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London, England, 1828-07-08 00:00:00

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John
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Col.
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PARLIAMENT.

I'IGHT OF CATHOLICS TO SIT IN

INUIES RESPECTING THE OATHS AND DECLARATIONS TO

1/IE 'FA EN AND SUBSCRIBED BY IRISH MEMBERS OF
PARLIAMENT.

-__(From the Catholic Journal—By Mr. Butler.)
The sth of Elizabeth, c. 1, sec. 16, enacts that
every person elected or appointed Member of Par-
'atoent shall, before he shall enter the Parliament
..sl!°use, or have any vote therein, pronounce the Oath
hSupremacy; before the Lord High Steward or his
i'„ePutY, under pain of his seat becoming void, and
—cutting such pains, and penalties as if he had en-
tered without election?'
The 30th of Charles 11. stat. 2, enacts that " no
Peer shall vote, or make his proxy, or sit in the
House of Peers, and that no Commoner shall sit or
vote in the House of Commons, till he shall take the
Oath of Allegiance and Supremacy, and sign the de-
claration against transubstantiation, therein-men-
tioned, and under the penalties thereby imposed."
The Act also directs that " each House of Par-
uattent may require its Members to take the same
°aths, and make the same declarations ; and sub-
jects those who refuse to certain penalties." Nei-
Vier of these Statutes extends to Ireland, except so
r as it is referred to in the Act of Union.
The 3d of William and Mary, c. 2, sec. 5, enacts
that " no Peer of Ireland shall vote or make his
Proxy in the House of Peers, or sit there during any
ttebate, and that no Member of the House of Com-
4101as shall be capable to vote in the House, or sit
there,_ until he shall take the Oaths of Allegiance
ttl Supremacy, and subscribe the declaration against
bratis, übstantiation, under pain of being disabled from
aeoffice ; and shall be disabled from sitting or
'°t'Llg in either House of Parliament in Ireland;
1,1141 from sning in' any Court of Law or Equity; and
fr°lll being guardian, executor, or administrator, and
4°lll taking any legacy; and shall forfeit for every
lqful offence the sum of 5001." [This Statute was
Passed by the English Parliament : it relates exclu-
sively to Ii eland.]
The 6th of Geo. 1., c. 5, enacted that " the
kingdom of Ireland was subordinate to, and depended
upon, the Imperial Crown of Great Britain; and
that his Majesty, with the consent cf Lords and
Commons, might make laws to bind Ireland."
[This Act was passed by the English Parliament.]
By the 22d of Geo. 111., c. 53, the preceding
Act of 6th of Geo. 111. was repealed. That 'repeal
recognised the independence of the kingdom of Ire-
land and thereupon all the Acts of the English
Legislature only, and consequently the Act of 6th of
Gap- e. 5, have from that time been treated
as null and void. '
The 21st • d 22d of Geo. 111 c. 48, of the Irish
- • 4"
•/
parliament, commonly called Yelverton 5 sxct,
enacted that. " all Statutes made in England or
eat Britain, for the settling and assuring the for-
ftit ed estates in Ireland, and also all private Statutes
made in
an England or Great Britain, under which
any lallds, tenements, or hereditaments in Ireland, or
estate or interest therein, are or is holden or
or which concern the title thereto, or any
avid
and nee respecting the same; and all such clauses
lirovisions contained in any Statutes made in
England or Great Britain, concerning commerce, as
u_:nrirt !`.3- impose equal restraints on the subjects of
giallo and Ireland, or of Great Britain and Ire-
all s
land, and to entitle them to equal benefits ; and also
such clauses and provisions contained in any Sta-
tutes made as aforesaid, as equally concerning the
seamen of England and Ireland, or of Great Britain
auditelind, save 3o far as the same had been al-
tered
or repealed, should be accepted, used, and exe-
cuted in Ireland,- according to the present tenour
thereof;
__provided always that all such Statutes, so
11. r as- aforesaid, concerning commerce, should bind
the subjects a Ireland only, so long as they conti-
tined to bind the subjects of Great Britain."

And it was further enacted that " all such Sta-
tutes .made in England or Great Britain, as con-
terned the style or calendar ; and also all such clauses
and provisions contained in any Statutes made as afore-
said,as relate to the taking any oath or oaths, or making
°r subscribing any declaration or affirmation in this
kingdom, or any penalty or disability for omitting
the same; or which relate to the continuance of any
office
.civil or military, or of any commission, or of
4_nY writ, process, or proceeding, at law or in equity,
°,l* in any court of delegacy or review, in case of a
Oeinise of the Crown, should be accepted, used, and
execute4lin•Jreland, according to the present tenour
of the same. respectively."
~ By the 41st Geo. 111., chap. 52, it W 11.3 enacted
Tbat c, all persons disabled from or being incapable
°,.!, being elected, sitting, and voting in the House of
'°lntnons of Great Britain, should be disabled from,
and are incapable of being elected, or sitting and
Zing in the House of Commons of the United
ngdom
And that all persons disabled from, or incapable
71, being elected, anti sitting and voting in the House
of Commons of Ireland, should be disabled (min,
find be incapable of being elected or sitting or voting'
in the House of Commons of the United Kingdom :
" Provided, that nothing In that Act should be
COnstrued to enable persons theretofore disabled by
nnY Act of the Parliament of Great Britain from
ziitting and voting in the House of Commons of
(treat Britain, to sit or vote in the House of Com-
mons of the United Kingdom, as knights, citizens,
°r burgesses for any county, city, borough, town, or
place in Ireland ; nor to enable persons theretofore
,3abled by any Act of the Parliament of Ireland,
Lrom sitting and voting in the House of Commons
of t A
.telanU, to sit or vote in the House of Commons
of the said United Kingdom, as knights, citizens, or
",nrgesses for any county, stewartry, city, borough,
'nyiesport, town, or place, in Great Britain."
The 33d of Geo. 111. for the relief of Roman Ca-
tuolies, enacts, that "the provisions -of that Act
hall not extend to the qualification of Peers or
tirrimoners foe sitting in Parliament."
A By the 39th-and 40th of Ge 6. 111., chap. 67, the
".e,it of Union of England and Ireland, it was pros
that " the Members of either House should,
itibthe Parliament of-the United Kingdom shall
°,4lerwise provide, take the oaths and make the de-
-'4rations then by law enjoined to he taken, made,
.11;t1 subsCribed by the Lords and Commons of the
Ittliament of Great Britain?'
1, It is observable that the Act of Union of Eng.
in 4 and-Scotland directs that the persons not tak-
tbg the paths prescribed, shall be subject to
the
same penalties and disabilities as are implsed by
statutv.prelcribingihein ; but there is no such
P,rtvision in the 'Act, or 'the Union of England and
m
On- the construction of these Acts of Parliament,
stil.o"Connell'a title to enter into, sit, and .vote in
"'r
and e House of Commons of - the: United-Kingdom
1 Great Britain
epend. Ireland may be thought to
To reach a proper conclusion upon this question,
the foll6wini: observations May be found useful :
, 1. Taking into consideration the recognition of
lue independence of Ireland by the British Parlia-
ment in 1782, it may be assumed that at the time of
the passing „of Yelverton's Act, in the Irish Parlia-
ment ,in 1781.1782, there was no legislative act
farce, which disabled an Irish Catholic froin being
'letted into- and sitting and voting in the Irish Par-
,natnent.
, -
provides-_
l• all statutes of the Ellis!) Parliament for
. and assuring the forfeited estates in Ireland
under
whieh any property is held;
Or 2. which concern the title thereto;
3. And all private Acts of Parliament;
4. And all Acts respecting commerce;
5. And all Acts which impose equal restiaints cn
Ise subjects of England and Ireland; and
115' Ch. 'which concern seamen—Shall thenceforth
11 accepted, used, and executed, in Ireland.
But' there are no statutes of tile English Parlia-
tt'tritiespeeting the forfeited estates, or the title
thqto ; , or. WhTeriiieliiiiiite Acts; Orifhtelf-Tellife.
.)•cotirrierce,
,inwnse,.eual
"it subjects of England or Ireland; or which con-

cern seamen—thst 1:1-11 Catholics from sit-
ting or voting in rament of Ireland, or re-
quire any oaths or derlarations to be taken or sub-
scribed by them, a, a qmlitication for their so sitting
and voting.
Therefore, Yelvcrron's Aet gives validity to no
Acts of the English Parliament which directly or in-
directly disabled Catholics from entering into, sit-
ting, or voting in Parliament.
It should, however, be observed, that Yelverton's
Act contains a proviso, referring to the oaths and
disabilities in question; but it is expressly confined
to Statutes respecting the calendar, and to 'the
Statutes " made as aforesaid ;" or, in other words,
the Statutes therein before referred to : and there-
fore the proviso, however it may limit, does not en-
large the operative part of the Act.
IL The Act passed for the Relief of the Irish Ro-
man Catholics in 1793, enacted that nothing con-
tained in that act should esnable persons to sit in
Parliament without taking the oaths and subscribing
the declarations then by law required. This evi-
dently does not impose the obligation of taking the
oaths and subscribing the declarations, but leavef.
those obligations as they then stood at law.
111. The Act of the 39th and 40th of Geo. 111. for
the Union of England ant Ireland, enacted, that un-
less Parliament should otherwise provide, the mem-
bers of each House should take the oaths, and sub-
scribe the declarations then by law 'enjoined to be
taken, made, and subscribed by the Lords and Com-
mons of the Parliament of Great Britain. These
were the oaths of allegiance and supremacy, and the
declaration against transubstantiation.
But the Act merely enjoins that these oaths should
be taken, and that this declaration should be sub-
scribed; it does not prescribe any penalty for not
taking or subscribing them. Being an act of ex-
treme severity, and creating a new offence, it must
be construed strictly ; a penalty must not be enacted
by implication. It is observable that the act of the
sth and 6th of Anne, for the union of England and
Scotland, enacts that the Members of either House
shall tako the oaths and make the declaration pre-
scribed by the act of Charles 11., in the manner
therein mentioned, " upon the penalties and disabi-
lities hi the said act contained."

The words," upon the penalties and disabilities in
the said act contained," are omitted in the act for
the Union of England and Ireland. From this it may
be inferred, that it was not the intention of the Act,
for the Union of England and Ireland, to subject
persons not taking the oaths and subscribing the de-
claration to the penalties of the English statutes pre-
scribing them.
To suppose that the contrivers of the Union in-
tended to subject Catholics to any penalty to which
they were not then subject; would impute to them
an enormity which they have always disclaimed,
and which their bitterest enemies have not charged
upon them.
The clause standing singly, the only penalty to
which non-compliance with its provisions in question
will subject the party, is an indictment. To proceed
against Mr. O'Connell by indictment, them must be
a resolution of the House. It is doubtful whether
the House would pass such a resolution. By avail-
ing himself of the forms of the House, and enforcing
its standing orders, Mr. O'Connell might postpone
the business through a whole Session by intermi-
nable discussions; and in the mean time retain his
seat.

IV. The statute of 41 Geo. lll.—(the last sta-
tute, it is believed, which affects the question)
enacts—

" I. That persons disabled from sitting in the
British House of Parliament shall be disabled from
sitting In the. United Parliament for any place in
Great Britain."

This is completely answered by stating that Mr.
O'Connell's election will not be for any place in
Great Britain.

2. It then enacts, that persons disabled from sit-
ting in the Irish Parliament, should be disabled from
sitting in the United Parliament for any place in
Ireland.

This is completely answered by stating, that we
have satisfactorily shown, that no law of Ireland dis.
abled Catholics from sitting and voting in Parlia-
ment.

3. A proviso follows, that no person, disabled by
British statutes from sitting and voting in Parliament,
Should, by that Act (i.e., the Act now under 'consi-
deration), be enabled to sit or vote for any place in
Ireland, and so vice versa.
To this it is satisfactorily replied, that Mr. O'Con-
nell is not disabled by any Act of the English, Irish,
or United Parliament, from sitting for any place in
Ireland.

V. It remains to consider the effect of the Annual
Act of Indemnity upoii the question.
Upon this head, I shall only transcribe the fol-
lowing passage from "the substance of Mr. Croker's
speech on the 4th of May, 1819, on the Roman Ca-
tholic Question, published by himself in the same
year, p. 55.—" If a Member, to 'evade the law and
orders of the House, should intentionally do what
we have all known many Members do unintention-
ally, sit and vote without having taken the oaths;
and that actions for his offence should not be prose-
cuted to final judgment before the passing of the In-
demnity Bill, on the 25th of March, in any year, he
would, in my humble opinion, be thereby,—to use the
very words of the Act—indemnified, freed, and
discharged, from all penalties, forfeitures, incapacities,
and disabilities, incurred, or to be incurred, for or by
reason of any such neglect or omission ; and such
person would be and is fully and actually recapaci-
tated and restored to the same state and condition in
which he was before such neglect, and he shall be
deemed and adjudged to have duly qualified himself
according to the above mentioned acts, and every of
them. And that all the elections of and acts done or
to be done by such person shall be of the same force
and validity as if such person had duly qualified him-
self according to the said Acts, and any or every of
them."

Thos far for the opinion of Mr. Butler. We
happen to know that it has been sketched out for a
considerable time, though he had not given it the
form in which it now appears until within these few
days. We also know, and indeed the opinion itself,
if such it may be called, proves that he has most at-
tentively and minutely examined the whole subject,
and that he has not been • actuated in forming it by
circumstances of a temporary nature.
There is one point more, which Mr. Butler has
not touched and upon whiCh we shall take the liberty:
to offer au observation. There is a clause in the 30th
of Charles 11., which empowers either House. of
Parliament, as often as. " the House shall see occa-
sion," to call up to the table any, or all of its members,
and administer to them •the oaths and declarations.
This is, however, a power which has 4ieldom, if ever,
been eaforeed. It is, a discretionary not an obliga-
tory power, and the House :need not exercise it un-
less it " shall see °erasion.' Now-it is not prilhable-
that the present House of Commons will " see cro-
easion" to call this latent.and obsolete power into
existence, for this 114110, that it has already .and .re 7
eeutly decided in
..14Y,PIK,of...thefcathelie question..
But even Utile Houa4sbould,cornpel.Mr. O'Connell
to go to: the. table, and if -.(a4,u0 doubt would)
he should decline the oaths and declaration.tendered
to him,
would he not he sitfejti_doing~:rince,ac-
o io, the words of the Imleininty. Act, " he
shall
qualified fur all
acts done or to be done? byhii ?
edllil beig- taken and adjudged:thflia've

The LoRD .CHANCELLOR gave a grand din-
ner, or, Sunday, at his residence, in ,Cresne-street, Hano-
ver-squire, to Piiuce Licircu.n, and ii.select party of the
Nobility and Gentry. has appointed
The RECORDER Of Loudonhas appointed
W. E. ,BualcA 13%*, Esq. of Lincoln's Inn, Barrister at Law
and Common Pleader the City of London, to be Counsel,
jointly with the Honourable C. la. Law, in the Court of
Record, fir the lioroUgh of Southwark.
Mr. ROBERT WARD, the Auditor of, the
Civil Li,t, and author of those excellent novels, Tremaine
and _be Vere, is about to marry Mrs. LEWIN, formerly
the wile of Mr. PLUIDIER, the Member tin' f
shire, and at present the wi.low of a second husband.--
John Bull.