Saturday, 6 July 2013

Irish MPs at Westminster and The Oath of Allegiance

Thanks to the kindness of a friend, I have been able to retrieve many notes locked in old floppy disks. I shall publish some of them as I manage to render them into a readable form.

There is to me something absurdly funny about the idea of the Westminster parliament requiring an Irishman to swear an oath of allegiance to the Crown. After all, this is the same parliament which for over a hundred years passed, year in year out, Tory, Whig, or Liberal government in office, measures “for the better governance of Ireland” and officially called them “coercion Acts”! I would have thought that it stands to reason that if you accept that you have to coerce a people whom you claim to have the right to govern, you are explicitly accepting that that people owe you no debt of loyalty, nor duty of allegiance.

The Succession to the Crown Act of 1707, “An Act for the Security of her Majesty’s Person and Government, and of the Succession to the Crown of Great Britain in the Protestant Line”, does not apply to Ireland and, therefore, since I have as yet not got round to looking at the detail of the Treaty and Act of Union of 1800 and the associated and consequential legislation, I can only assume that there is some other basis for the presumption on the part of the Westminster parliament that there is a requirement for Irish Members to swear an Oath of Allegiance. If for no other reason they might simply aver that there is a general, and almost entirely universally held, legal and moral principle that if you join the club you accept the rules of the club, AS THEY STAND. The problem with the Westminster parliament, from the Irish point of view, is, of course, that even British Prime Ministers have accepted that for Irishmen there is the problem of the legality of the Treaty and Act of Union, and therefore of Irish membership of the Westminster club. This arises because of Irish membership being predicated on the abolition of their own College Green club and, thereafter, enforced merger with that dominated by England at Westminster.

On May 10, 1886 when Gladstone spoke in the House of Commons at Westminster on the Second Reading of his first Irish Home Rule Bill, he never mentioned “champetry”, but he did give eloquent testament to its malign influence in the dealings between the parliaments of England and Ireland prior to the Treaty and Act of Union. Champetry, I should explain, though a lawyer might better advise, is the act of illegally entering into a contract, and, you might be interested to know, one consequence of champetry being involved in a contract is that such a contract will find no friend in the English courts. Under English Common Law a party to a contract can go to court seeking an order requiring “specific performance” of part or of all of that contract by the other party or parties involved. In the case of what is held to be a champetrous contract the court must decline to issue such an order.

In that Second Reading debate, amongst other things, Gladstone had these to say of the wheeling and dealing which led to the Treaty and Act of Union:

“A Union of which I will not say anything more than that I do not desire to rake up the history of that movement ― a horrible and shameful history, for no epithets weaker than these can in the slightest degree describe or indicate ever so faintly the means by which in defiance of the national sentiment of Ireland, consent to the Union was attained ― it was in rank opposition to all the national and patriotic sentiment of Ireland…The Union, whatever may be our opinion with regard to the means by which it was obtained…They [Whig statesmen] said it was in opposition to all that was honourable and upright, most respected, and most disinterested in Ireland, and nothing but mischief, nothing but disorder, nothing but dishonour, could come from a policy founded upon the overriding of all those noble qualities, and by means which would not bear the face of day, imposing the arbitrary will of the Legislature upon the nation, in spite of its almost unanimous opposition.”

Those ‘means which would not bear the face of day’ were, as you no doubt well know, bribery, coercion and corruption on such a grand scale as had not been witnessed since the Scottish Treaty and Act of Union almost a hundred years before. So, since there is such a strong prima facie case that Irish membership of the Westminster parliament is illegal, champetry seeming to void the contract, the Treaty of Union in this case, there must be a presumption that an Oath of Allegiance can only, from a British parliamentarian’s point of view, be a hopeful request of a pressed Irish member and not an, in default, excluding prerequisite

Section XVIII of the 1707 Act shows how seriously the Crown takes the requirement to swear an Oath of Allegiance by expressly stating who are all required to take it in the event of the death of the monarch:

“...All the members of both Houses of Parliament, and every member of the Privy Council, and all Officers or Persons in any Offices, Places, or Employments, Civil or Military, who are or shall be by this Act continued as aforesaid, shall take the said Oaths, and do all other Acts requisite by the Laws and Statutes of this Realm, to qualify themselves to be and continue in their respective Places, Offices, and Employments within such Time, and in such Manner, and under such Pains, Penalties, and Disabilities, as they should or ought to do, had they been newly elected, appointed, constituted, or put into such Offices, Places, or Employments in the usual or ordinary way.”

Section XX of the Act sets out the form the Oath must take and it begins:

“I (name) do truly and sincerely acknowledge, profess, testify, and declare IN MY CONSCIENCE, BEFORE GOD AND THE WORLD..."(my emphasis)
It ends:

“And I do make this Recognition, Acknowledgement, Abjuration, Renunciation, and Promise heartily, willingly and truly, upon the true Faith of a Christian.”

This, then, is not, and is not meant to be, an Oath to be given or taken lightly.

So to what would you as an Irish Member be committing yourself should you decide to take the Oath of Allegiance? Well, of course you would not be required to swear the Oath in the words prescribed in the 1707 Act for that was replaced by the form contained in the Parliamentary Oaths Act 1866, which itself was replaced two years later by the form given in the Promissary Oaths Act 1868. This reads:

“I (name) do swear that I will be faithful and bear true Allegiance to His/Her Majesty (name), His/Her Heirs and Successors, according to Law, so help me God.”

The “according to Law” does not simply mean your acceptance of, or even acquiescence in, an English Queen having dominion over the country and the people of Ireland for, although the form of the Oath has been modernised, the 1707 Act’s commitments remain unaffected and undiluted by the later adaptations. That is, whereas everything was spelled out in laborious detail in the original Act, according to the parliamentary draftsmanship habits of the day, they are implied in the modern version by their presence in the original which has NOT been repealed, and therefore in effect what you would be implicitly saying and explicitly swearing to is all that was contained in the stylised words of the original Oath:

“I (name) do truly and sincerely acknowledge, profess, testify, and declare in my Conscience, before God and the World, that our Sovereign (name) is lawful and rightful King/Queen of this Realm, and of all other His/Her Majesty’s Dominions and Countries thereunto belonging. And I do solemnly and sincerely declare, that I do believe in my Conscience that the Person pretended to be the Prince of Wales during the life of the late King James, and since his Decease pretending to be, and taking upon himself the Style and Title of King of England by the name of James the Third, hath not any Right or Title whatsoever to the Crown of this Realm, or any other the Dominions thereunto belonging: And I do renounce, refute and abjure any Allegiance or Obedience to him. And I do swear that I will bear Faith and true Allegiance to (name) and (name of His/Her spouse) and I will defend to the utmost of my Power against all traitorous Conspiracies and Attempts whatsoever which shall be made against (name’s) Person, Crown, or Dignity. And I will do my utmost Endeavour to disclose and make known to His/Her Majesty and His/Her Successors, all Treasons and traitorous Conspiracies which I shall know to be against (name) or any of them. And I do faithfully promise to the utmost of my Power to support, maintain, and defend the Succession of the Crown against him the said James, and all other persons whatsoever as the same by an Act entitled ‘An Act for the further Limitation of the Crown, and better Securing the Rights and Liberties of the Subject’, and stands limited to the Princess Sophia, Electress and Duchess Dowager of Hanover, and the Heirs of her Body being Protestants. And all these Things I do plainly and sincerely acknowledge and swear, according to the express Words by me spoken, and according to the plain and common Sense and understanding of the same Words, without any Equivocation, mental Evasion, or secret Reservation whatsoever. And I do make this Recognition, Acknowledgement, Abjuration, Renunciation, and Promise, heartily, willingly and truly, upon the true Faith of a Christian.”

You would, then, be solemnly swearing allegiance to a queen descended not from King James and his issue, but from a foreign, Hanoverian family, whose only qualification and attraction was their separation from the Roman Catholic Church to which most of Nationalist Ireland adhere. You, as an Irish Member and a Catholic, would in effect be accepting that, by your profession of the Catholic faith of your fathers, you are a part of a ‘traitorous Conspiracy’, namely the Church of Rome. You, as an Irish Member and a Republican, would be giving a commitment to ‘support, maintain, and defend the Succession of the Crown’. For you as a practising Catholic to take such an oath, knowing that in your heart you did not believe or mean a word of it, would be to commit a sin; probably, though I am not sure, a mortal one. For you as a Republican to take such an Oath, having been elected on the traditional Irish Republican abstentionist ticket, by an electorate quite well aware of the history behind that Republican commitment to abstentionism, would be a bad joke. Moreover, for you to swear the oath as worded would be, according to the law of England, a crime. The crime would, I think, be high treason. But then I am no jurist, so maybe it would just be low treason. But, either way, such a fine thing for the Speaker of the House of Commons to be encouraging!

The other Acts relevant to the taking of the Oath of Allegiance (the Parliamentary Oaths Act of 1866, the Promissary Oaths Act of 1868,and the Oaths Act of 1978) in no way alter the absurdity of requiring a republican, any republican, not simply or exclusively an Irish Republican, to take an Oath involving paying homage to, and pledging continuing allegiance to, the Crown. Even the facility of being allowed to ‘affirm’ affects by not one whit the position of a republican since you simply substitute the appropriate replacement words to avoid a religious connotation.

Of course, in other times, and in other ways, the British Crown has demonstrated how seriously it regards the swearing, or administering, of oaths by Irishmen. Two hundred years ago, on October 14, 1797 the United Irishman William Orr stood trial at Carrickfergus on the trumped up charge that he did administer the oath of the United Irishmen to the soldier Wheatly contrary to that recently introduced law of which the authors of Speeches from the dock said: “One of the first blows aimed by the Government against the United Irishmen was the passing of the Act of Parliament (36 George III) which constituted the administration of their oath a felony.”

That Orr was entirely innocent was of no avail in his defence for, in this as sadly in so many other instances: “the bloodthirsty agents of the Crown did not look in vain for Irishmen to co-operate with them in their infamy.”

They go on to tell us that: “Hardly had sentence of death been passed on William Orr when compunction seemed to seize on those who had aided in securing that result. The witness Wheatly, who subsequently became insane, and is believed to have died by his own hand, made an affidavit before a magistrate acknowledging that he had sworn falsely against Orr. Two of the jury made depositions setting forth that they had been induced to join in the verdict of guilty while under the influence of drink; two others swore that they had been terrified into the same course by threats of violence.”

Needless to say that when these sworn depositions were laid before the Lord-Lieutenant, Lord Camden, they were of no avail. As Orr himself observed, the government, using the oath as a pretext, had “laid down a system having for its object murder and devastation.”

All in all one might think that there has been too much swearing in Ireland.

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