The Sun. — London, England, 1829-05-19 00:00:00

not have uttered it, because be 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 l a'tbl . B , Particula r i nstance against the whole tenour of,his conduct through life.—(Hear.) 4 1 % . M. F ITZGERALD—He could assure the -",°a''Gentletnan that he was not one o f t h ose w h o glad laughed at any op i n i on expressed by him; on the la med he was well persuaded that the opi nilm ho' had given had proceeded from the best con sideration that he had been able to give to the sub ject. Joining, as he most cordially did, in the °Pinions Which had been expressed by the Hon. u ma r Learned G entleman (the Solicitor-General) pon the-talent, the temper, and the eloquence with awhich `the Han. Memb er for Clare had conducted ege"—titnente he tru s t e d th at t h e H ouse wou ld a d opt a "mu equally creditable to it, and that its Mem bers would dismiss from their consideration every !vent connected with the election of the Hon. Mem- j ber e e e d. apply their attention merely to the techni• cal objections which had been urged against his t aking his seat. He confessed that he (Mr. Fitz gerald) approached a question of that kind with con siderable diffidence, and with no little apprehensi o n of being entangled amongst the mass of legal de tinetions Which lawyers drew to their aid on such "easi cms• He was emboldened, however, by the conviction that this was not one of the cases to be govern e d by such principles, and that there really would be found as little difficulty in coming to a satisfact ory conclusion in favour of the right of the Member for Clare to take his seat in that House. 1 4 PP I Ying himself, however, for an instant to the 5.al Arguments through which the right of the membeief or Clare was attempted to be resisted, he confessed it was not without very considerable sur- Prise that he listened to the observations of the H°l4 and Lea rne d G ent l eman oppos i te. That Hon. and Learned Gentleman (the Solicitor-Gene !al), in referring to the argument of the Member f or Clare, upon the 10th section of the Act, ad. !flitted at once, that if the case turned on that alone, h e was willing to concede the point that Mr. O'Connell was eligible to take his seat in that llous e . B ut the Hon. and L earne d G e ntleman tontended t h at the tenth section was to be taken lamely with reference to the second section, and that it was to be construed in connection with it, While the Hon. Member for Clare, or. the contrary, kaintained that the second section was to be taken with reference to the tenth section. Now, he really thought, th at if a Clause of an Act was to be judged of by any test, it was by the plain and obvi t'as meaning of the w or d s conta i ne d i n i t ; an d if i t w as Plainly and decidedly declared in the tenth se a c tion of an A ct that a Catholic may exercise anyt r , nenis e or ci v il r i g h t, upon taking and subscr i b i ng ihe oaths h ere i n b e f ore appointed, it could scarcely sand with fairness that there was not in these Ivords a fair ground for contending that the Hon/ Member f or Clare might claim the benefit of the exception contained in them. What, indeed, would be the effect o f the Hon. and Learned Gen tlenman, 8 argume n t s , if carried to their full extent ? tae first section of the Act, all declarations are repealed with reference to all descriptions of per sons, both C at h olic and Protestant. Now, as the "an. and Learned Gentleman contends that no Persons can take these oaths, and, therefore, claim seat in the House, except the persons distinctly "d 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 Hoe. and Learned Gent. and the Hon. I Vember for Kircudbright (Mr. Fergusson) came, 110wever, was that Mr. O'Connell could riot take ad ''sntagiof his situation, because he was described in Ihe Act, b ut b ecause h e was not descr ib e d i n t h e A ct, "scause there was no express clause applying to his heuliar case. It was his (Mr. Fitzgerald's) desire, I ts he was sure it was the desire of every liberal in the country, that if from any looseness in the w ording of this st a t u t e , or f rom any ot h er cause, there remained a doubt upon the construction of the ' l4 nses that the doubt should b e construe d i n f avour of the Member for Clare.—(Hear, hear.)—He and ar cher H on . M em b ers stood with the Hon. Member r Clare on the rights of the people who sent him '4 their representative to that House; and, in their . nat n e, he req u i re d t h at t h e A ct s h ou ld b e construed ture ac me ' to t h e sp i r i t an d i ntent i ons o f t h e Leg i sla- MM, with reference to that sect of which the Hon ember for Cl are pro f esse d hi msel f to b e. He ed, Wh ere d ou b t ex i ste d, t h at every f a i r an d liberel constructi on should be put on the terms of th at Act; for if ever there was a time when there should he a liberal construction in favour of the t ights of the peo . ple it is that ti me , w h en t h e i r re • h! e nt Act o f Legislation and their still more recent e ar ations have proved them indisp ose d to e xtend right of representatime•--(Hear, hear.)—lt was tor t his reason • he thought they should be cautious how they Wantonly limited those rights which al tefuly existed. He did not wi s h to d e tain the House Il tn i lt e h e many observations upon a question which Out, perh a p s , f rom its nature, be thought more e t'Y Placed in the hands of other, and he should, i.li)erefore, conclud e by d ec l ar i ng that, in his opinion, the y ought not to resort so much to the construe ti.ons ene of lawye rs as to the feelings of public conve• could; and that, a b ove all, they ought, if they t , to rescue P ar li ament from the odious impu seli" a having framed t h e i r Act i n terms ex p ress ly t -, mculated to ruin one individual of that class whose enalties and di sa bili t i es they were preten di ng 4 olly to remove.---( Hear.) fter a few wor d s h i explanation from M r. F ER - Otys soisT, fra b i rn r• ttA.TLEY said the Bill, i n hi s o pi n ion, was ed 13 the in such a manner as to leave no doubt respect exclusion of the Member for Clare. The e rls of the second section were indeed too ex 'eit to leave the slightest question on the subject. MreS U GDEN then addressed the House, but e° low a tone that many of his observations were tilaudible in the gallery. We understood him to eithat although the Hon. Member might, as he vlared, consider the Act to which he referred as an t l l : t t nr Outl awry against him as an individual, still tent d -w as not a question which the House could en- We e ' e jlow• If th a t H on . P erson t h oug h t t h e A ct hite e 'elY to operat e i n t h a t manner , h e s h ou ld th e made his o bj ect i ons w h en i t was un d er I t L e°n sideration of Parliament.—(Hear, hear.)— i t °ad b een sa i d by several Hon. Members that k it doubt was entertained on the construction of the t h:tute,.Mr. O'C onne ll s h ou ld h ave t h e b ene fi t o f tift.dubt, H e , f or one , cou ld not concur i n t h e e t l e 'n that A c t s o f P ar li ament were to b e con t h. 7' d according to such principles. He considered e luty he was performing as merely judicial. He slop e of whether the decision did or did not ex tele: Ai r. O'Connell. He looked at the case with tt ed ree to the words of the Act of Parliament, tl te l ib ee ling satisfied there was no doubt of their ex hie that gentleman, he was determined to give tio_vote accordingly. It had been said that the to T o Menther for Clare had taken the oaths directed vas - t aken before the Lord Steward. There lc n othing, h owever, in the Act of Parliament tih so, t eNered it imperative that he should do w e , a nd even when he had taken it there Theril° inform at i on conveye d b y i t to t h e House. Re ne e w as merely a cert ifi ca t e d e claring that the Th e I.l!,able Member had taken a certain oath. Osee„.7°n• Memb er f or M ontrose sa id that Mr. de "pelf had t a k en two oat h s , b u t h e (Mr. Sug thatJ rust really he permitted to say he doubted be at •" — [Mr. Hume repeated his aesertion.]— th -gged the Hon. Member's pardon, but he really tl e u t it t it would be found the Member for Clare -I‘u - t he same oath twice. He alluded to the oath it : ese • otids section, and which ribed by tne ti th h i g o h i t ts be , • e tne taken in the Lord Steward's Office, and to enter • nit° Kin g's Bench. That was not the tendaut discussion the of the consequences at vitti u P" the course which the Member for h e h. , - h ad adopted, but be apprehended that 0 0 0 70 brought. himself within the operation tOci e l i.! 1 • 11 . :ofeElieeb e th, and that ,presumipg him . testi, eaPelled, the Hon. Member. woutd, on his -e " ° °,lnd himself not eligible to take his seat in the present Parliament. That, however, was, he repeated, a /ratter for future consideration. It had been made a 41,,,•.,;x, 1 ‘vl.,-titer the Ist chapter of the Ist of Sib clianzer of the same year, referred to Mernher,, of Parhicoetu ? The feet was however, that tfu , v both related to Members of Parliament, and the fourth and fifth of Anne did not adopt them, but in, rely reri4 f nized the necessity of their being taken. At the present, moment, how ever, the House had the power to dismiss the case, and so get rid of the necessity of considering the que.,tion of penalty, or of allowing any unhandsome advantage to be taken of their proceedings by per sons out of doors. It was impossible, however, for any men, as lawyers, to differ upon the question of the Hon. 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 bu&ness-like a manner to the work it had to perform,as any Act whicii had ever received the sanction of that House, and throughout the preamble and in.every clause was framed to ap ply 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 over-rule the distinct and settled meaning of a clause. What then was the expression of the second clause ? " That from and after the commencement of this Act, it shah be lawful for any person profess ing 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 respec tively." .Now it was impossible to contend that these words were not introduced for a specific pur pose, and that the right there mentioned was in tended to be made general as to the Peers, but limited as to the Commons. For one, he should be very happy to see the Hon. and Learned Gentleman in the House; convinced as he was, from the tem per and ability which he had that evening mani fested, that he would be a very valuable acquisition. Sir JAMES SCARLETT followed ; but the legal character of his speech, and the rapidity of his ! utterance, render it impossible for us to give morel than a very brief, and, we are sensible, imperfect sketch of the Hon. and Learned Gentleman's ob servations. He began by declaring his entire con currence in the eulogy pronounced by his Hon. and Learned Friend who had immediately preceded him on the good temper and ingenuity which had marked the address to the House of the Hon. 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 sub ject divested of all personal feeling. It would, in deed, be most unbecoming to make it a party ques t:ion, and he was sure that no one would think of so making it.—(Hear, hear.)—He owned that he should be better pleased it he could be more com pletely 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 Hon. and Learned Member for Clare had been met by his Hon. and Learned Friend. At the same time, looking et the whole case, he found it im possible to come to any other conclusion than to agree to his Hoe. and Learned Friend's proposi tion; 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 practices 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 jn dicialiy on the question, he must say, that in his opinion they were repealed. He would shortly state why. As his Hon. and Learned Friend had observed, the Ist 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, becau-e he had abdi cated ; 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 averse to the new order of things, and inch eed to throw doubts on the legality of that Parliament. That party had just before addressed the King and Queen to dis solve 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 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 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 11., 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 else. 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 Mem bers 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 oaths, to be taken in the same mariner as the former. That Act, however, related only to the Convention Parliament; and if the mattcr stop ped there, it might be said that it was only a repeal pro hac vice. He hal looked carefully into the sub ject, and he had been unable to discover any other Acts relating to oaths but the 30th of Charles the Second, the .51h of Elizabeth, and the 7th of James the First. The Hon. 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 re ference to the usage of Parliament, there could be no doubt that the oaths had been repealed.— There could be no reason why the Conven, tion Parliament, who had repealed'the Acts which were applicable to themselves, should not repeal the others. The Bth chapter, section .5, of the same Session, his Hon. and Learned Friend raid, 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 were some of the circumstances which excited doubts in his mind. Had it not been for the usage of Parliament, all pro fessional 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 iiirenvenienee from the absence of the Lord High Steward from London ; and had on several ()evasions been obliged to adjourn because they had no 111P:111S of adding to their num ber. This, he was obliged to admit, showed what the practice of the Fkuse had been. Bills of indem-. nity had been passed in favour of certain indivi duals, who had viela'ed that practice. That, how ever, only piovei tat there \vas dooht. Tr did not absolutely decide the subject. A Right Hon. Friend of his and a Noble Lord had been the subjects of Bills of indemnity on this ground; but that did not im ply that there was any fixed opinion on the subject, only that great doubts existed respecting it. lie now came to the Act of Union with Ireland. He owned he was struck with the argument ttrl.v.,ed 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 H. and the other Acts containing penal clauses, were by n tine expressly re-enacted. There could be no doubt, therefore, that it was the intention in the Act of Union with Scotland to exclude Roman Catholics from Parliament for ever; or as long, at least, as the spirit in which that Act was framed should continue to exist. By this proceeding the pe nal Statutes in question were rendered applicable 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 of which Mr. Pitt was the principal leader, were evidently anxious to repeal the obnox ious 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 contem plated 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 discretion ary 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 sepa rately, was applicable to them both when united.— The fact certainly was, 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 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. lie now came to the last part of the argument. If he understood the Hon. Member for Clare ►iOatly, he maintained that the Relief Bill, by the 10th 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 hail however contended that the 10th section was not to be looked upon in an isolated point of view, but must be considered with refer ence to what preceded it. Her Sir James Scarlett) confessed that he could not put the construction upon the 10th section which the Hon. 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 with accuracv.)—lf it could be made out that the general words of the Act admitted the claims of the Hon. Member, it was the duty of the House to say so. He must de clare 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 vote for such a motion, but he should require postponement; but he could now vote for the proposition of his lion. Friend. The Member for Clare had not satis fied him that he was entitled to his seat. Mr. C. W. W. WYNNE rose, but spoke so low that the Hon. Member was at times totally inaudi ble in the Galleries, and at no time distinctly heard. After the House had allowed an elected Member to take his seat, it would be such a decided declaration l i of the opinion of the House, that no Court of Law would venture afterwards to come to a contrary con clusion. The declaration of the House of Com mons 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 Conven tion 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 be had ad ministered 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 to 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 enter tain 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 ccnstruction 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, arid 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 and voted, without , having previously taken the oaths. In all such cases the House had declared the seats of such Mem bers vacated. They had passed Acts to relieve Members of the penalties, after those penalties bad been reco vered 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 de clared, was to be decided as if 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 par ticular reasons which might. have induced particular Mem bers 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 riatht or practice whatever was controlled by its having been acquired before the passin of the Act. (Hear, hear, hear.) 411 persons appoint b to offices—the Mayers and officers of Corporations, elected or appointed prior to the Act, were at full liberty 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. (Hear, hear.) 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 is one instance be construed to have a retrospective effect, and not in others?- . --(Cheers.)—Th' , Act declared that Roman Cat. mlics 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 en titled to his seat ?—(Cheers.)---If this Act had been passed many years ago, he could not help const uing it to extend to all classes of civil rights whatsoever. He must, how ever, say that the preamble of the Bill made a distinction h tween civil right* and the right of'Sittiiag and voting in Parliament. Notwithstanding, he could not conceive that the functions of Parliament did not constitute a civil right. kle felt great difficulty in the ease, and he was disposed to ' concur wit% thoie %vim 'mania set the question at red by another Act, ineludine 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.—(Cheers.) Mr. DOHERTY said that any person aware of the re lationship existing between him and Mr. O'Connell mie! , t. Iconceive that it would be painful for him to give a vet e which should exclude him from the House. This, how ever, was a question on which a man could not vote accord ing to his wishes—lie felt it necessary to vote strictly ac cording to his judgment. The Bill was clear, and he felt coerced to give his vote in support of the motion of his Right Hon. Friend the Solicitor-General. 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 bad not stool forward as a candidate, relying upon his own knowledge of his incapacity 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 com plain with his powerful talents of the injury done him? (The Hon. Member then went into some arguments upon the construction of the Act.] In construing an Act of Par liament, 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 doubtfu , the question would natu rally be put to him. " Why did you allow it to pass in this doubtful state?" Let not the House violate a law 1 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 in- ; fluenced by motives of expediency. He should be sorry if j anything he said could tend to disturb the feelings of har mony now existing in Ireland. He certainly had heard I 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 the 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.—(Cries of " Question, question.") Mr. BROUGHAM was ready to admit that his Hon. and Learned Friend, who had just sat down, had dis cussed-the question in a calm, temperate, and dispassionate manner ; but he could not agree with him in thinking that there had been urged only souse 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 fur 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 con tended, excluded the Hon. 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 ad !flitted 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 had indeed heard it indirectly stated that there were in the House some Hon. Members who were above entertaining a doubt upon the question, and who were ready to vote upon it ; and God know• who were the men by whom the strongest doubts were ex pressed upon it. His Hon. and Learned Friend, the Mem ber for Peterborough, who had spent years, he might say a whole life, in dealing with questions of doubt and diffi culty—a man who was confessedly, and by general con sent, at the very head of a profession, the business of which was to solve doubt, and reconcile and explain difficulties— that Hon. and Learned Gentlemen had told them (and it was not assertion merely, for he hall stated how and why) that his mind laboured under such a difficulty upon the question, that he feared coining to such a discussion at all. His Right Hon. Friend introduced argument after argu ment in order to show the difficulty of the question ; lie quoted points, which though contradictory in themselves, still, when brought together, and weighed as a whole, would, he feared, lead him to a decision which he should much regret. An Hon. Member who has been in the habit of weighing and nicely discriminating all Parliamen tary questions, told them that he entertained doubts upon it; as he feared the difficulty on the one hand, would lead to greater difficulty on the other, he was prepared to vote in favour of the admission of Mr. O'Connell. lie, doubl ing as he did, felt those facts and arguments which ought to induce them to pause, and not ceine to a hasty decision against that Gentleman. He admitted the weight of the arguments used by Hon. and Learned Gentle men on the other side, hut he confessed that the two Solicitors-General opposite did not, in his view of the case, succeed iu removing the difficulties raised by his Hon. Friend behind him. Let them inquire how the ctse rood. And first, he would observe, that the main argument upon which Mr. O'Connell mainly relied was left wholly untouched ; it was passed over with a single word, as if it was a quibble—as if it was unworthy of an answer—and yet he was declared incapable of taking his seat. The argument was this : that by the Act of Union it was provided that no persons should sit in Parliament without taking the usual oaths, until Parliament provided other regulations on the subject. There was no question of pains and penalties. This part of the question had beet' so triumphantly settled by his Hon. and Learned Friend, the Member for Peterborough, that he should feel ashamed to trouble the House with a single observation upon it But the question for their consideration was, had Parlia ment come to any other regulation by which persons sit in Parliament without taking the oaths contained in the Act of Union ? He contended that it had. The late Act provided other oaths and forms, particularly as to declara tions, which enabled persons before excluded to sit under the new law. From the passing of that Act all was changed—all was new; and those who could not take their Feats before might take them now. The contrary, however, was contended; and the objection was confined to one individual, although he was entitled to his seat under the Act of Union coupled with the late Act. If this were nut so, what was the meaning of the oaths prescribed by the Act of Union, " until Parliament provided some other regulations?" They had all heard the able and manly, though modest and unobtrusive manner in which Mr. O'Connell hail urged his claims at the bar. That argu ment, he (AB. Brougham) contended, had not been touched. His Hon. and Learned Friend over the way ap peared to have mistaken the argument. He contended that the Act was altagether prospective ; if this were so, many of his (Mr. Brougham's) doubts and difficulties would he removed ; but such, he contended, was not the fact. The Hon. Member for Weymouth, who had argued this question with such ingenuity, world find considerable difficulty in reconciling the differences in certain Acts to which he alluded. It was quite natural that the Hon. and Learned Gent. should wish to do so—if he could—if he could— (Hear) ---he might try to do it, and he might think he had done so ; but he should remember he had another party to satisfy, namely, the Legislature by whom these Acts were framed. They all knew—and he was sorry to make the admission, but such was the fact—that there were clauses in certain Acts of Parliament which the greatest acuteness, the greatest ability, could not reconcile; and why? Because it was impos sible to reconcile a contradiction. He did not think such was the case in the present Acts; it was, perhaps, possible to reconcile their contradictions. All he pre tended to assert was, that the mode of reconciling them had not yet been pointed out by the Hon. and Learned Gentleman opposite. He was aware that the inquiry pro- I duced by the Law Officers of the Crown had been con ducted by the Hon. arid Learned Gentleman with as much calmness and temper as persons placed in their situation I were able to bring to it. If the House had to deal with an Act of Parliament which had been framed 150 years I ago, little difficulty would be found in dealing with it. 1 list when the men were living by whom an Act was framed, it must be expected that they entertained an al lowable feeling in its favour; for no man liked to strangle his own bantling. Persons so placed might, therefore, in the language 01 the Hon. and Learned Gentlemen opposite, support a Bill, although he admitted the existence of some little doubts against it. He did not consider the late Act as a prospective measure; neither did he consider it to be; i p l a r r e t tr ‘ o v s a p ,, e i c )r t o is set retrospective measure su . re ; he looked upon it as partly the one, and partly th e ot h er. I3 ut t h e Bill did no t sa y w hi c h and what part was retrospective ; so that they were left to find their way in the dark as to the application of the different parts of the B 11. That Mr. O'Connell's case was not provided for, was the argument of all. Well, if that case be provided for by one part of the Bill, it was their duty to inquire whether it was not provided for by another part of it. And he would ask whether his right u! admission was not provided for by the prea - Uilde end - the title of the Bill, (Beer, 116.r.)—The Soliciton-General hid, in the course of his speech, shewn enough to shew that Mr. O'Connell's case was at least within the spirit of the late Art. Mr. Sugden did not go so far, and here the difficulty of the question becomes increased—for if two men, tending to the seine point, and having the sime object, differ as to the course, surely the doubts of third parties must be in creased on the subject. His Hon. and Learned Friend, the Member for Peterborough, doe'oted on the subject, but agiced with the `aloe Member for Weymouth. According to the adiniseion-Of the Solicitor-General, the tenth sec tion of the Act would admit Mr. O'Connell, if it were not for the provisions of the sections which preceded it; but in the nine preceeing sections, there was no proyieion re slin. andpoectin LearnedgthatGentleman, and therefore, according to the crentleman, Mr. O'Connell had a right to his seat' under the tenth section,—(Bear, hear.)—Tre Put it the Relief Bill excluded Mr. O'Connell, why was would be as sorry as any man to introduce into thin I not that objection urged to it during its progress through gm scion any matter which did not lead to the spirit , that House by those who now advocated Mr. O'Connell's of the. inquiry--he felt th it it was a legal question, and admission ?—(Hear.)--Why was not ail alteration in the tent they ,verse hound to act judicially u po n it. But he Relief Bill then proposed, in order that Mr. O'Connell e nnel up m th em intim their serious consideration I might not be ex c l u d e d ? A n d w h y was it not proposed th e si'ssimi e f that wo accrta: to the individual if not ! that he, too, should be admitted under that Bill? But Z11:1 , ro Aid again, IrlP• mischief could now they had to decide the claim preferred strictly in Ses iram exten.ling to Finn the b,nelit it h t doubt? It reference to the privileges in Parliament, and the obvious w.a a single case, and one which by possib lay never could intent and meaning of the Acts of Parliament under come again.—( Hear, hear.) This would be taken into which that claim was advanced, and there was no neces. consideration in a Court of Law; there was not a Court i sity for infusing into such a case' the painful discussion of into which a penal statute was introduced Lut would weigh personal feelings and considerations. Good God ! that the arguments he had just urged. It was not his inten- I personal feelings could have any operation in this case ! tion to foLow the Hon. and Learned Gentleman through The claim was undoubtedly an individual, hut, if he might the paths in which he had trodden in his ,:o i mient address; , be allowed to make the distinction, not a personal one, he wished to deal shortly and fairly with the question ; which wis advanced in this instance by Mr. O'Connell. he wished to treat it as the Hon. and Learne l Member for j i He happened to be the only Roman Catholic th a t was re- Clare had treated it—that was, with o ut d ec l a mation, l turned to Parliament previous :to the passing of the late without passion.—(Applause.) He would put it to th e I A c t f or t h e Relief of his Majesty's Roman Catholic sul?- ' House whether, even if they knew it to he the secret in- jects, and if the case had been that of Lord Surrey, tention of the Legislature, though not openly avowed, to the Hon. Member for Horsham, instead of the Member exclude Mr. O'Connell from the provisions of this Bill, they fur Clare, it was his (Mr. Peel's) firm conviction that the could act upon that knowledge on the present occasion House of Commons would deal with it precisely in a This they could not know, - for it was not the fact; but similar manner, upon similar grounds, and in reference to supposing it so, still he maintained that they were bound the operation of the law under which he was elected. to construe it according to the expression; it contained. Mr. O'Connell being a Roman Catholic when elected, But he would go a little further. If the Bill contained was disqualified by the operation of the then existing law, three or four additional words which provided that the as generally understood, from taking his seat. He knew Bill should not extend to those who were elected before it hniiself at the time when he was returned that such was was passed, :e that case there could be no doubt—no dif- the meaning given to the law then in operation, and there ficulty, and Mr. O'Connell could never have dreamt of was therefore nothing unjust in telling him that as he taking his seat. In the construction of records in courts was elected under the former law, by that law he must of law if it was found that two or three words, which, if abide, and that •he was by it excluded from sittin g i n inserted, would fully explain the document, were found this Ilouse. They would justly say to him, "We de wanting—the Court, instead of supplying th e meaning, Five you of nothing, we leave you in the state you held it as an additional objection, and thus the difficulty were in before the passing of the late Relief Bill. We was increased. The omission in question ha 1, he believed, have certainly for the future relieved you, in cora been felt in the other House : and it was proposed—he mon with all Roman Catholics, from the necessity knev: not whether by a Lord or a Layman- —to remedy it; of making the declaration against transubstantiou. That but the remedy was rejected. The Hon. and Learned Bill was undoubtedly intended to place all Roman Catho- Gent. said, in conclusion, that as this omission increased lice in that respect upon an equal footing; but it was not the difficulty and doubt, he was prepared to give Mr. a Bill intended to apply to your personal case; it was not O'Coura-11 tilt benefit of that doubt. intended to relieve you from the necessity of taking the Mr. PEET. f t lt great diffidence in venturing to offer an oaths of a bjuration an d su p remacy , prescr ib e d b y those opinion on a qu e ati on w hi c h requ i re d f or i ts due discus- former Acts of Parliament which were the law of the sion advantages of professional education and professional land at time time that you were elected. It is by the op._ experience, which he bad not the good fortune to possess. ration of the former low that you are now excluded, and But he still felt that this doubt of his comp-tency did not as you were elected previous to the passing of the Relief relieve hint from the obligation and responsibility of form- Bill, it is abundantly plain that thereis no injustice whatever ing an opinion of its merits, nor prevent him from express- in now excluding you, and no necessity has been shown ing that opinion in his judicial capacity. As he, like the to induce us to go out of otir way to perform in your re other laymen in that House, whose want of professional gard an uncalled. for act of grace and favour." The fact experience did not exonerate them from the responsibility was, that Mr. O'Connell was elected at a time when the of forming a judgment, must come to some conclusion on passing of that Act was neither contemplated by him nor the merits of the question before the House, he trusted it by his constituents ; and he had no right to have it ap would not he deemed presumptuous if he stated the grounds plied retrospectively to his case, and for his peculiar Irene on which he meant to rest his vote that evening. The tit. He had not heard the Hon. and Learned Gentleman conclusion at which he had arrived was so fir satisfactory opposite say any thing of the main argument which hart as to have the support and sanction of—without under- been put forward by Mr. O'Connell. The Honourable rating the merits of those who took a different view of the and Learned Gentleman had attributed much force to the subject—the three most eminent legal authorities which position which Mr. O'Connell had taken up in reference the bar of this country could produce. It was his good to the Act of Union between Great Britain and Ireland. fortune, in the judgment which he had formed on the pre- That Act provi fed that the oaths prescribed by the for sent question, to concur with his Hon. and Learned Friend n o w Acts to be taken by Members of Parliament, should the Solicitor-General—to concur with the Hon. and continue to he taken " until Parliament should other- Learned Member for Peterborough, and with his Hon. and wise provide." Now, said Mr. O'Connell, Pariia- Learned Friend (Mr. Sugden), whose acuteness and ability ment has " otherwise provided :" the time has expired, were so justly appreciated in that House and by the pub- and the House of Commons is no longer competent lie. He was not prepared to concede the point at issue on to administer these oaths. The Hon. and Learned Geo the ground that by the Act of William and Mary the tleinan (Mr. Brougham) characterised that as a sr: cog oaths of abjuration and supremacy had been repealed; point, but to him (Mr. Peel)—and be said it with ell re tor on reference to that Act he did not see the repeal, nor spect for the Learned Gentleman by whom it Inv/ been any thing to warrant his saying that such was the design urged—it appeared to be a inost futile argument indeed. of the eminent men who framed that measure.— It Ives not necessary to take up the time of the House in But by referring to an Act which was passed subsequently, showing that the late Act was limited to a particular pro in the same Session, the Bth chapter of the Ist of William vision of relief for the Roman Catholics, and that a parti, and Mary, and which was passed therefore by the same cular provision of that nature could not be urged as an al perssns who hail passed the Ist of William and Mary, it teration in the law which took away the force of ell the would at once appear quite obvious that it never was the , previous enactments in every instance. If the argument intent or meaning of the Parliament of that day, in pass- were well founded, and, if it were admitted that the House ing the latter Act, to repeal the oaths of supremacy and 1 was not competent to administer those oaths to Mr. abjuration. The Bth chapter of the Ist of William and O'Connell, neither would it be competent for the House to Mary provided that the oaths shall be administered by the administer those oaths to Protestant Members; and if the Lord Steward, in the Lord Steward's office, viz.—the passing of the Relief Bill took away from this House the cat is of allegiance, supremacy, and abjuration—to all power of requiring Protestant Members to take those Members of Parliament previous to th e ir taking their ; oaths, how had it happened that there was no obj ec ti on seats, and that the said oaths shall be administered at the made to them since? If the argument of Mr. O'Coinell same time, and in the same place, as the former oaths. were well founded, every and vidual, except a Roman Ca- The sth section of the Bth chapter of the let of William tbolic, on being elected, would have a perfect right to sit sued Mary afforded an additional proaf that it never was l in Parliament without taking any oaths. The argument the intent of the Legislature in passing the Ist of William was a most futile one. but he was not a little surprin dto and Mary to repeal these oaths. That section constituted find the Learned Oentleman, after advancing such a posi. u renewal of the enactment which made it obligatory on 1 ti o n as that, endeavouring to support his cl -im under the ail persons coming into other situations, civil or ecclesissa 10th section of time Act for the Relief of the Roman Ca deal, to take these oaths ; and it provided that every per- tholics,—after thus putting forward his right to sit under son who should be advanced to any empl o y men t, c ivil or the old law, making an effort to sustain it under the Act ecclesiastical, or who should come into any capacity in passed subsequently to his election. respect whereof such person was bound to take those oaths, I Mr. BROUGHAM—He only adverted to ti at portion under the former Act, that he should take the oaths afore- I of the Act. said in the manner, at the time, and in such courts and Mr. PEEL—He endeavoured to force a construction places, as he ought to take the former oaths, on enter- upon it favourable to his particular case. ing upon such employment. Here was a strong proof i Mr. BROUGHAM remarked that he had only men of what was the intention of the Legislature in passing ! tioned it incidentally. Mr. PEEL only intended to d o th e same .—(A l aug h . ) these Acts. The Ist of William and Mary provided that these oaths should be administered to all Itlembers of Par- t h at this enactment had not only a prospec liament, and this clause of an Act passed subsequently in It was asserte d the same Session provided that the oaths e stabli s h e d t o be tive but a retrospective ope ra ti on . Wi t h out enter i ng upon taken, by virtue and under the authority o f th a t A c t, ;the question as to what deci s i on a court o f j ust i ce m i g h t should be administered to all persons holding offices of pronounce, in reference to the penalties for not taking the emolument or trust under the Crow n . B u t h e wou ld show I oaths, or whether th e y cou ld b e recovere d i n a court of by a refer ence to the c o ur se p ureu d, and the practice I justice, he wou ld ma i n t a i n t h at t h e R el i ef Act had a s re adopted by Parliament, almost immediately subsequent to ; trospective operation, so as to embrace Mr. O'Connell's and it could in no other way be made applicable to the period at which this Act, the Ist of William and Mary, I cap. 1., was passed, (and that was, all would allow, the ease, fairest way of ascertaining the intentions of the Legislature it, for Mr. O'Connell was elected before the passing of on the subject,) that no doubt whatever could be enter- that Act. It was not the law under which he was elected, tained in respect to this matter. In 1689, a few and months there could be no cavil on th a t po i nt; f or so earls only after the passing of the Act to which he had alluded, , as the reig n of Henry VI., th e cer tifi ca t e o f t h e s h eri ff in the new Parliament which succeeded in th a t ye a r, a f ac t occurred, which in his mind at once set th e qu es ti on a t re st. I that an individual was duly e l ec t e d const i tute d suff i cient He would ask if the Legislature had intended by the Ist of evidence as to the time that member was returned, and William and Mary, c. 1., to repeal the oaths of supreneaCy I such certificate as to the Learned Gentleman's return was arid abjuration, whether if such had been, as was contended, ie possession of the House. The Hon. and Learned rring to proceedings Cat e the real intention of the Legislature in passing that Act, that tleman adroitly endeavoured, by re it would appear that those oaths had been administered by in another place, and by alluding to a clause there pre the Lord Steward as usual in the assembling of the new i posed by a high legal authresity, during the progress of the Parliament. Was it possible, he would ask, if such lied I Relief Bill, for the purpose of excluding him (Mr. O'Cons been the case, that an entry would appear upon the Jour- M nell) by name, to prove that there was a strong presnmp nals of this House, dated the 20th of March, 1689, i tion that the present enactment was insufficient for that and which stated that on that, the first day of the meet- purpose, (He (Mr. Peel) apprehended that thts a rgumen t ing of Parliament, the Eat] of Devonshire came into his of Lord Tentetden on that occasion was, th a t if M r . office, and that in the presence of the Clerk of the Crown, O'Connell would take the oath of sapremacy, there and of others then and there present, he administered to I was nothing to prevent him, from talssrag his seat ; that the certain Members of Parliament, the oaths appoint e d to ± necessity of making the declaration against transubstantia be taken by an Act in the first year of his Maj es ty' s tion WitS removed, and that there only remained the oath reign, entitled, "An Act, ssn," and that having done of supremacy to keep him out. But by referring to the so, he formed a commission, consisting of his Deputy second section of the Act, it would be seen that its opera and such of the Members as had been sworn, to admi- tion was wholly prospective, for it enacted—" That from nister the said oaths to the other Members of the House of and after the commencement of this Act, it shall be law. Commons, and that the said persons so commissioned and ful fpr any person professing the Roman Catholic religion, deputed, and attended by the Clerk of the House of cora- being a Peer, or who shall, after the commencement of m its, did, according to the power given to them, ad in i. I this Act, be returned as a Alembete for the House of Goma nister the said oaths to all the Members of the House of mons, to sit and vote in either House of Parliament re- Commons previous to their taking their seats, and that the spectively, being in all other respects duly nualnied to sit said Members having been thus sworn, proceeded to elect t and vote therein, upon taking and subscrilsing the follow , their Speaker. Would it be contended after that it was ing oath, ienetead of the oaths of allegiance, abjuration, and 1 1 thefair and real intention of the Parliame n t o f 1688 to re- sunremaay. l "fhe Act thus a ppli e d, no t on l y to a Catho peal the oaths of supremacy and abjuration, or to afford to he in the situation of a Peer, but to a Catholic who should any person relief from the obligation of taking such oaths? be returned a Member of the House of Commons; and its ,He had shown that a Commission was appointed by the operation was strictly confined to the future. The Right Lord Steward at the meeting of Wiz now Parliament, on Hon. Gentleman proceeded to state that they were to deal the 20th March, 1689 consisting of the Lord Steward's judicially with, the question, and decide according to the Deputy and ageh Members as had taken the oath before priv4ege of Parliament, without reference to extrinsic 1 the Lord Steward, in his office, to administer to the other f circumstance% Mr. O'Connell, he said, had complained ' Members of Parliament the oaths enacted and provid e d to, that he was excluded from the enjoymeptof a civil privilege. be taken by an Act passed in the Ist year ef the reign of But the Legislature had drawn thodistinction in the Relief his Majesty, entitled, &e. (viz. the Ist William and Mary, I Act between a mere civil privilege and right of sitting c. I,)—that by virtue of that Ace, and; under that Statute, in Parliament ; and the House would see at once the justice these oaths were then adinimistereil by that commission to of the distinction. The Hon. and Learned Gent. was ex all the Members of the blouse of Commons; and when it eluded from no franchise or civil right whatever to which was known that but a f e w months had elapsed since his Catholic-fellow-countrymen had been admitted by the l ah i s a e n ni i to e ) n tt lie wou l d met in Legislature, eagsiks w ; ahtaiucrhe, strongthatin pparsBo A oi g t th stitehetaissi privilegespßiey n e g f A Ns, c i tth. and its 11 r e parn e o v cvh a i s issi e eo n sn t sc i o t i d tiitt to the enjoyment of all the conferred by this s y that instanceA Tie iP Cla c h o n m ed " passed,;lost P ar liam e nt nPO not t Act, to ri peal the o a ths o f supremacy rasa abjuration ? a right to sit as Member of Parliament undo; the old law, (Hear.)—The Hon. and Learned Gent. who had just sat and by the operation of that law he wag, excluded. After I , a )s t t it its astute t m a p cated asto understanding renderto, pronounce n p os l si ble a definite n rho e ,ion an (f the . late c oActnn t ell's he ,itAi,ll,fietiniefsiotfasthAeiellmohinearnfoCrateblialrices, down said, that the ease w it s f u ll o f d ou b t and - recapitulating other argum en t s d rewn f rom the construe opinlon upon it, and that under such circumstances, w h ere the Bight Hon. GeSalentan proceeded to rely, that upon a doubt existed, we w ere h oun d to g i ve the individual pre- the whole he cousidereel it their bounden duty to act in ferring his claim in the House the benefit of that deubt,-- I aceordeeree and consistently with all the previou s • But he (Mr. P ee l) was of opinion that they were hound to Ansi near-tier of Parliament in such cases • and no c n „i cust i i;m . snarl iii this instance upon their /f sider!.Uions connected with, or arising out cases; other clues. this were indeed a case where a question cants IS ) s e t e 4 tams, should induce them to depart from that course. should be given to the it t: before a court of justice, and that a de.al s t there arose, he wsuld say that in such a case(Hear, hear.)—To Reman Catholics returned hereafter dizs benefit of that doubt they would extend the benefit of the existing law ; but it 'Whose right was affected wine -. wrong to extend its benefit, by a retrospective opera.. in that insta nes „ But it should be recollected, that the . tion, t a Roman Catholic who had been returned under a cipet,t;un b e liir e th e m now was one which regarded more the different state of the law. They would, in doing so, be privileg e of p a , li ainen t than the right of an individual, aria acting most inconsistently with the established usages and that they w ere h oun d t o decide that question without re- practice of Parliatraent.—(Hear.)—Und er such circum ference t o th e c l a i m o f any partici:llan individual, but in re- stances, he (Mr, .Pe e l) without giving way to those con ference td the manner in which the House h a d alw a y s e o n- siderations to which the Hon. and Learned Gentleman siilered and ectsd upon this Act of Parliament, and that had adverted, felt himself bound to say that on this °mite they were expr ess ly bound to act in conformity with the sion he was not governed by a reference to any external uniform practice o f th e House. But it was said, that Mr. circumstances, and that let the consequences be what dic e y O'Conn e ll s h ou ld not b e mad e an individual and solitary may, he could not bring himself to adopt a diffe ren t exception t o th e g en eral relief afforded . by the late Bill,— course. He was acting judicially, and lie must veite for