stated. I shall have to ask the indulgence of the Committee if in any of
the points which I press there seems to be any undueness in the pressing
of them, because, as far as I can see, this is the first occasion on
which such a matter has arisen. In the reference which the Committee have
to deal with, I claim to be sworn and take my seat by virtue of my due
return, a return untainted by illegality of any description, and in
pursuance of the Statute of the 5th of Richard II., which puts upon me
the duty of coming here to be sworn and do my duty under penalty of fine
and imprisonment. I do not know whether the Committee wish that I should
read the Statute. It is the second Statute of Richard II.; it is on page
228 of the revised Statutes, Vol. I.; it is a Statute of the year 1382. I
submit that although a Member may not sit and vote until he has taken the
oaths, he is entitled to all the other privileges of a Member, and is
otherwise regarded both by the House and the laws as qualified to serve,
until some other disqualification has been shown to exist; and I quote in
support of that Sir Thomas Erskine May's book, p. 202, that there is
nothing in what I did in asking to affirm which in any way disqualified
me from taking the Oath. The evidence that that is so is found in the
case of Archdale, on page 3 of the Precedents handed in by Sir Thomas
Erskine May, where, after John Archdale had claimed to affirm, he was
called into the House, and Mr. Speaker, by direction of the House, asked
him if he would take the oaths; that I have never at any time refused to
take the Oath of Allegiance provided by Statute to be taken by Members;
that all I did was, believing as I then did, that I had the right to
affirm, to claim to affirm, and I was then absolutely silent as to the
oath; that I did not refuse to take it, nor have I then or since
expressed any mental reservation, or stated that the appointed Oath of
Allegiance would not be binding upon me; that, on the contrary, I say,
and have said, that the essential part of the oath is in the fullest and
most complete degree binding upon my honor and conscience, and that the
repeating of words of asseveration does not in the slightest degree
weaken the binding effect of the Oath of Allegiance upon me. I may say,
that if it would be more convenient for any Member of the Committee to
ask me any question upon my statement as I go on, it will not interrupt
me at all.
86. I think the Committee would rather hear you through.--I submit that
according to law the House of Commons has neither the right nor the
jurisdiction to refuse to allow the said form of oath to be administered
to me, there being no legal disqualification on my part of which the
House can or ought to take notice, and there being on my part an express
demand to take the Oath, this demand being unaccompanied by, and free
from, any reservation or limitation. I submit that there is no case in
which the Oath of Allegiance has been refused to any Member respectfully
and unreservedly tendering himself to be sworn. I submit that any Member
properly presenting himself to be sworn, and not refusing to be sworn, is
entitled to be sworn, and to take his seat without interruption, and that
the discussion of any disqualification or ineligibility must in such
case, according to the practice and precedent of Parliament, take place
after the Member has taken his seat; and I quote in support of that John
Horne Tooke's case, which came before the House in 1801. It was alleged
that John Horne Tooke was ineligible because he was an ordained clergyman
of the Church of England. There he was allowed to take the oaths first,
and after he had taken the oaths Earl Temple rose and said (I am quoting
from page 956 of the Parliamentary History, Volume 35), that he observed
a gentleman who had just retired from the table after having taken the
Oaths whom he conceived to be incapable of having a seat in the House in
consequence of his having taken priest's orders, and been inducted into a
living. Earl Temple agreed he would wait to see if a petition were
presented against him, and if not he should move a resolution upon the
subject; and ultimately a resolution was moved that John Horne Tooke was
ineligible. The House allowed John Horne Tooke to sit, but declared
clergymen for the future to be ineligible for sitting. I rely upon that
as showing that the proper course to be pursued, supposing that any
Member should think that I am ineligible, is to wait until I have been
sworn and have taken my seat, and then to challenge it; and that this is
clear, because if it were not so it would be possible for the first 41
Members sworn or for a majority of that 41, that is, for 21 Members to
hinder the swearing of all Members coming later to the table without any
remedy on the part of the Members aggrieved; and I submit, with great
respect for the evidence of Sir Thomas Erskine May, that he has
misapprehended the force of the Standing Order that he read to you.
Hatsell's Precedents, Volume II., page 90, declares distinctly that when
a Member appears to take the oaths within a limited time, all other
business is immediately to cease, and not to be resumed until he has been
sworn and has subscribed the Roll; and with great submission to Sir
Thomas Erskine May, there is no word in the Standing Order which he
quoted as altering and changing that practice, which does so alter and
change it. All that the Standing Order does is to specify the time and
the manner in which the Members might come to the table to be sworn,
which had not been hitherto specified; but it does not in any way deal
with what was to happen when they did come to the table to be sworn. And
if the Committee would permit me respectfully to submit, it would be most
dangerous to the House if it were not so. The first batch of Members
called over by the Clerk of the House are sworn, and they may then, if
the contention raised upon the Standing Order quoted by Sir Thomas
Erskine May be correct, prevent every other Member being sworn, if there
be more than 40. They may fulfil all the duties of a House of Commons,
and do what they please, without any remedy, as the matter stands; every
election might be declared null and void, and every one sent back to
their constituencies one after another. I submit also that the case of
the Attorney General, Sir Francis Bacon, Volume I. of the Commons
Journal, page 459, is also a precedent in the same direction. I am
obliged to tell the Committee that I cannot quote it with the same
reliance that I can put upon Horne Tooke's case, for the notes seem to
have been taken, I will not say irregularly, but they do not seem to
convey the whole of what took place, and therefore I can only deal with
the result. Sir H. Hobart is quoted as being "the only attorney that hath
been in this House;" and then there arises a discussion, some of which
does not seem to me to be material, as to whether the then Attorney
General could sit or not, and I find in the returns that the Attorney
General at that date was Sir Francis Bacon, who, three days after this
discussion, elected to sit for the University of Cambridge, and although
I have not the legal evidence, because the returns are incomplete for
that year, as he elected to sit for the University of Cambridge, the
probability is that he had also been returned for a county. There was
then a Statute of the 46th Edward III., which has only recently been
repealed, which made a practising man of the law absolutely ineligible;
and it also appears that there was some oath of qualification, of which I
have not been able to find the words, which was then taken by a Member
coming to the table; and it appears here that the Oath was alleged in the
course of the discussion, and two things were said which I press upon the
attention of the Committee; one, that the precedents to disable a Member
ought to be shown on the side of those who seek to disable (it is not
written so lengthily as that; the words are, "The precedents to disable
him ought to be showed on the other side"), and the other is, "Their
oath, their own consciences to look unto, not we to examine it," which
meant, as I submit, that the House did not constitute itself into an
Inquisition to look behind a man coming to take the Oath, but that,
subject to his being dealt with by law if he had taken it improperly, or
subject to a legal disqualification being made clear to the House, they
assumed his oath to be properly taken. I submit that even Members
absolutely petitioned against and alleged to be disqualified or
ineligible by law, are always allowed to be sworn when they come to the
table to be sworn and to sit pending the decision of the petition. The
only cases which I have found of absolute legal disqualification in which
the Member's election was annulled before he had entered the House, are
the cases of Mitchell and O'Donovan Rossa (both of whom were away), and
the case of John Wilkes, who was physically incapacitated from taking the
oath from the act that he was in the custody of the law at the time, and
those who held him would not have permitted him to come to the table to
be sworn. Those are the only cases even with an allegation of an
absolute disqualification in the case of O'Donovan Rossa and Mitchell,
and of a disqualification alleged, but not admitted, and not legal, not
statutory, in the case of Wilkes, that I have been able to find; and in
Wilkes's case the House has solemnly decided that it did wrong there, and
I submit that it ought not to do it again. But here the return is not
questioned. It is not pretended that there has been a single circumstance
of illegality connected with the election, the sole point being, Am I
qualified to sit? If I am qualified to sit, I have the duty to take the
Oath, and the House has neither the right nor the jurisdiction to refuse
the Oath to me, nor to interrupt me in the taking of it. If my
qualification or eligibility to sit is to be discussed, the precedent for
the proper mode of discussing that qualification is in Horne Tooke's
case, and rightly so, because then I have the opportunity from my place
in the House of defending myself, and of correcting any misstatements
that may possibly be urged by Members who may be too anxious that I
should not sit, supposing in any other House of Commons it should happen,
and it then gives the Member attacked fair play. While I admit entirely
that the House has a full and most complete right to expel any sitting
Member, and this in its own discretion, and for any reasons in its wisdom
sufficient, I submit that it has never done this without first calling
upon the Member to be heard in his own defence, and that that cannot
possibly happen until the Member is sworn and is sitting. I submit that
while the House has the right to annul the election of a person
absolutely disqualified by law, it has never, except in one case, that of
John Wilkes, claimed the right to interfere, and in that case it
ultimately expunged from its proceedings the whole of its hostile
resolutions, as being subversive of the rights of the whole body of
electors of this kingdom. I quote on that the Commons Journal, Vol. 38,
3rd of May 1782. I do not think that I should be right in troubling the
Committee with the very strong arguments used time after time by Edmund
Burke, Thomas Pitt, and others; but I want to point out this, that in
addition to the charge on which John Wilkes was expelled from the House
(and I am not questioning his original expulsion), there were also
charges introduced against John Wilkes for his publications outside the
House. That will be found in 1st Cavendish, page 73 and page 129, and
they are charges far exceeding anything (if I may judge from the reports
which have even been put in) in relation to any supposed publications of
my own. None of those charges were ultimately considered by the House to
justify the interference of the House with the choice of the
constituency. To use the words of Mr. Thomas Pitt, on page 350 of
Cavendish, words endorsed by the House itself, "Nothing but a positive
law can enable you to circumscribe the electors in their choice of a
representative, however, indiscreet they may be in their choice." I
consider now on what grounds is it claimed that the House of Commons has
the right and jurisdiction, following the words of reference, to refuse
to allow me to take and subscribe the Oath? Is it for a disqualification
or ineligibility existing prior to my election and continuing down to the
time of my election--I mean a disqualification or ineligibility created
by Statute or existing at common law? No such disqualification is even
pretended. Is it for a disqualification or ineligibility of like legal
character arising since my election? No such disqualification is
pretended. Is it for conduct not amounting to absolute disqualification
legally, but conduct for which the House has in its discretion exercised
its rights and jurisdictions by expelling a Member? It must be this, or
it is nothing. If there is neither legal disqualification prior to my
election, nor legal disqualification subsequent to my election, then
there must be such conduct not amounting to absolute legal
disqualification as would, were I a sitting Member, justify the House in
using its discretion to expel a Member. But if that conduct be prior to
the election, then I submit that the constituency is the sole and
sovereign judge of the fitness of the candidate, such candidate not being
legally disqualified, and that where the chosen and duly returned
candidate is ready to perform his duties, this House has neither the
right nor the jurisdiction to revoke the decision of the constituency;
and that in the only case in which the House did so interfere it
afterwards solemnly recorded that its conduct was illegal, as being
subversive of the rights of the whole body of the electors of this
kingdom. If the complaint against me is for conduct arising since my
election, then I submit that even if such matters justify my expulsion as
a Member, the point could only be raised after I had been heard in my
place against the Resolution, and that the matter could not arise until I
have taken the Oath and become entitled to speak, sit, and vote.
Manifestly this must be so, as otherwise it would always be in the power
of a majority to exclude from coming to take his seat any Member to whom
they might have an objection; and although such a thing is, luckily, not
probable now, there have been times, even in the history of the House of
Commons, when a majority, even of election committees, as I read in the
Records of the House, have sought by mere prejudice to exclude Members.
It is, therefore, the more necessary that at any rate a Member should
have the right to be heard in his own defence. I submit that there is no
precedent whatever for preventing a Member from taking his seat and the
Oath, on the ground of conduct not amounting to absolute legal
disqualification. There is no such precedent to be found at all, and I
have searched very carefully indeed. I put the question to Sir Erskine
May lest anything should have escaped me, and I say absolutely there is
no precedent. Then I submit that it would not be consistent with the
dignity of the House to examine any statement made by any Member outside
the House, as to any of its procedure, and that in fact the House has
firmly refused to allow a Member to be challenged as to whether or not
some of his extra-Parliamentary utterances were inconsistent with his
Oath of Allegiance; and here I should like the Committee to come to a
decision, because it would alter and abridge my argument. If the
Committee thought (I will put a suppositious case) that, say there were
some document that they thought they had the right to take into
consideration here, then while I should object to that, I should like to
have the opportunity of addressing the Committee as to that. So far as
the evidence has gone, I have not heard of any, except the mere statement
in the House, only I judged from a question put by an honorable and
learned Member that something was passing in his mind (which, by the way,
did not seem to me to be the fact) justifying a question put to Sir
Thomas Erskine May as to whether the Oath could be administered to a man
who had done something either actually or by implication repudiating the
effect of that Oath. I have heard nothing in the evidence, so far as it
has gone, giving the slightest color or warranty for such a question. If
there are any facts to be dealt with by this Committee other than that,
then I should like to know the facts, and to argue upon them; but it
would be only wasting the time of the Committee to address argument to
any point which the Committee would not think it right to consider; and I
should be glad if, before going further into my statement, the Committee
thought it right to intimate to me their view upon that.
The Committee deliberated.
87. CHAIRMAN: I think the Committee would like to understand from you the
kind of objection that you are anticipating before you proceed with your
argument; as I understood you, you took this kind of objection: "I wish
to know whether the Committee are going into any proceedings external to
the proceedings which took place in the House, or will entertain the
consideration of those questions," and that if they did so you would wish
to be heard upon that point; I understood you also to say that beyond
that general question as to any proceedings which may have taken place as
part of the transaction in any other place than the House itself, you
wish to know whether the Committee would take such matter into their
consideration; am I right in supposing that to be the character of your
objection?--Not quite. Practically my question is this: Will this
Committee take any facts into consideration other than those of which I
have heard evidence given, and those which have been stated by myself in
the course of my argument? If so, I should like to know, because I
understood the permission of the Committee to be that I should address
them at the close of the case before their deliberations, and I should
submit with all respect that the Committee would not take one matter of
fact into their consideration to influence them in their deliberations
which I had not the opportunity of addressing them upon. If they have
finished, and if there are no facts except those which I have heard to be
dealt with, it enables me to turn out and eliminate a portion of the
argument which I have prepared.
The Committee deliberated.
88. CHAIRMAN: The Committee have considered the matter which you have
submitted to them, and they request me to inform you that members of the
Committee do propose, after your statement is concluded, to ask some
questions of you; but I have to inform you, at the same time, that you
will be invited, and are invited, to state any objections that you may
entertain to any such questions when put, and that you shall have a full
opportunity of addressing the Committee after they have heard your
answers to the questions so put?--That will enable me to eliminate a
portion of my argument. I wish to submit to the Committee one observation
on the precedent of Daniel O'Connell, and that is that, as a matter of
fact, the evidence of Sir Thomas Erskine May shows that he misapprehended
that precedent. It was a refusal by Daniel O'Connell to take the Oaths by
law required of a member at the date of his election. Between the date of
his election and the date of his refusal the law had changed, but it had
not changed (so the House interpreted the Statute, or so the Statute ran,
I do not know which) at the date of his election. So that I submit that
Daniel O'Connell's case is a case of a Member refusing to take the Oath
by law required; and I further submit that the Parliamentary Debates will
show that the words which appear as being used by Mr. O'Connell on the
19th of May, sufficiently expressed his reason for refusing to take the
Oath of Supremacy some days at least before the House asked him again to
take it. Then I have only two other matters which I should wish to submit
to the Committee. One is that I have, neither directly nor indirectly,
obtruded upon the House, since I have been a Member, any of my utterances
or publications upon any subject whatever; that there is no precedent,
except in the case of John Wilkes, for any reference on the part of any
opposing Member to such publications by any Member prior to the taking of
his seat; and that the ultimate decision of the House in John Wilkes's
case is directly against the introduction by any Member hostile to me of
any such matter as a reason for my not being allowed to take my seat.
Finally, I most respectfully submit that I have grave matter of complaint
that my privileges as a Member of the House of Commons have been
seriously infringed, and that the rights of the electors, my
constituents, have been ignored in the attacks made upon me without
previous notice to me; attacks to which I had no opportunity of making a
dignified reply; attacks which, if the newspaper reports be accurate,
were in many instances based upon absolute misapprehension or
misquotation of my publications, and in one instance at any rate, based
upon the most extreme misrepresentation of my conduct. I thank the
Committee for listening to me, and I regret if my want of knowledge of
the forms of the House has involved my saying anything in a manner in
which the Committee would prefer that I should not have said it.
89. That is all you wish to state at present?--That is all I wish to
state at present upon the evidence as taken by the Committee. If fresh
evidence should be taken, I should ask the permission of the Committee to
have the right of addressing them upon that.
90. The Committee will now proceed to examine you.--Before any question
is put to me, will you, Sir, tell me when is the proper time to object to
any question which I may think I have the right to object to?
91. When the question is put, before answering it?--
Mr. ATTORNEY GENERAL: You will understand that I am not in any
sense cross-examining you, but merely to clear up what took
place in the House.
I am entirely in the hands of the Committee.
92. We know from the Proceedings of the House that you did at the table
of the House make a claim, in the first instance, to make affirmation
instead of taking the oath?--Yes.
93. And we understand that you did so on the ground that you were a
person entitled to make affirmation within the terms of the Evidence
Amendment Acts of 1869 and 1870?--That was then my impression of the law,
and that was the claim which I made.
94. And I presume, of course, that at the time when you made that claim
you founded it upon the belief that you were entitled to make affirmation
in the House of Commons?--I made that claim solely upon my belief that
the law entitled me to make it.
95. Then as regards your power to give evidence under the Evidence
Amendment Acts in courts both civil and criminal, you of course put it
before the House of Commons, as a fact, that you were a person entitled
in those courts to make affirmation?--Yes.
96. And I presume that you were acquainted with the terms of those Acts,
the subject interesting you?--Quite.
97. Were you aware that if you yourself were called as a witness, it
would be necessary before you were allowed to make affirmation in a
court, either civil or criminal, under the Acts of 1869 and 1870, that
two things should be established; first, that you yourself objected to
take the oath, or that your right to take it was objected to by some one
else; and then, secondly, that the judge would be required to satisfy
himself that the taking of an oath by you would have no binding effect
upon your conscience?--No, that is not my interpretation of the Statute,
nor do I think it has always been (although I think it has sometimes
been) the interpretation of the judge or other presiding officer dealing
with it.