OBSERVATIONS. (Hansard, 13 July 1858)

§ LORD JOHN RUSSELL
Sir, I perceive by the votes of the other House that two Bills have passed the House of Lords, with regard to which it is at this period of 1372 the Session so important that I should state the course I intend to pursue, that, although, in consequence of some informality, they have not yet been received by us, I shall make a formal Motion for the adjournment of the House, in order that I may do so. The House is perfectly aware that for some years—for nine years I think—this House has agreed to Bills for the relief of Her Majesty's Jewish subjects, and to admit them to offices and to seats in Parliament on condition of their taking the oaths, omitting only those words in the oath of abjuration which Baron Rothschild declared not to be binding upon his conscience. Although these Bills were recommended by great authority in the House of Lords, and the reasons for adopting them were enforced by the ability and eloquence of Lord Lyndhurst, they failed to obtain the assent of that House. At the end of last year, after such a measure had been rejected by the House of Lords, a Committee was, upon my Motion, appointed to consider whether this House had not the power to substitute a declaration for the oath, and to admit a Member upon his taking that declaration. In the course of the proceedings of that Committee, over which I presided, very able arguments were used on both sides of the question; but more especially the Attorney General of that day, Sir Richard Bethell, enforced, with great legal learning and with great force of reasoning, the opinion that this House had the power to administer a declaration to a person objecting to take the oath, and that declaration would be sufficient to admit him to his seat. The decision of a narrow majority of the Committee was against that opinion, but the hon. and learned Gentleman's view was supported by many persons of great weight in this House, and among others, by three members of the present. Cabinet—the Chancellor of the Exchequer, the First Lord of the Admiralty, and the President of the Board of Control. Had the Motion of the Attorney General been carried, it was the intention of the present First Lord of the Admiralty to move a Resolution, declaring, although it was competent to this House to receive a declaration in lieu of the oath, it was not desirable to use that power until all other constitutional remedies had been tried. I was not at that time called upon to give an opinion upon this subject, but it appeared to me that that was the right and true view of the question then before the House; that the legal power was in the House of Com- 1373 mons but that it was not expedient to use it until all other constitutional means had been exhausted. That proceeding appears to have had, as it naturally would have, great weight with those who had to consider this question. In the present Session there was another step in advance. Baron Rothschild, though he had not taken the oaths, was appointed a member of a Select Committee. A Bill similar in purport to these previously passed by this House, but calculated, if possible, to remove the objections of the House of Lords, was sent up to that House of Parliament, and was rejected by a majority, I think, of thirty-nine. But after that took place, this very grave question seemed to have made a great impression upon the minds of many members of the House of Peers. I had communications with some noble Lords, and they seemed to be affected by the inconvenience, not to say the danger, of the situation in which the Houses of Parliament were placed; because it was impossible not to see that, if on the Motion of the hon. and learned Member for Aylesbury (Sir R. Bethell), the majority of this House decided that a declaration might be substituted for the oath, very great difficulties might arise. I believe that after this House had come to such a Resolution, the Courts of common law would have been disposed to think the authority of the House of Commons sufficient for the interpretation of an Act of Parliament which was supposed to give them the power in question. Still the contrary might have been the case. The fancy of the noble and learned Lord Chief Justice of England even went so far as to induce him to fear that he might be imprisoned by the House of Commons for having delivered an opinion contrary to the wishes of the House, and that the people rising in insurrection would deliver him from the prison in which he had been confined by the representatives of the people. Although that was rather a stretch of imagination, and believing this House would not have proceeded to such an extremity, yet I think it is obvious that if this House had come to the resolution that Baron Rothschild could take his seat upon a declaration, and if he had so taken his seat, it would have been incumbent upon us, in pursuance of our Resolution, to protect the Member so seated from the consequences that might have ensued, whether from a decision of the courts of law, or otherwise. It is clear that that state of 1374 things would have been injurious to the public interests, and that, although this House has the supreme power in the country, the exercise of that power of seating a Member would have been attended, in the first place, with no little disturbance of the public mind, and, in the second place, with no little inconvenience to the public business. Because we must always bear in mind that it is no longer like those questions of privilege which occurred in former ages, when this House was struggling against the undue prerogative of the Crown, and when the courts of law were the subservient instruments of the Sovereign. On the contrary, in the present day the House of Commons has so mush power that there is a tendency in the public mind to apprehend that this House may absorb more authority in the State than ought properly to belong to it, and the courts of law, being filled by independent Judges, have a weight and influence to which the people how with the greatest reverence. So a contest between the House of Commons and the courts of law would have been no longer what it was in former days, and must have been attended with great public inconvenience. I believe there would hardly have been any mode of settling that question, supposing the House of Commons to be determined to protect its Members, and the Judges conscientiously holding a different opinion, except the House resolving that it could not proceed to other business until its Jewish Members were seated, and thereupon a Bill being introduced and receiving the assent of both branches of the Legislature by which the power claimed by the House of Commons should be ratified by an Act of Parliament. If I am right in supposing that this must have been the course pursued, I think great credit is due to those who, in the House of Lords, have believed that it was their duty to prevent that embarrassment, and who have done at once that which might otherwise have been the result of a long and dangerous controversy. I allude to those Members of the House of Lords who, though they had previously voted against the Jews and opposed every legislative measure on their behalf, conceived that there might be a mode of relieving the two Houses from this difficulty which would not be repugnant to the feelings of the House of Lords, and which at the same time would satisfy the wishes so long expressed by the House of Commons. It appears from the Votes of the House of 1375 Lords that on the 31st of May the Earl of Lucan, considering the refusal of the House of Commons to give up the principal clauses of the Oaths Bill, proposed Amendments by which the difficulty might be removed. I think it was unfortunate that those Amendments were not taken into consideration, and that the Oaths Bill was not amended in the sense proposed. The House of Lords has taken another course, intending, no doubt, to arrive at the same end. Instead of adopting, on the 31st of May, the Amendments proposed by the Earl of Lucan, they resolved to insist upon their own Amendments to the Oaths Bill, and appointed a Committee to draw up reasons. A Bill was afterwards introduced into that House which gave the two Houses of Parliament the power, if they should think fit, upon the declaration of a person of the Jewish persuasion who had been duly elected, that he could not conscientiously take the oaths in the form in which they now stand, to relieve him from saying the words "upon the true faith of a Christian," and to allow him to take his seat upon the oath so made. The Bill in question did a great deal more, because it permitted persons of the Jewish persuasion to hold all the offices for which the Oath of Abjuration is now required, with the same omission of the words "upon the true faith of a Christian," excepting always those few offices which cannot be held by Roman Catholics. This Bill, therefore, was in effect a Bill for the relief of Her Majesty's Jewish subjects, because it gave them admission to a number of civil offices to which they cannot at present be admitted, and likewise enabled them to sit in Parliament upon a Resolution of either House to that effect. It is not certainly a concession of the whole principle of religious liberty for which the House of Commons has been contending; but it is a practical solution of a very grave question, and, as such, it is my intention, when the Bill comes down from the other House, to move its second reading, and to endeavour to carry it through all its stages. I propose, if the Chancellor of the Exchequer will allow me to take precedence on that day, to move the second reading of the Bill on Friday next, giving ample time for discussion and division, if necessary. Supposing a majority of the House to affirm the principle of the Bill, I hope the measure will be allowed to proceed through its remaining stages with that rapidity with which Bills are often 1376 pushed forward at so late a period of the Session, and that no further obstacle will be interposed. I now come to say a few words upon the inconvenience of the mode in which the House of Lords has dealt with the Oaths Bill sent up by this House. Singular to say, that House not only has not concurred in the clauses by which the disabilities of the Jews were removed; but, instead of saying that it has omitted those clauses because it thought—which it might fairly do in the exercise of its privilege—that the object would be better provided for in a separate Bill, it has given all the reasons why no Bill of this kind should pass at all. Certainly that is a course that might be said to be insulting to the House of Commons. I have heard it stated, on the highest authority, that it is not intended as an insult to the House of Commons; but, at all events, it is a course which might place this House in some difficulty, and which still more exposes a singular inconsistency on the part of the majority of the House of Lords. I may quote from the Votes of the House of Lords one of the reasons for omitting the principal clauses of the Oaths Bill. It is, "because, without imputing any disloyalty or disaffection to Her Majesty's subjects of the Jewish persuasion the Lords conceive that the denial or rejection of that Saviour"—

§ LORD JOHN MANNERS
I rise to order. I wish to know whether the Reasons from which the noble Lord is quoting are before the House?

§ LORD JOHN RUSSELL
They would have been had the Bill not been unfortunately delayed in the House of Lords, but they are to be found in the Votes of that House, and therefore I think I may be allowed to refer to them. I remember Lord Castlereagh, upon being interrupted while quoting the Votes of the House of Lords, declaring that that House was a court of record, and that therefore no Member ought to be interrupted when referring to its Votes. The Reason concludes thus— That the denial or rejection of that Saviour in whose name the Legislature daily offers up its collective prayers for the Divine blessing on its councils constitutes a moral unfitness to take part in the legislation of a professedly Christian community. I certainly cannot understand the consistency of the House of Lords in saying that the Jews have a "moral unfitness" to take part in our legislation, and, at the 1377 same time, sending down a Bill by which Jews are allowed to take part in the legislation, not only of this House, but also of the House of Lords, if a majority of either House shall think fit to allow them to sit, omitting the objectionable words "upon the true faith of a Christian." It appears to me a matter of doubt, whether in agreeing in the course proposed by the House of Lords we should not place some Resolution on our Journals, in which, without answering the Reasons adopted by that House, we might state our reason for not taking notice of those Reasons; saying, for instance, that, as the Lords have passed a Bill carrying into effect the object of the House of Commons, it is not necessary to consider their Reasons. I think that with some guard of that sort—a guard for our own dignity and consistency, we might consent to waive insisting on our Bill, and we might concur in the Amendments of the Lords. That is to say, that when we have passed the Bill to admit the Jews, we might fairly consent to the Bill for altering the form of Oaths, though not containing any provision for the admission of the Jews, because by so doing we both secure an alteration of the Oaths, and the admission of Jews to Parliament. In proposing this course, I propose a course which I think it is our duty to follow—namely, to agree as far as possible with the Lords in the particular mode they suggest, so long as we attain our object. While it was a question of principle, we could do nothing else but insist on that principle of religious liberty for which the majority of this House contended; but when the Lords only make a difficulty with respect to the admission of a Jewish Member into their own House, if any should present himself for admission, I think we ought, waiving that point, to agree to the settlement of a question so long agitated. I shall rejoice if, after having admitted the Protestant Dissenters without the degradation, almost the profanation, of taking the Sacrament according to the rites of the Church of England—after having relieved the Roman Catholics from those heavy disabilities under which they once laboured—we should, by the admission of Jews to Parliament, consecrate the principle that religious opinion and religious faith do not constitute a disqualification for holding civil offices or for occupying a seat in the Legislature. I believe that the majority of this House have been quite right throughout in this contest, and 1378 that the House of Lords have been in darkness up to the present time. Yet we may hope that when the Jews have seats in this House, and when it shall be found by experience that those portentous consequences which have been predicted therefrom do not happen, the Lords may think right to put in a better and more consistent form their provisions on the subject. I now move the adjournment of the House, and beg to inquire whether the Chancellor of the Exchequer will allow Friday to be fixed for the discussion of the Bill.

THE CHANCELLOR OF THE EXCHEQUER
said, that though the Reasons in reference to the Bill to which the noble Lord had referred had not yet reached that House, still he felt it his duty to answer the appeal of the noble Lord. Since the House had placed at the disposal of the Government all the time usually devoted to private Members for the transaction of their business, of course he thought it his duty, when a question of public importance arose, to make arrangements conducive to the convenience of the House, and therefore he was ready to say that Friday should be at the service of the noble Lord.

§ LORD JOHN MANNERS
said, that he had interrupted the noble Lord, because he believed that the noble Lord was out of order in referring to Reasons which had not yet come down to that House, and because he was sensible not only of the great irregularity of which the noble Lord was guilty, but of the great inconvenience and unseemliness of the course taken by the noble Lord. It was impossible for a debate to be raised—and the noble Lord seemed to be about to raise one—on the propriety of Reasons which had not yet come down to the House, without the greatest possible inconvenience. With respect to the statement made by the noble Lord, he should not enter upon that subject further than to say, as a Member of the Committee to which the noble Lord referred, that he did not think that the noble Lord's version of the transactions of that Committee was perfectly correct. He heard one sentence fall from the noble Lord with great surprise. If his ears did not deceive him, he heard the noble Lord say that that House was the supreme power in the country, against which no other power could contend. He certainly was not aware until the present moment 1379 that, either by law, custom, or fact, that House was the supreme power in the country. If those words escaped from the noble Lord unadvisedly and hastily, he had nothing more to say on the point; but, having heard them, he thought it necessary to observe that be did not concur in the noble Lord's view, and he hoped that that House would not allow it to go forth that as a deliberative assembly that House concurred in such a representation of its power as that given by the noble Lord.

§ LORD JOHN RUSSELL
said, that he must beg to be allowed to say a few words in answer to the noble Lord. With respect to the point of order he believed that he was perfectly right, and that what Lord Castlereagh said was strictly in conformity with the Orders of that House—namely, that the votes of the House of Lords were matter of comment in that House. There was a great difference between commenting on speeches delivered in the other House, the reports of which might be totally incorrect, and quoting from documents printed by the Lords as part of their proceedings, the House of Lords being a Court of Record. He believed, therefore, that he was quite in order in the reference he had made. The noble Lord said that his statement with regard to the proceedings of the Committee which had been alluded to was incorrect, but the noble Lord did not mention in what particular. He (Lord John Russell) stated that the majority was against the opinion of the late Attorney General, but that in the minority were the present Chancellor of the Exchequer, the present First Lord of the Admiralty, and the present President of the Indian Board. He believed that these were facts, and that no member of the Committee would contradict them. He also stated that the speech of the late Attorney General was distinguished by great ability, and he did not believe that any one who heard that learned Gentleman speak would deny that it was a speech of great ability. The noble Lord went further and said that he thought that he (Lord J. Russell) must have inadvertently stated that that House had a power with which no other body in the country could contend. Now, he always understood, and he thought that the whole history of the constitution showed, that if that House, when there was a Ministry or when there were laws which did not please it, resolved not to pass the Mutiny Bill or vote a single shilling of Supply until a 1380 change took place, it was impossible for any power in the constitution that he knew of to resist the expression of its will. He certainly thought that that House, because it had such power, was bound to exercise it with the greatest moderation and deliberation; but that House, freely elected by the people, and having the confidence of the people (if it had not it might be dissolved), possessed a power in the constitution which no other body could resist.