lordships thought this case turned; and the answer necessarily fixes a criterion under what circumstances, and by what persons, such a disability may be pleaded as an exemption from the penalty inflicted by this by-law upon those who decline taking upon them the office of sheriff.

In every view in which I have been able to consider this matter, I think this action cannot be supported.

1. If they rely on the corporation act, by the literal and express provision of that act no person can be elected who hath not within a year taken the sacrament in the Church of England. The defendant hath not taken the sacrament within a year; he is not, therefore, elected. Here they fail.

If they ground it on the general design of the legislature in passing the corporation act, the design was to exclude dissenters from office, and disable them from serving; for in those times, when a spirit of intolerance prevailed, and severe measures were pursued, the dissenters were reputed and treated as persons ill affected and dangerous to the government. The defendant, therefore, a dissenter, and in the eye of this law a person dangerous and ill affected, is excluded from office and disabled from serving. Here they fail.

If they ground the action on their own by-law, that by-law was professedly made to procure fit and able persons to serve the office; and the defendant is not fit and able, being expressly disabled by statute law. Here, too, they fail.

If they ground it on his disability's being owing to a neglect of taking the sacrament at church when he ought to have done it, the toleration act having freed the dissenters from all obligation to take the sacrament at church, the defendant is guilty of no neglect, no criminal neglect. Here, therefore, they fail.

These points, my lords, will appear clear and plain.

2. The corporation act, pleaded by the defendant as rendering him ineligible to this office, and incapable of taking it upon him, was most certainly intended by the legislature to prohibit the persons therein described being elected to any corporation offices, and disable them from taking such offices upon them. The act had two parts: First, it appointed a commission for turning out all that were at that time in office who would not comply with what was required as the condition of their continuance therein, and even gave a power to turn them out though they should comply; and then it further enacted that, from the termination of that commission, no person hereafter who had not taken the sacrament according to the rites of the Church of England within one year

preceding the time of such election should be placed, chosen, or elected into any office of or belonging to the government of any corporation; and this was done, as it was expressly declared in the preamble to the act, in order to perpetuate the succession in corporations in the hands of persons well affected to government in church and state.

It was not their design (as hath been said) "to bring such persons into corporations by inducing them to take the sacrament in the Church of England"; the legislature did not mean to tempt persons who were ill affected to the government, occasionally to conform. It was not, I say, their design to bring them in. They could not trust them, lest they should use the power of their offices to distress and annoy the state. And the reason is alleged in the act itself. It was because there were "evil spirits" among them; and they were afraid of evil spirits, and determined to keep them out. They therefore put it out of the power of electors to choose such persons, and out of their power to serve, and accordingly prescribed a mark or character-laid down a description-whereby they should be known and distinguished by their conduct previous to such an election. Instead of appointing a condition of their serving the office, resulting from their future conduct or some consequent action to be performed by them, they declared such persons incapable of being chosen as had not taken the sacrament in the church within a year before such election; and without this mark of their affection to the church they could not be in office, and there could be no election. But as the law then stood, no man could have pleaded this disability, resulting from the corporation act, in bar of such an action as is now brought against the defendant, because this disability was owing to what was then, in the eye of the law, a crime, every man being required by the canon law (received and confirmed by the statute law) to take the sacrament in the church at least once a year. The law would not then permit a man to say that he had not taken the sacrament in the Church of England, and he could not be allowed to plead it in bar of any action brought against him.

3. But the case is quite altered since the act of toleration. It is now no crime for a man who is within the description of that act to say he is a dissenter, nor is it any crime for him not to take the sacrament according to the rites of the Church of England; nay, the crime is if he does it contrary to the dictates of his

conscience.

If it is a crime not to take the sacrament at church, it must be a crime by some law, which must be either common or statute

law, the canon law enforcing it being dependent wholly upon the statute law. Now the statute law is repealed as to persons capable of pleading [under the toleration act] that they are so and so qualified, and therefore the canon law is repealed with regard to those persons.

If it is a crime by common law, it must be so either by usage or principle. But there is no usage or custom, independent of positive law, which makes nonconformity a crime. The eternal principles of natural religion are part of the common law. The essential principles of revealed religion are part of the common law; so that any person reviling, subverting, or ridiculing them may be prosecuted at common law. But it cannot be shown, from the principles of natural or revealed religion, that, independent of positive law, temporal punishments ought to be inflicted for mere opinions with respect to particular modes of worship.

Persecution for a sincere, though erroneous, conscience, is not to be deduced from reason or the fitness of things. It can only stand upon positive law.

4. It has been said (a) that "the toleration act only amounts to an exemption of the Protestant dissenters from the penalties of certain laws therein particularly mentioned, and to nothing more; that if it had been intended to bear and to have any operation upon the corporation act, the corporation act ought to have been mentioned therein; and there ought to have been some enacting clause exempting dissenters from prosecution in consequence of this act, and enabling them to plead their not having received the sacrament according to the rites of the Church of England in bar of such action." But this is much too limited and narrow a conception of the toleration act, which amounts consequentially to a great deal more than this; and it hath consequentially an inference and operation upon the corporation act in particular. The toleration act renders that which was illegal before, now legal. The dissenters' way of worship is permitted and allowed by this act. It is not only exempted from punishment, but rendered innocent and lawful. It is established; it is put under the protection, and is not merely under the connivance, of the law. In case those who are appointed by law to register dissenting places of worship refuse on any pretense to do it, we must, upon application, send a mandamus to compel them.

Now, there cannot be a plainer position than that the law protects nothing in that very respect in which it is, in the eye of the law, at the same time a crime. Dissenters, within the description of the toleration act, are restored to a legal consideration and ca

pacity, and a hundred consequences will from thence follow which are not mentioned in the act. For instance, previous to the toleration act, it was unlawful to devise any legacy for the support of dissenting congregations, or for the benefit of dissenting ministers; for the law knew no such assemblies, and no such persons, and such a devise was absolutely void, being left to what the law called "superstitious purposes." But will it be said in any court in England that such a devise is not a good and valid one now? And yet there is nothing said of this in the toleration act. By this act the dissenters are freed, not only from the pains and penalties of the laws therein particularly specified, but from all ecclesiastical censures, and from all penalty and punishment whatsoever, on account of their nonconformity, which is allowed and protected by this act, and is, therefore, in the eye of the law, no longer a crime. Now, if the defendant may say he is a dissenter; if the law doth not stop his mouth; if he may declare that he hath not taken the sacrament according to the rites of the Church of England, without being considered as criminal; if, I say, his mouth is not stopped by the law,-he may then plead his not having taken the sacrament according to the rites of the Church of England in bar of this action. It is such a disability as doth not leave him liable to any action or to any penalty whatsoever.

(b) It is indeed said to be "a maxim in law that a man shall not be allowed to disable himself." But when this maxim is applied to the present case, it is laid down in too large a sense. When it is extended to comprehend a legal disability, it is taken in too great a latitude. What! Shall not a man be allowed to plead that he is not fit and able? These words are inserted in the by-law as the ground of making it, and in the plaintiff's declaration as the ground of his action against the defendant. It is alleged that the defendant was fit and able, and that he refused to serve, not having a reasonable excuse. It is certain, and it is hereby in effect admitted, that if he is not fit and able, and that if he hath a reasonable excuse, he may plead it in bar of this action. Surely he might plead that he was not worth fifteen thousand pounds, provided that was really the case, as a circumstance that would render him not fit and able. And if the law allows him to say that he hath not taken the sacrament according to the rites of the Church of England, being within the description of the toleration act, he may plead that likewise to show that he is not fit and able. It is a reasonable, it is a lawful, excuse.

My lords, the meaning of this maxim, "that a man shall not disable himself," is solely this: that a man shall not disable him

self by his own willful crime; and such a disability the law will not allow him to plead. If a man contracts to sell an estate to any person upon certain terms at such a time, and in the meantime he sells it to another, he shall not be allowed to say, "Sir, I cannot fulfill my contract. It is out of my power. I have sold my estate to another." Such a plea would be no bar to an action, because the act of his selling it to another is the very breach of contract. So, likewise, a man who hath promised marriage to one lady, and afterward marries another, cannot plead in bar of a prosecution from the first lady that he is already married, because his marrying the second lady is the very breach of promise to the first. A man shall not be allowed to plead that he was drunk, in bar of a criminal prosecution, though perhaps he was at the time as incapable of the exercise of reason as if he had been insane, because his drunkenness was itself a crime. He shall not be allowed to excuse one crime by another. The Roman soldier who cut off his thumbs was not suffered to plead his disability for the service to procure his dismission with impunity, because his incapacity was designedly brought on him by his own willful fault. And I am glad to observe so good an agreement among the judges upon this point, who have stated it with great precision and clearness.

When it was said, therefore, that "a man cannot plead his crime in excuse for not doing what he is by law required to do,” it only amounts to this: that he cannot plead in excuse what, when pleaded, is no excuse; but there is not in this the shadow of an objection to his pleading what is an excuse,-pleading a legal disqualification. If he is nominated to be a justice of the peace, he may say, "I cannot be a justice of the peace, for I have not a hundred pounds a year." In like manner, a dissenter may plead, "I have not qualified, and I cannot qualify, and am not obliged to qualify; and you have no right to fine me for not serving."

(c) It hath been said that "the king hath a right to the service of all his subjects." And this assertion is very true, provided it be properly qualified. But surely, against the operation of this general right in particular cases, a man may plead a natural or civil disability. May not a man plead that he was upon the high seas? May not idiocy or lunacy be pleaded, which are natural disabilities; or a judgment of a court of law, and much more a judgment of parliament, which are civil disabilities?

(d) It hath been said to be a maxim that no man can plead his being a lunatic to avoid a deed executed, or excuse an act done, at that time, because, it is said, "if he was a lunatic, he