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
