(Note B.)—Smith O'Brien's Refusal to Serve on a Committee of the House of Commons

At this period the railway mania was at its full height, and so many Bills for the construction of various lines were before Parliament, that what was called a Committee of Selection was appointed by the House of Commons. This Committee divided those railway Bills into groups, and a Sub-committee was formed to consider and report on each group. Smith O'Brien was named on the Committee whose duty it was to examine group eleven. Mr. Estcourt was its chairman. In order to insure punctual attendance, the House, on the 12th of February, passed resolutions declaring the attendance of members upon such Committees to be compulsory. In due time the Committee on group eleven met, but Mr. O'Brien was absent; which circumstance the chairman reported to the House, as he was bound to do; whereupon the Speaker enquired if Mr. O'Brien were in his place. He was; and rising thanked the Speaker for the opportunity he afforded him (Mr. O'Brien) of explaining, but he had, he said, done so in a correspondence with the chairman of the Committee of Selection; he would withdraw nothing he had written on the subject, and with this observation he bowed to the Speaker and left the House. Mr. Estcourt, as chairman of the Committee on which Mr. O'Brien was appointed to serve, then rose and said it was his painful duty to give a narrative of facts that would explain the matter as far as he was concerned in it. He called attention to the resolutions of the House passed in February, compelling the attendance of members on Committees. Mr. O'Brien, he said, had received notice on the 3rd of April, that his attendance would be required on the 27th, in reply to which he wrote to him (Mr. Estcourt), enclosing a letter which he (Mr. O'Brien) had written the year before, to the effect, that he would not serve upon any Committee for the consideration of private Bills not having reference to Ireland. His words were: "Desiring that none but the representatives of the Irish nation should legislate for Ireland, we have no wish to intermeddle with the affairs of England or Scotland, except so far as they may be connected with the interests of Ireland, or with the general policy of the empire." Having read the above, Mr. Estcourt drew special attention to the next passage: "In obedience to this principle, I have abstained from voting on English or Scotch questions of a local nature; and the same motive now induces me to decline attendance on Committees on any private Bills, except such as relate to Ireland." The answer, Mr. Estcourt said, he had given to this communication was, that the Committee could not recognise such an excuse; he reminded Mr. O'Brien of the resolutions of the 12th of February, but offered to consult for his convenience, inasmuch as important Irish business was before the House, by postponing, if possible, his attendance to a later period; but that unless he had heard from him (Mr. O'Brien), assenting to this, he must abide the coming vote of the House on Wednesday. Mr. O'Brien did reply, telling Mr. Estcourt that his former communication contained his final determination; adding, that the matter was not one of private convenience but of public principle.

This statement Mr. Estcourt followed up by a motion, "That William Smith O'Brien, Esq., having disobeyed the order of the House, by refusing to attend the Committee to which the railway group eleven has been referred, has been guilty of a contempt of this House."

On this resolution having been put, O'Connell rose and asked the House to pause before it passed it. In the first place, he said, the House should consider, how far the Act of Union with Ireland gave the power to the members of that House, to enforce the process of contempt and committal against the representatives of Ireland; there was no common law jurisdiction for it, and before 1800 there could be no jurisdiction at all, for both that House and the Parliament of Great Britain disclaimed, in 1783, any species of interference with the representatives of Ireland. The jurisdiction, then, of this House could not stand on common law, nor upon the Act of Union, because that Act gave no jurisdiction. In the second place, as to the Committee of Selection, the question was, by the law and usage of Parliament, could they delegate to a committee the power to make regulations punishable by "Contempt," by placing the party in custody, whereas the House had not the jurisdiction by common law to compel the attendance of members. He took it, the House had no such common law power, because by the Sixth of Henry VIII. it was enacted, that the members of that House should attend the House. Now if the common law jurisdiction existed, this statute would have been wholly unnecessary.

The Attorney-General, Sir William Follett, replied, that all the members of the House had consented to the resolutions of the 12th of February, thereby making them binding upon themselves; and that as Mr. O'Brien might have objected then, but did not, he was of course bound by them; and as to the Act of Union, he considered there was no force in the argument drawn from it, because the third article of that Act had made one Parliament of the two, enacting "that the said United Kingdom be represented in one and the same Parliament, to be styled the Parliament of the United Kingdom of Great Britain and Ireland."

Sir Robert Peel, addressing himself to the most practical point of the discussion, said the question was—"Have we or have we not the power to require the attendance of members on public committees?" He apprehended there could be no distinction between service on Committees and service in the House; and if the Act of Union did not give the power, it was from a belief that such a power was inherent in Parliament. The great man, he said, who drew up those Acts of Union for Ireland and Scotland did not take a statutable sanction, for they all rested on higher grounds.

Sir Thomas Wilde, in giving his view of the case, made a distinction with regard to the common law; saying, that if there was no authority under the common law of the land to compel attendance on committees, there was under the common law of Parliament; a law not so old as the common law of the land, but as old as was necessary. Complimenting O'Connell as a lawyer, he believed, he said, the opinion he had given was not the result of his legal knowledge, but of a laudable desire to release his friend from a difficulty. The House, he said, could send the public to Committees, why not a member? Had they more power over the public than the members of their own House? The question was not whether neglecting to attend a Committee was contempt of the House or not; the question was, whether disobedience to the order of the House did or did not constitute a contempt of the authority of the house.

The resolution having been put, was carried by 133 to 13.

It was then moved that Mr. W.S. O'Brien be given up to the Sergeant-at-Arms. Mr. Ward moved the postponement of the motion to Thursday, the 30th of April; the Premier agreed, and it was accordingly postponed. Smith O'Brien, remaining fixed in his determination, was on that day taken into custody by Sir Wm. Gossett, the Sergeant-at-Arms, and lodged in prison. After being twenty-five days there, Mr. Frederick Shaw made a motion for his release, without, he said, having consulted him, and in fact believing such motion to be contrary to his wishes. It was made on the ground that he had been sufficiently punished by twenty-five days' imprisonment. It was carried nem con, that he be released, "on paying his fees."

Although several of the leading Irish Liberal members sustained Smith O'Brien on this occasion, they did not approve of his persisting in his refusal to serve on the Committee, as there was no principle vindicated by his persistence or his imprisonment; his first refusal and the discussion upon it having effected all that could be usefully done in the case.

Whilst Smith O'Brien was yet in prison, the following case was submitted to Mr. Anstey on his behalf:

"1. Whether there is any, and what inherent power or privilege in the House of Commons to imprison its members for constructive contempt of its authority?

"2. Whether there is any and what prescriptive power or privilege in said House to imprison its members for such contempt?

"3. Whether the refusal to serve on the Committee in question can be construed into a contempt of the authority of the house?

"4. Whether, assuming the commitment or detainer to have been unlawful, Mr. Smith O'Brien has any and what legal remedy, and against whom?

"5. Whether the House of Commons has any, and what right, to insist on his paying into the fee fund of the House any, and what fees—either by way of preliminary condition to his discharge out of the custody of the Sergeant-at-Arms or otherwise?"

Mr. Anstey's opinion was in the following terms:

"I am of opinion that the commitment and imprisonment of Mr. Smith O'Brien, by order of the House of Commons for the constructive contempt set forth in the vote and proceedings of the House, and the other papers which have been laid before me, are, in every respect, illegal. The House, in my opinion, has no power to enforce its orders by any such penalty, except under the authority of the statute or common law, and no such authority can be shown to justify the commitment and imprisonment complained of. I am further of opinion that, even supposing the House to possess such authority, still the informality of the proceedings in the present case has been such as to vitiate them ab initio, and to render null and void everything that has been done under the colour of such authority."

Mr. Anstey further maintained that the Speaker's Warrant, under which Smith O'Brien was arrested, was informal and invalid, that the House had no general authority of commitment for non-attendance on "calls"—that such authority for not attending select committees was never claimed until the previous session; that "the Committee to which Railway Group No. 11 had been referred" was unduly appointed under the Standing Orders, and that Mr. O'Brien had his right of action against the Speaker and the Sergeant-at-Arms.