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within three months after his or their The Toleration Act, which was passadmittance in or receiving their autho- ed in the same session, in making a rity and employment, in some public sweeping repeal of the laws passed for church upon some Lord's day, immedi- repressing Papists and Popish recuately after divine service and sermon, sants, so far as they affected Proand should deliver a certificate of so testant Dissenters, expressly excepts receiving it, under the hands of the the Test Act, and also the statute of minister and churchwarden, and should 30th Charles II., for disabling Papists then make proof of the truth thereof, from sitting in either House of Parliaby two credible witnesses, at the least, ment; with the requisitions of which upon oath, and that all persons neg- latter statute, however, Protestant lecting or refusing, should be ipso Dissenters had never any difficulty in facto adjudged incapable and disabled complying. It is rather singular that in law, to all intents and purposes, to the Corporation Act was not also the have, occupy and enjoy the said office subject of express exception, but I or employment, or any profit or ad- presume it was not considered to come vantage appertaining, &c. The 5th precisely within the description of an section declarés, that, upon being con- act
against Popish recusants. victed of executing any office after a There is no other statute in this neglect or refusal to comply with the reign which answers to the modern Act, the offender is to forfeit 5001. to annual Indemnity Act. There is, inthe informer, and is, moreover, dis- deed, an Act of a similar description, abled to sue in any court of law or (11 and 12 Wm. III. c. 17,) intended equity, to be guardian of any child, or to protect the officers of government executor or administrator of any per- against the penalties incurred by a son, or to be capable of a legacy or neglect to subscribe the Protestant gift, or of holding any office whatever.' Association, which, having originated The offices of constables, overseers, in a voluntary engageinent to protect churchwardens, surveyors of the high- the person of the Sovereign, had been ways, or “any like inferior civil legalized and continued as an addioffices,” are left open to the ambition tional Test until the accession of Queen of Nonconformists, who are also to- Anne, when all laws relative to the lerated in exercising the functions of Association were annulled. a gamekeeper, or like private offices. It would seem, from the case of the
The first statute I have met with, King v. Haines, which occurred in the which bears any close resemblance to 7th year of King William III., and is the modern Indemnity Act, is the sta- reported in Skinner, p. 583, that the tute 1 William and Mary, Sess. I, c. Corporation Act was occasionally made 8, by which the oaths of supremacy the instrument of private malice and and allegiance, previously existing, revenge, even against regular Conwere abrogated, and the oath of abju- formists. The reporter says, that this ration directed. The 14th section re- prosecution against an alderman of cites, that since the 11th Dec., 1688, Worcester, appeared upon the trial to the abrogated oaths could not be be a warm prosecution, fomented by taken by any person elected to corpo- a person in the highest civil station, ration offices, by reason whereof his upon a private pique, the defendant election was void by the act of 13 having omitted to take the sacrament Charles II., and indemnifies him upon three days after the time prescribed by taking the new oath within a limited the Act, but, upon notice, he received time. The 15th section contains a like the sacrament, and intended to take provision for officers incapacitated by the oaths (he being a person in all neglect of the requisitions of the Test points conformable, and who commuAct.
nicated frequently every year, and had But in this statute we do not find taken the oaths several times) at the any symptom of a disposition to relax next sessions, which were accidentally these laws, out of deference to the adjourned. The defendant was acquitscruples of Dissenters; on the con- ted for want of sufficient evidence of trary, it is upon record, that clauses the charge of having acted after the proposed in favour of Protestant Non- time limited. conformists were rejected. See Lords' The statute 1 Anne (Sess. 2, c. 17) Protests, Vol. 1. pp. 120, 121. - appears to have reference to such cases as that just noticed, for it re- passed to avoid the extensive public capacitates those who had neglected inconveniences which had resulted to take the oath of abjuration, &c., from its original operation. By this through ignorance or mistake, or by statute, (5 George I., c. 6,) intituled, not duly holding the courts when the “An Act for quieting an establishsame ought to have been holden, oring Corporations,” the then existfor some other such like reasons, ing members of corporations were
We need hardly expect to find in confirmed in their offices, notwithQueen Anne's days any legislative pro- standing their omission to take the vision relaxing the obligation to take Sacrament, and were indemnified the Test. On the contrary, the High against penalties ; and after enacting, Church party, after several unsuccess- that none of their acts, or the acts not ful struggles, obtained the celebrated then avoided of former members of Act against occasional Conformity, and corporations, should be questioned, disgraced the closing session of this the Act proceeds in the following reign by the infamous Schism Bill, words : nor shall any person or which, by the death of the Queen, was persons who shall be hereafter placed, fortunately prevented from acquiring elected or chosen in or to any the the character of an essential bulwark offices aforesaid, be removed by the of the Church.
Corporation, or otherwise prosecuted In the Act passed at the commence- for or by reason of such omission; ment of the reign of George the First, nor shall any incapacity, disability, (Stat. 2, c. 13,) for confirming the forfeiture or penalty, be incurred by oaths of allegiance, supremacy and reason of the same, unless such person abjuration, it was enacted, that all be so removed, or such prosecution be persons who, by virtue of any law commenced within six months after then in being, are or would be obliged such person's being placed or elected to receive the Sacrament, &c., on any into his respective oftice, as aforesaid; occasion whatsoever, should continue and that, in case of a prosecution, the obliged, under the penalties required same be carried on without wilful by any former Act; and the 23rd sec- delay.” tion declares, that all persons who We now come to the reign of George should comply with the Tests, within the Second, in which the practice of a time limited, should be indemnified annual Indemnity Acts took its rise. against all penalties and incapacities An Act was passed in the second year incurred by any former neglect or after his accession, for quieting the omission.
minds of his Majesty's subjects, and The reign of this monarch was, preventing the inconveniences that upon the whole, decidedly favourable might otherwise happen to divers perto the full enjoyment, by the Protes- sons who ought to have qualified, tant Dissenters, of all the rights of according to the Test Act, but who good subjects, the consequence, not had, through the shortness of the only of the personal feelings of the time allowed for that purpose, or some sovereign, but of the critical circum- accident, omitted so to do. In its stances of the state : yet the Act 5 enacting clause, it appears to be framed George I. c. 4, which' repealed the on the model of that passed in the Schism Bill and the provisions of the former reign, and specifies the 1st of statute 10 Anne, c. 2, against occa- August as the period of indulgence. sional Conformity, merely restored The statute 9 Geo. II. c. 26, may Dissenters to their former footing, be considered the first of the series of giving, indeed, an indirect sanction to Acts which, with very few exceptions, the practice of occasional Conformity, have been passed annually since that by substituting, in place of the re- period, and under which professed pealed enactments, a mere prohibition Nonconformists have been generally to public officers from attending Non- regarded as receiving a protection conformist worship with their official equal in effect to a repeal of the Test state.
Act. Upon looking at the preamble, The act passed in the same session however, we find that the persons infor modifying the Corporation Act, tended to be benefited were those who, cannot be viewed as a boon to the through ignorance of the law, absence, issenters, it having been evidently the shortness of the time allowed for that purpose, or some unavoidable omissions intended to be protected accident, omitted to qualify; and the against, to "ignorance of the law, enacting clause is introduced by the absence or some unavoidable acciwords, ®“ For preventing the incon- dent;" and then proceeds to enact, for veniences that might otherwise happen preventing inconveniences from such by reason of such omissions.” It goes omissions, that all persons who at or a step further than the previous Acts, before the passing of the Act had omitin extending to penalties, &c. not only ted to receive the sacrament, &c., incurred, but also to be incurred by within such time, &c. as is required by reason of any former neglect ; but law, and who, after accepting any it contemplates and provides for no office, &c., but before passing the Act, future omissions, or their attendant had received the sacrament, &c., or penalties.
who before the 25th December, 1802, The Indemnity Act of the 16th should receive the same, should be year of George the Second, (cap. 30, indemnified and discharged from all sec. 3,) reciting, that by the Test Act penalties and incapacities incurred or persons admitted into office should to be incurred by reason of any negreceive the Sacrament within three lect or omission previous to the passmonths, enlarges the time to six ing of the Act, and should be fully recamonths, but expressly reiterates the pacitated, &c., and should be adjudged penalties of the act against any longer to have qualified themselves; and neglect.
that all elections and qualifications of, I have not been able to trace any and acts by, such persons, should be material variation in the form of these of the same validity as if they had Acts down to the Union, as they are duly qualified according to law. But not generally reprinted in the Statutes the 2nd section provides, that the Inat large, but there is no reason to demnity should not extend to persons believe that any words have been in- against whom final judgment had been troduced to countenance an intentional obtained for any penalty incurred by omission to qualify, which might, per- neglecting to qualify. The 5th sechaps, not unfairly be presumed against tion provides, that the Act shall not a professed Nonconformist. And it is restore or entitle any person to any remarkable, that in the Act of Indem- office, &c., already actually avoided, nity passed with reference to Ireland, by judgment of any of his Majesty's in the session after the Union, its Courts of Record, or already legally objects are described as persons well filled up and enjoyed by any other affected to his Majesty's government, person. and to the United Church of England It is observable, that, instead of the and Ireland, who had, through igno- 1st of August, according to the earlier rance of the law, neglected, or been acts, the period of indemnity was enby sickness or other unavoidable larged to the 25th of December, in causes, prevented from qualifying. * the acts passed in 1798 and the fola
The most modern Act of Indemnity, lowing years up to the year 1807 ; printed at length in the Statutes at and it is a remarkable circumstance, large, is that of the 42 Geo. III. c. 23, that in each of the sessions of the two with which the subsequent acts are Parliaments which met in that year, stated to correspond. It extends to an Act of Indemnity was passed, the omissions to qualify under the Corpo- first giving time until the 25th day of ration Act, which the acts in George December, and the second prolonging 2nd's reign do not appear to have it until the 25th of March. These done. In its preamble, it refers the alterations, combined with the present
practice of convening Parliament early
in the year, have been generally re• It is understood that the Test
and the operations of the informer within
garded as not merely circumscribing Corporation Acts have no present operation against Protestant Dissenters in very narrow limits, but as effecting a Ireland. The Act of Enfranchisement must complete suspension of all prosecube an interesting document, and should tions under the Test laws. have been introduced, if I had been able Upon this review of the Corporato procure a sight of it.
tion and Test Acts, and the statutes which have modified their operation, Test Act, amounting as we have seen it must be evident that Nonconformists to a kind of civil outlawry. of all descriptions are out of the pur- 3. Neither is it to be overlooked, view and intent of the latter, which that the protection granted by these are professedly passed to obviate in- Acts, however complete, rests upon conveniences arising from accident or the presumption of their being reguinadvertence, and not such as resultlarly passed; for if, in consequence from a deliberate and conscientious of some extraordinary emergency afopposition to the law. I do not, there- fecting the usual routine of parliamenfore, think, that a judge could be se- tary business, or under the temporary verely reflected upon for illiberality, influence of some besotted hue and who should manifest a decided leaning cry against all dissidents from the to confine the relief afforded by the Church Establishment, the Act should Indemnity Acts to those against whoin not be passed at all, or be restricted no overt acts of dissent could be proved in its extent, Dissenters, who had upon which to raise a fair presump- unwarily accepted office upon the faith tion, that the omission to take the of its recurrence, would be affected Test proceeded from principle, and with all the consequences of an ex post not from ignorance or accident. Were facto law, and have no alternative bea more liberal construction established, tween swallowing the Test or braving it is evident that Roman Catholics, as the utmost penalties of the Act imwell as Protestant Dissenters, might posing it. take shelter under these Acts, and that 4. The foregoing observations apply they are entitled to do so is the pub- more particularly to the Test Act ; for, lished opinion of their learned and libe- with respect to offices included under ral advocate Mr. Butler; * adopted, the provisions of the Corporation Act, perhaps rather hastily, from the cur- it is obvious to remark, that the sacrarent notion of their beneficial opera- mental qualification ought to precede tion as to other Nonconformists. the election to office, otherwise the
2. But, assuming that the general election is declared absolutely, void; terms used in the enacting clause of and the Act of 5 Geo. I. c. 6, is only the Indemnity Act would not be re- a statute of limitation, founded on the strained by the recital of its purpose political inconvenience of allowing a and intention, and that consistent latent disqualification to vitiate official Nonconformists may be considered as acts; * it merely gives a retrospective included, it would seem that the pro- validity to the election, provided the tection afforded by these successive person shall not be removed within Acts, either to the inadvertent omis- six months; and as the annual Indemsion or to the determined repudiation of nity Act does not re-capacitate the the Test, is by no means complete: for, party, unless he receive the Sacrament suppose an individual to have accepted before the office have been actually office five months before the passing avoided by judgment, or legally filled of the annual Act, and to have omitted up, it is plain that during half a year to qualify according to the Test Act, after entering upon office, the consishe is not an object of the Indemnity tent Dissenter is exposed to removal proposed, for as yet he has been guilty or prosecution, which nothing but of no omission which makes him liable Conformity can avert. But this is to a prosecution; but, in the space of not all : for a month, proceedings may be insti- 5. The candidate for a corporation tuted against him, and in the ordinary office is liable to be questioned at the course of law, final judgment may be time of election as to his previous obtained for the pecuniary, penalty be- compliance with the Sacramental Test, fore the recurrence of a new bill, and upon his confessing or not denywhich will not, in such case, relieve ing his omission in that respect, or him from any portion of the enormous (as it seems) without any reference to load of incapacity, denounced by the him, notice of his noncompliance will
* See Butler's Notes on Coke, Litt. IV, 391 (a).
* See King v. Corporation of Bedford, 1 East, 79.
have the effect of nullifying all votestation appears to me wholly unjustisubsequently given for him, and ena- fiable ; * and I, for one, would deprebling the presiding officer to declare cate such an unprincipled interference a rival candidate with a minority of with the course of the law on the part votes to be duly elected: thus putting it of any court of justice, the more espeinto the power of any intriguing elec- cially as I feel convinced, that if those tioneer to rob the inajority of their judicial characters who have, at various franchise, and thrust upon them an periods, signalized themselves by their individual obnoxious in the highest enlarged views on the subject of relidegree.
gious liberty, had, by giving full scope This was exemplified in the case of to these barbarous enactments, exthe King v. Parry and Phillips, 1811, posed them to the eye of the public in reported 14 East, 549, where infor- all their naked deformity, they would mations, in the nature of a quo war- have rendered a more essential and Tanto, were exhibited against the de- permanent service to that great cause, fendants as Common-councilmen of than any departure from the spirit of Haverfordwest. It appeared that their the statute book, in deference to the votes more than trebled the numbers general spirit of the times could posof votes for the candidates whose sibly effect. In this point of view, election was songht to be established, even the decision in Allen Evans's and would have been established but case f affords matter of doubtful trithat the Mayor refused to admit them into office, and the defendants, in the * The case of Rex v. Brown, 29 Geo. mean time, removed their disabilities,
III., reported in a Note to 3 Term Reby complying with the terms of the ports, p. 574, will, perhaps, be thought Indemnity Aet. See also the case of conclusive upon this point. A rule for the King v. Hawkins, 10 East, 211, in an iuformation, in the nature of a quo which the candidate, having the majo- warranto, against the defendants as Comrity of legal, but a minority of actual, mon-councilmen of York, for not having votes, had been declared duly elected, received the Sacrament, was obtained and was considered as legally
filling within six months after their election, the office; and the case of King v.
and Erskine shewed cause against the Bridge, 1 Maule, and Selwyn, 76, rule, urging, that if the court thought the
granting of these informations discrewhich decides that a candidate cannottionary, no case could occur where that gain his election by a minority of discretion might be more properly exervotes given before notice of the dis- cised; for the necessity of the statute in qualification of his opponent.
question had been long since done away, The existing notion, therefore, that and the defendants had been elected the Corporation and Test Acts are in without their knowledge, and in their their actual operation a mere dead absence, and by their affidavits state, letter, is far from being founded in unequivocally, that they are members of truth; and should the fashion of form- the Church of England. Lord Kenyon ing associations for enforcing the penal said, "I think we are bound to grant laws be extended to the laws against the magistracy of the country shall be in
this information. The law has said that Nonconformity, there are many open the hands of those who profess the reliings through which the astuteness of gion of the Church of England. This a legal secretary may pounce upon law has been revised and softened down the luckless Dissenter, who may have since the accession of the House of Hatrusted to common opinion for that nover ; but we are now called upon to protection which the laws, strictly con- pare away the provisions of it still more strued, do not and were never intended than the Legislature have yet thought fit to secure.
to do." It has been suggested, that the
+ See 2 Burn's Eccl. Law. Tit. Dis. Judges would, in deference to the gesenters; 3 Brown's Parl. Cases, 476. neral impression as to the intent
It seems the question ultimately decided
in that celebrated case was very early and operation of these Acts of In- agitated in the cases of the Mayor, &c. demnity, delay the trial or judgment of Guildford v. Clerk, (2 William and in any proceeding which might be in- Mary,) 2 Ventris, 247, and the King . stituted under the Test Laws, so as to Larwood, (6 William II.,) reported in give the defendant the benefit of the Skinner, 574, 4 Modern, 270. "The latnext Indemnity Act; but this expec- ter was upon an inforination against the