importance in this case, and, in the actual state of the evidence, I think one of no small difficulty, whether this homicide was committed while the prisoner was suffering under that marked and settled disease of delirium tremens, or in a fit of drunken madness. My instruction to you is that, if the prisoner, while sane and responsible, made himself intoxicated, and, while intoxicated, committed a murder by reason of insanity, which was one of the consequences of that intoxication, and one of the attendants on that state, then he is responsible in point of law, and must be punished. This is as clearly the law of the land as the other rule, which exempts from punishment acts done under delirium tremens. It may sometimes be difficult to determine under which rule, in point of fact, the accused comes. Perhaps you will think it not easy to determine it in this case. But it is the duty of the jury to ascertain from the evidence on which side of the line this case falls, and to decide accordingly. It may be very material for you to know on which party is the burden of proof in this part of the case. I have already told you that it is incumbent on the prisoner to satisfy you he was insane when he struck the blow, for the reason that, as men in general are sane, the law presumes each man to be so till the contrary is proved; but if the contrary has been. proved, if you are satisfied the prisoner was insane, the law does not presume his insanity arose from any particular cause, and it is incumbent. on the party which asserts that it did arise from a particular cause, and that the prisoner is guilty by law because it arose from that cause, to make out this necessary element in the charge to the same extent as every other element in it; for the charge then assumes this form: that the prisoner committed a murder for which, though insane, he is responsible, because his insanity was produced by and accompanied a state of intoxication. In my judgment, the government must satisfy you of these facts, which are necessary to the guilt of the prisoner in point of law, provided you are convinced he was insane. You will look carefully at all the evidence bearing on this question, and, if you are convinced that the prisoner was insane to that extent which I have described as necessary to render him irresponsible, you will acquit him, unless you are also convinced his insanity was produced by intoxication, and accompanied that state, in which case you will find him guilty.

§ 5

THE CASE OF THE CHAMBERLAIN OF LONDON AGAINST EVANS

By Lord Mansfield

(Delivered in the House of Lords, February 4, 1767)

(This case arose out of a plan to build a new mansion house for the lord mayor of London at the expense of dissenters. It was proposed to levy contributions upon the wealth of the dissenters by means of a municipal by-law imposing a fine of £600 on any person who should be elected sheriff and decline to serve. Some wealthy dissenter was chosen sheriff, and, as the test and corporation acts rendered him incapable of serving, he was compelled to decline. He was then fined £600, under the by-law. After numerous appointments had been made, and £15,000 actually paid in, Allan Evans, who had been selected as a victim, refused to pay the fine. In an action by the city to recover the fine, he pleaded his rights under the toleration act, but judgment was rendered against him. On appeal to the court of common pleas, this judgment was reversed, whereupon the city took the case before the house of lords. The judges of the court of king's bench were consulted, and all but one were of the opinion that Evans' plea was a good defense. In moving judgment in the house of lords, Lord Mansfield made the following speech. Judgment was entered in accordance with Lord Mansfield's motion.-From note in Veeder's "Legal Masterpieces," p. 9.)

MY LORDS: 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 error. 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 night, in the present case, be allowed to plead his disability in bar of the action brought against him?"

WILLIAM MURRAY (LORD MANSFIELD). Born at Scone, Scotland, March 2, 1705; died in London, March 20, 1793; called to the bar in Lincoln Inn, London, in 1731; 1753 became attorney general; 1756 was made Chief Justice of the King's bench, and raised to the peerage; 1776 was created Earl of Mansfield.

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.

1. 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 legislature 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, 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's 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.

2. 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 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.

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. And the reason is alleged in the act itself. It was because there were "evil spirits" among them; and they were afraid of evil spirits, and determined to keep them out. They therefore 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 an 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 sacrament in the church within a year before such election; and without this mark of their affection to the church they could not be in office, and there could be no election. But as the law then stood, no man could have pleaded this disability, resulting from the corporation act, in bar of such an action as is now brought against the defendant, because this disability was owing to what was then, in the eye of the law, a crime, every man being required by the canon law (received and confirmed by the statute law) to take the sacrament in the church at least once a year. The law would not then permit man to say that he had not taken the sacrament in the Church of England, and he could not be allowed to plead it in bar of any action brought against him.

3. But the case is quite altered since the act of toleration. It is now no crime for a man who is within the description of that act to say he is a dissenter, nor is it any crime for him not to take the sacrament according to the rites of the Church of England; nay, the crime is if he does it contrary to the dictates of his conscience.

If it is a crime not to take the sacrament at church, it must be a crime by some law, which must be either common or statute law, the canon law enforcing it being dependent wholly upon the statute law. Now the statute law is repealed as to persons capable of pleading [under the toleration act] that they are so and so qualified, and therefore the canon law is repealed with regard to those persons.

If it is a crime by common law, it must be so either by usage or prin

ciple. But there is no usage or custom, independent of positive law, which makes nonconformity a crime. The eternal principles of natural religion are part of the common law. The essential principles of revealed religion are part of the common law; so that any person reviling, subverting, or ridiculing them may be prosecuted at common law. But it cannot be shown, from the principles of natural or revealed religion, that, independent of positive law, temporal punishments ought to be inflicted for mere opinions with respect to particular modes of worship.

Persecution for a sincere, though erroneous, conscience, is not to be deduced from reason or the fitness of things. It can only stand upon positive law.

4. It has been said (a) that "the toleration act only amounts to an exemption of the Protestant dissenters from the penalties of certain laws. therein particularly mentioned, and to nothing more; that if it had been intended to bear and to have any 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, and enabling them to plead their not having received the sacrament according to the rites of the Church of England in bar of such action." But this is much too limited and narrow a conception of the toleration act, which amounts consequentially to a great deal more than this; and it hath consequentially an inference and operation upon the corporation act in particular. The toleration act renders that which was illegal before, now legal. The dissenters' way of worship is permitted and allowed by this act. It is not only exempted from punishment, but rendered innocent and lawful. It is established; it is put under the protection, and is not merely under the connivance, of the law. In case those who are appointed by law to register dissenting places of worship refuse on any pretense to do it, we must, upon application, send a mandamus to compel them.

Now, there cannot be a plainer position than that the law protects nothing in that very respect in which it is, in the eye of the law, at the same time a crime. Dissenters, within the description of the toleration act, are restored to a legal consideration and capacity, and a hundred consequences will from thence follow which are not mentioned in the act. For instance, previous to the toleration act, it was unlawful to devise any legacy for the support of dissenting congregations, or for the benefit of dissenting ministers; for the law knew no such assemblies, and no such persons, and such a devise was absolutely void, being left to what the law called "superstitious purposes." But will it be said in any court in England that such a devise is not a good and valid one now? And yet there is nothing said of this in the toleration act. By this act the dissenters are freed, not