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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, he 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that the Statutes requiring the oaths to be taken by Members of the House, before the Lord High Steward, had been repealed.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Parliament, if he were called upon to pronounce judicially on the question, he must say that in his opinion they were repealed.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 most 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 read 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. That party 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 vas glad to say, that they all took the liberal side of the ques tion. 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
time, and was then referred to the consideration of a Committee; which Committee was instructed to exam. % report to the House what other Acts relating to take a oaths by Members of the House of Commons, beside Charles II, ought to be repealed. The Journals were beina on the subject; but he had looked at the original reas found that such was the case. The Bill
, as sent dors by one Lords, referred to the Act of the 30th of Charles the form only; some of the Members of the Lower House is extend it further, and an Amendment to that efect was posed and adopted. The third clause of the But in cases so amended, was to the effect, that the Act of the Charles the Second, and all other Acts concerning the thing of oaths by Members of Parliament, should be repeated ! had been said by his Hon. and Learned Friend #b:' tymo Acts had no relation to the sitting and voting of Mehed Parliament. But if they related to the oaths recessary * taken before entering the House, they related to the sea and voting of Members of Parliament. The fourth sectis ad the Bill enacted new caths, to be taken in the samne mete as the former. That Act, however, related only to the Cosention Parliament; and if the matter stopped there, it be said that it was only a repeal pro hac rice. He hał Wok 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 Fisc The Honourable and Learned Gentleman here reads: les the Amendment introduced into the Act of the Creato Parliament by the House of Commons, and maintained if the question turned on the statute alone, and without inter ence to the usage of Parliament, there could be no d...: the oaths had been repealed. There could be no rethe Convention Parliament, who had repealed the lov were applicable to themselves, should not repeal the items The 8th chapter, section 5, of the same Session, ks Ho. 2 Learned Friend said, alluded to Members of Parket
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 fized 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 Scot. land, 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
lics from Parliament for ever; or as long, at least, as the spir: in which that Act was framed should continue to exist. By this proceeding the Penal Statutes in question were rendered apps cable to a Parliament not at the time in existence. That was not the case in the Act of Union with Ireland.
The party by which the Union with Ireland was brought about, and di which Mr. Pitt was the principal leader, were evidently anaious to repeal the obnoxious oaths, and to let the Catholics into Parliament. And it must be admitted as not improbable that in framing the Act of Union with Ireland, they contemplated the repeal, at no distant period, of the penal clauses. Under such circumstances, it was not their policy to re-enact those clauses. They thought it sufficient to provide for only a general discretionary power on the part of Parliament to administer to all members the oaths as by law established. He could not agree with his Hon. and Learned Friend that what was applicable to each Parliament separately, was applicable to them both when united. The fact certainly Fas, that the penal clauses had not been re-enacted. Still, however, it appeared to him that the House was obliged to impose the oaths The Act of Parliament directed it, and it must be obeyed. Having a great admiration for the talents of the Hon. and Learned Member for Clare, and a great wish to see him in that House, he regretted being obliged to come to this conclusion. He now came to the last part of the argument. If he understood the Hon. Member for Clare rightly, he maintained that the Relief Bill, by the tenth section, provided for all cases whatever of civil right, and that the right of sitting and voting in Parliament was a civil right. There could be no question that it was so. His Hon. and Learned Friend had, however, contended that the tenth section was not to be looked upon in an isolated point of view, but must be considered with reference to what preceded it. He (Sir James Scarlett) confessed that he could not put the construction upon the tenth section which the Honourable Member for Clare had put upon it. [The Hon. and Learned Member argued this point at some length, but we were unable to follow him