by Members who may be too anxious that I should not sit, supposing in any other House of Commons it should happen, and it then gives the Member attacked fair play. While I admit entirely that the House has a full and most complete right to expel any sitting Member, and this in its own discretion, and for any reasons in its wisdom sufficient, I submit that it has never done this without first calling upon the Member to be heard in his own defence, and that that cannot possibly happen until the Member is sworn and is sitting. I submit that while the House has the right to annul the election of a person absolutely disqualified by law, it has never, except in one case, that of John Wilkes, claimed the right to interfere, and in that case it ultimately expunged from its proceedings the whole of its hostile resolutions, as being subversive of the rights of the whole body of electors of this kingdom. I quote on that the Commons Journal, Vol. 38, 3rd of May 1782. I do not think that I should be right in troubling the Committee with the very strong arguments used time after time by Edmund Burke, Thomas Pitt, and others; but I want to point out this, that in addition to the charge on which John Wilkes was expelled from the House (and I am not questioning his original expulsion), there were also charges introduced against John Wilkes for his publications outside the House. That will be found in 1st Cavendish, page 73 and page 129, and they are charges far exceeding anything (if I may judge from the reports which have even been put in) in relation to any supposed publications of my own. None of those charges were ultimately considered by the House to justify the interference of the House with the choice of the constituency. To use the words of Mr. Thomas Pitt, on page 350 of Cavendish, words endorsed by the House itself, “Nothing but a positive law can enable you to circumscribe the electors in their choice of a representative, however, indiscreet they may be in their choice.” I consider now on what grounds is it claimed that the House of Commons has the right and jurisdiction, following the words of reference, to refuse to allow me to take and subscribe the Oath? Is it for a disqualification or ineligibility existing prior to my election and continuing down to the time of my election – I mean a disqualification or ineligibility created by Statute or existing at common law? No such disqualification is even pretended. Is it for a disqualification or ineligibility of like legal character arising since my election? No such disqualification is pretended. Is it for conduct not amounting to absolute disqualification legally, but conduct for which the House has in its discretion exercised its rights and jurisdictions by expelling a Member? It must be this, or it is nothing. If there is neither legal disqualification prior to my election, nor legal disqualification subsequent to my election, then there must be such conduct not amounting to absolute legal disqualification as would, were I a sitting Member, justify the House in using its discretion to expel a Member. But if that conduct be prior to the election, then I submit that the constituency is the sole and sovereign judge of the fitness of the candidate, such candidate not being legally disqualified, and that where the chosen and duly returned candidate is ready to perform his duties, this House has neither the right nor the jurisdiction to revoke the decision of the constituency; and that in the only case in which the House did so interfere it afterwards solemnly recorded that its conduct was illegal, as being subversive of the rights of the whole body of the electors of this kingdom. If the complaint against me is for conduct arising since my election, then I submit that even if such matters justify my expulsion as a Member, the point could only be raised after I had been heard in my place against the Resolution, and that the matter could not arise until I have taken the Oath and become entitled to speak, sit, and vote. Manifestly this must be so, as otherwise it would always be in the power of a majority to exclude from coming to take his seat any Member to whom they might have an objection; and although such a thing is, luckily, not probable now, there have been times, even in the history of the House of Commons, when a majority, even of election committees, as I read in the Records of the House, have sought by mere prejudice to exclude Members. It is, therefore, the more necessary that at any rate a Member should have the right to be heard in his own defence. I submit that there is no precedent whatever for preventing a Member from taking his seat and the Oath, on the ground of conduct not amounting to absolute legal disqualification. There is no such precedent to be found at all, and I have searched very carefully indeed. I put the question to Sir Erskine May lest anything should have escaped me, and I say absolutely there is no precedent. Then I submit that it would not be consistent with the dignity of the House to examine any statement made by any Member outside the House, as to any of its procedure, and that in fact the House has firmly refused to allow a Member to be challenged as to whether or not some of his extra-Parliamentary utterances were inconsistent with his Oath of Allegiance; and here I should like the Committee to come to a decision, because it would alter and abridge my argument. If the Committee thought (I will put a suppositious case) that, say there were some document that they thought they had the right to take into consideration here, then while I should object to that, I should like to have the opportunity of addressing the Committee as to that. So far as the evidence has gone, I have not heard of any, except the mere statement in the House, only I judged from a question put by an honorable and learned Member that something was passing in his mind (which, by the way, did not seem to me to be the fact) justifying a question put to Sir Thomas Erskine May as to whether the Oath could be administered to a man who had done something either actually or by implication repudiating the effect of that Oath. I have heard nothing in the evidence, so far as it has gone, giving the slightest color or warranty for such a question. If there are any facts to be dealt with by this Committee other than that, then I should like to know the facts, and to argue upon them; but it would be only wasting the time of the Committee to address argument to any point which the Committee would not think it right to consider; and I should be glad if, before going further into my statement, the Committee thought it right to intimate to me their view upon that.
The Committee deliberated.
87. Chairman: I think the Committee would like to understand from you the kind of objection that you are anticipating before you proceed with your argument; as I understood you, you took this kind of objection: “I wish to know whether the Committee are going into any proceedings external to the proceedings which took place in the House, or will entertain the consideration of those questions,” and that if they did so you would wish to be heard upon that point; I understood you also to say that beyond that general question as to any proceedings which may have taken place as part of the transaction in any other place than the House itself, you wish to know whether the Committee would take such matter into their consideration; am I right in supposing that to be the character of your objection? – Not quite. Practically my question is this: Will this Committee take any facts into consideration other than those of which I have heard evidence given, and those which have been stated by myself in the course of my argument? If so, I should like to know, because I understood the permission of the Committee to be that I should address them at the close of the case before their deliberations, and I should submit with all respect that the Committee would not take one matter of fact into their consideration to influence them in their deliberations which I had not the opportunity of addressing them upon. If they have finished, and if there are no facts except those which I have heard to be dealt with, it enables me to turn out and eliminate a portion of the argument which I have prepared.
The Committee deliberated.
88. Chairman: The Committee have considered the matter which you have submitted to them, and they request me to inform you that members of the Committee do propose, after your statement is concluded, to ask some questions of you; but I have to inform you, at the same time, that you will be invited, and are invited, to state any objections that you may entertain to any such questions when put, and that you shall have a full opportunity of addressing the Committee after they have heard your answers to the questions so put? – That will enable me to eliminate a portion of my argument. I wish to submit to the Committee one observation on the precedent of Daniel O’Connell, and that is that, as a matter of fact, the evidence of Sir Thomas Erskine May shows that he misapprehended that precedent. It was a refusal by Daniel O’Connell to take the Oaths by law required of a member at the date of his election. Between the date of his election and the date of his refusal the law had changed, but it had not changed (so the House interpreted the Statute, or so the Statute ran, I do not know which) at the date of his election. So that I submit that Daniel O’Connell’s case is a case of a Member refusing to take the Oath by law required; and I further submit that the Parliamentary
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