Commons Sitting of 18 May 1849

MINUTES.
Public Bills.—Reported.—Parliamentary Oaths; Defects in Leases.
PETITIONS PRESENTED. By Sir R. H. Inglis, from Maidstone, against the Parliamentary Oaths Bill.—By Mr. Muntz, from Birmingham, for Universal Suffrage.—By Mr. G. Hamilton, from Grangegorman, for an Alteration of the Church Temporalities (Ireland) Act.—By Sir John Hope, from the County of Edinburgh, against the Marriages Bill.—By Mr. William Fagan, from Cork, for an Alteration of the County Cess (Ireland) Act.—By Mr. Cobden, from Hertford, for Reduction of the Public Expenditure, and for Reform of Parliament.—By Mr. Hodgson, from Carlisle, respecting Taxation of Railways; and from Carlisle, for the Suppression of the Slave Trade.—By Mr. Aglionby, from Ellenborough, for the Copyholds Enfranchisement Bill.—By the Marquess of Granby, from Stamford, for an Alteration of the Law respecting Freemen's Lands.—By Mr. Foley, from the Guardians of the Bromsgrove Union, for an Alteration of the Poor Law,—By Mr. Anderson, from the Parochial Board of Sandsting and Aithsting, in Shetland, for an Alteration of the Poor Law (Scotland); and from Kirkwall, against the Registering Births, &c. (Scotland) Bill, and Marriage (Scotland) Bill.

PRIVILEGE—PRESENCE OF STRANGERS.
MR. J. O'CONNELL: Mr. Speaker. I beg to give a notice upon a matter concerning the privileges of this House, connected with the last discussion upon the Parliamentary Oaths Bill. In consequence of having seen in the Times newspaper another breach of the privileges of this House by a report of the last discussion upon the Parliamentary Oaths Bill, in which report not only were the rules of the House violated, but the arguments of some Catholic Members were entirely omitted, whilst the arguments against them were duly reported, I shall, to-night, when the discussion upon the Parliamentary Oaths Bill comes before this House, endeavour to ascertain if there be strangers present, and if I find

663
that to be the case, I shall draw the attention of the House to that fact.

CONVICTS IN VAN DIEMEN'S LAND.
SIR W. MOLESWORTHasked the hon. Gentleman the Under Secretary for the Colonies, whether it was the intention of the Government to send any more convicts to Van Diemen's Land? Also whether any despatches had been received from the Governor of that colony to the effect that there was no more room for convicts there? If so, would there be any objection to lay them upon the table?
MR. HAWESreplied, that it was the wish of the Government to send to Van Diemen's Land as few convicts as possible, and those only at right and proper times, under strict regulations; but he could give no pledge as to the intentions of the Government to cease sending them. With regard to the question relative to any despatches from the Governor, indicating that there was no more room for convicts there, none had been received to which such an interpretation could be given; but as he was about to lay upon the table a fresh collection of papers relative to transportation, his hon. Friend and the House would be able to put their own construction upon them.—Subject at an end.

AFFAIRS OF SICILY.
MR. BANKESsaid, he had given notice to the noble Lord the Secretary of State for Foreign Affairs that he would put two questions to him to-day respecting certain transactions relative to Sicilian affairs; but as the noble Lord was not in his place, he would ask it from the noble Lord at the head of the Government. In answer to a former question which he (Mr. Bankes) had put, the noble Lord the Secretary for Foreign Affairs stated that the united Cabinet of the United Kingdom of Great Britain and Ireland recognised the separate Government of Sicily, independent of the Government of the King of the Two Sicilies. He now wished to know from the noble Lord whether the Cabinet still recognised an independent Sicilian Government—that was, a Government independent of the Government of the King of the Two Sicilies?
LORD J. RUSSELLsaid, his noble Friend, so far as he recollected, had stated that there was at the time a negotiation being carried on with the de facto Government of Sicily. That de facto Government no longer existed, and he believed there was no organised Government there.
MR. BANKESsaid, the noble Lord the Secretary for Foreign Affairs having arrived in his place, he would put another question to him. It was, whether the noble Lord was aware that, as the result of the permission given by him to transport ordnance from Her Majesty's stores for the avowed use of the Sicilian insurgents, and of the encouragement given to those parties who formed the insurgent Government, the following circumstances had arisen. A British officer, who had formerly held a command in Sicily when the late Lord William Bentinck was there, and afterwards been engaged in active service during the Peninsular war, understanding that guns had been furnished from the Ordnance stores at Woolwich, and observing also other encouragement given to the Sicilians, accepted a command under the Sicilian Government. He undertook a commission to this country to raise troops, and to procure arms for the Sicilians. Those arms and troops were partially embarked in a steamer in the Thames. Two steamers were engaged, one to sail from the Thames, and the other to sail from Liverpool. The steamer engaged to sail from the Thames was detained by order of the Board of Customs. A question arose concerning the seizure, and the matter was referred to the Treasury. The Treasury, after duly considering the subject, and after having (as he understood) had communications with the noble Lord—the noble Lord having had communications, as it had been stated to him, but he might be mistaken in that respect, as he had received no information from the Minister of the King of the Two Sicilies, though, as he believed, communications were made by the noble Lord to the Minister of the King of the Two Sicilies, to the effect of that detention of the vessels—declined to interfere. The vessel, so far as related to any act of Government, was now at liberty to proceed to Palermo. The other vessel, from Liverpool, proceeded to Palermo. She reached that port just at the critical period when it suited the Minister of War there, and the Sicilian Government, whom the noble Lord had recognised, got on board with some of their coadjutors, and sailed to Marseilles. When they reached Marseilles, the Ministry of France, taking a different view from that of the noble Lord, with respect to the claims of the King of the Two Sicilies, detained the vessel, and she was now at Marseilles. He asked the noble Lord whether he was

665
aware of these circumstances, which he (Mr. Bankes) stated upon authority that appeared to him to he accurate; and whether he considered that the Government had enforced those laws which it was in their power to enforce, for the detention of vessels avowedly going to disturb the peace of a friendly country?
VISCOUNT PALMERSTON: The hon. and learned Gentleman, under the guise of asking me a question, has given myself and the House almost as much information as if he had been "our own correspondent." I am not able to follow the hon. and learned Gentleman through the whole of the details regarding what the French Government has done at Marseilles. I do not know whether my noble Friend stated, in answer to the first question, that the persons who composed the Provisional Government at Palermo, have all quitted Palermo, and according to the last accounts there was no organised Government; but the population were in possession of arms, and were intending to defend themselves against the Neapolitans. The Neapolitan general had got within a very short distance from the town; and I imagine that some communication would be the result. In answer to the question with regard to the guns—first of all, I shall afford, I am sure, great satisfaction to the hon. and learned Gentleman by informing him that I have ascertained what has become of those guns. I find they had been sent to Syracuse, where they were not used at all, and they are there now in the possession of the King of the Two Sicilies. Next, with regard to the officer in question, the hon. and learned Gentleman says that, in consequence of these guns going off, and in consequence of divers other acts and misdeeds of Her Majesty's Government, a British officer had been induced to come to this country for the purpose of raising men. It is quite true, as he states, that Colonel Aubrey was sent to this country for the purpose of raising men; but I believe I have good reason to say no men were raised by him, and that his commission was an entire failure. With regard to the vessels, it is true that one steamer did leave from Liverpool, and that it arrived at Palermo. With regard to the vessel that was fitting out in the Thames, the Bombay, application was made on the part of, and by, the Neapolitan Minister here, for her detention, upon the ground that she was equipping in violation of the Foreign
666
Enlistment Act, and that, therefore, she ought to be detained. That matter was referred to the Treasury, and to the Customs. The Foreign Office has nothing to do with the execution of the law of this country, except making known to the proper department that the law has been violated. The whole transaction was carried on between the Treasury, the Customs, and the law officers of the Crown; and it was in consequence of the legal advice given to them, that there was no just ground for further detaining the Bombay, that the Bombay was released. Subject dropped.

RIGHTS OF NATIONALITY.
MR. ANSTEYwished to ask the noble Lord the Secretary of State for Foreign Affairs, whether he would lay on the table of the House the copy of a letter of the 22nd November, 1848, addressed by Under Secretary Lord Eddisbury to Mrs. Castellari, stating that an Englishwoman by her marriage with a foreigner adopts the nationality of her husband, and even after widowhood loses all claim by light to the assistance of Her Majesty's Consul in the place where her husband died, in recovering or ascertaining the state of his property there? And whether he would also lay on the table the instructions which determine the conduct of Her Majesty's Consuls in such cases? He also wished the noble to state whether he had any objection to lay on the table a letter from a Mr. Paget to Lord Ponsonby, with respect to grievances sustained by his wife, Mrs. Paget, she being a Hungarian, and not naturalised?
VISCOUNT PALMERSTONhad no objection to lay the letters on the table of the House. The subject had been fully considered, and had been brought before the Consul, and it had been decided that there was no right, according to usage and practice, on the part of the British Consul, to take any cognisance of the property of the individual in the case alluded to. Instructions had been sent to communicate that fact to the widow, and that the British Government had no right to interfere in the matter, as her claim must fall under the cognisance of the court of the country of which her husband was a native. With regard to the second case, that of Mr. Paget, he would look and see if there was any such letter in his office, and, if there was, he should have no objection to produce it. But that case was essentially

667
very different to the one previously referred to by the hon. and learned Member. A British lady, who married a foreigner, lost, in a foreign country, her nationality. She followed the nationality of her husband. But in this case it was an Austrian subject who had married a British husband, and it was in the Austrian dominions that the question arose. Her marrying a British subject could not, while she remained in her own natural allegiance, divest her of the character which she acquired by birth. The general doctrine, that if a lady of one country married the subject of another, she followed the nationality of her husband, was laid down by the legal advisers of the Crown; and it was a doctrine which in the abstract was most reasonable.

WILLIAM SMITH O'BRIEN.
Copy of the Transcript, Assignment of Errors, and Rejoinder; together with the Judgment and Tenor of Judgment in the Writ of Error: In the House of Lords-William Smith O'Brien, Plaintiff in Error, and the Queen, Defendant in Error [communicated from the Lords 15th May] read.
LORD J. RUSSELL: I now move, Mr. Speaker, that the record in the case of William Smith O'Brien be now entered as read.
MR. SPEAKERput the question, and the record was ordered to be entered as read.
LORD J. RUSSELL: I have now to move, Sir, that it appears by the said record that William Smith O'Brien, a Member of this House, has been convicted of high treason. I will state the course I propose to take upon this occasion, which is, I believe, without a precedent, but being without a precedent, it is a case which will relieve me from any necessity of dwelling upon the heinousness of the offence, or of showing this House that it is an offence which necessarily incapacitates a person who has hitherto been a Member of this House from continuing to hold a seat in it. Sir, the precedents which are upon our journals which can at all have any reference to this case are of two kinds. The first has respect to cases of high treason; and on this point the first case that I will mention is that of Mr. Forster, in 1715. On the 10th of May, 1715, I find the following entry on the journals:—
"That T. Forster, Esq., a Member of this House, having been taken in open rebellion, bear
668
ing arms against His Majesty, be expelled this House. Ordered, that Mr. Speaker do issue his warrant, &c., to make out a new writ for electing, &c., for Northumberland, in the room of T. Forster, Esq., expelled this House."
On the 22nd of June, 1716, it is stated that—
"The House being informed that J. Carnegie, Esq., who is returned a Member of this House for the shire of Forfar, had been in arms in Scotland on the part of the rebels during the late rebellion, and that there were two persons at the door who could prove the same, they were called in and examined at the bar, and gave the House an account that they had seen the said Mr. Carnegie in arms at Perth on the part of the rebels; and it was resolved mem. con. that the said J. Carnegie be expelled this House."
There are cases where the House acted upon information only, and did not wait for the trial of the parties. We have other cases with regard to which there might be some doubt, from the nature of the offences committed; but they do not bear on the case now before us, being cases of perjury, conspiracy, and various offences of the nature of misdemeanour. Now, Sir, the present case of William Smith O'Brien is one, with regard to this House, so far as I have been able to ascertain, without precedent. It is the case of a Member with regard to whom no proceedings had been taken when it was said he was in arms against Her Majesty, or when he was taken a prisoner. But this House having waited until the conclusion of the proceedings, when it appears, from the record which has been just entered as read, that William Smith O'Brien was arraigned as for high treason in Ireland, and convicted of that high treason, and that a writ of error having been brought against the conviction, all the pleas were overruled, and the judgment was confirmed by the House of Lords. In that respect, therefore, it is quite unnecessary that I should say a word with regard to the heinousness of the offence. Nothing can be more complete" than the conviction and judgment of the House of Lords. With regard to the consequences which, in the next place, should follow from such an offence, I need only say, it is an offence totally unlike those cases of misdemeanour to which I have referred. It is the offence of high treason, with regard to which all writers upon constitutional law, from Lord Coke downwards, have declared that it is the law of Parliament, that a person guilty of high treason or felony is incapable of sitting in this House. Such is the law of Parliament. I believe there is no one who will dispute

669
that law, and, therefore, I need not enlarge on that part of the question. The consequence is, therefore, that William Smith O'Brien, having been convicted of high treason, is a person who is civilly dead. He cannot he elected to this House, and he could not hold a seat in this House if elected. I believe, therefore, that it would not be proper that you should make this a precedent, and proceed to the expulsion of a Member under the circumstances, as I at first believed. I have considered the case, and consulted with other persons—I may, perhaps, allude to the chair, and say that I have had the advice of the right hon. Gentleman in the chair. I have, therefore, come to the clear conclusion, that the course which this House ought to take, is that of agreeing to the resolutions which I now propose. I beg, in the first instance, to move—
"That it appears, by the Record communicated from the House of Lords, that William Smith O'Brien has been convicted of high treason."
If the House agrees to that resolution, I shall then proceed to move that a new writ shall issue for the county of Limerick.
SIR F. THESIGERwished to state a single objection with regard to the wording of the resolution. The words were—"that William Smith O'Brien has been convicted of high treason." Now, the noble Lord might be aware that attainder did not follow on conviction, but on the judgment which followed; and he would therefore beg to suggest that the words of the resolution should be altered into "attainted of high treason." He thought the noble Lord could not proceed with the second resolution, which implied that William Smith O'Brien was civilly dead, unless the word "attainted" were introduced into the first resolution.
The ATTORNEY GENERALsaid, that possibly a middle course might be the best to take, and he would therefore suggest that the words "adjudged guilty" should be substituted for "convicted."
"Resolved—That it appears by the said Record, that William Smith O'Brien, a Member of this House, has been adjudged guilty of High Treason."
LORD J. RUSSELLthen moved—
"That Mr. Speaker do issue his warrant to the Clerk of the Crown to issue a new writ for the county of Limerick, in the room of William Smith O'Brien."
MR. F. O'CONNORsaid, that, after seeing the resolution as it originally stood,
670
it was his intention to move as an Amendment that an humble address be presented to Her Majesty, praying that she would be graciously pleased to extend a free pardon to William Smith O'Brien. He had not intended to introduce that Amendment by an inflammatory speech; but having ascertained that the relatives of Mr. Smith O'Brien wished that his case should remain in the hands of Her Majesty's Ministers, he thought it would be exceedingly improper for any individual Member of the House to take up the subject, and he would, therefore, not move his Amendment.
"Ordered—That Mr. Speaker do issue his Warrant to the Clerk of the Crown in Ireland, to make out a New Writ for the electing of a Knight of the Shire to serve in this present Parliament for the County of Limerick, in the room of William Smith O'Brien, adjudged guilty of High Treason."

PARLIAMENTARY OATHS BILL.
The House then went into Committee on this Bill; Mr. Bernai in the chair.
The further consideration of the first clause was about being resumed, when
MR. J. O'CONNELL,directing his attention towards the reporters' gallery, said: I perceive, Sir, that there are strangers in that gallery.
The CHAIRMAN: Strangers must withdraw.
After the exclusion of strangers,
COLONEL THOMPSONmoved that they should be re-admitted.
MR. J. O'CONNELLopposed the Motion.
COLONEL THOMPSONthen gave notice that he should bring the subject before the House, in order to provide against a similar occurrence for the future.
MR. BANKESbrought forward his proposal that the oath to be taken by Members of Parliament should be made uniform by the Protestant Members making the same declaration of allegiance or non-resistance to the Established Church which has been required from Roman Catholics. He urged the impossibility that any Dissenters who made no objection to making a declaration of allegiance to the Queen, should object to making the proposed declaration in respect of the Ecclesiastical Establishment, inasmuch as it was notorious that one was as much a part of the law and the constitution as the other. And he enlarged upon the benefits of uniformity, and the advantages which would arise from thus sinking all differenees be-

671
tween the Catholic and the Protestant Dissenter.
Amendment proposed—
"To add to the Oath proposed to be taken by Members of the Houses of Parliament not being persons professing the Roman Catholic persuasion, the same provisions relating to the Protestestant Established Church which is contained in the Oath now taken by Roman Catholics."
LORD J. RUSSELLthen proceeded to expose the weakness of the expectation, that an oath which had always been bitterly complained of by the Catholics, and which others had only consented to impose upon them under the impression of a strong necessity, should be voluntarily submitted to by Protestant Dissenters, with no strong necessity at all.
COLONEL THOMPSONsaid, that one way of proclaiming uniformity was by making things alike good, and another by making them alike bad. The Roman Catholic oath had always been complained of by the Catholics as an enormous evil and injustice, because it was continually made the pretext for a charge of perjury against them when they voted on any subject where ecclesiastical matters were concerned. Was it intended that Protestant Dissenters were to consent to take the same bad oath, and was it intended they should be charged with perjury the first time any of them mentioned church
MR. VERNON SMITHsaid, the true point to which change should be directed, would be to make all the oaths alike by reducing them all to a simple declaration of allegiance to the existing occupant of the Throne.
Motion withdrawn.
Amendment proposed to the Oath—
"To leave out the words, 'and that I do not believe that the Pope of Rome, or any other Foreign Prince, Prelate, Person, State, or Potentate hath, or ought to have, any temporal or civil jurisdiction, authority, or power within this Realm; and that I will defend, to the utmost of my power, the settlement of property within this Realm as established by the Laws.' "
Question put, "That the words, 'and that I do not believe that,' stand part of the Oath.'"
The Committee divided:—Ayes 62; Noes 164: Majority 102.

List of the AYES.

Acland, Sir T. D.

Bennet, P.

Adderley, C. B.

Bentinck, Lord IL

Arkwright, G.

Beresford, W.

Baillie, H. J.

Blandford, Marq. of

Bankes, G.

Boldero, H G.

672

Bromley, E.

Law, hon. C. E.

Brooke, Lord

Lindsay, hon. Col.

Buller, Sir J. Y.

Lopes, Sir R.

Burrell, Sir C. M.

Lowther, H.

Duckworth, Sir J. T. B.

Morgan, O.

Duncombe, hon. A.

Mullings, J. R.

Egerton, Sir P.

Mundy, W.

Fox, S. W. L.

Napier, J.

Fuller, A. E.

Neeld, J.

Galway, Visct.

Newdegate, C. N.

Godson, R.

O'Connell, J.

Gore, W. R. O.

Pakington, Sir J.

Granby, Marq. of

Palmer, R.

Greenall, G.

Pennant, hon. Col.

Gwyn, H.

Plowden, W. H. C.

Hamilton, G. A.

Portal, M.

Heald, J.

Repton, G. W. J.

Heneage, G. H. W.

Scott, hon. F.

Henley, J. W.

Spooner, R.

Hildyard, T. B. T.

Stafford, A.

Hill, Lord E.

Stanley, hon. E. H.

Hope, Sir J.

Vyse, R. H. R. H.

Hornby, J.

Waddington, H. S.

Hotham, Lord

Walpole, S. H.

Jolliffe, Sir W. G. H.

Jones, Capt.

TELLERS.

Lacy, H. C.

Goring, C.

Lascelles, hon. E.

Harris, Capt.

List of the NOES.

Adair, R. A. S.

Elliot, hon. J. E.

Aglionby, H. A.

Evans, J.

Alcock, T.

Evans, W.

Anderson, A.

Fergus, J.

Armstrong, Sir A.

Foley, J. H. H.

Armstrong, R. B.

Forster, M.

Baring, rt. hon. Sir F. T.

Fortescue, hon. J. W.

Barnard, E. G.

Fox, R. M.

Barrington, Visct.

Fox, W. J.

Barron, Sir H. W.

Freestun, Col.

Bass, M. T.

Gaskell, J. M.

Bellew, R. M.

Gibson, rt hon. T. M.

Berkeley, hon. Capt.

Gladstone, rt. hn. W. E.

Berkeley, O. L. G.

Goulburn, rt. hon. H.

Birch, Sir T. B.

Grace, O. D. J.

Bouverie, hon. E. P.

Graham, rt. hon. Sir J.

Bright, J.

Granger, T. C.

Brotherton, J.

Greene, T.

Brown, W.

Grenfell, C. P.

Bunbury, E. H.

Grey, rt. hon. Sir G.

Butler, P. S.

Grosvenor, Lord R.

Callaghan, D.

Grosvenor, Earl

Campbell, hon. W. F.

Hallyburton, Ld. J. F. G.

Carter, J. B.

Hastie, A.

Cavendish, hon. G. H.

Hawes, B.

Clay, J.

Hayter, rt. hon. W. G.

Clay, Sir W.

Headlam, T. E.

Clements, hon. C. S.

Heneage, E.

Cocks, T. S.

Henry, A.

Colebrooke, Sir T. E.

Herbert, H. A.

Crowder, R. B.

Herbert, rt. hon. S.

Dairymple, Capt.

Heywood, J.

Davie, Sir H. R. F.

Hodges, T. L.

Dawson, hon. T. V.

Hope, A.

Denison, J. E.

Howard, P. H.

D'Eyncourt, rt. hn. C. T.

Hughes, W. B.

Divett, E.

Humphery, Ald.

Drummond, H.

Jervis, Sir J.

Duncan, G.

Kershaw, J.

Dundas, Adm.

Kildare, Marq. of

Dundas, Sir D.

King, hon. P. J. L.

Ellice, E.

Labouchere, rt. hon. H.

Ellis, J.

Langston, J. H.

673

Lascelles, hon. W. S.

Rice, E. R.

Lemon, Sir C.

Rich, H.

Lewis, rt. hon. Sir T. F.

Robarles, T. J. A.

Lewis, G. C.

Roche, E. B.

Lincoln, Karl of

Roebuck, J. A.

Lushington, C.

Romilly, Sir J.

M'Cullagh, W. T.

Russell, Lord J.

M'Gregor, J.

Russell, F. C. H.

Meagher, T.

Salwey, Col.

Maitland, T.

Sandars, J.

Marshall, J. G.

Scholefield, W.

Martin, J.

Scully, F.

Martin, C. W.

Shafto, R. D.

Matheson, A.

Shell, rt. hon. R. L.

Maule, rt. hon. F.

Shelburne, Earl of

Milner, W. M. E.

Smith, rt. hon. R. V.

Milnes, R. M.

Smith, J. A.

Monsell, W.

Somers, J. P.

Morris, D.

Stanton, W. IL

Mostyn, hon. E. M. L.

Strickland, Sir G.

Mulgrave, Earl of

Stuart, Lord J.

Norreys, Lord

Thesiger, Sir F.

O'Connor, F.

Thicknesse, R. A.

Ogle, S. C. H.

Thompson, Col.

Osborne, R.

Thornely, T.

Oswald, A.

Towneley, R. G.

Paget, Lord A.

Townsend, Capt.

Paget, Lord G.

Vane, Lord H.

Palmer, R.

Villiers, hon. C.

Palmerston, Visct.

Walmsley, Sir J.

Parker, J.

Willcox, B. M.

Patten, J. W.

Willyams, M.

Pechell, Capt.

Wilson, J.

Peel, rt. hon. Sir R.

Wood, W. P.

Peel, F.

Wortley, rt. hon. J. S.

Pigott, F.

Wyld, J.

Pilkington, J.

Wyvill, M.

Pinney, W.

Power, N.

TELLERS.

Price, Sir R.

Tufnell, H.

Pryse, P.

Hill, Lord M.

Clause agreed to, as were Clauses 2, 3, and 4.
On readmission of strangers, Clause 5 was proceeded with.
MR. LAWobjected to proceeding with the measure with so thin an attendance of Members, and especially after the exclusion of strangers from the previous portion of the discussions. But if the Committee determined upon proceeding at this moment, he would now content himself with stating, that upon the occasion of the third reading of the Bill he should do all in his power to exclude that provision from it which enabled Jews to sit in Parliament.
Clause, with Amendments, agreed to.
On Clause 6, providing that the Bill should not extend to Roman Catholics, or affect any of the restrictive portions of the 10th George IV., chap. 7,
MR. TORRENS M'CULLAGHmoved the omission of the clause. The effect of such omission would be that Catholics and Protestants would in future take the same oath, regarding th meaning of which, as now settled by the Bill, there could be
674
no reasonable doubt or uncertainty. After the decisions upon the previous clauses of the Bill to which the House had come, and after an almost unanimous expression of opinion in favour of simplicity and uniformity of legislative oaths, it would hardly be necessary for him to dwell at any length upon the general principles by which he desired that the Amendment he had moved should be determined. All he asked was, that they should fairly and fully apply those principles. They proposed to reduce the number of oaths to be taken by the great majority of both Houses of Parliament from three to one. They had expunged from that one every phrase whether of a political or a polemical character. They had agreed that, varying the form of attestation, the same brief and simple test of allegiance to the Throne should be made by every Member who belonged to the Church of England and to the Church of Scotland, by every Protestant Dissenter, and, finally, by the Jew. All were to have relief except the Catholics. Why was this? Everything that had been hitherto said in the discussion of this Bill fortified him in the conviction that such an exclusion of a particular section of the Legislature was foreign to its true spirit, and at variance with its wise and liberal tenor. The ancient and abiding doctrine of the constitution was that all the representatives of the people were equals in that House; and to attempt or pretend to tie the hands of any portion of the Legislature on particular subjects, while on those and on all other subjects the rest were free, was as plainly inconsistent with the theory of representative right, as it was with that of religious liberty. The oath prescribed to be taken by Catholics was a composite oath. Part of its provisions were to be found in the Catholic oath of 1774, and part in that of 1793. The first relaxation of importance that was made in the penal laws was in 1772. But whoever was at the pains to trace back the course of gradual and grudging emancipation would be amused at finding the first concession hidden under the title of an Act to "encourage the reclamation of the profitable bogs in Ireland." But in this apparent absurdity there was a grave significance. The spirit of the time was so darkened by exclusiveness and bigotry that no Government dared to introduce a measure ostensibly giving relief to the victims of statutable tyranny; and all that could then be accomplished was under the guise already named, to en-

675
able Catholics to acquire property in freehold. Two years after, an Act was passed ordaining a form of oath to be taken, when called upon, by every person in communion with Rome; wherein, amongst other things, he was required to disclaim all allegiance to the Pretender, and to deny that the Pope hath any power to depose princes, or any temporal authority within the realm. Now, these are three of the ingredients in the oath prescribed by the Act of 1829. Then came the Act of 1793, by which the elective franchise and many other privileges were conceded; and by a new oath contained in which Catholics were obliged to swear not to disturb the settlement of property—not to attempt the subversion of the Protestant Established Church in order to substitute a Catholic establishment in its stead—and not to seek the overthrow of the Protestant religion or Government of the kingdom. These three elements, with some verbal modifications, were likewise adopted in 1829; and thus a network of tests and obligations was framed, by which it was hoped that the consciences of Catholic Members of the Legislature would be so bound as that they could not meddle with any question affecting the temporalities of the Established Church. But what had been the result? Those whose legislative liberty it was thus thought to shackle and restrain, have, for the most part, rejected the interpretation which hon. Gentlemen opposite contended for. Many as honourable and high minded men as had ever possessed seats in that House, had from the first openly declared that they felt themselves free in their legislative capacity to speak and vote unreservedly on the Church question. Others, like his hon. Friend the Master of the Mint, took a qualified view of the matter, and while voting for the reform and the reduction of ecclesiastical resources, declared that they would not take part in any measure tending to the subversion of all endowment. The noble Lord the Member for Arundel and others put a still more stringent interpretation on the oath, and refused to take part on any question where the affairs of the Church were involved. Thus, amongst thirty-five or forty Members of the House, who were compelled to swear in the same words of obligation, three different and irreconcilable significations were confessedly maintained. At the beginning of each new Parliament, and it might be during each Session, three Members of that House stood at their table, holding in their hands the same
676
sacred book, and repeating the same solemn words; and the House, which had judicial knowledge of the fact, listened to those three Gentlemen while they swore the self-same oath, avowedly in their different and discrepant senses. Why, what was mockery, if this was not? Was it not calculated to lower the influence and dignity of Parliament in the estimation of the people? Sooner or later the House would have to deal with this subject. It might excite little interest at the present time; but the matter was one of too much importance to be suffered to remain as the case now stood. It was of no avail to say that the Catholic Members did not complain. No; but the Protestant Members who desired to see their Catholic friends and fellow Members relieved from an invidious obligation or from odious imputations, did complain, and would never cease to do so, while this useless, ambiguous, and unworthy test was suffered to remain on the Statute-book. He had heard the noble Lord at the head of the Government declare that night, in answer to those who wished to introduce the same terms into the oath to be taken by Dissenters which were in the Catholic oath—that the Church of England needed not such defence or protection as this—that its stability rested on public opinion—and that to build on any other human foundation, was to build on sand. He heartily concurred in that sentiment; and he, therefore, hoped the noble Lord would not refuse to sweep away this last badge of bygone exclusion as one that, instead of serving the true interests of religion, raised up against it heart burnings and ill will. The right hon. Baronet the Member for Tamworth had stated that evening, that the Catholic oath ought not to be touched, as it was part of the settlement of 1829; and they were accustomed to hear it spoken of as part of what was called the compact on which emancipation had been granted. But he had a right to ask where was that compact; when was it made; or who was there on behalf of the Catholic millions who dwelt at that time in those kingdoms who was authorised to make stipulations for them, or for the generations that should come after them? If, instead of a compact, they were told that there was a condition precedent annexed to the admission of Catholics to the Legislature, then he could only say, what Parliament in 1829 was competent to attempt, Parliament in 1849 was as competent to aban-

677
don, when it had proved an egregious failure. Those who, like himself, felt strongly on this question, had been warned not to risk the fate of the Bill by pressing the Amendment. He thought it rather unfair to urge such a consideration in the first instance; it would be quite time enough to consider that point when the opinions of the House had been expressed upon the principle involved. Nor should it be forgotten, that, with two exceptions, every Catholic Member in the House had already voted unconditionally for the admission of the Jews. He concluded by moving—
"That the 6th Clause be struck out of the Bill, in order that all Members of the House should, henceforth, be enabled to take one and the same oath or affirmation, as the case may be,"
MR. W. FAGANsaid, it was most humiliating for the Catholics to take the oath as now proposed, and peculiarly so after the way in which the proposal of the hon. and learned Member for Dorsetshire had been treated that night. Why should Catholic Members of that House be required to take a form of oath which the Protestant Dissenters did not take? The oath had been made an instrument for insulting the Catholics, and he had experienced something of this kind himself when, having brought before the House a Motion on the subject of ministers' money in Ireland, he was taunted by the hon. Member for Warwickshire with having forgotten the oath he had taken at the table. He would do nothing to injure either the Protestant Church or the Protestant religion, but, at the same time, he must say he thought that he might interfere with the temporalities of the Church Establishment without injuring it—indeed, he was of opinion that to do so would be rather to benefit than to injure that Church. He felt that, by pressing the proposition of his hon. Friend the Member for Dundalk, now, they might be interfering with the passing of what was, after all, the main feature of the Bill, namely, the emancipation of the Jews from their present disabilities; and if he was assured that such would be the effect of this Amendment, he would oppose it. On the whole, however, he did not think that it would have that effect, and he would therefore give it his support.
MR. J. O'CONNELL,at considerable length, called attention to certain portions of the Catholic oath, with a view to show the absurdity of that oath in the shape in which it now stood. First, there were the
678
words "the settlement of property as established by the laws." Now, if these words were intended to restrain Catholics from touching anything connected with the settlement of Church property, it would have the same restriction with respect to any property whatever. Again, Catholics "solemnly abjured any intention to subvert the Church Establishment as settled by law." But where was the difference between "the settlement of property established by the laws," and "the Church Establishment as settled by law?" The object of another disposition of the property of the Church being a good one, a Roman Catholic could surely only be restricted from promoting that object by a statute law. Again, Catholics were not to "disturb or weaken the Protestant religion." Now, he did not want to touch the Protestant religion. But was money religion? He did not look for the temporalities of the Church for himself, but only required that they should be applied to an object of advantage to the community at large. The hon. Member then denied that the Roman Catholics had ever taken the oath of supremacy either in the reign of Henry VIII., or Edward VI., or in that of Elizabeth. With reference to the present Motion of his hon. Friend the Member for Dundalk, he did not know whether he should vote for it or not; if he happened to be in the House when the division was called for, perhaps he might vote for it.
MR. NEWDEGATEbegged to be allowed, for a moment, to call the attention of the House to what had just been passing. The hon. Member for Limerick had revived the debate at the commencement of which he had himself moved that strangers should withdraw, and had taken the opportunity of referring to the arguments which had been used in the speeches of several hon. Members, whose remarks, owing to his own exclusion from the gallery of those through whose means they reached the public, could no be reported. Indeed, he now got up and gave a one-sided and falsified resume of what had passed during the absence of strangers. [Mr. J. O'CONNELL denied that it was falsified.] He would confine himself, then, to the term "onesided." Now, this he must consider as a gross abuse of their debates. He would ask the House whether it was right to commence a debate, and to continue it, in the absence and during the exclusion of the reporters, and then, that the same Member, on whose Motion they had been

679
excluded, should get up and give a onesided resume of the discussion? He confessed he could place but one interpretation on the course the hon. Member had thought proper thus to adopt, and that was, that he had intended to take advantage of the circumstances as they had now occurred. With respect to what the hon. Gentleman had said of certain terms contained in this oath, all that he had to say in reply to that was, that he (Mr. Newdegate) understood the terms of the oath in question in the plain commonsense meaning of the words themselves, no matter whether placed in the oath twenty years ago or yesterday. He had thought it right to call the attention of the House to the extraordinary course which the hon. Gentleman had taken.
The EARL of ARUNDEL AND SURREYsaid, he had no intention of continuing this discussion, and he extremely regretted the exclusion of the public from the gallery; for though their rule on that subject was, no doubt, a useful one to preserve, he had never known it exercised more than once during the last twelve years. On the present occasion he particularly regretted that it had been put in operation, as the public would have no opportunity of reading one of the most useful debates he had ever heard on the opinions which were held on the subject before the House. For his own part he had, on a former occasion, expressed his opinion on a Motion similar to that now proposed by the hon. Member for Dundalk. He did not consider himself at liberty to do away with the Roman Catholic oath; but, at the same time, he should take it as a boon if the House itself would do away with the necessity of Catholics taking that oath. It was, however, impossible for him to sit down without offering his thanks to the hon. Member for Dundalk, who, as a member of the Church of England, had taken this opportunity of proposing the abolition of that which he considered was objectionable in the eyes of his Catholic fellow-subjects.
MR. VERNON SMITHsaid, that in 1829, the state of the case on this subject was this—that Protestants and others were obliged to take three separate oaths, whilst the oath then instituted for Roman Catholics was, on the whole, to their comparative advantage, and they took all that was required of them in one oath. But how did the question stand in 1849? They had brought in a Bill which, at least incidentally, admitted the Jews to Parliament,
680
but which was also introduced for the purpose of altering the oaths taken by Members. By that Bill they gave an entirely different oath for the Protestants, and from that oath they had struck out much that was objectionable as regarded the Catholics; but they had left all that in the Catholic oath, and thereby rendered it more objectionable to them than before. It had been seen that Roman Catholics equally high-minded and honourable interpreted the oath quite differently; and why should not Protestants? It had been said already that no conscientious Dissenter could take this oath; but he went further, and believed that every conscientious Churchman must take it unwillingly, and certainly not without inconvenience at least. Almost every question brought forward might be liable to the charge that it was calculated to subvert the Establishment. He should, therefore, vote for the omission of the clause.
MR. SPOONERconsidered the speech of the right hon. Member a very useful one for the opponents of the Bill, and he trusted that it would open the eyes of the House to its true character. According to the right hon. Gentleman it was but another step towards the total abandonment of all the safeguards of the constitution of Church and State.
LORD J. RUSSELLhad very little more to say on the subject. He had no wish to make the oaths less simple, or to raise fresh obstructions against those now admitted to Parliament, or fresh enemies by the alteration of the Roman Catholic oath; and he should, therefore, vote against the Amendment.
MR. W. P. WOODfelt that the oaths taken by Roman Catholics were highly objectionable; and if the Amendment were pressed to a division he should vote for it. It was most desirable that there should be no distinction between Roman Catholics and Protestants. He objected to the restrictions imposed upon Roman Catholics on religious grounds as well as political. No security was gained to the Established Church by the miserable rubbish of their oaths. The Church, as far as it was an establishment, must depend on public opinion. The House represented the commons of England; and if the commons of England were all in favour of a change—if they represented truly the people, they ought to be unfettered as to any particular form of establishment. He would, however, be the last in the world to say that the

681
Church, as a spiritual establishment, depended upon opinion. It was as true, as holy, as perfect, and as powerful, when it consisted only of 120 persons assembled in an upper chamber as it was at this moment, when from a grain of mustard seed it had become a tree so great that all the nations of the earth might find shelter under its branches. Let them look at the Church of England before the repeal of the Test Acts and all its bulwarks of that nature. Would any one say that the Church of England at that day, when all its defences against Popery and dissent were in existence, was anything like the Church of England at the present day? There were not now so many public dinners, perhaps, at which "Church and Queen" were toasted; but there was now a more striking proof of vitality and efficiency in the number of new churches which had been built, and of schools which had grown up within the last thirty years. He would ask any member of the Church whether he could not recognise now in the Church of England more activity, more power, more spirituality, than she had exhibited for centuries?
COLONEL SIBTHORPlamented that he should ever have heard in that House a Chancery barrister—he might say, he believed, a distinguished Chancery barrister—but a Chancery barrister, of all the men in the world—designate an oath, a solemn appeal to the majesty of Almighty God, as "rubbish."
MR. W. P. WOODsaid, he thought no one else in the House would have misunderstood what he had said. All he asserted was, that reliance on any particular form of oath was rubbish.
MR. WYLDcomplained that the Irish Members had taken advantage of this Bill to introduce a question which the people of England had long since thought settled. They were doing little good for the cause they had in view. He highly approved of the Bill.
Question put, "That the Clause stand part of the Bill."
The Committee divided:—Ayes 103; Noes 54: Majority 49.

List of the AYES.

Adair, R. A. S.

Bellew, R. M.

Arbuthnott, hon. H.

Bentinck, Lord H.

Ashley, Lord

Beresford, W.

Baldook, E. H.

Berkeley, hon. Capt.

Baring, rt. hn. Sir F. T.

Birch, Sir T. B.

Barnard, E. G.

Bremridge, R.

Bateson, T.

Brisco, M.

682

Brockman, E. D.

Law, hon. C. E.

Bromley, R.

Lemon, Sir C.

Brotherton, J.

Lewis, G. C.

Brown, H

Lindsay, hon. Col.

Bunbury, W. M.

Lowther, hon. Col

Campbell, hon. W. F.

Lushington, C.

Clerk, rt. hon. Sir G.

M'Gregor, J.

Cockburn, A. J. E.

Maitland, T.

Cowper, hon. W. F.

Martin, C. W.

Craig, W. G.

Maule, rt. hon. F.

Crowder, R. B.

Mulgrave, Earl of

Dod, J. W.

Newdegate, C. N.

Duckworth, Sir J. T. B.

Paget, Lord A.

Dundas, Adm.

Parker, J.

Dundas, Sir D.

Peel, F.

Ebrington, Visct.

Perfect, R.

Elliot, hon. J. E.

Plowden,W. H. C.

Evans, W.

Pryse, P.

Fergus, J.

Rice, E. R.

Fox, R. M.

Rich, H.

Frewen, C. H.

Romilly, Sir J.

Glyn, G. C.

Rushout, Capt.

Goulburn, rt. hon. H.

Russell, Lord J.

Graham, rt. hon. Sir J.

Russell, hon. E. S.

Greenall, G.

Russell, F. C. H.

Greene, T.

Seymour, Lord

Grey, rt. hon. Sir G.

Sibthorp, Col.

Grey, R. W.

Smith, J. A.

Grogan, E.

Spooner, R.

Grosvenor, Lord R.

Stafford, A.

Halford, Sir H.

Talfourd, Serj.

Harcourt, G. G.

Thompson, Ald.

Harris, hon. Capt.

Tollemache, J.

Hawes, B.

Townshend, Capt.

Hay, Lord J.

Walpole, S. H.

Hayter, rt. hon. W. G.

Wellesley, Lord C.

Heathcoat, J.

West, F. R.

Hill, Lord E.

Willcox, B. M.

Hobhouse, rt. hn. Sir. J.

Willyams, H.

Hobhouse, T. B.

Williamson, Sir IL

Hodges, T. L.

Wilson, J.

Hodgson, W. N.

Wood, rt. hon. Sir C.

Jervis, Sir J.

Wyld, J.

Jones, Capt.

TELLERS.

Labouchere, rt. hon. H.

Hill, Lord M.

Lascelles, hon. W. S.

Tufnell, H.

List of the NOES.

Aglionby, H. A.

Hastie, A.

Anderson, A.

Henry, A.

Armstrong, Sir A.

Heyworth, L.

Armstrong, R. B.

Howard, hon. E. G. G.

Bass, M. T.

Kershaw, J.

Bright, J.

Kildare, Marq. of

Brown, W.

Meagher, T.

Carter, J. B.

Matheson, Col

Clay, J.

Melgund, Visct.

Clements, hon. C. S.

Mitchell, T. A.

Colebrooke, Sir T. E.

Monsell, W.

Davie, Sir H. R. F.

O'Connell, J.

Dawson, hon. T. V.

O'Connor, F.

Devereux, J. T.

O'Flaherty, A.

Duncan, G.

Osborne, R.

Ellis, J.

Pechell, Capt.

Evans, J.

Pilkington, J.

Ewart, W.

Raphael, A.

Fagan, W.

Reynolds, J.

Forster, M.

Salwey, Col.

Fortescue, hon. J. W.

Scholefield, W.

Fox, W. J.

Scully, F.

Gibson, rt. hon. T. M.

Smith, rt. hon. R. V.

683

Talbot, J. H.

Wawn, J. T.

Thompson, Col.

Wyvill, M.

Thornely, T.

TELLERS.

Tollemache, hon F. J.

M'Cullagh, W. T.

Walmsley, Sir J.

Wood, W. P.

Bill reported; as amended, to be considered on Monday next.
The House adjourned at a quarter before Ten o'clock till Monday next.