the actual offender, nor work any injury to the heir or other person, after the death of a pretender to the throne, Why," said Mr. CURRAN, "has Great Britain thus condemned the principle of forfeiture? Because she felt it to be unjust, and because she found it to be ineffectual."

Here Mr. CURRAN went into many reasons, to prove the impolicy of severe penal laws. "They have ever been found," he said, "more to exasperate than to restrain; where the infliction is beyond the crime, the guilt is lost in the horror of the punishment, the sufferer becomes an object of commiseration, and the injustice of the state of public odium. It was well observed, that in England, the highwayman never murdered because there the offender was not condemned to torture! but in France where the offender was broken on the wheel, the traveller seldom or never escaped! what then is it in England that sends the traveller home with life, but the comparative mildness of English law? What but the merciless cruelty of the French law, that gives the atrocious aggravation of murder to robbery? The multiplication of penal laws lessens the value of life, and when you lessen the value of life, you lessen the fear of death.

"Look to the history of England upon this subject with respect to treason; notwithstanding all its formidable array of death, of Saxon forfeiture, and of feudal corruption of blood, in what country do you read of more treasons or of more rebellions? And why? Because these terrors do not restrain the traitor. Beyond all other delinquents he is likely to be a person of that ardent, enthusiastic and intrepid spirit that is roused into more decisive and desperate daring by the prospect of peril. "Mr. YORKE thinks the child of the traitor may claimed to his loyalty by the restitution of his estate.

be re

Mr.

Mr. Yorke might have perhaps reasoned better if he had looked to the still greater likelihood of making him a deadly enemy to the state, by the deadly ignominy inflicted on his father, and by the loss of his own inhe

ritance.

"How keenly did HANNIBAL pursue his vengeance which he had sworn against Rome? How much more enthusiastically would he have pursued his purpose, had that oath been taken upon a father's grave! the avenging of a father's sufferings! for the avenging of what he would have called a father's wrongs.

For

"If I am called upon," said he, "to give more reasons, why this precedent has not been for more than a century and a half repeated, I will say that a bill of attainder is the result of an unnatural union of the legislative and judicial functions in which the judicial has no law to restrain it; in which the legislative has no rule to guide it, unless the passion and prejudice which reject all rule and law can be called rules and laws; which puts the lives and properties of men, completely at the an arbitrary and despotic power.

mercy of

"Such were the acts of posthumous attainders in Ireland, in the reign of the arbitrary ELIZABETH, who used those acts as a mere mode of robbing an Irish subject, for the benefit of an English minion. Such was the act of the ninth of WILLIAM the third, not passed for the same odious and despicable purpose, but for a purpose equally arbitrary and unjust, the purpose of transferring the property of the country, from persons professing one religion into the hands of those professing another; a purpose manifested and avowed by the remarkable clause in that act, which saves the inheritance to the heir of the traitor, provided that heir be a protestant! not so brutally tyrannical in its operations, inasmuch as it gave a right

to

"I shall trespass no longer upon the patience, for which I am grateful; one word only and I have done, and that is, once more earnestly and solemnly to conjure you, to reflect that the fact, I mean the fact of guilt or innocence (which must be the foundation of this bill) is not now, after the death of the party, capable of being tried, consistently with the liberty of a free people, or the unalter able rules of eternal justice.

"And that, as to the forfeiture and ignominy which it enacts, that only can be punishment which lights upon guilt, and that can be only vengeance which breaks upon INNOCENCE."

SPEECH of the Right Honorable WILLIAM Earl of MANSFIELD in the matter of Mr. EVANS.

The interest which this question excited when it was agitated, has not yet subsided. The impression which the following speech made on the occasion may be estimated by the result, and, notwithstanding it was delivered in the House of Lords, yet as it turned on a juridical point, and falling from an enlightened statesman, profound lawyer, and finished orator, it would be unpardonable to omit it in a work of this kind.

Mr. ALLEN EVANS, (as well as some other dissenters,) though he never had taken, and always scrupled to take the sacrament according to the usage of the church of England, was chosen Sheriff of London and Middlesex, and had an action brought against him by the Chamberlain of London, on behalf of the city, for the recovery of the fine of £600, laid on all who, being elected, refused to serve the office of sheriff, by a bye-law of the

corporation

corporation, made on pretence of procuring fit and able persons to serve the office; the only reason that could authorize them to make such a bye-law; though the true reason of their making it was supposed to be the obtaining a number of fines, especially from those dissenters who might scruple occasional conformity, and refuse to serve the office.

The ground of Mr. EVANS's refusal was, that as a dissenter he was by the corporation act rendered incapable of being elected into the office and of taking the office upon him, it being enacted by that act, that no person shall be placed, chosen, or elected into any office of or belonging to the government of any corporation, who had not taken the sacrament according to the rites of the church of England, within twelve calendar months preceding the time of such election. Mr. EVANS therefore apprehending himself not legally elected, pleaded that he could not be fined for not serving an office to which he could not be appointed.

The city brought their action into the sheriff's court, (a court belonging to the corporation) for the recovery of the fine; and there the defendant EVANS had judgment given against him.

He then brought a writ of error, returnable in the court of hustings, of which the city recorder is sole judge; and there also judgment was given against him.

He then sued out a certiorari, returnable before a court of delegates; namely, lord chief justice WILLS, lord chief baron PARKER, Mr. justice FOSTER, Mr. justice BATHURST, and Mr. justice WILMOT, now lord chief justice of the common pleas.

Lord chief justice WILLS died before judgment was given; but the remaining delegates, after hearing counsel several days, delivered their opinions seriatim on the

VOL. III.

5th

5th of July, 1762; and were unanimous in reversing the judgment given in the sheriff's court, and the court of hustings. Whereupon the city brought a writ of error, returnable before the house of lords.

Their lordships, after hearing the opinions of the rest of the judges, (except Mr. justice YATES, who was ill,) were pleased, on the 7th of Feb. 1767, to order and adjudge, that the judgment given by the commissioners' delegates, reversing the judgment given in the sheriff's court, and court of hustings, should be affirmed.

Mr. baron PERROTT was the only judge who delivered. his opinion against confirming the reversal of the judgment of the sheriff's court, and court of hustings.

The sum of his argument was, that the king by the common law hath a right to the service of all his subjects; that the corporation act did not in the least abridge or infringe this right; the design of that act not being to exclude dissenters from serving, or to render them uneligible to corporation offices, but to bring them into 'the church. The corporation act therefore left them upon the same footing as they were by the common law.

But did the toleration act make any alteration in this respect? No; that act being nothing more than an exemption of protestant dissenters from the penalties of certain laws, therein particularly specified; and therefore if it had been designed to bear, and have an operation upon the corporation act, the corporation act ought to have been mentioned therein; and there ought to have been some enacting clause, exempting dissenters from prosecution in consequence of this act. But as this is not the case, they are eligible to this office, and liable to all the penalties for refusing to serve it, to which others are liable; and their obligation to pay the fine inflicted by this bye-law, is the effect of, or a punishment upon

them