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were no word but “ civil right” in the Act, and no section but the tenth section, the Hon. Gentleman would then have a right to the weight of his argument in its fullest extent; but the great point on which I rest is, that the tenth section is merely applying to inferior offices after the superior one of a Member of this House has been disposed of by the first and second section. I have, perhaps, taken up more of the time of the House than I ought on this subject-but as I look upon it as a mere legal question, I thought that by so doing I might be able to excite the minds of those who have taken a different view of the matter to canvass and answer the objections which I have urged. This is the reason that I have thus early in the debate presented myself to the attention of the House, and I can assure it that I have done so without the least reference to the particular individual concerned, and without the least desire of keeping him from a seat in this House. Such a course would be the last thing in the world by which I should be actuated; the sole feeling by which I have been guided is, that the privileges of this House might be preserved inviolable. I have looked only at what appeared to me to be the law of the subject; and from the conclusion which I have drawn I feel it to be my duty to conclude by moving—,, That Mr. O'Connell, having been returned a Member of this House before the passing of the Act for the Relief of the Roman Catholics, he is not entitled to sit or vote in this House unless he first takes the Oath of Supremacy."
Mr. G. Lamb: The question certainly appeared to him to be one of some difficulty ; but as he believed that the Act which had just been passed had been conceived in an enlarged and extensive spirit, he thought that they were bound not to be too nice as to the minor points at issue, and he should therefore give his vote for the admission of Mr. O'Connell. He would state to the House the way in which he read the clauses of the Act: the declaration contained in the preamble expressly stated that every disability should hereafter be removed : in the second clause he found an arrangement that related to persons who should hereafter be returned to the House of
Commons. It was difficult, he admitted, to forget the circumstances of the times in which they lived; but if they could suppose this generation passed away, and the Statute commented on by a generation who had never heard of the particular circumstances attending its passing into a law, what would be the observation on that section which confined the privileges contained in the Act to those who should be hereafter elected ? They would say that it was not proposed to make any distinction between the persons returned before the Act and those returned after, but that the cases of those returned before the Act were omitted by accident. In the reign of Henry VI. on the trial of the Duchess of Gloucester, a doubt arose as to whether Peeresses were entitled to the benefit of clergy, and an Act was in consequence passed, stating that all Noble Ladies, whether Duchesses, Countesses, or Baronesses, were entitled to that benefit, entirely omitting to mention either Marchionesses or Viscountesses. When this Act was mented upon, as it was very much when the case of the Duchess of Kingston was before the public, it was not supposed that there was any intention of purposely omitting the latter titles, but it was rather thought probable that there were none at that time holding such rank ; the same thing would probably be said about this Act, and the case of the Honourable Member for Clare being forgotten, it would be supposed by after senators, that the Act was only made to apply to those elected after the passing of the Act, because there were none elected before its passing and awaiting for its operation. If they were to go on and look at the question under the tenth Section, he certainly did not know how they were to define the right of sitting in Parliament but as a civil right; but then the question arose—were the two clauses at issue with each other? Not at all, as it appeared to him. The second clause only referred to the particular case of persons elected after the passing of the Act, but the tenth applied generally to all civil rights of all Roman Catholics; and it was therefore to this general arrangement that they were to look in Mr. O'Connell's
He trusted that he had argued this question, as a dry
legal question, and he trusted that the House would be cautious how it laid itself open to the imputation of levelling this Act against an individual.
Mr. Fergusson: If there could be any doubt upon the mind of the House, as to which way it ought to decide, the Petitioner was certainly entitled to receive the benefit of that doubt; but on the best consideration that he had been able to give to the subject, he thought that it was as clear as possible. It appeared to him that it was never contemplated to include the case of the Honourable Member for Clare within the Act. He should not touch upon the Act of Union, as he thought the Solicitor- General had sufficiently proved that the Act of Union made no difference in the case; and that up to the time of the present Act of Parliament, no change had been made; so that every Member was bound to take the prescribed oaths before the Lord Steward, and again at the Table of the House. In opposing the Motion that had been made in favour of the Honourable Gentleman, he did it with considerable reluctance ; for if he could have brought his mind to believe that he had a right to sit, he was convinced, from what he had seen of the Honourable Gentleman that night, that he would be a valuable acquisition to the House ; but looking at the question simply in a judicial point of view, he took it, that on the Act of Parliament it was impossible to come to the conclusion that he could be admitted without taking the Oath of Supremacy. He could not agree with the Hon. Gentleman in thinking that he was not excluded by the new Act of Parliament. That Act was strictly an Act of admission, and consequently, if the Honourable Gontleman was not distinctly admitted by it, he was to all intents and purposes excluded. The case, with all Acts of Parliament was, that the effect of them commenced from the day of passing the Act, and not retrospectively, which course would in this, as in almost all other instances, be productive of considerable inconvenience. There was one thing in the Act which must strike the mind of every lawyer, and he therefore wondered that the Honou rable Gentleman had not
felt its force. If the Act hail gone no further than the mere point of civil rights, he would admit that the Hon. Gentleman would have had a right to sit; but the words were, civil and military office, franchise, or civil right; and it was a settled point, that if an Act treated of an inferior person or thing, it could not include a person or thing of superior degree. Then how did the case stand ? In one part of the Act they found that provision was made for the admission into Par. liament of such Roman Catholics as were returned after the passing of the Act; and in another part that Roman Catholics were admissible to civil rights—but this term meant rights not of a higher nature than civil or military office, franchise, or civil right. This was a point that must be clear to every lawyer; and, therefore, believing that there was no part of this Act applicable to the case of the Honourable Member for Clare, he should certainly vote for the motion of the Solicitor-General. Though Honourable Gentlemen might laugh, he could assure the House that he had given his vote for Catholic Emancipation with as cordial a feeling as any man who heard him; and if he thought that the opinion which he had now pronounced could be attributed to any lukewarmness on his part, he certainly would not have uttered it, because he should be ashamed of himself if it could be for a moment supposed that he was actuated by a feeling of enmity against a person whom he did not know, or that he should go in this particular instance against the whole tenour of his conduct through life.
Mr. M. Fitzgerald : He could assnre the Hon. Gentleman that he was not one of those who had laughed at any opinion expressed by him; on the contrary, he was well persuaded that the opinion he had given, had proceeded from the best consideration that he had been able to give to the subject. Joining, as he most cordially did, in the opinions which had been expressed by the Hon. and Learned Gentleman (the Solicitor-General) upon the talent, the temper, and the eloquence with which the Hon. Member for Clare had conducted his argument, he trusted that the House would adopt a course equally creditable to it, and that its Members would dismiss from their consideration every event connected with the election of the Hon. Member, and apply their attention merely to the technical objections which had been urged against his taking his seat. He confessed that he (Mr. Fitzgerald) approached a question of that kind with considerable diffidence, and with no little apprehension of being entangled amongst the mass of legal deductions which lawyers drew to their aid on such occasions. He was emboldened, however, by the conviction that this was not one of the cases to be governed by such principles, and that there really would be found as little difficulty in coming to a satisfactory conclusion in favour of the right of the Member for Clare to take his seat in that House. Applying himself, however, for an instant to the legal arguments through which the right of the Member for Clare was attempted to be resisted, he confessed it was not without very considerable surprise that he listened to the observations of the Hon. and Learned Gentleman (the Solicitor-General), in referring to the arguments of the Member for Clare, upon the 10th section of the Act, admitted at once, that if the case turned on that alone, he was willing to concede the point that Mr. O'Connell was eligible to take his seat in that House. But the Hon. and Learned Gentleman contended that the 10th section was to be taken purely with reference to the 2d section, and that it was to be construed in connection with it, while the Hon. Member for Clare, on the contrary, maintained that the 2d section was to be taken with reference to the 10th section. Now, he really thought, that if a clause of an Act was to be judged of by any test, it was by the plain and obvious meaning of the words contained in it; and if it was plainly and decidedly declared in the 10th section of an Act that a Catholic may exercise any franchise or civil right, upon taking and subscribing the Oaths hereinbefore appointed, it could scarely be said with fairness that there was not in these words a fair ground for contending that the Hon. Member for Clạre might claim the benefit of the exception contained in them