§ VISCOUNT CLANCARTY(EARL OF CLANCARTY, in the Peerage of Ireland), presented himself at the table, with his Writ of Summons, to be sworn. His Lordship said, that in accordance with a communication he had made to the Lord Chancellor, he now presented himself to be sworn, adding, that although he retained the objections he had expressed at different times by petition to their Lordships' House to taking the Oath of Supremacy, yet, being desirous of resuming his place in the House, as be was unable as a member of the reformed part of the Catholic Church, conscientiously to take that oath, he was ready, if legally permitted so to do, to take the oath prescribed for persons professing the Roman Catholic religion, which he considered unobjectionable.
§ LORD CAMPBELL, the LORD CHANCELLOR, and Lord BROUGHAM expressed their opinions that this proposal could not be entertained.
The EARL of CLANCARTYthen referred to the Standing Order of the House providing that no oath should be imposed by a Bill or otherwise upon the Peers, with a penalty, in case of refusal, to lose their places and votes in Parliament, or liberty of debates therein; and stated that he was willing, although retaining objections to the oath, taken in its grammatical sense, to take and subscribe it secundum sensum imponentis, if he was informed authoritatively by the House what was the sense in which they imposed the oath.
Lord CAMPBELL and Lord BROUGHAMconsidered that the House could not give a legislative exposition of the meaning of the oath, which could only he done by a Bill in Parliament.
The DUKE of WELLINGTONconsidered, in that case, that it was most irregular, and contrary to all the rules and forms of the House, that Viscount Clancarty should be allowed to address them.
LORD CAMPBELLexpressed his opinion, that all that was intended by the oath was to deny the legal power of the Pope.
The EARL of WICKLOWconceived that no Protestant Peer could take the Oath of Supremacy without a mental reservation, and stated that he knew noble Lords who had taken that oath with a mental reservation. There was no clause in this oath—as was the case in the oath of abjuration—requiring that it should be taken without any mental reservation, and therefore Peers were enabled to take it with such reservation.
The LORD CHANCELLORexpressed his opinion in accordance with that of Lord Campbell, and observed that the question was entirely one of law.
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The following is a copy of the letter addressed by the EARL OF CLANCARTY to the Lord Chancellor:—
Garbally, Feb. 9.
My Lord—Having, with the Earl of Bradford, repeatedly represented, by petition to the House of Lords, that as Protestant Peers we were excluded from Parliament on account of conscientious objections to the form of the oath called 'the Oath of Supremacy,' and prayed, but without effect, to have those objections examined into with a view to their removal; I should, on merely personal grounds, be disposed to regard the silence of the House as a refusal, and be content to remain excluded from a seat in Parliament, to which I could only be admitted by affirming upon oath what I believe to be untrue; but public duty requires me, no less in vindication of the rights and privileges of the Peerage, than in obedience to the Queen's writ of summons, not to acquiesce in my exclusion from Parliament upon a ground alike unconstitutional and at variance with one of the most ancient of the standing orders of the House, still, I believe, unrepealed, to the effect 'that no oath shall be imposed, by any Bill or otherwise, upon the Peers, with a penalty in case of refusal to lose their places and votes in Parliament, or liberty of debates therein.' (See
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Standing Order of the House of Lords, dated 'Die Veneris, 30th Aprilis, 1675.') Having therefore determined, when presenting myself to be sworn at the table of the House, to state that I cannot conscientiously take and subscribe the oaths as at present administered to Protestant Peers, and that I therefore claim to be admitted on taking the oath prescribed for persons professing the Roman Catholic religion, which oath I consider unobjectionable, and am prepared to take, if I may legally do so, as a member of that reformed part of the Catholic Church that is by law established within this realm, I have felt that it might be convenient, as well as most respectful towards the House and to your Lordship, as Speaker, to notify to you such my intention.
My objections to taking the oath of supremacy, more fully explained in the three publications I have the honour of transmitting to you, may be briefly stated to have arisen from its apparent inconsistency with certain provisions of two Acts of the late Parliament, viz., the Irish Charitable Bequests Act, and an Act (local) for the maintenance of certain cemeteries in the county of Dublin, the former involving a legislative acknowledgment of the establishment of a branch of the Church of Rome in Ireland, and giving, in certain cases, a legal efficacy to the exercise of the foreign ecclesiastical authority by which it is governed; and the latter expressly recognising the spiritual jurisdiction in the diocess of Dublin of a succession of archbishops in known ecclesiastical subjection to the Pope. I cannot pretend to interpret with certainty the exact legal bearing of Acts of Parliament which afford subjects of controversy among lawyers, but, assuming Parliament itself as the best interpreter of its own Acts, my belief of the inconsistency of the Bequests Act, with the denial the oath contains of all foreign ecclesiastical authority, is much confirmed by the concluding section of the Ecclesiastical Titles Assumption Act of the last Session, the most recent, and therefore the most binding exposition of the Legislature on the subject of foreign jurisdiction. The last clause of that Act contained a proviso to the effect, that nothing therein contained should 'be construed to annul, repeal, or in any way affect any provision contained in an Act passed in the 8th year of Her present Majesty, entitled 'An Act for the more effectual application of Charitable Donations and Bequests in Ireland,' thereby implying that the provisions were an exception to the general law with respect to foreign ecclesiastical jurisdiction. An oath I am aware is only binding in the sense in which it is imposed and known to be taken; but, in the absence of any exposition more authoritative, that sense is only to be gathered from the language of the oath itself. Regarding, therefore, the oath of supremacy in the sense its wording conveys, I am constrained to refuse it; but, should this objection be met by an authoritative exposition from your Lordship on the woolsack, or from the Speaker of the House for the time being, of the legal construction of the oath, or the sense in which it is to be understood as administered, I can have no doubt that then, viewing the oath secundum sensum imponentis, and not in the sense its wording appears to convey, I should be enabled to comply with the requirement of the law, by taking and subscribing the oaths in the usual manner.
I purpose leaving this place on Monday next,
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and, should I arrive in sufficient time on the following day, shall present myself to be sworn, unless I should in the meantime hear from your Lordship anything to alter my intention; and I need hardly say, that should your Lordship's advice he afforded in the matter, it would he received with great deference and respect.—I am, &c.
CLANCARTY.
The Lord High Chancellor, House of Lords.