HC Deb 22 February 1839 vol 45 cc817-38

On the motion for the House to go into Committee on the General Affirmations Bill,

Mr. Goulburn

said, that when the second reading of this bill was proposed, he forbore to state his objections to it, which were of a nature that, in his opinion, ought to make the House pause before assenting to the further progress of this measure. If anything could add strength to his original objection to this bill, it arose from the observations which fell from an hon. Friend of his (Mr. Gibson), on a former occasion. His hon. Friend declared, that he considered this bill to be as much for the benefit of those members of the Church of England who entertained conscientious scruples against taking oaths, as for persons of any other religious persuasion. He heard that assertion with very considerable surprise. It was only an additional confirmation to him that the bill was not understood, and that its tendency ought to have been fully explained to the House when it was first introduced. He knew, that it had been a fashionable doctrine among some persons of late, that oaths were altogether unnecessary, and that it would be expedient for the general purposes of justice, to remove the necessity of an oath being taken to fortify a statement of facts made by the persons examined in any particular case. He would not then enter into an argument upon that question, because that was not the precise occasion when such a discussion could properly arise. But he would say this, that however objectionable it might he to make a legislative enactment of that description, he conceived that an enactment would be much more objectionable which gave a power to every individual to determine for himself, whether he would or would not be sworn in a court of justice. But that was the actual provision of the bill then before the House. He considered that such a bill was not only at variance with the precedents to which the hon. Member for Lambeth on a former occasion referred, but that the bill had a tendency to create a system of hypocrisy and fraud, and other practices very dangerous to the due administration of the law. It was true, that for a long period past, indulgence had been granted to Quakers and Moravians; and subsequently to Separatists: and it was equally true, that in the course of the last Session, that privilege had extended to all persons who had at any time been members of those communities, but who had since seceded from them. There, however, the Legislature stopped. But these enactments did not furnish a precedent to the present bill. In those former acts, power was given to persons belonging to recognised sects whose doctrines were known and capable of proof, and whose conscientious scruples, therefore, could be received as a ground for their testimony being accepted upon an affirmation instead of an oath; but by those bills no power was given to other persons, not belonging to other sects, by merely making a declaration, to bring themselves within the privilege of those enactments, and to have the power of saying whether, in any particular case, they would consent to be examined on oath or on affirmation only. The bill now before the House afforded no clue by which the grounds of any man's objection to take an oath could be ascertained. If a man was a Quaker, a Moravian, or a Separatist, the ground of his objection could be known; but there was nothing by which it could be found out whether a man seeking to avail himself of the benefit of the present measure was acting bonâ fide, or for the purposes of fraud. So far with respect to precedent. This bill gave, he would repeat, an opening to hypocrisy or fraud. If any man had an object to promote, either by having his testimony believed or discredited, he could effect his purpose in one case by taking an oath, or in the other by making a declaration only. If, however, after having given his testimony on an affirmation only, under the plea that he felt conscientious scruples about taking an oath, and thus having weakened the credit of others in his evidence, he should wish to change the character of that evidence, it was in his power at any subsequent period to strengthen the credibility of his testimony by consenting to give it under the solemn sanction of an oath. But what would be the effect of this lax system on the whole course of proceeding in our courts of justice? It was impossible for any man who had ever acted in the capacity of a juryman or a magistrate, or who had been even a common observer of the proceedings in courts of justice, not to know that in the opinion of the public, there was attached to the taking of a false oath a degree of horror which was not felt with respect to any false statement made under the sanction of a declaration merely. This feeling operated also with the witness himself; and how much must it operate with those who had to deliver a verdict on the testimony of that witness? In every case in which it was necessary to examine witnesses, the court and jury were subject to have called before them willing and unwilling witnesses. Sometimes a witness would do everything in his power to discredit his own testimony; and a hat greater means for effecting this could be afforded him than that he should have the power to determine, when he came before the court, whether he would he sworn or would make an affirmation only? He might say, if he wished to injure the party who had called him as a witness, "I am entitled to give my evidence on a declaration merely, without being sworn, and I will do so, because I know it will so far weaken the force of my testimony." Thus a witness, by availing himself of the powers of this bill might, in many instances, most seriously affect the rights, character, and property of individuals, either by weakening his testimony in refusing to take an oath, or by strengthening it by consenting to give his evidence under the solemn obligation which an oath imposed. But the option which this bill would give to witnesses, would not only have a tendency to prevent due weight being given to their testimony by those before whom it was delivered, and by whom the cause was to be tried; it would operate very prejudicially with respect to the confidence of the public and of the parties in the decisions of the jurors themselves, because, he supposed, it would be competent, under this bill, for any juryman to select whether he would be sworn, or would make a declaration or affirmation only. This would be a most serious innovation indeed, for the oath of a juror was, in fact, the only security the public had for the impartial discharge of his duty. It afforded protection to the innocent who were unjustly or groundlessly accused; while it was a pledge even to the guilty that his trial would proceed with fairness and justice. But, if they permitted a juryman to come into the box who was not subject to be challenged on this account, be it observed, and to state that he had some time or other recorded a declaration that he objected to take an oath, and that he would, therefore, as he would he at liberty to do, make a declaration that he would act justly; if such an option were given, what, he asked, would be the opinion of the party who was to take his trial before that juror? It might be asserted by others, that a solemn declaration was equivalent to an oath, but the individual to be tried might feel most strongly that an oath was more binding upon the conscience than any declaration could possibly be, and the individual, whose life, property, or character, was at stake, would certainly consider himself less safe before a tribunal whose integrity, in his opinion, was greatly deteriorated by an oath being dispensed with, than before a tribunal who were under that solemn obligation. But could there be a more ready way of defeating justice than to get any man upon a jury who should declare that he would not be sworn, and then, after the trial had been completed, and he should be accused as having given an unjust verdict, he should be able to screen himself from the ignominy that would attach to the crime of perjury, by alleging that he had not been sworn? But he did not rest his objection to the bill upon these grounds merely; he objected to the principle of the bill. The hon. Gentleman (Mr. Hawes) had said, that it would be a great hardship on those persons summoned to act as jurors who objected to taking an oath if they were not allowed the liberty of making a declaration. But he would say, that there was no hardship in the case at all. The Legislature was bound to consult the feelings and rights of those who were to be subjected to a judicial tribunal, as well as of those who were to compose that tribunal; and so long as the feelings of the public were, as he knew them to be, adverse to the principle of this bill, and in favour of the evidence of witnesses, and the verdicts of juries being received under the sanction of an oath, so long should he be opposed to the adoption of any such measure. He might be told, that this was a bill which was absolutely necessary to maintain freedom or conscience, and that those who would not consent to it were the enemies of all freedom of conscience, and were indeed nothing less than persecutors. What, he would ask, was the freedom of conscience which this bill professed to give? The bill went to say, that the man who could pay 3s. 6d. might have a conscience, but that the man who was not able to pay that amount could not have any. The hon. Gentleman said, that all objection would be removed by the imposition of the penalty of perjury for making a false affirmation, but he would ask, how were they to achieve the punishment for perjury? It was an idle remedy, and would lead only to frauds. How were they to hunt the records of every petty and general session in the country and every court to see whether a declaration had been made? and, without doing this, how were they, in the case of jurors, for instance, to prove that a man had acted corruptly? Thus the remedy proposed to be given was, in fact, no remedy, the evil would be unmitigated, and he thought that the House ought not, in a matter interfering with property and affecting the lives of her Majesty's subjects, to pass such a bill. The hon. Member for Ipswich (Mr. Gibson) had supported the bill the other evening on the ground that it would give relief to the members of the Established Church; but with respect to the Established Church, it had nothing to gain unless by the improved administration of justice which this bill would not effect. The declaration subscribed by the members of the Established Church in the articles was, that though oaths were not to be vainly taken, yet that they might be taken for the sake of justice or truth; how, then, could a member of the Established Church make the declaration required by this bill, that he entertained conscientious scruples with respect to taking an oath? Feeling, therefore, that no relief would be afforded to them, but that the bill would defeat the ends of justice, he moved as an amendment, that it be committed that day six months.

Mr. Hawes

believed, that many Members of the Church of England felt great doubt upon some of those articles, and it was the first time he had heard that it was absolutely necessary for the Members of the Church of England to consent to the taking of oaths. The right hon. Member said, that this bill would defeat the ends of justice; but he thought that when the House knew that the Chief Justice of England sanctioned this bill, that more than one of the judges also approved of it, and that many Members of that House, who were of high standing at the bar also agreed in its justice, they would see that the right hon. Gentleman's fears were unfounded? What was the state of the law at present? The Quaker could claim exemption, the Moravian could claim exemption, the Separarist could claim exemption—nay, more, any one who declared that he had been of the persuasion of the Quakers, the Moravians, or the Separaists, could claim exemption. All that had been already done by the Legislature, and he believed that they had never heard an instance of any mischief having arisen. What was their present condition? that the man who was dishonest would be equally unscrupulous about taking an oath; whilst the testimony of the honest but conscientious man could not be received; and what he proposed by this bill was, that this honest and scrupulous man might go before the same party, in whose presence he could make a declaration of allegiance or supremacy, and make a declaration of his objection to take an oath. The right hon. Gentleman said, that the bill was far from satisfactory, because, there was a fee of 3s. 6d. imposed for this oath, whilst there was no provision for the poor man; but would the right hon. Gentleman help him if he struck out this fee? The fact was only one of those ad captandum arguments, which hon. Gentlemen employed who objected altogether to the principle of bills to fritter them away. He was quite willing to strike out that clause, so that all persons who required relief might be enabled to avail themselves of this bill, and would thus get rid of the declamation of the right hon. Gentleman about the injustice to the poor man's conscience, which had been so much cheered by the other side of the House. He would also leave the question of fraud and hypocrisy to the House, for the House must be perfectly aware that an oath was not always a preventive against hypocrisy. It was not always that juries, though sworn, gave this verdicts in accordance with the evidence, particularly in political cases; for instance, had it not been lately asserted, that the verdicts of Canadian juries was not given according to the evidence, and yet they were sworn. In fact, so far from all verdicts being in accordance with the evidence, nothing was more notorious, that many circumstances acted upon the mind of the jurors, and the oath was no security. The hon. Gentleman opposite, the Recorder said the other evening, that persons who affirmed were not so likely to be believed by jurors as those who were examined upon oath: but the affirmations had been for some time in use by Quakers, and could the hon. Gentleman state one instance in which a Quaker, a Moravian, or a Separatist, had come before a jury, and had not been believed as well as if he had been upon oath? He called upon the hon. Gentleman to state any case in which an affirmation had been discredited; he believed that there was not one to be found. If, however, the course of justice was likely to be interfered with, or that fraud would be attempted because of affirmation, the hon. Gentleman ought to move for the repeal of the former bills. If this were not done, he could not see the reason why the members of the Church of England should not have the same privilege as members of other sects. Why, would they not pay any attention to the sufferings of those parties who objected to taking an oath? What was the law before Quakers were allowed to make affirmation? There were the most stringent penalties against those who refused to take an oath, or even persuaded others to refuse; such parties were liable to transportation, and yet these penalties all failed, and they were obliged instead of severity to introduce leniency; and if there were any classes now requiring relief, ought they not to extend the principle already adopted? Let him take the case of a recent murder in Ireland I suppose the facts were known only to one witness, who had conscientious scruples against taking an oath, would not this House have had a special bill introduced, to enable this person to give his evidence. But there were one hundred cases in which parties were subject to much personal self-denial, but these cases were never heard of in that House. If a man entertained a conscious objection to taking an oath, he was shut out of all professions—the whole of that class were excluded from civil rights, because the House chose not to relax the law in their favour, which they had relaxed in favour of others. He wished to call the attention of the House to some alterations which he proposed to make in the bill, in order to render it more unobjectionable. The principal alteration was in the second clause, and made it a positive misdemeanour for a person to affirm falsely, which should imprisonment render him liable to an imprisonment for six months. He wished to introduce another clause, that any person making such affirmation or declaration wilfully, might be convicted of perjury. He hoped the House would see that this bill did not deserve the character given to it by the right hon. Gentleman, and that it was nothing more than a pledge to extend to others the same indulgence which had been recently granted to certain sects.

Sir R. Inglis

said, that the hon. Member's fallacy was, in thinking, that a man who was capable of acting dishonestly would not shrink from the commission of perjury; but, swearing falsely was a crime in the minds of many a most profligate man, who would not care what falsehood he stated in simple speech, or almost what act of crime he would commit. Nor was this feeling confined to what were sometimes called the inferior or uneducated classes. Many men would state what they would not swear to—several instances happened in which men stated before Committees of that House what they would not swear to before Committees of the other House; and, where they found this difference in the conduct of men of education, what must they expect from less informed persons? A gentleman of much consideration in the country had given evidence before a Committee of that House which differed from what he had stated upon oath in the other, and when the difference was pointed out he replied, "one was only a conversation, the other was upon oath." This was the case of an intelligent, well-educated man. He could state also upon the authority of one of the Judges, but who was not at that time upon the Bench, that in a case of appeal, in which he was himself present, before the Commissioners for the Property-tax, a gentleman had stated, "that he had no return to make, he had no property;" he was subjected to much examination by the Commissioners; and his memory was assisted by a reference to a mortgage; he was asked if he had no mortgage, and he replied, "none" but when after all this he was asked, "will you take your oath of this," his reply was, "If it comes to that, I will make a return;" and that was a return of property worth 4,000l. a-year. In fact it was always found, that an oath was more binding than a declaration. In the courts of justice did they not continually hear it said, "that witness is not sworn," or, "recollect, Sir, you are upon your oath?" and were not these conventional expressions grounded upon that distinction, that many would speak falsely even in a court of law, but that they would not swear to it? In fact, if this Bill passed, a year would not pass over without an attempt to get rid of oaths altogether. He did not pretend to measure the degree of moral quiet between a false assertion and a false oath. But the House was legislating for men as they are; and if it be found that men will hold themselves bound by the one, while they will lightly regard the other, it was most unwise to encourage a system, by which the sanction of judicial oaths would be superseded. No civilised society had ever been kept together without these solemn appeals to God: and, in fact, the belief in his Being had in some less civilised countries, been kept alive by them. He felt it necessary, therefore, to oppose the Bill in its present stage; and he regretted, that he had not been able to do so in that stage in which the principle was more immediately recognised. For private considerations he regretted the course which he felt bound to take, but in the discharge of his public duty he had cast aside all private feelings.

Mr. Gibson

wished only to say a few words in answer to the right hon. Gentleman the Member for the University of Cambridge, and the hon. Gentleman the Member for the University of Oxford. The first right hon. Gentleman had attacked his (Mr. Gibson's) proposition that this bill extended relief to the members of the Church of England, who were as much entitled to relief as any other part of the community. The right hon. Gentleman had attacked that proposition because, as he said, it was impossible for a person to remain a member of the Church of England, and yet object to take an oath; but he knew members of the Church of England who were admitted to her sacrament, and who participated in her services, and yet who did say that the taking of an oath was inconsistent with their conscience. He believed that there was not one Bishop who deemed it essential for a mere layman to adhere to the strict letter of the articles. Why, one Archbishop differed from another in the explanation of some of those articles, who then was to act as the infallible explainer of those articles. And did they think that to the member of the Church of England the same assistance should not be extended as was afforded to other sects, As to the objection of the hon. Gentleman the Member for Oxford, that some persons were opposed to oaths altogether, he admitted that some did so object; but he did not? for he thought that in some cases they were of efficacy in obtaining the truth. He looked upon them as a mode of strengthening the conscience, and of preventing the influence of temptation; but in order to produce effect, it was necessary that the oath should be in accordance with the party's conscience. If the oath were against conscience, it failed to be binding, and served only to maintain hypocrisy. If it were apprehended that a man would affirm falsely who would not speak falsely on his oath, it would show that such a person was only acted upon by the oath through superstitious feelings, and from no principle of morality. They were bound to take no notice of those superstitious feelings if a man were called upon to take an oath against his conscience; and if they did so for the purpose of taking advantage of a pernicious influence in the shape of superstition, they would be repressing conscience and doing a great evil. He had not heard any argument against the principle of the bill which would induce him to alter the determination he had formed of giving to it his support.

Mr. O'Connell

followed the hon. Gentleman with great reluctance, feeling that he might weaken the admirable speech that he had made, and he would not have risen had not one view of the case been omitted by that hon. Member. The bill was introduced not only to relieve the conscientious scruples of the witness, but to benefit the ends of justice by giving his testimony to the party requiring it. It was not solely for the benefit of the Quaker, that he was allowed to make his affirmation, but for the benefit of the public, of the prosecutor, and of the prisoner. He had known cases in which the greatest evil had arisen from the want of such a bill. Thirty years ago, in the city of Cork, he defended an attorney's clerk, who was indicted for forgery, and whose defence was, that he had authority to sign the prosecutor's name. In his defence he produced a Quaker, a most respectable man, a party in the respectable house of Deacon, and Co, from whose evidence the jury would have inferred the fact of authority. When he got upon the table the Quaker refused to take the oath; the prisoner was convicted, and the Quaker went before the judge, Mr. Justice Day, out of court, and affirmed his knowledge and the man's life was saved; but if the Quaker's evidence had been received he would have been acquitted. There was another case in which he was concerned of great consequence to a literary gentleman whom he would not name in public, though he had no objection to mention his name in private; that gentleman was indicted in the city of Cork for a horrible crime imputed to him by a vile woman. At the time the crime was imputed to him he was at dinner with a Quaker gentleman in his own house. On the trial he produced the Quaker, who overcame his scruples and took the oath, saying, that as the honour and character of the gentleman was at stake he would take the oath. On the following day the gentleman prosecuted the prosecutrix against himself, and produced the Quaker who refused to be sworn, saying, that "yesterday he took the oath to prevent a great evil undergoing the lesser, but he would not do so again." [Hear! Hear!] Hon. Gentlemen cheered: but what had happened? Why, that one of the most abominable perjurers had entirely escaped. They would have prevented that highly respectable individual from having his character cleared, only that the Quaker had sacrificed his scruples to clear his friend's character and save his life. This bill was but the payment of an additional tribute to freedom of conscience, and it was therefore—no, he would not say therefore—but it happened to be opposed by those who were opposed to all liberty of conscience. Hon. Gentlemen forgot that in our courts of justice it was only a particular class of witnesses which was examined under the sanctity of an oath. The Chinese who was examined first broke a saucer; there did not seem much sanctity in breaking a saucer but it was done. The Mahometan was examined on his own faith; the Jew was sworn on the Old Testament; but the Moravian, the Quaker, and the Separatist were not sworn at all. To bear the hon. Gentleman opposite talking of an oath being preserved in every social state of society was most extraordinary. The hon. Gentleman had told them that there was no state of society in which it did not exist. Had the hon. Gentleman never beard of the State of Pennsylvania? there was not a State which was more moral or more re- ligious, and yet they did not believe, that it was necessary to have a single oath. The House was told, that persons were inclined to respect their oaths and to abide by them, because their examination took place in public. But he could name one of the most respectable assemblies in the world, composed of men of property and talent, whose members, however, came to the table to be sworn, every one of them being careless as to the oath which they took, but looking to the side which they advocated, and the main inquiry being whether they were seven to four, or on which side was the majority. Why, it was impossible to say, that there was any respect for oaths when these scenes took place, and when the decisions which were given were upon the number of the party on either side. But with regard to this bill, he thought no possible mischief could be done by it, but on the contrary the greatest good. Juries were not now obliged to believe the evidence of witnesses called before them, but they judged upon their characters, whether that testimony could be received, and there was nothing in the provisions of this measure which would alter the law in this respect, and no greater discredit could be thrown upon a man's character, than by its being said, that he had never paid any attention to religion or morality during his life, and that he came forward being callous to every tie upon his conscience. He thought, then, that there would be a greater reverence of oaths if that bond upon men's consciences were not too frequently used, and that if any distinction now existed between the oath and the word of a man it was a false distinction, founded upon false morality. Had there been any instances given in which the oath of a Protestant and the affirmation of a Quaker had been contrasted? There had not, and he thought, that when men were to be found who construed the direct command given them to "swear not at all," as forbidding them to take an oath, the scruples which they possessed should be respected, at all events by the Protestant part of that House.

Mr. Law

said, that the hon. Member for Lambeth had particularly called upon him to state whether he had witnessed any difference between an affirmation and on oath in a court of justice. He had not come down with any particular case, but he begged to offer to the hon. Member and to the House the experience of more than twenty years in different courts of justice, both for the administration of ordinary and the criminal law. He could safely say, that up to the present hour, that tribunal upon which the liberties of this country mainly depended—that the safety of the country depended upon which the property, life, and liberty of the country depended—he alluded to the juries of the country—up to the present hour the juries of England had preserved the greatest respect and veneration for an oath, and had acted under its influence. He was quite satisfied that whatever desire of popularity might influence those out of the House to support such a measure as the present, he was sure that the good sense of the country, and the feelings of those who administered justice, would be opposed to the present Bill. He had been perpetually reminded by juries in matters of difficulty and uncertainty, that a particular witness on coming into the box, had manifested a disinclination to observe the formalities attendant upon taking an oath. He had always found, too, that the administration of an oath, both to the witnesses and to the jury, was always attended with the best effects; and, such being the case, he, for one, was not prepared to diminish those sanctions under which justice was administered. It had been said, what value could be attached to the evidence of the man who had ventured to state that, when he was not sworn, which he would shrink from when he was? Now he had known several instances where a witness had been reminded that he was upon his oath, although he had stated exactly the contrary before; he had known many instances where, upon being so reminded, he had admitted that what he had stated was false. Every day his experience convinced him that, however painful it might be to extract testimony from a party which would be hostile to his interests, yet the influence of an oath was such, that parties, when bound by it, unhesitatingly gave evidence against themselves, which they would not have done had it not been for the oath. In his opinion, the exceptions from taking oaths had been carried too far, with respect to those who had what he would call elastic consciences, and who professed a disinclination to submit themselves to an oath in courts of justice. Such being the case, was the House, by its measures, to attempt to per- suade men to feel conscientious scruples? Was the House to say to them they were men of no great religious scruples, but could they not find out something or other which they felt disinclined to swear to? If the House introduced bills to meet cases like that, they might find ragged recruits among those whose statements were not to be believed upon oath; but they might depend upon it they would not meet with support from the respectable part of the community. He did not believe that the hon. Member for Lambeth had the feelings of the conscientious part of the community in his favour. Holiest men in this country did not desire such ease to their consciences. There had been too many of such "liberal" measures—miscalled liberal, which were more mischievous than tyrannical measures. This measure would change the whole system upon which the administration of justice had hitherto proceeded. So far from saying it was a matter of hypocrisy to act under the obligation of an oath in a court of justice, he considered that all the solemnity of an oath was barely sufficient to carry out the objects of public justice. An experience of more than twenty years convinced him that the impression on the minds of honest and intelligent juries, derived from the middling classes of society, was not affected by these liberal sentiments of irreligion. They did not desire such a measure as this. He was persuaded that juries would attach upon questions of life, of property, or what was more valuable than all, of reputation—that juries would attach much more credit to testimony given on oath than to evidence given without that obligation. He could not but think, however, that these scruples had been carried quite far enough already. The Quaker had long been considered, and justly, as a rare exception to the rule, for their objection to taking the oath was in fact the key of their creed; but the indulgence which had been extended to the Quakers had been carried rather too far in regard to other sects, and this bill extended it to cases in which no real objection existed. He should be dishonest in the discharge of those judicial duties which he was called upon to fulfil elsewhere, if he did not declare his conviction that this bill would undermine the foundations of society, by injuring the administration of justice, and he was satisfied he was speak- ing the language of the enlightened, of the educated, and of the conscientious middle classes in this country, when he affirmed that this bill was as much opposed to their feelings as to honesty, and that it was, in fact, a measure of unadulterated mischief.

Dr. Lushington

had listened to the speech of the hon. and learned Recorder with very great regret. It was not in that manner that measures affecting the consciences of large classes of her Majesty's subjects ought to be discussed—and this was the first time in his political experience that he had heard the Quakers, the Moravians and the Separatists, spoken of as persons of elastic consciences. Those sects might be mistaken in their theological opinions, but in their moral conduct—in their obedience to every obligation, to honesty and good faith, they were most exemplary—and when it was attributed to them by the hon. and learned Recorder that they were persons of elastic consciences—which meant a disregard of sacred obligation, which meant not being bound by moral duties and opinions of right or wrong—he knowing their sacrifices—knowing their sufferings—knowing their long endurance for conscience-sake, was bound to appeal to the House, and to the country, whether the statement of the hon. and learned Recorder was not calumnious? Now, with regard to the question before the House. How stood the law at present? A person refuses to take the oath. What is to be done? Commit him. For what? For having a conscientious scruple, which various Acts of Parliament had decided to be just and laudable in other classes of persons—scruples which might indeed be erroneous, but which he would not decide upon, as he would not, like the hon. and learned Recorder whom he could not accuse of tolerance—make himself a judge over the consciences of others. Well, the party was punished. But was the object attained? That object was to procure his evidence in the Court of Justice, and it was altogether frustrated by his refusal to take the oath. But, supposing that after having been committed, the person was to come back and express his willingness to take the oath, what would be thought of the conscientiousness of a person who first came into court saying that he had a conscientious objection to take the oath, and shortly after said, "There is such wonder- ful virtue in the authority of the tip-staff, that now I am willing to take the oath." Why such a person would be taking the oath under duresse.—Even at the present time, a person might take the oath in what form he liked; and he remembered an instance of a person of the Methodist persuasion, who required to take the oath upon the Old Testament only, and was allowed to do so. And at the Queen's trial, when the question as to the form of taking the oath was mooted, Lord Tenterden said that a witness might be sworn in the manner most binding on his own conscience, and that it was impossible to go further. But the noble and learned Lord added one further observation which had struck him very forcibly at the time, and had made a deep impression upon thousands since—that when a man was sworn, in whatever form he imprecated Divine vengence on his head. This was felt so strongly in Scotland, that about fourteen years ago when the form of the oath was that the person knelt down and taking the Bible in his hands prayed God, that if he swore falsely, all the curses in that Book might fall upon him—it was represented to the then Lord Advocate, and he declared that he thought the objections reasonable, and altered the form. It would be the grossest impolicy, and most perfect injustice, to suppose that individuals might not remain good members of the Church of of England, because they dissented from some of its articles.—A more dangerous doctrine never could be promulgated respecting that Church, than that every man who partook in her communion—that every man who professed her doctrine, because he did not happen to coincide in one opinion, ought to be excluded from the pale of that Church; it would in his opinion, go in direct violation of the opinion of all the most celebrated divines since the times of the Reformation. The policy of the Church of England was not to thrust out of her pale, individuals who conformed to all her main points; but to make allowances for those differences which constantly would occur among honest and enlightened minds. There were persons not belonging to those sects who seriously suffered from their conscientious feelings. He would give one instance, that of a gentleman residing in one of the midland counties, who having lost his sister, became entitled to 4,000l. He, however, would not take the oath, and paid the debts out of his own pocket, and the property went to decay. There would be such cases—and was no remedy to be offered? Independently of the question of the jurors' obligation, to take an oath in fulfilling many of the offices of life, was a great and serious objection. It was stated, that jurors had a conscientious regard for oaths, or, in other words, that they gave conscientious verdicts according to their belief; but then it did not follow, that a change in this respect would prevent them from being honest men. He was aware that in the administration of justice they frequently met with an utter disregard to truth. But he further believed, that the main-stay with respect to the lower class of witnesses was not so much the oath they took, as the fear of the consequences if they were proved guilty of being forsworn.

Mr. Shaw

would shortly state his reasons for voting against the bill. With respect to juries, in cases of doubtful evidence they would be disposed to lean to that party whose evidence had been given upon oath against that party whose evidence had been given without that sanction. He had heard jurors express great objections to persons who had not taken an oath. Suppose the hon. and learned Gentleman opposite to be engaged as counsel in a cause, and that he had to cross-examine a witness, and it was put to him whether he would have the witness sworn, or let him give evidence on his bare assertion, how would he act? He had no doubt, that, looking to mankind in general, and particularly to the Irish people, he would say, let him be sworn by all means. Hon. Gentlemen opposite said, that evidence might be lost, because they could not constrain a person to take an oath; but the question was, were they to endure that, rather than submit to a greater evil? They could not meet every possible conscientious objection. Then it was said, let every person be sworn according to the form most binding on his conscience. To that he agreed, but the question was, not about the form of the oath, but whether it should be dispensed with altogether. There might be a few who had these conscientious scruples, which cases might be met by such legislation, but it was of the abuse of such a law that he was apprehensive; and if they were to legislate to meet these scruples, they would open a door to more unscrupulous persons.

Viscount Morpeth

said, it must be ad- mitted, that it would be desirable to relieve conscientious scruples, and prevent the possibility of such a striking and affecting case as that which had been mentioned by the hon. and learned Member near him. The question was, whether there were stronger countervailing objections on the other side. He so far agreed with the opponents of the bill as to admit, that there were cases in which the dishonest would shrink from perjury, but could they not attach the same penalty to the making a false affirmation as to perjury. He did not see, that the statement made by the learned Recorder, respecting the observation of juries, that certain witnesses had not taken an oath, was much in point. They naturally took notice, that a positive injunction of the law was not attended to, and they considered the neglect to be an evasion indicative of a desire to deceive. The same observation would apply, in not making a solemn affirmation, as it did now in not taking a solemn oath. Then they had the additional security which was provided by the preliminary formal assurance which the person was to give of his conscientious repugnance to take an oath, and it would turn out, that such a formal assurance would not be given by any persons whose general conduct and known opinions did not correspond. He was not prepared to say, that some of the details of the bill might not require modification; and the whole effect of it, he admitted, could not be contemplated without some slight misgivings; but when a discussion was raised on the principle of the bill, he felt constrained to give his vote in a way in which it would afford ease to consciences. It might suit the hon. and learned Gentleman opposite to call them elastic, but he contemplated conscientious scruples in a far different light, whether expressed by Quakers, Moravians, or Separatists, or any one else, who attached a more literal meaning than he did to a positive precept of the New Testament.

Sir Robert Peel

said, though he might come to a very different conclusion from that of the noble Lord, yet he could not come to it without the same misgivings and doubts which the noble Lord experienced, but he was bound to decide between the conflicting advantages and dangers of this measure, and he found the balance to be against the further progress of the bill. He thought his hon. and learned Friend had been misunderstood when it was supposed he had applied the term "elastic conscience" to the Quakers, Moravians, and Separatists. If he were correctly understood, he (Sir R. Peel) must disclaim all participation in that remark. So far as he had any connexion with them, either in a public or private capacity, he never found men more disposed to act upon the principle of Christian and moral obligation than the classes to which his hon. Friend had alluded. But it had been assumed in the course of the debate, that they were about to place the members of the Church of England on precisely the same footing as the classes referred to. He contended they were not going to place the members of the Church of England on the same footing. The presumption was, that an individual who belonged to the sect either of the Quakers, Separatists, or Moravians, belonging to a sect, one of whose fundamental principles was an objection to an oath; but that was not the case with the members of the Church of England, and therefore it could not be said, that they were about to extend to the members of the Church of England the same privileges as they would confer on other bodies. What was done in the case of the Separatist? They exempted him from the obligation of taking an oath, but on what grounds? They required from him this declaration—"In the presence of Almighty God I solemnly, sincerely, and truly affirm and declare, that I am a member of the sect called Separatists, and that the taking of any oath is contrary to my religious belief." Did it stop there? No. The words were superadded—"as well as essentially opposed to the tenets of that sect." They would not require that from a member of the Church of England, and therefore this bill was not placing the members of the Church of England on the same footing as the sects whose religious principles were fundamentally opposed to it. His (Sir R. Peel's) chief objection to the bill was this, that they could not stand on the foundation they were building. A great part of the argument against the existing system was founded on this, that there was no difference between the obligation of an assertion and the obligation of an oath. Why, then, did they require a solemn affirmation? What did they mean by a solemn affirmation? Did they mean to super-add a religious sanction to an assertion? If they did not, where was the distinction? What was the nature of the religious sanction which they sought to apply to the word solemn? Suppose, as the hon. and learned Gentleman had said, there should be a party who, referring to the word of God, found a prohibition against swearing at all why not respect that man? Why should you visit him with punishment because he acted according to his conscience? Suppose another man said, I find also in scripture an injunction, that my conversation shall be "Yea, yea, nay, nay," and that is all the declaration I shall make, and you object to it as the condition of relieving me from an oath, while in the word "solemn" you imply a distinction between the assertions I am to make in court, and those I am to make in ordinary transactions, I think you ought not to draw a distinction between degrees of veracity and credibility, and you ought not, by the use of the words "solemn affirmation," to make it appear more binding than the bare assertion of a man. I claim, therefore, to be relieved from your solemn affirmation. I ask you to trust to my word—to permit me to quote the text which I think favours my construction. What would they do with that man? Would they undertake to tell that man that his religious scruples were absurd and without foundation? If so, on what pretence? Who were to be the judges how far the scruples of a man were to go? Would they, in case of his refusal to submit to that form of affirmation, have him committed to the tipstaff? Had he not as much right to have his scruples, such as they were, regarded, as the man who conscientiously objected to an oath? If this bill were passed, they could not avoid going much further—to the extent that every man should give his evidence in a court of justice, or perform his duties as a juryman, under that species of sanction which he declared to be binding on his principles, or, perhaps, according to his caprice. The bill required, before evidence was given, that there should be a declaration in lieu of an oath. Suppose this declaration was omitted, what would be the effect where, perhaps, murder might be the subject of the trial? I can understand how, where a privilege is in question, under such circumstances such evidence could do no harm. But suppose a case in which the subject matter is crime, where the giving the evidence is a duty, the omission would then become serious. I am afraid that at last the measure, if agreed to, must come to this, that, no man need make any declaration whatever, except what he himself recognizes as binding. Feeling, as I do on the one hand, the desire to relieve conscientious scruples, yet, on the other, weighing the balance of evil, the unwillingness there is to be accessary to the taking away human life on the one hand, and the fear on the part of juries to give verdicts against the accused in such cases on the mere assertion of witnesses on the other, he felt compelled, though he admitted reluctantly, to give his vote against this bill.

Mr. Law

explained, that he did not suppose, that the noble Lord opposite had imputed to him that application of the term "elastic conscience" seriously, or in any other spirit than that of the amusement of debate. If, however, the noble Lord had so misunderstood him, or if the House generally believed that he had so applied the expression, he begged at once to withdraw it, and to say that he had not used it in any disrespect to any sect whatever.

The Solicitor-General

could not complain of the tone in which the right hon. Baronet had discussed this question, for he had stated it to be a question of the balance of convenience and inconvenience, of which he conceived the inconvenience to preponderate. In order to arrive at that conclusion, the House must consider that he was driven to the necessity of pushing the question to the extreme—a limit which he (the Solicitor-general) did not shrink from putting to the test. He was ready to admit, in the progress of society that there should be classes of persons who had a conscientious scruple in saying—"I solemnly affirm so and so," exactly the same principle which induced him now to say, he would not put the individual to his oath, would lead him to say, he would not put him to his affirmation. [Cheers.] He supposed hon. Gentlemen opposite who cheered, meant to say that was absurd, but he saw nothing absurd in it. Why require an oath at all? Some people said, it was the only test of the truth of what a party had to say. Let him call the attention of the House to one circumstance connected with this case, which would throw a great doubt on their sincerity who trusted so much to an oath. It frequently happened that a witness had stated something which he afterwards denied on oath. If this importance of an oath had any weight, they ought to say, "Never mind, he only said it when not under the sanction of an oath;" yet everybody knew the case was established against him when they could get him to contradict on oath an assertion which he had previously made. Of what value, then, was the oath in this case? It was not the oath that gave the sanction, but the solemnity of the manner in which it was administered, and the circumstances under which it was taken. He would ask whether the present alteration was novel? Certainly not. Hon. Gentlemen must be aware of the great alteration that was made in 1829, when a declaration was substituted for an oath on taking office. He did not think the House would gain much by saying that exemption should be given to Quakers, Moravians, and Separatists, but not to individuals of other denominations. He thought the objection of the right hon. Baronet was a most cogent reason why the bill should go before a Committee. He felt the strongest conviction that the time would shortly arrive when it would be considered a complete mockery to think more of an oath than a statement. He considered the prejudice in favour of an oath would be removed by time and education.

Mr. Pryme

did not see why, because the Quakers adopted a peculiar phraseology, and held exclusive observances, they should be entitled to a privilege from which the members of the Church, who only differed from the Church on the subject of oath taking, was debarred.

The House divided, on the question that the Speaker do leave the chair:—Ayes 93; Noes 125—Majority 32.

List of the AYES.
Aglionby, H. A. Briscoe, J. I.
Aglionby, Major Brotherton, J.
Archbold, R. Browne, R. D.
Baines, E. Bryan, G.
Bannerman, A. Buller, Charles
Baring, F. T. Bustield, W.
Barnard, E. G. Butler, hon. Col.
Barron, H. W. Cavendish, hon. G. H.
Barry, G. S. Cayley, E. S.
Beamish, F. B. Chalmers, P.
Bewes, T. Clay, W.
Blake, M. J. Collier, J.
Blake, W. J. Cowper, hon. W. F.
Blewitt, R. J. D'Eyncourt, rt. hn. C. T.
Bodkin, J. J. Divett, E.
Bridgeman, H. Duckworth, S.
Duke, Sir J. O'Connell, D.
Dundas, C. W. D. O'Connell, M.
Elliot, hon. J. E. Pattison, J.
Evans, G. Pechell, Capt.
Evans, W. Philips, M.
Fielden, J. Phillpotts, J.
Fenton, J. Pinney, W.
Finch, F. Power, J.
Fort, J. Pryme, G.
Gibson, T. Rice, E. R.
Grattan, H. Roche, E. B.
Greenaway, C. Rolfe, Sir R. M.
Hill, Lord A. Salwey, Colonel
Hindley, C. Scholefield, J.
Hobhouse, T. B. Smith, B.
Horsman, E. Stock, Dr.
Howard, P. H. Strickland, Sir G.
Humphery, J. Strutt, E.
Hutton, R. Style, Sir C.
Ingham, R. Tancred, H. W.
Johnson, General Thornley, T.
Langdale, hon. C. Vigors, N. A.
Leader, J. T. Wallace, R.
Lister, E. C. Warburton, H.
Lushington, C. White, A.
Lushington, rt. hn. S. Williams, W.
Marsland, H. Wood, G. W.
Martin, J. Wyse, T.
Melgund, Lord Yates, J. A.
Morpeth, Lord TELLERS.
Murray, rt. hon. J. A. Hawes, B.
O'Brien, C. Parker, J.
List of the NOES.
Acland, Sir T. D. Davenport, J.
A'Court, Captain Dunbar, G.
Adare, Lord Dungannon, Lord
Arbuthnott, hon. H. Du Pre, G.
Ashley, Lord Eastnor, Lord
Bailey, J. Egerton, W. T.
Bailey, J. jun. Estcourt, T.
Baillie, Colonel Farnham, E. B.
Baker, E. Feilden, W.
Barrington, Lord Fitzroy, hon. H.
Bateson, Sir R. Fitzimon, N.
Bentinck, Lord G. Gladstone, W. E.
Berkeley, hon. C. Godson, R.
Blair, J. Goulburn, rt. hon. H.
Blakemore, R. Graham, rt. hon. Sir J.
Blennerhassett, A. Grant, hon. Colonel
Bolling, W. Grimsditch, T.
Bradshaw, J. Halford, H.
Broadley, H. Handley, H.
Bruce, Lord E. Hawkes, T.
Bruges, W. H. Hepburn, Sir T. B.
Buller, Sir J. Y. Hodgson, R.
Burroughs, H. N. Hope, hon. Chas.
Calcraft, J. H. Hope, G. W.
Canning, rt. hn. Sir S. Hotham, Lord
Cantilupe, Lord Houstoun, G.
Chapman, A. Hughes, W. B.
Clerk, Sir G. Hutt, W.
Clive, Viscount Ingestrie, Lord
Cole, hon. A. H. Inglis, Sir R. H.
Compton, H. C. Irton, S.
Copeland, Alderman James, Sir W.
Darby, G. Jones, J.
Kirk, P. Rickford, W.
Knightley, Sir C. Round, C. G.
Law, hon. C. E. Round, J.
Lefroy, right hon. T. Rushbrooke, Col.
Liddel, hon. H. T. Rushout, G.
Lockhart, A. M. Sharpe, General
Lowther, J. H. Shaw, right hon. F.
Mackenzie, T. Sheppard, T.
Maclean, D. Sibthorp, Colonel
Marsland, T. Somerset, Lord G.
Maxwell, hon. S. R. Stanley, E.
Miles, P. W. S. Stanley, Lord
Mordaunt, Sir J. Stuart, V.
Morris, D. Stormont, Lord
Noel, W. M. Teignmouth, Lord
Norreys, Lord Tennent, J. E.
O'Neill, hon. J. B. R. Thomas, Colonel H.
Parker, M. Tyrell, Sir J. T.
Peel, right hon. Sir R. Vere, Sir C. B.
Perceval, Colonel Villiers, Lord
Perceval, hon. G. J. Vivian, J. E.
Planta, right hon. J. Waddington, H. S.
Plumptre, J. P. Walker, R.
Polhill, F. Whitmore, T. C.
Powerscourt, Lord Wilbraham, hon. B.
Praed, W. M. Williams, R.
Pringle, A. Wood, T.
Protheroe, E. Young, J.
Pusey, P. TELLERS.
Reid, Sir J. R. Fremantle, Sir T.
Richards, R. Holmes, W.

Bill lost.