Power, the assumption of an authority greater than that conceded to the writ of Habeas Corpus, of liberating from prison non obstante a commitment by the House of Commons; a precedent that was closely followed in the Dispensations with the Test Act of the next reign, which contributed materially to the loss of a throne, and change of a dynasty.

The Test Act, in the reign of Charles II., and more signally in that of James II., conduced to the preservation of the religion and liberty of the Country: it cannot, however, be deemed a permanent improvement of the English Constitution. It was an Act which, like some medicinal uses of poison, might have been prescribed beneficially in a dangerous disease of the State, but if permanently administered, was calculated to convulse it, or enervate its functions.

It was observed by Sir T. Davenant, in a debate on the Act, "I fear the Act will have this effect, some will let religion and all go, if preferment lies in the way, and so it will make men atheists." Mr Fox states an objection which is, perhaps, more logical than practical, that a clergyman may conscientiously refuse to administer the Sacrament for spiritual reasons well or ill founded; in doing so, he might, in effect, deprive a person of office without judge or jury. A rule of the Court of King's Bench to shew cause why a mandamus should not issue to administer the Sacrament, as incidental to a civil right, would have been a very unseemly proceeding. Mr Fox, in a speech for the repeal of the Test and Corporation Acts, urges a much stronger objection: "What could be a greater proof of the indecency resulting from the practice of qualifying by oaths, than if, when a man was seen upon the point of taking the Sacrament, it should be asked, 'Is this man going to make his peace with heaven and repent him of his sins?' the answer should be, 'No; he goes to the Communion-table only because he has lately received the appointment of First Lord of the Treasury. This view of the operation of the Test and Corporation Acts may

appear to be confirmed and illustrated by a passage of Evelyn's Diary: 'A. D. 1673, April 26th, Dr Lamplugh preached at St Martin's, the Holy Sacrament following, which I partook of, upon obligation of the late Act of Parliament enjoining every body in office, civil or military, under penalty of £500, to receive it, within one month, before two authentic witnesses; being engrossed on parchment, to be afterwards produced in the Court of Chancery, or some other Court of Record; which I did at the Chancery Bar, as being one of the Council of Plantations and Trade; taking then, also, the oaths of Allegiance and Supremacy, signing the clause in the said Act against Transubstantiation.”

The Test Act, like the Corporation Act, ceased to be a touchstone of liberal or opposite opinions in regard to religious toleration with the abolition of the Sacramental Test by the Statute of the 9th of George IV. Oaths and declarations are, however, still required as a qualification for a variety of public offices and situations, in which point of view they are an important feature in the Constitution of the Country with regard to the subordinate Magistracy, similar to that of the Coronation Oath of the Sovereign. It has been deemed expedient by the Legislature to extend the obligation of giving such tests to persons holding various public employments beyond those specified in the Test Act of Charles II. The utility and propriety of this policy may be questioned; it has, at least, been admitted by the Legislature, (33rd Geo. III. c. 44,) that the proper object of these tests is not "the renunciation of speculative and dogmatical opinions, but the requiring a positive assurance of the submission and attachment of the persons making the same to the laws and Constitution of the Realm, and the person of his Majesty."

The Tests are fourfold, that is to say, relating to allegiance, supremacy, abjuration, and the Declaration under the 9th of George II. They were originally framed in order to meet very

different exigencies; the numerous modifications they have undergone have been made by different Parliaments; they contain several express and implied repetitions, not being prepared with a view of being taken together; they are not the same for England, Scotland and Ireland. These considerations point to the expediency of a single oath or affirmation, short, simple and uniform. But the subject is hedged round with so many inflammatory topics, that Ministers did not dare to entertain it when it was pressed on their consideration by the Criminal Law Commissioners.

The Tests have given rise to an anomaly in English Legislation, the Annual Indemnity Acts, virtually exempting persons from the obligation of taking them. These singular Acts commenced in the first year of the reign of George II. (1 Geo. II. c. 28), but were omitted for one year six times during that reign; it is believed that they have been invariably passed every year since the commencement of the reign of George III. The Tests, however, are not obsolete, and when taken by Judges and other high officers may contribute to public edification: but there may appear to be something wanting of perfection in a Constitution, a supposed bulwark of which has, in effect, been temporarily pulled down every year for upwards of a century.

(c) Parliamentary Test.

The Parliamentary Test was imposed in the year 1678, five years after the first Test. In this interval, the alarm in the Country of the designs of Papists had been greatly increased by the supposed discovery of the Popish Plot. The Parliament, which had been prorogued on the 15th of July, 1678, met again on the 21st of October in the same year; in the Recess had transpired the important events of Oates's narrative, the disclosure of Coleman's letters, and the death by assassination or

suicide of Sir E. Godfrey'. At the opening of Parliament a solemn fast was ordered, an Address to the King against Popish Recusants was delivered, and on the ensuing 28th of October, the Act (30 Car. II. Stat. 2. c. 1), was passed for imposing a Parliamentary Test.

The Title of the Act is "An Act for the more effectual preserving the King's person and government, by disabling Papists from sitting in either House of Parliament." It is recited, that "Forasmuch as divers good laws have been made for preventing the increase and danger of Popery in this kingdom, which have not had the desired effects, by reason of the free access which Popish Recusants have had to his Majesty's Court, and by reason of the liberty which of late some of the Recusants have had and taken to sit and vote in Parliament."

Under the provisions of the Act "No Peer or Member of the House of Commons shall sit or vote without taking the oaths of allegiance and supremacy, and a Declaration repudiating the doctrine of transubstantiation, the adoration of the Virgin, and the sacrifice of the Mass. Peers and Members offending are to be deemed and adjudged Popish Recusants Convict, and are to forfeit £500," besides suffering numerous disabilities.

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Every Peer of the age of 21, and every Member of the House of Commons, not having taken the said oaths and subscribed the said Declaration, and every person now or hereafter convicted of Popish Recusancy who shall come advisedly into,

1 The death of Sir E. Godfrey has been a prolific subject of English medals evincing that the imputation of it to the Papists was a tenet of popular belief. Yet the evidence in the trial of the persons executed for his murder is most unsatisfactory. The rankest cases of leading questions and hearsay answers that are to be found in the State Trials, occur; for instance, the Attorney-General asks a witness, "Did he (viz. Godfrey, deceased) tell you that he did believe he should be the first martyr?" To which the witness answers, "Yes, he did say, upon his conscience, he believed he should be the first martyr." Praunce, the assumed accomplice, afterwards, in 1687, admitted before a court of justice that every syllable he had sworn upon the trial for the murder of Sir E. Godfrey was false. See the remarks on this trial of Mr Phillimore, in his History and Principles of the Law of Evidence.

or remain in the presence of the King or Queen, or shall come into the House where the King or Queen doth reside, shall incur the penalties of the Act, unless the Peer or Member of the House of Commons take the oaths and subscribe the Declaration in the next term after such his coming or remaining." Previous to this Act the Oath of Supremacy could not have been tendered to Peers.

Besides the modifications, at the Revolution, of the oaths of allegiance and supremacy, it was provided by the Catholic Emancipation Act of George IV., that opinions concerning transubstantiation, the Virgin, or the Mass, should be no longer an impediment to sitting in Parliament, or voting for Members; and a test which Roman Catholics do not scruple to take has been substituted, in their case, for the Oath of Supremacy. The doors of Parliament have also been opened, since the reign of Charles II., to Quakers, Moravians, and Separatists. Jews only have been excluded; and that by reason of the words "on the true faith of a Christian" contained in the Oath of Abjuration, an oath imposed since the reign of Charles II., in consequence of the recognition by Louis XIV. of the Pretender. The words are borrowed from an oath framed in the time of James I. on the occasion of the Gunpowder Treason, when they were supposed to be more stringent on the consciences of Roman Catholics, than the usual formulary "So help me God." No Parliament did ever designedly exclude Jews from becoming Members, any more than adjudge them, if they omit to take the oaths of allegiance and supremacy, to be Popish Recusants. For the sake of maintaining an accidental exclusion of Jews from Parliament, on the policy and justice of which the two Houses are at variance, it has been deemed by some neither unwise nor profane to uphold a national oath professing a denial of the right of sovereignty to the descendants of the so-called James III., the dust of all of whom has been long covered by tombs in St Peter's.