5 Goo. I. c. 4.

No. 7.

5 George I. c. 4.-An Act for strengthening the Protestant Interest in these Kingdoms.

HEREAS an Act of Parliament was made in the Tenth Year WH of the late Queen ANNE, intituled, An Act for preserving the Protestant Religion, by better securing the Church of England, as by Law established; and for confirming the Toleration granted to Protestant Dissenters by an Act, intituled, An Act for exempting their Majesties' Protestant Subjects, dissenting from the Church of England, from the Penalties of certain Laws, and for supplying the Defects thereof; and for the further securing the Protestant Succession, by requiring the Practicers of the Law in North Britain to take the Oaths and subscribe the Declaration therein mentioned: And whereas Part of the said Act, as also another Act herein after ⚫ mentioned, have been found to be inconvenient;' Be it therefore e. 2, & the Schism enacted by the King's most Excellent Majesty, by and with the Act of 12 Aune, Advice and Consent of the Lords Spiritual and Temporal, and stat. 2, c. 7, reCommons, in Parliament assembled, and by the Authority of the pealed. same, That the said recited Act passed in the Tenth Year of the late Queen ANNE, from the Beginning thereof to these Words, And it is hereby further enacted and declared by the Authority aforesaid, That the Toleration granted to Protestant Dissenters,' and also one Act made in the Twelfth Year of the Reign of the late Queen ANNE, intituled, An Act to prevent the Growth of Schism, and for the further Security of the Churches of England and Ireland, as by Law established, shall be and hereby repealed, annulled and made void.

Part of 10 Anne,

Mayor, &c. resort

to any Couventi

cle with Ensigns of his Office, dis

abled to hold any publick Office.

II. Provided always, and be it enacted by the Authority aforesaid, That if any Mayor, Bailiff, or other Magistrate in that Part of Great Britain called England, the Dominions of Wales, or the Town of Berwick-upon-Tweed, or the Isles of Jersey or Guernsey, shall knowingly or wilfully resort to, or be present at any publick Meeting for religious Worship, other than of the Church of England as by Law established, in the Gown or other peculiar Habit, or attended with the Ensign or Eusigns of or belonging to such his Office, that every such Mayor, Bailiff, or other Magistrate, being thereof convicted by due Course of Law, shall be disabled to such Office or Offices, Employment or Employments, and shall be adjudged incapable to bear any publick Office or Employment whatsoever within that Part of Great Britain called England, the Dominion of Wales, and Town of Berwick-upon-Tweed, or Isles of Jersey & Guernsey. (1)

(1) Sir Humphry Edwin, a Lord Mayor of London, had the Imprudenee, soon after the Toleration Act, to go to a Presbyterian Meeting-house in his Formalities, which is alluded to by Dean Swift, in his Tale of a Tub, under the Allegory of Jack getting on a grey Horse and eating Custard.→→→ 4 Bl. Com. 554.

No. 8.

5 George I. c. 6.-An Act for quieting and establishing Corporations.

W CHATLES the Second, intituled, An Act for the wellgoverning and regulating of Corporations, it is, amongst other Things, enacted, That every Person or Persons, who from and after

WHEREAS by an Act made in the thirteenth Year of King

should be

the Expiration of the Commissions in the said Act mentioned, Places of Mayors, Recorders, Bailiffs, Town-clerks, Common Coun

placed, elected or chosen, in or to any the Offices or

cil-men, or io

Trusts, or other Imployinent relating to or concerning the Government of Cities, Corporations and Boroughs, and Cinque-ports and

any Office or Offices of Magistracy, or Places or

their Members, and other Port Towns, should at the same Time when the

respectively should be administred, take the following Oath, viz.

A. B. do declare and believe, That it is not lawful, upon any

that I do abhor that traiterous Position of taking Arms by his Authority against his Person, or against those that are commissioned by him: So help me God.'

'And subscribe the following Declaration, viz.

No. 8.

5 Geo. I. c. 6.

Oath.

4. B. do declare, That I hold that there lies no Obligation upon The Delaration. me or any other Person, from the Oath commonly called, The Solemn League and Covenant; and that the same was in itself an unlawful Oath, and imposed upon the Subjects of this Realın against the known Laws and Liberties of this Kingdom.'

c. 1.

And that in Default thereof every such Placing, Election and Choice should be void: And whereas the taking the said Oath, and subscribing the said Declaration, have for several Years last past been generally omitted, and Questions have of late arisen, Whether the said Statute made in the said Thirteenth Year of King CHARLES 13 Car. I. st. 2 the Second, as to the said Oath and Declaration, he yet in Force :' Therefore, for avoiding of all such Questions for the future, and for the establishing the Peace and Quiet of Corporations, Be it declared and enacted by the King's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That all and every Member and Members of any Corpora- Members of Cor. tion within this Kingdom, and all and every Person and Persons that porations are con were required by the said above recited Act to take the said Oath, or fices though they subscribe the said Declaration, shall be and are hereby confirmed in have not taken the their several and respective Offices and Places, notwithstanding their claration. And inOmission to take the said Oath or subscribe the said Declaration, and demnified, &c. shall be indemnified, freed and dischared of and from all Incapacities, Disabilities, Forfeitures and Penalties arising from such Omission, and none of their Acts shall be questioned or avoided for or by Reason of the same; but that all such Acts shall be and are hereby declared and enacted to be as good and effectual, as if all and every such Person and Persons had taken the said Oath, and subscribed the said Declaration, according to the Direction of the said Act.

firmed in their Of

Said Oath and De

So much of the recited Act as re

11. And be it also further enacted by the Authority aforesaid, That so much of the said Statute as requires the taking of the said quires the taking Oath, and subscribing the said Declaration, shall be, and is hereby the said Oath, &c. repealed; and that neither the said Oath or Declaration shall be repealed. required for the future.

III. And whereas by the said recited Act made in the thirteenth Year of King CHARLES the Second, it is enacted, That no Person or Persons shall be placed, elected or chosen, in or to any of the Offices or Places relating to or concerning the Government of any City, Corporation, Borough, Cinque-port and their Members, and other Port Towns, or any other Offices in the said recited Act

13 Car. II. st. f. c. 1.

No. 3.

3 Geo. I. c. 6.

' mentioned or expressed, that shall not have, within one Year next before such Election or Choice, taken the Sacrament of the Lord's Supper, according to the Rites of the Church of England, and that in Default thereof every such Placing, Election and Choice shall be Members of Cor. void; Be it further enacted by the Authority aforesaid, That all porations, &c. who and every the now Member and Members of any Corporation within have umitted to this Kingdom, and all and every Person and Persons now in actual ment as enjoined Possession of any Office, that were required by the said above recited by the said Act, Act to take the Sacrament of the Lord's Supper according to the Rites continue in their of the Church of England, within one Year next before his Election Offices, & he freed or Choice into such Office, shall be and are hereby confirmed in their from all incapaci- several and respective Offices and Places, notwithstanding their Omisfrom such Omis- sion to take the Sacrament of the Lord's Supper as aforesaid, and shall

take the Sacra

shall nevertheless

ties, &c arising

sion.

be indemnified, freed and discharged, of and from all Incapacities, Disabilities, Forfeitures and Penalties arising from such Omission; and that none of their Acts, nor the Acts not yet avoided, of any who have been Members of any Corporation, or in actual Possession of such Offices, shall be questioned or avoided for or by Reason of such Omission; but that all such Acts shall be and are hereby declared and enacted to be as good and effectual as if all and every such Person and Persons had taken the Lord's Supper in Manner as aforesaid; nor shall any Person or Persons, who shall be hereafter placed, elected or chosen, in or to any the Offices aforesaid, be removed by the Corporation, or otherwise prosecuted for or by Reason of such Omission; nor shall any Incapacity, Disability, Forfeiture or Penalty, be incurred by Reason of the same, unless such Person be so removed, or such Prosecution be commenced within six Months after such Person's being placed or elected into his respective See 2 Bur. 1016. Office, as aforesaid, and that in Case of a Prosecution the same be carried on without wilful Delay. (1)

e

(1) On a Mandamus to admit, the Party applying must prove that he had taken the Sacrament according to the Statute 13 Car. 2. and the Case is not within this Statute, as the Person never was admitted, and therefore cannot be removed, Tufton v. Nevinson, 2 Lord Raym. 1354. 1 Str. 585. But where a Party elected obtained a Mandamus to deliver the Common Seal, &c. when a Return was made of not duly elected, it was held that, since the Statute the Election was not void, but only voidable, and that as there was no Removal within the limited Time, the Election stood confirmed and became absolute; and that the Case differed from the preceding one, as the Plaintiff was in possession of the Office. Crawford v. Powell, 2 Bur. 1013. In Harrison v. Evans, Wilm. 159. Lord Ch. J. Wilmot said, The Act only affects Cases where there has been six Months' Possession, and is rather a Statute of Limitations founded upon public Convenience, to guard against the violent Operation of the annulling Words in the Corporation Act. But before the six Months are expired, and even afterwards, where there has been no Possession of the Office under such an Election, the Operation of the former Law is not at all varied by it. And in Rex v. Monday, Cowper 539. Lord Mansfield observed to the same Effect, that the Statute 5 Geo. 1. c. 6. operates rather as a Protection to the Possession, than as a Bar to the Remedy. If a Man under this Disability has been in Possession six Months, there shall be no Remedy to turn him out: His Title shall not afterwards be questioned on that Ground. It is similar to the Rule laid down by this Court in Respect of Informations where the Party has been in Possession twenty Years. But if this Objection is made recently before any Possession; as suppose the Party upon being refused to be sworn in, was to apply for a Mandamus, and the Answer on the Application should be, that the Ground of Refusal was because he had not taken the Sacrament, I should think it a sufficient Objection. It is the Possession only that is protected; and that, not till after the Expiration of six Months. The Object of the Act was to lessen the Rigour of the Stat. 13 Car. II. made in warmer Times; and that has gone a great Way. See also Rex. v. Hawkins, 10 East, 211. 2 Dow, 124.

No. 9.

11 Geo. I. c. 4.-An Act for preventing the Inconveniences arising for want of Elections of Mayors or other Chief Magistrates of Boroughs or Corporations being made upon the Days appointed by Charter or Usage for that Purpose, and directing in what Manner such Elections shall be afterwards made.

W

11 Geo. I. c. 4.

See 3 Bur. 1873

other chier Officers

THEREAS in many Cities, Boroughs and Towns Corporate within that Part of Great Britain called England, Wales, 'and Berwick upon Tweed. the Election of the Mayor, Bailiff or 'Bailiffs, or other Chief Officer or Officers, is by Charter or ancient 'Usage confined to a particular Day or Time, without any Provision how to act or proceed, in case no Election be then made; and it frequently happens, that by such Charter or Usage, particular Acts are required to be done at certain Times, in order to and for the completing of such Elections, and by the Contrivance or Default of the Person or Persons who ought to hold the Court, or preside in the Assembly where such Elections are to be made, or such Acts to be 'done, or by Accident, it hath sometimes happened, and may frequently do so, if not timely prevented, That no Courts or Assem'blies have been held, or Elections made, or such acts done within 'the Time fixed for that Purpose; in which Cases, if Elections of 'such Officers could not afterwards be made or completed, or in 'consequence of such Omission the Corporation should be dissolved, great Mischiefs might ensue:' For Remedy and Prevention whereof, Be it enacted by the King's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of Where Election the same, That if in any City, Borough or Town Corporate within for Mayors or that Part of Great Britain called England, Wales, and Berwick upon shall not be made Tweed, no Election shall be made of the Mayor, Bailiff or Bailiffs, on the Days ap or other chief Officer or Officers of such City, Borough or Town pointed by Charter or Usage. CorpoCorporate, upon the Day or within the Time appointed by Charter or ration not disabled Usage for such Election, or such Election being made, shall afterwards from electing. become void, whether such Omission or Avoidance shall happen through the Default of the Officer or Officers who ought to hold the Court or preside where such Election is to be made, or by any Accident or other Means whatsoever, the Corporation shall not thereby be deemed or taken to be dissolved or disabled from electing such Officer But may meet to or Officers for the future: But in any Case where no Election shall be geth at the Town made as aforesaid, it shall and may be lawful for the Members or Per- Day after, sons of such City, Borough or Corporation, who have Right to vote, or be present at, or to do any other Act necessary to be done, in order to or for the completing of such Election, and they, or such of them as shall not be hindred by any reasonable Impediment or Excise, are hereby required respectively to meet or assemble together in the TownHall or other usual Place of Meeting for making such Election, within such City, Borough or Town Corporate, upon the Day next after the Expiration of the Time within which such Election ought to have been made, unless such Day shall happen to be Sunday, and then upon the Monday following, between the Hours of Ten in the Morn ing and Two in the Afternoon of the same Day; (1) and that the Members or Persons having Right to vote at, or to do any other Act

(1) This seems to be only directory.-Rex v. Pole, Selwyn, N. P. 957. The Act should be construed as literally as possible.-Idem.

Hali, &c. on the

No. 9.

11 Geo. I. c. 4. and proceed Electio..

necessary to be done in order to such Election, or such of them as shall be so assembled or met together, shall forthwith proceed to the Election of a Mavor, Bailiff or Bailiffs, or other Chief Officer or Officers for such City, Borough or Corporation, and to do every Act necessary to be done in order to or for the completing of such Election, in such Manner as was usual in, or in order to the Election of such Officer or Officers, upon the Day or within the Time appointed by Mayo, &c. ab- Charter or Usage for such Election; and in case upon such Day of senting the ucar Meeting hereby appointed for such Election, the Mayor, Bailiff or est in Plae my Bailiffs, or other proper Officer or Officers, who ought to have held

hold the Court.

If no E'ection

King's Bench may

for electing.
Bee 4 Bur. 2008.

the Court, or presided at the Assembly for such Election, or doing any other Act necessary to be done in order to such Election, if the same had been made or done on the Day fixed, or with the Time limited by Charter or Usage for that Purpose, shall be absent, (2) then such other Person having a Right to vote, being the nearest then present in Place or Office to the Person or Persons so absenting himself or themselves, shall hold the Court or preside in the Meeting or Assembly hereby appointed, and shall have the same Power and Authority in all Respects therein, as belongs to the Mayor, Bailiff or Bailiffs, or other Chief Officer or Officers of the same City, Borough or Town Corporate, at any Court or Assembly for the Election of Officers for such Place, or for doing any other Act necessary to be done in order to such Election.

II. And it is hereby further enacted by the Authority aforesaid, be made, or Elee. That if it shall happen that in any City, Borough or Town Corporate ton become void. within that Part of Great Britain called England, Wales, and Beraward Maudamus wick upon Tweed, no Election shall be made of the Mayor, Bailiff or Bailiffs, or other Chief Officer or Officers (3) of such City, Borough or Town Corporate, upon the Day or within the Time appointed by Charter or Usage for that Purpose, and that no (4) Election of such Officer or Officers shall be made, pursuant to the Directions herein before prescribed, or such Election being made, shall afterwards become void as aforesaid, in every such Case it shall and may be lawful for his Majesty's Court of King's Bench, upon Motion to be made in the Čourt (5) to award a Writ or Writs of Mandamus, requiring the Members or Persons of such City, Borough or Town Corporate, having a Right to vote at, or to do any other Act necessary to be done in order to such Election respectively, to assemble them. selves upon a Day and at a Time to be prefixed in such Writ or Writs, and to proceed to the Election of a Mayor, Bailiff or Bailiffs, or other Chief Officer or Officers, as the Case shall require, and to do every Act necessary to be done in order to such Election, or to signify to the said Court good Cause to the contrary, and thereupon to cause such Proceedings to be had and made, as in any other Cases of Writs of Mandamus granted by the said Court for Election of Officers of Cor

(2) Where an Assembly was regularly convened, and it was held by the Mayor that there could be no Election, and the Meeting dissolved without Objection, an Election by Burgesses who staid behind is void.-Rex v. Gaborian, 11 East, 77.

(3) The Act is not confined to annual Offices; it extends to the Office of Burgess, which is held for Life. The Mandamus may be granted for the Election, not only of head Officers, but of others who form a constituent Part of the Corporation.-Case of Scarborough, 2 Strange, 1180.

(4) If there be an Election de facto, such as would be fairly the Subject of Trial, by an Information in the Nature of a Quo Warranto, the Court will not grant a Mandamus under this Statute, but otherwise if it is a mere colorable Election.-Rex v. Mayor of Cambridge, 4 Burr. 2008. If a Person is elected who has not received the Sacrament within a Year, a Mandamus will be granted.-Rex v. Corporation of Bedford, 1 East, 79.

(5) This Power may be exercised after a Lapse of three or four Years.Bull. N. P. 201.