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io feel the effects of their resistance to govern. | writer refers never passed, and Lord Hale on: ment. Interest very soon divides mercantile said, that, if it had passed, the Parliament mig. people; and, although there may be some mad, bave abdicated their right. enthusiastic, or ill-designing people in the colo- But, my Lords, I shall make this applicatio3 nies, yet I am convinced that the greatest balk, of it. You may abdicate your right orer lo who have understanding and property, are still colonies. Take care, my Lords, how you do so. well affected to the mother country. You have, for such an act will be irrevocable. Proceed, my Lords, many friends still in the colonies; then, my Lords, with spirit and firmness; and, and take caro that you do not, by abdicating when you shall have established your authority, your own authority, desert them and yourselves, it will then be a time to show your lenity. The and lose them forever.
Americans, as I said before, are a very good pec In all popular tumults, the worst men bear the ple, and I wish them exceedingly well; but they sway at first. Moderate and good men are often are neated and inflamed The nopie Lord whe silent for fear or modesty, who, in good time, spoke before ended with a prayer. I can no: may declare themselves. Those who have any end better than by saying to it. Amen; and in property to lose are sufficiently alarmed already the words of Maurice, prince of Orange, conat the progress of these public violences and viola- cerning the Hollanders, “ God bless this industions, to which every man's dwelling, person, and trious, frugal, and well-meaning, but easily-deproperty are hourly exposed. Numbers of such luded people." valuable men and good subjects are ready and willing to declare themselves for the support of government in due time, il government does not The Stamp Act was repealed, and the Du fing away its own authority
claratory Act, thus advocated by Lord Mans My Lords, the Parliament of Great Britain field, was also passed by a large majority. has its rights over the colonies; but it may abdicate its rights.
As Lord Campbell has pronounced the above There was a thing which I forgot to mention. argument unanswerable, it may interest the young Notice or a. I mean, the manuscript quoted by reader to know how it was actually answered by Lord ham, the noble Lord. He tells you that the Americans, and why they denied the right which had been it is there said, that, if the act con- of Parliament to lay internal taxes upon them.
cerning Ireland had passed, the Par. 1. They owed their existence not to Parlia. liament might have abidicated its rights as to ment, but to the Crown. The King, in the exIreland. In the first place, I heartily wish, my ercise of the high sovereignty then conceded to Lords, that Ireland had not been named, at a time him, had made them by charter complete civil when that country is of a temper and in a situ communities, with Legislatures of their own hav. ation so difficult to be governed ; and when we ing power to lay taxes and do all other acts whice have already here so much weight upon our were necessary to their subsistence as distinc: hands, encumbered with the extensiveness, va- governments. Hence, riety, and importance of so many objects in a 2. They stood substantially on the same fool. vast and too busy empire, and the national sys- ing as Scotland previous to the Union. Like her tem shattered and exhausted by a long, bloody, they were subject to the Navigation Act, and and expensive war, but more so by our divisions similar regulations touching the external rela. at home, and a fluctuation of counsels. I wish tions of the empire; and like her the ordinary Ireland, therefore, had never been named. legislation of England did not reach them, nor
I pay as much respect as any man to the did the common law any farther than they chose memory of Lord Chief Justice Hale; but I did to adopt it. Henco, not know that he had ever written upon the sub- 3. They held themselves amenable in their ject; and I differ very much from thinking with internal concerns, not to Parliament, but to the the noble Lord, that this manuscript ought to be Crown alone. It was to the King in council or tc published. So far am I from it, that I wish the his courts, that they made those occasional resermanuscript had never been named; for Ireland ences and appeals, which Lord Mansfield endeav. is too tender a subject to be touched. The case ors to draw into precedents. So "the post tax of Ireland is as different as possible from that of spoken of above, did not originate in Parliament. var colonies. Ireland was a conquered country; but in a charter to an individual which afterward it had its pacta conventa and its regalia. But reverted to the Crown, and it was in this way to what purpose is it to mention the manuscript ? alone that the post-office in America became con. It is but the opinion of one man. When it was nected with that of England. It was thus that written, or for what particular object it was the Americans answered the first three of Lord written, does not appear. It might possibly be Mansfield's direct arguments (p. 149-50). Their only a work of youth, or an exercise of the un-charters made them dependent not on Parliamen: derstanding, in sounding and trying a question but on the Crown ; and their submission to Er. problematically. All people, when they first glish authority, touch as it involved their pecuni enter professions, make their collections pretty ary interests, was rendered only to the latter early in life ; and the manuscript may be of that Weak as they were, the colonists had sometimes sort. However, be it what it may, the opinion to temporize, and endure an occasional over. is but problematical; for the act to which the reaching by Parliament. It was not always easy
draw the line between the laws of trade, to this Lord Mansfield could only reply, as he does hich they held themselves subject, and the in his fourth direct argument (p. 150). “Amer. ; aeral legislation of Parliament. But they ica is virtually represented in the House of Comonsidered it clear that their charters, exempted mons." But this, as Lord Campbell admits, is them from the latter, giving it to their own Leg- idle and false. A virtual representation there islatures. — See Massachusetts State Papers, p. may be of particular classes (as of minors and 3.1. On this ground, then, they denied the right females), who live intermingled in the same comof Parliament to tax them. It is a striking fact munity with those who vote; but a virtual rep in confirmation of these views, as mentioned by resentation of a whole people three thousand Mr. Daniel Webster, that the American Decla- miles off, with no intermingling of society or inration of Independence does not once refer to the terests, is beyond all doubt "an absurdity in British Parliament. They owed it no allegiance, terms." The idea is contrary to all English their only obligations were to the King; and usage in such cases. When the Scotch were hence the causes which they assigned for break incorporated with the English in 1705, they were ng off from the British empire consisted in his not considered as "virtually represented" in the conduct alone, and in his confederating with oth- English Parliament, but were allowed to send ers in “pretended acts of legislation."
representatives of their own. It was so, also, They bad, however, a second argument, that with Wales, Chester, and Durham, at an earlier from long-continued usage. Commencing their period. Nothing, in fact, could be more adverse existence as stated above, the British Parliament to the principles of the English Constitution than nad never subjected them to internal taxation. the idea of the “ virtual representation" of three When this was attempted, at the end of one hund. millions of people living at the distance of three red and fifty years, they used the argument of thousand miles from the body of English electors Mr. Furke, “You were not wont to do these things But if not virtually represented, the Americans from the beginning;" and while his inference were not represented at all. A bill giving away was, “ Your taxes are inexpedient and unwise," their property was, therefore, null and void-as theirs was, “ You have no right to lay them." much so as a bill would be if passed by the House Long-continued usage forms part of the English of Lords, levying taxes on the Commons of En. Constitation. Many of the rights and privileges gland. Under the English Constitution, repre. of the peop!o rest on no other foundation; and a sentation of some kind is essential to taxation. asage of this kind, commencing with the very Lord Mansfield's last argument (p. 151) is, existence of the colonies, had given them the ex- that "the distinction between external and inclusive right of internal taxation through their ternal taxation is a false one." According to own Legislatures, since they maintained their in- him, as Parliament, in carrying out the Naviga stitutions at their own expense without aid from tion Act, laid external taxes affecting the colonies, the mother country. To give still greater force Parliament was likewise authorized to lay intern to this argument, the Americans appealed to the al taxes upon them. The answer is given by monstrous consequences of the contrary supposi- Mr. Burke. The duties referred to were simply tion. If, as colonies, after supporting their own incidental to the Navigation Act. They were governments, they were liable to give England used solely as instruments of carrying it out, of what part she chuse of their earnings to support checking trade and directing its channels. They her government--ore twentieth, one tenth, one had never from the first been regarded as a means half each year, ac her bidding--they were no of revenue. They stood, therefore, on a footing longer Englishme., they were vassals and slaves. entirely different from that of internal taxes, which When Georgo the Third, therefore, undertook to were "the gift and grant of the Commons alone." lay taxes in America and collect them at the The distinction between them was absolute and point of the bayonut, he invaded their privileges, entire; and any attempt to confound them, and he dissolved the cunnection of the colonies with to take money on this ground from those who are the mother country, and they were of right free. not represented in Parliament, was subversive of
A third argument was that of Lord Chatham. the English Constitution.' ** Taxation," said his Lordship, "is no part of the Such were the arguments of the Americans ; governing or legislative power." A tax bill, and the world has generally considered them as from the very words in which it is framed, is "a forming a complete answer to the reasonings of gift and grant of the Commons alone," and the Lord Mansfield. concurrence of the Peers and Crown is only necessary to give it the form of law. "When, The reader will find this distinction fully drawn therefore, in this House," said his Lordship, “We out in Mr. Burke's Speech on American Taxation, give and grant, we give and grant what is our page 249, 250. He there shows, that during the own. But in an American tax what do we do?
whole operation of the Navigation Laws, down to We, your Majesty's Commons for Great Britain,
1764, "a parliamentary revenue thence was never
once in contemplation; that "the words which dis. give and grant to your Majesty—What? Our
tinguish revenue laws, specifically as such, were own property ? Nɔ. We give and grant to your
premeditatedly avoided;" and that all daties of this Majesty the property of your Majesty's subjects kind previous to that period, stood on the ground of in America ! It is an absurdity in terms !" To I mere "commerciol regulation and restraint."
SPEECH OF LORD MANSFIELD WHEN SURROUNDED BY A MOB IN THE COURT OF THE KING'S BENCU, LA
4 TRIAL RESPECTING THE OUTLAWRY OF JOHN WILKES, ESQ., DELIVERED JUNE &, 1768.
INTRODUCTION. In 1764, Mr. Wilkes was prosecuted for a seditious libel upon the King, and for an obscene and implous publication entitled an Essay on Women. Verdicts were obtained against him under both these prosecutions, and, as he had fled the country, and did not appear to receive sentence, he was outlawed in the sueriff's court for the county of Middlesex on the 12th of July, 1764. In 1768 he returned to England, and applied to the Court of the King's Bench for a reversal of the outlawry; alleging, among other things, that the sheriff's writ of exegent was not technically correct in its wording, since he merely described the court as “my county court," whereas he ought to have added a description of the place, viz., “of Middleser." Vr. Wilkes was now the favorite of the populace. Tumultuous meetings were held in his beball iu va rious parts of the metropolis; riots prevailed to an alarming extent; the Mansion House of the Lord Mayor was frequently, assailed by mobs; members of Parliament were attacked or threatened in the streets; and great fears were entertained for the safety of Lord Mansfield and the other judges of the Court of the King's Bench during the trial. On the 8th of June, 1768, the decision was given, the court being surrounded by an immense mob, waiting the result in a highly excited state. Under these circom stances, Lord Mansfield, after reading his decision for a time, broke off suddenly, and, turning from the case before him, addressed to all within the reach of his voice a few words of admonition, in which we can not admire too much the dignity and firmness with which he opposed himself to the popular rage, and the per Pyet willingness he showed to become a victim, if necessary, for the support of law.
SPEECH, &c.' But here let me pause.
| for that prosecution. We did not advise or asIt is fit to take some notice of various terrors sist the defendant to fly from justice; it was his being out—the numerous crowds which have at- own act, and he must take the consequences. tended and now attend in and about the hall, out None of us have been consulted or had any thing of all reach of hearing what passes in court, and to do with the present prosecution. It is not in the tumults which, in other places, have shame- our power to stop it; it was not in our power fully insulted all order and government. Auda- to bring it on. We can not pardon. We are to cious addresses in print dictate to us, from those say what we take the law to be. If we do not they call the people, the judgment to be given speak our real opinions, we prevaricate with now, and afterward upon the conviction. Rea | God and our own consciences. suais of policy are urged, from danger in the I pass over many anonymous letters I bave kingdom by commotions and general confusion. received. Those in print are public, and some
Give me leave to take the opportunity of this of them have been brought judicially before the great and respectable audience to let the whole court. Whoever the writers are, they take the world know all such attempts are vain. Unless wrong way! I will do my duty unawed. What we have been able to find an error which bears am I to fear? That "mendax infamia” [Lying as out to reverse the ontlawry, it must be affirm- scandal] from the press, which daily coins false ed. The Constitution does not allow reasons of facts and false motives? The lies of calumnny state to influence our judgments : God forbid it carry no terror to me. I trust that the temper should! We must not regard political conse- of my mind, and the color and conduct of my quences, how formidable soever they might be. lise, have given me a suit of armor against these If rebellion was the certain consequence, we are arrows. If during this King's reign I have ever bound to say, "Fiat justitia, ruat cælum."'? The supported his government, and assisted his meas. Constitution trusts the King with reasons of state | ures, I have done it without any other reward and policy. He may stop prosecutions; he may than the consciousness of doing what I thought pardon offenses; it is his to judge whether the right. If I have ever opposed, I have done it la X or the criminal shall yield. We have no upon the points themselves, without mixing in olection. None of us encouraged or approved | party or faction, and without any collateral the commission of either of the crimes of which views. I honor the King and respect the peo. the defendant is convicted. None of us had any ple; but many things acquired by the favor of hand in his being prosecuted. As to myself, I either arc, in my account, objects not worthy o! cook no part (in another place) in the addresses ambition. I wish popularity, but it is that pop
- ularity which follows, not that which is run aiti From Burrows Reports, iv., 2361.
er. It is that popularity which, soo aer or later. * Be justice done, though heaven in rui, & fall. I never fails to do justice to the pursuit of noble
ends by noble means. I will not do that which nothing that can happen, wiil weigh a feather my conscience tells me is wrong opon this occa. against allowing the defendan?, upon this and sion, to gain the huzzas of thousands, or the every other question not only the whole advant. daily praise of all the papers which come fromage he is entitled to from substantial law and the press. I will not avoid doing what I think justice, but every benefit from the most critical is right, though it should draw on me the whole nicety of form which any other defendant could artillery of libels—all that falsehood and malice claim under the like objection. The only effect can invent, or the credulity of a deluded popu- I feel is an anxiety to be able to explain the lace can swallow. I can say with a great mag- grounds on which we proceed, so as to satisfy istrale, upon an occasion and under circumstan- all mankind “that a flaw of form given way to ces not unlike, “Ego hoc animo semper fui, ut in this case, could not have been got over in any invidiam virtute partam, gloriam non invidiam, other." putarem.”:3
The threats go farther than abuse-personal violence is denounced. I do not believe it. It Lord Mansfield now resumed the discussion is not the genius of the worst of men of this of the case, and stated in respect to the insercountry, in the worst of times. But I have set tion of the qualifying phrase "of Middlesex," my mind at rest. The last end that can happen mentioned above, that "a series of authorities, to any man never comes too soon, if he falls in unimpeached and uncontradicted, have said such support of the law and liberty of his country (for words are formally necessary; and such authorliberty is synonymous with law and government). ity, though begun without law, reason, or comSuch a shock, too, might be productive of pub- mon sense, ought to avail the defendant." He lic good. It might awake the better part of the therefore (with the concurrence of the other kingdom out of that lethargy which seems to judges) declared a reversal; adding, "I beg to bare benumbed them, and bring the mad part be understood, that I ground my opinion singly back to their senses, as men intoxicated are on the authority of the cases adjudged; which, sometimes stunned into sobriety.
as they are on the favorable side, in a criminal Once for all, let it be understood, that no en-case highly penal, I think ought not to be dedeavors of this kind will influence any man who parted from." at present sits here. If they had any effect, This reversal, however, did not relieve Mr. it would be contrary to their intent; leaning | Wilkes from the operations of the verdicts al against their impression might give a bias the ready mentioned. Ten days after, Mr. Justice other way. But I hope and I know that I have Yates pronounced the judgment of the court, senfortitude enough to resist even that weakness. tencing him to be imprisoned for twenty-two No libels, no threats, nothing that has happened, / months, and to pay a fine of one thousand pounds.
OF LORD MANSFIELD IN THE CASE OF THE CHAMBERLAIN OF LONDON AGAINST ALLAN EVANS,
ESQ., DELIVERED IN THE HOUSE OF LORDS, FEBRUARY 4, 1767.
INTRODUCTION. This case affords a striking example of the abuses wbich spring up under a religious establishment.
Tue city of London was in want of a new mansion house for the Lord Mayor, and resolved to build one on a scale of becoming magnificence. But, as the expense would be great, some ingenious churchmen devised a plan for extorting a large part of the money out of the Dissenters, who had for a number of years been growing in business and property, under the protection of the Toleration Act. The mode was this. A by-law of the city was passed, imposing a fine of £600 on any person who should be elected as sheriff and decline to serve. Some wealthy individual was then taken from the dissenting body, and, by a con cert among the initiated, was chosen to the office of sheriff. Of course he was not expected to serve, for the Test and Corporation Acts rendered him incapable. He was, therefore, compelled to decline; and was then fined £600, under a by-law framed for the very purpose of extorting this money! Numerous appointments were thus made, and £15,000 were actually paid in; until it came to be a matter of mere sport to "roast a Dissenter," and bring another £600 into the treasury toward the expenses of the man. sion house.
At length Allan Evans, Esq., a man of spirit, who had been selected as a victim, resolved to try the question. He refused to pay the fine, and was sued in the Sheriff's Court. Here he pleaded his rights
This is one of those sentences of Cicero, in bis who are not familiar with the original, the following first oration against Catiline, which it is impossible may give a conception of the meaning: Sach bave to translate. Striking as the sentiment is, it owes always been my feelings, that I look upon odium in. mach of its force and beauty to the fine antithesis curred by the practice of virtue, not as odium, but as with which it flashes upon the mind, and even to the highest glory. the parodomasia on the word invidiam, while its no- ! See Parliamentary History. Dle rhythmos adds greatly to the effect. To those
under the Toleration Act, but lost liis cause. He appealed to the Court of Ilustiugs, where the decision was affirmed. He then appealed to the Court of Common Pleas, where judgment went in bis favor; the decisions of the courts below being unanimously reversed. The city now brought a writ of error through their Chamberlain, and carried the case before the House of Lords. Here the subject was taken up by Lord Mansfield, who, in common with all the judges but one, of the Court of the King's Bench, was of opinion that Evans was protected by the Toleration Act, and exempted from the obligation to act as sheriff. These views he maintained in the following speech, which had great celebrity at the time, and is spoken of by Lord Campbell as “one of the finest specimens of forensic eloquence to be found in our books."? It was published from notes taken by Dr. Philip Furneaux, "with bis Lordship's consent and approbation." Though it has not, in every part, that perfection of style for which Lord Mansfield was distinguished, it is certainly an admirable model of juridical eloquence, being equally remarkable for the clearness of its statements, the force of its reasonings, and the liberal and enlightened sentiments witb which it abounds. It rises toward the close into a strain of indignant reprobation, and administers a ter. rible rebuke to the city of London for suffering its name to be connected with so despicable a system of extortion.
SPEECH, &o. My LORDS, -As I made the motion for taking ant, therefore, a Piscenter, and in the eye of the opinion of the learned judges, and proposed this law a person dangerous and ill affected, is the question your Lordships have been pleased excluded from office, and disabled from serving. to put to them, it may be expected that I should Here they fail. make some farther motion, in consequence of the If they ground the action on their own byopinions they have delivered.
law; that by-law was professedly made to proIn moving for the opinion of the judges, I had cure fit and able persons to serve the office, and two views. The first was, that the House might the defendant is not fit and able, being expressly have the benefit of their assistance in forming a disabled by statute law. Here, too, they fail. right judgment in this cause now before us, upon If they ground it on his disability's being owing this writ of error. The next was, that, the ques- to a neglect of taking the sacrament at church, ion being fully discussed, the grounds of our when he ought to have done it, the Toleration judgment, together with their exceptions, limita- Act having freed the Dissenters from all obliga. tions, and restrictions, might be clearly and cer tion to take the sacrament at church, the defendLainly known, as a rule to be followed hereafter ant is guilty of no neglect—no criminal neg. in all suture cases of the like nature; and this lect. Here, therefore, they fail. determined me as to the manner of wording the These points, my Lords, will appear clear and question, "How far the defendant might, in the plain. present case, be allowed to plead his disability II. The Corporation Act, pleaded by the dein bar of the action brought against him ?” fendant as rendering him ineligible to Inter! and
The question, thus worded, shows the point this office, and incapable of taking it effect of the upon which your Lordships thought this case upon him, was most certainly intended Aet urned; and the answer necessarily fixes a cri- by the Legislature to prohibit the persons there. terion, under what circumstances, and by what in described being elected to any corporation persons, such a disability may be pleaded as an offices, and to disable them from taking such exemption from the penalty inflicted by this by- offices upon them. The act had two parts. law, upon those who decline taking upon them first, it appointed a commission for turning out the office of sherill.
all that were at that time in office, who would In every view in which I have been able to not comply with what was required as the conconsider this matter, I think this action can not dition of their continuance therein, and even be supported.
gave a power to turn them out though they I. If they rely on the Corporation Act; by the should comply; and then it farther enacted, Preliminary literal and express provision of that act, that, from the termination of that commission,
be no person can be clected who hath not no person hereafter, who had not taken the sac. argument. within a year taken the sacrament in rament according to the rites of the Church of the Church of England. The defendant hath England within one year preceding the time of not taken the sacrament within a year; he is such election, should be placed, chosen, or electnot, therefore, elected. Here they fail.
ed into any office of, or belonging to, the governIf they ground it on the general design of the ment of any corporation; and this was done, as Legislature in passing the Corporation Act; the it was expressly declared in the preamble to the design was to exclude Dissenters from office, act, in order to perpetuate the succession in corend disable them from serving. For, in those porations in the hands of persons well affected times, when a spirit of intolerance prevailed, and to government in church and state. severe measures were pursued, the Dissenters It was not their design (as hath been said) 13 were reputed and treated as persons ill affected bring such persons into corporations by inducing and dangerous to the government. The defend them to take the sacrament in the Church i
England;" the Legislature did not mean to * Lives of the Char ellers, v. 287
| tempt persons who were ill offeriel in the ye
view of the grounds of