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 what

soever.

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 15,000l. 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 ac

cording 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 himself by his own wilful crime: and such a disability the law will not allow him to plead. If a man contracts to sell an estate to any per son upon certain terms at such a time, and in the mean time he sells it to another, he shall not be allowed to say: Sir, I cannot fulfil 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 afterwards marries another, cannot plead in bar of a prosecution from the first lady that he is already married; because his marrying the se cond 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 ex. cuse 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 wilful fault. And I am glad to observe so good an agreement among judges upon this point, who have stated it with great precision and clearness.

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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, plead. ing a legal disqualification. If he is nominated to be a justice of the peace, he may say, I cannot be a jus

tice 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.

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. For 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?

It hath been said to be "a maxim that no man can plead his being a lunatick, to avoid a deed executed, or excuse an act done, at that time; because," it is said, "if he was a lunatick he could not remember any action he did during the period of his insanity;" and this was doctrine formerly laid down by some judges; but I am glad to find, that of late it hath been generally exploded; for, the reason assigned for it is, in my opinion, wholly insufficient to support it; because, though he could not remember what passed during his insanity, yet he might justly say, if he ever executed such a deed, or did such an action, it must have been during his confinement or lunacy; for he did not do it either before or since that time.

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As to the case in which a man's plea of insanity was actually set aside, it was nothing more than than this; it was when they pleaded ore tenus; the man pleaded, that he was at the time out of his senses. It was replied, How do you know that were out of your senses? No man that is so knows himself to be so. And accordingly his plea was, upon this quibble, set aside; not because it was a valid one, if he was out of his senses; but because they concluded he was not out of his senses. If he had alleged, that he was at that time confined, being apprehend to be out of his senses; no advantage could have

been taken of his manner of expressing himself; and his plea must have been allowed to be good.

As to Larwood's case, he was not allowed the be nefit of the toleration act, because he did not plead it. If he had insisted on his right to the benefit of it in his plea, the judgment must have been different.

His inserting it in his replication was not allowed, not because it was not an allegation that would have excused him, if it had been originally taken notice of in his plea, but because its being only mentioned afterwards was a departure from his plea.

In the case of the mayor of Guilford, the tolera tion act was pleaded. The plea was allowed good, the disability being esteemed a lawful one; and the judg ment was right.

And here the defendant hath likewise insisted on his right to the benefit of the toleration act; in his plea he saith he is bona fide a dissenter, within the description of the toleration act; that he hath taken the oaths, and subscribed the declaration, required by that act, to show that he is not a popish recusant; that he hath never received the sacrament according to the rites of the church of England, and that he cannot in conscience do it; and that for more than fifty years past he hath not been present at church at the celebration of the established worship, but hath constantly re ceived the sacrament and attended divine service among the protestant dissenters; and these facts are not denied by the plaintiff, though they might easily have been traversed; and it was incumbent upon them to have done it, if they had not known they should certainly fail in it. There can be no doubt therefore that the defendant is a dissenter, an honest conscien tious dissenter; and no conscientious dissenter can take the sacrament at church. The defendant saith he cannot do it, and he is not obliged to do it. And as this is the case, as the law allows him to say this, as it hath not stopped his mouth; the plea which he makes is a lawful plea, his disability being through no crime or fault of his own. I say, he is disabled by act of parliament, without the concurrence or in

tervention of any fault or crime of his own; and therefore he may plead this disability in bar of the present action.

The case of "atheists and infidels" is out of the present question; and they come not within the description of the toleration act. And this is the sole point to be inquired into, in all cases of the like nature with that of the defendant, who here pleads the toleration act. Is the man bona fide a dissenter within the description of that act? If not, he cannot plead his disability in consequence of his not having taken the sacrament in the church of England. If he is, he may lawfully and with effect plead it in bar of such an action; and the question, on which this distinction is grounded, must be tried by a jury.

It hath been said, that "this being a matter between God and a man's own conscience, it cannot come under the cognizance of a jury;" but certainly it may, and, though God alone is the absolute judge of a man's religious profession and of his conscience, yet there are some marks even of sincerity, among which there is none more certain than consistency. Surely a man's sincerity may be judged of by overt acts. It is a just and excellent maxim, which will hold good in this as in all other cases, "by their fruits ye shall know them." Do they, I do not say go to meeting now and then, but do they frequent the meeting-house? Do they join generally and statedly in divine worship with dissenting congregations? Whether they do, or not, may be ascertained by their neighbours, and by those who frequent the same places of worship. In case a man hath occasionally conformed for the sake of places of trust and profit; in that case, I imagine, a jury would not hesitate in their verdict. If a man then alleges he is a dissenter, and claims the protection and the advantages of the toleration act, a jury may justly find that he is not a dissenter within the description of the toleration act, so far as to render his disability a lawful one. If he takes the sacrament for his interest, the jury may fairly conclude