§ Mr. C. W. Wynnrose for the purpose of calling the attention of the House to the report of the Committee appointed to examine into the precedents, if any, which exist, for receiving the affirmation of Quakers, in lieu of the oaths which are usually taken by Members of the House. Conceiving that this was purely a judicial question, he wished, before proceeding further, to deprecate any discussion on abstract principles, relative to the expediency or inexpediency of administering oaths to Members, previous to their taking their seats in the House. They were not sitting, in the present case, in a legislative, but in a judicial capacity; and it was, therefore, their duty to consider, not what the law ought to be—not what it might most advantageously be rendered, but what it is. They must recollect that they were now called upon to administer the provisions of an Act of Parliament of the construction of which they were not the sole judges, inasmuch as, by the enactments of this Statute, it was in the power of any com-mon informer to bring the question before a court of justice, in order to ascertain whether a person taking his seat in that House, without having previously subscribed to the oaths, was not liable to pay the penalties provided by the Statute. The real merits of this case appeared to him to lie in a very small compass, and to depend upon the construction of the 22nd George 2nd, c. 46, which was appended to the Report. The only doubt which could be raised upon the subject proceeded from the decision which the House had previously come to in the case of Mr. Archdale; which decision, however, was made, not under the Act of George 2nd, but under the Act of 7 and 8 Will. 3rd, c. 34. Now it appeared to him that there were real and material distinctions between the two cases, as the passing of several Acts of Parliament, since that time, had contributed, in a great degree, to alter the grounds upon which that case depended; but, at the same time, he would say, that the words of the Act of the 7th and 8th William 3rd, were so strong, that if he had been in the House when Mr. Archdale's case was decided, he would have voted against the majority. As far as the decisions of courts of justice could influence the judgment of the House, he 640 might state, that all their decisions since that period had been in favour of receiving the affirmation of Quakers in all cases specified by that Act of Parliament; and, indeed, it appeared to him, that the 7th and 8th William 3rd, had removed all doubts whatsoever upon the subject. That Act commenced by reciting that "divers Dissenters, commonly called Quakers, refusing to take an oath in courts of justice and other places, are frequently imprisoned, and their estates sequestered, by process of contempt issuing out of such courts, to the ruin of themselves and families; for remedy whereof be it enacted." It might be argued that it was not intended to extend this Statute beyond the objects and conditions recited in the preamble of it, but it went on to enact "that from and after the 4th day of May, which shall be in the year of our Lord 1696, every Quaker within this kingdom of England, dominion of Wales, or town of Berwick-upon-Tweed, who shall be required, upon any lawful occasion, to take an oath, in any case where, by law, an oath is required, shall, instead of the usual form, be permitted to make his or her solemn affirmation or declaration in these words following." It appeared to him that this Act removed all doubts on the subject, and that it was as extensive in its application, as it possibly could be. It was true, that in the case of Mr. Arch-dale, which occurred after the passing of this Act, though he expressed his "willingness to make his declaration of fidelity, if it would be accepted in lieu of the oath," the House required him to take the oath, which, on his refusing to do, the House decided that he was not entitled to take his seat. He came next to the 22nd of George 2nd, c. 46, which Act particularly regards the present case, passing over the intermediate Acts that had been passed, as they all referred to, and did not extend in any great degree, the provisions of the Act of 7th and 8th William 3rd. The 22nd George 2nd recites that 'whereas a doubt hath arisen whether the solemn affirmation or declaration of the people called Quakers, prescribed by an Act made in the eighth year of the reign of his late Majesty King George 1st, entitled "An Act for granting the people called Quakers such forms of affirmation or declaration, as may remove the difficulties which many of them lie under," can be allowed or taken instead of an 641 oath, in any case wherein by any Act or Acts of Parliament an oath is required, unless the said affirmation or declaration be by such Act or Acts of Parliament particularly and expressly directed to be allowed and taken instead of such oath; by reason of which doubt, the testimony of the said people called Quakers is frequently refused, whereby the said people and others requiring their evidence are subjected to great inconveniences.' Such was the recital of that Act. It then went on to enact as follows, in terms so general and so universal, that it would be impossible for persons wishing to render it of wider application to resort to more comprehensive words—'That in all cases wherein any Act or Acts of Parliament now in force, or hereafter to be made, an oath is or shall be allowed, authorized, directed, or required, the solemn affirmation or declaration of any of the people called Quakers, in the form prescribed by the said Act made in the eighth year of his said late Majesty's reign, shall be allowed and taken instead of such oath, although no particular or express provision be made for that purpose in such Act or Acts.' It appeared to him, that if doubts had been raised in the minds of any Gentlemen in consequence of the decision in Archdale's case, this enactment should altogether remove them. The Act proceeds to enact that 'the said solemn affirmation or declaration so made as aforesaid shall be adjudged and taken, and is thereby enacted and declared to be of the same force and effect, to all intents and purposes, in all courts of justice and other places, where by law an oath is or shall be allowed, authorized, directed, or required, as if such Quaker had taken an oath in the usual form. This enactment was so extensive, so universally applicable to all cases in which oaths were administered, that under it the gentleman now applying to take his seat in this House might, if ballotted for upon an Election Committee, act as a member of such Committee, taking, instead of the oath required of its Members, his solemn affirmation or declaration to the same effect. He believed, that doubts had however arisen in the minds of some hon. Members with regard to the present case, in consequence of what took place in the case of the present hon. and learned member for Dublin, when first elected for the county of Clare; and those gentlemen 642 founded their doubts upon this subject upon the following passage in Blackstone, namely—that "a statute which treats of things or persons of an inferior rank cannot by any general words be extended to those of a superior. So a statute treating of 'deans, prebendaries, parsons, vicars, and others having spiritual promotion,' is held not to extend to bishops, though they have spiritual promotion, deans being the highest persons named, and bishops being of a still higher order." That doctrine was quite correct where general words only were employed in the statute; but in the present instance, the words of the statute were express and particular: it declares the affirmation of the Quaker to be of the "same force and effect (as an oath) to all intents and purposes in all courts of justice and other places, where by law an oath is or shall be allowed, authorized," &c. There was no doubt that the two Houses of Parliament were superior to all other courts in their privileges and rights, and that those privileges and rights could not be limited by implication, but only by express words and enactments. He would ask, however, whether it were not notoriously the practice, in the House of Lords, when sitting in their legislative, and not their judicial, character, to examine Quakers on their affirmation or declaration, with the view of deciding, upon their evidence, as to the expediency or inexpediency of passing a certain bill into a law. He was, indeed, informed, that the gentleman whose case was under consideration, had himself been frequently so examined before the House of Lords. Upon the same principle, it was the bounden duty of the House to allow Mr. Pease to make his declaration at the Table, in lieu of taking the oaths required from other Members. If the case were less clear than it really was, he was of opinion that, in deciding upon it, it would be the duty of the House to lean to the side of the claimant, and—in conformity with those Acts of Parliament under which the affirmation of Quakers was, in all courts, and upon all occasions, in criminal as well as in civil cases held to be sufficient—to determine that it was also sufficient here. If, indeed, any material doubt existed on the subject, he should recommend the passing of an explanatory or declaratory Act with regard to it; but it appeared to him that no sufficient grounds existed in the present instance 643 to call for such a course of proceeding on the part of the House, whose plain duty he considered it to be, to admit the hon. Gentleman to his seat, on making his solemn declaration at the Table. He knew that some hon. Members doubted the applicability of the 22nd George 2nd to this case, seeing that the words of that Act had been so frequently introduced in subsequent Acts of Parliament, authorizing the taking of the affirmation of Quakers in particular cases. Now, to any Gentleman conversant with the statute-book it would be unnecessary for him to mention how often the provisions of an Act were unnecessarily recited in succeeding Acts of Parliament. He would just mention a remarkable instance of such supererogatory legislation. By the 6th Anne, c. 23, it was enacted that 'any person who shall refuse to take the oath last hereinbefore mentioned, or, being a Quaker, shall refuse to declare the effect thereof upon his solemn affirmation, as directed by an Act of Parliament made in the 7th year of his late Majesty, shall not be capable of giving his vote at any election of a Member of Parliament.' Now, just four years afterwards, an Act was passed (the 10th of Anne) which enacted that 'Quakers shall be capable of voting at elections of Members to serve in Parliament after taking the declaration prescribed for them by law,' and it then went on to recite the whole of the 6th of Anne that he had just quoted. He would not detain the House further on this subject; indeed, he was only sorry that he had found it necessary to trespass upon its time so long. He should reserve any other observations which he might have to make, for the purpose of offering them in reply to any objections which hon. Members might start, if such should be the case, against the present Motion, and he would therefore conclude by moving—"That Joseph Pease, Esq., is entitled to take his seat on making his solemn affirmation and declaration at the Table, in lieu of those oaths which were demanded from the other Members of that House."
§ The Solicitor Generalsaid, that it was with very great pleasure indeed, that he rose to second the Motion of the right hon. Gentleman. After the able and lucid manner in which that right hon. Gentleman had explained the law upon the subject to the House, it would ill become him (the Solicitor General) to oc- 644 cupy its attention for many minutes. He felt it his duty, however, to state, that having looked into the law upon the subject, he had, upon the maturest and fullest consideration of it, arrived at the clear conclusion that Mr. Pease was entitled, upon making his affirmation at the Table, to take his seat. Originally, by the common law of the land, every person that was duly elected was entitled to take his seat in that House without taking any oaths whatever. Until the 5th of Elizabeth, c. 1, was passed, no oaths were required by the common law from Members taking their seats in Parliament. Now, as that statute, and the other statutes imposing oaths, were infringements on the common law of the land, and were, besides, penal statutes, they must be literally and strictly construed, whereas the remedial laws, relaxing such provisions, and so far restoring in a degree the common law right, were to be liberally construed. That maxim of the law was especially applicable to the case of the Quakers. By the 30th of Charles 2nd, Quakers were, with other Dissenters, prevented from sitting in Parliament. It was clear, therefore, that at the time when the 7th and 8th William 3rd were passed, Quakers could not sit in Parliament; but he agreed with the right hon. Gentleman in the opinion that that Act, if its provisions were construed liberally, as they should be, enabled Quakers to take their seats in either House of Parliament. Two subsequent decisions, founded on that Act of Parliament, would show how it had been construed in the courts of law. A case which occurred a short time after the passing of that Act, in the reign of William 3rd, was decided before Mr. Chief Justice Holt, and that learned Judge then decided that in all cases where oaths were required, the affirmation of a Quaker could be taken, with the exception of the exceptions made in the Act itself—viz: in criminal cases, in evidence before Juries, and in the oaths prescribed to be taken by persons appointed to offices under the Government. In a case which occurred in the reign of George 3rd, Lord Mansfield said, that "he could not even start a doubt, the point was so clear." There were those two decisions of the Court of King's Bench to show, that the relaxing Acts should be construed liberally, while the penal statutes should be subjected to a strict and literal construction. 645 But if any doubt existed as to the 7th and 8th William 3rd, he thought that the 22nd George 2nd was calculated to remove all such doubts. It was true, as The right hon. member for Montgomery had stated, that superior courts, or persons of superior rank, were not to be concluded by Acts of Parliament that merely mentioned courts, or persons of an inferior order. It was, besides, true, as a maxim of law, that the King was not bound by an Act of Parliament unless he was expressly mentioned in it, and that was intended for the purpose of preserving the prerogatives of the Crown; but then the King was bound by an Act of Parliament where the Legislature evidently intended to include the King in it. Now, it was plain that the intention of the Legislature in passing the 22nd George 2nd, was to put Quakers on a footing with all other Dissenters in England, with the exception of Catholics, who were, of course, specially excluded from the benefits extended to other Dissenters. That being the case, the Act should be construed in accordance with the intention of the Legislature in passing-it. He hoped that the House would come to a unanimous decision in favour of this Gentleman's claim. It would give him the utmost satisfaction to find, that in so full a House it should be unanimously decided that so enlightened and so loyal a class of persons as the Quakers were entitled to a representation in that House.
Motion carried, amidst loud cheers from all parts of the House.