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§ 140. “Oath or Affirmation.”

There are two forms of oath known in modern legal and official proceedings; first the adjuration by invocation of the Deity, with uplifted hand, commonly called the Scotch oath; secondly, the ordinary oath on the Bible, ending with the words “So help me God.” An affirmation is a solemn assertion or denial, omitting the invocation of the Deity.

Since the year 1534 it has been customary for members of both Houses of Parliament to take the oath of allegiance. (Anson, Law and Custom of the Constitution, 3rd ed. p. 6.)

An unsworn member is only debarred from sitting or voting; he is entitled to all the other rights, privileges, and immunities of a member. His seat, however, is liable to forfeiture if he fails to attend the House for a specified time. (See sections 20 and 38.)

By the English Parliamentary Oaths Act, 1866 (29 and 30 Vic. c. 19), one uniform oath, containing no reference to Christianity, was prescribed for members of the House of Commons. By the Promissory Oaths Act, 1868 (31 and 32 Vic. c. 72), the form of oath which appears in the schedule to this Constitution was adopted. In 1888, an Act was passed (51 and 52 Vic. c. 46) enabling members of the House of Commons, who objected to be sworn on the ground that the taking of an oath was contrary to their religious belief, to make a solemn affirmation in lieu of an oath. The affirmation prescribed begins with the words “I, A. B., do solemnly, sincerely, and truly declare and affirm,” followed by the other words required by law, and omitting any imprecation. This Act was passed as a result of Mr. Bradlaugh's celebrated contest with the House of Commons. (Attorney-General v. Bradlaugh, 14 Q.B D. 667.)

Member of one House ineligible for other.

43. A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House141.

CANADA.—A Senator shall not be capable of being elected or of sitting or voting as a member of the House of Commons.—B.N.A. Act, 1867, sec. 39.

HISTORICAL NOTE.—Clause 33, Chap. I., of the Commonwealth Bill of 1891 provides that “A Senator shall not be capable of being elected or of sitting as a member of the House of Representatives,” and the same clause was adopted at the Adelaide session, 1897. At the Sydney session, a suggestion of the Legislature of Tasmania, to omit the clause and substitute a provision applying to both Houses, was adopted. (Conv. Deb., Syd. [1897], pp. 459–60, 992–3, 1011.) At the Melbourne session, verbal amendments were made before the first report, and after the fourth report.

In Chap. V. of the Commonwealth Bill of 1891 there were two clauses (10 and 11) prohibiting a member of either House of the Federal Parliament from being chosen or sitting as a member of either House of a State Parliament, and providing that if a member of a State Parliament were elected to the Federal Parliament, his seat in the State Parliament should become vacant. (Conv. Deb., Syd. [1891], pp. 877–83.) In the Adelaide draft of 1897 these clauses were omitted, and in Committee, Sir Edward Braddon moved their insertion. It was thought, however, that it might be left to each State, if it thought fit, to disqualify members of the Federal Parliament from sitting in the State Parliament, and the clauses were negatived. (Conv. Deb., Adel., 1181–2.) At the Sydney session, a suggestion by the Legislature of Tasmania, that a member of a State Parliament should be incapable of sitting in either House of the Parliament of the Commonwealth, was negatived. (Conv. Deb., Syd. [1897], pp. 996–1011.)




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