and was certain that the law officers of the crown never asserted that they had no hand in them; but whether they had or not was of no consequence to him, for he was clear that the charge, when applied to him, was as unjust as it was maliciously and indecently urged."* In the debate which took place in November, 1778, on the Duke of Grafton's motion respecting the British forces in America, Lord Mansfield again spoke, and opposed all measures of conciliation, as only " furnishing America with grounds to erect new claims on, or to hold out terms of pretended obedience and submission."† In the following month, in the debate on the American prohibitory bill, he urged in strong language the necessity of active measures against the colonists. "What a Swedish general said to his men, in the reign of Gustavus Adolphus, is extremely applicable to us at present. Pointing to the enemy, who were marching down to engage them, said he, 'My lads, you see those men yonder: if you do not kill them, they will kill you.' If we do not, my lords, get the better of America, America will get the better of us." In the following year Lord Mansfield opposed the Duke of Grafton's proposition for conciliation with America as "nugatory, ill-timed, and ineffectual §;" and shortly afterwards he spoke against a similar motion made by Lord Chatham.|| Thus throughout the whole of the great struggle for independence, into which the colonists were driven, Lord Mansfield uniformly opposed every measure which might have prevented the result he so greatly deprecated. It is fortunate that out of the most ill-judged and unjust designs, by the operation of that moral chemistry which is so little understood, the happiest events are not unfrequently found to proceed.

While, in politics, Lord Mansfield was thus adverse to those liberal principles which might have taught him to view the resistance of the colonists in another light, in matters of religion his opinions were fortunately of

Parl. Hist. vol. xviii. p. 265. et seq.

† Id. p. 955.
+ Id. p.

1102

a much more tolerant character. In the earlier part of his judicial life several cases came before him in which he had occasion to express these opinions, which he did with a candour and openness highly creditable to his fame. One of the first of these cases was a question of evidence — the admissibility of a quaker's affirmation in an action of debt on the statute against bribery, 2 Geo. 2. c. 24. In delivering his judgment in this case, Lord Mansfield, in the first instance, laid down the following liberal rule for the construction of the act of toleration:

"I think it of the utmost importance, that all the consequences of the act of toleration should be pursued with the greatest liberality, in ease of the scrupulous consciences of dissenters on the one hand; but so as those scruples of conscience should not be prejudicial to the rest of the king's subjects: for a scruple of conscience entitles a party to indulgence and protection, so far as not to suffer for it; but it is of consequence that the subject should not suffer too." He then traces the history of the disabilities of the quakers :-"This sect sprang up during the troubles, and was found at the Restoration, with many other sects of non-conformists, equally scrupulous. At that time the law considered their scruples of conscience as a crime; and, therefore, they were not allowed to be set up as an excuse or justification of another offence. Therefore, when a quaker who was subpoenaed to give evidence absented himself, and an attachment issued in consequence of it, he could not, in excuse, say that his conscience prevented him from giving evidence, for that was a crime. So in the case of in'terrogatories, the consequence was, that he was obliged to answer or be committed to prison; and, if his obstinacy continued, he lay there for life.

"The experience of eight-and-twenty years, from the Restoration to the time of the Revolution, shewed that this obstinacy was not merely a pretence or colour given to right or wrong, but that it was a scruple, and that the sect was ready to go through all kinds of suffering in the pertinacious adherence to it.

"A more liberal way of thinking prevailed after the Revolution. The principles of toleration were explained and justified in consequence of the writings of Mr. Locke, Lord Somers, and other great men of those times; and a statute passed which, though not general, was very extensive in the relief it afforded to scrupulous consciences. The statute was 1 W. & M. c 18. commonly called the Toleration Act."

In the course of his judgment, Lord Mansfield noticed the singular and unreasonable exemption in the statute 7 & 8 W. 3. c. 34., which prohibited the reception of a quaker's affirmation in criminal cases; an exception occasioned, as he said, "by a strong prejudice in the minds of the great men who passed the statute." Amongst the judicious improvements which have taken place in the criminal law in our own day, this extraordinary anomaly has been abolished.

In the year 1767, the Rev. James Webb, a catholic priest, was tried before Lord Mansfield on the prosecution of one Payne, a common informer, for saying mass, contrary to the provisions of the statute of William. In summing up to the jury, Lord Mansfield was almost unjustifiably astute in favour of the prisoner. Of the penal laws against the catholics he thus spoke: "In the beginning of the protestant religion, in order to establish it, they thought it in some manner necessary to enact those penal laws; for then the pope had great power, and they thought that they could not take too effectual means to prevent him exercising any part of it in these dominions; and the jesuits were then a very formidable body; and, apprehending great danger from them, knowing their close connections with the pope, the penal laws were chiefly designed against them. But now the case is quite altered: the pope has very little power, and seems to grow less and less daily. As for the jesuits, they are now banished out of most kingdoms in Europe, so that there is now nothing to fear

design of the legislators to have these laws enforced by every common informer, but only at proper times and seasons, when they saw a necessity for it, and by proper persons appointed by themselves for that purpose; and yet, more properly speaking, they were never designed to be enforced at all, but were only made in terrorem.'

In the year 1767, an opportunity was again afforded Lord Mansfield of expressing his liberal sentiments in matters of religion. By a by-law of the corporation of London, a fine was imposed upon those who persons refused to serve the office of sheriff; and several dissenters having been elected, and declining to accept the office because they could not conscientiously take the sacrament, pursuant to the directions of the corporation act, were fined. At length, a gentleman of the name of Evans, a dissenter, having been elected, refused either to serve or to pay the fine; upon which, an action was brought for the amount by the chamberlain of London in the sheriff's court, and judgment was given for the plaintiff. The defendant having appealed to the court of hustings, the judgment was affirmed; but upon an appeal to the court of the judges delegates, the judgments of the inferior courts were reversed. Upon this the city brought a writ of error in the house of lords, and the judges were directed to give their opinions. Lord Mansfield then, rising in his place as a peer, addressed the house in support of the judgment of the judges delegates. Of this speech, so honourable to the enlightened intellect and liberal views of Lord Mansfield, a full note was taken by Dr. Philip Furneaux, who was present at the delivery, and who afterwards submitted it to his lordship, by whom it was returned with a few alterations, and with an express consent to make it public as a genuine document. In the course of this admirable speech his lordship laid down, in bold and broad terms, the great principle of religious liberty. "The defendant in the present case pleads that he is a dissenter within the description of the toleration act; *Holliday, p. 179. + Id. p. 251. Belsham's Life of Lindsay. I

that he hath not taken the sacrament in the church of England within one year preceding the time of his supposed election, nor even 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 persecution 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 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 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 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 con