Page images

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 acciworris, ®“ 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., incarred, 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 neg. receive the Sacrament within three lect or omission previous to the passe months, 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 daly qualified according to law. But not generally reprinted in the Statutes the 2nd section provides, that the Ina 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 emission to qualify, which might, per- neglecting to qualify. The 5th secbraps, 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, biy 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- lst of August, aecording to the earlier sauce of the larv, neglected, or heen 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 fol

The most modern Act of Indemnity, lowing years up to the year 1807 ; printed at length in the Statutes at and it is a renarkable 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 Aet of Eofranchisement 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 Corpora, bo 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 whom 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 Nonconforniists 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 oftice 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 fiable 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 thc enormous (as it seems) ioithout any reference to load of incapacity, denounced by the him, notice of his noncompliance will

[ocr errors]

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

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

[ocr errors][ocr errors]

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 # rival candidate with a minority of with the course of the law on the part votes to be dnly 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 majority 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 ranto, were exhibited against the dc- 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 totes 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 sought to be established, even the decision in Allen Evans's and would have been established but case + 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 Act. 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 rores

, had been declared duly elected, received the Sacrament, was obtained and was considered as legally filling and Erskine shewed cause against the

within six months after their election, the office ; and the case of King v. Bridge, 1 Maule, and Selwyn, ® 76, rule, urging, that if the court thought the

granting of these informations discrewhich decides that a candidate cannot tionary, no case could occur where that gain his election by a minority of discretion might be more properly exertotes 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 electeá the Corporation and s'est 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 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 cover ; 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 do." It has been suggested, that the

+ See 2 Burn's Eccl. Law. Tit. DisJodges would,

in deference to the ge- senters; 3 Brown's Parl. Cases, 476. neral impression as to the intent in that celebrated case was very early

It seems the question ultimately decided and operation of these Acts of Indetanity, delay the trial or judgment of Guildford v. Clerk, (2. William aud

agitated in the cases of the Mayor, &c. in any proceeding which might be in. Mary.) 2 Ventris, 247, and the King-o. tituted under the Test Laws, so as to Lurwood, 6 William fil.,) reported in give the defendapt the benefit of the Skinner, 574, 4 Moderu, 270. The latbext Indemnity Act; but this exper- ter was upon an information against the

[ocr errors][ocr errors]

to secure.



[ocr errors]
[ocr errors]

the penalties denounced against them lic defeat, and our just by the law as being considered a little conceded, we shall have “our charter too serere. It is by full, free and and freehold of rejoicing to us and our reiterated discussion alone, that the heirs,” and our iriumph will consist friends of the Dissenting interest, I not so much in the advancement of our would rather say of the general inte- personal and sectarian interests, as in rests of truth and liberty, (apart from rescuing our great and beloved counthese the Dissenting interest shews try from the taunts of other nations, paltry and base,) can hope finally to far behind her in religious knowledge, eradieate that dissocial, antichristian but whose renovated codes are happily system under which the Saviour has free from the abomination of imposing been so often mocked with the purple a theological shibboleth at the threshrobe of worldly dominion, and con- old of the council-chainber or the science has been made tributary to custom-house. Cæsar's treasury. It is said, however, It was my intention to have brought that preliminary discussion will exposé into discussion the inconveniences to oor weakness, and lay open our as- which Nonconformists are subjected sailable points to the attack of the by the present state of the law with enemy ; but with reference to the respect to the registration of the births Corporation and Test laws, are we of their children; inconveniences which, got also concealing from our friends like the grievance of the Marriage the precise situation of danger in Law, are the result of that incongruwhich they stand, if, relying upon fan- ous union which subsists between cied indemnity, they should aspire to functions purely civil and those of an serve the public in civil offices ? There ecclesiastical nature ; but I must be are not many, it is to be hoped, who brief. It is well known that Disseuare perfectly contented to enjoy their ters have made provision against the birth-right, as it were, by stealth ; and loss, destruction or negligent keeping if amongst us there be any individual of their congregational registers, by a who has enough of the spirit of a Hamp- Register at Dr. Williams's Library, the den publicly to hurl defiance against great utility of which cannot be disthese degrading laws, or of another puted, and ought to be still more Curtius boldly to leap into the gulf of generally known. But as this register civil incapacity and penalties which is unsupported by any legal sanction, they denounce, his glorious aim is to be the evidence supplied from it is not in answered, not by concealment, but by a legal point of view of the highest a full disclosure of the risk and danger and most conclusive kind, and a recent he encounters, and by a fearless chal- instance occurred at the Rolls' Court lenge to the supporters of these fa- in which the Register was not advourite laws to display their excel- mitted. See 1 Jacob and Walker's lence in their amiable operation. In Reports, p. 483. It is understood short, ours is not a petty question of that the evidence has since been acduties and drawbacks, or of agricul- cepted; but the legal difficulty untural or commercial preferences, upon questionably remains, and may prove which we must necessarily approach a fruitful source of vexatious and exthe bar of the Legislature through the pensive delay whenever it is urged. It audience-chamber of the First Lord of is passing strange, that in a case of the Treasury: we boldly but tempe- such general concernment, and which rately ask, Is it fitting that large classes by no means presses exclusively upon of the community should remain under Dissenters, (for the children of Disthe proscription of statutes which senters sometimes swell the ranks of were not originally levelled against Conformity,) the Legislature should them, and which were enacted under suffer the squeamish scruples of a few the pressure of a political exigency of the Church clergy to stand in the long since passed away? If we are way of reformation. If the object still denounced as unfit to be invested were to make the clergy the collectors with civil trust and honour, let us be of a tax for some just and necessary content to dignify our private stations war, how few of them would express by consistency in profession and un- any distaste for the office, or that part wavering integrity in practice ; but if of it in particular which would bring bigotry and intolerance receive a pub them into collision with the self-ex

« PreviousContinue »