of Liberty and of the Protestant religion stood side by side with fanatical bigots, and with the factious partizans of Monmouth, whose aims were to be furthered by the exclusion of the Duke of York from office, as afterwards, by the Exclusion Bill, from the throne1. There was a transaction connected with the Test Act which has not obtained the notice it deserves from writers on the Constitution in the reign of Charles II. One of the most beneficial consequences resulting from the Act, both in that and the following reign, was the opposing of an obstacle to the designs of each of the Brother Kings for Officering with Papists an army for the subversion of the liberties and religion of the Country. In 1678, Charles II., under pretence of a war with France, had raised an army of thirty thousand men within forty days: soon afterwards the Parliament discovered that Mr Secretary Williamson had countersigned fifty-seven Commissions to Popish Officers, besides dispensations to other Popish Officers to continue in their commands, notwithstanding they had not taken the Oaths nor subscribed the Declaration according to the Test Act. Whereupon the House of Commons sent the Secretary to the Tower. The next day, the King sent for the Commons to attend him in the Banqueting-room at Whitehall, when he told them, "That though they had committed his servant without acquainting him, yet he intended to deal more freely with them, and acquaint them with his intentions to release his Secretary:" this he did on the same day. The House remonstrated in an Address to the King; but the Parliament being prorogued in the next month preparatory to a dissolution, the matter, it would seem, ended. Here was a rupture of the link between regal impeccability and ministerial responsibility, a flagrant exercise of the Dispensing 1 The famous indictment against the Duke of York by Lord W. Russell, which was evaded by the Court suddenly discharging the Grand Jury before the end of the Term, a transaction that furnished an Article for Scroggs's impeachment, would appear to have been for the offence of not going to church under the statutes of Elizabeth and James. The transaction occurred in 1680. 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 appear to be confirmed and illustrated by a passage of Ev Diary: "A. D. 1673, April 26th, Dr Lamplugh pre at the Chancery Bar, as being o Supremacy, signing the cl stantiation." The Test Act, touchstone of li toleration wi Statute of howeve T ne Recusants provisions of the Act "No Peer or Member of the shall sit or vote without taking the oaths of doctrine of transubstantiation, the adoration of the Virgin, and allegiance and supremacy, and a Declaration repudiating the 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. "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. |