Lord Mansfield took a review of the different administrations which had succeeded each other during the present reign; showing that each one of them was as much answerable for the disaster now deplored as the present administration, in whose time they had actually occurred :

"The tax on tea," said he, "sowed the seeds of the present rebellion; and that was imposed by the noble Duke in the blue ribbon, who now complains so bitterly of the measures of the Government. I will give no opinion at present whether it was a wise tax or not; but it was sanctioned by the noble and learned Lord [Lord Camden] who has denounced with such bitterness all who have advised the Crown since he resigned: and a noble Earl, who may now be considered the most active leader of Opposition, then had a seat in his Majesty's councils, and never openly objected to it. To suppose that he privately condemned, and yet appeared in parliament to support it, is an imputation that I would not throw upon him or upon any member of this assembly. The present Ministers neither passed the Stamp Act nor repealed it, nor imposed the tea duty nor induced the Americans to resist it. Why should they only be punished when the crime is common? and why should they be punished by the true authors of the misfortunes laid to their charge? But, my Lords, let us rather consider how the nation can be rescued from the perils which surround it. I say that nothing but a full and comprehensive union of all parties can effect its salvation. I am old enough to remember the country in very embarrassed situations-none, I acknowledge, like the present. I have seen violent party strugglesnone so violent as the present. Nevertheless, I by no means despair." Having alluded to the arrangement made on the retirement of Sir Robert Walpole, and the formation of Lord Chatham's first administration, he continued: "I had a hand in that negotiation, and what was the consequence? Two persons only, after some fluctuation, were taken in; yet by so immaterial a change the nation was satisfied, a coalition ensue 1, and the effect of that seasonable union was the immense accession of territory made in the course of the late

glorious war. How far the temper of the nation or the state of parties may admit of a coalition at present, I will not pretend to determine; but, my Lords, it is an event most earnestly to be desired, for the country requires the assistance of every heart and hand; and with such co-operation, although I am far from desponding, I shall still anxiously await the event. My resolution is firm, but my confidence staggers."

Still the Government was strong in point of numbers, and the amendment was negatived by a majority of 82 to 41.'

I now approach scenes which are most discreditable to the English nation, but in which Lord Mansfield appears to the highest advantage. To explain why he was the special object of the fury of the fanatical mob headed by Lord George Gordon and for several days in possession of the capital, I must go back to some of his decisions on questions connected with religion. He was actuated by the enlightened principles of toleration; and, although a sincere friend to the Church of England, he steadily protected, by the shield of the law, both Dissenters and Roman Catholics from the assaults of bigots who wished to oppress them.

Lord Mansfield was the first judge who extended the prerogative writ of mandamus to enforce the admission of a dissenting minister to an endowed chapel saying, "The right itself being recent, there can be no direct ancient precedent; but every case of a lecturer, preacher, schoolmaster, curate or chaplain, is in point. Here is a function with emoluments and no specific legal remedy. The right depends upon election, which interests al Ithe voters. The subject is of a nature to inflame men's passions. Should the Court deny this remedy, the con gregation may be tempted to resort to force. A dispute as to who shall preach Christian charity, may well rise implacable feuds and animosities, in breach of the public peace, to the reproach of government and the scandal of religion. Were we to deny the writ, we should put Presbyterian Dissenters and their religious worship. A of the protection of the law."""

20 Parl. Hist. 1020-1092.

3 Burr. 1269; Holl. 263; Rex v. Barker.

The question having arisen whether, in an action to recover penalties for bribery, a Quaker could be admitted as a witness on his affirmation without taking an oath, Lord Mansfield said,—

"This question is of great importance to all the Quakers in the kingdom, and to the general administration of justice. I wish the affirmation of a Quaker had been put on the same footing as an oath in all cases whatsoever; and I see no reason against it, for the punishment of the breach of it is the same. Upon general principles I think the affirmation of a Quaker ought to be admitted in all cases, as well as the oath of a Jew or a Gentoo, or of any other person who thinks himself really bound by the mode and form in which he attests. But even the limited indulgence which they enjoy was obtained with much difficulty and after a long struggle. The legislature formerly looked upon Nonconformists as criminals; and Quakers, in particular, as obstinate offenders. This only served to increase their number. If they had been let alone, perhaps they would not have come down to these times. The more generous and liberal notions of the present age do not look upon real scruples in the light of an offense. However, Quakers are still excluded from giving evidence in 'criminal causes;' and we are to say what was the meaning of the legislature by this exclusion. Although it may not be possible to give any good reason for the exception, it was made and it must be followed. But, being a hard positive law, it is not to be extended by construction. Now, although bribery is a crime, this action to recover penalties for bribery is a civil cause, as much as an action for money had and received. The exception must be confined to cases technically criminal. A different construction would not only be injurious to Quakers, but prejudicial to the rest of the King's subjects who may want their testimony."

2

A still nobler opportunity was afforded to Lord Mansfield of showing his liberality in matters of religion

17 & 8 W. III. c. 34.

Atcheson v. Everett, Cowp. 382. The exception, so modified, continued in force above half a century longer; but if à man is now falsely accused of murder, he may escape the gallows by calling a Quaker to prove his innocence. See 9 Geo. IV. c. 32; 3 & 4 W. IV. c. 49.

when the corporation of the city of London, wishing at once to swell their revenues and to punish Dissenters, passed a by-law inflicting a heavy pecuniary mulct upon freemen who, being elected, should not serve the office of sheriff; and then elected a dissenter, who they knew would not serve, as he could not take the sacrament according to the rites of the Church of England. Th ́s gentleman, being sued for the penalty, pleaded, by way of defense, that "he was a Dissenter, and therefore was incapable of serving." This plea was overruled in the court in which the action was commenced, but the case ultimately came by appeal before the House of Lords. Fortunately we have an authentic account of Lord Mansfield's judgment, recommending a reversal. It was taken down by Dr. Philp Faraceaux, a famous Presbyterian divine, who was present when it was delivered, and his report of it was afterwards revised by Lord Mansfield. Although of great length, the whole of it may be perused with delight, but I can only afford to introduce a few extracts from it :

"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 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. . . . 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 hypo crites or martyrs.

"My Lords, there never was a single instance, from the Saxon times down to our own, in which a man was punished for erroneous opinions concerning rights or

1 This, I think, is the true sense of the often-repeated maxim, that “Christianity is part and parcel of the common law of England."

111.-27.

modes of worship, but upon some positive law. The common law of England, which is only common reason or usage, knows of no persecutions 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 here nonconformity is no sin by the common law; and all positive laws, inflicting any pains or penalties for nonconformity to the established rites or 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 IV., when the first penal statutes were enacted, down to the revolution in this kingdom, by laws made to force conscience! There is certainly nothing 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 on this subject, in the dedication of his history to Henry IV. 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. There was no occasion to revoke the edict of Nantes; the Jesuits needed only to have advised a plan similar to that which 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."

This noble vindication of the rights of conscience pro