THE SOLICITOR GENERAL

I entirety agree with the proposition of the hon. Member for Mayo (Mr. Moore) that this is a question which should be debated in a calm and judicial manner, and, as far as possible, should be kept free from all party or purely political considerations. I further entirely agree that if any fair and candid mind could see that inquiry was needed the House should grant such inquiry. It certainly would be a very disastrous state of things, and a state of things which would leave us exposed to very just reproach, if it were really the law of the country that a man convicted of treason-felony, and now undergoing sentence of penal servitude in one of the prisons of the Queen, 137 should be eligible and should be deputed to represent a county in Parliament. This would be a great reproach to the law—still, if it were so, the law would have to be administered as it stood in a judicial spirit. Of course, too, I agree—as every lawyer and every man must agree—that laws affecting whole classes of Her Majesty's subjects cannot be created by Resolutions of the House of Commons. Resolutions can be of no effect except when they declare that which is either the statute law, or that which has been by a long course of judicial procedure decided to be the common law of the country. I now proceed to describe to the House my view of the question at issue. I begin, in the first instance, for the purpose of putting it out of the way, with the point which the hon. Members for Mayo and Dungarvan last referred to—I mean the argument they have derived from the words of the Election Petitions Act, and the supposed taking away thereby of the jurisdiction of this House in matters of this description, and transferring it to the Judges. No doubt that Act has been correctly stated. The 50th section of that Act, the 31 & 32 Vict. c. 125, enacts that— From and after the next Dissolution of Parliament no Election or Return to Parliament shall be questioned except in accordance with the provisions of this Act. But, in order correctly to gather the meaning of these words, it is necessary to consider what the Act was dealing with, to what state of facts it was to be applied, and what jurisdiction it was transferring. That statute was transferring to the Judges the jurisdiction which up to that time had been exercised by this House exclusively under the 11 & 12 Vict., commonly called Sir Robert Peel's Act. The later statute begins by calling itself "An Act for amending the Laws relating to Election Petitions," and it is known as the Election Petitions Act. It sets out the form in which election petitions are to be made out, it deals at considerable length with the whole course of procedure applicable to the courts it constitutes; and then, after certain miscellaneous provisions, in the 50th section it enacts that— From and after the next dissolution of Parliament no election or return to Parliament shall be questioned, except in accordance with the provisions of this Act; but, until such dissolution, elections and returns to Parliament may be questioned in manner heretofore in use. 138 What does that mean? It means, of course, "questioned" by election petitions—"questioned" by persons having an interest in raising the question, by persons wishing to vindicate their own rights, by persons who under the state of the law existing before would have been referred to an Election Committee of the House, which exercised jurisdiction in a manner familiar to us all. If that were not the case, and if the Act of Parliament were not to be considered by that rule of common sense, what would happen? In the case of no elector choosing to question the return of a Member, the House of Commons would be bound by law, according to the argument of the hon. Gentleman opposite, to receive among its Members persons who by law were ineligible; because the hon. Member knows there are no means of questioning elections except before the Judges, that the Judges alone inquire into election petitions, and unless the Judges were petitioned in such a case a person confessedly ineligible could take his seat in the House unquestioned. Can that be the fair and sensible meaning of the Act? I venture to think that any one who considers the matter candidly as a man of sense will see that I am giving the reasonable interpretation I of the Act. Now, lot us consider some of the technical questions raised. As I understand the argument of the hon. Gentlemen opposite, it is somewhat in this form. The old authorities, they tell us, show that the disqualification of a felon wholly rests upon his attainder; this felon is not attainted, therefore, this felon is not disqualified. That is the argument of the hon. Member for Mayo; and, in considering it, I will begin by making admissions that I am bound to make, and which I make in the fairest and fullest sense. I admit that the old authorities—not all of them, but most of them—enough to speak of them generally as "the old authorities"—lay down that persons attainted of treason or felony are disqualified from sitting in Parliament. But the course we propose is perfectly consistent with that admission. It is also perfectly correct to say that at the date these authorities wrote almost all felonies, and the exceptions are few, were capital offences, and as capital felonies were followed by attainder; so that when the old authorities speak of a 139 person "attainted of treason or felony" they speak of ordinary felons, because there were no felons in those days except attainted felons; and this being so, it is laid down in the text books with sufficient authority that attainted felons were incapable of sitting in Parliament. But it is not correct—and nobody knows that bettor than the hon. and learned? Member (Mr. Matthews)—to say that attainder and the punishment of death, although for the most part inseparably connected, were by any means the same thing or were convertible terms; because the hon. and learned Member knows full well that a man might have been put to death for heresy without being attainted, and he knows very well that a man might be attainted by being outlawed without being put to death. The hon. and learned Member therefore misleads the House if he wishes it to understand that of necessity death and attainder, although often inseparable, were by no means convertible terms or necessarily connected in idea. Now, what follows from this? As the law altered in course of time, and as that which had been an inseparable accident of the judgment of felony ceased to be so connected with it—as persons who had been convicted of felony and adjudged guilty of felony, were not put to death, and, therefore, were not attainted—it rests with those who agree with the hon. Member for Mayo to show that thereupon, as a necessary consequence, the disqualification which followed upon the general and complex idea of an attainted felon was so connected with that part of the idea which was contained in the word "attainder," that when the word attainder ceased to be applicable to a felon the felon at once became capable of sitting in Parliament. Nothing could be a more unreasonable view of the old authorities. I therefore answer the hon. and learned Member's argument in two ways. I say, first, assuming that the technical consequences of the conviction for felony have now been altered in point of fact, the principles upon which you find these old authorities proceeded still remain; and if the principle upon which the old authorities were founded remains, although the technical consequences of the law in some respects may have been altered, it is proper to maintain the principle of the law untouched. I admit 140 that this view is capable of wide application, and that it should be cautiously applied; but the principle is a sound principle; and when the circumstances of a case bring that case within its application, as the circumstances of the matter before us do, then it is a principle upon which this House may safely act. Now, I answer the hon. Member in a second way—I say it is for him to show that the technical consequences of the law have been in any manner altered. You have to deal with the incidents of conviction, of judgment, and of attainder in the case of a felon. There is no doubt that at the time when all felonies were capital conviction by the jury, followed by the judgment of the Court, made a man what was called attainted. He must be a much wiser and better lawyer than I am to inform the House what "attainder" really means; some refer it to attinctus—that is, so deeply dyed with black that he cannot be worthy of any civil rights. "Well, Sir, the felony remains, the conviction remains, the judgment on conviction remains the same; and the felony, the conviction, and judgment on conviction remaining the same, what is there—what fragment of authority has either hon. Gentleman who has addressed the House given it for showing that the consequence I admit to have resulted from the whole various matters taken together—the felony, conviction, judgment, and attainder—is to be limited to the attainder alone? I find no authority for such a position. It is said that attainted felons were incapable at a time when there were no felons who were not attainted; but there is no earthly reason for supposing that it was the technical consequence of guilt—the attainder—that constituted the disqualification rather than the guilt itself. Have we any authority upon this subject? I say there is the highest authority; and I beg the attention of the House to the case of Mr. Smith O'Brien, which is directly in point. I am sure that everyone who looks at that case will say that it has the weight I attribute to it. Mr. Smith O'Brien was convicted of treason—if you please, attainted of treason. What does Lord John Russell do in that state of things? He moves that Mr. Smith O'Brien being convicted of treason, a now writ do issue for the city or county—I forget which— 141 he represented. Sir Frederick Thesiger, with all the consequences no doubt before him that were present to the mind of the hon. and learned Gentleman, and with that notion of the law which, he set forth with considerable ingenuity, distinctly moved that the word "convicted" should be left out of the Resolution and the word "attainted" put in. What was done on that? The Attorney General of that day was Sir John Jervis, one of the acutest and ablest men in Westminster Hall—a great authority on criminal matters. What did he do? He said, "Don't put in 'attainted;' there are many felonies on which attainder at this time of day does not follow; if you put in 'attainted' you will be yielding to the argument of Sir Frederick Thesiger, that it is upon attainder, and technical attainder alone, that a man becomes ineligible. I would do nothing of the sort. I recommend the House of Commons to say that what really makes a man ineligible is the conviction and the judgment on conviction." And what did he substitute for "convicted"?"—not "attainted," but the term "adjudged guilty," which includes conviction and judgment. Upon the conviction of the jury and the judgment of the Court, in his opinion, as in mine, the disqualification follows. To that Sir Frederick Thesiger, who had filled the responsible position of Attorney General, and who at no time of his life shrunk from maintaining what he considered to be his duty either to the public or his profession, assented. The words "adjudged guilty," as suggested by the Attorney General, were substituted, and the Resolution was adopted by the House without a division. It is vain to deny that this is a direct authority on the part of the House of Commons for the proposition which at too great length I have endeavoured to expound—that the disability follows not in consequence of the attainder, but in consequence of the conviction of the jury and the judgment of the Court. I must say, with all respect to the hon. and learned Gentleman who has argued with so much ingenuity, that it is possible for legal minds to raise an argument out of anything, and I cannot help thinking that the sense of the whole matter is in favour of the view I have endeavoured to present to the House, and that there is abundance of legal authority to sustain the course which the Government recommend.