the havoc and the impotence of penal law pushed to its extravagance. I am more pleased to turn your attention to the happy consequences of temperance, conciliatory government, and equal law. Compare the latter with the former, and let your wisdam decide between the tempest and the calm!

“I know it is a delicate subject, but let me presume to suggest what must be the impression upon this grieved and anxious country, if the reign of the parliament shall seem at war with the mildness of the government; if the people shall have no refuge except in the mercy of the crown, from the rigour of their own representatives.

"But if at the same moment they should see the com victed and the attainted secured in their lives and in their property, by the wise lenity of the crown; while the parliament is venting shame, and misery, and want upon the cradle of the unprotected infant, who could not have offended. But I will not follow the idea, I will not see the inauspicious omen, I pray that mercy may avert it.

"One topic more," said he, " you will permit me to add; every act of the sort ought to have a practical morality flowing from its principle, if loyalty and justice require that these infants should be deprived of bread! must it not be a violation of that principle to give them food or shelter? Must not every loyal and just man wish to see them, in the words of the former 'golden book," always poor and necessitous, and for ever accompanied by the infamy of their father, languishing in continued indigence, and finding their punishment in living and their relief in dying.

"If the widowed mother should carry the orphan heir of her unfortunate husband to the gate of any man, who might feel himself touched with the sad vicissitudes of human affairs; who might feel a compassionate reverence for the noble blood that flowed in his veins; nobler than the royalty that first ennobled it; that like a rich stream

rose till it ran and hid its fountain. If, remembering the many noble qualities of his unfortunate father, his heart melted over the calamities of the child, if his eyes overflowed, if his too precipitate hand was stretched out by pity, or his gratitude to the poor excommunicated sufferers, how could he justify the rebel tear, or the traitorous humanity?

"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 unalterable 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 esti mated 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 600l. laid on all who, being elected, refused to serve the office of sheriff, by a bye-law of the corporation, made on pretence of procuring fit and able persons to serve the office; the only reason that could authorise 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 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 for their con-conformity, from which they can plead no legal exemption.

After the judges had given their opinions, lord chief justice MANSFIELD, in his place as a peer, rose and made the following speech; concluding it with a motion for affirming the judgment of the delegates, which, without further debate, was agreed to Nem. Con.

"My Lords,

"As I made the motion for taking the opinion of the learned judges upon the question now under the consideration of your lordships, it may be expected that I should make some further motion in consequence of it. In moving for the opinion of the judges I had two views :—

"The first was, that the house might have the benefit of their sentiments upon the merits of the question in general, and that the question being fully discussed, the gronnds of the judgment might appear clear and certain.

"And the next was to get at some particular limitations and restrictions which may be a rule of proceeding in future cases of a like nature. And this determined me as to the manner of wording the question, how far the defendant might, in the present case, be allowed to plead his disability in bar of the action brought against him. In order that we may be able to lay down a definition and criterion of the persons who are entitled to an exemption from the penalties inflicted by this bye-law, upon those who decline taking upon them the office of sheriff.

"My Lords, I apprehend the action brought against the defendant is not well grounded, and I shall shew that it must fail in every view of it. If they ground it on the corporation act, by the literal and express provision of that act, no person can be elected who hath not, within a year,