« PreviousContinue »
that this scruple of conscience is a false pretence when set up to avoid a burthen.
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 cannot 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.
My lords, there never was a single instance, from the Saxon times down to 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law; and all positive laws inflicting any pains or penalties for nonconformity to the established rites and modes, are repealed by the act of toleration ; and dissenters are thereby exempted from all ecclesiastical censures.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 impolitick, 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 impolitick, it is to prosecute for religious opinions. I am sorry, that of late his countrymen have begun to open their eyes, see their errour, and adopt his sentiments. I'should not have broken my heart (I hope I may say without breach of Christian charity) if France had continued to cherish the Jesuits, and to persecute the Huguenots.
There was no occasion to revoke the edict of Nantz. 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 cannot 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 Nantz 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. Was 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 Nantz was repealed.
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 Corpora
tion 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, I forget which; but it was made about the time 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.
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 per. sons 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 for 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 the 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 pretence for setting aside him who was now chosen, on all future occasions, as having been elected before.
In the cause 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 bylaw, made to serve a particular purpose; in opposition 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 opinion that his plea is good, I conclude with moving your lordships, }
“ That the judgment be affirmed.”