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cases as that just noticed, for it recapacitates those who had neglected to take the oath of abjuration, &c., through ignorance or mistake, or by not duly holding the courts when the same ought to have been holden, or for some other such like reasons.

We need hardly expect to find in Queen Anne's days any legislative provision relaxing the obligation to take the Test. On the contrary, the High Church party, after several unsuccessful struggles, obtained the celebrated Act against occasional Conformity, and disgraced the closing session of this reign by the infamous Schism Bill, which, by the death of the Queen, was fortunately prevented from acquiring the character of an essential bulwark of the Church.

In the Act passed at the commence ment of the reign of George the First, (Stat. 2, c. 13,) for confirming the oaths of allegiance, supremacy and abjuration, it was enacted, that all persons who, by virtue of any law then in being, are or would be obliged to receive the Sacrament, &c., on any occasion whatsoever, should continue obliged, under the penalties required by any former Act; and the 23rd section declares, that all persons who should comply with the Tests, within a time limited, should be indemnified against all penalties and incapacities incurred by any former neglect or


The reign of this monarch was, upon the whole, decidedly favourable to the full enjoyment, by the Protes tant Dissenters, of all the rights of good subjects, the consequence, not only of the personal feelings of the sovereign, but of the critical circumstances of the state: yet the Act 5 George I. c. 4, which repealed the Schism Bill and the provisions of the statute 10 Anne, c. 2, against occasional Conformity, merely restored Dissenters to their former footing, giving, indeed, an indirect sanction to the practice of occasional Conformity, by substituting, in place of the repealed enactments, a mere prohibition to public officers from attending Nonconformist worship with their official


The act passed in the same session for modifying the Corporation Act, cannot be viewed as a boon to the Dissenters, it having been evidently

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passed to avoid the extensive public inconveniences which had resulted from its original operation. By this statute, (5 George I., c. 6,) intituled, "An Act for quieting an establishing Corporations," the then existing members of corporations were confirmed in their offices, notwithstanding their omission to take the Sacrament, and were indemnified against penalties; and after enacting, that none of their acts, or the acts not then avoided of former members of corporations, should be questioned, the Act proceeds in the following words: nor shall any person or persons who shall be hereafter placed, elected or chosen in or to any the offices aforesaid, be removed by the Corporation, or otherwise prosecuted for or by reason of such omission; nor shall any incapacity, disability, forfeiture or penalty, be incurred by reason of the same, unless such person be so removed, or such prosecution be commenced within six months after such person's being placed or elected into his respective office, as aforesaid; and that, in case of a prosecution, the same be carried on without wilful delay."

We now come to the reign of George the Second, in which the practice of annual Indemnity Acts took its rise. An Act was passed in the second year after his accession, for quieting the minds of his Majesty's subjects, and preventing the inconveniences that might otherwise happen to divers persons who ought to have qualified, according to the Test Act, but who had, through the shortness of the time allowed for that purpose, or some accident, omitted so to do. In its enacting clause, it appears to be framed on the model of that passed in the former reign, and specifies the 1st of August as the period of indulgence,

The statute 9 Geo. II. c. 26, may be considered the first of the series of Acts which, with very few exceptions, have been passed annually since that period, and under which professed Nonconformists have been generally regarded as receiving a protection equal in effect to a repeal of the Test Act. Upon looking at the preamble however, we find that the persons in. tended to be benefited were those who, through ignorance of the law, absence, the shortness of the time allowed for

that purpose, or some unavoidable accident, omitted to qualify; and the enacting clause is introduced by the words," For preventing the inconveniences that might otherwise happen by reason of such omissions." It goes a step further than the previous Acts, in extending to penalties, &c. not only incurred, but also to be incurred by reason of any former neglect; but it contemplates and provides for no future omissions, or their attendant penalties.

The Indemnity Act of the 16th year of George the Second, (cap. 30, sec. 3,) reciting, that by the Test Act persons admitted into office should receive the Sacrament within three months, enlarges the time to six months, but expressly reiterates the penalties of the act against any longer neglect.

I have not been able to trace any material variation in the form of these Acts down to the Union, as they are not generally reprinted in the Statutes at large, but there is no reason to believe that any words have been in troduced to countenance an intentional omission to qualify, which might, per haps, not unfairly be presumed against a professed Nonconformist. And it is remarkable, that in the Act of Indemnity passed with reference to Ireland, in the session after the Union, its objects are described as persons well affected to his Majesty's government, and to the United Church of England and Ireland, who had, through ignorance of the law, neglected, or been by sickness or other unavoidable causes, prevented from qualifying.*

The most modern Act of Indemnity, printed at length in the Statutes at large, is that of the 42 Geo. III. c. 23, with which the subsequent acts are stated to correspond. It extends to omissions to qualify under the Corporation Act, which the acts in George 2nd's reign do not appear to have done. In its preamble, it refers the

It is understood that the Test and Corporation Acts have no present operation against Protestant Dissenters in Ireland. The Act of Eufranchisement must be an interesting document, and should have been introduced, if I had been able to procure a sight of it.

omissions intended to be protected against, to "ignorance of the law, absence or some unavoidable accident ;" and then proceeds to enact, for preventing inconveniences from such omissions, that all persons who at or before the passing of the Act had omitted to receive the sacrament, &c., within such time, &c. as is required by law, and who, after accepting any office, &c., but before passing the Act, had received the sacrament, &c., or who before the 25th December, 1802, should receive the same, should be indemnified and discharged from all penalties and incapacities incurred or to be incurred by reason of any neg lect or omission previous to the passing of the Act, and should be fully reca pacitated, &c., and should be adjudged to have qualified themselves; and that all elections and qualifications of, and acts by, such persons, should be of the same validity as if they had duly qualified according to law. But the 2nd section provides, that the Indemnity should not extend to persons against whom final judgment had been obtained for any penalty incurred by neglecting to qualify. The 5th section provides, that the Act shall not restore or entitle any person to any office, &c., already actually avoided, by judgment of any of his Majesty's Courts of Record, or already legally filled up and enjoyed by any other person.

It is observable, that, instead of the 1st of August, according to the earlier acts, the period of indemnity was enlarged to the 25th of December, in the acts passed in 1798 and the following years up to the year 1807; and it is a remarkable circumstance, that in each of the sessions of the two Parliaments which met in that year, an Act of Indemnity was passed, the first giving time until the 25th day of December, and the second prolonging it until the 25th of March. alterations, combined with the present practice of convening Parliament early in the year, have been generally rethe operations of the informer within garded as not merely circumscribing very narrow limits, but as effecting a complete suspension of all prosecutions under the Test laws.


Upon this review of the Corporation and Test Acts, and the statutes

which have modified their operation, it must be evident that Nonconformists of all descriptions are out of the purview and intent of the latter, which are professedly passed to obviate inconveniences arising from accident or inadvertence, and not such as result from a deliberate and conscientious opposition to the law. I do not, therefore, think, that a judge could be severely reflected upon for illiberality, who should manifest a decided leaning to confine the relief afforded by the Indemnity Acts to those against whom no overt acts of dissent could be proved upon which to raise a fair presumption, that the omission to take the Test proceeded from principle, and not from ignorance or accident. Were a more liberal construction established, it is evident that Roman Catholics, as well as Protestant Dissenters, might take shelter under these Acts, and that they are entitled to do so is the published opinion of their learned and liberal advocate Mr. Butler; adopted, perhaps rather hastily, from the current notion of their beneficial operation as to other Nonconformists.

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2. But, assuming that the general terms used in the enacting clause of the Indemnity Act would not be restrained by the recital of its purpose and intention, and that consistent Nonconformists may be considered as included, it would seem that the protection afforded by these successive Acts, either to the inadvertent omission or to the determined repudiation of the Test, is by no means complete: for, suppose an individual to have accepted office five months before the passing of the annual Act, and to have omitted to qualify according to the Test Act, he is not an object of the Indemnity proposed, for as yet he has been guilty of no omission which makes him liable to a prosecution; but, in the space of a month, proceedings may be instituted against him, and in the ordinary course of law, final judgment may be obtained for the pecuniary penalty before the recurrence of a new bill, which will not, in such case, relieve him from any portion of the enormous load of incapacity, denounced by the

See Butler's Notes on Coke, Litt. IV. 391 (a).

Test Act, amounting as we have seen to a kind of civil outlawry.

3. Neither is it to be overlooked, that the protection granted by these Acts, however complete, rests upon the presumption of their being regularly passed; for if, in consequence of some extraordinary emergency affecting the usual routine of parliamentary business, or under the temporary influence of some besotted hue and cry against all dissidents from the Church Establishment, the Act should not be passed at all, or be restricted in its extent, Dissenters, who had unwarily accepted office upon the faith of its recurrence, would be affected with all the consequences of an ex post facto law, and have no alternative between swallowing the Test or braving the utmost penalties of the Act imposing it.

4. The foregoing observations apply more particularly to the Test Act; for, with respect to offices included under the provisions of the Corporation Act, it is obvious to remark, that the sacra mental qualification ought to precede the election to office, otherwise the election is declared absolutely void; and the Act of 5 Geo. I. c. 6, is only a statute of limitation, founded on the political inconvenience of allowing a latent disqualification to vitiate official acts; it merely gives a retrospective validity to the election, provided the person shall not be removed within six months; and as the annual Indemnity Act does not re-capacitate the party, unless he receive the Sacrament before the office have been actually avoided by judgment, or legally filled up, it is plain that during half a year after entering upon office, the consistent Dissenter is exposed to removal or prosecution, which nothing but Conformity can avert. But this is not all for

5. The candidate for a corporation office is liable to be questioned at the time of election as to his previous compliance with the Sacramental Test, and upon his confessing or not denying his omission in that respect, or (as it seems) without any reference to him, notice of his noncompliance will

*Sec King v. Corporation of Bedford,. 1 East, 79.

have the effect of nullifying all votes subsequently given for him, and enabling the presiding officer to declare a rival candidate with a minority of votes to be duly elected: thus putting it into the power of any intriguing electioneer to rob the majority of their franchise, and thrust upon them an individual obnoxious in the highest degree.

This was exemplified in the case of the King v. Parry and Phillips, 1811, reported 14 East, 549, where informations, in the nature of a quo warranto, were exhibited against the defendants as Common-councilmen of Haverfordwest. It appeared that their votes more than trebled the numbers of votes for the candidates whose election was sought to be established, and would have been established but that the Mayor refused to admit them into office, and the defendants, in the mean time, removed their disabilities, by complying with the terms of the Indemnity Act. See also the case of the King v. Hawkins, 10 East, 211, in which the candidate, having the majority of legal, but a minority of actual, votes, had been declared duly elected, and was considered as legally filling the office; and the case of King v. Bridge, 1 Maule, and Selwyn, 76, which decides that a candidate cannot gain his election by a minority of votes given before notice of the disqualification of his opponent.

The existing notion, therefore, that the Corporation and Test Acts are in their actual operation a mere dead letter, is far from being founded in truth; and should the fashion of forming associations for enforcing the penal laws be extended to the laws against Nonconformity, there are many openings through which the astuteness of a legal secretary may pounce upon the luckless Dissenter, who may have trusted to common opinion for that protection which the laws, strictly construed, do not and were never intended

to secure.

It has been suggested, that the Judges would, in deference to the general impression as to the intent and operation of these Acts of Indemnity, delay the trial or judgment in any proceeding which might be instituted under the Test Laws, so as to give the defendant the benefit of the next Indemnity Act; but this exper



tation appears to me wholly unjustifiable; and I, for one, would deprecate such an unprincipled interference with the course of the law on the part of any court of justice, the more especially as I feel convinced, that if those judicial characters who have, at various periods, signalized themselves by their enlarged views on the subject of religious liberty, had, by giving full scope to these barbarous enactments, exposed them to the eye of the public in all their naked deformity, they would have rendered a more essential and permanent service to that great cause, than any departure from the spirit of the statute book, in deference to the general spirit of the times could possibly effect. In this point of view, even the decision in Allen Evans's case+ affords matter of doubtful tri

The case of Rex v. Brown, 29 Geo. III., reported in a Note to 3 Term Reports, p. 574, will, perhaps, be thought conclusive upon this point. A rule for an information, in the nature of a quo warranto, against the defendants as Common-councilmen of York, for not having received the Sacrament, was obtained within six months after their election, and Erskine shewed cause against the rule, urging, that if the court thought the

granting of these informations discretionary, no case could occur where that discretion might be more properly exercised; for the necessity of the statute in question had been long since done away, and the defendants had been elected without their knowledge, and in their absence, and by their affidavits state, unequivocally, that they are members of the Church of England. Lord Kenyon said, "I think we are bound to grant this information. The law has said that the magistracy of the country shall be in the hands of those who profess the religion of the Church of England. This law has been revised and softened down since the accession of the House of Hanover; but we are now called upon to pare away the provisions of it still more than the Legislature have yet thought fit to do."

+ See 2 Burn's Eccl. Law. Tit. Dis

seuters; 3 Brown's Parl. Cases, 476.

It seems the question ultimately decided in that celebrated case was very early agitated in the cases of the Mayor, &c. of Guildford v. Clerk, (2 William and Mary,) 2 Ventris, 247, and the King-v. Larwood, (6 William III.,) reported in Skinner, 574, 4 Moderu, 270. The latter was upon an information against the

umph to the Dissenting cause, for a contrary result would have brought Dissenters before Parliament with an unquestionable grievance, and they might probably have been long ago released from that bed of Procrustes, upon which it was attempted to stretch them, not by exonerating them from all legal eligibility to offices which, though burdensome, every good citizen will wish to share; but by erasing from our Code every impious enact ment which presumes to interpose between man and his Maker, or to connect criminality and civil incapacity with a conscientious desire to preserve an unsullied loyalty, an untainted allegiance to the King of kings.

Before I close this subject I would offer a remark upon the strange notion

defendant, as Sheriff of Norwich, for refusing to be sworn into office. S. Eyres, Justice, argued for the defendant, (and his opinion was said to be that of Lord Keeper Somers,) that the exclusion from office was a punishment of itself, and, therefore the party should not be fined: but G. Eyres, Justice, and Holt, ChiefJustice, said, the intent of the Corporation Act was not to exempt any man from serving the King, or to give ease or favour to Dissenters, but rather to draw them to a reconciliation with the Church, as a way to render them capable of offices in the government: this was the design of the Act; and if the plea in that case was good, a man should be excused for not serving the King, which is one offence, for (by) not receiving the Sacrament within the year, which is another offence. In the same case, Holt, Chief-Justice, remarked, that the design of the Corporation and Test Acts was the same, the one to exclude Dissenters, and the other to exclude Papists; and it never had been thought that if a man would not qualify himself, it was an excuse under the Test Act; that there never was any distinction between Protestant and other Dissenters, till after the Toleration Act; and that it had been for thirty years the opinion of men learned in the profession, that the Corporation Act did not exempt Dissenters, and they had always submitted to fines in London and Norwich also. But the reasoning of the two latter Judges, or, at least, their judgment, proceeded upon the circumstance of the Toleration Act being not specially pleaded in bar, it being at that time regarded as a private Act, though since declared a pubHe Act by Stat. 19 George III. c. 44.

which appears to be widely prevalent amongst the Dissenters of the present day, that our cause will be best promoted by a silent acquiescence in things as they are, until, by means of a series of amicable discussions, which some few leading individuals may have an opportunity of carrying on with the minister of the day, they have succeeded in convincing him, by our apparent insensibility and indifference as to the removal of our disabilities, that the right moment is arrived for our complete enfranchisement without risk to the sacred but puny twin-sister of the state. I readily admit that Dissenters would be ill-advised to make their appeal to the Legislature and the public in the language of violence or of marked disrespect to the institutions of their country, many of which, how essentially bad soever in theory, are yet by the general liberality of the public mind rendered comparatively innoxious in practice; nor would I be disposed to take my stand upon the high but disputable ground of abstract right as separated from expediency. But I would ask those silent negociators, who, whilst they are horrified at the indiscreet downrightness of Dr. Priestley in the year 1790, would in some sort realize his most appalling metaphor, by depositing explosive materials, grain by grain, under the edifice of intolerance, and reckon upon enlisting my Lord Liverpool as one of their corps of sappers and miners: I would ask them, 1 say, What is the experience upon which they ground the delusive notion, that the clear and manly cause of religious liberty will be most subserved by a patient waiting until the hearts of kings and senators are melted by the edifying spectacle? The history of the Test Act appears to read them a very different lesson, for it was upon private assurances of a speedy repeal as to the Dissenters that they concurred in its enactment; nor will the late statute for the relief of Antitrinitarians be regarded as an instance in favour of this quiet policy, whilst we have the Lord Chancellor's declaration sounding in our ears, that the Legislature, in passing that sta tute, had no idea of establishing a general principle of forbearance towards Antitrinitarians, but merely to repeal, or rather to mitigate, some of

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