tion of protestant dissenters? and, that question. being answered in the negative, his lordship afterwards observed that the chairman of sessions might have been wrong in asking this person for a certificate of his having a separate congregation; but still, to entitle himself to succeed in his application," (i. e. the application for a mandamus) "he ought to shew himself to be the acknowledged teacher or preacher of some particular congregation, or to bring himself within some other qualifying description in the act, in order to be intitled to the exemption * which he seeks." And it was added by Mr. Justice Le Blanc, that if the party be in Holy Orders or pretend to Holy Orders, though he have no particular congregation of his own, he would come within the eighth clause: but if he apply merely as a teacher or preacher, not pretending to Holy Orders, he must state himself to be the teacher or preacher of some particular congregation of Protestant Dissenters by whom he is recognized in that character. Mr. Justice Bayley in confirmation observed, that "this clause of the Toleration Act meant to relieve persons who had protestant dissenting congregations severally attached to them, at the time they made the application,

* It is however, worthy of remark, that no exemption was claimed, but merely the privilege of being permitted to swear allegiance to the King, by which the claimant would have relieved himself from the penalty of €40, for the crime of teaching or preaching in a conventicle.

from the penalties imposed by former Acts, for officiating as preachers of such congregations."

The inference which has in several parts of the country been drawn from the above decision appears to be by no means warranted by it, since the question was not directly brought before the judges, whether the inferior jurisdiction possessed the power of instituting a judicial enquiry into the real character of the claimant; and David Lewis adinitted their right to do so, by contesting only the construction which they had put on the words of the Statute. The disputed point referred by him to the Court of King's Bench was not, whether a party claiming had a right to be allowed to qualify, but whether himself or the magistrates had formed the more correct opinion as to the meaning of the eighth section? Upon which the court agreed with the magistrates, and thought the applicant mistaken. The effect of his affidavit, which might easily have been so framed as to bring their authority into question, was virtually no more than this--Am I, or, am I not, a teacher of a congregation within the eighth section? if I am, I pray a mandamus; if not, I am indifferent about it. To this question the Court have answered in the negative, and the effect of the judgment is simply an opinion, that the word congregation there means a separate congregation; as he did not state himself to be connected with such a one, it follows that it would be useless for him to take the oaths;

but, as if by mutual consent, the original right of the sessions to make enquiries as to the fact, or judicially interpret the law, was placed entirely out of sight, and in the result, the case is confined to the meaning of a single expression which occurs in the Act of Parliament.

If any further comment on this case could with propriety be offered, it might be remarked that, according to the construction which virtually includes the epithet "separate" in the word "congregation," all the militia laws passed from the 26th of the king*, to the present time, have unnecessarily deviated from the language adopted by the parliaments of King William, Queen Ann, and the 19th year of the present reign, in explicitly confining the exemption to teachers of separate congregations. A congregation having been now judicially ascertained to be a separate congregation, the latter phrase, when introduced into subsequent Militia Acts, did not narrow the privilege conferred by the former. And Mr. East appears to have considered those words as obviously bearing the sense which they have now received, for in quoting the eleventh clause in a note, by way of confirmation to the Denbighshire Case, he has distinguished them by italics. Yet, according to Dr. Johnson, and to the common idiom of our language, the indefinite

* Ante pp. 26, &c

article signifies any, not one exclusively *; and it would be strange to say, that the dissenting instructor of three pupils, is exempt from burdens imposed on him who undertakes the education of a pupil. Besides, there is ground for believing that another, important object might also have been in contemplation, since the eleventh section is so expressed, as to restrict the grant of immunities to the period, during which the person in Holy Orders, &c. is also the actual teacher of, or preacher to, a congregation: an object which is effectually secured by the express words, which have been already extracted from the Local Militia Act. Thus interpreted, the emphasis of the sentence should be shifted from a congregation marked out by Mr. East, to teacher or preacher of a congregation, i. e. one actively employed as a religious minister.

Without insisting on the remark that the word permanent would perhaps have been more effectual than separate, since every congregation is separate as long as it continues, there is a farther reason for believing that the latter word has been as improperly selected for the purpose to which it has been applied in the Militia Acts, as it was needlessly inserted in them. It was originally employed in a perfectly different

་་

* See Stat. 31. Geo. 3. c. 32, sect. 8, where the words are, being a minister, teacher, or preacher of any congregation,

&c."

† Ante, p. 28.

sense.

66

The first act of parliament, in which separate" is found in union with congregation" is believed to be the Act for the further security of the Succession passed in the first year of George the First, (Stat. 2. c. 13.) when the house of Hanover was raised to the throne. By that act, all persons holding any office, or invested with any authority, or sustaining any kind of public character, were required within a certain time, to take the oaths of allegiance and supremacy. In that Act civil and military officers are first enumerated, then officers of the royal household, then all ecclesiastical persons and members of the universities, then all schoolmasters and ushers, and afterwards "all teachers and preachers of separate congregations." It is utterly impossible to suppose that this important security for the new government was to be required from such dissenting ministers only, as had the care of a single congregation, yet that body of men is mentioned in no other part of the Act. We must therefore enquire whether the word separate will not bear another sense, different from the ordinary one, which makes it synonymous with distinct; and if we can find one, general enough to avoid all ambiguity, and comprehensive enough to encompass all descriptions of persons intended to be included, we need not hesitate to adopt such construction as the true one. It may then be confidently affirmed, that a separate congregation, in