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
la'tbl.B, Particular instance against the whole tenour
of,his conduct through life.—(Hear.)
41%. M. FITZGERALD—He could assure the
-",°a''Gentletnan that he was not one of those who
glad laughed at any opinion expressed by him; on
the lamed
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 mar Learned Gentleman (the Solicitor-General)
pon the-talent, the temper, and the eloquence with
awhich `the Han. Member for Clare had conducted
ege"—titnente he trusted that the House would adopt
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
bereeed.
apply their attention merely to the techni•
cal objections which had been urged against his
taking his seat. He confessed that he (Mr. Fitz-
gerald) approached a question of that kind with con-
siderable diffidence, and with no little apprehension
of being entangled amongst the mass of legal de-
tinetions Which lawyers drew to their aid on such
"easicms• He was emboldened, however, by the
conviction that this was not one of the cases to be
governed
by such principles, and that there really
would be found as little difficulty in coming to a
satisfactory conclusion in favour of the right of the
Member for Clare to take his seat in that House.
14PPIYing himself, however, for an instant to the
5.al Arguments through which the right of the
membeiefor 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 Learned Gentleman opposite. That
Hon. and Learned Gentleman (the Solicitor-Gene-
!al), in referring to the argument of the Member
for Clare, upon the 10th section of the Act, ad.
!flitted at once, that if the case turned on that alone,
he was willing to concede the point that Mr.
O'Connell was eligible to take his seat in that
llouse. But the Hon. and Learned Gentleman
tontended that 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, that 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 words contained in it ; and if
i
t was Plainly and decidedly declared in the tenth
se
action of an Act that a Catholic may exercise anyt
r , nenise or civil right, upon taking and subscribing
ihe oaths hereinbefore appointed, it could scarcely
sand with fairness that there was not in these
Ivords a fair ground for contending that the Hon/
Member for Clare might claim the benefit of the
exception contained in them. What, indeed,
would be the effect of the Hon. and Learned Gen-
tlenman,
8 arguments, 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 Catholic 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.
IVember 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, but because he was not described in the Act,
"scause there was no express clause applying to his
heuliar case. It was his (Mr. Fitzgerald's) desire,
Its he was sure it was the desire of every liberal
in the country, that if from any looseness in the
wording of this statute, or from any other cause,
there remained a doubt upon the construction of the
'l4nses that the doubt should be construed in favour
of the Member for Clare.—(Hear, hear.)—He and
archer Hon. Members 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
.natn e, he required that the Act should be construed
ture
acme'
to the spirit and intentions of the Legisla-
MM, with reference to that sect of which the Hon
ember for Clare professed himself to be. He
ed, Where doubt existed, that every fair and
liberel
construction should be put on the terms of
that Act; for if ever there was a time when there
should he a liberal construction in favour of the
tights of the peo.ple it is that time, when their re•
h!ent Act of Legislation and their still more recent
earations have proved them indisposed to extend
right of representatime•--(Hear, hear.)—lt was
tor this reason • he thought they should be cautious
how they Wantonly limited those rights which al-
tefuly existed. He did not wish to detain the House
Iltniltehe many observations upon a question which
Out, perhaps, from its nature, be thought more
et'Y Placed in the hands of other, and he should,
i.li)erefore, conclude by declaring that, in his opinion,
they ought not to resort so much to the construe-
ti.ons
ene of lawyers as to the feelings of public conve•
could; and that, above all, they ought, if they
t , to rescue Parliament from the odious impu-
seli" a having framed their Act in terms expressly
t-,mculated to ruin one individual of that class whose
enalties and disabilities they were pretending
4olly to remove.---( Hear.)
fter a few words hi explanation from Mr. FER-
OtyssoisT,
frabirnr• ttA.TLEY said the Bill, in his opinion, was
ed 13 the in such a manner as to leave no doubt respect-
exclusion of the Member for Clare. The
erls of the second section were indeed too ex-
'eit to leave the slightest question on the subject.
MreSUGDEN 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
tll:ttnr Outlawry against him as an individual, still
tent d-was not a question which the House could en-
Wee'ejlow• If that Hon. Person thought the Act
hitee'elY to operate in that manner, he should
the made his objections when it was under
It Le°nsideration of Parliament.—(Hear, hear.)—
it °ad been said by several Hon. Members that
kit doubt was entertained on the construction of the
th:tute,.Mr. O'Connell should have the benefit of
tift.dubt, He, for one, could not concur in the
etle'n that Acts of Parliament were to be con-
t h.7' d according to such principles. He considered
eluty he was performing as merely judicial. He
slope of
whether the decision did or did not ex-
tele: Air. O'Connell. He looked at the case with
ttedree to the words of the Act of Parliament,
tltelibeeling 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 ToMenther for Clare had taken the oaths directed
vas - taken before the Lord Steward. There
lcnothing, however, in the Act of Parliament
tih so, teNered it imperative that he should do
we, and even when he had taken it there
Theril° information conveyed by it to the House.
Renee was merely a certificate declaring that the
The I.l!,able Member had taken a certain oath.
Osee„.7°n• Member for Montrose said that Mr.
de "pelf had taken two oaths, but he (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
tleutitt it would be found the Member for Clare
-I‘u -the same oath twice. He alluded to the
oath it:ese • otids section, and which
ribed by tne
tithhigohittsbe,
• e tne
taken in the Lord Steward's Office, and
to enter •
nit° King's Bench. That was not the
tendaut discussion the of the consequences at-
vitti uP" the course which the Member for
he h.,- had adopted, but be apprehended that
00070 brought. himself within the operation
tOcieli.!1•11. :ofeElieebeth, 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 reri4fnized 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 li
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 vete
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;
iplarrettr‘ovsap,,eic)rtoisset
retrospective measure
su.re ; he looked upon it as partly the
one, and partly the other. I3ut the Bill did not say which
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 upon it. But he Relief Bill then proposed, in order that Mr. O'Connell
e nnel up m them intim their serious consideration I might not be excluded ? And why was it not proposed
the si'ssimief 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 imient 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 ji He happened to be the only Roman Catholic that was re-
Clare had treated it—that was, without declamation, l turned to Parliament previous :to the passing of the late
without passion.—(Applause.) He would put it to the I Act for the 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 sitting in
inserted, would fully explain the document, were found this Ilouse. They would justly say to him, "We de-
wanting—the Court, instead of supplying the 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. ftlt great diffidence in venturing to offer an oaths of abjuration and supremacy, prescribed by those
opinion on a queation which required for its 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 now 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 their taking their ; oaths, how had it happened that there was no objection
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 lin 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 tion 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 employment, civil 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 do the same.—(A laugh.)
these Acts. The Ist of William and Mary provided that
these oaths should be administered to all Itlembers of Par- that
this enactment had not only a prospec-
liament, and this clause of an Act passed subsequently in
It was asserted
the same Session provided that the oaths established to be tive but a retrospective operation. Without entering upon
taken, by virtue and under the authority of that Act, ;the question as to what decision a court of justice might
should be administered to all persons holding offices of pronounce, in reference to the penalties for not taking the
emolument or trust under the Crown. But he would show I oaths, or whether they could be recovered in a court of
by a reference to the course pureu d, and the practice
I justice, he would maintain that the Relief 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 andmonths there could be no cavil on that point; for so earls
only after the passing of the Act to which he had alluded, ,
as the reign of Henry VI., the certificate of the sheriff
in the new Parliament which succeeded in that year, a fact
occurred, which in his mind at once set the question at rest. I that an individual was duly elected constituted sufficient
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 argument
ing of Parliament, the Eat] of Devonshire came into his of Lord Tentetden on that occasion was, that if Mr.
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 appointed to ± necessity of making the declaration against transubstantia-
be taken by an Act in the first year of his Majesty'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, adini. 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
11 thefair and real intention of the Parliament of 1688 to re- sunremaay.l"fhe Act thus applied, not only 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 provided 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 few months had elapsed since his Catholic-fellow-countrymen had been admitted by the
lahisaennii
toe) ntt
lie would
met in
Legislature,
eagsiksw;
ahtaiucrhe,
strongthatin
pparsBoAoi
gtth
stitehetaissi
privilegespßiey negf ANs,ci
tth.
and
its 11
reparneovcvhaisissieeonsntsciot
idtiitt to the enjoyment of all the
conferred by
this
sy that
instanceA
TieiPClachonmed"
passed,;lost Parliament
nPO
not
t
Act, to ri peal the oaths of 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)st tit its
astute
t map cated asto
understanding
renderto,
pronounce
n p oslsi ble
a definite
nrho e ,ion
an(f the
.late c
oActnn t
ell's he
,itAi,ll,fietiniefsiotfasthAeiellmohinearnfoCrateblialrices,
down said, that the ease wits full of doubt and - recapitulating other arguments drewn from the construe-
opinlon upon it, and that under such circumstances, where the Bight Hon. GeSalentan proceeded to rely, that upon
a doubt existed, we were hound to give 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 previous • But he (Mr. Peel) was of opinion that they were hound to Ansi near-tier of Parliament in such cases • and no c n
„i custii;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)sete4 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.alst 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 instanes„ But it should be recollected, that the . tion, t a Roman Catholic who had been returned under a
cipet,t;un beliire them now was one which regarded more the different state of the law. They would, in doing so, be
privilege of pa, liainent than the right of an individual, aria acting most inconsistently with the established usages and
that they were hound to decide that question without re- practice of Parliatraent.—(Hear.)—Under such circum-
ference to the claim of any partici:llan individual, but in re- stances, he (Mr, .Peel) without giving way to those con-
ference
td the manner in which the House had always eon- 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 expressly bound to act in conformity with the sion he was not governed by a reference to any external
uniform practice of the House. But it was said, that Mr. circumstances, and that let the consequences be what dicey
O'Connell should not be made an individual and solitary may, he could not bring himself to adopt a different
exception to the general relief afforded. by the late Bill,— course. He was acting judicially, and lie must veite for