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defendant's duty to serve the office, if it was the intention of the legislature, as it clearly was, to exclude him as an improper person, and as such to render him incapable, by laying him under an absolute disability of being elected to it. His capacity of being elected was taken away and extinguished. The corporation were expressly prohibited from electing him; he could not therefore be under any obligation to serve, nor consequently liable to any penalty for refusing office. If by the ecclesiastical law, he ought to have taken the sacrament according to the rites of the church of England, by that law he might have been punished. If the [475] statute meant to punish him by an exclusion from all corporation offices, such punishment ought not to be aggravated by additional penalties. There is an essential difference between a previous capacity, and a subsequent qualification; the latter supposes a previous duty. The not having received the sacrament does not, nor did in the view of the legislature, fall under the idea of neglect of duty; but was considered as an evidence of a religious principle, which they thought ought not, in a political view, to have any influence in the government of corporations. Since the toleration act, it cannot in any sense be considered as a duty incumbent on a Protestant Dissenter, to receive the sacrament according to the rites and ceremonies of the church of England; his scruples are, in effect, declared innocent; and the exercise of his religion, according to his sentiments and persuasion, is under the protection of the law. The Dissenters therefore could not help regarding the steps taken by the city of London, to enforce against them the bye-law on which the present suit was founded, as an attempt to levy a tax of £600 payable to the chamber of London, upon every Protestant Dissenter free of the city and of sufficient wealth, who prefers his religious principles and his conscience, to the dignity or profit of a corporation office; and such a burthen was apprehended to be derogatory to the liberty given by the legislature in the toleration act.

Another objection was, that though the act declares the election void, yet it does not mean, and therefore does not expressly say, that the election shall be void to all intents and purposes; but that the act is to be so construed, as to make the election and office void, as to the person elected, but not as to the corporation electing, which are to be considered as punishing for a contumacy.

But there was no foundation for this distinction. The objection was obviated, by the answer to the former objection. The prohibition extends equally to the persons electing, and the persons to be elected; and the former, according to the spirit and true meaning of the act, are no more to be trusted in the exercise of their power and general right of electing, than the latter with the power and exercise of the office. The election or office therefore is not, from being once good and well filled, declared to become void to all intents and purposes, according to the usual language in such cases, as if the person was naturally dead; but the very placing, electing, etc. is declared in itself void. Such words would be improper where the election, from the disability of the electors, and the incapacity of the elected, is a nullity from the beginning; though they may be proper in the subsequent avoidance of an office once full.

It was further objected, or rather further urged in support of the second objection, that the act 5th Geo. I. mentioned in the replication, shews that the election of a person who has not received the sacrament according to the rites of the church of Eng-[476]-land, is not absolutely void, because by six months possession, the disability is purged.

This statute is a statute of limitation, founded on political convenience. It gives a title to the office where there was none before, by discharging the disability, unless the person shall have been removed within six months; but does not hinder or vary the operation of the corporation act in any case, except where the title, founded on the limitation thereby introduced, has attached and taken effect; and the operation and effect of this act is, by a retrospect, to give an original right to the office ab initio, which right is absolutely and wholly derived from this act.

But a fourth objection was taken, that the corporation act was intended to punish and not to favour Dissenters; and that if it is so construed as to exempt them from burthensome offices, it will enure to their benefit, and put them on a better footing than the members of the established church, contrary to the design of the legislature.

To this it was said to be evident, that the corporation act was not designed to favour Dissenters; but the disfavour thereby intended, was to exclude them from power, and not to punish them for their non-conformity, for which there were other laws. It is a