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

omission.

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personal feelings of the sovereign, but of the critical circumstances of the state: yet the Act 5 George I. c. 4, which repealed the Schism Bill and the provisions of the statute 10 Anne, c. 2, against occasional Conformity, merely restored Dissenters to their former footing, giving, indeed, an indirect sanction to the practice of occasional Conformity, by substituting, in place of the repealed enactments, a mere prohibition to public officers from attending Nonconformist worship with their official

state.

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

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.

These

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.

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.