HC Deb 27 February 1882 vol 266 cc1804-17

Motion made, and Question proposed, That there be laid before this House, a Copy of the Record of the Conviction and of the Judgment, in the case of the Queen against Michael Davitt and another, tried at the Central Criminal Court on the 11th of July 1870."—(Mr. Attorney General.)

MR. HEALY

said, the Government had now had three whole days in which to consider the course they would take in the case of Michael Davitt. They had not followed the precedents set by the House on previous occasions—at any rate, they had not given the House any but a verbal intimation of the course they intended to pursue. They might have placed on the Table of the House something to indicate the form of communication they were about to make to hon. Members. They had not done so, however; and now, at a quarter past 1 in the morning, after having had three days to consider the matter, they saw fit to move for a Return of a technical character, upon which, in this case, a great deal might depend, without having given hon. Members an opportunity of seeing the terms of the Motion. The Government must excuse the Irish Members for objecting to the course they had taken, as this was the case of a man whom the whole Irish people regarded as a benefactor to their country. The Irish Members were determined to use every Form of the House it was necessary to use, in order to safeguard the interests of Michael Davitt. He would respectfully submit to the Government that they should put a Notice of Motion on the Paper to-night, and move for the Return to-morrow. His opposition to the course the Government was now taking was based upon a statement found on page 270 of Sir Erskine May's Parliamentary Practice, in which he was informed that— An Unopposed Motion can be brought on by consent of the Mouse without previous Notice; but if any Member should object it cannot be pressed. That being so, he begged respectfully to "object" to the Motion made by the hon. and learned Member. There was no hurry in the matter—there was no need for this unseemly haste, this haste that might even be characterized as indecent, seeing that there were many technicalities to be considered. The Government could not have a shadow of excuse for objecting to putting the terms of the Motion on the Paper. If the technical objection he now urged was not sufficient, he would take any other course to bring about delay that might be open to them as Members of the House to take. He "objected" to the Motion, if that were sufficient, and if not, he would move the adjournment of the debate.

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, he had no right to make a speech; but, with the indulgence of the House, he would say a few words in reply to the hon. Member in reference to what had occurred in this matter. The Government had pursued, so far as he knew, the course that had always been taken. If there was reason to believe that a person who had been returned to Parliament had been convicted of felony, and was, by Statute, unable to take his seat, the course was forthwith to lay on the Table of the House a copy of the Record of that conviction. It was for the House to deal with the Record when it came to discuss the matter. The hon. Member said the Government had waited three days. The return took place on Friday last, so that they were obliged to lose two days—Saturday and Sunday—but they had availed themselves of the first opportunity they could got to present a copy of the Record of the Conviction of Michael Davitt. The hon. Member had referred to the work of Sir Erskine May—Parliamentary Practice and Precedents—but on the very page the hon. Member had quoted from occurred these words, which the hon. Member had not read— If a Minister moves for a Return, which no is prepared to present immediately, it is customary to make such Motion without previous Notice. [Mr. HEALY: "Customary!"] That was the ordinary custom and precedent. There was no rule against it. Practically no Motion had been made; but a copy of the Record had been placed on the Table of the House for the purpose of being discussed. If it should appear tomorrow that there was any new matter in the case that took the House by surprise, it would be considered. As a Question of Privilege this would be the first Business to-morrow; and if it could be shown that there was any prejudice in bringing it on at such a time, that question would be considered when it arose. He believed, however, that no new matter could arise in placing the Record of the Conviction on the Table of the House, beyond what had arisen in previous cases. The course he now adopted was followed in the case of O'Donovan Rossa, with this exception—that only two days elapsed between the Return and the discussion in the matter of that election. It was known that Michael Davitt was convicted of felony when he was returned, and that this discussion would arise.

MR. SEXTON

said, he thought the Government had taken an unusual course, and he failed to understand the logic of the Attorney General in his opposition to the hon. Member for Wexford (Mr. Healy). The hon. Member had produced a specific rule, stated in the most emphatic and clearest terms by Sir Erskine May—namely, that when Notice was given of any Return, and any Member opposed the Return, it should not be proceeded with. The language was emphatic; but what did the Attorney General oppose to that? Merely a general statement that it was customary, when a Minister moved for a Return, to allow the Return immediately. He (Mr. Sexton), however, thought it must be apparent to any man that as against an emphatic rule a general custom could not be accepted. The Attorney General stated that in the case of O'Donovan Rossa two days were allowed to elapse between the Motion and the presentation of the Return; but not only in that case, but in the case of John Mitchel, that was done, and these were the only two recent precedents. It ap- peared from the Journals of the House that on the 8th of February, 1870, the Prime Minister moved for a Record of the Conviction of O'Donovan Rossa to be laid on the Table. No opposition was made to the Motion, and no hon. Member availed himself of the Rule provided in Sir Erskine May's work; but the matter was set down for consideration on the following Thursday. Members taking an interest in the matter were allowed two days to consider it. Then, in the other case, on Tuesday, the 16th of February, 1875, on the Motion of the Prime Minister, it was ordered that the Papers relating to the conviction and escape of John Mitchel should be laid on the Table of the House. No opposition was raised, and the Papers were granted; but it was further ordered that the Papers should be considered on the Thursday. In that instance two days were allowed to elapse, and then the Government took a day of their own—the Thursday; but in this case the Government were flying in the face of the precedents. They did not propose to take a Government day, or to give two days' interval; but they proposed to give less than 24 hours, and then to consider the matter on a private Members' day. He thought he had established a conclusive case in support of his hon. Friend's argument.

MR. HEALY

wished Mr. Speaker to give a ruling on the point of Order whether, objection having been taken, the Return could be produced without Notice. He and his Friends did not object to the Return; but they wanted to see the terms on the Paper, and they objected to this undue haste.

MR. SPEAKER

I have already stated to the House in the early part of the Sitting that there has been no departure from the ordinary custom. The course pursued is quite according to the usual course, and it is in accordance with the precedent in the case of O'Donovan Rossa.

MR. CALLAN

said, that in the case of John Mitchel his hon. and gallant Friend (Colonel Nolan) apologized for the absence of the hon. Member for Louth, who intended making some remarks upon the Motion. This showed that Notice had been given, and that the Motion was not kept quiet, as in the present case. The election of Michael Davitt was perfectly well known to the Law Officers of the Crown last Thurs- day; and they could have given Notice of a Motion for these Papers, instead of proposing to consider the matter now, at half past 1 in the morning. In the case of John Mitchel 48 hours were given for consideration, and the Rule on the subject was quite clear. If Sir Erskine May's book was worth the paper it was printed on, the House ought to pay respect to it. Sir Erskine May laid it down that an Unopposed Motion could be brought on without Notice; but if any Member should object it could not be pressed. Nothing could be clearer than that; and it would only be showing due deference to the eminent authority on the question if the Attorney General followed the Rule. If not, the laws and practice of Parliament, as laid down by Sir Erskine May, would not be enhanced in public opinion. He also thought the Attorney General should pay some courtesy to the Irish Members, and not persevere with the Motion, unless he would name Thursday for its consideration. Even the Tory Government, about whose crimes and offences so much was heard, gave 48 hours for the consideration of John Mitchel's case; and, surely, when only 15 hours were given, it was not strange that the Irish Members should press what they conceived to be their rights.

MR. JUSTIN M'CARTHY

said, that the Attorney General had not explained why he wished to press this matter on in such haste. There were only two precedents in the memory of the oldest Member of the House—the cases of O'Donovan Rossa and John Mitchel; and in both those cases ample Notice was given, one or two days being allowed to elapse between the Motion and the Notice; and in each case the Government put down their Motion for a Government day, and not, as in this case, for a private Members' day. If this Motion should come on tomorrow it would occupy the greater part of the Sitting, and he could not imagine why it was pressed with such unbecoming haste. Why should not the customary time be given? What was the reason for departing in this case from the only precedents that existed? He did not understand that Mr. Speaker had given his ruling on this question; and it seemed important that the House should know whether an objection raised to a Notice of this kind was not, according to Sir Erskine May, fatal for the time being. Custom was not law, and he would ask Mr. Speaker to rule whether the objection of the hon. Member was not fatal.

MR. CHILDERS

Sir, it appears to me that hon. Members have mixed up two questions which are quite distinct. The one is whether the Motion for this Return ought, according to the practice of the House, to be at once put; the other is whether, after the Return has been granted, a certain debate should take place to-morrow, or after longer Notice. These two questions are perfectly distinct. As to the last question, the House will remember that not long ago there was a discussion of a few minutes' duration whether the debate in which we were engaged should be adjourned till to-morrow or Thursday; and it was distinctly urged by several hon. Members on the other side that, inasmuch as this very question about Michael Davitt would come on to-morrow, it was expedient to postpone the debate on the Motion of my hon. and learned Friend until Thursday, and that observation passed with the approval and applause of some of the very Gentlemen who are now taking exception to this Motion. But that is not the question before the House at this moment. The question before us is with respect to this particular Return; and you, Sir, have ruled in the most explicit way that according to the custom of the House, on a Member of the Government moving for a Return which he is prepared to present, that Motion is, by the custom of the House, put at once. There is a distinction in this respect between Motions for Returns and Motions for Addresses to the Crown. It is usual that Motions for Addresses to the Crown shall be always subject to Notice; but I have been in Parliament 22 years, and I will undertake to say that during that time there never has been an instance in which a Minister moving for a Return, which he was there and then prepared to present, has been intercepted by anyone objecting to the Motion being put without previous Notice on the Paper. That is invariably the rule and the custom of the House; and, therefore, those who ask us to do otherwise are proposing to the House a perfectly new practice. The question of what shall be done after this Return has been ordered and presented is another thing. Notice as to that will be given to-morrow, and if it is then thought premature to discuss the matter then will be the time to object. This is not the time to discuss the Return; and, therefore, I trust you, Sir, will rule that, in accordance with the practice, the Motion ought to be put at once.

MR. GRAY

said, he did not understand Mr. Speaker to have made any ruling at all, but simply to have said that the custom of the House was being followed in this case. There could be no question that it was customary to grant Returns of this kind on the Motion of a Minister, without the Motion having been put on the Paper; but there were a great many things which were customary in the House, but which could be departed from according to the strict Rules of Procedure. For instance, it was customary to permit a Bill to be read a first time without discussion; but that custom was sometimes departed from. Sessional Orders were customarily put in such a way that no one knew whether they were passed or not; but it was open to a Member to raise a discussion upon every one of them, though probably it would be difficult to quote a precedent for such a course. But here it was laid down authoritatively in the Text Book that if such a Motion as this was opposed it could not be pressed, and the question was whether that Rule was to be departed from. Mr. Speaker had stated what was customary; but he had not gone so far as to rule that, as the Secretary of State for War had suggested, the Rule was to be departed from when any hon. Member thought fit to ask that that should be done.

MR. SPEAKER

I have already twice stated to the House that the ordinary course has been pursued. The course taken by a Minister of the Crown in presenting this Paper to the House without Notice is quite in Order. I can say no more than that.

MR. R. POWER

wished to correct a statement which his right hon. Friend the Secretary of State for War had fallen into. The right hon. Gentleman said he had been 22 years in the House, and had never known opposition to be offered to a Motion of this kind. Now, he found that when the case of John Mitchel was brought forward in 1875, Mr. Disraeli moved a Resolution and said— I propose on Thursday next to move—' That John Mitchel, returned as Member for the county of Tipperary, having been ad- judged guilty of felony and sentenced to transportation for 14 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; that Mr. Speaker do issue his warrant to the Clerk of the Crown to make out a new writ for the election of a Member to serve in the present Parliament for the county of Tipperary in the room of John Mitchel, adjudged and sentenced as aforesaid.' "—[3 Hansard, ccxxii. 417.] He (Mr. E. Power) found, further, that the House did object on that occasion, and that there was a division: Ayes 174, Noes 13. Surely that was offering opposition to a Motion.

MR. CHILDERS

What I said was that the Motion should be put without Notice—not that it might not be opposed when put.

MR. LEAMY

said, the Irish Members did not contend that the course taken by the hon. and learned Attorney General was not in Order; but they objected to that course being taken, and they wished to know if the objection was valid under the half-past 12 o'clock Rule.

MR. SPEAKER

In order to satisfy the hon. Member I will at once say that, if objection is raised, the objection is not good.

Question put.

The House divided:—Ayes 64; Noes 10: Majority 54.—(Div. List, No. 30.)

Paper presented accordingly.

THE ATTORNEY GENERAL (Sir HENRY JAMES)

I beg to give Notice that to-morrow I will submit the following Motion to the House:— That Michael Davitt, returned as a Member for the County of Meath, having been adjudged guilty of felony, and sentenced to penal servitude for fifteen years, and being now imprisoned under such sentence, is incapable of being elected or returned as a Member of this House. That Mr. Speaker do issue his Warrant to the Clerk of the Crown in Ireland, to make out a new Writ for the election of a Member to serve in this present Parliament for the County of Meath, in the room of Michael Davitt, adjudged and sentenced as aforesaid. I beg to move that the Paper be taken into consideration.

Motion made, and Question proposed, "That the said Paper be taken into Consideration To-morrow, and be printed."—(Mr. Attorney General.)

MR. CALLAN

asked when the hon. and learned Gentleman proposed that the Motion should be taken into consideration?

THE ATTORNEY GENERAL (Sir HENRY JAMES)

I have already said this day.

MR. CALLAN

The hon. and learned Member said "to-morrow."

THE ATTORNEY GENERAL (Sir HENEY JAMES)

I meant this day, Tuesday.

MR. HEALY

said he would move as an Amendment that the Motion be taken into consideration on Thursday next.

Amendment proposed, to leave out the word "To-morrow," and insert the words "on Thursday,"—(Mr. Healy,)—instead thereof.

Question proposed, "That the word 'To-morrow' stand part of the Question."

Mr. CALLAN

said, he thought that the precedent set on the last occasion should be followed now. When the case of John Mitchel was before the House an eminent Constitutional authority, who, he was sorry to say, had no longer a seat in the House—Sir George Bowyer—said in reference to what then occurred, and which was precisely similar to that which had occurred to-night, that it Showed the great inconvenience of proceeding with an important Motion of which no Notice had been given on the Paper. What had happened? The Irish Members were in the Lobby or in the dining-room; at all events, out of the House. They heard that something was being done about the Tipperary election; they came in and they did not know what it was that was proposed. [Ironical cheers.] How could they know if they were absent? He was informed that a writ for Tipperary was being moved for, and the consequence was that he threw away and wasted a sound constitutional speech. This would not have happened if Notice had been given on the Paper of the Motion to be moved on the part of the Government, and he hoped it would not occur again. He was now informed that Notice had been given of the intention to move for a new writ for the county of Tipperary on Thursday next. If so he thought that was irregular and premature, because the return of the election had yet to be made, and the proper authority had to decide whether it was valid or void, and whether the person returned was qualified to sit. A question of law had to be decided, and it was on the official return alone that it could be decided. Therefore it was premature and irregular to give Notice of a Motion for the issue of a writ."—[3 Hansard, ccxxii. 420.] He (Mr. Callan) thought this only showed the irregularity and the inconvenience occasioned by giving so short a Notice, and by appointing the matter to come on at so late an hour of the night. He would press on the hon. and learned Gentleman the Attorney General to agree to the proposition which had been made by the hon. Member for Wexford (Mr. Healy). They had heard both the Prime Minister and the Chief Secretary for Ireland speak of Mr. Davitt as one who denounced the perpetration of crime and outrage in Ireland. The question of the existence of crime and outrage in Ireland was much more pressing at this moment than the Rules relating to the regulation of Public Business. If, then, it was thought necessary to raise the Irish Question at once, it was desirable that Mr. Michael Davitt should take his seat in the House, so that he might be able to speak with authority on the part of the people of Ireland. The course now being taken by Her Majesty's Government really opened out a very large question, and it bore all the aspect of a harsh proceeding to give a Notice, close upon 2 o'clock in the morning, which, if carried out, would have the effect of invalidating Mr. Davitt's election within 14 hours of the time the Motion was made. The Irish Members did not receive much deference from the Tory Benches, although probably as much as they gave the Members of the Opposition, and as much as the Opposition deserved. But they expected to receive more consideration at the hands of a Liberal Government, and it was a most important matter that the question raised by the hon. and learned Attorney General should be fully discussed. If it was not convenient to receive the precise Amendment which had been moved, there was no absolute necessity for considering the question on Thursday, and it might be put off until Friday. There was no reason why the House should be in any very great hurry. The electors of Meath were not complaining, and the House ought, at least, to pay some deference to the wishes of the constituency of Meath. They were Christians, although they were Irishmen, and they ought to have as much deference paid to them as the electors of Northampton. It would be difficult to induce the electors of Royal Meath to believe that they were not entitled to as much deference as the so-called Liberal electors of Northampton who happened to be upon the Franchise. Any display of indecent haste in rejecting Mr. Davitt, and issuing a new Writ for Meath, would, he was convinced, have a most injurious effect upon the Irish people.

MR. JUSTIN M'CARTHY

said, he would strongly urge upon the Attorney General the propriety of postponing his Motion, at least, until Thursday. He ought to remember what occurred upon a former occasion, when the election of John Mitchel was brought on for discussion. In that case, two days' Notice was given of the intention to consider the question; and even after the question was considered a Motion was proposed for the adjournment of the Resolution for the issue of a Writ for another week, so that there might be ample time to consider all the bearings of the matter. Among the names of those who voted for postponement were those of the present Prime Minister and most of his leading Colleagues. A proposition to refer the question to a Committee was made by the present Secretary of State for India, who had also the support of the right hon. Gentlemen who were now acting as his Colleagues. If, on that occasion, there was a necessity for inquiry, there was no less necessity for inquiry now; and certainly no reason had been assigned that could warrant Her Majesty's Government in pressing the matter forward with undue haste. Nothing could be lost to any person by two or three days' delay; but much advantage might be gained by allowing time for the consideration of the proper course to take.

MR. BARRY

said, he thought that an unanswerable case had been made out in favour of the proposal of his hon. Friend the Member for Wexford (Mr. Healy) to delay the Motion of the Attorney General until Thursday. Considering the absorbing interest taken by the Irish people in the return of Mr. Michael Davitt for the County of Meath, he thought it was unseemly to hasten forward the consideration of the matter. It must also be borne in mind that they were not dealing with the case of an ordinary convict. If they were dealing with the case of an ordinary convict, he could quite understand that it might be desirable to have the question disposed of at the earliest possible moment; but they were dealing with a man who was loved, revered, and honoured by the Irish race all over the world. It would, therefore, produce a very bad impression indeed, in the eyes of the Irish people, if a matter of this kind was unnecessarily hurried on, leaving less than 24 hours for the Irish Members to prepare their case. A great deal might be said in favour of Michael Davitt being allowed to take his seat in that House. The whole question should not be confined within the hard-and-fast lines of Michael Davitt having been convicted of treason-felony. He was no ordinary felon, and his return for the County of Meath opened out many important questions that were worthy of serious consideration. He would, therefore, earnestly appeal to the Attorney General and the Government to postpone the Motion for the further consideration of the matter, at least, until Thursday next.

MR. O'DONNELL

asked if the mere fact of giving Notice did not destroy the Privilege which the Attorney General claimed for the Motion. The Notice which the Attorney General had given that he desired to bring the matter on Tuesday would deprive the Motion itself of the prerogative of Privilege; and the result would be that the Notice must take its place somewhat low down upon the Paper. He raised this objection as a point of Order on which he desired to receive the decision of the Speaker.

MR. SPEAKER

If the House thinks proper to fix the consideration of the matter to-morrow, it will, no doubt, come on as a Question of Privilege.

MR. SEXTON

asked if it was open for the hon. and learned Gentleman the Attorney General to persevere in the course he had indicated. It must be admitted that the whole of the precedents were on the side of those who pleaded for delay. He regretted that the Prime Minister was not in his place, because he believed that the right hon. Gentleman would be prepared to be guided by what he had himself done in the year 1870. On that occasion the Return was presented on a Tuesday, and Notice was given that it would be taken into consideration on the Thursday following. Mr. Disraeli took precisely the same course in 1875; and he was at a loss to understand why, on this occasion, there should be this great desire for hastening the matter forward. It was not shown that there was any anxiety on the part of the electors of Meath for a new election, or any hope that the Government might mend their position by a new election. He therefore did not understand why they should upset the precedents of the two last occasions, and not wait for 48 hours, or even for a week, if it was considered necessary. What would be the practical effect of assenting to the Motion of the Attorney General? Several Members of the House had to attend the meetings of Select Committees upstairs at half-past 12 o'clock. He, for one, found himself in that position, and it would therefore be impossible to read up the question, and he would be compelled to come down to the House without having devoted even the most casual consideration to the question. He would, however, say no more. It seemed to be almost useless to argue with Her Majesty's Government. At the same time, he desired to make even his weak voice heard in protesting in the strongest manner against the haste with which the Leaders of the Liberal Party were pressing questions of the utmost gravity upon the consideration of the House.

MR. GRAY

said, he wished to point out that in 1875 a Motion was made to adjourn the debate with reference to the case of John Mitchel for 48 hours; and in the list of Members who supported that Motion he found the names of Sir William Harcourt, the Marquess of Hartington, Sir Henry James, and other present occupants of the Treasury Bench. He certainly thought they were entitled to an explanation as to why these right hon. Gentlemen had changed their sentiments as to the present case; and he contended that the consideration of the Motion of the Attorney General should be postponed for a day or two, in order to give Irish Members an opportunity of examining the case fully. On the occasion he had referred to, that hon. and learned Gentleman said that the House could only declare a seat vacant on a distinct question of law.

MR. SPEAKER

I must point out to the hon. Member that the Question is simply as to the day when this Motion should be made.

MR. GRAY

said, he was simply quoting the arguments of the hon. and. learned Gentleman in favour of delay on a former occasion, and was endeavouring to show how far they applied to the present case. The Attorney General said that in a case of the House declar- ing a seat vacant, it should proceed on a definite question of law; and, therefore, he pleaded for delay, because he had certain technical doubts as to whether John Mitchel's seat was vacant for the reason which he stated. Now, hon. Members on those Benches might have doubts of the same technical character in the present case, and they asked for an opportunity for examination, in order to ascertain whether those doubts had a good foundation. He thought they were entitled to this, especially as the Attorney General had not stated under what law Mr. Davitt was disqualified from sitting, but had simply put forward that he was a convicted felon. The Motion, therefore, on the face of it, had afforded hon. Members no opportunity of looking into precedents. He thought the hon. and learned Gentleman ought to be sufficiently consistent on the present occasion to assist Irish Members in the same procedure as he urged the Government to adopt in 1875.

THE ATTORNEY GENERAL (Sir HENRY JAMES)

said, it was contended, on the occasion when they took the course of moving the adjournment in the case of John Mitchel, that when the Motion was made no Papers had been laid on the Table of the House. He should be willing to agree to an adjournment if hon. Members opposite could show any reasons in favour of that course. The two cases were very different, because John Mitchel, at the time, had escaped from custody, and was beyond the Realm, and the question was whether he had not passed the period of his sentence of penal servitude. Hon. Members would see that the Statute declared that a felon could not sit in that House. On the whole, he did not think hon. Members could give a tithe of the good reasons for adjournment which were advanced in the case of John Mitchel; and he trusted the House would not assent to the Amendment of the hon. Member for Wexford (Mr. Healy).

Question put.

The House divided:—Ayes 61; Noes 10: Majority 51.—(Div. List, No. 31.)

Main Question put, and agreed to.

Ordered, That the said Paper be taken into Consideration To-morrow, and be printed. [No. 66.]