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386

Mr. Perceval's Letter on the Toleration Act.

mittimus, to be made by virtue of don and the liberties thereof, for this act, or any proceedings there. the examining, convicting and upon, shall be reversed, avorded, punishing of all offences within or any way impeached by reason ibis act, committed within Lon. of any defuult in form. And in case don, and the liberties thereof, any person offending against this which any justice of peace hath aci, shall be an whabriant in any by this act, in any county of Engo her county or corporation, or By land, and shall be subject to the into any othercounty or corporation, same penalties and punishments, after the offence committed, the for not doing that which by this justice of peace or chief magistrate act is directed to be done by any betone whom he shall be col.virted, justice of peace in any county of as aforesaid, shall certify the saint England. under bis hand and scal, to any XVI. Provided, and be it en. justice of peace, or clief magis. acted by the authority aforesaid, trait of such other county or cor. 'l hat if the person offending, and puration where in the said person convicting as aforesaid, be a feme or persons are inhabitants, or are covert, cohabiting with ber hus. Bud ilito; winch said justice or band, the penalties of five shillings, chief magistrate respectively, is and ten shillings, so as aforesaid hire by authorized and required to incurred, shall be levied by war. levy ihe penalty or penalties in rant, as aforesaid, upon the goods this act mentioned, upon the goods and chattels of the husband of such and chattels of such person or feme covert. persons, as fully as the said other XVII. Provided also, That no justice of peace might have done, peer of this realm shall be attached in case he or they had been inha. or imprisoned, by virtue or force bitants in the place where the of- of this act; any thing, matter or fence was committed.

clause, therein to the contrary XIV. Provided also, that no notwithstanding. person shall be punished for any of. XVIII. Provided also, That fence against this act, unless such neither this act, nor any thing oftender be prosecuted for the therein contained, shall extend to same within three months after invalidate or void his majesty's suthe offence is comınitted. And that premacy in ecclesiastical affairs ; no person who shall be punished but that his majesty, and his heirs for any offence by virtue of this and successors may from time to act, shall be punished for the same time, and at all times hereafter, offence, by virtue of any other exercise, and enjoy all powers and act or law whatsoever.

authority in ecclesiastical affairs, XV. Provided, and be it further as fully and as amply as hiinself enacted, by the authority aforesaid, or any of his predecessors have or That every alderman of London might have done the same ; any for the time being, within the city thing in this act notwithstanding. of London, and tbe liberties thereof, shall have (and they and every of Mr. Perceval's Letter on the ibem are hereby impowered and Toleration Act, addressed to required to execute) the same William Smith, Esq. for the power and authority within Lon

Deputies; tu Messrs, Pellatt

and Wilks for the Protestant poin: in dispute in that case, By Suciety; and to Mr. Butter- postponing 'he apicarion io Pai. worth, for the Wesleyan Meth. liament, till after the recision in odists.

thai case, no such delay will be Downing Street,

be incurred as will prevent the apSIR,

April 10, 1812. plication to Parliament in this Having had an opportunity in session, since the decision will, I the course of the late recess, to believe, be pronounced upon it, consider with my colleagues the in the ensuing term. subject of your communication The precise mode of giving this on the part of the Dissenters, I relief, whether by the repeal of proceed to acquaint you, as I any existing laws, or by making promised, with our opinion upon the act of the magistrate purely it.

ministerial, in administering the It appears to us, that the in- oaths, and granting the certifi. terpretations recently given, at cates, to such persons as may apdifferent Quarter Sessions, to those ply, is a matter which I wish to be statutes under which magistrates understood as reserved for future are authorized to grant certificates consideration ; but I think ir ma. to persons wishing to act as Dis. terial to state, distincıly, that I senting ministers, (and which in. understand the desire of the perterpretations, as far as they have sons, whom you represent, in be hitherto undergone judicial deci. this--that the exemptions, to be sion, appear to be more correct con. conferred by such ceruncares, structions of these laws, ihan thost from the penalties, to winch sich which heretofore prevailed in prac. persons miglit otherwise be a posed tice,) place the persons, who wish for preriching, &c. should be to obtain certificates as Dissenting universal to all who so qualify ministers, in a situation so diiter- the mselves; while the exemption ent from that in which the pre- from civil and military burdens or vious practice had placed them, duties should be confined to those as to require parliamentary inter- only who are ministris of congreference and relief, to the extent, at gations, and who inake the minis. least, of rendering legal the former try so completely their profession, practice; and I shall, therefore, as to carry on no other business, be willing, either to bring for- excepting that of a «chool-masier. ward, or to support, an applica As to the question respecting tion to Parliament for the purpose the liability of dissenting chapels of affording such relief.

to the poor rates, I am convinced Understanding, however, that that the Dissenters must consider a case is now pending in judgment, it as a subject of very inferior imbefore the King's Bench, upon the portance, both in effect and in construction of some part of these principle.-On principle, I conActs, it appears to me, that it will ceive, all that could be required be desirable to postpone any di. would be, that the chapels of Dis. rect application to the Legislature senters should be put.precisely on till that decision shall explain the the same footing as chapels belongexact state of the law upon the ing to the Establishment; if they

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388 The Judgment of the Court of King's Bench. stand on any other footing, in are substantively entitled, if they point of legal liability at the prea come fairly and fully within the seit moneni, (which, however, meaning of the legislature, on a I do not understand to be the case,) comparison of the terins applica. I should be very ready to propose, ble to each class, to take ihe oaibs, that the law in that respect should it is unnecessary for us 10 consider bi altered.

the question furtber, inasmuch as If you

wish for any further the magistrates have not denied communication with me upon this that he bore that character, but subject, I shall be happy to ap- bave refused him only because point a time for seeing you. tbt y thonghi he must have a conI have the honour to be, junct character of another sort, in Sir,

order to entitle him as a person Your most obedient pretending to boly orders; but the

buinble Servant, meaning of the words“ pretending Signed.) SP.PERCEVAL. to boly orders,” whether it can, in

reason or in sense, be understood The Judg, ent of the Court of to mean any bing beyond pre

King's Bench, on the Motion tending to have hviy orders, will be for a 1.undumus, in the Case open to the inagisi:ales upon a reof the King, on the Prosecution turn to this mandarius, if they of Thon as Stundfast Brittan, think fit so to return, io siaie and versus the Justices of Glouces. to explain ; and in so tbsuking it tershire, 6th of May, 1812, proper that a mandamus should taken from the short-hand nutes go for the purpose of th-ir making of M. Gurney.

such return, it they should choose LORD ELLEN BOROUGH. It so to do, the Court is not only occurs to me, Mr. Topping, that conducted to ibai conclusion by we not only have no occasion, what bas been done by their

prebut that we cannot decide upon decessors upon former occasions, that question, upon this applica. but by a regard to the justice of tion; this is an application for a the remedies the parties may have, mandumus, in which the man if they shall be abridged of their swears bimself to be one of the rights; because on a return to the description of persons who are en. mandamus, if they sball return titled io lake these oaths, that he that he is not a person pretending is a person pretending to holy or. to boly orders, and that that is ders. The refusal to admit bim synonimously, according to the so to do, is upon the ground that construction in Cater's Case* prehe must be, not only a person pre- tending to possess holy orders if they tending to holy orders, but (upon shall return, that in point of saci some supposition that the Court he is not a person pretending to have so decided) that he must al. have holy orders, and that he has so be a preacher or teacher of a no orders of any description what. congregation; now if the Court is ever, then it will be open to the not prepared to uvderstand, in party either to move to quash that that copulative sense, the words of return, if they shall think it sufthe staiule descriptive of the several different classes, all of wbom

* Skinner's Rep. 80.

ficient, or to bring an action upon registry and certificate do not it, if they shall ibink it false in prove that they are within the ect, fact; and it does seem to the they will still be obliged to shew Court, on the authority of prece. that they are within the requisite dents of what their precedessors qualifications, it called upon, note have done respecting other clauses withstanding the register and cerof this acı, that it may be expe. tûc: te ; and if, in fact, they are dient, with a view to justice and not within the qualifications, the to the ulterior remedy of the party, justices may return that they are that that should be done in this not, if they think proper lo do so." case, because they may, in that In this case, let it be distinctly case, put it upon the record, by understood, the parties apply una bringing an action for a fake ter der one specific description in the rurn, and then the construction of Toleration Act, as persons pre. this statute may go by appeal to tending to holy orders. The jus. every court in Westminster Hall. tices enter into no consideration of

I do not mean to trouble you the fact at the sessions, whether further, Mr. Topping, for the they maintain that pretence ac. Court mean to make the rule ab. cording to the fair construction of solute. But I will just state what the act, but admitting them to be has been done by the Court upon persons pretending to holy orders, this statute. In a case in 6 Mod. they object upon the ground al310, which was a motion made leged, that no person pretending by Mr. King, then at the bar, but to holy orders was entitled to take afterwards Lord King, for a man- the oaths and to make and sub. damus to the justices of Warwick. scribe the declaration and so on, shire to admit one Peat to take unless he was also, at the same the oaths, in order to be qualified time a preacher or teacher of a to teach a Dissenting congrega- congregation of Protestant Dis. tion; the words of Lord Chief senters. That they state as being Justice Holt were these : “ The the determination which has been party ought to suggest whatever is lately made in this court; but in necessary to entitle him to be ad- which they are certainly mistaken; mitted, and if that be not done, and they assign no other reason. or if it be done, and the fact be His allegarion, at the time of bis false, that would be good matter application, does not appear to to return;" and the same, in effect, have been traversed by them. We was said by Lord Mansfield, in .give them then the opportunity of the case of the King, v. the Justice's traversing it, we give them the opof Derbyshire, which has been it's portunity of returning, if they shall ferred to, as reported in Sir Wil. think fit so to do, that he is not such liam Blachstone; but it is full as a person ; so as in raise the queswell reported in 4 Burrow, 1991, iion either upon the return, when and where what Lord Mansfield the question upon the sufficiency said at the close of the case is re. of the return may be argued be. parted, which it is not in Black. fore the court, or afterwards. Supstone. His lord: hip says,

no posing the return should be sus. inconvenience can attend the re. tained, and the mandamus be ren. gistering this meeting-house. The dered ineffectual in respect of the

390 Return of the Number of Churches and Meeting-houses. validity of the return, they may houses of parliament. In the fur's bring an action for a false return, ther consideration of ihis subject, by which the truth of the return it may be well worth the wbile of may be brought in question. those who argue that a pretence

Upon these grounds, therefore, to boly orders implies the actual without pronouncing at present possession of boly orders, to look (because it is premature to pro. into those ordinances to see what nounce) whether a person pretend. was expected of persons in order ing to holy orders, must not be to their being allowed to preach understood, in all sense and mean, the word of God. In page 80 of ing, to be a person pretending to Scobell's Acts, it is pre-supposed the actual possession and having that the minister of Christ is in the holy orders, respecting which some measure gified tos so weighty I should rather think that the per. a service, by his skill in the origi. sons pretending to holy orders, nal languages and in such arts and according to the best inquisition sciences as are hand.maids unto into the subject I have been able divinity; and by bis know ledge in to make, were not entitled, gene. the whole body of iheology; in rally, to preach under any allow. times in which enthusiasm is supance; and when speaking on this posed to have obtained as great a subject, I will just mention that height, and literature to bave beer we have been referred to what at its lowest ebb, it appeared to passed in the times of the troubles; be fitting to those who managed now, in the 520 Statute, in Sco. the government in that perturbed bell's Acts, it is said, that of the state, that there should be these persons who expect holy orders, qualities in the persons pretending who are candidates for holy or. to the ministry:-) throw this out ders, none may preach but or. for further consideration, wher dained ministers, except such as this matter may hereafter come intending the ministry, shall, for under the consideration of the trial of iheir gifts, be allowed by court. At present we are of opinion such as shall be appointed by both this mandamùs cannot be resisted, houses of Parliament, which clear. because the right in which the ly does not mean a general and in. person applies, has not been denied definite allowance to preach, iu re, or drawn in question; it may be spect of a self-designation to that questioned upon the return, and profession, but they are to be it is fit the mandamus should go, sanctioned by the allowance of in order that the magistrates may persons, constituted by authority have an opportunity of making that to give that allowance by both return, if ibey shail think fit.

RULE ABSOLUTE.

Returns of the Archbishops and Bishops of the Number of Churches

and Chapels of the Church of England, in every Parish of 1000 Persons and upwards ; also of the Number of other places of Wor. ship not of the Establishment.

(Ordered to be Printed by the House of Lords, April 5, 1813.)

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