THE SPEECH OF LORD MANSFIELD

IN THE HOUSE OF LORDS, IN THE CASE OF THE CHAMBERLAIN OF LONDON VS. ALLAN EVANS, ESQ. ON THE 4th OF FEBRUARY, 1767.

IN 1748, the corporation of London, by a by-law, imposed a fine of 6001. upon every person, who, being elected, should refuse to serve the office of sheriff. The plaintiff, the chamberlain of London, levied debt, in the sheriff's court against the defendant for the penalty. The defendant pleaded the 13 Car. 2. which declares that no person shall be elected to any office relating to the government of any city, "who shall not have received the sacrament according to the rites of the church of England, within one year next before such election;" and averred that he was a protestant dissenter within the Toleration Act, 1 & 2 W. & M. c. 18, of scrupulous conscience; and therefore had not received the sacrament. The plaintiff replied, the 5 G. 1. which confirms members of corporations in their respective offices, although they have not received the sacrament according to the directions of 13 C. 2. To this replication the defendant demurred, and judgment was thereupon given in favour of the city. Mr. Evans appealed to the court of Hustings, where the judgment was affirmed. A special commission was sued out, directed to Willis, C. J. Parker, C. B. and Foster, Bathurst, and Wilmot, justices, by whom, the judgments in the courts. below were unanimously reversed. The city brought

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, was published with his lordship's consent and approbation.

It will be found to be an admirable model of juridical 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.

MY LORDS,

SPEECH, &c.

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 penalty 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 consider 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 legis lature 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.

And

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. 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