Harrison.

the Penalty of the Bye-Law, by alledging that he had been guilty Evans against of it; but the not receiving the Sacrament by perfons within the description of the Toleration Act, is now no tranfgreffion of the Law; and if it is no tranfgreffion of the Law, it is no Offence; and if it is no Offence, it is no more than fhewing any other Fact which renders the Party elected not eligible. And this diftinction varies the Cafe of Diffenters, bringing themselves under the description in the Toleration Act, from the Cafe of Atheists, Infidels, and perfons who are of no Religion at all. And if the Law had faid, that no unmarried man fhould be elected into this Office, there is not the leaft colour to fay that an unmarried man, elected, might not have repelled this Action, by a disclosure of the want of that Qualification.

As to the Amendment made by the Lords to the Occafional Conformity Bill, and the Conference upon it in 1702; both the Bill and the Conference proceeded from a Factious Party Spirit in both Houfes, when Questions were ftarted and toffed about from one fide to the other, without confidering the relevancy of them, but only how far they would annoy and perplex one another: and if it had been the refult of the cooleft and moft mature deliberation, it only manifefts the apprehenfions of the Houses at that time, which were probably occafioned by the Cafe of the King and Larwood: but Parliamentary Doubts, Debates, or Conferences, ought to have no weight in directing Judicial Determinations.

As to the 5th Geo. I. it is made ufe of only to fhew, that an Election of a person who has not received the Sacrament, cannot now be confidered to be abfolutely void to all intents and purposes whatfoever, because a poffeffion for fix months will fubftantiate it. But that Act only affects Cafes where there has been fix months Poffef

Evans against fion, and is rather a Statute of Limitations, founded

Harrison.

Convenience, to guard against the violent operation of the annulling words in the Corporation Act.

But before the fix Months are expired, and even afterwards, where there has been no poffeffion of the Office under fuch an Election, the operation of the former Law is not at all varied by it.

I fhall be very fhort upon the Cafes which have been cited, because I have in fome part or other of what I have faid, endeavoured to meet all the reafons that are to be found in any of them.

The Cafe of Box and Wollafton, is cited as an Authority for the Defendant in Error; but that Cafe could not have been determined for the Plaintiff, upon the point which it is now produced to prove; because if it had, it must have been cited and relied upon by Lord Chief Juftice Holt, and Sir Giles Eyre, as a Cafe directly in point to support their Opinion. The Court therefore certainly expreffed their fentiments in favour of the Plaintiff upon the merits, but determined against him upon fome imperfection in the Form of the Replication. But if it had been determined upon the merits, still it proceeds upon the principle of not difqualifying by an Offence; and therefore does not apply to the present Cafe, where the Fact alledged is now no offence.

The King and Larwood is certainly no Authority in the present Cafe, because from all the Reports of it, it is clear the Toleration Act was laid quite out of that Cafe by Lord Chief Justice Holt; and it was the Opinion only of two Judges, Mr. Justice Samuel Eyre being of a different Opinion. And in 4 Mod. 274. Lord Keeper, Lord Sommers, is faid to have been of the fame Opinion with Mr. Juftice Samuel Eyre; and it is obfervable from the fame Book, that

the

Harrison.

the Fine fet upon the Defendant Larwood, in that Cafe, was five Evans againft marks and no more, which fhews that the two Judges who were of Opinion against him, thought it a tender Cafe, and were very gentle in the Punishment.

But giving that Cafe all the Authority which the unanimous Opinion of a Court deferves, yet as it ftands upon a reafon which vanishes, like a phantom, before the Toleration Act, it can have no effect upon the prefent Question, except it be in favour of our Opinion-For that Cafe does in effect prove, that if it had not been an Offence, advantage might have been taken of the Disability. And I obferve, that it is admitted in that Cafe by the Judges who were of Opinion against Larwood, that if one is difabled by Judgment to bear an Office, he fhall be excufed, " quia judicium redditur in invitum." If a Judgment against an individual will excufe, why shall not an Act of Parliament, which is the fupreme Judgment of the whole Legislature, have the fame effect?

The Cafe of the Mayor of Guildford and Clarke, 2 Vent. 247. is an Authority against the King and Larwood. And though the Court in that Cafe thought the Exceptions to the Declaration incurable, and the Book fays, that fo Judgment was given for the Defendant; yet they were unanimously of Opinion, that the Plea in that Cafe was a good Bar.

As to the Cafe of Sir John Read, 2 Mod. 299. He was capable of the Office at the time he was appointed to it, and had been actually in the poffeffion of it for three Months; whereas the Defendant in this Cafe was not eligible into the Office at all, and never was in the poffeflion of it.

Sir John Read was alledging a Disability, which he had not only Power to remove, but it was his Duty to remove; but when a Nonconformift is elected into a Corporation Office, he cannot remove the Disability, because it is a Difability which precedes the Election; and his receiving the Sacrament afterwards will not remove it, and fince the Toleration Act, it is not his Duty to remove it if he could.

The Cafe of the Mayor of Exeter and Starr, 3 Lev. 116. doth not relate to the Sacramental Qualification. Starr refufed to take the Oaths and fubfcribe the Declaration according to the Corporation Act; and they held that a refusal of the Oaths was a refufal of the Office, and fo within the Power given to them by their Charter to fine for refufing to accept of Offices; but there was no Incapacity to be elected fuggefted, and therefore that Cafe differs as widely from this Cafe, as being legally elected and illegally elected, differ from one another.

If it be thought just and reasonable that this Class of Men should pay £.400 a piece, for not executing Offices which they are forbidden to accept, the Law must be altered by the Legislature; for as the Law now ftands, I am clearly of Opinion they are not obliged to pay it, and that the Judgment in this Cafe ought to be,

REVERSED (a).

(a) The Judges, Commiffioners of Error, were unanimous in Reverfing the Judgment of the Sheriffs Court, and the Affirmance thereof by the Court of Huftings.

A Writ of Error in Parliament was brought in 1766, for the Reverfal of this Judgment of the Commiffioners of Errors; and, on the 4th of February 1767, after hearing the Opinion of the Judges " feriatim," on a Question of Law propofed to them, the above Judgment of Reverfal was

AFFIRMED.

V. Journals of the Houfe of Lords, Vol. 31. p. 475.

APPEAL,

Before the moft Reverend Father in God THOMAS, by Divine Providence ARCHBISHOP of CANTERBURY, Primate and Metropolitan, &c. VISITOR in ordinary and Interpreter of the Statutes of the College of ALL SOULS departed this Life in the Faith, in the University of OXFORD: The Honourable Sir JOHN EARDLEY WILMOT, Knight, one of the Juftices of the Court of King's Bench; and, The Worshipful GEORGE HAY, Doctor of Laws, Vicar General of his faid Grace :-Sitting as his Affeffors in Doctors Commons, London; present EDWARD RUSHWORTH, the Actuary affumed.

WOOLLEY LEIGH SPENCER,

AGAINST

The WARDEN and FELLOWS of ALL SOULS COLLEGE, OXFORD.

THIS Caufe was affigned to be heard this day at the Petition of the Proctors on both fides: Greene prayed that his Grace would pronounce for the Appeal made and interpofed in this behalf, and that the pretended Election of WILLIAM VYSE and JAMES POOLE, in this Caufe appealed from, was and is null and invalid in Law, and that it may be fo pronounced, and that the Warden and Fellows of the faid College may be monished and compelled to admit the faid WOOLLEY LEIGH SPENCER, a true and actual Fellow of the faid