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Commons. It was difficult, he admitted, to forget the circus stances of the times in which they lived; but if they could suppose this generation passed away, and the Statute comented on by a generation who had never heard of the partieux 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 a distinction between the persons returned before the Act ani 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 como 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 hirn. 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 retrospective:y, 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 Honourable Gentleman had not
felt its force. If the Act haul gone no further than the mere point of civil rights, he would admit that the Hon. Gentleenan 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 the 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 Dok of a higher nature than civil or military office, franchise, a 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 fote 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 commected 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. Meinber for Clare might claim the benefit of the exception contained in them.
What, indeed, would be the effect of the Honourable and Learued Gentleman's arguments, if carried to their full exteat? In the first section of the Act, all declarations are repealed with reference to all descriptions of persons, both Catholic and Protestant. Now, as the Honourable and Learned Gentleman contends that no persons can take these Oaths, and, therefore, claim a seat in the House, except the persons distinctly and positively pointed out in the second section, it follows that the Oath of Supremacy is retained wholly for the Protestants The conclusion to which the Honourable and Learned Gent. and the Honourable Member for Kircudbright (Mr. Fergusson) came, however, was, that Mr. O'Connell could not take advantage of his situation, because he was described in the Act, but because he was not described in the Act, because there was no express clause applying to his peculiar case. It was his (Mr. Fitzgerald's) desire, as he was sure it was the desire of every liberal man in the country, that if from any looseness in the wording of this statute, or from any other cause, there remained a doubt upon the construction of the clauses, that the doubt should be construed in favour of the Member for Clare. He and other Honourable Members stood with the Honourable Member for Clare on the rights of the People who sent him as their Representative to that House; and, in their name, he required that the Act should be construed according to the spirit and intentions of the Legislature, with reference to that Sect of which the Honourable Member for Clare professed himself to be. He claimed, where doubt existed, that every fair and liberal construction should be put on the terms of that Act; for if ever there was a time when there should be a liberal construction in favour of the rights of the people, it is that time, when their recent Act of Legislation and their still more recent declarations, have proved them indisposed to extend the right of representation. It was for this reason he thought they should be cautious how they wantonly limited those rights which already existed. The Honourable and Learned Gentleman (the Solicitor-General, in observing upon the manner in which the Member for Clare