prerogative, and the King's prerogative defends the people's liberties. So said the unfortunate prince Charles the First. But he said it falsely and deceitfully, applying it to his own depraved principles of government, in which he was nursed up to his ruin, by a father who never sat in that chair, but he taught, like a royal professor, the doctrines of arbitrary power to your lordships' ancestors, who were but unapt scholars. What the self-deluded and self-destroyed king said deceitfully, I think sincerely in the just sense. Neither, my lords, do I fear the power of the crown, in the hands of the gracious prince now reigning. He made it his early declaration from the throne, that our liberty was as dear to him as his own prerogative: and I trust a long line of illustrious descendents sprung from him, will inherit his zeal for the liberties of this country, the laws of which transferred the imperial diadem of these realms from those who were not worthy of it, to his Majesty's august House. The freedom of the subject is the brightest jewel in the crown. It is the super-eminent prerogative of the kings of England, by which they excel in glory all the sovereigns on earth, that they rule over freemen, not over slaves. The Brunswick line esteems it so they have shewn it. hours or days. Had parliament been people's liberties strengthen the King's called, even when it was culpably prorogued, it might have had a longer notice than many sessions have sat upon. Nor can I see any notable inconveniency in calling it so soon, unless that the noble lord could not have stayed so long at the waters, as I presume it could not have safely met with his lordship's presence to guide it. As to forty days notice being necessary for calling parliament, it is an assertion without all foundation, contradicted by usage, and by the very style of the usual proclamations which speak only of due and convenient notice; to effect which, there is no charm either in the number forty, thirty, or any other. I was surprized to hear the noble and learned lord say, he held it to be the law of parliament, that forty days was necessary. There is no such mos parliamentarius.' And the noble lord must have forgot himself: for in the very first year of this reign, parliament was called and sat for dispatch of business on twelve days notice by proclamation. The noble lord knows who then advised his Majesty, and was in the first office in the kingdom. But if it were nenessary to go into them, numberless instances since the Union are ready to be pointed out, of parliament being called and sitting on twelve, sixteen, twenty days, and other indifferent numbers: and the noble and learned lord is unsupported in this opinion, which is, indeed, totally a mistake; the other noble and learned lord on the woolsack having agreed that twenty days is due notice. There remains, therefore, no cloak or excuse for the blunder of proroguing parliament for sixty-one instead of forty days, at a time when it was so necessary to have assembled it upon the shortest notice for which there was any precedent; and when, if it had been called even upon twenty days from the date of the proclamation proroguing it, it would have prevented the necessity for an embargo by the crown against law, and hindered those dangerous tumults and insurrections that at last extorted an act of such dangerous example from administration. My lords, the occasion is my apology for having said so much; yet it is but a small part of what might have been said on the subject, upon which I have taken the liberty to trouble you. My lords, I am not afraid of the just prerogative of the crown. It is a part of the constitution, and it is salutary. The But, my lords, I dread principles, the scars of which this nation yet bears :Principles destructive to the people, dangerous to the prince :-Principles that lie at the root of all the illegal prerogatives usurped, and all the arbitrary power exercised by a Charles or a James. These principles I will resist, adopt or countenance them who will. I will resist them not more from regard to liberty, than from love to my sovereign and his family. They are poisonous principles, and they are infectious. If it were possible to deceive even the elect family-to impose upon a prince of that House chosen to maintain our liberties, it could only be done by principles found in the mouths of the professed friends of liberty, who have got access to the royal ear by such professions. The safety of the crown, as well as the security of the subject, requires us to shut up every avenue that could lead to tyranny: and he who would unbar those gates which exclude it, is not, in his heart, far from the lust of it. I will suspect no man without a cause: but I will trust no man with what the constitution has not made a trust; with any power that must | do a general mischief; though, in a particular emergency, it might have a chance of doing some good. Such a power I will not trust in the crown; no, not for a case of necessity. For as lord Falkland, while he remained the advocate for liberty, and before he listed in the service of King Charles's despotism, said, speaking of the ship-money judges, and their criminal opinion, When that necessity, which they would have so absolute and certain, takes place, the law of the land ceases; and that of general reason and equity, by which particular laws at first were framed, returns to the king's throne and government, where salus populi' becomes not only suprema,' but sola lex;' at which, and to which end, whosoever dispenses with the king, dispenses with us, to make use of his and one another's.' My lords; men are but men. Unwise and unsafe trusts are the surest inlet of treacherous and infamous breaches of trust. The history of England shews how quickly and shamefully heroes for liberty have become tools of despotism. But, to use words I have heard from a certain noble lord, when such expressions served his turn,-If we see an arbitrary and tyrannical disposition somewhere, the call for watchfulness is loud. Danger knocks at the gate. A tyrannical subject wants but a tyrannical-disposed master, to be a minister of arbitrary power. If such a minister finds not such a master, he will be the tyrant of his prince, as much as of his fellow servants and fellow subjects. I should be sorry to see my sovereign in chains, even if he were content to wea them; to see him unfortunately in chains, from which, perhaps, he could with difficulty free himself, till the person who imposed them runs away; which every good subject would, in that case, heartily wish might happen, the sooner the better for all. We are a free people; and I am for a free king. 1767. Speech of Lord Mansfield in the House of Lords, in the Cause between the City of London and the Dissenters.] It is proper the reader should be apprized, previous to the perusal of the following Speech, that in 1748, the corporation of London made a by-law, with a view, as they alledged, of procuring fit and able persons to serve the office of sheriff of the said corporation; imposing for that end a fine of 400l. and twenty marks upon every person who, being nominated by the lord mayor, declined standing the election of the common hall; and 600l. upon every one who, being elected by the common hall, refused to serve the office. Which fines they appropriated to defraying the expence of building the Mansion-house. Many Dissenters were nominated and elected to the said office, who were incapable of serving; it having been enacted by the Corporation Act, (13 Car. 2, stat. 2, c. 1.) that no person should be elected into any corporation offices, who had not taken the sacrament in the church of England within a year preceding the time of such election; and several of them accordingly paid their fines, to the amount of above 15,000l. Some at length refused to pay their fines, apprehending they could not be obliged, by law, to fine for not serving an office to which they were, by law, uneligible. The city, therefore, brought actions of debt against them in a court of their own, called the Sheriffs' court, for the recovery of those fines. After many delays the cause came to a hearing in the case of Allen Evans, esq., and judgment was given for the plaintiff in September 1757. The defendant Evans brought the cause before the Court of Hustings, another city court, to which an appeal lay; and the judgment was there affirmed by the Recorder in the year 1759. The defendant then, by writ of error, brought the cause before the court of judges delegates, called the Court of St. Martin's: the delegates were, lord chief justice Willes, lord chief baron Parker, Mr. Justice Foster, Mr. Justice Bathurst, and Mr. Justice Wilmot. Lord chief justice Willes dying before judgment was given, the rest of the delegates delivered their opinions seriatim, July 5, 1762, and unanimously reversed the judgment of the Sheriffs' court, and Court of Hustings. The corporation then, by writ of error, brought the cause before the House of Lords, when all the Judges who had not sat as delegates, except Mr. Justice Yates, who was ill, gave their opinions seriatim, Feb. 3rd and 4th, 1767, upon a question put to them by the House. After which lord Mansfield, in his place as a peer, made the following Speech. It is proper, however, as an introduction to it, to prefix the question which the House of Lords put to the Judges; as also their Opinions upon it: a question which the noble lord who moved it hath worded | liberty, and should be allowed to object to with such precision, that it is hardly possi- the validity of his election, on account of ble the point on which the cause turns his not having taken the sacrament acshould be mistaken on any future occa- cording to the rites of the church of Engsion. land within a year before, in bar of this action. January 22, 1767. Counsel, according to order, were called in to be farther heard in the cause upon a writ of error brought into this House, wherein the Chamberlain of the city of London is plaintiff, and Allen Evans, esq. defendant: and the counsel for the defendant having been heard, as also one counsel for the plaintiff by way of reply, the counsel were directed to withdraw. And it being proposed, that the Judges be directed to deliver their opinions upon the following question : Q. Whether, upon the facts admitted by the pleadings in this cause, the defendant is at liberty, or should be allowed to object to the validity of his election on account of his not having taken the sacrament according to the rites of the church of England within a year before, in bar of this action? The same was agreed to, and the said question was accordingly put to the Judges. Whereupon the Judges desiring some time might be allowed them for that pose, pur Ordered, That the farther hearing of the said cause be adjourned till Tuesday next; and that the Judges do then attend to deliver their opinions upon the said question. January 27. The order of the day being read for the farther hearing of the said cause, the Lord Chancellor acquainted the House, that the Judges differed in their opinions, and that they desired that farther time might be allowed them for giving their opinions upon the said question. Ordered, That the farther hearing of the said cause be adjourned to this day sevennight; and that the Judges do then attend to deliver their opinions upon the said question. February 3. The order of the day being read for the farther hearing of the said cause, and for the Judges to deliver their opinions upon the question proposed to them on Thursday the 22nd of January, the Lord Chancellor acquainted the House, that the Judges differed in their opinions; and thereupon they were directed to deliver their opinions seriatim, with their reasons. Accordingly, Mr. Justice Hewitt was heard, and gave his reasons, and concluded with his opinion, That the defendant is at Mr. Justice Aston heard, and was of the same opinion, and gave his reasons. Mr. Baron Perrott heard, and gave his reasons, and concluded with his opinion, That the defendant is not at liberty, nor ought to be allowed to object to the validity of his election on account of his not having taken the sacrament according to the rites of the church of England within a year before, in bar of this action. Mr. Justice Gould heard, and was of the same opinion as Mr. Justice Aston, and gave his reasons. Ordered, That the farther consideration of the said cause be adjourned till to-morrow; and that the Judges do then attend. February 4. The order of the day being read for the farther hearing of the said cause, and for the Judges to attend, Mr. Baron Adams was heard, and gave his reasons, and concluded with his opinion, that the defendant is at liberty, &c. Mr. Baron Smythe heard, and was of the same opinion, and gave his reasons. Mr. Justice Clive heard, and was of the same opinion, and gave his reasons. As soon as the Judges had given their opinions, lord Mansfield made the following Speech: LORD MANSFIELD'S SPEECH in the House of Lords, in the Case of the Chamberlain of London against Allen Evans, esq. 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, shews the point upon which your lordships thought this cause 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 by-law, 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 cannot be supported. 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 the government in church and state. It was not their design, as hath been said [by Mr. Baron Perrott], to bring such persons into corporations, by induc-. If they rely on the Corporation Act-by the literal and express provision of that act 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 designing them to take the sacrament in the 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 defendant 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 by-law, since 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 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. The Corporation Act, pleaded by the defendant as rendering him uneligible to this office, and incapable of taking it upon him, was most certainly intended 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 church of England; the legislature did not mean to tempt persons, who were ill affected to the government, 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 alledged in the act itself; it was because there were evil spirits' amongst them; and they were afraid of evil spirits, and determined to keep them out: and therefore they 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 previous to such election; instead of appointing a condition of their serving the office, resulting from their future conduct, or some consequent action to be performed by them; they declared such persons incapable of being chosen, as had not taken the sacrament in the church within a year before such election; and without this mark of their affection to the church, they could not be in office, and there could be no election. But as the law then stood, no man could have pleaded this disability, resulting from the Corporation Act, in bar of such an action as is now brought against the defendant; because this disability 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 sta tute law, to take the sacrament in the church at least once a year: the law would not 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. But the case is quite altered since the Act of Toleration: it is now no crime 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 inforcing it depending wholly upon the statute law. Now the statute law is repealed as to persons capable of pleading 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. 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 cannot be shewn 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. 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. It hath been said [by Mr. Baron Perrott,] that the Toleration Act only amounts to an exemption of Protestant Dissenters from the 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 therein; and there ought to have been some enacting clause, exempting Dissenters from prosecution in consequence of this Act, and enabling them to plead their not having received the sacrament according to the rites of the church of England, in bar of such action.' But this is much too limited and narrow a conception of the Toleration Act; which amounts consequentially to a great deal more than this; and it hath consequentially an influence and operation upon the Corporation Act in particular. The Toleration Act renders that which was illegal before, now legal; the Dissenters' way of worship is permitted and allowed by this act; it is not only 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 pretence to do it, we must, upon application, send a mandamus to compel them. Now there cannot 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 an 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 device is not a good and valid one now? And yet there is nothing said of this in the Toleration Act. By that 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 of England, in bar of this action. It is such a disability as doth not leave him liable to any action, or to any penalty or punishment whatsoever. |