« PreviousContinue »
with accuracy.] If it could be made out that the general words of the Act admitted the claims of tne Hon. Member, it was the duty of the House to say so. He must declare that the House was the only body to which an appeal could be made on the subject. If the question were for a new writ, he should certainly say that he was not prepared to give his v te for such a motion, but he should require postponement; but he could now vote for the proposition of his Hon. Fri nd. The Member for Clare had not satisfied him that he was en titled to his seat.
Mr. C. W. W. Wynne rose, but spoke so low that the Hon. Member was at times totally inaudible in the Galleries, and at no time distinctly heard. He said he had no doubt that that House was the proper and the only tribunal to decide the rights of its Members ; nor could he agree in the opposite doctrine without an absolute and utter abandonment of the privileges of Parliament. After the House had allowed an elected Member to take his seat, it would be such a decided declaration of the opinion of the House, that no Court of Law would venture afterwards to come to a contrary conclusion. The declaration of the House of Commons would always be obligatory in a Court of Law. The first point to consider was the taking of the oaths before the Lord Steward. Upon this he did not feel himself under the necessity of saying very much. If this were a question upon a Statute, he should say that the fifth of Elizabeth had been decidedly repealed, and that there was no necessity whatever to take the oaths prescribed to be taken by that Statute before the Lord Steward. It was evident that none of the Members of the Convention Parliament could have taken the oaths before the Lord Steward, for there existed at that time no such Officer before whom they could have taken them. Afterwards several Members of the House of Commons were made Peers or Judges, and new Members were elected to supply their vacant seats ; but yet it did not appear by the Journals of the House that the Lord Steward had administered the oaths to such newly-elected Members. On the first day of the succeeding Parliament there was evidence that he had administered the oath. The first of William did repeal the Act of Elizabeth; for it directed that the oaths should be taken at the Table of the House, and not elsewhere. Such were the conclusions de which he should be obliged to come upon considering that Statute; but, in opposition to this, he had the whole current of Parliamentary experience. Nothing was more familiar than to hear it said in Courts of Justice, that if this were an Act upon
which we were now called, for the first time, to decide, we should entertain no shadow of a doubt; but we are bound by a long course of practice in the Court, in which a different view of the Act has uniformly prevailed. The practice of this House had put a different construction upon the Act of William; and it had been deemed necessary that the oaths of Elizabeth should be exacted of Members taking their seats in that House. He could refer to a number of cases upon this point. There were four cases of Members of the House of Commons, and three of Members, of the House of Lords, since the Union with Ireland. There were distinct cases of Acts passed to relieve Members from the penalties of having taken their seats anå voted, without having previously taken the oaths. In all such cases the House had declared the seats of such Members to have been vacated. They had passed Acts to relieve Members of the penalties, after those penalties had been recovered in Courts of Law; but they had always given effect to that part of the Act by which the seats of the Members who did not take the Oaths were ipso facto vacant. In 1812, the House passed an Act to legalise the oaths taken irregularly before the Lord Steward. The present Act was prospective; there were no negative words; and the question, as the Solicitor-General had declared, was to be decided as it it arose out of an Act 100 years old. He had argued that the House ought to leave out of the question all the House had heard as to the particular reasons which might have induced particular Members to give their assent to the Bill, and to look at the Act itself. If he (Mr. Wynne) took the Act itself, it appeared to him that he could not find out that it was not
retrospective. He found contrary declarations. He found that no other civil right or practice whatever was controlled by its having been acquired before the passing of the Act. All persons appointed to offices—the Mayors and officers of Corporations, elected or appointed prior to the Act, were at full "iberty to take the oaths under the Act, instead of the old oath. No doubt existed of this, whether they acquired the place before or after A seat in that House was a civil right. Was it then consistent with the spirit - was it consistent with the meaning of the Act, that it should in one instance be construed to have a retrospective effect, and not in others. The Act declared that Roman Catholics should give assurance of their loyalty and fidelity, by taking the oaths therein prescribed, and that all persons taking such oaths should be able to exercise all civil franchises : why, then, should not a Member of that House, elected before the passing of the Act, and willing to take the oaths, be considered entitled to his seat? If this Act had been passed many years ago, he could not help construing it to extend to all classes of civil rights whatsoever. He must, however, say that the preamble of the Bill made a distinction between civil rights and the right of sitting and voting in Parliament. Notwithstanding, he could not conceive that the fanctions of Parliament did not constitute a civil right. He felt great difficulty in the case, and he was disposed to concur with those who would set the question at rest by another Act, including the case of the Member for Clare
If there were any doubt, he should feel it his duty to give the most full and ample scope to the remedial part of the Act. It was a measure intended to remove all the disabilities existing under all former statutes whatever, and in any doubtful circumstances it ought to be construed largely.
Mr. Doherty said that any person aware of the relationship existing between him and Mr. O'Connell, might conceive that it would be painful for him to give a vote which should exclude him from the House. This, however, was a question on which a man could not vote according to his wishes he felt it
necessary to vote strictly according to his judgment. The Ba was clear, and he felt coerced to give his vote in support of the motion of his Right Hon. Friend the Solicitor-GeneralThe time was past for considering the expediency of the Act; and when it was in its passage through the House, it was then that Members ought to have proposed their views re specting admitting the Honourable Member for Clare, though even then he should have felt it his duty to negative such a proposition. In considering the case of Mr. O'Connell, the House ought not to lose sight of general principles. Suppose at the election for Clare Mr. O'Connell had not stood forward as a candidate, relying upon his own knowledge of his incapa. city to be elected; let the House imagine that the present Bill had enabled whoever had stood the election to take his seat, would not Mr. O'Connell in that case have been the first to complain with his powerful talerts of the injury done him? [The Honourable Member then went into some arguments upon the constructions of the Act.] In construing an Act of Parliament, it was necessary to ask what had been the intention of the law-giver in enacting it. If any Member argued that its meaning was doubtful, the question would naturally he put to him, “ Why did you allow it to pass in this doubtful state?” Let not the House violate a law which they had just passed. This would throw an air of ridicule upon the Legislature. It would be expedient to admit the Member for Clare ; but when the House was called upon to interpret the law, it ought not to be influenced by motives of expediency. It would be a burlesque to adopt a construction of the law, merely because it agreed with the feelings of any Members. Let the House adopt some other mode of accomplishing its desires, than that of giving a forced construction to an Act of Parliament. He would refer to an observation made one hundred and fifty years ago, by an eminent legal authority. He said, " A new law might sit heavy upon some particular person, in some extraordinary case, let whatever care be taken in the passing of it. It is enough to commend a law, if it be beneficial to great numbers and for the public good. A mis
chief was when a few men suffered by a law useful to the public; and an inconvenience was to have a public law mis. obeyed. No man exercising a sound judgment could vote against a law so clear, to suit his inclination. He should be sorry if anything he said could tend to disturb the feelings of harmony now existing in Ireland. He certainly had heard some little doubts thrown out by the opponents of his Hon. Friend's Motion, and those, too, by some very able men on the other side of this House; but he felt satisfied that the positive argument was decidedly the other way, and he should therefore vote in favour of the Motion of his Hon. and Learned Friend, the Solicitor-General.
Mr. Brougham was ready to admit that his Hon. and Learned Friend, who had just sat down, had discussed the question in a calm, temperate, and dispassionate manner, but he could not agree with bim in thinking that there had been urged only some little doubts on the part of those who opposed the Motion, while all the positive arguments and facts were on the other side. He called upon the House to consider the doubts--the grave and serious doubts which did exist upon the question-doubts which were not lightly raised for the purpose of catching votes, but doubts of a full, fair, and candid description as to the proper construction of a statute which, it was contended, excluded the Honourable Member for Clare from taking his seat in that House. Now, he (Mr. Brougham) was of opinion, that if there did exist a doubt (and it was admitted on all hands that there did), the Hon. Member for Clare was entitled to the benefit of it; and this at once settled the question. He would humbly take upon himself to presume to say that there was not a Member in that House—no matter how long his standing-no matter how intimate with its forms and regulations—no matter how great his knowledge, learning, and sagacity-who need be ashamed to acknowledge that he entertained doubt and difficulty upon this question after the arguments which had been heard in the course of that evening's discussion. He bad indeed heard it indirectly