Page images
PDF
EPUB

a writ of errour in parliament, and on the 4th of February 1767, lord Mansfield with five other judges, against Perrot, baron, were of opinion that the defendant should be allowed to object to the validity of his election to the office of sheriff, in bar to the action, because he had not taken the sacrament within the time limited by law*

On a motion in the house of lords, made February the 4th 1767, to take the opinion of the judges in this case, the earl of Mansfield delivered the subsequent speech, which we are informed, by the learned reporter of it,t was published with his lordship’s consent and approbation.

It will be found to be an admirable model of juri. dical eloquence. The arrangement of it is peculiarly luminous. The arguments are solid. It displays much legal erudition, and has purity of diction, with sentiments liberal, and enlightened.

SPEECH, &C. MY LORDS,

AS I made the motion for taking the opinion of the learned judges, and proposed the question your lordships have been pleased to put to them; it may be expected that I should make some further 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 errour. 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 pre , sent case, be allowed to plead his disability in bar of the action brought against him ?”

* Bac. Abrid.

† Dr. Philip Furneaux.

The question, thus worded, shows the point upon which your lordships thought this case turned ; and the answer necessarily fixes a criterion, under what circumstances, and by what persons, such a disability may be pleaded as an exemption from the pe. nalty 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 consi . der this matter, I think this action cannot be supported.

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 design of the legislature in passing the Corporation act; the design was, to exclude dissenters from office, and disable them from serving. For, in those times, when a spirit of intolerance prevailed, and severe measures were pursued, the dissenters were reputed and treated as persons ill affected and dangerous to the government. The 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 ineligible 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 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 further enacted, that, from the termination of that commission, no person hereafter, who had not taken the sacrament according to the rites of the church of England, within one year preceding the time of such election, should be placed, chosen, or elected, into any office of, or belonging to, the government of any corporation; and this was done, as it was expressly declared in the preamble to the act, in order to perpetuate the succession in corporations in the hands of persons well affected to government in church and state.

It was not their design, as hath been said, "to bring such persons into corporations by inducing them to take the sacrament in the church of England;" the legislature did not mean to tempt persons who were ill affected to the 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 alleged 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 sacra

ment 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 the statute 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 enforcing it depending wholly upon the statute law. Now the statute law is repealed as to persons capable of plead. ing that they are so and so qualified; and therefore the canon law is repealed with regard to those per

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 shown, from the principles of natural or revealed religion, that, independent of positive law, temporal punish

sons.

ments 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 has been said, that " the Toleration act only amounts to an exemption of the 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 inference 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 a hundred consequences will from thence follow which are not mentioned in the act. For instance, previous to the toleration act, it was unlawful to devise any legacy for the support of dissenting congregations, or for the benefit of dissenting ministers. For, the law knew no such assemblies,

« PreviousContinue »