§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
, in rising to move—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,said, that, in moving the Resolution of which he had given Notice last night, he could assure hon. Members who took part in that discussion that there was not the slightest wish, on the part of the Government, to press forward this Motion with undue haste, and he thought they were only pursuing the usual course that had always been pursued in cases where such a matter was before the House. As soon as the Return of the election was received by the House, it was necessary to obtain a copy of the conviction of Michael Davitt. That was obtained, and brought before the House yesterday. This being a matter of Privilege, it was thought it should be brought forward on the first occasion that presented itself. When the question involved was placed before the House, he thought it would be seen that the Resolution was one of such a simple character that there could be no reason for any delay in arriving at a conclusion on the matter. The facts the House had to deal with were very simple. On the 11th of July, 1870, Michael Davitt was convicted of the offence of treason-felony, under the Act of 1848, on two counts, and received a sentence of penal servitude for 15 years, which sentence had not, as was evident, yet expired. A few days ago Michael Davitt had been chosen by the electors of Meath to represent them in that House; and the only question on which the House had to determine was whether a person who had been convicted of treason-felony, who had not suffered the full term of his sentence, and had not received a pardon, could be eligible to be elected a Member of that House, and could sit in that House as such a Member. The House had not often to deal with the question of persons elected to sit in Parliament while undergoing a sentence of penal servitude, though it sometimes came under consideration. 1843 He was not now referring to such a case as that of Mr. Smith O'Brien, who had been expelled from the House in consequence of having been convicted of treason. More direct precedents were to be found. The first was that of the election of O'Donovan Rossa for Tipperary, in 1870, while he was still undergoing a sentence for felony. The House, after full consideration and debate, came to the conclusion, by Resolution, that O'Donovan Rossa, having been convicted of felony, and not having completed his sentence nor received a pardon, was not eligible to sit in that House as a Member of it. There was a second precedent in 1875, when John Mitchel was returned also by Tipperary as a Member of that House, he not having completed the sentence passed upon him for treason-felony, and not having received a pardon. By the Common Law of this country, as well as the law of Parliament, it was, for good and sufficient reasons, held that a felon who had not served the full term of imprisonment or who had not received a pardon had no right to sit in that House. Apart from that, in the view of the Common Law of this country, such a person was not a fit and discreet person. But he need not go back to the two instances to which he had referred, for since the Resolution of the House in the ease of O'Donovan Rossa a Statute had been passed, which finally determined this question beyond possibility of dispute. In 1870 a Bill was introduced by his hon. Friend the Member for Walsall (Sir Charles Forster), for the purpose of relieving persons convicted of felony from some of the consequences which used to attend such a conviction. It was thought advisable to show a certain consideration to those who had an interest in the goods of the person convicted. That Bill became law, and the 2nd section of the Act provided that if any person should be thereafter convicted of treason-felony, for which he should be sentenced to death or penal servitude or to hard labour for a period exceeding 12 months, he should be incapable of holding certain offices; and another part went on to say that such a person, until he had suffered his sentence or received a pardon from Her Majesty, should continue incapable of holding any civil or military office under the Crown, or of being elected to sit or vote as a Member 1844 of either House of Parliament. If a person should be convicted of any felony and should not have suffered the punishment to which he had been sentenced, or had not received a free pardon, he was not eligible to sit or vote in that House. That Statute must be obeyed. He thought no one could contest the fact of the Statute being obligatory, to all intents and purposes, upon every Member of the House. What had the House to consider? If it should be found that Michael Davitt had been convicted of felony, and had not suffered the imprisonment to which he was sentenced, and had not received a free pardon, the Statute declared that he was ineligible to be elected or to sit in that House. He would suggest to the House that there could be no question about the facts they had to deal with. A copy of the record of the conviction was upon the Table; it showed that Michael Davitt had been convicted of felony, and that the conviction and sentence of 15 years' penal servitude dated from July, 1870. He had not, therefore, suffered the punishment of his offence, and no one suggested that he had received a free pardon. Therefore they arrived at a conclusion that it was impossible to shirk—the conclusion that Michael Davitt was a person, in the words of the Statute, ineligible to be elected, or to sit or vote in either House of Parliament. Now, he submitted, these were the only matters which could be taken into consideration in this question. There were no other subjects upon this question of Privilege, the Motion for the issue of a Writ, which could be entered upon. They did not give up to the Election Judges their right to determine whether a proper person had been elected. The right to determine that still rested with the House. The only question was whether Michael Davitt, having been elected by the electors of Meath, was capable of sitting and voting in that House, it having been established by the record laid before the House that he had been convicted of felony, had not served his full term of punishment, and had not received a free pardon from the Crown. The hon. and learned Gentleman concluded by moving the Resolution which stood in his name.
Motion made, and Question proposed,
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."—(Mr. Attorney General.)
MR. JOSEPH COWEN
said, there was more in the discussion that the Attorney General had raised than a dry legal argument. It involved grave political and social issues, and its treatment might be made the means of either lessening or increasing the friction that now unhappily existed between the English Government and the Irish people. It was allowed on all hands that Ireland was in a state of great disorder, and that wide discontent prevailed. An hon. Gentleman on that side of the House, who might fairly be accepted as an authority on the subject, said a few days ago that the South and West of Ireland was seething with disaffection. He did not attempt to say what truth there was in that figurative expression; but it was an incontestable fact that the authority of the Administration and the power of the Law was only maintained over the greater portion of Ireland by the presence of an imposing force of military and constabulary, by the suspension of the Constitutional liberties of the people, the destruction of the right of public meeting, by restrictions on the Press, and by the incarceration of 500 or 600 of the leading citizens without trial. The Land Act had failed, so far, to produce the political pacification that its promoters anticipated from it, and any agrarian advantage that it would confer was yet in the future. Notwithstanding all that had been done, it was still only through abnormal means and by the exercise of repressive and despotic powers that the authority of the Executive could be upheld. In any great social and political upheaval, such as had taken place in Ireland, a man or men always came to the surface who embodied the ideas, personated the aspirations, and typified the hopes of the population. History afforded abundant examples of men of this character. There had never been any great social movement in any country that did not supply representatives of that kind. Mr. Davitt was the exponent, interpreter, and exemplar of the opinions and principles of the Irish peasantry. He was the apostle of their emancipation. The English Government and the English people called him a convict, and 1846 they sought to attach odium by the use of that word, but Irishmen regarded him as a patriot. His self-sacrifice, his courage, his suffering, his integrity, his unselfishness, and his moral chivalry had won for him the confidence—the enthusiastic confidence—of his Colleagues and contemporaries, and it would secure for him the undying gratitude of his country. He said it in all sincerity and in all earnestness, that if the Government could see their way to release Mr. Davitt they would lighten their load. He knew of nothing—of no one act that it was in their power to perform—that was more likely to clear their pathway from difficulties, and hasten the establishment of amicable feelings between the two peoples, than such an act. It would be the most effective message of peace they could send just now to a disturbed and afflicted country.
§ MR. SPEAKER
I must point out to the hon. Member that the question of the release of Michael Davitt cannot properly be raised upon the Motion now before the House. The discussion must be strictly confined to the question raised by the Attorney General. If the hon. Member desires that the question of the release of Michael Davitt be raised, it should be done in the properly recognized form of an Address to the Crown, after Notice given in the usual way.
MR. JOSEPH COWEN
said, he knew he had no power to contest the Speaker's ruling, and if he had the power lie had no desire to do so. As the Speaker had ruled that the case of Mr. Davitt could not be discussed on its merits on the Attorney General's Resolution, he would bow to the decision of the Chair; but in doing so he would take the liberty of reading to the House, if the Speaker would permit him, the Amendment that he had intended to propose. If he had been allowed to continue he would have submitted for the decision of the House the following:—That, having regard to the circumstances under which Mr. Michael Davitt was convicted of treason-felony, to his release, re-arrest, and subsequent return as one of the Members for the county of Meath, an humble Address be presented to Her Majesty, praying Her Majesty that She will be graciously pleased to grant the newly-elected Member a free pardon.On the first opportunity that he could obtain he would move the Amendment as a substantive Resolution.
§ MR. LEWIS
said, he could not help submitting to the House that it went very far, indeed, from propriety in its decision with regard to the case of O'Donovan Rossa. In the year 1867 or 1868, the House decided to give up to a Court of Law the right of trying the question, whether a certain person was or was not duly elected to a seat in the House of Commons. But he supposed the hon. and learned Gentleman the Attorney General for England would tell them that the case of Michael Davitt stood apart from the ordinary practice of deciding by law the qualifications of Members to sit in that House; that inasmuch as Michael Davitt was undergoing a sentence for treason-felony, there could not be any fact in dispute which might make it necessary to remit the election to the decision of the ordinary Election Tribunal. It occurred to him to press upon the House this question—What difference existed between the case of Michael Davitt and the case of any other elected person found guilty of bribery, and thereby prevented from taking a seat in the House for a certain number of years? It seemed to him that, in spite of Davitt's graver offence, the cases were, from the legal point of view, perfectly analogous; because the fact that the offence of treason-felony might be more odious than the offence of bribery made no difference whatever in point of law. As regarded the method for testing the validity of the election, the sole question was—What was the proper tribunal to decide whether or not Michael Davitt was entitled to sit in the House—the House of Commons itself or the ordinary legal Election Tribunal? He contended the case should be decided by the legal Election Tribunal, for the House had already given up its right to decide upon controverted elections. He did not assert that in this case there was any question of identity; but what judicial facts had the House to show that a question of identity might not be raised? Was the House to call witnesses at the Bar that they might be convinced upon intelligent and reliable testimony that the Michael Davitt who was convicted for treason-felony was the same Michael Davitt whom the constituency of Meath desired to honour? The case was not concluded by simply laying on the Table the record of a conviction against some one named Michael 1848 Davitt for treason-felony. It might be necessary to inquire whether the proceedings of conviction were all regular. Was the House to say that, having given up deliberately its right to inquire into controverted cases of election, it was to retain the power of interfering with cases in which the persons elected had been found guilty of odious crimes? The degree of the disqualification made no difference whatever as regarded that point. It seemed to him that in the case of O'Donovan Rossa the House had been led astray by the fact of a person being sent here for the purpose of insulting the House. There could not be two jurisdictions. Was a Judge appointed in Ireland qualified to try this case, supposing a Petition had been or were to be presented? If in the affirmative, how could that House have competent jurisdiction to try it also? Was it ever intended that that House should reserve to itself this right in particular cases? Why, the whole thing showed that even this High Court, the House of Commons, might make great mistakes in matters of grave importance. He (Mr. Lewis) was, perhaps, in a better position to urge this point than hon. Gentlemen below the Gangway, because there was no man in or out of Ireland who would for one moment suppose that he had the smallest sympathy either with Michael Davitt or the electors of Meath who had returned him. But it seemed to him that the House was asked by the Attorney General to adopt in the present case a very uncertain, fickle, and irregular course of proceeding. In the case of the Tipperary Election Mr. Moore was returned by the verdict of the Election Tribunal, although he was a minority candidate, the person who headed the poll having been a convicted felon. Now, a few years after that proceeding it was proposed that the House should deal with the Meath Election before the statutory time had expired for the presentation of an Election Petition. The House should not deal with it until the time for presenting a legal Petition against Mr. Davitt's return had expired. They knew nothing authentic of the circumstances of Davitt's return. They did not know, except by common report, whether or not there had been a poll, or whether there was any person in existence who could claim the seat in the 1849 event of Davitt's disqualification. If he might be allowed to express a speculative opinion, he would say that Mr. Egan, who he understood was put forward along with Mr. Davitt, had a claim to the seat as the only legal candidate who was nominated. All these circumstances were proper matter for inquiry by the ordinary Election Tribunal. Suppose Mr. Egan did petition and claim the seat, after a new Writ had issued, and the place was filled up, did they not altogether foreclose the right of Mr. Egan to be returned? ["Hear, hear!"] He feared he was speaking to unwilling ears. But when they heard so much about the dignity of Procedure in the House, would it not be well that they should be careful now, especially when they happened to be dealing with a man who belonged to a miserable minority—["No, no!"]—the Irish Members. They would understand the sense in which he used the expression in that House. He wished to ask the Law Officers of the Crown and hon. and learned Members near him what was the difference in point of principle and of law, or in point of fact, between this case and that of a man clearly disqualified by his having been found guilty of personal bribery at an election for a Member of Parliament? What was the reason for that House reserving to itself the right of deciding upon the disqualification of a candidate when it had transferred to a Court of Law the power of deciding as to the validity of an election? He further asked how that House, within a few days after the election, and very many days before the expiry of the time for lodging a Petition, having transferred its jurisdiction in these matters to a Court of Law, could now act in such a way as to preclude any person interested from asking such Court of Law to decide whether he had been properly elected? To sum up what he had already said, he reminded the House that if they issued this new Writ, they would be doing an act of injustice to the other candidate, who would thereby be precluded from appealing to the proper Court of Law to decide whether he had been duly elected. On these grounds, therefore, he should vote against the issuing of the new Writ at this time, and he regretted that the House, having got hold of what it thought an ugly customer, should proceed to take 1850 an exceptional course on this occasion.
§ MR. WARTON
said, he thought there was a great deal of force in the arguments just used by the hon. Member for Londonderry (Mr. Lewis.) This was not the first time, he believed, that the Attorney General had laid down what was not the law. The Attorney General had quoted from a Statute which no lawyer in that House expected to be cited—namely, the 33 & 34 Vict. c. 23, which was an Act for abolishing forfeitures for treasons and felonies. The Attorney General in quoting that Act had omitted to read the words which governed the whole of the section—namely, "who shall at the time of his conviction hold an office." [Laughter.] He hoped that those who smiled would be able to argue. At the time of his conviction Michael Davitt did not hold an office, neither was he a Member of Parliament. He hoped that the hon. and learned Solicitor General, who, as a rule, was more accurate in his law than the Attorney General, would correct the error into which the latter had fallen.
§ MR. GRAY
said, he had been a good deal impressed by the arguments of the hon. Member for Londonderry (Mr. Lewis). His recollection of the Ballot Act was that it enacted that if a greater number of candidates be nominated than there were seats to be filled, any candidate could withdraw in a specified manner, and at a specified time; but that if only a sufficient number of candidates be nominated to fill the vacancies there was no power of withdrawal. Thus supposing Michael Davitt to have been ineligible for election, as the Attorney General contended, his nomination was void. Mr. Egan was, therefore, the only legally nominated candidate before the constituency, and it was possible to raise the point whether, under the circumstances, Mr. Egan had any power to withdraw. Mr. Egan, might, therefore, be entitled to claim the seat. In the case of Mr. Stephen Moore, at the Tipperary Election, the House had proceeded with the same haste as now to declare the election void and to issue a new Writ. What position would Mr. Moore have been left in? Mr. Egan might have just as much legal right to claim the seat for Meath as Mr. Moore for Tipperary. Why should the House seek to take that right away from him? 1851 The High Sheriff, at his own risk, might have refused the nomination of Mr. Davitt. He might have said, as was done, he believed, in another case—"I decline to receive the nomination of Mr. Davitt, because he is not eligible as a candidate," just as he would decline to receive the nomination of a woman or an infant. If he had adopted that course, then Mr. Egan would have stood nominated, and would be the Member. The fact of the High Sheriff not having assumed that responsibility, it might be contended that Mr. Davitt's nomination from the very commencement was void, and if so that Mr. Egan was now the Member. He merely raised that point to show that this was a matter that ought not to be decided in a rough-and-ready fashion. Having regard to the representative character of Mr. Davitt in Ireland, it would be unseemly for the House to proceed without due deliberation in this matter and without taking care to avoid a legal blunder. He submitted that the proper, and the seemly, and the only course for the House to adopt was to refer this question to a Select Committee.
§ SIR WILLIAM HARCOURT
said, he was satisfied that it was the desire of both sides of the House that justice should be done in this matter, and that there should be no unnecessary waste of time in discussing the question. He agreed that if this question were now raised for the first time a good deal might be said in favour of either view of it. He, however, would remind the House that in 1863 the transfer of the jurisdiction of the House in Election Petitions to the Judges took place, and two years afterwards, after careful consideration, they determined that they would settle the case of O'Donovan Rossa themselves, and issue a new Writ. The question arose again in the case of John Mitchel, and the House then came to the same conclusion. These precedents had been 12 years in operation, and it would lead to most unsatisfactory results if they were not regarded as binding upon the House. If when the House had solemnly decided a question of this kind it were to refuse to be bound by precedent and were to follow different and conflicting rules great confusion would be introduced into the practice of the House. The Courts of Law found it necessary to lay down that succeeding Judges should 1852 be bound by precedents, and a similar rule must be applied to the House of Commons. He hoped the House would not re-open the whole legal argument again, and that hon. Members would, as a matter of Parliamentary law, issue the Writ.
§ MR. EDWARD CLARKE
said, he thought the right hon. and learned Gentleman had, quite unintentionally, a little misled the House. He said that the precedents which had been accepted for 12 years should be undisturbed and should be received at once as binding in the present case. But there were no such precedents for 12 years. In 1870, it was true, the question was decided with regard to O'Donovan Rossa. On the second nomination the House accepted the evidence which was laid upon the Table of his disqualification, and proceeded to declare the seat vacant. But there was a far more recent precedent directly against that; that was the precedent of Mitchel in Tipperary five years later. In that case, on the second election, there was a contest, and then the House refused to exercise its power of disqualifying Mitchel, and left the matter for the decision of the Judicial Tribunal. There was great danger in acting as the Government proposed in that matter, for this reason—that although the House had then upon the Table the record of a conviction which showed that somebody in the year 1870 had been convicted of treason-felony, there was no evidence of identity nor of transactions which had taken place at the election it was desired to annul. He believed there was a good deal in the point which had been raised by his hon. Friend the Member for Londonderry (Mr. Lewis). There would be no inconvenience in leaving the matter to be dealt with by the Judicial Tribunal to which it should be referred; while, on the other hand, the matter was one in which the House should be very careful before it took action. The right hon. and learned Gentleman the Home Secretary carefully avoided giving an answer to the suggestion of his hon. Friend; but really the disqualification was in some sense similar to that of having been convicted of bribery. If, before 1853 an election took place, notice of disqualification were given, the second candidate must, of necessity, take the seat. The matter before the House was not one which required to be dealt with immediately. Whatever might be done that evening, Mr. Davitt would not take his seat; and therefore he thought the House might well take time before it decided on a matter which concerned its jurisdiction.
§ MR. SERJEANT SIMON
said, that all the arguments they had heard that night had been urged with considerable force in the case of O'Donovan Rossa in 1868. The answer to those arguments was to be found in the title of the Act of that year, which ran—"For the Better Trying of Election Petitions and for the Prevention of Corrupt Practices." That Act was intended to take cognizance of the matters which had been dealt with by Election Committees. The House had parted with its jurisdiction to that extent, but no more. The whole machinery given by the Statute of 1868 rested upon the right to petition given to electors. Without a Petition there was no jurisdiction. If the construction urged by hon. Members of the Act of 1868 was correct, it would lead to this. The electors might return a person ineligible by law—a woman, for instance—and because there was no Petition, she might sit, and the House would have no power to question the return. Surely such a condition of things could not have been intended. The House, in his opinion, had full power over the return as before, except in cases which formerly went before the Election Committees. It might be that there was a concurrent jurisdiction in other cases, but not an exclusive jurisdiction with the Election Judges; and, even where concurrent, the jurisdiction of the Judges depended upon the Petition. It was not necessary that the House should wait till the time for petitioning had expired, unless hon. Members were prepared to hold that during the 21 days for petitioning an unqualified person might take his seat and sit and vote in defiance of the law, the House all the while having no power to prevent it, because they had no right to question the return.
§ SIR JOHN MOWBRAY
said, he thought the question the House had to decide was not a question of nisi prius, 1854 but a question of Parliamentary law and Parliamentary precedent. They had precedents before them, and he hoped they would not be led into an elaborate discussion on the wording of a Statute. The House of Commons, both in 1870 and 1875, had set aside an election when a felon had been returned, and he hoped they would do the same then.
§ MR. HEALY
wished special attention to be given to the circumstances of John Mitchell's second election, and he felt sure that the most modern precedent would be the one upon which the House would act. In the case of Mitchel the House did not wish to usurp the functions that properly belonged to the Judges, and they should not do so then. No case had ever come before the House in which political malignancy had been so ingeniously veiled behind legal technicalities. It was really a political rather than a legal antagonism which animated right hon. Gentlemen opposite, and which biassed their judgment in this matter. Was it for one moment to be supposed that the Government would have adopted this course in an ordinary case? The election took place on Thursday, the Government received the return on Friday, and although they had ample time on Monday, it was not until early this morning that Notice had been put on the Paper for that Sitting. Where was the necessity of their haste? Would it have been followed in the exemplary cases of A B? He ventured to say it would not. His belief was that if they were not now dealing with Michael Davitt, a political convict and the founder of the Land League, the Home Secretary would have been much more scrupulous than he was on this occasion. There need be no hurry. Mr. Davitt could not rush up the floor of the House and take the Oath. He was in prison. They did not even give him the privilege which Mr. Bradlaugh's Colleagues desired to give that distinguished Atheist—namely, to be heard on the floor of the House. He presumed that the Home Secretary was rather afraid of the emotions of disgust which would be excited in the House at the sight of that noble patriot with manacles on his hands and clothed in convict garb. [Laughter.] No doubt, that was a subject of laughter to hon. Gentlemen; but they were very indignant when Mr. Bradlaugh, their Colleague in Atheism and Radicalism, 1855 was expelled the House. [An hon. MEMBER: He was not a convict.] Mr. Bradlaugh was not a convict, no doubt, in the technical sense; but perhaps he deserved conviction a great deal more than Mr. Davitt. Indeed, if he were properly advised, he even believed that on a former occasion Mr. Bradlaugh was convicted, and of a much more indecent offence than any alleged against Mr. Davitt.
§ MR. MITCHELL HENRY
I rise to Order. I want to know whether the hon. Gentleman is in Order in applying to hon. Members on this (the Liberal) side of the House the term "Colleagues in Atheism with Mr. Bradlaugh?"
§ MR. MITCHELL HENRY
I wish to know, Sir, is not the hon. Member bound to withdraw the expression "Colleagues in Atheism?"
§ MR. SPEAKER
I consider the expression used by the hon. Gentleman unbecoming; and I should certainly have interposed myself if called upon to do so, and have called upon the hon. Gentleman to withdraw those expressions, but Mr. Bradlaugh not being at this moment a Member of the House, I did not feel called upon to interpose.
§ MR. H. SAMUELSON
I rise to Order, Sir. The hon. Gentleman has applied the epithet "Colleagues in Atheism" to hon. Members sitting on this side of the House, and he has not withdrawn it.
§ MR. ARTHUR O'CONNOR
On the point of Order, Sir, I wish to ask is it not necessary—["Order, order!" and "Chair!"]
§ MR. SPEAKER
I understood the hon. Member for Wexford to state that he did not intend to pursue that kind of argument further; and in coming to that conclusion I am bound to say he exercised a very wise discretion.
§ MR. HEALY
said, he did not wish to say anything offensive to hon. Gentlemen opposite, and he was very glad to find that they were not Colleagues with Mr. Bradlaugh in the sense in which he 1856 had made the remark. He could now only conclude his remarks by expressing the hope that the Government, having had several arguments in favour of delay, and having themselves admitted that there was a case for delay—the Attorney General having admitted that morning that if the Irish Members considered there was too much haste on the part of the Government in this matter they could plead for delay—that was putting in their mouths a kind of argument which they should now utilize. He would, therefore, respectfully ask, seeing that the constituency of Meath had not complained of the return of Mr. Davitt, and also that several legal points were involved in the matter, that the Motion for a new Writ should be postponed to some more fitting season.
§ MR. MITCHELL HENRY
confessed that he felt some difficulty on the occasion as to the vote he ought to give. He could not shut his eyes to the great differences of opinion expressed by the lawyers on both sides as to the proper proceeding in the case. But as no Amendment had been moved to the Motion, he would be compelled to vote either for or against it. If the question was to be fairly and honestly raised, those who objected to the Motion ought to propose an Amendment in favour of postponement until, at least, the time for petitioning had expired. This was not a time to aggravate Irish differences. Whatever the opinions of Constitutional lawyers, the Irish people would always say that the Government acted in haste in the matter. But he was always in favour of smoothing over differences. He thought it right to bear his testimony to the character of Michael Davitt. He differed very much, indeed, in his (Mr. Mitchell Henry's) opinion, from those who were now condemning the action of the Government. He had never disguised his opinions. If he had been permitted to come into the House, he would have refused to take the Oath of Allegiance. Let hon. Members opposite follow his example. He had heard Mr. Davitt himself express his astonishment that certain hon. Members, holding the opinions they did——
§ MR. MITCHELL HENRY
, resuming, said, it was noteworthy that when anything disagreeable to hon. Members opposite was said, there were no such sticklers as they for Order—that Order which they so frequently violated themselves. He only met Mr. Davitt twice, and he then expressed his astonishment that Gentlemen, holding the opinions they did, could contemplate coming to the Table to take the Oath of Allegiance. [Cries of "Name!" from the Irish Members.] It was in reference to the question of putting forward candidates for Irish constituencies who were known not to bear in their hearts allegiance to Her Majesty, and Mr. Davitt felt a strong objection to that practice.
§ MR. SEXTON
Mr. Speaker, I rise to Order. I wish to ask whether it is in Order, on a Motion that a new Writ shall issue for Meath, to discuss the opinions of Mr. Davitt?
§ MR. MITCHELL HENRY
said, he would not pursue the subject further. He had said enough on the subject to show that if Mr. Davitt were to come to the House of Commons he would not take the Oath, because he was an honourable man who would not perjure himself.
§ MR. JUSTIN M'CARTHY
said, that, in order to bring this matter to a practical issue, he intended to move an Amendment in the following terms:—That a Select Committee be appointed to examine into the precedents in the Law of Parliament involved in the Return of Michael Davitt for the County of Meath, and report to the House on the stops that ought to be taken under the circumstances.He would refer to the precedents that had already been quoted in that debate. In Mitchel's case, in 1875, a Motion for the postponement of the Writ was made, and it was supported by most of those who now sat on the Treasury Bench, including the Chief Secretary to the Lord Lieutenant, the Secretaries of State for India and for War, and the Secretary of State for the Home Department. Speaking on that occasion, the present Chief Secretary for Ireland said—He should he extremely 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 hut the most distinct and decided grounds."—[3 Hansard, ccxxii. 529.]1858 That was said by the Chief Secretary in the case of Mitchel. Times had, however, changed a little since that declaration was made. Liberal statesmanship was very like the fabled fountain, whose waters ran chilly in the sunshine and warm at night. Its warmth had entirely departed since the cold shade of opposition was withdrawn from it, and it was now very chilly indeed in the sunshine of the Treasury Bench. It was a remarkable circumstance that the Motion now made was not identical in terms with those passed either in. O'Donovan Rossa's or in Mitchel's case. It was said that the Act of Parliament had made an inquiry no longer necessary since O'Donovan Rossa's case. But they had nothing in law before them; it was not even certain that the legal views stated by the Attorney General were correct. He thought that the House, under all the circumstances, and considering the importance of the matter, could not do less than appoint a Committee to inquire and report upon the facts. They had not yet even settled the identity of the man who was the subject of the discussion, and the House was usually very particular in such matters. He remembered when a sudden question arose about the swearing in of the hon. Member for Kirkcaldy (Sir George Campbell)—there was a trifling inaccuracy in the Return, the name was not given correctly. What was done in that case? An hon. Member had to come forward who was able to state that the Gentleman at the Table was the person mentioned in the Return, and upon that he was allowed to be sworn. That was a small matter; but it showed a deliberate and judicious principle on the part of the House. He contended that the present case, which involved a great national question, and which concerned a man who represented a large section of the Irish people, ought not to be rushed through with unseemly haste. By adopting the Amendment they would give themselves time for consideration, and perhaps it would enable them to find some safe and satisfactory way out of the difficulty.
To leave out from the word "That" to the end of the Question, in order to add the words "a Select Committee be appointed to examine into the precedents in the Law of Parliament involved in the Return of Michael Davitt for the County of Meath. and report to the House
on the steps that ought to be taken under the circumstances."—(Mr. Justin M'Carthy.)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. SHAW
said, he had been in hopes that the Solicitor General would get up to say that the Government would consent to a postponement of the Motion. He thought the law of the question was clear enough; but, still, this case was peculiar, inasmuch as another candidate had been proposed, and no one knew whether a Petition against the return would be presented or not. He thought, therefore, it would be a very wise thing to postpone the Motion for 21 days. But there was another and a more serious reason for which the matter should be delayed, and he urged it with all respect and earnestness upon the Government. That reason had been already thrown out by the hon. Member for Newcastle (Mr. J. Cowen)—namely, that the Government should have some time to consider the wisdom and propriety of offering a free pardon to Mr. Davitt. He did not utter these words lightly. He had had several interviews with Mr. Davitt. The very night before Mr. Davitt's arrest he had a conversation with him, occupying over an hour; and he could say, without the slightest hesitation, that he had seldom met a man of greater intellect, of more powerful mind, and with a more thorough honesty and earnestness. He did not agree with him in all his views, and felt the greatest anxiety to get him on the path of patriotism. He intended to write him a long letter on the questions they had discussed, when he heard that he had been taken and put into prison. He maintained that the presence of Mr. Davitt in that House would be of very great importance.
§ MR. SPEAKER
I must point out to the hon. Member that I have already ruled that the question of Mr. Davitt's release does not come within the scope of the discussion before the House.
§ SIR WILLIAM HARCOURT
referring to what the hon. Member for the 1860 County of Cork (Mr. Shaw) had just said, remarked that if the issue of the Writ were delayed it could not possibly effect the object the hon. Gentleman had in view, because, if Mr. Davitt were to be pardoned to-morrow, still the Writ must issue, because he was ineligible at the time of the election. The proposed appointment of a Committee was equally inexpedient, because the Committee could only inquire into a matter that the House had formerly decided, and that would be a waste of the time and energy of the House. The proposal that the issuing of the Writ should be delayed until a Petition could be filed was open to the objection stated by his hon. and learned Friend behind him (Mr. Serjeant Simon). There could be no answer to that objection, which was conclusive against the argument of the hon. and learned Member for Plymouth (Mr. E. Clarke). If the issue of the Writ were delayed until the time for petitioning had expired, how would it be possible to prevent a convict, supposing he had a ticket-of -leave, from sitting and voting during the interval? On the other hand, there could be no doubt that such a person would be prevented from sitting and voting if the Writ were issued at once. This principle, which had been laid down in former cases, would be entirely broken down by delay.
§ SIR STAFFORD NORTHCOTE
said, he would not enter into the questions that had been discussed at all; but it appeared to him that in this case the Government were following precisely the precedent set by the late Government in the case of John Mitchel. In that case the greatest care was taken by the Government to ascertain whether they were proceeding on the right grounds. He could see no difference between that case and the present one, and therefore he was prepared to support the Motion of the Government.
§ THE SOLICITOR GENERAL (Sir FARRER HERSCHELL)
said, that it had been suggested in various quarters that the Government, in bringing forward this Motion, were actuated by some feeling of personal hostility and spite—[Mr. BIGGAR: Hear, hear!]—against Michael Davitt, whose return was now in question. He did not envy the state of mind of those who could indulge in imputations of that sort. He should have thought it possible to under- 1861 stand that those who were responsible as a Government, and whose duty it was to act in cases of this description, might act honestly and fairly, and with a just conviction that they were doing their duty, without regard or feeling towards particular individuals. He maintained that in taking the present course the Government had distinctly followed the precedents set on former occasions. If any ground had been suggested as to the impropriety of the Resolution, or any new facts had been brought before the House, then the Government would have been willing to delay the matter and appoint a Committee. But not the slightest particle of solid doubt had been raised on the present occasion. It was said that they were not following the precedents of O'Donovan Rossa and Mitchel; but he maintained that they were. They were following the precedents which applied to this case, and not those which did not. A suggestion had been made that the Motion was premature until the time had elapsed for an Election Petition. He understood the hon. Member for Londonderry (Mr. Lewis) even to state that the House had transferred the whole of its power to the Election Judges, and had no power to interfere. In 1870, and again in 1875, there was a discussion on this question, and the House came to the conclusion to interfere with a return when it came to the House as in the present case. If a constituency returned a woman or a child under 21, would it be necessary to allow 21 days to elapse and permit those persona to take the Oath and their seat before interfering with the return? He thought it was clear that the House had the power to interfere; it had twice acted upon that power in cases similar to the present. No one had ventured to suggest to the House the existence of such a state of facts as would make it improper for the House to exercise that power by passing the Resolution. With respect to the identity of the person named in the return with Michael Davitt not a single hon. Member had ventured to suggest any doubt. The return to the Writ actually described him as being a convict in Portland Prison. Upon that very man the hon. Member for Longford (Mr. M'Carthy) had pronounced a high eulogium, and there could be no doubt as to his identity. In his opinion, the wiser and better course would be to pass 1862 the Resolution. There was no reason for making inquiry in the present case that there was in Mitchel's case. In the latter case there were special circumstances. He had escaped, and his term of imprisonment had expired, and it was necessary to decide whether he were disqualified to sit or not. That was the only question raised. A Committee was suggested, and he and his hon. Friend near him supported the proposal, believing that the question was one which required consideration. The Motion for the appointment of a Committee was, however, opposed, and finally they acquiesced, and did not press even that point further. Was the House on each new occasion, when exactly the same set of circumstances arose, to discuss the matter all over again? It would be less invidious to act upon the lines already laid down by the House, because then there could be nothing personal in the matter. It would, therefore, be unreasonable to open a question which, with the general acquiescence of both sides of the House, had been formerly agreed on.
MR. STAVELEY HILL
said, he agreed entirely with what had just fallen from his hon. and learned Friend. In the case of O'Donovan Rossa the House had most fully thrashed out the whole question. The matter was then discussed at considerable length, and the House had the advantage of the advice of the present Lord Chief Justice and the Lord Chancellor in the debate. There could be no doubt that after full discussion the House came to the conclusion that there was no reason for delay at all; and as this case was admitted to be similar to that of O'Donovan Rossa the matter was clear, and he did not see that there was the slightest reason for postponement. In fact, this case was even strengthened by the Statute, for he felt sure that the words "such persons" referred to persons convicted of treason or felony, and that the present case came within the words.
§ MR. SEXTON
said, if a free pardon were granted to Davitt the question before the House would lose its significance, for the electors of Meath or of some other constituency would soon settle the question of his right to sit in the House. As they had heard so much about precedent, he was entitled to say that Her Majesty's Government had. by 1863 their haste and precipitancy, violated all the precedents in this matter. In 1870, when the election of O'Donovan Rossa came under consideration, Members received 48 hours' Notice between the laying of the Record on the Table and the Motion to void the election. He should oppose the Motion of the Attorney General on the ground laid down so clearly in a calm and judicial spirit by the hon. Member for the City of Londonderry (Mr. Lewis). The question of Davitt's incapacity was not a Parliamentary, but a legal question. It was a question which should be left to a Court of Law to be determined upon a Petition brought by any elector of the county of Meath. Lately they had had before the House that question of another Member, in whose case the grave Constitutional question of eligibility to be elected did not arise; the question merely was whether he was eligible to submit himself to a certain matter incidental to the taking of the seat—namely, the taking of an Oath. Yet upon that question, lower in character and minor in degree, the Prime Minister and many other Gentlemen on the Treasury Bench rose, and with animation and emphasis argued before the House that that question was not one which the House ought to decide. They told the House that it was a question for judicial determination, which should be removed to the calm and judicial atmosphere of a Court of Justice. Now, if upon that minor question the Government contended that it ought to be removed to a Court of Law, he wished to know why this far graver and deeper Constitutional question of the eligibility of a man to be elected and sit in the House should not be referred to a Court of Law as well. Lawyers at both sides of the House had attempted to hunt the meaning of the Act of 1868; but the language was most absolute. The 50th section stated that after the next Dissolution of Parliament no election or return should be questioned except in accordance with the provisions of the Act. The provisions of the Act were that the objection should be presented to a Court appointed for that purpose. In the case of Mr. Bradlaugh no legal tribunal was reserved to consider the question raised. In this ease there was a tribunal specially reserved; and it was stated in the Statute passed in 1868 that if any question had to be challenged re- 1864 garding any election it should be challenged before the proper legal tribunal. Then the Act of 1870 had been referred to, which was an Act abolishing the penalties for high treason and introducing the offence of treason-felony. That Act, which was intended to lighten the burden of disability, was now sought to be used to make the burden heavier. The section relied on by the Attorney General was correctly quoted by the hon. and learned Gentleman so far as it stated that—Any person hereafter convicted of treason, or treason felony, shall not be capable of being elected, or of sitting or voting as a Member of Parliament.But that enactment was subject to the condition—Until he shall have suffered the punishment for which he has been sentenced, or such other punishment as by competent authority may be substituted for the same.He was not a lawyer, and fortunately for the debates of that House the number of lawyers in the House was not very considerable; but even he could see that several legal questions arose in the present case. It appeared that Davitt's conduct while a convict had been so exemplary that he had obtained the remission of a considerable portion of his sentence. He believed that in the case of a convict part of whose sentence had been remitted the judicial opinion was in favour of the remission having the effect of absolutely releasing him from the remainder of his sentence. In Davitt's case he was released at the end of seven-and-a-half years. What was the effect of the document by which his ticket-of-leave was granted? Taking the time he had served in prison and the time in respect of which he had obtained his release had he not, in fact, served his sentence? That was a legal question, which should be brought before a competent tribunal, and not be determined by the debates of that House. A question had been raised about the identity of Mr. Davitt. He confessed he had no doubt but that the Michael Davitt now in Portland Prison was the Michael Davitt returned by the constituency of Meath. But if the House was to proceed with nice exactitude in this matter, the question of identity ought to be judicially settled. The Act of 1868 gave power to any constituency to present 1865 Petitions. Here the time for the presentation of Petitions had not elapsed. If before the time had expired for the presentation of Petitions the House had passed a Resolution voiding the election, the House had done that which it was not competent to do—namely, to override the express provisions of the Statute. Then Mr. Egan was the second candidate for the Meath election. The House had no personal knowledge of his having withdrawn. If Davitt was not legally nominated, Mr. Egan was the only person legally nominated, and that being so he had no right to withdraw; and, therefore, he was the sitting Member for Meath. Therefore, the rights of Mr. Egan, as the possible Member for Meath, would be affected by the Resolution. Then a singular phrase had been used by the Attorney General. The words of his Resolution were that Davitt had been "adjudged guilty of treason-felony." This phrase occurred in the Resolutions proposed regarding O'Donovan Rossa, John Mitchel, and William Smith O'Brien. It was instructive to ascertain how the phrase was used regarding Mr. O'Brien. The words in the Resolution originally proposed by the Government were—" convicted of treason-felony." Sir Frederick Thesiger, then Attorney General, and one of the most eminent English lawyers, rose and said he wished to state an objection to the words of the Resolution—The noble Lord; (he said) might be aware that attainder did not follow upon conviction, but upon the judgment; and he suggested that the words of the Resolution should be attainted of treason-felony.Acting, no doubt, upon the principle which prevented all Government lawyers accepting wholly any suggestions from a lawyer of the Opposition, the Attorney General rose and said a middle course might be the best, and he suggested that the word "adjudged" might be used. The Resolution then read, "adjudged guilty of treason-felony," which word "adjudged" brought within the purview of the Resolution, not merely the conviction, but the sentence of death. He contended that in using the word "adjudged" on this occasion, as well as having used it regarding O'Donovan Rossa and John Mitchel, the Government was conveying a meaning which the facts with regard to Michael Davitt 1866 and the others did not Constitutionally warrant. It had force in the case of Mr. William Smith O'Brien, because sentence of death followed upon conviction, and attainder deprived him of the citizenship right to hold a seat in Parliament. There was no attainder in the cases of Rossa and Mitchel, neither was there an attainder in the case of Michael Davitt. On this subject he would quote the opinion of a very able lawyer, Mr. Henry Matthews, who, during the discussion on O'Donovan Rossa, said—The only legal disqualification for election was attainder for treason or felony. The universal current of opinion of all esteemed writers was that attainder, and attainder alone, carried disqualification with it."—[3 Hansard, cxcix. 133.]He would also quote from a speech delivered on the 18th of February, 1875, in the case of Mr. Mitchel by the present Attorney General for England. He was then in Opposition, which might account for his sentiments. He said—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 that Motion."—[3 Hansard, ccxxii. 499.]["Hear, hear!" from the Irish Members, and a remark from the Attorney General.] He was quoting the hon. and learned Gentleman's words from Hansard, in which he advocated in 1875 precisely the course the Irish Members were now advocating. The hon. and learned Gentleman added—In early times, with few exceptions, all felonies wore 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."—[Ibid.]The right hon. and learned Gentleman now Secretary of State for the Home Department, who was so anxious that the House should not open this question, and who, in vague language, advocated precedent, said, in 1875, with regard to Mr. Mitchel's case—As he 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 1867 disability for a seat in the House. He believed there wag no such authority to be found in the case of O'Donovan Rossa."—[Ibid. 606.]Therefore, if there was no authority before the case of O'Donovan Rossa, and no authority in that case, where had the Government the authority for the Motion now? The idea forced upon them by contrasting the speeches of hon. and right hon. Gentlemen in 1875 with their observations now was, that promotion to seats upon the Front Treasury Bench produced mental gymnastic exercises similar to those of Jim Crow. He regretted exceedingly that the Rules of Order forbad his hon. Friend the Member for Newcastle (Mr. J. Cowen) laying his Amendment before the House. Though he (Mr. Sexton) might not have moved such an Amendment, coming from an Englishman it was a wise and statesmanlike proposal. Had it been put to the House the Irish Members would have been able to show from the public acts and words of Michael Davitt that he was a man of pure and unselfish character, and that he was sincerely and honourably devoted to the public good. He believed the House could not have more wisely used its prerogative of mercy than in carrying out the course indicated by the Amendment of his hon. Friend the Member for Newcastle, and that House would derive a most salutary experience from admitting to its councils a man such as Michael Davitt, who was loved as no other living man was loved by the whole of the Irish race.
§ MR. EDWARD CLARKE
said, he did not think he had been guilty of the absurdity suggested by the Home Secretary and the Solicitor General. He admitted that when the period for presenting a Petition against a Return had expired without one being presented the House itself must deal with the question; but during the 21 days, if it interfered, it might affect the rights of the constituency or of a candidate. The Solicitor General said there was no ground in this case for supposing that the rights of any persons would be affected. The Return did not show that one way or the other; while, on the other hand, there could be no possible disadvantage in allowing the matter to stand for 21 days. There was really nothing in the fear that a woman or a child might get 1868 elected, for the House knew how to protect itself.
§ MR. CALLAN
said, they knew, as a matter of fact, that Mr. Egan's candidature was not withdrawn until 25 minutes past the hour for receiving nominations, and the probability was that within a month it would be declared that Mr. Egan had been duly elected.
§ MR. P. MARTIN
contended that though the cases mentioned by the Attorney General showed the House had, since the Parliamentary Elections Act, exercised the right of deciding upon the qualifications of its Members, yet, if the facts in reference to this Election had been correctly stated by some Members opposite, the House was now asked to go beyond any precedent, and very possibly to deprive a third person of rights vested in him by Statute. It might be legally contended—and, as he thought, with good reason—that the disqualification of Michael Davitt was a matter notorious and well known to the returning officer, shown on the face of the nomination paper; and as Mr. Patrick Egan was the only eligible candidate who was duly nominated the returning officer ought to have declared Mr. Egan elected. Mr. Egan was entitled to ask the proper tribunal to declare that the Return should be amended, and, if their decision was in his favour, he had as clear right, under the Act, in that case to obtain relief against the returning officer for having wilfully neglected to return the person whom he was bound to return as Member for Meath. Mr. Egan, assuming a Petition to be presented by him, therefore, had the power of suing the returning officer, and recovering damages under the Statute. By the Motion of the Government the House was about to take away that right which the law gave him to proceed against another; and he maintained that, in these circumstances, there was nothing unreasonable in asking the House to allow that case to stand over until the time for petitioning had expired.
§ Question put.
§ The House divided:—Ayes 242; Noes 29: Majority 213.—(Div. List, No. 32.)
§ Main Question put.
§ The House divided:—Ayes 208; Noes 20: Majority 188.—(Div. List, No. 33.)1869
§ Resolved, 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.
§ THE ATTORNEY GENERAL Sir) HENRY JAMES)
said, that in relation to the second Motion which stood on the Paper respecting the issuing of a "Writ, he asked permission to state the course which it was thought right should be taken. They had asserted the in eligibility of Michael Davitt, and they had asserted the right of the House to declare his ineligibility, and the Resolution passed arrived at that result. In the course of this discussion it was stated by one hon. Member, at any rate, that there was a person who, according to that statement, claimed to have some legal right which he asserted, and which could only be asserted by means of a Petition under the Act of 1868. In these circumstances the House should consider whether it should issue a Writ, and so come in conflict with the person asserting that right. It seemed to him and his Colleagues, when that statement was brought to their knowledge, that they should follow the precedent set in the case of John Mitchel, and not shut out the person from assertion of his legal rights by presenting his Petition. The Government were disposed, therefore, to allow time to be given to the gentleman said to have been nominated, and of whom it was said he had a legal right which he wished to assert. Therefore he did not at present move the Motion which stood in his name for the issue of a Writ.