actment, however, the effect of the objection must be considered with reference to three several periods of time:-1, When it is made at the time of election, or at any time before the person elected has obtained possession of the office:- 2, When it is made after possession, and before six months have elapsed since the election:-3, When it is made after possession, and after six months have elapsed since the election.

In the first case, the effect is the same as before the enactment in question; the election of a person so disqualified being still considered, before he is actually admitted, as absolutely void. In the second, the objection can be carried into effect only by actual amoval, or a prosecution seriously commenced within the time limited for that purpose; the statute, after admission, permitting the election to be avoided within the six months, only by one of these modes. In the third case, the objection has no effect at all, as coming too late; the statute operating as a protection to the possession, and a bar to the remedy (a).

person

It seems that, in all cases, proof of having received Onus prothe sacrament within the time limited, it being the bandi on affirmative position and evidence of qualification, elected. devolves on the person elected (b): but, where his title is disputed after the six months have elapsed, it is not incumbent on him to prove that no prosecution was commenced within that period, he having in that period acquired a presumptive title (c). These statutes extend to a corporation created sub

(a) 5 Geo. I., c. 6. Lord Raymond, 1354; 2 Burr. 1013; 1B1. 229; 2 Str. 1145; 1 Kyd. 357-3.

(b) 1 Kyd. 361-4; 2 Lord Raymond, 1354; 1 Str. 585; 10 Mod. 65.

(c) 2 Str. 1145.

tion of these

statutes.

Construc- sequently to their enactment (a). But freemen, as such, are not included in the number of those who hold office (b). The courts are bound to grant informations against offenders, on the application of any individual, even of one who has concurred in the election, provided he was then ignorant of the want of qualification (c).

No penalty beyond removal.

Qualifying before the latter of two offices, where eligibility to that office depends on the previous execution of another, is deemed sufficient (d). A neglect to qualify within a reasonable time, amounts to a waiver of the election (e). But the official acts of an unqualified person, it is presumed, are valid as to strangers, though the office, as to himself, is void (ƒ). And it seems that in such case, he may maintain an action against a stranger for the profits of the office (g).

No penalty is, in fact, incurred by neglecting to qualify under these statutes, beyond removal from office.

Mayor, &c. But, if any mayor, bailiff, or other magistrate in attending England, Wales, Berwick on Tweed, or the Isles of chapels. Jersey or Guernsey, is knowingly or wilfully present at any public meeting for religious worship, other than of the established church, in the gown or other peculiar

(a) R. v. Borough of Aldborough, 10 Mod. 100.

(b) 2 Str. 828, Fitg. 47, S. C.; hence Quakers may be freemen.

(c) R. v. Smith, 3 T. R. 573; votes given after notice of disqualification are thrown away; vide, cases on this subject, 10 East, 211; 14 East,

549; 1 M. & S. 76.

(d) Martin v. Jenkin, 2 Str. 1145.

(e) R. v. Jordan, 9 East,

263.

3.

(f) 1 Hawk. P. C. c. 8, s. Hippesley v. Tuck, T. Jones, 81. Semb. cont. sed vide, S. C. 2 Lev. 184. (g) R. Lut. 910.

habit, or attended with the ensigns of his office, on being duly convicted thereof, he is disabled to hold his office, and incapable of bearing any public office or employment within those parts of the realm (a).

Sacrament

to be taken.

2.-As a qualification for office under the Crown (b). ALL persons, excepting the sworn servants of the king and queen, admitted, entered, or taken into and oaths any office, civil or military, or receiving any pay, salary, fee, or wages, by reason of any patent or grant from the king, or having command or place of trust from or under him, or by his authority, or by authority derived from him, in England, Wales, Berwick on Tweed, his Majesty's navy, or the Islands of Jersey or Guernsey, must take the oaths of allegiance, supremacy and abjuration, and (if residing, or being, at the time of their admission, in the city of London, or Westminster, or within thirty miles of the same), subscribe the declaration against transubstantiation, at the time and place, and in the manner specified in a subsequent section of oaths and declarations (c): and also receive the sacrament of the Lord's supper according to the usage of the church of England, within six months after their admission, entry, or accession, as aforesaid, in some public church, on a Lord's-day, immediately after divine service and sermon (d): of

(a) 5 Geo. I., c. 4.

(b) 25 Car. II., c. 2; amended by 2 Geo. II., c. 31; 9 Geo. II., c. 26; 16 Geo. II., c. 30; and as to oaths, &c. by 1 Geo. I., st. 2, c. 13; 6 Geo. III., c. 53.

(c) Vide infra.

(d) A clergyman cannot refuse the sacrament to any person, without a decree from the chancellor of the diocese, under pain of suspension and excommunication. Vide Rubric, et st. 1 Ed. VI., c. 1.

What penalties on neglect.

And subse

quent exe

cution of

the office.

Restoration

to office.

Persons and offices excepted by these statutes.

which a certificate under the hands of the minister and churchwardens, must first be delivered to the court in which the said oaths and declarations are taken and made, proved by the oath of two credible witnesses, and there enrolled.

And all persons neglecting or refusing to take the said oaths and sacrament, and make the said declaration, are ipso facto, and altogether disabled to hold the office or employment, or any profit appertaining thereto, and the same is adjudged void.

And such persons executing an office or employment after the time allotted for qualifying has expired, incur, on conviction, in any of the King's courts at Westminster (a), or at the assizes, the disabilities and penalties specified in the subsequent section of oaths and declarations.

But they are permitted, on qualifying according to these statutes, to hold the same office or employment, or any other, under a new grant; unless, in the first case, it be granted to, and actually enjoyed by another person.

These enactments are not to prejudice the peerage of any peer of this realm (6), either in time of parlia

(a) An indictment brought at the quarter sessions might be quashed; R. v. Bristow, Say. 138; and in an action or information, the utmost precision is required, as to dates, demand of penalty, allegation of prior conviction, execution of office, recital of oaths, &c.; and the defendant must, it seems, plead and prove his qualification, and conclude prout patet per recordum.

Lut. 162, 163, 161; Clift.
Ent. 133, 134.

(b) But peers must take the oaths and subscribe the declarations aforesaid; and they, as well as members of parliament, on default thereof, beside other penalties, are prohibited to appear in the king's presence without license. 1 Geo. I., st. 2, c. 13,; and 30 Car. II., st. 2, s. 2.

ment or otherwise; nor do they extend to any pension or salary granted by the crown to any person, for valuable and sufficient consideration, for life or years, other than those relating to offices or places of trust under the crown, or to pensions of bounty or voluntary pensions; or to any estate inheritance granted to any person by the crown, not being an office; or to any office of inheritance, or fee belonging thereto, then granted and enjoyed, or thereafter to be enjoyed, provided a deputy, approved by the crown under the privy signet is appointed, who duly qualifies, as his principal should have done. Nor to the office of high constable (except as to oaths and declarations) (a), nor of petty constable, tithing-man, headborough, overseer of the poor, churchwarden, surveyor of the highways, or any like inferior civil office; nor to any office of forester, or keeper of a park, chase, warren, or game; bailiff of a manor or lands, or like private offices (b); nor to persons having only the before-mentioned or like offices. Nor do they extend to make any forfeiture, disability, or incapacity, by or in non-commissioned officers in the navy, duly subscribing the declaration against transubstantiation; or by or in any person beyond the seas, duly qualifying within six months after his return to England.

SEC. II. Of indemnities from Penalties under these

enactments.

THE Corporation and Test acts virtually exclude

(a) 9 Geo. II., c. 26.

(b) It is doubtful whether a censor of the College of Physicians is included; R v.

Burrell, 5 Mod. 431; Carth. 478, S. C.; Holt, C. J., pro. ; Rokeby, J., contra.