20. I see that one of those is a precedent of a Member disabled for having sat in the House without taking the Oath; then there is a precedent of a Member being admitted to sit without taking the Oath of Allegiance and Supremacy; then there are precedents of Members being discharged for declining to take the Oath; then there is a precedent of a Member, being a Quaker, refusing to take the Oath; then there is a precedent of a Member expelled for absconding, and not taking the Oath; then there is a precedent of a Member refusing to take the Oath of Supremacy; then there is a precedent of a Member, being a Quaker, claiming to make an affirmation; then there are precedents of Members omitting the words in the Oath of Abjuration, "on the true faith of a Christian;" and lastly, the precedent of a Member stating that he had a conscientious objection to take the Oath. I should like to ask whether there is any precedent amongst those of a member coming to the table and stating that he was ready to take the Oath, and any objection being taken to him in consequence of that statement?--No, there is no precedent to that effect, unless it might be argued that the case of Mr. O"Connell, in 1829, was, to a certain extent, a.n.a.logous. He claimed, as the Committee are aware, to take the Oath recently provided by the Catholic Relief Act, and which, he contended, was the oath that he was ent.i.tled to take; it was a question of law whether that was the oath which he could take.
21. In that case he refused to take the old oath, and he offered to take the new oath under the Catholic Relief Act?--That is so.
22. And the House refused, I believe, to allow him to take that oath?--That was the case. I may state briefly that these precedents may generally be divided into three cla.s.ses: first, cases of refusal to take the oath; secondly, claims to make an affirmation instead of taking the oath; and thirdly, claims to omit a portion of the Oath of Abjuration.
With one or two exceptional cases, those three cla.s.ses comprehend all the cases which have been laid before the Committee.
23. Mr. BRADLAUGH (through the Committee): I should like to ask upon that whether the case of Daniel O"Connell was not a case of absolute refusal by the Member to take the oath required by law?--I think the best way will be, perhaps, to read the precedent from this paper, and then any inference can be drawn from it. It is at page 5. "Precedent of Member refusing to take the Oath of Supremacy; Daniel O"Connell, Esq., professing the Roman Catholic religion, returned knight of the shire for the county of Clare, being introduced in the usual manner, for the purpose of taking his seat, produced at the table a certificate of his having been sworn before two of the deputies appointed by the Lord Stewart, whereupon the Clerk tendered to him the Oaths of Allegiance, Supremacy, and Abjuration; upon which Mr. O"Connell stated that he was ready to take the Oaths of Allegiance and Abjuration, but that he could not take the Oath of Supremacy, and claimed the privilege of being allowed to take the oath set forth in the Act pa.s.sed in the present Session of Parliament "for the relief of His Majesty"s Roman Catholic subjects"; whereupon the Clerk having stated the matter to Mr. Speaker, Mr. Speaker informed Mr. O"Connell that, according to his interpretation of the law, it was inc.u.mbent upon Mr. O"Connell to take the Oaths of Allegiance, Supremacy and Abjuration, and that the provisions of the new act applied only to Members returned after the commencement of the said Act, except in so far as regarded the repeal of the declaration against transubstantiation; And that Mr. O"Connell must withdraw unless he were prepared to take the Oaths of Allegiance, Supremacy, and Abjuration.
Whereupon Mr. O"Connell withdrew. Motion, That Mr. O"Connell be called back and heard at the table. Debate arising, a Member stated that he was requested by Mr. O"Connell to desire that he might be heard. Debate adjourned. Resolved, That Mr. O"Connell, the Member for Clare, be heard at the bar, by himself, his counsel or agents, in respect of his claim to sit and vote in Parliament without taking the Oath of Supremacy. Mr.
O"Connell was called in and heard accordingly: and being withdrawn; Resolved, That it is the opinion of this House that Mr. O"Connell, having been returned a Member of this House before the commencement of the Act pa.s.sed in this Session of Parliament "for the relief of His Majesty"s Roman Catholic subjects," is not ent.i.tled to sit or vote in this House unless he first take the Oath of Supremacy. Ordered, That Mr. O"Connell do attend the House this day, and that Mr. Speaker do then communicate to him the said resolution, and ask him whether he will take the Oath of Supremacy. And the House being informed that Mr. O"Connell attended at the door, he was called to the Bar, and Mr. Speaker communicated to him the resolution of the House of yesterday, and the order thereon, as followeth." Then the resolution and the order are repeated. "And then Mr.
Speaker, pursuant to the said order, asked Mr. O"Connell whether he would take the said Oath of Supremacy? Whereupon Mr. O"Connell requested to see the said Oath, which being shown to him accordingly, Mr. O"Connell stated that the said Oath contained one proposition which he knew to be false, and another proposition which he believed to be untrue; and that he therefore refused to take the said Oath of Supremacy. And then Mr.
O"Connell was directed to withdraw, and he withdrew accordingly;" and then a new writ was ordered.
24. Mr. JOHN BRIGHT: Were those oaths separate oaths?--Yes, they were three separate oaths.
25. And they require three separate acts in taking them?--Yes.
26. Mr. ATTORNEY GENERAL: I think the result is that the House first determined that the Oath of Supremacy which ought to be taken by Mr.
O"Connell was the old oath, and not the oath under the Catholic Relief Act?--Clearly.
27. And having determined that it was the old oath that required to be taken, Mr. O"Connell refused to take it?--Certainly.
28. Mr. BRADLAUGH (through the Committee): Have you searched for any precedent affecting the taking of the oath by a Member alleged to be disqualified or ineligible; has your attention been called to the case of John Horne Tooke, in Volume 35 of Parliamentary History, in the year 1801, commencing at page 956?--Not in respect of any question relating to oaths: it is not amongst these precedents.
29. As a fact, was Mr. John Horne Tooke"s capacity to sit in the House challenged in this case?--Yes, as being in Holy Orders, but not in relation to any question of taking the oath.
30. The next question that I have to ask is whether your attention has been called to the case of the alleged ineligibility of Francis Bacon, the King"s Attorney General, in 1614, cited in the Commons Journal, Volume I., pp. 459 and 460?--No, my attention has not been directed to any questions of incapacity: it has been confined to questions arising out of the taking of the oaths prescribed by law.
31. There is one other question that I should like to ask, and that is whether your attention has been called to any case in which the House has discussed and dealt with the election of a Member, before that Committee was sworn?--With regard to the Jews, that would apply to Baron Rothschild and to Alderman Salomons.
32. I do not mean a case of a Member refusing to be sworn, but a case in which the House has dealt with the election before the Member had been sworn; has your attention been called to that?--No.
33. There is one case, the case of John Wilkes; the cases of O"Donovan Rossa and Mitch.e.l.l were cases of legal disability; has your attention been called to any case in which the House has dealt with the election of a Member before he was sworn except for statutory disability?--Sir John Leedes sat in the House without having taken the Oath, and therefore he had clearly vacated his seat, and a new writ was issued.
34. I mean a case in which the Member has not been sworn, and in which there has been a discussion upon his eligibility outside the precedents which you have handed in; I refer to the case of John Wilkes, which is to be found in 38 Commons Journals, p. 977, and Cavendish"s Parliamentary Debates, Volume I., extending over many hundred pages, commencing at 827.
May I ask Sir Erskine May whether the practice has not been that when a Member appears to take the Oaths within the limited time, all other business is immediately to cease and not to be resumed until he has sworn and has subscribed the roll?--That was the old practice, but it has been superseded by a recent Standing Order under the Parliamentary Oaths Act of 1866, and the rule is now different; Members can be sworn until the commencement of public business and afterwards; but no debate or business may be interrupted for that purpose.
35. That is not quite the question that I wish to put; the question that I wish to put is whether it is not now and has not always been the practice of the House that within a limited time, whatever that time may be, if a Member appears to take the oaths all other business is immediately to cease and not to be resumed until he has been sworn and has subscribed the Roll?--That was the old practice, when the oaths were required to be taken before four o"clock, but it has since been altered.
This is the present Standing Order under which the oaths are administered, and this order was made in pursuance of the Parliamentary Oaths Act of 1866: "That Members may take and subscribe the Oath required by law at any time during the sitting of the House before the Orders of the Day and Notices of Motions have been entered upon, or after they have been disposed of, but no debate or business shall be interrupted for that purpose."
36. Then I again repeat my question, whether the practice has not been that a Member so appearing under the Standing Order just read to take the oath, all other business is immediately to cease and not to be resumed until he has been sworn and has subscribed the Roll?--I have already stated that such was the old practice, which has been distinctly and specifically superseded by the last Standing Order, which is now in force.
37. Is that the Standing Order which you have just read?--Yes, that is the Standing Order now in force.
38. Of course it will be a matter for argument whether it has altered it or not, but is there any other Order altering this practice except the one which you have just read?--There is no other Standing Order, and that Standing Order was made, as I have already stated, in pursuance of the Parliamentary Oaths Act of 1866, which authorised the House to make regulations with regard to the swearing of Members.
39. But except so far as it may have been altered by the Standing Order which you have just read, was the practice that a Member appearing to take the oath all other business was to cease, and not to be resumed until he had sworn and subscribed the Roll?--Yes, certainly.
40. Mr. ATTORNEY GENERAL: The present Standing Order is dated the 30th April, 1866, is it not?--It is.
41. Mr. BRADLAUGH (through the Committee): Are you aware that the House has refused to make any inquiry as to what is consistent, or what is not consistent with the Oath of Allegiance taken by a Member?--I presume that the reference must be to a case which arose in debate. That I do not consider, in any way, in point in the present inquiry, but the question was this: "In one case an attempt was made to obtain from a Member who was about to bring forward a motion, a repudiation of statements made elsewhere, which were alleged to be at variance with the oath he had taken; but the Speaker stated that it was no part of his duty to determine what was consistent with that oath, and that the terms of the motion were not in violation of any rules of the House." That was a point of Order, and had no reference whatever to the taking of the Oath.
42. Mr. ATTORNEY GENERAL: What was the motion?--It is in the 210th volume of "Hansard"s Debates," 3rd Series, page 252. It is at page 197 of my book, in a note.
43. Mr. JOHN BRIGHT: In what year?--On the 19th March, 1872; there is merely an incidental reference to it.
44. Mr. BRADLAUGH (through the Committee): Are you aware of any precedent for the dealing by the House with the election of any Member not disqualified by statute or common law, until after that Member had sat and been sworn?--My attention has not been directed to any precedent bearing upon that precise point, but I apprehend that the fact of whether the Member had been sworn or not would not interfere with any proceedings. For example, under an election pet.i.tion, if a Member"s seat were contested, under the old system, the matter would have proceeded in the usual way, without reference to the question of whether the Member had taken the Oath or not.
45. But in such a case the Member would have been sworn, and would have sat until the question was decided?--Not necessarily; under the terms of the question I a.s.sume that he had not taken his seat.
46. Are there not very numerous cases in which with a pet.i.tion against a Member for alleged statutory disqualification that Member has been sworn and has sat until the decision?--Unquestionably; there can be no doubt about it; it frequently happens.
47. Then I ask whether there is any precedent whatever for the House dealing with a Member"s election or his right to sit, except in cases of absolute statutory disqualification, until that Member has taken his seat and the oaths?--So far as I understand the question, I should say that whether the Member has been sworn, or not, the matter of his disqualification, or of his right to sit would be open to the decision of the House.
48. I am not arguing the point at the moment; I am only trying to get at the fact. If you have not looked for it, of course I cannot have it; but is there, so far as you know, any precedent of such a thing ever having happened?--I know of none; but I have not searched for any such precedent.
49. Mr. ATTORNEY GENERAL: It would not appear, would it?--I hardly know how it would appear; unless one"s attention were specifically drawn to any case, there would be no means of discovering it.
50. Mr. BRADLAUGH (through the Committee): I will ask whether that question was not raised in the case of Wilkes, and whether it was not in the consideration of that case fully discussed, and whether the House did not resolve that any such dealing with a member was subversive of the rights of the whole body of electors of this kingdom?--I do not understand how that case has any bearing upon the present question.
51. There are three cases: one of expulsion, two of election annulled, and then ultimate reversal of the whole of that and expungment by the House?--Yes, but that has no bearing upon the present case. Of course, I am familiar with the case of Wilkes, but not in connection with any matter arising out of the administration of oaths, which is the special matter referred to this Committee.
52. Have you had your attention called to the Journal of the House of Commons, Vol. I., page 460, in which Sir Francis Bacon, the King"s Attorney General, having sworn to his qualification, which was challenged, the House said, "Their oath, their own consciences to look into, not we to examine it?"--That case is not one of the precedents that we have collected.
Mr. BRADLAUGH: They are entered extremely curiously, and one can only take the decision. It begins on page 459, "Eligibility of the Attorney General," and it does not show there that it is Sir Francis Bacon: but I have learnt that by looking up the other records; and there being then a statutory declaration which lasted until a few years ago for all counsel, solicitors, and practising men of the law, it was objected that the King"s Attorney General could not sit; it appears that he had to swear to his qualification, and the question of his oath and of his disqualification, being Attorney General, were put, and the House said, "Their oath, their own consciences to look into, not we to examine it," and they left him in the House, resolving that no future Attorney General should sit in it.
CHAIRMAN: That was the case which was raised as to whether the law officers of the Crown, who had for certain purposes seats in the House of Lords, had seats in the House of Commons.
Mr. BRADLAUGH: Not quite that. There was an obsolete statute of the 46th Edward III., which was only repealed eight or nine years ago, but which does not seem to have been attended to, by which all practising barristers and solicitors were disqualified for sitting for counties.
53. Mr. BERESFORD HOPE: Wilkes"s precedent being expunged, is it still legible in the Journal, and could it be produced for historical information?--Certainly.
54. Major NOLAN: With regard to the evidence about O"Connell, I think you stated that an Act was pa.s.sed to enable O"Connell and his co-religionists to sit in Parliament?--Not to enable O"Connell to sit in Parliament, but to enable Roman Catholics to sit in Parliament.
55. O"Connell was not allowed to take advantage of that Act until he was re-elected?--No, because he had been elected prior to the pa.s.sing of the Act, and the Act was clearly prospective.
56. Was the wording of that particular statute the reason why he was not allowed to take advantage of that Act?--Certainly; distinctly.
57. Would it be possible for the present or any future Parliament to pa.s.s an Act which would enable a man who had been elected previous to the pa.s.sing of the Act to sit in the House?--It is not for me to say what Act of Parliament might be agreed to by Parliament, but that is quite a distinct case. In that case Mr. O"Connell had actually been elected when the Catholic Relief Act was pa.s.sed, and there was a clause in the Act which made its operation prospective, and therefore distinctly, and, I believe, intentionally, excluding Mr. O"Connell from the benefits of the Act.
58. Then he was only prevented from taking advantage of that Act owing to the particular wording of that particular clause, and not owing to anything inherent in the House of Commons?--Yes; the decision was founded upon a literal construction of the words of the recent statute.
59. Mr. WHITBREAD: The case of Mr. O"Connell was this: that he declined to take the oath which was required of Members of Parliament elected at the time that he was elected, and that he requested to be allowed to take another form of oath; he was ordered to withdraw, and the House considered his case; is there anything that you have found in the Journals or in the Debates to indicate that if Mr. O"Connell had been willing to take the oath required of him by the House, the House would have objected to his so taking it?--Certainly not; they put it to him whether he would take the Oath of Supremacy, and upon the face of the Journal, it would seem that if he had taken that oath, he would have been admitted.
60. Mr. BRADLAUGH (through the Committee): After John Archdale had claimed to affirm, did not the House absolutely order him to attend in his place for the purpose of being sworn, and tender the oaths to him?--Mr. Archdale was ordered to attend, and the House being informed that Mr. Archdale attended according to order, his letter to Mr. Speaker was read. That letter is printed at full length among the precedents.
"And the several statutes qualifying persons to come into and sit and vote in this House were read, viz., of the 30 Car. II., 1 Will. and Mariae, and 7 & 8 Will. and Mariae. And then the said Mr. Archdale was called in, and he came into the middle of the House, almost to the table; and Mr. Speaker, by direction of the House, asked him whether he had taken the oaths, or would take the oaths, appointed to qualify himself to be a Member of this House; to which he answered, That in regard to a principle of his religion he had not taken the oaths, nor could take them; and then he withdrew, and a new writ was ordered."
61. Mr. Serjeant SIMON: With reference to what the Honorable Member for Bedford has put to you just now, Mr. O"Connell refused to take the Oath of Supremacy on the ground that it contained matter which he knew to be untrue, and other matter which he believed to be untrue?--Yes, he so stated.