§ * Mr. BRADLAUGH (Northampton)
The Amendment which now stands in my name, and which I now beg to move, is—That the Resolution of this House of the 22nd day of June, 1880, 'That having regard to the Reports and Proceedings of Two Select Committees appointed by this House, Mr. 1310 Bradlaugh be not permitted to take the oath or make the affirmation mentioned in the Statute 29 Vic. c. 19, and the 31 & 32 Vic. c. 72,' be expunged from the Journals of this House, as being subversive of the rights of the whole body of electors of this Kingdom.Now, this Resolution which I ask the House to assent to will be found in the Commons' Journal, vol. 135, page 934. In asking the House to give its assent to the Motion, I trust I may be allowed to express a hope that the Government will not feel it its duty to oppose it. The Resolution itself is not without precedent. There are, indeed, several precedents upon the Journals of the House, but I shall only trouble the House with five of them, and those very briefly. Two of them are exactly applicable to the state of things I am about to submit to the House this evening. The one most in point is the Resolution which stands in the Commons' Journal, vol. 38, page 937, of the 3rd of May, 1782, and is as follows:—That the entry in the Journals of the House on the 17th of February, 1769, of a Resolution that John Wilkes, having been in this Session expelled the House, was and is incapable of being elected a Member of the present Parliament, be expunged from the Journals of this House, as being subversive of the rights of the electors of this Kingdom.That, however, was not the first Resolution of this character. In vol. 4 of the Commons' Journal, page 397, there is this entry:—The House took into consideration the Votes and Orders of this House for disabling Mr. Henry Martyn to sit as a Member of Parliament.After some discussion, it was resolved—That this Resolution be annulled and made void and erased out of the book, and that the Clerk do vacate the same accordingly.There are several other Resolutions which, by subsequent Resolutions, have been expunged from the Journals of the House. One will be found in 5 Commons Journals, page 197, but it is impossible now to discover its application, the page being blank, the Resolution having been actually expunged, and no trace of it left. Then there is in the 11th Commons Journals, page 210, an entry of a payment made to Sir Thomas Clarges which is directed to be struck out; and, curiously enough, there are two other entries on the same page which are also directed to be ex- 1311 punged, and which related to the Rev. Dr. Nowel and Mr. Lenthall for words spoken. So that what I am asking the House to do to-night, if I make out a good case, is only a matter which has been done more than once. I do not propose, in what I have to say, to reawaken any of the bitterness which might be found in portions of the struggle which commenced with this Resolution. My desire is rather to induce the House, in the interests of my constituents specially, and in the interests, I think I have a right to say, of the electors generally, to erase the Resolution from the Records of the House, the struggle in this matter having practically ended by the passing into law last year of the Oaths Act. I do not propose to make any other statement of facts than that which is found in Sir Erskine May's admirable summary, and the only references I shall make are to the Journals and the Report of the Select Committee, to which I must refer in order to make myself clear. I shall abstain from referring in any way to Hansard, because it would be impossible for me to do so without remembering things which Members on the other side of the House have shown a wise disposition to forget, and which I have no desire to recall. There is only one exception which I shall make to that, and the House will see the reason why I make it. In the Journals of the House of Commons it will be seen by reference to vol. 135, page 123, that it is recorded that I did not come to the House until the 3rd of May, 1880, to make my claim to affirm, while the Journals show that Parliament opened on the 29th of April, several days earlier. I think it is absolutely necessary, both for my own honour and in order to explain what is otherwise not clear, that I should state why it was that I delayed coming to the Table. What I am now stating has reference to the late Speaker of the House of Commons, of whom I desire to speak with the most profound respect, and for whose personal courtesy towards myself, during the difficnlt struggle to which I am referring, no words of recognition on my part can be too high. I have no desire to speak of him except as a Judge holding a high position in which I am sure that in every respect he tried to do what he 1312 thought to be right and just in reference to the honour of this House and the rights of individual Members. Of course it is necessary that I should challenge the decision of the late Speaker upon one point, although I admit that the House itself acted with him. It must be remembered that I am speaking now of the opposition which I received some years after it happened, but I received full permission at that time from Mr. Speaker Brand to state at any time, seeing that the matter had been alluded to by Sir Stafford Northcote in a speech to the House, that I delayed coming to the Table after having communicated informally to Mr. Speaker and to the Clerk, subsequent to my election, my intention to claim to affirm, as I then thought I had a right to do, in consequence of Mr. Speaker's request that I should wait until the opinions of the then Attorney General, Sir John Holker, the Solicitor General, the present Lord Chancellor, the Speaker's Counsel, and an eminent legal personage who was not named to me, and whose name, therefore, although I think I know it, I have no right to mention, had been taken, as to whether my claim to affirm was a claim which, in their opinion, was well founded in law. I stated then to Mr. Speaker Brand that, if the opinion of the majority of these personages turned out to be against me, although I thought myself right in my individual opinion, I should bow to their decision. I was told by the Clerk, Sir Erskine May, and afterwards by Mr. Speaker Brand, that if the opinion of the majority was not in my favour, the majority were certainly not against me. Under those circumstances I came to the Table, relying not merely upon my own view, but knowing that most eminent legal authority held exactly the same view as I did. I say this because the case has been sometimes put as though I had thrust a conflict upon the House of Commons, implying that I was wrong from the commencement, and that a degree of moral blame attaches to me which would naturally attach to me if the statement were true, I will assume, for the purposes of my Resolution this evening, that my claim to affirm was an ill-founded claim. Any way that is a position which I am bound to accept, because it 1313 was so decided against me by a competent tribunal. It is right, however, that I should inform the House that in the trial at bar, in which I was defendant, the learned Chief Justice of England, referring to that decision against my claim to affirm, said—"Whether that is well or ill decided it is not for me to suggest. It is decided, and decided by authority superior to the Court sitting here." Frankly I admit that the whole difficulty in the struggle arose from my making a claim to affirm, which the Courts ultimately held to be an ill-founded claim. I have made that admission, because I desire to be as frank with the House as it is possible to be, because I wish to appeal to the generous judgment of hon. Members, as well as to their just judgment in the way in which they will deal with my Motion this evening. It is right I should remind the House that one Committee having decided, as far as a Committee can decide by its Report, that my claim to affirm was ill founded, when the matter was referred to a second Select Committee on my claiming to take the oath, this is what happened. The Journals of the House say—Mr. Bradlaugh, returned as one of the Members for the Borough of Northampton, came to the Table to take and subscribe the oath, and the Clerk was proceeding to administer the same to him, when Sir Henry Drummond Wolff, the Member for Portsmouth, rose to take objection and to submit a Resolution to the House.Now, I cannot help thinking that Mr. Speaker Brand did not then act upon what was clearly his view as contained in the Journals of the 26th April, 1881, when he said that—The hon. Member for Northampton, having been introduced, has come to take the oath in the accustomed form, and is prepared to comply with the provision prescribed by the House, ought, under ordinary circumstances, to be continued without interruption.I submit that the words "under ordinary circumstances" ought to have been omitted, and that between the return of a Member to Parliament and the performance of his duties at the Table imposed upon him by law, whatever they are, there should be no kind of interference, supposing that he comes regularly in compliance with the Standing Orders to that Table ready to fulfil everything imposed on him by law. If he does not 1314 fulfil these obligtions, there is then a method of trying the question by a tribunal—a Court before which all matters of fact would have to be proved and none assumed. That was not the course adopted. Sir H. D. Wolff was permitted to submit a Resolution under which the matter was referred to a Select Committee. The Report of the Committee is rather long, but I will only trouble the House with two material paragraphs contained in it, and which are those which come last. The Committee wereof opinion that in making the claim to affirm Mr. Bradlaugh voluntarily brought to the notice of the House that on several occasions he had been permitted in Courts of Justice to affirm under the Evidence Amendment Acts, 1869 and 1870.Therefore the Committee reported that the House could—and in their opinion, if it could, it ought to—prevent Mr. Bradlaugh from going through the form of taking the oath. The Committee pointed out that if the House prevented a duly elected Member from taking the oath or affirming, there was no power of reviewing or reversing that decision, however erroneous it might be in point of law. The Committee, therefore, recommended that should Mr. Bradlaugh again request to make and subscribe the affirmation, he should not be prevented from so doing. But the House of Commons, in its wisdom, did not accept that Report, and passed the Resolution which I now ask the House to erase from its Journals, declaring that Mr. Bradlaugh should not be permitted either to take the oath or to make an affirmation. Having put this to the House, I should like to say that there is no truth in the statement that in any fashion whatever, either directly or indirectly, have I ever sought, during any portion of the struggle, to put upon this House any opinions I hold upon any matter whatever other than those which are connected with the discharge of my political duties as a Member of this House. Now, it is clear what was the old practice of the House, and I am going to ask this House to renew and re-affirm it by erasing this Resolution from its Books. The old practice, as shown by Hatsell, vol. ii., p. 64, was that on a Member appearing to take his seat, all business was suspended until he was sworn. I do not ask the House to vary the change as to time made by the Stand- 1315 ing Order on the 30th April, 1866. It is clear that much difficulty might arise, and some difficulty did arise, by Members coming to the Table during a debate to be sworn, and thus interrupting the business that was going on, and therefore the House ordered that Members may take and subscribe the oath required by law at any time during the sitting of the House before the Orders of the Day and Notices of Motion are entered upon, or after they are disposed of, and that no debate or business shall be interrupted for that purpose. Now am I only asking the House to say—by erasing this Resolution—that within the limits of the Standing Order nothing shall stand between a Member and the performance of his duty. I submit that the right of the electors to choose whom they will to represent them, unless that person be a person incapacitated by law, is a right of which this House should suffer no kind of deterioration or detriment. My electors bad returned me in 1880, and they were entitled to my services as soon as I was ready and willing to comply with the law without any difficulty being placed in my way, and the House was bound constitutionally not to prevent me from doing what I was trying to do. I agree that the House may expel a man at its own mere will and its decision is, except by its own vote, an irreversible and unchallengeable decision, which no Court of Law can touch. By expelling a Member the House gives his constituency a right of fresh judgment—of either re-electing the Member or of choosing somebody else; but by preventing me, as the resolution did, from fulfilling the requirements of the law, it prevented the constituency from having my voice. It did not vacate the seat, but it deprived the constituency of Northampton of half of its Constitutional right of representation in the House. I am glad, in moving this Amendment to-night, I can do so with a certain sense that the particular matter which caused the struggle in my case can never happen again. First, I ask it as a measure of justice to the electors of the United Kingdom, and I ask it more, because, if the Resolution remains on the Journals of the House, there will be a precedent for a state of things so dangerous that I do not think any Members, likely to be in a minority 1316 at any time, could contemplate them with calmness, because, if the House may prevent one Member, it may prevent 10, or 20, or 40. Now, on the argument of the case of "the Attorney General v. Bradlaugh," before the Judges, the then Attorney General, the right hon. and learned Member for Bury (Sir Henry James) contended that the House not only had power to expel, but could refuse to a Member the right to sit and vote, and equally it had the power to say he should not take the oath. If that power does exist, it is a power on the part of the majority to exclude the whole minority. It is a power of a most dangerous character in time of a Party heat and ill-feeling. It is a power which the right hon. and learned Gentleman the Member for Bury, distinguishing himself from his capacity then as representing the House of Commons in the Law Courts, would scarcely argue for here to-night as against the people. In the whole of my struggle I did not use one word disrespectful to the House—I always spoke of it as a Chamber in which I desired to serve—as a Chamber which I did not desire to dishonour, and which I trust I am serving without dishonour to it and with some usefulness to the constituency which elected me. But I will not leave unchallenged upon the Journals of this House this Resolution. I do not know what may be the fate of my Amendment to-night. I have not the means of guessing what kind of consideration the Government will give to it, but there is one thing I do venture to believe—that there is no Member of the Government, I would even say no Member of the Conservative Party, who desires to evoke memories necessarily unpleasant and bitter, not tending on either side to make the one or the other greater, and the more the House than myself, for I am only one filling but a sand-grain place on the page of its history, soon by time to be swept away, but this House remains. I appeal to the House that there may be no third struggle. Two there have been within the past 110 years, and in each case the House, in haste and perhaps in anger, made its judgment against a man who perhaps did not deserve kindness at their hands, but at least should have justice. For the electors I am bound, if I fail to-night, Session by Session, to renew this Resolution. I 1317 trust I may not have to waste the time of the House, which, willingly, I have never wasted and do not desire to waste, in such an undertaking, and I trust the House may feel they can accept the Resolution in the spirit in which I move it, without taunt or boasting, only entreating the High Court of Parliament to do itself the justice which none other has the power to do.
Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words—
The Resolution of this House on the 22nd day of June, 1880, 'having regard to the Reports and Proceedings of two Select Committees appointed by this House, Mr. Brad-laugh be not permitted to take the oath or make the affirmation mentioned in the Statute 29 Vic. c. 19, and the 31 and 32 Vic. c. 72,' be expunged from the Journals of this House, as being subversive of the rights of the whole body of Electors of this Kingdom,"—(Mr. Bradlaugh,)
§ —instead there of.
§ * THE PRESIDENT OF THE BOARD OF TRADE (Sir MICHAEL HICKS-BEACH,) Bristol, W.
I think the calm atmosphere of the House at the present time is a sufficient earnest to the hon. Member that the question he has brought forward will be approached by the Government, and by any hon. Member who addresses the House, in no spirit of personal hostility to himself, and with no desire to re-awaken unpleasant memories. Sir, I would point out, in the first place, that the Motion of the hon. Member is no mere request for the assertion of a principle or doctrine in which himself believes; it is to ask the House to take the very serious step of expunging from the Journals a Resolution entered upon those Journals by the vote of a previous Parliament. Now, Sir, I hope I shall command the assent of the House, whatever their opinion upon this Resolution itself may have been, to this proposition, that no such step as that which the hon. Member asks the House to take should be taken on account of a mere difference of opinion, if such difference of opinion exist, between one Parliament and another. If it were otherwise, we might be asked to rescind Resolutions passed by previous Parliaments on any conceivable subject. Not only the inconvenience, but the unconstitutional nature of such a 1318 course is obvious. I venture, Sir, to submit to this House that the only ground upon which it could be asked that the Resolution of a former Parliament should be rescinded is this: that it should be clearly proved that the Resolution is either contrary to the law or the Constitution of the country. Well, now, what is the argument of the hon. Member? He asks the House to rescind this Resolution, in the first place in the name of justice to himself, but it appears to me that if the Resolution was in accordance with the law it was not unjust. Secondly, he asks us to do this as a protest against some terrible prospect which he holds out—that this or some future Parliament may exercise the power of debarring 10 or 20 or any number of Members from coming to the Table to take the oath and their seats. But, Sir, the mere expunging of this Resolution—if Parliament possesses such a power—could not deprive it of that power. We can only deal with this Resolution as one arrived at under certain circumstances, and applicable only to a particular case. In the first place I deny that the precedents which the hon. Member has quoted afford any argument for the course he recommends. The two precedents on which he seemed most to rely are the case of Henry Martyn and that of Wilkes, in 1782. I think that the case of Henry Martyn was not an expunging by one Parliament of a Resolution arrived at by a previous Parliament. It was merely the expunging by a Parliament of a Resolution which the same Parliament had previously arrived at, by which a disqualification had been imposed on Henry Martyn; and it must be perfectly obvious that that is a very different thing from asking the House to go back nine years and expunge a Resolution at which a previous Parliament had arrived, which certainly now imposes no disqualification on anybody. In the case of Mr. Wilkes, that gentleman moved—That the following Resolution, which had been passed by a previous Parliament, should be expunged—'That Mr. Wilkes having been in this Session of Parliament expelled from the House was, and is, incapable of being elected a Member to serve in this present Parliament.'And the House of Commons of the day, on Mr. Wilkes's Motion, expunged the Resolution from its Journals as being 1319 subversive of the rights of the whole body of electors of this United Kingdom. But why was it subversive? Because it was considered that, although the House had, of course, the right to expel a Member, it had no right to debar the electors from returning him again if they so pleased. That does not apply to the case of the hon. Member. The Resolution which he asks us to expunge did not touch the power of the electors of Northampton to return the hon. Member as often as they choose, and, as a matter of fact, they did return him after it was passed. What the Resolution did was to express the opinion of the House of Commons that the hon. Member, after having been so returned, should not be allowed to take the oath or the affirmation prescribed in certain cases by law. What, Sir, was the effect of this Resolution, and how did the circumstances arise? As the hon. Member has very fairly admitted, they arose owing to his own action in asking to be permitted on the 3rd of May, 1880, to make an affirmation instead of taking the oath in the ordinary manner; that brought the whole case before the judgment of the House, and from that began all the subsequent proceedings in the Parliament of 1880 with regard to it. I remember when, at the commencement of the Parliament of 1886, before any hon. Members had taken the oath, I felt it my duty to place before you, Sir, by letter, the history of the case, and to ask you to submit to the judgment of the new House of Commons whether the hon. Member for Northampton should be permitted to take the oath or to affirm. You, Sir, declined to comply with the request, ruling that it was not for you nor for the House to enter into any inquisition as to what may be the opinions of a Member when he comes to the Table to take the oath. No question was then raised, and the hon. Member for Northampton took the oath like any other Member of the House. These circumstances obviously differed from the circumstances of the Parliament of 1880, when, by his own action in claiming to affirm, the hon. Member had invited the judgment of the House on his particular case. Now, Sir, I contend, in the words of one of the Committees, to which the hon. Member has referred, that there is an inherent power in the House to require 1320 that the law by which the proceedings of the House and its Members in reference to taking the oath is regulated, should be duly conformed to; and that was the power which was exercised in the Resolution which the hon. Member now asks to have expunged from the Journals. I think I can show, in the first place, that it was exercised strictly in accordance with the law. Indeed, the hon. Member has not denied it. What have been the decisions of the Courts? On March 31, 1881, the Court of Appeal decided that the hon. Member was a person who, by want of religious belief, was not entitled by the Parliamentary Oaths Act or the Promissory Oaths Act to make or subscribe an affirmation.
§ * MR. BRADLAUGH
I have not denied that the conclusion at which the House arrived was a conclusion in accordance with the judgment of the Court, but I deny the right or the duty of the House to arrive at any legal conclusion at all respecting a lawful return. I held that the Courts alone should do that.
§ * SIR M. HICKS-BEACH
I am arguing that the House in this matter did not arrive at a legal conclusion, but simply maintained and enforced the law. That was the decision of the Court of Appeal. The hon. Member, by his own action in being primarily responsible for the passage of the Oaths Act of last Session, has shown that he himself accepts the decision of that Court as good law. In January, 1885, the Court of Appeal decided that—The hon. Member having been found by a jury to be a person not believing in the existence of a Supreme Being, and upon whom the oath, as an oath, had no binding effect, is, owing to his want of religious belief, incapable by law of taking and subscribing the oath at the Table.That was the law in 1880, both as regards the taking of the oath and the right of the affirmation in the hon. Member's case. What the Resolution of the House did was simply to see that the law was enforced and carried out. The hon. Member contends it was not the duty or the right of the House to do so. But this is not the first time in the history of the present Parliament that he has brought the matter under the judgment of the House. Last Session he asked the House to declare that 1321 Mr. Speaker should call any duly elected Member to the Table to take the oath on his presenting himself in the ordinary form, with this exception, "unless the House should otherwise order."
§ * MR. BRADLAUGH
I only introduced those words on the express request of the Attorney General, and stated by him to be made at the instance of the Leader of the House, who intimated that if I inserted these words which were not in my Resolution the Government would accept it. They did not carry out that pledge.
§ * SIR M. HICKS-BEACH
As a matter of fact, the hon. Member did insert the words, and my right hon. Friend the First Lord of the Treasury was prepared to accept it in that form. What did the hon. Member himself say in speaking to that Motion. He said it did not touch the authority of the House, and admitted there might be occasion when the House ought to make a special order with regard to some Members. He also went on to say later on that whether or not the words were retained in the Resolution, the House would remain master of its own proceedings. He had always contended that while there was no legal limit there was a Constitutional limit to its power to meddle with the free choice of a constituency unless the person returned were legally disqualified from taking his seat. That was the hon. Member's position, for in the Parliament of 1880 he was legally disqualified from taking his seat, and the House acted on that legal disqualification, which now has been happily removed by the Act of last Session. I think the House at the time was right in its decision, and that a most dangerous precedent will be set if its Resolution should be expunged from the Journals.
§ * SIR HENRY JAMES (Bury)
I am sure that, whatever may be the opinion of hon. Members on this matter, everyone will agree that the tone assumed by the hon. Gentleman the Member for Northampton and the right hon. Gentleman the President of the Board of Trade will assist the House in coming to a decision. Sir, I agree with what the right hon. Gentleman has just said, that we ought not lightly to expunge a Resolution from the Journals of this House. Certainly, because one Parliament differs from the 1322 views of another, it has no right to expunge the Resolutions of its predecessor. That proposition will, I think, receive the assent of the great majority; for the records ought not to be, as it were, falsified by striking out Resolutions passed by previous Parliaments. But that is not the question before us. I admit that, before this Resolution is expunged, it ought to be shown that the Resolution was wrongly drawn, not because the opinions contained in it are wrong, but because something was wrongly done by the Resolution. When the matter was discussed in 1880, it fell to the lot of some of us to say that the Resolution could not be arrived at constitutionally. I quite admit that, if the Resolution had merely expressed an opinion of the Parliament of that day, it could not with propriety be expunged. But if, as in the case of Mr. Wilkes, there was an assertion of power to do an act which the House had no right to do, it is, I think, our duty to expunge the Resolution. If it is allowed to remain on the Journals of the House, in after time it will be quoted as a precedent that the Parliament of that day had the power to carry the Resolution into effect. Let me remind the House of the position taken up in 1880, and still taken up, by those who opposed the Resolution in 1880. Upon a Resolution made by the senior Member for Northampton, "That Mr. Bradlaugh do take his seat," an Amendment was moved by the present Lord Chancellor to the effect that "Mr. Bradlaugh be not allowed either to take the oath or to affirm." In answer to what has been said as to the views which were presented to the Court of Law, let me say that my belief is, in one sense, the House had right in their action—I mean in the sense that there is no power in the Court of Law to review what the House has done. The House is the High Court of Parliament, and that no other Court can control its action within its own walls. But the question is not whether the House had a technical legal right, but whether it had a Constitutional right to take the course it did take. My view then was—and it is now—that the House had no right to take such a course, and the House will never dare to take such a course again. When the hon. Member for Northampton appeared afterwards to take the oath it was admitted by the silence of those who 1323 had previously opposed him that they had no Constitutional right to prevent him taking his seat. If a constituency returns a Member to the House, that Member has a right to take his seat. If he took his seat wrongfully by affirming when he had no right to affirm, or by pretending to take the oath when he did not take it, there is a penalty imposed which prevents the Member from continuing to take his seat, because it is a recurrent penalty. What was contended for in July, 1880, and what was then opposed by the Government of the right hon. Gentleman the Member for Mid Lothian (Mr. Gladstone) was the proposition that said, "We will not let the hon. Member take the oath or affirm." The House cannot probe the reasons or thoughts of men, and it is not in the power of the majority wilfully to lay down such a proposition in order that the right may be legally tried. The present case is identical in principle with that of Wilkes. In the case of Wilkes the effect of the House's action was to say, "The constituency had no right to return Mr. Wilkes, and his opponent is returned." That was an unconstitutional Resolution. If the House prevents a Member from either taking the oath or affirming, it is a barren argument to urge that the House does not prevent the constituency from returning the same Member again. It will be but an empty form for the constituency to go on returning the Member under such circumstances; and yet of such a character is the Motion which was proposed by Sir Hardinge Giffard and carried by the House of Commons. Both in the case of Wilkes and in the present case there is an unconstitutional interference with the rights of a constituency. I believe that the resolution of 1880 was unconstitutional and wrong, and that it never ought to have been entered on the Journals of the House. What ought to be done, then? To express a contrary opinion now would be scarcely enough. It was proposed in 1880 to insert in the Resolution the words "if Parliament shall otherwise direct," but those words were, by the unanimous consent of the House, struck out, thereby admitting that no such right existed. I feel that this is a grave matter, but I believe we shall be acting constitutionally and rightly if we assert that there is no power in the 1324 hands of the House to interfere in the return of a Member of Parliament.
§ * THE SOLICITOR GENERAL (Sir E. CLARKE,) Plymouth
I cannot help thinking that the recollections of the conflict of 1880 are very acute in the mind of the right hon. and learned Gentleman the Member for Bury (Sir H. James). The right hon. Gentleman began by admitting that the expunging of a Resolution from the Records of Parliament was a very serious action. Of course it is absurd, unless there is some necessity to disaffirm a principle laid down in a previous Resolution. It is an idle thing to try to tear out of the history of the House of Commons one page. That does not get rid of the incident itself. If this Resolution is carried it will not alter the fact that the House of Commons did, in 1880, take upon itself the right represented by the Resolution in question. Unless it is to relieve the character of some person from stigma, or to remove some principle which ought no longer to remain in the Books of Parliament, there is no excuse for tampering with and falsifying the Records of the House by striking out part of them. The right hon. and learned Member for Bury admits that it requires a very strong case to induce the acceptance of the Resolution before the House, and he seems to think that the case of Wilkes in some way supports the proposal of the hon. Member for Northampton. There can be nothing more marked and clear than the difference between the present case and the cases of Martyn and Wilkes. In the case of Martyn the House had pronounced a disqualification against the Member, and as long as that remained on the Books, the man could not be sent to the House. But the House of Commons retracted that disqualification, and declared that it should be annulled and erased from the Books of the House. The sentence of disqualification was cancelled, and Martyn admitted to all the rights of citizenship. In the case of Wilkes, as long as the Resolution remained unaffected by any later Vote of the House, it amounted to a declaration by the House of Commons that any person who had been expelled from the House was by that very act incapacitated from being a Member of the House again. The history of the matter with regard to John Wilkes was rather a 1325 curious one. In the year 1769 the Resolution which was complained of had been carried by a substantial majority in a full House. Afterwards Wilkes, having been again elected, took his seat, and from time to time, between 1775 and 1782, made almost annual Resolutions on the subject. At last the Resolution was passed in a careless and tired House—a House which attached very little importance to the matter. There is in the Records of the House which are generally referred to for the facts of that period no mention of the Debate or the Division which resulted in expunging the Resolution from the Journals. In the seventh volume of "debrett's Parliamentary Debates" a reference is made to the incident, but it is a very short one, very little of the Debate is given, and the Motion is stated to have been eventually carried by 115 against 47. Only one speech was thought worthy of report by the editors of those reports, and that speech was the speech of Mr. Fox—[Sir W. HARCOURT, Hear, hear!]—in which Mr. Fox protested strongly against the Motion being expunged. Mr. Fox opposed the Motion, but said—It was not from any false pride or fear of being thought inconsistent. He had turned the question of ten in his mind, and he was still convinced that the Resolution which gentlemen wanted to expunge was founded on proper principles. It was for the good of the people of England that the House should have a power of expelling any man whom the representatives of the people of England thought unworthy to sit among them; this was a privilege too valuable to be given up He supposed some cases in which the public utility of it would be felt and acknowledged; if the Bill for excluding contractors from seats in that House had been rejected in the other; and that the House of Commons should come to a Resolution of their own that no person holding a contract should sit amongst them, the present contractors losing their seats might be re-elected, and then, if not prevented by the inherent power of the House to expel, the very men whom the House should have pronounced improper to sit among them might be returned again".The Resolution passed in 1769 was expunged in the Manuscript Journals of the House, but when they were reprinted in 1803 it was not expunged, and is to be found in the printed Journals to this day. The difference between that case and the present is perfectly clear. In respect to the present case the House had appointed two Select Committees, the first of which 1326 advised that the hon. Member (Mr. Bradlaugh) was not a person who could be allowed to affirm. That was sound law. Then the second Committee reported that the hon. Member was not a person who was capable of taking an oath.
§ MR. BRADLAUGH
The Committee added that in their opinion the House ought not to prevent me from affirming.
§ * SIR E. CLARKE
I am quite aware that that Committee added the suggestion that the hon. Member should be allowed to affirm; but in view of these declarations of the two Committees, what was the House to do? Was it to throw over the Reports of the Committees when it believed them to be sound, and to say that the hon. Member should be allowed to do one of these two things? The House of Commons was perfectly right in its law. In the conflict which ensued between the two sides of the House it was suggested by the right hon. and learned Member for Bury and those acting with him at the time that the House had no certain knowledge of the opinions of the hon. Member for Northampton, and, therefore, it ought not to take this action, but that it ought to be left to the judgment of a Court of Law. My right hon. and learned Friend has said in the course of his speech to-night that the House of Commons is a Court. It is part of the High Court of Parliament; and the House of Commons, knowing that the Member who came to the Bar was one who could not affirm and was incapable of taking an oath, was only discharging its first duty in passing that Resolution. I submit to the House that so far from being, as in the case of Wilkes, the assertion of a principle which the House may or may not now desire to get rid of, it is simply the Record of an act done by the House. There is no sense in expunging the Record from the proceedings of the House; it would be of no use to the hon. Member or to his constituents. There is nothing on the face of the Resolution which in the least degree infringes the Constitutional rights of the electors of the country, because the House took the proper course at that time in protecting itself against an illegal or profane performance taking place before it. If, however, it is suggested that the House should expunge 1327 from the record of its proceedings acts done by the House, there would be scarcely any limit to the discussions of this kind. There is one important instance to be found on the Records of the House. Not many years ago the right hon. Member for Mid Lothian rose at the Table while Mr. O'Donnell, then the Member for Dungarvan was addressing the House, and moved that that hon. Member should no longer be heard. Tour predecessor, Sir, said that no such Motion had been made for 200 years, but he could not say that it was out of order. There was a strong majority in the House at the back of the right hon. Gentleman at that time, and Mr. O'Donnell was directed to discontinue his speech at once, but when the hon. Member for Cork (Mr. Parnell) followed the example of the right hon. Member for Mid Lothian, and proposed in the next Session that the right hon. Member should be directed to discontinue his speech, the results were different, for the hon. Member for Cork was straightway suspended. Would any sane man suggest that those incidents should be expunged from the Records? The House may have done a wise or an unwise thing; it may have adopted in conveniently an old precedent, or made an inconvenient new one, but everything which takes place in the House in the course of the Session is part of the history of the House and the country. It is as childish to suggest that a leaf should be torn out of the Records of Parliament as it would be for an angry wife to revenge herself by tearing up her marriage certificate, or for an embarrassed tradesman to put himself right by tearing a leaf out of his ledger. If a transaction takes place the record of it ought to remain. I do not say that if a Resolution on the Books of the House lays down an unsound and un-Constitutional principle, the House may not be right in expunging it in order to mark its strong sense of the wrongful principle so laid down, but the Resolution which the hon. Member asks should be expunged is the Record of an action taken by the House. That action was, in my judgment, absolutely right; I believed it to be right at the time, and I know it has been proved to be right in the Courts of Law by the proceedings which have taken place since. I appeal to the House not to do so unwise or 1328 foolish a thing as to try to erase the Resolution from our Records.
§ SIR W. HARCOURT (Derby)
I wish that the hon. and learned Gentleman had endeavoured to deal with what, after all, is a grave Constitutional question in a somewhat more serious manner and in a style more worthy of the subject. The illustrations he gave were beneath the gravity of the occasion. The question is whether the action taken by the House at that time was un-Constitutional? I could not make out, from the hon. and learned Gentleman's quotation from the speech of Mr. Fox, whether he thought the original decision of the House of Commons in Wilkes's case was right or wrong. I think that everyone is of opinion—that every Constitutional lawyer is of opinion—I make an exception in the case of the Solicitor General—that the course taken by the House of Commons from 1769 to 1782 was thoroughly un-Constitutional. It is said that Mr. Wilkes made an annual Motion. Yes, but in what kind of Parliament did he do this? It was in the corrupt Parliament of Lord North, which did un-Constitutional acts every day. The striking out of the Resolution from the Records was one of the first acts of the first Liberal Parliament elected after the disasters of the American War. That is a chapter in the history of the matter to which the hon. and learned Gentleman did not refer. Was the declaration an un-Constitutional one? It has always been held so, because it was an assumption on the part of Parliament to prevent a Member taking his seat who had a right to take his seat. The Solicitor General says it was the bounden duty of Parliament to pass that Resolution in 1880. If it was the bounden duty of Parliament to do so because it was a right and proper Resolution, why is it not the bounden duty of this Parliament to pass a similar Resolution? What became of the sacred duty insisted on by the Solicitor General? When this Parliament was elected, the persons who had the guardianship of this legal duty were the present Law Officers of the Crown. What were they doing when they failed to declare this fundamental duty of the House of Commons to exclude the hon. Member for Northampton? They did not perform that obligation in this Parliament, because they knew that the Parliament 1329 of 1880 had committed an un-Constitutional act, and they were ashamed to be again parties to that transaction. The Attorney General laughs. He is a bold man I know; but why did he not make the Motion? The hon. and learned Gentleman the Solicitor General says the incident has taken place, and, therefore, it cannot be obliterated. Everybody knows that. We do not wish to falsify the Record, as has beet suggested, but merely to point out the fact that the House of Commons committed an illegal act, and we do not desire that the precedent should remain. The question does not affect one side of the House more than the other; it is the right of the constituencies which is involved. If you choose to leave on the Records that the House of Commons—I care not whether the declaration is a legal or an illegal one—assumes to itself by a vote of the majority to declare the rights of a Member or of a constituency, you set a dangerous and an un-Constitutional precedent. If the declaration is a legal one, then the Court of Law can work it out if necessary, but if the declaration is an illegal one, then, unfortunately, there is no Court to reverse our decision or examine our conduct. That is, unfortunately, the danger of a declaration of this kind. I shall vote as I voted in 1880, against the Resolution, because, now, as then, I think, as I thought, that it is an extremely dangerous thing, and still more so after this debate and the speech of the Solicitor General, that we should allow it to remain on record that the Government has maintained the proposition that the House of Commons has a right by its own vote to determine the right of a Member to his seat, and the right of a constituency to elect him. That is the doctrine maintained on those benches and asserted by the Solicitor General, but which they did not dare to act upon at the commencement of this Parliament. What does it mean? It means that whenever it is convenient to them—and it was not convenient to them at the beginning of Parliament—whenever it suits their purpose they will assert that principle and act upon it.
§ SIR WILLIAM HARCOURT
What I am saying is in reference to the proposition of the Solicitor General. I 1330 was examining his proposition, the position that a great Party assumes in reference to this point, and I say it is a most dangerous thing. Depend upon it it is a doctrine that will be taken up by a Party to which you do not belong, and I shall deplore it as a great evil then as it is when asserted by you. It is an assertion that a Parliamentary majority may at any moment exclude a Member elected to this House as a representative of the people, may take upon itself to declare the law, not leaving that declaration to the Courts of Law. That is a most dangerous doctrine, and, therefore, I shall vote for the Motion of my hon. Friend.
§ Question put, "That the words proposed to be left out stand part of the Question."
§ The House divided:—Ayes 112; Noes 79.—(Division List, No. 12.)
§ Main Question again proposed, "That Mr. Speaker do now leave the Chair."
§ MR. T. M. HEALY (Longford, N.)
I understand that a Scotch Member desires to bring forward a Scotch measure in which Scotch Members on this side are much interested, and I will not, therefore, stand in the way with the Motion of which I have given notice.
§ Motion, by leave, withdrawn.