tices, having adopted this rule, could not depart from it; and that nothing was easier than compliance on the part of the prosecutor." The application was dismissed, for that time, on a point of form: but Lord Ellenborough is also said to have lamented that the prosecutor did not comply with so easy a course, and to have observed that both parties stood on the extreme point of right.

Though any length of observation on a case lately argued, and at this moment remaining for decision in the Court of King's Bench, might appear presumptuous, there can be no impropriety in shortly alluding to another case, which was disposed of in the last term, as to the authority of a Court of Quarter Sessions to establish rules of evidence unknown to the general law. The justices of Lancashire had come to a resolution, and were said to have acted upon it for a series of years, not to admit as a witness an occupier of lands situate in a litigating parish, unless by the production of the assessment he can be proved not to be a rated occupier. Much may be advanced in favour of this rule: its convenience is unquestionable, and the practice was undisputed: but Lord Ellenborough declared that where points of evidence are referred to the Court of King's Bench, they must be decided by their legal merits, not according to any supposed measure of reasonableness or convenience, and still less by the mere usage.

Where compliance is exacted with the most reasonable rule established by another, it would be an admission of the authority of him who exacts it, to lay down, to revoke and alter it, and to establish new ones, at his discretion. And, in this particular case, if any one person, claiming to qualify under the eighth clause, had acceded to such a demand as that which was made by the Suffolk magistrates, his acquiescence, however free from inconvenience to himself, might have become a precedent for affecting multitudes of his brethren. It is easy to conceive circumstances in which it might be extremely difficult for others to comply with it; and the magistrates might be induced to follow up their first rule with an accumulation of others, of far more questionable propriety.* The reasonableness of the conditions might perhaps indeed be revised by a superior court, but the right to impose any conditions is in question; and if once that power be granted, its exercise would be protected in almost every instance by the known reluctance of the King's Bench to controul the discretion of magistrates, when untainted with positive corruption. Heavy expences must be incurred by such applications, which, after all, would only refer the claimant from one discretionary tribunal to another, when he grounds his right to protection on the plain letter of a positive statute. It is impossible to set a limit to the injurious conse

* See note at page 51.

quences that might gradually ensue, all of which would be justly traced to the first improper concession on the part of an unresisting sufferer: and while the Court of Session cannot be correctly described as standing on the point of right, in exacting what the law has given them no power to demand, the non-compliance of the dissenters is a necessary act of self-defence, an indispensable protest against an usurped authority, which, if not inconvenient in its immediate operation, is certainly unjust in its principle, and injurious by its example*.

In another case, the magistrates of the county of Gloucester refused to admit a person, who came before them as pretending to holy orders, because they thought the description he gave of himself did not answer that definition: and it was then observed, that these words

It is worthy of notice, that by the statute 31st George 3. . c. 32. which may be called the "Toleration Act of the Roman Catholics," and which was evidently framed on the principles of the statute of 1st William and Mary, the Clerk of the Peace is required to record the name, and give a certificate to such persons in holy orders, or pretended holy orders, as shall demand the same. Similar privileges are also granted by this Act to Roman Catholic Priests, as to Dissenting Ministers by stat. William and Mary, and surely it never can be intended to place Protestant Dissenters under greater restraints, and to render their privileges less secure than those of the Roman Catholics; while the Roman Catholics are authorized to demand the recording of their names, and certificates thereof, there does not appear any legislative reason for denying this privilege to the Protestant Dissenters.

were too loose and indeterminate to allow of perjury being assigned on an affidavit containing such a statement. Yet it should appear to be sufficient to found a claim for protection against the penalties, in the very words of the Statute, creating the exemption. And the remarkable generality of the language employed in the Act, combined with its general spirit and avowed intention, furnishes another argument against all unnecessary scrutiny into the meaning of those terms. If indeed, a charge is brought against an individual for an offence committed under the former Acts, who justifies himself as falling within an exempted class, the magistrate cannot avoid deciding whether he answers such a description. But here a difficulty of a curious nature might arise: for as the object of the new law is to protect against penalties inflicted by the old, it necessarily happens that the persons denounced as criminals by the latter, are the same with those entitled to qualify under the former. He who claims to qualify as the teacher of a congregation, by that description acknowledges himself guilty of an offence of no light magnitude, which nothing can purge, except taking the oaths. But suppose the Quarter Sessions, after enquiry into the nature of the Acts from which he infers his own guilt, should in the exercise of their discretion pronounce in favour of his innocence, and thinking him no teacher, refuse to administer the oaths; fortified by this opinion, he proceeds in his former

course, till some officious neighbour informs against him to a single magistrate who, disagreeing with the majority of his brethren, in the exposition of laws not conspicuous for precision, condemns him as a teacher, and convicts him in the penalty. The case is more unfortunate than improbable; and the culprit suffers for not taking oaths which the Sessions have refused to administer; and possibly upon evidence which he has adduced against himself, as a reason for being allowed to take them.

Having thus rapidly glanced at the cases yet pending, it would be improper to omit one which has lately been decided, to which more important consequences have sometimes been attached, than will be found to belong to it on more strict examination. In consequence of a refusal by the justices of Denbighshire, to admit one David Lewis, who claimed to qualify as teacher under the eighth section, because he produced no certificate of his presiding over a separate congregation, the Court of King's Bench was moved for a mandamus to compel them to admit him, founded on affidavits, in which he described himself as "a protestant dissenter, who preaches to several congregations of protestant dissenters." Lord Ellenborough enquired whether the person applying now swore to the fact of his being the teacher or preacher of any separate congrega

*

* 14 East's Reports, p. 285,