§ MR. DISRAELIMr. Speaker, I wish to address you on a question of Privilege. The electors of the county of Tipperary have returned to this House as their Member a convicted felon—Mr. John Mitchel—who is thereby incapacitated from taking his seat in this House. Mr. John Mitchel was tried for treason-felony in the year 1848. He was found guilty, and sentenced to 14 years' transportation. After a comparatively short period he escaped from his imprisonment, and he has neither fulfilled the sentence which was awarded to him, nor has he received a pardon from Her Majesty under the Great Seal. He therefore remains a convicted felon, and is incapacitated from taking a seat in this House. Under these circumstances, Sir, I therefore beg to move the first Resolution, which is in your hands.
§
Motion made, and Question proposed,
That John Mitchel, returned as Member for the County of Tipperary, having been adjudged guilty of felony, and sentenced to transportation for fourteen years, and not having endured the punishment to which he was adjudged for such felony, or received a pardon under the Great Seal, has become, and continues, incapable of being elected or returned as a Member of this House."—(Mr. Disraeli.)
§ MR. O'SHAUGHNESSYsaid, he did not rise to dispute at that moment the facts stated in the Return that had been laid on the Table, nor to discuss the legal or constitutional principles laid down in the Notice of Motion given by the Prime Minister, nor to discuss the applicability of those principles to the case now before the House. He abstained from doing so for two reasons—first, because he thought it only deferential to the electors of the county of Tipperary and the gentleman interested in that matter to allow them an opportunity—when they had seen the legal doubts which had been so suddenly raised by the Law Officers of the Government—of considering what course they would pursue; and, secondly, because neither he himself nor any of those with whom he usually acted had had time to consider and come to any conclusion as to the position laid down in the Motion or as to the course that should be adopted definitely under the 494 circumstances. He had an appeal to make on behalf not only of the electors of Tipperary, but of every constituency in the United Kingdom, who would be affected by any precedent that might be created on that occasion; on behalf also of Mr. John Mitchel, who was affected not only in reference to his title to a seat in that House, but also with regard to very serious charges that affected his character, if any of the statements contained in the Paper laid upon the Table of the House were true. He wanted a little more time, to enable everyone who was interested to consider that question. He did not ask specifically that the matter should be referred to a Select Committee, or that the electors of Tipperary and Mr. Mitchel himself should be permitted to address the House by counsel, or that time should be given in order that the electors of Tipperary might present a Petition, in the now constitutional way, to the Court of Common Pleas. He asked for none of those things, for the time allowed them had been so brief that he could not undertake to bind any of the parties interested to adopt any specific course, but he merely asked for a short time to consider what course ought to be taken. What were the facts of that case? The nomination for the county of Tipperary occurred last Tuesday. Before it occurred, there were several meetings held throughout the entire of that extensive county which were attended by a Gentleman who sat in that House, whose veracity and character were unquestioned—he referred to the hon. Member for "Westmeath (Mr. P. J. Smyth). That Gentleman told the electors of Tipperary that Mr. Mitchel came there fortified by the opinions of Irish and English counsel, that any doubt as to his right to sit in Parliament was of no value, and that he had beyond doubt the right to take his seat if he were returned by the county of Tipperary. Now the Irish Government was never slow to speak its mind on what occurred in Ireland; and, notwithstanding the readiness with which it generally put forth its views, it had never, either by notice given to the sheriff or by proclamation, intimated to the electors of Tipperary that they would be running the risk of sacrificing their votes by electing Mr. Mitchel. Mr. Mitchel, he might add, had been over in Ireland last autumn, and everyone in the country was aware 495 that if a vacancy occurred in any popular constituency there he would have been a candidate for the representation. All that time, however, no action was taken by the Government. They might have arrested Mr. Mitchel quietly, without inflicting any great pain upon his person or his feelings, and thus have saved the constituency from giving an ineffectual vote. But they had done nothing of the kind. They had allowed him to come to Ireland, and now that the electors of Tipperary, having for so long a time been lulled into security by the action of the Government, had elected him, what was the course which was taken? The hon. Member for Mid-Kent (Mr. Hart Dyke) had come down to the House the other evening, without giving any Notice, and had moved at half-past 7 o'clock for Papers with regard to Mr. Mitchel's conviction, and his departure from the place where he was imprisoned. He had, moreover, done so on an evening when the business was not interesting, when very few English Members were in attendance, and when the number of Irish Members was naturally very small indeed; so that had it not been for his hon. and gallant Friend the Member for Galway (Captain Nolan), with one or two others, the Motion would have been agreed to without opposition, while those interested in affording the people of Tipperary an opportunity of speaking their minds on the question were loft only a few hours for consultation between half-past 7 and bed-time. He believed he might add that the first of the Papers which had been moved for had the date of the 10th of February, 1875, and surely the Government on that day knew that Mr. Mitchel's address to the electors of Tipperary was looked for, and would have acted more fairly to the electors and to Mr. Mitchel if they had stated their views on the subject more frankly. The Motion for Papers having been made, it struck the right hon. Gentleman at the head of the Government that it would be only fair that he should give Notice of the Motion which he had submitted to the House that evening—and what, he would ask, was the result of all those proceedings? Of course the news of what took place in the House overnight would only be spread in Tipperary at 8 or 9 o'clock the next morning—and the result was that there was only 36 hours for the electors of Tipperary 496 to come to a conclusion as to what course they should pursue, to take counsel's opinion, or to become acquainted with the legal bearings of the question and the consequences of the Motion that had been introduced. Mr. Mitchel did not reach Cork until 3 o'clock on Wednesday morning, and he, too, had only the same time left him to consult with the electors as to what should be his line of conduct under the circumstances in which not merely his political rights but his personal character were so much at stake. He thought that he did not use an unsuitable word when he said that that was a very undignified haste that left only 36 hours to the constituencies of the kingdom to consider a precedent that might be perhaps hereafter found applicable to very different circumstances. There were, he might add, legal questions of a very grave nature connected with the subject, which he did not, however, propose on the present occasion to discuss; but if the House would allow, he would read the opinion of a person of great experience in legal matters as to some difficulties which arose in connection with the case. The learned "gentleman to whom he referred said that there was a question involved in it which he could not but think ought not to be decided without giving Mr. Mitchel and the electors of Tipperary an opportunity of having the judgment upon it of some legal tribunal. He also said—
It may be fairly argued, notwithstanding his escape, that he has endured his sentence to transportation. Be far as I am able to make out, the sentence meant nothing more than actual banishment from the country. The time for petitioning against the return has not expired, and if the House of Commons determines the matter now, it will take it away from the determination of the legal tribunal.Now, the Elections Act of 1868 provided that from and after the next dissolution of Parliament, no election or return should be questioned, except in accordance with the provisions of that Act. The learned gentleman of whom he was speaking went on to say that he did not think the case of O'Donovan Rossa at all furnished a precedent for that of Mr. Mitchel, inasmuch as the former was elected while his period, not of transportation, but of penal servitude, was in full force and unexpired. He added that if the opposition to Mr. Disraeli's Motion was rested upon those broad and constitutional grounds, he should hope that they 497 would find themselves supported by many who, though strongly opposed to Mr. Mitchel's politics and courses, would not sanction an unconstitutional and arbitrary interference with electoral rights. Most hon. Members in that House, he (Mr. O'Shaughnessy) dared say, regretted such an occurrence as the election of Mr. Mitchel to that House as a thing that was abnormal and dangerous to the peace of the country; and yet he trusted that they would think that immediate action should not be taken in that case. He would undertake to show that there was some ground for holding that Mr. Mitchel's election had been preceded by some circumstances that varied it from being of such a character as he supposed they took it to be. Mr. Mitchel stood for that county at the last General Election. At that time there was a constitutional agitation going on in Ireland for the attainment of objects to which it was now unnecessary further to refer. Mr. Mitchel polled a large minority of the electors on that occasion, and he was defeated by two gentlemen of high status in the county, Colonel White and the hon. Gentleman who now represented the constituency (Mr. Callaghan). Those Gentlemen, in common with other hon. Members from Ireland, advocated the constitutional changes of which he had already spoken. Those constitutional changes had been brought under the consideration of the House by his hon. and learned Friend the Member for Limerick (Mr. Butt), the writer of the Opinion to which he had just called attention. The proposals made by him were rejected without any offer of compromise, conciliation, or concession. That being so, Colonel "White resigned his seat, and then the electors of Tipperary, who had returned that Gentleman on Home Rule principles, began to think what course they ought to take, and determined to return Mr. Mitchel. And surely it was the manly and outspoken way to proceed to declare that, their hope of constitutional redress having been disappointed, they were not prepared to return another Home Ruler to repeat the same arguments to which the House had last Session turned a deaf ear. It ought also to be more satisfactory to those who wished to know the real state of Ireland, that the electors had so demonstrated the intensity of their feelings on the subject, than that 498 they had returned a Tory gentleman who would come down and declare that Ireland, and the county of Tipperary particularly, was tranquil, and that nothing more was required but some local reforms, and thus deceive the House of Commons. He was aware that there was a disposition to identify those who were opposed to the course taken by the Government on the present occasion with the politics of Mr. Mitchel. For his own part, he did not know what those politics were at present. He was aware that Mr. Mitchel had written a letter, in which he expressed his discontent with constitutional agitation; but he was also aware that, in addressing the electors of Tipperary, he stated it to be his intention to advocate, if elected, various reforms in the House of Commons. Perhaps it was his determination to follow in the footsteps of the hon. Member for Meath (Mr. John Martin), who, like himself, had been brought under the ban of the law. Be that as it might, so far as he himself was concerned, he had been brought to think that there was no more immoral course of action than to throw a nation into the horrors of a civil war when there was no hope of redress by that means. He believed, moreover, that the day would come when England would take calmly into consideration the state of Ireland, and when the spirit of conciliation would become so strong, that both nations would meet half way to settle the differences between them. History had taught him that, although Parliament might for a long time refuse to make the concessions which justice demanded, yet in the end they were always granted, sometimes, it might be, under the pressure of political exigencies, as was the case with his own country in 1782. In conclusion, he would move the adjournment of the debate for a week; but if the Government would accede to the appointment of a Committee, or adopt any other course whereby the electors of Tipperary would have an opportunity of discussing and considering the matter, he should with great pleasure withdraw his Amendment.
§ MR. O'SULLIVANseconded the Amendment.
§ Motion made, and Question proposed, "That the Debate be now adjourned."—(Mr. O'Shaughnessy.)
499§ SIR HENRY JAMESThere is no desire on the part of those with whom I have consulted to throw any obstacle in the way of the Resolution that has been proposed by the right hon. Gentleman if the House should think it necessary and right in order to maintain its high character, feeling satisfied that the right hon. Gentleman and those with whom he has taken counsel are only desirous to take a constitutional course, and one in accordance with Parliamentary usage and custom:—but at the same time, as I entertain some doubts upon the subject I shall be glad to hear the statements of the Law Officers of the Crown. It is simply because these doubts have not been entirely dispelled by the hasty inquiry I have been able to make, that I wish to have the opinions of those learned Gentlemen, whom the right hon. Gentleman has no doubt consulted, and by which the House will probably be in a great measure guided. The doubts I entertain are of a technical nature, and I will explain how they have arisen. It is quite true that Mr. John Mitchel has been convicted of treason-felony and sentenced to 14 years transportation, that he has not completed his sentence. But looking at the question in a merely technical view, it is a question which can perhaps be best discussed before a judicial tribunal, whether that conviction produced the disability sought to be imposed by this Motion. In early times, with few exceptions, all felonies were capital offences, punishable with the sentence of death, and with the sentence of death attainder necessarily followed: and it is to attainder that the disability is attached. When this question arose in 1870 in the case of O'Donovan Rossa, this House resolved, almost unanimously, that—although the offence of which he was convicted was not a capital one and no attainder followed—yet that the disability applied from the fact that O'Donovan Rossa was then undergoing his sentence, and was at the time actually in prison. It is only natural that the House should be willing to follow that precedent without attempting to carry it further, and the present question is whether the precedent applies to John Mitchel's case. The statute 9th Geo. IV., which it is evident the framers of this Resolution had in their minds, appears to me to have no bearing on the matter at all, being 500 merely intended to remove the only disability remaining—so far as I am aware—in relation to felony—namely, disability of a felon to give evidence. But by the Act passed in 1870—an Act to abolish forfeiture for Treason and Felony—it was provided that persons convicted of treason or felony should be incapable of being elected, or sitting, or voting in Parliament until they should have suffered the sentence passed upon them, from which it may be argued that any person convicted before the passing of that Act would not be subject to its provisions and would be capable of sitting in Parliament. Still, I think the precedent established in the case of O'Donovan Rossa ought to bind us unless it can be shown that a distinction between that case and the present exists. It appears to me that the cases do differ essentially inasmuch as O'Donovan Rossa was at the time of his election, actually serving his term of imprisonment and could act no public part until its completion. What I desire to learn from the Law Officers of the Crown under these circumstances is—whether, in the first place, John Mitchel can be proceeded against and remitted to serve out his original sentence, or whether by effluxion of time the sentence cannot be further enforced. If he cannot be forced to complete his sentence surely there is a difference between his case and that of O'Donovan Rossa. Secondly, I wish to know whether, John Mitchel having been convicted under the Irish Act, he could be proceeded against for having broken his prison now that the term of his imprisonment had expired; and, thirdly, if he could not be arrested by reason of what had occurred, what are the disabilities under which he is labouring other than those which are imposed, or intended to be imposed by the vote of this House? No doubt the House can expel a Member on good and sufficient grounds—such as having committed a misdemeanour, or that his conduct is such as to render him not a fit and discreet person to sit here. The power of expulsion, however, is one thing, and the power of declaring a man's disability another. In the former case the House can act upon its own opinion, whereas in the latter case it can only proceed upon the strict principles of law. A person who has misconducted 501 himself, or is even of notoriously bad character, cannot be refused admission to this House, though he may be expelled on good and sufficient grounds being shown. For it is on record that in the time of James I, there was a person of the name of Sir William Harcourt, who had been subjected to no less than 18 sentences of outlawry. Yet "on account of his merit "—which had been continued and perpetuated down to the present time—that circumstance was not considered a sufficient cause to refuse him admission to this House.
THE ATTORNEY GENERALsaid: Before I proceed to answer categorically the three questions of the hon. and learned Member for Taunton, I think it right to point out, that by the case of O'Donovan Rossa, two things were, by an overwhelming majority of this House, established. First, that, notwithstanding the Act of 1868, this House declared its intention to reserve in its own hands the power of deciding such questions as arose in that case, and in the one now before the House; and, secondly, that the incapacity of a convicted felon to become a Member of this House does not depend upon attainder, but upon the judgment passed upon him for the felony of which he has been convicted. I will now answer the questions which have been put to me by my hon. and learned Friend. The first question is, whether Mr. John Mitchel can be remitted to prison in respect of his being at large before the expiration of his sentence?
§ SIR HENRY JAMESWhether he can be remitted to prison without further sentence.
THE ATTORNEY GENERALUpon this I would observe that the Act of the 9th Geo. IV., commonly called the Irish Act, which imposes a penalty for being at large before the expiration of a sentence of transportation, differs materially from the corresponding section of the Act of the 5th Geo. IV., which deals with such an offence when committed after a sentence passed by a Court in England or Scotland. Under the latter statute any person found unduly at large before the expiration of his sentence of transportation in any part of His Majesty's dominions is liable to certain penalties; but in the Act of the 9th Geo. IV., which relates to Ireland only, the words used are, "any person found 502 unduly at large before the expiration of his sentence anywhere within the United Kingdom," and any person so found is made liable to the same penalties. Now, Mr. Mitchel having been convicted and transported under the Irish Act, I apprehend that his being at large within the colony of Van Diemen's Land before the expiration of his sentence was not a new offence in respect to which the penalties contained in the 9th of Geo. IV. can attach. The moment after Mr. Mitchel had given up his parole and resigned his comparative liberty, although he was "unduly at large before the expiration of his sentence within Her Majesty's dominions," it was not within the United Kingdom. This I feel bound to say, though the matter has come somewhat suddenly upon me. [Cheers.] Hon. Members who cheered that observation should bear in mind that I am only dealing with the question of Mr. Mitchel's liability to arrest, and I am stating what I conceive to be the effect of the statutes bearing upon the subject, so far as I have been able to loot into them. Under a more modern Act, which has reference to tickets-of-leave, there are provisions subjecting the offender to a not very heavy punishment for the offence of breaking the conditions of his ticket; and it also provides for his being sent back to finish that portion of his sentence which he has not endured; but that Act does not apply to Mitchel's case. Upon the whole, it appears to me that John Mitchel could not have been arrested, either by reason of the non-service of the sentence that had been passed upon him, or by reason of his being at large before the expiration of that sentence. With regard to the second question, whether Mr. Mitchel can be proceeded against for breaking prison, the statutes of Van Diemen's Land provide a penalty in the case of persons aiding and abetting the escape of a convict from prison, but they do not, so far as I am aware, provide any punishment for the convict who escapes from prison before the expiration of his sentence. I doubt whether Mr. Mitchel can be considered to have been guilty of breaking prison, but I apprehend that escaping from prison before the expiration of sentence, of which he was clearly guilty, is a misdemeanour at Common Law in respect of which punishment can be awarded; but 503 the amount of punishment would be light, as the offence is not a particularly heinous one; and I think I may fairly say that no person at this time would think of prosecuting or arresting Mr. Mitchel on account of his escape. This explains why no steps were taken last year, when Mr. Mitchel was in Ireland, to arrest him. The third question was as to the nature of the disability under which Mr. Mitchel labours, if he cannot be arrested by reason of what has occurred. This is the substantial question before the House, and the answer to it is, that by his conviction in 1848, and the judgment following upon that conviction, John Mitchel became a felon, and subject to all the disqualifications attaching to one convicted of felony, one of which disqualifications was, according to the view which I take of the matter, the inability to become a Member of Parliament. As I understand the law, as it formerly existed, a person convicted of felony was a felon not for any particular period—for the particular period only of his sentence—but, having been convicted of felony, he would be a felon for all intents and purposes so long as he lived, unless he received a pardon. That, in my opinion, was the state of the law up to a period dating some 50 years back. Since that time, however, various statutes have been passed relieving felons from certain of the disabilities under which they lay. The first of such statutes was the 6 Geo. IV. c. 25, the first section of which provided that in any case in which the King should be pleased to extend his Royal mercy to any offender convicted of any felony, whereby the offender should be excluded from benefit of clergy, and by Royal Warrant under the Sign Manual, countersigned by one of the principal Secretaries of State, should grant to such offender either a free pardon, or a pardon conditional on transportation or other penalty, such pardon or conditional pardon so granted should have the effect of a pardon under the Great Seal. Shortly after that Act was passed, a circumstance of this sort arose—A person had been convicted of a capital felony, and had had a conditional pardon on his being imprisoned for two years. He was entitled to certain copy-hold property, which was forfeited to the lord of the manor by virtue of the judgment, provided the lord had entered. 504 The lord did not enter before the expiration of the two years, and the question arose—Was he entitled to enter after the expiration of the two years? This was met by the argument that, as a felon, the man was incapable of holding land, and that that incapacity had not been removed. It was held that the effect of the conditional pardon being the same as a pardon under the Great Seal, and the condition having been performed, the man had been pardoned, and was re-instated in all his rights. The Act of 7 & 8 Geo. IV. c. 28 was to a similar purpose, "benefit of clergy" having been then abolished; these statutes were followed by 9 Geo. IV. c. 32, which, in the 13th section, enacted that when any person who had been convicted of any felony not punishable by death had endured his punishment, that should have the same effect as a pardon under the Great Seal. In order, therefore, for an offender to be relieved from the disabilities incident to his offence, he must obtain either a pardon under the Great Seal, or a conditional pardon under the Sign Manual, or must endure the punishment. What, therefore, is the position of John Mitchel? I think there is a disqualification in his case, because he has not received a pardon under the Great Seal, nor a pardon under the Sign Manual upon a condition performed, nor has he endured the punishment to which he was sentenced. My hon. and learned Friend (Sir Henry James) has suggested this distinction between the case of O'Donovan Rossa and the case we are now dealing with, that O'Donovan Rossa was at the time actually in prison. No doubt that circumstance was referred to by one or two speakers in the debate on the case of O'Donovan Rossa, but that was not the ground on which the decision of the House was given. The decision of the House in that case was grounded upon the fact that he was a felon who had not cleared himself of the consequences of his felony; and I apprehend that the same principle must apply to the present case—namely, that, having had sentence passed upon him, and having neither received pardon nor endured the punishment to which he was sentenced, Mr. John Mitchel is disqualified from being elected or returned as a Member of this House.
§ SIR WILLIAM HARCOURTsaid, he wished his hon. and learned Friend 505 the Attorney General had succeeded I more completely to remove the doubts which, in common with his hon. and learned Friend the Member for Taunton, had passed through his own mind. He entirely felt with his hon. and learned Friend the Attorney General that this matter had come somewhat suddenly upon the House. He, for one, did not feel in a position to express a confident opinion upon the question, which was of great constitutional importance; and he was sure that those who had most studied it would be most disposed to admit it was a question of enormous difficulty. Now, he would put it to lay Members of the House, whether the statement of the Attorney General had not taken many of them by surprise? ["No, no!" "Hear, hear!"] Gentlemen said "No, no," very hastily; but did they know when they came to the House that John Mitchel could not be remitted to his original punishment? If they did know that they knew a great deal more than some of their instructors in the public Press. Did they know that Mr. Mitchel could not be proceeded against either for having broken his parole or for having escaped from prison? Was not that so generally believed that the Government had been charged with a dereliction from duty for not having arrested him? Therefore did not that show that there was existing in the public mind a very grave misapprehension of the real bearing of this question? The answer which the Attorney General had given in reply to the inquiries of his hon. and learned Friend the Member for Taunton were very important. Here was the fact of a convicted felon who was sentenced for a certain number of years, and who was found again in Her Majesty's dominions not having endured his sentence. Why was he not sent back to prison to undergo the residue of his sentence? The answer which every lawyer would give you was, because his sentence was exhausted. There could in reason be no other than that conclusion. If the offence which John Mitchel committed in breaking his parole and escaping from Australia had been committed by any person convicted in England, he thought his hon. and learned Friend would agree with him that he might have been proceeded against under the 5 Geo. IV., p, 84, for "having been found at large 506 in a part of Her Majesty's dominions—namely, Australia—not having undergone the full term of the sentence of transportation." Originally that was a capital offence; but by an Act 4 & 5 Will. IV., it was commuted to transportation for life with certain terms of previous imprisonment. The fact that a person was liable to an indictment for felony did not disqualify him from taking a seat in that House. In fact, it had been decided by the Law of Parliament that a person actually under an indictment for felony was not under disability—he could sit until conviction and judgment. Well, they had this state of things—they had a felon under sentence whose term of sentence had expired, and the mere fact that he could not be imprisoned under that sentence was a circumstance which it was impossible to overlook. His hon. and learned Friend the Attorney General had stated that felony was indelible in its character, except under three processes which he named:—first of all by pardon under the Great Seal; or, secondly, by pardon under the Sign Manual; or, thirdly, by an endurance of the punishment; for which he relied on the 9 Geo. IV., c. 32. He bowed with great deference to the opinion of the Attorney General; but for himself he had looked for authorities upon the proposition, but he had not been able to find one. He was not prepared to say that the proposition was not true, but he should like very much to be satisfied on that point. At the time of all those cases under former statutes to which his hon. and learned Friend had referred, and in which the Sign Manual was sought for a removal of the disability of felony, the doctrine of attainder was in force, because the felonies were capital and attainder followed. Now, as he (Sir William Harcourt) understood the matter, until the case of O'Donovan Rossa there was no authority for stating that any offence whatsoever, except one which was of a capital character, and on which of course attainder followed, constituted a disability for a seat in the House. He believed there was no such authority to be found in the case of O'Donovan Rossa. Well, what did the House do in the case of O'Donovan Rossa? It came to the conclusion—he thought a very reasonable and sound conclusion—that, though attainder had ceased in consequence of the mitigation 507 of the penalty, yet they would apply the disability which had formerly ensued from attainder to cases like that of O'Donovan Rossa where the sentence was still in force and where the felon was still undergoing the penalty: and they therefore declared that O'Donovan Rossa was disqualified from sitting in that House. But now the House was asked to go a step further. He would not express any opinion upon the question whether it ought to go that step further, but he wished the House to understand that this was a new course—that this was an extension of the case of O'Donovan Rossa. He had no desire to express any opinion that they ought not to come to the conclusion that an escaped convict, whose sentence was spent and who could not therefore be further imprisoned, ought not to take advantage of his own wrong, and that therefore they should establish a rule in extension of the old one applying to such cases as the present. He would give no opinion on the subject, but he wished to have time to consider it. They were about to establish a new precedent or extend an old one. That was a question of grave importance. The precedent was one which, if it was to have authority and weight in the future, would have surely more authority in the present, and more weight in the future if it appeared that the House had come to it after due deliberation upon all that might be said on the one side or the other. His hon. and learned Friend the Attorney General relied very much upon the 9 Geo. IV. as a third method of extinguishing the consequences of felony in addition to those that formerly existed by pardon under the Great Seal, or a conditional pardon under the Sign Manual. In his (Sir William Harcourt's) view the Act had no such operation. It was an Act for amending the Law of Evidence in certain cases, and in the midst of the Act, in the third section, was this provision—
Whereas it is expedient to prevent all doubts respecting the civil rights of persons convicted of felony, not capital, who have undergone the punishment for which they were adjudged, be it therefore enacted that where any offender has been or shall be convicted of any felony not punishable with death, and has endured, or shall endure punishment, the punishment so endured shall have the like effects and consequences of pardon under the Great Seal.That was an entirely different view from 508 that taken by the Attorney General, which was that that Act created a new remedy in cases of felony. On the contrary, it seemed to him—though he did not desire to express a positive opinion—that it declared merely what had always existed. He did not desire to express an opinion upon either the law or the policy of this question, but he thought, after listening to the speech of his hon. and learned Friend the Attorney General, that even professional persons might hold the opinion that this was a matter into which the House would do well to inquire. For himself, he desired to express no opinion either on the law or the policy of the question, but he must point out that certain points connected with it were well deserving of consideration. He wished his hon. and learned Friend had answered more explicitly the questions put by his hon. and learned Friend the Member for Taunton. The House must have been taken by surprise when it learnt that there was no punishment applicable in the present case. His hon. and learned Friend had asked what disability attached to this convicted felon, except the disability it was proposed to apply to him by vote of the House? He wanted a more explicit answer to this question than had been given by the hon. and learned Friend the Attorney General. The House had been told that Mr. Mitchel was under no statutory liability to punishment. It was said, however, that the taint of felony was indelible and must be endured for ever unless a pardon were granted or the sentence endured. Now, in this case the sentence could not be endured because the term of the sentence had expired; therefore there remained nothing except a pardon under the Great Seal. Well, if a convict felon, not having served his term, were subject to no other disability than what this House were about to inflict, he should like to hear the opinion of the Law Officers of the Crown on the subject of forfeitures, which, according to Blackstone and other authorities, were the great test of felony. He should like to hear from his hon. and learned Friend the Solicitor General whether he was prepared to inform the House that after the expiration of the period of the sentence forfeiture in respect of property applied as much as it would if the sentence were still current. This was a very important matter on 509 which he would not offer an opinion. Lawyers entertained grave doubts whether these forfeitures could be applied in cases where the term of the sentence had expired. If his hon. and learned Friend was not prepared to say that the civil penalty still remained, the House would be called upon to pronounce a disability in the case of a person who was subject to no other disability. This unquestionably would be extending the law of disability very much beyond its present limits. Again, if the House decided by a vote to-night on the very imperfect information now before it, that Mr. Mitchel was disabled, it might happen, as had happened before, that the person declared to be disabled would be re-elected; and it might also happen that some other person would set up a claim to the seat after having given notice that the other candidate was disabled. In such a case the latter might petition for the seat, and the matter would be referred to the Judges, who might hold one opinion respecting disabilities while the House of Commons held another. This was a position in which the House ought not to be in a hurry to place itself. This was a danger which he thought hon. Members ought to take into consideration before they determined a question which was not one of opinion, sentiment, or policy, such as arose in the case of expulsion, but was a question of legality, and the House might get engaged in one of those dangerous conflicts with the Courts of Law out of which the House of Commons had not always come with the greatest advantage. If a Committee were appointed what inconvenience could arise? Its members would be persons of the greatest experience and learning in the House, who would be perfectly competent to consider all the matters brought before them. A Committee would have the advantage of the learning and authority of his hon. and learned Friends the Law Officers of England and Ireland, who, after mature deliberation, would advise the House as to the course it ought to pursue. If, therefore, there were room for any reasonable doubt—he did not say a preponderance of opinion, because that was not necessary—it appeared to him that the House would take a course consistent with its former practice and its dignity, and one which would give satisfaction to those who, whatever the decision might 510 be, would bow to it the more readily when they considered that it was not a hasty decision, but the result of due and calm consideration.
THE SOLICITOR GENERALsaid, that notwithstanding he entertained the highest respect for his hon. and learned Friend the Member for Oxford, he must confess his hon. and learned Friend had failed to raise the slightest doubt in his mind on this question. At the outset he would remark that the question before the House was whether John Mitchel, being a convicted felon, was eligible to sit in the House of Commons? The question was not whether John Mitchel could be remitted to his punishment or proceeded against for escape, for prison breach, or for anything of the sort. With regard to his being remitted to his punishment, a question might arise under the statute, making it an offence for a man who had been transported or sent into penal servitude to be found at large without reasonable excuse; but in order to decide the matter with which the House had to deal to-night, it was not, in his opinion, in the least degree necessary to solve the question. The question which really arose was perfectly simple, and one upon which no one who had investigated it with an earnest desire to understand it could have not only any reasonable doubt, but any doubt-whatever. The Common Law of the land on the subject was laid down in such great storehouses of legal knowledge as Coke's "Institutes," wherein it was stated in the most positive and decisive manner that a man attainted of treason or of felony was incapable of being elected as a Member of Parliament. The ground for that statement of the law was extracted from the writ for the election of a Member of Parliament—not that a person so attainted had become civilly dead, but because he was not "a fit and proper person," within the language of the writ, to serve in Parliament. Nobody, he thought, would dispute the good sense of the Common Law on this subject, for could anyone doubt that a man disgraced and infamous as a convicted felon was, primâ facie, at all events, unfit to sit in that House? This was the ground on which the statement of the law contained in Coke's "Institutes," and other well-known books, was based. Further, they would find it stated that although a man who 511 had been attainted of treason or felony was incapable of sitting in Parliament, that disability might be removed by the pardon of the Sovereign, and his hon. and learned Friend was in error when he supposed that at Common Law, without reference to the statutes he had cited, that disability could not be removed in any other way. An old book of the highest authority on election law, after stating that attainder of treason or felony disqualified men from sitting as Members of Parliament, went on to say—
But if they have received a pardon under the Great Seal, or had the benefit of the clergy, or undergone the punishment of their offence, they are not ineligible unless the House declare them to he so by express resolution to that effect.There they had a distinct statement of the law on the subject. A doubt at one time arose as to whether a person who was not attainted for treason or felony, but was merely convicted, was disqualified. An attainder attached solely upon sentence of death being passed, and it was urged at one time, with some show of plausibility, that if the person who sought to qualify himself as a Member had not been sentenced, and had not been attainted, but merely convicted, he was not disqualified, because he did not come within the precise language of the authorities upon the subject. But that point, although it was capable of argument, had been decided in two cases which had been before the House. The first case was when a Resolution was brought forward in the House to the effect that Mr. Smith O'Brien having been "convicted" of felony, he was ineligible to sit in the House. There was an Amendment proposed that the Resolution should run that he had been "attainted." The Amendment was rejected, and the original Resolution agreed to, that, having been adjudged guilty—which was simply convicted—of felony, he was ineligible to sit in the House. They then came to another authority in 1870, when the point was expressly decided in the case of O'Donovan Rossa. O'Donovan Rossa had been convicted under the very statute upon which John Mitchel was convicted, and the question was whether, not having been sentenced to death, and the offence not being in fact punishable by death, he was or was not eligible to 512 sit in Parliament; and after full and ample discussion it was decided that, having been convicted and being still under sentence, he was disqualified to sit in Parliament. There could be no doubt, therefore, upon the question that conviction was disqualification in the present day. He came, then, to the question whether anything had happened in this case which had restored the qualification lost by John Mitchel through his conviction for felony. Even at Common Law nothing could restore that qualification except a pardon under the Great Seal, or what was equivalent to a pardon. Some two or three things were equivalent to a pardon. The Act 7 & 8 Geo. IV, c. 28, made the discharge of an offender from custody in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, to have the effect of a pardon under the Great Seal. Then came the Act 9 Geo. IV. His hon. and learned Friend (Sir Henry James) seemed to think that this statute referred simply to the removal of the incapacity previously imposed upon a man convicted of felony, in giving evidence. The recital of the Act, however, declared that it was—expedient to prevent all doubts respecting the civil rights of persons convicted of felony, not capital, who had undergone the punishment they were adjudged to undergo,and then it went on to enact that when an offender had been convicted of felony not punishable by death, and had endured the punishment, the like effect and consequences of a pardon would thereby be produced. The hon. and learned Member for Oxford asked what would be the consequence as regarded the forfeiture of land. This point had been decided; and, if he might be pardoned for quoting a Law Report in such an Assembly, he would refer to the case of "Evans v. Evans" in 5 Barnewall and Cresswell. In that case a man had been convicted of a capital offence; his sentence had been commuted to imprisonment for two years, and he had undergone that imprisonment; yet it was held that his status was not revived because he had undergone the imprisonment, but simply because he had received a pardon under the Great Seal. This case showed clearly, he thought, what would be the consequence with regard to forfeiture or any other offence, if a person did not 513 endure his imprisonment. What would be the logical result of the arguments on the other side? It was maintained that if a man, who was convicted and transported under his sentence, afterwards escaped, either by violence, or without violence, he had in fact endured his sentence, or what was equivalent to his sentence. [Sir WILLIAM HARCOURT: No—I never used that argument.] At all events, it was said that if the term of the sentence had expired, as in this case, the offender's qualification was restored, and he was entitled to sit as a Member of this House. It seemed to him that if that argument were pushed to its legitimate conclusion, any ticket-of-leave man might be elected and sit in this House. It would hardly be consistent with the honour and dignity of this House that a ticket-of-leave man should have a right to sit among its Members. In 1819 a question arose as to the effect of a sentence of transportation, and it was contended that, under a statute which said that transportation should have the same effect as a pardon had, the effect of a pardon was produced simply because the offender was sent out of the kingdom. It was decided, moreover, that the words of the Act could only be satisfied by the offender remaining the term for which he was transported. Reference had been made to the statute of 1870. This was an Act for abolishing forfeitures for treason and felony. It provided that in such cases corruption in blood and all similar disabilities should be done away with; but, in order that the principle of the law might be retained, there was a distinct enactment that persons convicted tinder the Act, until they had suffered the punishment adjudged or received a free pardon, should be incapable of holding various offices, or of exercising the Parliamentary or municipal franchise. It seemed to him that the law with reference to such offenders after the passing of this Act was what the law was with reference to such offenders before. In conclusion, he submitted that the case was perfectly plain. John Mitchel having been convicted of felony, not having received a pardon, and not having done anything equivalent to a pardon, remained disqualified to sit in that House.
§ MR. LOWEI think there are two things upon which we shall all agree. One is that this is a case of immense importance. 514 The other is that, after hearing the learned arguments which have been addressed to the House, it is a case of no inconsiderable difficulty. We can have no other wish than to do what is according to the law and custom of Parliament, and act with the most scrupulous justice and fairness in this matter. It is not because there are certain features in the case which may excite our feelings that we are to be hasty or precipitate, or lay ourselves hereafter open to the charge that we have not given this matter all the consideration it deserves. I would not presume to enter into the great legal controversy which has arisen; but if we act as we are asked to act—without further deliberation—we shall show certain signs of a haste which I should very much deprecate. Let me first refer to the terms of the right hon. Gentleman's Motion. He asks us to say—
That John Mitchel, returned as Member for the County of Tipperary, having been adjudged guilty of felony, and sentenced to transportation for fourteen years, and not having endured the punishment to which he was adjudged for such felony, or received a pardon under the Great Seal, has become, and continues, incapable of being elected or returned as a Member of this House.
§ The Motion is pregnant with these two admissions—first, that it is not sufficient for John Mitchel to have been guilty of felony, because other circumstances are added to make out the case; the second is that he has not endured the punishment to which he was adjudged. It is quite clear, therefore, that in the minds of the framers of the Resolution, this point is essential, as also that Mitchel has not received a pardon under the Great Seal. These are the views of the Government as they are embodied in their Resolution, and when the Attorney General rose in answer to a question distinctly put to him, whether Mr. Mitchel could be re-captured, and made to undergo the remainder of his sentence, he certainly replied in the negative; and he attached very considerable weight to that fact, as forming a strong part of the case against Mr. Mitchel. But when the Solicitor General came to speak, that hon. and learned Gentleman took an entirely different view of the matter, and laid it down distinctly that the mere fact of Mr. Mitchel having suffered a conviction for felony, whether the sentence had been enforced or not, was for all 515 times a disqualification for sitting in this House. ["No, no!"] That is what I understood the hon. and learned Gentleman to say, and he in no way qualified the words he used, although he may have had some qualification of them in his mind at the time he uttered them. Under these circumstances, there being this difference of opinion on the part of the Attorney and the Solicitor General, in my view we ought not to rush precipitately to a decision upon this question. Two precedents have been cited as authorities which ought to guide us in determining this case. The first of those precedents was the case of Mr. Smith O'Brien; but few hon. Members, after what they have heard with respect to that case, would like to give an opinion as to whether the fact of Mr. Smith O'Brien's attainder did or did not deprive the precedent of all value in the present case, Mr. Mitchel not having been attainted. The second precedent cited was the case of 0'Donovan Rossa; but that case cannot be followed as a precedent, because O'Donovan Rossa, at the time of his election, was a criminal undergoing his sentence, and if we had held that he was able to sit in this House, we should, of course, have implied that he must fulfil his duties as a Member, and therefore we should have been compelled to hold that the mere fact of a man being elected operated as a pardon for felony. It is clear, therefore, that we have not any case which is exactly in point, and we have a difference of opinion among the legal Advisers of the Government. Therefore, without the least wish to shield Mr. Mitchel from the consequences of his conduct, and desiring that the very strictest and, if you please, the very sternest justice should be shown to this man, I must express my opinion that the House would act not unwisely if they were to appoint a Committee to look carefully into these statutes. No great injury would result from the short delay that the adoption of such a course would occasion; while—if we were to act with undue haste in the matter—we might do that which would be injurious to our dignity, and would bring about political consequences which we should all be most anxious to avoid. Having a strong conviction on the subject, I feel it to be my duty to solicit the attention of Her Majesty's Government to my proposal, 516 and to ask them whether—considering how short a delay the course I have pointed out would lead to—the great complexity of the points involved, the recent alterations in the law, the difficulty of saying how far to go and when to stop, and the differences of opinion among the legal Advisers of the Government, it would not be better for them to refrain from pressing this question to a decision to-night?
MR. GATHORNE HARDYSir, I quite agree with the right hon. Gentleman who has just spoken that it is the duty of the House in such a case as this not to proceed without being certain of the course they are taking; and it is because Her Majesty's Government do feel that they are taking a right course, and that time is of the essence of the matter, that they venture to press upon the House that they should proceed to a decision upon this occasion. I might mention to the House many difficulties that might immediately arise if this matter were not at once disposed of. For instance, it might happen that Mr. Mitchel might appear at this Table to be sworn, and might be sworn, so far as you, Mr. Speaker, are concerned, by the fact of his coming to the Table with his return in his hand, at the very time when we were deliberating whether he should be sworn or not. I only put that as one ground why it is very desirable that we should come to a conclusion at once. With respect to the duty which we all have with regard to Mr. Mitchel, or to any other person whose seat in this House is in question, I quite admit, with the right hon. Gentleman opposite, that the matter ought to be adjudged judicially; and there is no object on the part of Her Majesty's Government to proceed against Mr. Mitchel, or any other persons specially, except in regard to the position in which they have placed themselves. I have observed throughout this debate that the right hon. and hon. and learned Members opposite have spoken, not with certainty, or endeavouring in any way to guide the House to a conclusion, but simply on the question of time, because they say that they cannot make up their minds with regard to it. On the other hand, my hon. and learned Friends who have spoken on this side of the House, after having given their greatest attention to the case, have stated their legal opinion upon this case, 517 and have told the House that Mr. Mitchel is in such a position that the Government must feel bound to call upon the House to act in accordance with precedents upon which it has acted heretofore, and come to a decision on this question. The question as to whether Mr. Mitchel could be re-captured is entirely beside the matter. The simple and the sole point upon which my hon. and learned Friends have relied is that Mr. Mitchel was made a felon by the conviction and judgment which was passed on him; that he has never rehabilitated himself; and that he is at this moment and remains as much a felon as he was when that sentence was passed upon him. There is no way of avoiding that effect of a conviction except, as has been pointed out by my hon. and learned Friends, by a pardon under the Great Seal, or by the fulfilment of the sentence; and we know perfectly well that Mr. Mitchel has neither obtained a pardon nor worked out his sentence. That being so, the right hon. Gentleman opposite says that there are differences of opinion on this question between the Attorney General and the Solicitor General. There is no such difference of opinion on their part at all. The Solicitor General alleged that the disqualification continued to exist, and could only be purged away by the means he expressed to the House, which was exactly what the Attorney General had previously stated to us. In what position are we with regard to Mr. Mitchel? We proceeded to deal with O'Donovan Rossa, not upon the ground that he was in prison—although the fact that he was in prison was mentioned at the time—but because he was a convicted felon.
MR. GATHORNE HARDYI know that; but every one can see that the argument proceeded upon the fact, not that he was in prison, but that he was a convicted felon. Then with regard to Smith O'Brien. The right hon. Gentleman opposite says that we proceeded in the case of Smith O'Brien because he was attainted. Now, that point was taken at the time and was argued, and in the discussion upon the election of O'Donovan Rossa, the Solicitor General of the day (Sir John Coleridge) showed what was done with regard to that point in the case of Smith O'Brien. He quoted the opinion of Sir John Jervis, one of 518 the greatest criminal lawyers of the day, and a man whose acuteness on all subjects this House may thoroughly depend upon. Sir John Jervis said—
Don't put in 'attainted;' there are many-felonies on which attainder at this time of day does not follow; if you put in 'attainted' you will be yielding to the argument of Sir Frederick Thesiger, that it is upon attainder, and technical attainder alone, that a man becomes ineligible. I would do nothing of the sort. I recommend the House of Commons to say that what really makes a man ineligible is the conviction and the judgment on conviction."—[3 Hansard, cxcix. 141.]That is a plain, simple, intelligible proposition. In this case there has been a conviction and judgment, and the criminal, when transported, made his escape without working out his sentence. Mr. Mitchel therefore remains a felon; and, in the discharge of their duty to this House and to the country, Her Majesty's Government call upon the House to say that John Mitchel is not qualified to be duly elected.
§ MR. JOHN MARTINsaid, he had no idea of continuing the legal argument even as an amateur. What he wanted to say was suggested by a remark of the hon. and learned Member for Oxford (Sir William Harcourt). He spoke of its being possible to proceed against Mr. Mitchel for breaking his parole. That was a question in which he (Mr. Martin) entertained a different, and a much deeper feeling than was involved in the mere legal question. That might be settled as the majority of the lawyers might think fit, and as the House might think fit; but the question Mr. Mitchel breaking his parole was a question of honour that concerned and compromised him (Mr. Martin), and upon which, therefore, he wished to say a few words to the House. When his friend (Mr. P. J. Smyth), who subsequently assisted Mr. Mitchel to escape, came over from America to Van Dieman's Land to consult with Mr. Mitchel and his friends, the scheme which they proposed to adopt was laid in full detail before Mr. Mitchel's three comrades—he meant the three convicted felons—one of whom was a traitor, and the other two were what the House called traitor-felons. He (Mr. Martin) was one of the felons. The scheme, in full detail, was laid by Mr. Mitchel before the late Mr. Smith O'Brien, Dr. O'Doherty, now in Queensland, and himself (Mr. Martin). Each of them was 519 requested by Mr. Mitchel to consider the details of the scheme which it was proposed to adopt, and to tell him, upon their honour, considering the ticket-of-leave, and the "comparative liberty" which he enjoyed, and considering his parole, and the entire circumstances, whether escape by this means would be honourable or not. Each of them considered it with the conscientiousness of honourable men, and some of them gave their opinions in writing that escape effected by such means would be honourable, and in no respect violate the obligations of his parole. [Laughter.] Well, that was his opinion, and he valued that laugh for no more than it was worth. Some of the leading London journals had tried to compliment him as an honourable man at the expense of his friend Mr. Mitchel, but his object now was to tell every hon. Member of that House—and through that House the London Press—that if Mr. Mitchel had violated his honour, he (Mr. Martin) was responsible for Mr. Mitchel's conduct. He knew that his friend Mr. Mitchel, however he might have offended that House and the English nation, had never told a lie, and had never violated his honour. He knew that. He (John Martin), Member for Meath, who was called honourable by courtesy in that House, and who valued his honour above all other kind of reputation, declared that if John Mitchel broke his parole, he (Mr. Martin) broke his. Fr the decision to which the House might come he cared little, nor did he think that Mr. Mitchel eared much. He had been elected unopposed and in his absence for Tipperary, and he was the real Representative of that county, no matter how the House might decide. He was sorry to be unable to sit down without referring to the display of un-amiable spirit which characterised the London Press, English literature generally, and even some Members of that House, and which led them to think that any man who was their enemy must therefore be stigmatised as a rascal and a blackguard. He thought that was a mistake. It was not chivalrous, generous, or virtuous.
§ MR. WHITBREAD, as a layman, had arrived at a pretty clear conviction as to what ought to be done in the present case. He certainly did not think that it would be possible, or, if possible, 520 practicable, to arrest Mr. Mitchel and remit him to prison for that portion of his sentence which he had not endured. They could not, in his view, treat Mr. Mitchel with any greater severity than they would any other ticket-of-leave man who had broken the conditions of his ticket; and looking to the history of the Acts which had been referred to, and to the practice with regard to the forfeiture of licences, he could not recommend Her Majesty's Government to act in that way. Indeed, if they turned to the very latest Act upon the subject, they would see in what way it dealt with the forfeiture of licences. Any action taken against the convict must be taken during the term of his sentence. If the convict broke one of the conditions of his licence he might be arrested and sent back to prison until his sentence expired. If he were summarily convicted of any offence during the currency of the ticket-of-leave, then, in addition to punishment to which he was liable for the offence, he could be sent back to penal servitude for the period of his sentence unexpired at that time; but when his sentence was over they could not touch him on account of his having broken any of the conditions of his licence. He was clearly of opinion that no action could be taken against Mr. Mitchel on that ground. On the other ground, however, his mind was perfectly clear that the action of the Government was the right one. The Act of 9 Geo. IV., c. 33, s. 3, had been very often referred to, and he wished to notice one remark in connection with that Act which was made by his hon. and learned Friend (Sir Henry James), who said that the 3rd section only applied to disability to give evidence, because it was in the Evidence Act. If, however, his hon. and learned Friend had searched a little further he would have found there was another Act passed in the same year for Improving the Administration of Justice in Criminal Cases in Ireland, and that in that Act the same clauses were repeated with this exception—that the second Act applied to cases of felony whether punishable by death or not. That Act declared that if a convict, when he had a conditional pardon given him, fulfilled the conditions of that conditional pardon, he was then in the same position as if he had received a pardon under the Great Seal. The Act did not apply to disability to 521 give evidence merely, but was declaratory as to the removal of other disabilities. The case, therefore, to his mind, as a layman, seemed a very simple one. Mr. Mitchel having been convicted of felony, had lost his civil rights and had incurred certain disabilities, one of which certainly was—as the House in a recent case had already decided—inability to be elected and to sit as a Member of that House. A wise and merciful law had declared that there was a way in which he could purge himself of those disabilities and become restored to his full civil rights. He had not chosen to fulfil these necessary conditions, and therefore to his (Mr. Whit-bread's) mind it was clear that he still remained under the disability. But grave doubts had been expressed upon this subject by hon. and learned Gentlemen whose opinions were entitled to great weight in that House. Some hon. Members thought that Her Majesty's Government could take upon themselves the responsibility of the step now proposed, but he did not. He did not think the Government could relieve the House from the full responsibility of the course they might take that night. The speech of Her Majesty's Attorney General had not, he thought, given them full confidence that the question had been fully considered; and therefore, though he did not himself entertain any doubt that the action proposed by the Government was the right one, yet seeing that the vote of the House would not be like a vote upon a Bill which could be re-considered, but that if they declared Mr. Mitchel ineligible their decision would be final and irrevocable, there was, he thought, considerable ground for the suggestion that the matter should be referred to a Select Committee. The right hon. Gentleman opposite (Mr. Gathorne Hardy) said there were grave objections to the adoption of that course, because Mr. Mitchel might come and demand to be sworn at the Table; but he (Mr. Whitbread) could not doubt that it was within the province of the House to prevent any such step being taken, and to come to a Resolution that Mr. Mitchel should not take his seat until the Committee of Inquiry had reported. If that were the case, then the only objection to a short delay had vanished, and he thought it would be more for the dignity and reputation of the House if, 522 instead of coming to a decision now, they should grant the time which had been asked; and he certainly felt that no evil would result from the adoption of such a course.
MR. LOPESexpressed his entire concurrence in the opinions expressed by his hon. and learned Friends the Law Officers of the Crown. And it was satisfactory to have those opinions so signally confirmed by the opinion of the hon. Gentleman who had just sat down. For his part, he should be most reluctant to differ from his hon. and learned Friends the Members for Taunton and Oxford (Sir Henry James and Sir William Harcourt), but they had candidly admitted that they had not had sufficient time to look fully into the question. The matter, indeed, lay in a very small compass. The facts were few, and the principle of law which governed the case was distinct and clear. It was not disputed that Mr. Mitchel had been convicted of felony, neither was it questioned that a convicted felon could not sit in the House. It was admitted that there were certain ways by which Mr. Mitchel could purge that incapacity—one was by Royal pardon, which he had not received, another by enduring his sentence under the Act of George IV. His hon. and learned Friend the Member for Taunton seemed to entertain some doubt whether that Act applied to disqualification of the kind in question; but in that view he could not concur; but if the hon. Member for Taunton was right, and a convicted felon could not be rehabilitated under that Act, it followed that nothing but a Royal Pardon would have any effect in restoring him to his civil rights. The sole question was, had Mr. Mitchel get rid of the felony of which he had been convicted? If he had not—and he was clearly of opinion that he had not—the ineligibility which it entailed remained. He submitted that the course for the House to take was perfectly clear, and that the case was on all fours with that of Mr. Rossa, the only distinction being that Mr. Rossa was at the time in prison, and that the sentence had not expired. Was it to be said that Mr. Mitchel, having eluded the vigilance of the law, was to be considered in the position in which he would have stood if he had endured his sentence? He submitted that he was placed in a different position, and 523 trusted that the House would adopt the course proposed by Her Majesty's Government.
THE MARQUESS OF HARTINGTONIt is hardly necessary to assure the House that anything I may say or that has been said by my hon. Friends on this Bench is not influenced by a desire either to see Mr. Mitchel a Member of this House or to see him excluded from it. To us, on political grounds, the way in which the matter may be settled is one of perfect indifference. I believe there are only one or two Members of the House with whom Mr. Mitchel would find himself in common agreement. On the other hand, I cannot think that the position of Mr. Mitchel differs so very much from that of other Members who sit in this House—that the dignity of the House would very greatly suffer from his presence. The only considerations by which we are moved are, on the one hand, the consideration whether it is due to the dignity of the House—seeing the peculiar position in which Mr. Mitchel is placed by his sentence and by his subsequent escape—that the same action should be taken in his case as was taken in the case of O'Donovan Rossa; and, on the other hand, we are influenced by the desire that the House should discuss the question on strictly legal grounds and should not import into it anything of a moral or political character. The House will not expect that I should follow the extremely intricate and technical argument which has been addressed to it on both sides. What is pretty plain is that the action of the Government was founded almost entirely, if not entirely, on the precedent in the case of O'Donovan Rossa in 1870. The hon. and learned Member who spoke last said that the case was on all-fours with that precedent. Now, I may point out to the House that the present case is not on all-fours with that of O'Donovan Rossa, because the Resolution which the House agreed to in that case stated—and it is not irrelevant to the point at issue—that O'Donovan Rossa "is now in prison and undergoing his sentence, and therefore incapable of attending the sittings of the House." The Government did not make that statement in the present case, because they are unable to do so; and therefore it is impossible to say that the precedent is altogether on all-fours with the present case. If I 524 had no other reason to doubt the present case being on all-fours with that of O'Donovan Rossa I should be satisfied with the statement of the Attorney General. He said that the House had disqualified Rossa, not because he was in prison and unable to attend the sittings of the House, but "because he was a felon who had not purged himself of the consequences of his felony"—and he stated that Mr. Mitchel was in the same position. Now, there lies the whole question, and I am not convinced by the arguments I have heard on the other side. What the House requires distinctly to know is, whether Mr. Mitchel is "a felon not purged from the consequences of his felony." I will not say that it is not true, but it has not been proved to the House; and if the House should accept that as a true conclusion, it would carry very extraordinary consequences with it. In the ordinary case of a felon not purged from the consequences of his felony it might be supposed that he was liable to something more than a disqualification to sit in Parliament. He would be liable to punishment. And this, of all the felons I ever heard of, is the only felon who, in the words of the Attorney General, cannot be proceeded against and prosecuted for breaking prison. The argument of the Attorney General is that he has committed a felony—that he has not purged himself from the consequences of that felony, and yet that he cannot be punished for that felony, although he is still under disqualification. That may be so; but it is a very extraordinary and unprecedented state of things. Other considerations have been urged which have led me to conclude that the case is not so absolutely clear as to induce the House at once to act upon it. Those who have read the debate in the case of O'Donovan Rossa will remember that very great stress was laid, and that the whole case was argued, upon the question whether he was legally disqualified or not. The House was not invited to consider whether Rossa was morally disqualified. I will not say for a moment whether Mr. Mitchel is morally disqualified or not. What the House is invited to consider is whether he is legally qualified or disqualified, and the matter is not so free from doubt as some hon. Members imagine. With regard to the argument of the Secretary for War, if we sup- 525 pose for a moment that Mr. Mitchel, pending the deliberations of a Committee of this House, were to take his seat as a Member, that would be a much less misfortune than if by any accident or undue precipitation the House should arrive at a wrong conclusion. I trust that, under the circumstances, the Government will not think it unworthy of them to appoint a Committee. If they do not, and the House proceeds to a division, although I should prefer, for the reasons I have given, that the matter should be referred to a Select Committee, I shall have no difficulty in voting with the hon. Member (Mr. O'Shaughnessy) in favour of the adjournment. If the House would allow that Motion to be withdrawn, and if another Motion were substituted for it—namely, the appointment of a Committee—it seems to me that the issue would be raised in a fairer manner.
§ THE SOLICITOR GENERAL FOR IRELAND (Mr. PLUNKET)said, he must claim the indulgence of the House for a few observations which he, as an Irish Law Officer, was called upon to make—because the most important and solemn part of the speech of his hon. and learned Friend the Member for Oxford (Sir William Harcourt) was when he asked what was the state of affairs as regarded John Mitchel's legal position in Ireland, and whether the Government were prepared to prosecute him. He wanted to know, in fact, what the Government were prepared to do in the way of taking criminal action against Mitchel; and, if they were not prepared to do so, whether they could justify the present proceeding, and ask the House to inflict upon him this very serious penalty. They—the Government—had considered the subject carefully, and they did not think that proceedings could be taken against Mitchel. And for these reasons. It had been already explained that the Irish statute relating to persons at large before the termination of their sentence did not cover the case of an offender who was found at large in any part of Her Majesty's dominions outside the United Kingdom; and, therefore, the Government could not proceed against Mitchel on that ground, he having been convicted in Ireland. Nor could they indict him for prison-breach, because there was no actual force employed; nor yet as regarded the smaller offence of an 526 escape could he be arrested in this country. That being the case, they were asked how the Government ventured to come to the House and represent to it that Mitchel was unfit to be elected a Member to represent the county of Tipperary. The simple answer was not out on the face of the Papers laid before the House—namely, that he was a felon adjudged guilty of felony, whoso disability had not been removed in either of two ways—either by obtaining a pardon from the Crown or by enduring the punishment recorded against him. There had, in truth, been only two questions raised which seemed to throw doubt upon the Resolutions that the Government had put upon the Paper. The first was the question raised by his hon. and learned Friend the junior Member for Limerick (Mr. O'Shaughnessy), who did not so much raise it as his own objection as on account of the letter written by his Colleague, the senior Member for Limerick (Mr. Isaac Butt), which appeared in that morning's journals. Now any suggestion which was made by the hon. and learned Member for Limerick on such a point of law was entitled to the utmost consideration, and the House would therefore, perhaps, allow him to explain why, in his opinion, it need not pause in the course which the Government invited it to take, because of that difficulty. What the hon. and learned Member for Limerick suggested was that it might at least be fairly argued that notwithstanding Mr. Mitchel's escape he had endured the sentence of transportation. The hon. and learned Gentleman went on to say that so far as he had been able to learn such a sentence originally amounted to nothing more than mere banishment out of the country for the period mentioned. But if that were so, on what authority, he should like to know, had Mr. Mitchel been detained in Van Diemen's Land? It was quite plain it must have been under an adjudication of some kind; and as there was but one adjudication against him, it must have been under that; therefore, unless his detention was perfectly illegal, he had entirely disposed, he contended, of the argument of the hon. and learned Member for Limerick. But the hon. and learned Gentleman added—
It is true that before 1848 there were statutes enabling the Sovereign and the Lord Lieutenant 527 to make regulations respecting transported persons; but, unless submission to the regulations was made a portion of the sentence, it meant nothing more than being carried beyond seas and remaining beyond seas for its term.Well, submission to the regulations might not be made portion of the sentence by the words of a Judge; but it was so made by the words of the statutes. The English statute was to the effect that every offender sentenced to transportation beyond the seas should be subject to the provisions of the Act; and those provisions were such as to enable the colonial Governor to apply to him the required discipline and to keep him in custody. Then another Act extended the English statute to Ireland, and went on to provide that it should be lawful for the Secretary of State to order the removal of a person so sentenced to transportation to the Colonies, and that being so removed he should be subject to like supervision and control as that which was prescribed by the former Act. Those two statutes must, he maintained, be read side by side with that which enabled the Court in Dublin to pronounce the adjudication against Mr. Mitchel, and, being so read, his sentence could not be said to have been endured, for it was quite impossible fairly to maintain that transportation under such circumstances meant nothing more than mere banishment. Again, a difficulty had been hinted by the hon. and learned Member for Oxford, who, having given proofs of that learning and research which he always displayed, ended by expressing no opinion of his own, nor did he assert any positive doubt as to the justice of the proposal which was made by the Government; and had, he (Mr. Plunket) would ask, any good reason been shown by any hon. Member why the House of Commons should stop in this great constitutional proceeding, and should not at once follow the precedents upon which it had always acted when it declared that a felon who had not expiated his crime or suffered his allotted punishment should not be permitted to come there as one of its Members? The case of O'Donovan Rossa was said by some to be not on all-fours with the present, because he was then actually in prison undergoing his sentence; but the Resolution which prevented him from taking his seat set forth that his claim to do so was 528 refused because his sentence was unexpired. It was for the same reason that the House was invited that evening to pursue a similar course. Mr. Mitchel, too, was an unpardoned felon, who had not endured his punishment, and clothed himself again with citizenship, and there was no precedent for allowing such a person to take his seat in the House of Commons. And was there, he would ask, anything in the case of Mr. Mitchel which ought to induce the House to strain a point in his favour? Surely there was not. The noble Marquess opposite, who spoke in a spirit of which it was not for him (Mr. Plunket) to complain, had said that after all there were a good many persons in that Assembly who were not much better than Mitchel. From that statement he must entirely dissent. There was, he believed, no one among them who, having been released on parole, had taken advantage of "the comparative liberty" accorded to him to break that parole, and escape to a foreign land, where he passed his time, until by a technicality he was able to return to his native country to beard a Government which had treated him with great leniency and compassion. He would, however, comment no further on the conduct of Mr. Mitchel in that respect, but would conclude by reading a passage from a speech of a great Statesman to whose words the House always listened with respect, and who knew men well. In 1856, at the conclusion of the peace with Russia, Mr. Duncombe asked the First Lord of the Treasury—Whether, in consequence of the numerous memorials presented at different times in favour of a full and free pardon to Messrs. Frost, Williams, Jones, Smith O'Brien, and other political prisoners, whose conduct during exile has been without reproach, it is the intention of Her Majesty's Government, on the celebration of peace, to advise Her Majesty to comply with the prayer of those memorials, and thereby enable those exiles to return to their native land? "—[3 Hansard, cxlii. 262.]Viscount Palmerston said—He must request the indulgence of the House, as it was against rule for him to speak again after moving the adjournment. He had great pleasure in stating to his hon. Friend and to the House, that the announcement which had appeared in the papers this morning was entirely and perfectly true. Her Majesty, following the impulses and dictates of those generous feelings by which she was so eminently distinguished, had determined to take advantage of the return of peace, and of the unexampled loy- 529 alty which prevailed from one end of her dominions to the other, to do an act of grace and clemency towards all persons under sentence for political offences, with the exception of those unhappy men who had broken all the ties of honour and fled from their place of banishment."—[Ibid.]
§ MR. W. E. FORSTERmust remind the hon. and learned Gentleman who had just addressed the House that they were not called upon to decide this Motion with reference to the question whether John Mitchel had acted dishonourably or not. It was not on that issue that he thought the hon. and learned Gentleman must himself desire to have it decided. It was just possible there might be hereafter a ground for the expulsion of Mitchel on that account; but surely they ought not to confuse the decision at which they might arrive by introducing that question or exciting the feelings of hon. Members in regard to it. The hon. and learned Gentleman, no doubt, was anxious they should decide purely on the question of law; but he must for himself state that he gave even a wider definition of this desire to act upon purely legal grounds than had yet been given. He did think that when it was a question of disputing the verdict of a large constituency, the benefit of any doubt ought to be given to that constituency. That was the principle which should be applied to all the Three Kingdoms. They should apply it to their own constituencies, and, indeed, it was the only safe principle which Parliament could now follow. But he would go further and say if he had any doubt that this ought to be the principle, the doubt would not apply in this case; for remembering the feelings which, unfortunately, were held by many of their Irish fellow-subjects, he should be exceedingly loth that any Irish constituency, more or less reluctant to join in the British Imperial Parliament, should find that the Member they did send from that constituency should be refused admission on any but the most distinct and decided grounds. He came down to the House, thinking he should have very little difficulty in this matter; but he was very much mistaken if any hon. Member had the same feeling of certainty now that he had before entering the House. There had been difficult legal arguments on both sides, and admissions had been made by hon. and learned Gentlemen which rendered the 530 question by no means so clear. There were three grounds on which it appeared to him John Mitchel might be refused admission to that House. They might be able to state that it was the common law of England that a man in his position should not be a Member of Parliament; or they might say there had been decisions of the House in former cases, according to which he was disqualified; or they might say that because this was a new case, and a case so very clear, they should come to a resolution that he should be excluded. As regarded the first of these grounds, he observed the assertion which had been made by the hon. and learned Gentleman opposite (the Solicitor General for Ireland): he said, John Mitchel, being a felon, was adjudged guilty of felony. The Resolution did not say he was a felon. That was the very point on which they were ignorant, and which they wanted to be thoroughly settled—whether John Mitchel was at this moment a felon or not. His hon. and learned Friend the Member for the City of Oxford (Sir William Harcourt) said that the felony was exhausted, and he watched to see what answer the Solicitor General would make to that statement; but he made no reply to it. But he was told John Mitchel was in a position in which he had thought none of Her Majesty's subjects could be—that he was a felon who could not be punished. He confessed he had always thought that a felon was a man who was either undergoing punishment or could be punished the moment he was get hold of. There seemed to be a doubt whether John Mitchel was a felon or not, and at any rate there was a great difference between his case and that of O'Donovan Rossa, for that man was under sentence at the time of his election, and that made it impossible for him to attend to his duties in that House. Then came the question whether, supposing the case to be a new one, the House ought to admit or exclude John Mitchel? But could the House decide that serious question at present? Would not their decision have greater force in Ireland if it were known there that they had come to a fair verdict after receiving the Report of a Select Committee? He would ask the Government to consider for a moment whether their own. Resolution would not have greater force if agreed to after a full discussion and de- 531 liberation of such a Committee? Her Majesty's Ministers were responsible for the government of the country; but he contended that they would find that government much easier if they should be able to point to the decision of a Select Committee and say that it excluded John Mitchel from being present in that House, instead of asking the House to say that after this hasty discussion. There being a great difference of opinion among hon. and learned Members at present, he considered that there ought to be a Committee composed of those Members whose names would carry the most weight with the country.
§ MR. DISRAELISir, the right hon. Gentleman who has just addressed us, said he came down to this House, and anticipated a very short discussion in consequence of the simplicity of the issue we laid before the House; and then the right hon. Gentleman made a speech, the object of which was to prolong discussion and to postpone decision. He recommends us to refer to a Committee what the House ought to decide itself. And on what ground are these latter sentiments of the right hon. Gentleman so different from the feeling with which he entered the House to-night,—on what ground are they founded? Why, upon the contradictory opinions which have been expressed during this discussion upon the subject before us. I have not heard any contradictory opinions. I have not left the House for a moment. I have listened attentively to every word which has been expressed, and these contrary decisions have not reached my ear. There have been no contrary decisions on this side of the House; and on the other side there have been no decisions at all. One right hon. Gentleman after another has get up to express his inability to come to any conclusion—telling us he could not decide; and the hon. Gentleman—whose opinions will always be received in this House with the respect they deserve—the hon. Member for Bedford (Mr. Whitbread) was the single exception on the other side of the House who did give an opinion—and he gave it in favour of the Resolution of Her Majesty's Government. Some hon. Gentlemen opposite seem to think that we are taking an interest in this case as if all our party feelings were involved in it. I can say for myself no Motion I have ever brought forward in this House 532 has given me more pain than the present. These are exactly the Motions to make which those who are responsible for the government of the country must feel to be one of the most painful duties of public life; but it is a duty we must perform to the House and the country. I do not say, as some have said before mo, with great deference to the legal Gentlemen who have addressed us, that it is not for a layman to speak on subjects of this kind. He may speak with less authority, perhaps; but every Gentleman who is a Member of this House has a right, and it is his duty, to express his opinion on this subject. The power, the honour, and responsibility of Parliament, which are the foundation of its real authority, are largely involved in this question of Parliamentary law and privilege; and when I am told we should refer this question to a Committee—when I am told that by right hon. Gentlemen who show, by the hesitation of their minds, that they are not prepared to go into that Committee with much confidence in their own discrimination and opinion, I must ask myself whether the consequences of such a policy may not be such a deviation from the duty of Parliament that it must tend to lower it in the opinion of the country. What is the simple issue before us, and on which I trust we shall now come to a decision? The issue is this. We find that a convicted felon has been returned a Member to this House. We know that he is incapacitated from sitting in Parliament by being a convicted felon. He was tried in 1848, and was adjudged a sentence of transportation for 14 years. He broke his imprisonment—that is the correct word, though connected with transportation—and he has not in any way, by the acknowledged legal and constitutional modes recognized in this country, either by the exercise of the Prerogative of the Crown, or by the fulfilment of the penalty awarded to him, rehabilitated himself in the position he formerly occupied. Then we are told that, having given his parole not to exceed the bounds of his imprisonment, he one day broke it, and could wander, if he liked, over all Australia or Europe with impunity, and, therefore, we must look upon this circumstance as equivalent to his having fulfilled the penalty adjudged by the law. Well, Sir, I ask are we to accept any such proposition as that? Are we here 533 in the House of Commons to announce that a man who took advantage of his own wrong should be able to plead his own misconduct as a good and sufficient reason why he should be permitted to avail himself of the privileges which are the most highly esteemed in this country, and which every honourable man is justly proud of? It was said early in the debate—and the opinion of an absent Member has been quoted from a letter—that transportation for a term of years means nothing more than allowing an individual to travel at his pleasure. I myself do not think so. Transportation involves duresse; every lawyer and law-book will tell you that transportation is not merely exile. Transportation is carried out under statutes; it involves duresse, and necessarily discipline and imprisonment, how-ever extended the bounds which are permitted by a lenient Government or an indulgent Governor. You cannot for a moment allow a quibble of this character. This is a question upon which the House of Commons ought to decide, and it ought to decide with promptitude. I deeply regret that we are called upon to decide it; but we have to do our duty, and, if we have, let us do it completely. Do not let us say that we really do not know what are our own privileges. Do not let us say that we must have a Committee to examine into those musty precedents of which we heard the other evening, and that we really have so little confidence in our own intelligence and our own resolution that a convicted felon may come to this Table, although almost every Member of this House disapproves his taking a seat, because no one has the courage to come forward and ask the House of Commons to declare its own law and what is also the ancient law of the country. I trust, therefore, that we shall decide, and decide without doubt, upon this question. The Resolution which has been brought forward appears to me to express with clearness the point before us. And here I must say I was surprised to hear from the right hon. Gentleman who spoke just now, a criticism that we had brought forward a Resolution which did not even pretend to express that Mitchel was a felon. Now, when I look to the language of the Resolution I read—" that John Mitchel, returned as a Member for the County of Tipperary, 534 having been adjuged guilty of felony," &c. What more could the right hon. Gentleman expect? He appears not to know what a felon is. I contend that it is no part of my duty to teach the right hon. Gentleman what a felon is; but it is part of my duty, if a felon is returned to Parliament, comes to this Table, and claims to be a Representative of the people, so long as I am sitting in this place, to call upon the House of Commons to avenge its outraged privileges, and to say that "until, either by the favour of the Crown or by your own dutiful conduct, you shall have cleared yourself from this flaw you shall not take your seat in the House of Commons."
§ MR. RONAYNEsaid, he would take no part in the legal or constitutional question which had been discussed. Mr. Mitchel had been accused of having broken his parole. It had been reserved for an Irishman first that night to accuse Mr. Mitchel of dishonour, according to the proverb that if one Irishman was to be roasted you would get another to turn the spit. The hon. and learned Gentleman to whom he referred had also said that there were men in the House not much better than Mitchel, alluding, he presumed, to him (Mr. Ronayne) among the rest. [Mr. PLUNKET dissented.] He admitted he was not much better. He had not the honour of being a convicted felon in 1848, but he ought to have been. There was no prouder reminiscence of his life than that he had been a member of the Young Ireland Party, who were remarkable for their ability, for their talents, and, above all things, for their honour. A course of action which had been approved by the late Smith O'Brien and by the hon. Member for Meath (Mr. Martin) would pass in any country as honourable. The magistrate who re-ported Mr. Mitchel's escape stated that the prisoner entered his office, instantly quitted it, and, mounting a horse, fled before he had time to read the letter handed to him. He also said he was accompanied by a short man of sallow complexion, whom he had seen once at his office, and whose name he was informed was Smyth. Many hon. Gentlemen in the House had seen and known the man called Smyth, and he now held in his hand a telegram from that gentleman, to the effect that the statement of the magistrate was false; that Mitchel gave him full time to peruse his note, 535 and told the magistrate twice before leaving the office what brought him there. The Habeas Corpus Suspension Act was in 1848 passed in one night, and the proceedings to-night were as precipitate and stringent, for no time had been given to have documents printed, and consequently they could not calmly and properly consider the conduct of chivalrous John Mitchel. He contended that these proceedings would have a bad effect on Irishmen; and though he had taken no part in the election because he had joined the Home Rule Party, yet it must not be supposed that Home Rulers would abandon Mr. Mitchel, or that the electors of Tipperary would not do again what they had done.
§ MR. O'SHAUGHNESSYsaid, that he proposed to withdraw his Amendment should one for the appointment of a Select Committee be made in substitution of it.
§ MR. O'CLERYentered his protest against the act of Her Majesty's Government, who were endeavouring to deprive of their legal rights the electors of the great county of Tipperary. The Government, by infringing the law, and thus placing themselves in the position of accessories before the fact, were bringing the Constitution into contempt. He denied that Mitchel was a revolutionist; on the contrary, he was Conservative in the true sense of the word. At a time when the Government was allowing a million of the Irish people to die of starvation, it was natural that a young Irishman should denounce its action, as John Mitchel did in 1848. His conviction was one of the most tyrannical acts done by any Government in modern times. In that same year the English Government lectured many of the Continental Governments in regard to the treatment of political offenders, but it stultified itself by its conduct towards Mr. Mitchel. In seeking to justify its proceedings in the eyes of Europe it did not hesitate to decry the personal character of the man, and it even went the length of inventing a new crime which it called by the name of treason-felony. He strongly protested against the Resolution of the right hon. Gentleman opposite.
§ Question put.
§ The House divided;—Ayes 102; Noes 269: Majority 167.
538| AYES. | |
| Adam, rt. hon. W. P. | Johnstone, Sir H. |
| Balfour, Sir G. | Kensington, Lord |
| Barclay, J. W. | Kinnaird, hon. A. F. |
| Bazley, Sir T. | Leatham, E. A. |
| Beaumont, Major F. | Lefevre, G. J. S. |
| Biddulph, M. | Leith, J. F. |
| Biggar, J. G. | Lewis, O. |
| Blennerhassett, R. P. | Lloyd, M. |
| Bowyer, Sir G. | Locke, J. |
| Bristowe, S. B. | Lowe, rt. hon. R. |
| Brogden, A. | Macdonald, A. |
| Brown, A. H. | Macgregor, D. |
| Browne, G. E. | M'Combie, W. |
| Cameron, C. | M'Kenna, Sir J. N. |
| Campbell-Bannerman, H. | Martin, J. |
| Monck, Sir A. E. | |
| Carter, R. M. | Moore, A. |
| Chadwick, D. | Newdegate, C. N. |
| Chambers, Sir T. | Nolan, Captain |
| Clarke, J. C. | O'Byrne, W. R. |
| Collins, E. | O'Clery, K. |
| Colman, J. J. | O'Conor, D. M. |
| Cowen, J. | O'Gorman, P. |
| Cross, J. K. | O'Loghlen, rt. hon. Sir C. M. |
| Crossley, J. | |
| Dickson, T. A. | O'Reilly, M. W. |
| Dilke, Sir C. W. | O'Sullivan, W. H. |
| Dillwyn, L. L. | Pennington, F. |
| Dixon, G. | Plimsoll, S. |
| Dunbar, J. | Power, J. O'C. |
| Earp, T. | Power, R. |
| Ennis, N. | Redmond, W. A. |
| Errington, G. | Richard, H. |
| Fitzmaurice, Lord E. | Richardson, T. |
| Forster, Sir C. | Ronayne, J. P. |
| Forster, rt. hon. W. E. | Shaw, R. |
| Gladstone, rt. hn. W. E. | Shaw, W. |
| Goschen, rt. hon. G. J. | Sheil, E. |
| Gourley, E. T. | Sheridan, H. B. |
| Gower, hon. E. F. L. | Sherriff, A. C. |
| Harcourt, Sir W. V. | Simon, Mr. Serjeant |
| Harrison, C. | Stacpoole, W. |
| Harrison, J. F. | Sullivan, A. M. |
| Hartington, Marq. of | Swanston, A. |
| Havelock, Sir H. | Tracy, hon. C. R. D. Hanbury- |
| Herschell, F. | |
| Hill, T. R. | Trevelyan, G. O. |
| Holms, J. | Ward, M. F. |
| Holms, W. | Whitworth, W. |
| Hopwood, C. H. | Williams, W. |
| Howard, hon. C. W. G. | Young, A. W. |
| James, W. H. | TELLERS. |
| James, Sir H. | Conyngham, Lord F. |
| Jenkins, D. J. | O'Shaughnessy, R. |
| NOES. | |
| Adderley, rt. hn. Sir C. | Beach, W. W. B. |
| Anderson, G. | Beaumont, W. B. |
| Anstruther, Sir W. | Bentinck, G. C. |
| Arkwright, A. P. | Beresford, Lord C. |
| Arkwright, R. | Beresford, Colonel M |
| Ashbury, J. L. | Bolckow, H. W. F. |
| Baggallay, Sir R. | Boord, T. W. |
| Bailey, Sir J. R. | Bourke, hon. R. |
| Baring, T. C. | Bourne, Colonel |
| Barrington, Viscount | Bousfield, Major |
| Bassett, F. | Brassey, T. |
| Bates, E. | Bright, R. |
| Bathurst, A. A. | Brise, Colonel R. |
| Beach, rt. hn. Sir M. H. | Bruce, hon. T. |
| Bruen, H. | Grieve, J. J. |
| Buckley, Sir E. | Gurney, rt. hon. R. |
| Bulwer, J. R. | Hall, A. W. |
| Burrell, Sir P. | Halsey, T. F. |
| Callender, W. R. | Hamilton, Lord C. J. |
| Cameron, D. | Hamilton, Lord G. |
| Campbell, C. | Hamond, C. F. |
| Cave, rt. hon. S. | Hankey, T. |
| Cave, T. | Hardcastle, E. |
| Cawley, C. E. | Hardy, rt. hon. G. |
| Cecil, Lord E. H. B. G. | Hardy, J. S. |
| Chapman, J. | Harvey, Sir R. B. |
| Christie, W. L. | Herbert, H. A. |
| Churchill, Lord R. | Hermon, E. |
| Clifford, C. C. | Hick, J. |
| Clive, hon. Col. G. W. | Hogg, Sir J. M. |
| Clive, G. | Holker, Sir J. |
| Clowes, S. W. | Holland, Sir H. T. |
| Cobbold, J. P. | Holland, S. |
| Cole, H. T. | Holmesdale, Viscount |
| Coope, O. E. | Holt, J. M. |
| Corbett, J. | Home, Captain |
| Cordes, T. | Hood, Captain hon. A. W. A. N. |
| Corry, J. P. | |
| Cotes, C. C. | Hubbard, J. G. |
| Cowan, J. | Huddleston, J. W. |
| Cowper, hon. H. F. | Hunt, rt. hon. G. W. |
| Cross, rt. hon. R. A. | Isaac, S. |
| Cuninghame, Sir W. | Jackson, H. M. |
| Cust, H. C. | Johnson, J. G. |
| Dalrymple, C. | Johnston, W. |
| Davenport, W. B. | Jolliffe, hon. S. |
| Deakin, J. H. | Karslake, Sir J. |
| Denison, C. B. | Kay - Shuttleworth, U. J. |
| Denison, W. E. | |
| Dickson, Major A. G. | Knowles, T. |
| Disraeli, rt. hon. B. | Laverton, A. |
| Dodson, rt. hon. J. G. | Lawrence, Sir J. C. |
| Dyott, Colonel R. | Learmonth, A. |
| Edmonstone, Admiral Sir W. | Leeman, G. |
| Legard, Sir C. | |
| Edwards, H. | Lennox, Lord H. G. |
| Egerton, hon. A. F. | Leslie, J. |
| Egerton, Sir P. G. | Lloyd, S. |
| Elcho, Lord | Lloyd, T. E. |
| Ellice, E. | Lopes, H. C. |
| Elliot, G. | Lopes, Sir M. |
| Elphinstone, Sir J.D.H. | Lowther, hon. W. |
| Eslington, Lord | Lowther, J. |
| Evans, T. W. | Lubbock, Sir J. |
| Ewing, A. O. | Lusk, Sir A. |
| Eyton, P. E. | Macartney, J. W. E. |
| Fielden, J. | Macduff, Viscount |
| Fellowes, E. | MacIver, D. |
| Fergusson, R. | Mackintosh, C. F. |
| Forester, C. T. W. | M'Arthur, W. |
| Forsyth, W. | M'Lagan, P. |
| Fraser, Sir W. A. | Mahon, Viscount |
| Freshfield, C. K. | Maitland, J. |
| Gardner, J. T. Agg- | Majendie, L. A. |
| Gardner, R. Richardson- | Makins, Colonel |
| Manners, rt. hn. Lord J. | |
| Garnier, J. C. | March, Earl of |
| Gibson, E. | Marjoribanks, Sir D. C. |
| Gilpin, Colonel | Marten, A. G. |
| Goldney, G. | Martin, P. W. |
| Goldsmid, Sir F. | Mellor, T. W. |
| Gooch, Sir D. | Merewether, C. G. |
| Gordon, W. | Milbank, F. A. |
| Gorst, J. E. | Mills, A. |
| Grantham, W. | Mitchell, T. A. |
| Greenall, G. | Montagu, rt. hn. Lord R. |
| Gregory, G. B. | Montgomerie, R. |
| Montgomery, Sir G. G. | Scott, M. D. |
| Morgan, G. O. | Selwin-Ibbetson, Sir H.J. |
| Morley, S. | |
| Mowbray, rt. hn. J. R. | Shute, General |
| Mulholland, J. | Sidebottom, T. H. |
| Mure, Colonel | Simonds, W. B. |
| Naghten, A. R. | Smith, F. C. |
| Neville-Grenville, R. | Smith, S. G. |
| Newport, Viscount | Smith, W. H. |
| Northcote, rt. hon. Sir S. H. | Smollett, P. B. |
| Somerset, Lord H. R. C. | |
| Norwood, C. M. | Stanhope, hon. E. |
| O'Callaghan, hon. W. | Stanhope, W. T. W. S. |
| O'Neill, hon. E. | Stanley, hon. F. |
| Onslow, D. | Starkey, L. R. |
| Parker, Lt. Col. W. | Starkie, J. P. C. |
| Peek, Sir H. W. | Stevenson, J. C. |
| Peel, A. W. | Storer, G. |
| Pell, A. | Sturt, H. G. |
| Pemberton, E. L. | Talbot, J. G. |
| Pender, J. | Taylor, D. |
| Percy, Earl | Taylor, rt. hn. Colonel |
| Perkins, Sir F. | Tennant, R. |
| Phipps, P. | Thynne, Lord H. F. |
| Pim, Captain B. | Tollemache, W. F. |
| Plunket, hon. D. R. | Torr, J. |
| Plunkett, hon. R. | Tremayne, J. |
| Polhill-Turner, Capt. | Turner, C. |
| Price, Captain | Vance, J. |
| Puleston, J. H. | Waddy, S. D. |
| Raikes, H. C. | Wait, W. K. |
| Read, C. S. | Walpole, rt. hon. S. |
| Reed, E. J. | Walsh, hon. A. |
| Rendlesham, Lord | Walter, J. |
| Ridley, M. W. | Waterhouse, S. |
| Ripley, H. W. | Waterlow, Sir S. H. |
| Ritchie, C. T. | Watney, J. |
| Robertson, H. | Weguelin, T. M. |
| Rodwell, B. B. H. | Wellesley, Captain |
| Roebuck, J. A. | Wells, E. |
| Rothschild, N. M. de | Whitelaw, A. |
| Round, J. | Wilmot, Sir H. |
| Russell, Lord A. | Wilmot, Sir J. E. |
| Russell, Sir C. | Wolff, Sir H. D. |
| Ryder, G. R. | Woodd, B. T. |
| St. Aubyn, Sir J. | Yarmouth, Earl of |
| Salt, T. | Yeaman, J. |
| Samuda, J. D'A. | Yorke, hon. E. |
| Sanderson, T. K. | Yorke, J. R. |
| Sandon, Viscount | TELLERS. |
| Sclater-Booth, rt. hn. G. | Dyke, W. H. |
| Scott, Lord H. | Winn, R. |
§ Original Question again proposed.
THE MARQUESS OF HARTINGTONsaid: I am not going to enter into any further discussion, nor even, as far as I am concerned, to trouble the House with another division, but, simply to put on record the grounds on which I and many others on this side of the House have voted, I will move the following Amendment:—
That a Select Committee be appointed to consider the return of John Mitchel for the county of Tipperary, and to search for precedents and report thereupon to the House.
§
Amendment proposed,
To leave out from the word "That" to the end of the Question, in order to add the words "a Select Committee he appointed to consider the return of John Mitchel for the County Tipperary, and to search for precedents, and report thereupon to the House."—(The Marquess of Hartington.)
§ SIR GEORGE BOWYERtrusted that Her Majesty's Government would re-consider the course they were taking, as the question was a question of law, and a perfectly new one, that had never been decided before. He had no doubt there were many hon. Members on the other side who entertained grave doubts on the subject. The matter had been debated by learned counsel on both sides, and he thought it would be only fair to wait a short time, until the question could be thoroughly gone into by hon. Members.
§ Question, "That the words proposed to be left out stand part of the Question," put, and agreed to.
§
Main Question put, and agreed to.
Resolved, That John Mitchel, returned as Member for the County of Tipperary, having been adjudged guilty of felon, and sentenced to transportation for fourteen years, and not having endured the punishment to which he was adjudged for such felony, or received a pardon under the Great Seal, has become, and continues, incapable of being elected or returned as a Member of this House.