§ 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.
§ 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. THESIGER
wished 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 GENERAL
said, 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. RUSSELL
then 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'CONNOR
said, 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.