« PreviousContinue »
Elizabeth, and that presuming him to be now expelled, the Honourable Member would, on his re-election, find himself not eligible to take his seat in the present Parliament. That, however, was, he repeated, a matter for future consideration. It had been made a question whether the 1st chapter of the 1st of William, or the 8th chapter of the same year, referred to Members of Parliament? The fact was, however, that they both related to Members of Parliament, and the 4th and 5th of Anne did not adopt them, but merely recognized the necessity of their being taken. At the present moment, however, the House had the power to dismiss the case, and so get rid of the necessity of considering the question of penalty, or of allowing any unhandsome advantage to be taken of their proceedings by persons out of doors. It was impossible, however, for any men, as lawyers, to differ upon the question of the Honourable Member's ineligibility to take his seat. They were asked to judge of the Act by its spirit, and by the intentions of the Legislature. The Act was as plainly worded, and applied itself as strongly and as deliberately, and in as business-like a manner to the work it had to perform as ary Act which had ever received the sanction of that House, and throughout the preamble and in every clause was framed to apply expressly to the election of Members to serve in Parliament. In the consideration of such an Act it was the clear and settled rule, that although the preamble might direct you as to the meaning and intention of the clauses, it was never allowed to overrule the distinct and settled meaning of a clause. What then was the expression of the second clause ? 66 That from and after the commencement of this Act, it shall be lawful for any person professing the Roman Catholic religion, being a Peer, and hereafter returned as a Member of the House of Commons, to sit and vote in either House respectively.” Now it was impossible to contend that these words were not introduced for a specific purpose, and that the right there mentioned was intended to be made general as to the Peers, but limited as to the Commons. The oath was then prescribed, and the tribunal before which it was to be taken, the time, and the manner of taking it, distinctly pointed out. The Hon. Member for Clare had indeed done homage to one part of the Act, and acknowledged its authority, for he had gone before the Lord Steward and taken those oaths, which the Act declared to be necessary. For one, he should be very happy to see the Honourable and Learned Gentleman in the House ; convinced as he was, from the temper and ability which he had that evening manifested, that he would be a very valuable acquisition. For his conduct, under the circumstances of the case, he (Mr. Sugden) must pay him the tribute of his admiration; and he was quite persuaded, from his observation of that conduct, that the Honourable and Learned Gentleman would be found ready to pay implicit deference to the unbiassed and impartial decision of the House upon his case.
Sir James Scarlett followed; but the legal character of his speech, and the rapidity of bis utterance, render it impossible for us to give more than a very brief, and, we are sensible, imperfect sketch of the Honourable and Learned Gentleman's observations. He began by declaring his entire concurrence in the eulogy pronounced by his Honourable and Learned Friend who had immediately preceded him on the good temper and ingenuity which had marked the address to the House of the Honourable and Learned Member for Clare. It certainly would be a subject of great regret to him if the House should feel obliged, in the discharge of their duty, to vote the exclusion of so able a man. Notwithstanding that feeling, however, he was bound to look at the subject, divested of all personal feeling. It would, indeed, be most unbecoming to make it a party question; and he was sure that no one would think of so making it. He owned that he should be better pleased if he could be more completely satisfied with respect to the merits of the case ; but he could not refrain from saying, that he much doubted whether all the arguments of the Honourable and Learned Member for Clare had been met by his Honourable and Learned Friend. At the same time, looking at the whole case, he found it impossible to come to any other conclusion than to agree to his Honourable and Learned Friend's pro
position ; although the steps by which they both arrived at that conclusion were not precisely the same.
Were he to be compelled to decide the question on Parliamentary authority, on the Resolutions and practice of the House, which had great weight with him, be was aware that it would be a hopeless task to attempt to maintain that the Statutes requiring the oaths to be taken by Members of the House, before the Lord High Steward, had been repealed. At the same time, and with the concession which he had just made with respect to the practice of Parliament, if he were called upon to pronounce judicially on the question, he must say that in his opinion they were repealed. He would shortly state why. As his Honourable and Learned Friend had observed, the 1st of William and Mary, cap. 1, in the Convention Parliament, was framed with a view to remove doubts respecting their own legality; and to reconcile their existence with the antecedent law of the land. They could take no oath of allegiance to James the Second, because he had abdicated; nor could they all take the Oath of Supremacy. Many of those Members who had rnost warmly aided in the Revolution must have been excluded from Parliament, if the oath of Supremacy had been left in its original form. The history of the Act to which he alluded was this :-It was sent down from the House of Lords to the House of Commons on the 22d of February, and reaci a first time. A great discussion then arose upon it. It was well known, that in the Convention Parliament there was a large party adverse to the new order of things, and inclined to throw doubts on the legality of that Parliament. had just before addressed the King and Queen to dissolve the Parliament, and to issue new Writs, for the purpose of assembling a Parliament of a legitimate character. The subject was much discussed by the lawyers of that day; and he was glad to say, that they all took the liberal side of the question. The Bill having, as he had already observed, come down to the House of Commons from the House of Lords, and been read a first time, it was on the following day read a second 26.
That party time, and was then referred to the consideration of a Select Committee; which Committee was instructed to examine and report to the House what other Acts relating to taking the oaths by Members of the House of Commons, besides that of Charles II., ought to be repealed. The Journals were silent on the subject; but he had looked at the original records, and found that such was the case. The Bill, as sent down by the Lords, referred to the Act of the 30th of Charles the Second only; some of the Members of the Lower House wished to extend it further, and an Amendment to that effect was pro posed and adopted. The third clause of the Bill in question, so amended, was to the effect, that the Act of the 30th of Charles the Second, and all other Acts concerning the taking of oaths by Members of Parliament, should be repealed. It had been said by his Hon. and Learned Friend that those Acts had no relation to the sitting and voting of Members of Parliament. But if they related to the oaths necessary to be taken before entering the House, they related to the sitting and voting of Members of Parliament. The fourth section of the Bill enacted new caths, to be taken in the same manner as the former. That Act, however, related only to the Convention Parliament; and if the matter stopped there, it might be said that it was only a repeal pro hac vice. He had looked carefully into the subject, and he had been unable to discover any other Acts relating to oaths but the 30th of Charles the Second, the 5th of Elizabeth, and the 7th of James the First. The Honourable and Learned Gentleman here read at length the Amendment introduced into the Act of the Convention Parliament by the House of Commons, and maintained that if the question turned on the statute alone, and without reference to the usage of Parliament, there could be no doubt that the oaths had been repealed. There could be no reason why the Convention Parliament, who had repealed the Acts which were applicable to themselves, should not repeal the others. The 8th chapter, section 5, of the same Session, his Hon. and Learned Friend said, alluded to Members of Parliament.
The words of it were, that all persons, excepting those concerning whom other provisions were made, should, on entering on any office, take the new oaths. These was some of the circumstances which excited doubts in his mind. Had it not been for the usage of Parliament, all professional men would say that it was a case of repeal. It appeared, however, that in practice, the oaths taken before the Lord High Steward continued to exist-except in the case of Archdale, the Quaker, which occurred ten years after the passing of the Act. In 1698, the House directed Archdale to come to the Table and take the oaths, when they knew that he had not taken the oaths before the Lord High Steward. In many other cases, however, between the year 1698, and the Union, the House experienced great occasional inconvenience from the absence of the Lord High Steward from London; and had on several occasions been obliged to adjourn, because they had no means of adding to their number. This, he was obliged to admit, showed what the practice of the House had been. Bills of Indemnity had been passed in favour of certain individuals, who had violated that practice. That, however, only proved that there was doubt. It did not absolutely decide the subject. A Right Honourable Friend of his, and a Noble Lord, had been the subjects of Bills of Indemnity on this ground; but that did not imply that there was any fixed opinion on the subject, only that great doubts existed respecting it. He now came to the Act of Union with Ireland. He owned he was struck with the argument urged by the Hon. and Learned Member for Clare, that the omission in the Act of Union with Ireland of any Penal Clause was a circumstance well worthy the consideration of the House. A Penal Act affecting any particular Parliament could not by construction be applied to another Parliament not in existence at the time it was passed. Accordingly, in the Act of Union with Scotland, the Act of the 30th of Charles II. and the other Acts containing Penal Clauses, were by name expressly re-enacted, There could be no doubt, therefore, that it was the intention in the Act of Union with Scotland to exclude Roman Catho