English community could have endured, or English courts have upheld, 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 mortifying to the citizens of London, among whom the fires of Smithfield had left a traditional horror

of Popish cruelty, than to be thus held out to the world as more cruel and Jesuitical than the detested 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 Lower House. Commerce having thus got into the legislative body of the kingdom, privilege must be done away. We all know that the very soul and essence of trade are regular payments; and sad experience teaches us that there are men who will not make their regular payments without the compulsive power of the laws. The law, then, ought to be equally open to all. Any exemption to particular men, or particular ranks of men, is, in a free commercial country, a solecism of the grossest nature.

Privileges have been granted to legislators in all ages and in all countries. The practice is founded in wisdom; and, indeed, it is peculiarly essential to the Constitution of this country, that the members of both Houses should be free in their persons in cases of civil suits; for there may come a time when the safety and welfare of this whole empire may depend upon their attendance in Parliament. God forbid that I should advise any measure that would in future endanger the state. But the bill before your Lordships has, I am confident, no such tendency, for it expressly secures the persons of members of either House in all civil suits. This being the case, I confess, when I see many noble Lords, for whose judgment I have the greatest respect, standing up to oppose a bill which is calculated merely to facilitate the recovery of just and legal debts, I am astonished and amazed. They, I doubt not, oppose the bill upon public principles. I would not wish to insinuate that private interest has the least weight in their determination.

This bill has been frequently proposed, and as frequently miscarried; but it was always lost in the Lower House. Little did I think, when it had passed the Commons, that it possibly could have met with such opposition here. Shall it be said that you, my Lords, the grand council of the nation, the highest judicial and legislative body of the realm, endeavor to evade by privilege those very laws which you enforce on your fellowsubjects? Forbid it, justice. I am sure, were the noble Lords as well acquainted as I am with but half the difficulties and delays that are every day occasioned in the courts of justice, under pretense of privilege, they would not, nay, they could not, oppose this bill.

I have waited with patience to hear what arguments might be urged against the bill; but I have waited in vain. The truth is, there is no argument that can weigh against it. The justice and expediency of this bill are such as renL

But I will not trouble your Lordships with arguments for that which is sufficiently evident without any. I shall only say a few words to some noble Lords, who foresee much inconvenience from the persons of their servants being liable to be arrested. One noble Lord observes, that the coachman of a peer may be arrested while he is driving his master to the House, and consequently he will not be able to attend his duty in Parliament. If this was actually to happen, there are so many methods by which the member might still get to the House, I can hardly think the noble Lord to be serious in his objection. Another noble Lord said, that by this bill one might lose his most valuable and honest servants. This I hold to be a contradiction in terms; for he neither can be a valuable servant, nor an honest man, who gets into debt, which he neither is able nor willing to pay till compelled by law. If my servant, by unforeseen accidents, has got in debt, and I still wish to retain him, I certainly would pay the debt. But upon no principle of liberal legislation whatever can my servant have a title to set his creditors at defiance, while, for forty shillings only, the honest tradesman may be torn from his family and locked up in jail. It is monstrous injustice! I flatter myself, however, the determination of this day will entirely put an end to all such partial proceedings for the future, by passing into a law the bill now under your Lordships' consideration.

I now come to speak upon what, indeed, I | would have gladly avoided, had I not been particularly pointed at for the part I have taken in this bill. It has been said by a noble Lord on my left hand that I likewise am running the race of popularity. If the noble Lord means by popularity that applause bestowed by after ages on good and virtuous actions, I have long been struggling in that race, to what purpose all-trying time can alone determine. But if the noble Lord means that mushroom popularity which is raised without merit, and lost without a crime, he is much mistaken in his opinion. I defy the noble Lord to point out a single action in my life where the popularity of the times ever had the smallest influence on my determinations. I thank God I have a more permanent and steady rule for my conduct the dictates of my own breast. Those that have foregone that pleasing adviser, and given up their mind to be the slave of every popular impulse, I sincerely pity. I pity them still more if their vanity leads them to mistake the shouts of a mob for the trumpet of their fame. Experience might inform them that many who have been saluted with the huzzas of a crowd one day, have received their execrations the next; and many who, by the popularity of their times, have been held up as spotless patriots, have nevertheless appeared upon the historian's page, when truth has triumphed over delusion, the assassins of liberty.

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Why, then, the noble Lord can think I am ambitious of present popularity, that echo of folly and shadow of renown, I am at a loss to determine. Besides, I do not know that the bill now before your Lordships will be popular. It depends much upon the caprice of the day. It may not be popular to compel people to pay their debts; and in that case the present must be an unpopular bill. It may not be popular, neither, to take away any of the privileges of Parliament; for I very well remember, and many of your Lordships may remember, that not long ago the popular cry was for the extension of privilege. And so far did they carry it at that time, that it was said that privilege protected members from criminal actions; nay, such was the power of popular prejudices over weak minds, that the

very decisions of some of the courts were tinctured with that doctrine.' It was undoubtedly an abominable doctrine. I thought so then, and think so still. But, nevertheless, it was a popular doctrine, and came immediately from those who were called the friends of liberty, how deservedly time will show. True liberty, in my opinion, can only exist when justice is equally administered to all-to the King and to the beggar. Where is the justice, then, or where is the law, that protects a member of Parliament more than any other man from the punishment due to his crimes? The laws of this country allow no place nor employment to be a sanctuary for crimes; and, where I have the honor to sit as judge, neither royal favor nor popular applause shall ever protect the guilty.

I have now only to beg pardon for having employed so much of your Lordships' time; and I am very sorry a bill, fraught with so good consequences, has not met with an abler advocate; but I doubt not your Lordships' determination will convince the world that a bill, calculated to contribute so much to the equal distribution of justice as the present, requires, with your Lordships, but very little support.

The act was finally passed.

may

1 This refers to the case of Mr. Wilkes, who was arrested under a general warrant for a seditious libel on the King. He was taken before the Court of Common Pleas by a writ of Habeas Corpus, and there pleaded his privilege against arrest as a member of Parliament. The court, with Lord Camden at their head, unanimously decided, that members were free from arrest in all cases except treason, felony, and actual breach of the peace. Whatever have been the merits of this case, it was unworthy of Lord Mansfield to sneer at Lord Camden and his associates as "weak minds." ities then stood," says Lord Campbell, “I think a court of law was bound to decide in favor of privilege in such a case." This, it is believed, has been the general sentiment of the English bar; while all agree that this extension of privilege to criminal cases was wrong in principle, and was very properly set aside a short time after, by a joint resolution of the two houses of Parliament.

"As author

JUNIUS.

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 unscrupu

lous 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.

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