§ On the Order of the Day for the House resolving itself into Committee on the Affirmation Bill being read,
§ Mr. Goulburnsaid, that the House had as yet not had the advantage of having heard the merits of this bill discussed, as 870 it had hitherto been advanced to its present stage on the credit of its resemblance to another bill, which had last Session been rejected by a large majority. There were certain sects recognised by law, who had a conscientious objection to the taking of an oath, and the Legislature had given them indulgence. But this measure went upon a different principle; it gave an indulgence not to the members of any recognised sect, but to individuals. Now although he was willing to grant all necessary relief to the consciences of individuals, yet the House must, take care that this was not attended with disadvantage to the public. That there was to be a limit to conscientious scruples was admitted by the very bill before the House, which limited it to individuals who professed Christianity. The hon. Gentleman, the author of the Bill, had no regard for the conscientious scruples entertained by the Mussulman or Hindoo. The first question was as to the mode in which the hon. Gentleman proposed to ascertain the conscientious scruples. This bill was a legislative curiosity. The principle on which it proceeded, in the first place, was, that any person who professed that he himself entertained objections to taking an oath, although the creed to which he belonged did not contain anything against the taking of oaths, was to possess this extraordinary qualification, to which he begged to call the attention of the House, because he believed it to be quite new in legislation. An individual, by this bill, would have to produce the testimony of one or more witnesses before two justices of the peace, not that he had declined to take an oath on particular occasions, but that they believed he had a conscientious objection to taking an oath, and that he believed the taking of an oath to be forbidden by the law of God. If he had brought forward a bill avowedly for the purpose of protecting the liberty of conscience, he thought he would have been obnoxious to censure had he obliged, by its provisions, a person to bring forward other persons to make oath as to the motives or belief of a third person. But suppose the person had procured the two witnesses, and had received a certificate which was to be enrolled in every quarter session in the kingdom, he would then be at liberty to decide upon every occasion whether he would give his testimony on oath or not. Now he thought, that such a power lodged in any 871 individual or number of individuals, would prove the greatest possible inconvenience to public justice. Suppose the man to be conscientious, and he was called as a principal witness upon a criminal prosecution, he refused to be sworn, and stated, that some ten years previously he had in the northern parts of England, or in the distant Cornwall, appeared before the magistrate and obtained a certificate under this bill, what would be the cross examination of the adverse counsel?—not as to the facts of the case, but as to the truth of the declaration made by the witness, and upon that would be founded his address to the jury. The general opinion of the people of this country as to the great efficacy and stringency of an oath over a mere assurance would have a decided influence with a jury. These observations applied to the case in which they would have to do with a conscientious non-juror; but supposing they had to deal with an insincere person, what an opportunity was given to men of this description to commit injustice and fraud. There were such things as willing and unwilling witnesses, and the latter would resort, at once, to not giving testimony on oath, and thereby would enable the counsel to argue that all his declarations were mere inventions and not entitled to credit. But there was a more important question. A man might be called upon to serve as a juror—nay, might put himself forward for that purpose, and decline to be sworn, but profess to take the declaration. The criminal might be tried, convicted, and punished, and afterwards it might be found that he had not been sworn, but had taken the declaration, which would be of no avail, because he had not taken the declaration before a magistrate. What kind of verdict would that be? It would be that of a man not sworn, and, therefore, invalid. Was that a situation in which to place the judicature of the country? He said, if they wished to defeat the ends of justice, they could not devise a better means of doing so. He admitted there might be inconvenience in the present system, but they were of very rare occurrence; and he would ask, whether it would be well to get rid of partial evils by the introduction of a measure which would threaten the administration of justice in all its branches. But the bill would not realise the intentions of the hon. Gentleman. By the bill, a man would be called 872 on to make a solemn declaration; but such a declaration assumed a religious character, and there were many who would have the same objection to it as to the taking of an oath. On the whole, he believed, that if they passed the bill, they would find the difficulties it would involve so great that they would have no resource but the repeal of the law, or a general declaration that testimony in courts of law should be without any solemn sanction. He would, therefore, move that the House go into committee that day three months.
§ Mr. Hawessaid, that the right hon. Gentleman was quite consistent in opposing the bill, though he was not consistent with himself as to the grounds on which he placed his opposition. Last year, the right hon. Gentleman had opposed a similar bill on the ground that it offered no security that the objections of parties to the taking of oaths were conscientious. In the present bill, a clause had been introduced requiring that parties who objected to the taking of an oath should produce a certificate of their religious professions. The right hon. Gentleman was opposed to that provision, and he also complained that the bill did not give relief to all the parties for whom relief was intended. But one of the objections of the right hon. Gentleman last year was, that the bill was too extensive in its provisions. It was hard to please the right hon. Gentleman, and it would be better for him to state at once that he objected to any change whatever. The present system was equally liable to objections, and did not provide a guarantee that parties who stated themselves to belong to the sect of Quakers or other sects which were now relieved from taking oaths really did belong to them. What became, then, of the right hon. Gentleman's objection on that score? The right hon. Gentleman, knowing he could not maintain his proposition for a moment, sought to inflict upon every conscientious member of the Church of England that which was in effect a disqualification. He had taken every precaution in the bill to ensure the administration of justice. Every party who objected from religious scruples to take an oath, must produce evidence as to his character, and have made previously a declaration that he had conscientious scruples against taking an oath. On the ground that conscientious scruples should be respected, 873 and that the provisions of the bill rendered it impossible that unconscientious persons should avail themselves of the exemption, it being conceded on all hands that the unconscientious person would take even an oath falsely, he hoped the House would agree to the bill. There were persons who entertained this scruple, not belonging to the privileged sects, but who were scattered over all other sects. There were many members of the Church of England who felt strong objections to oath-taking. The gentleman who drew up this bill did not belong to the privileged sects, and yet he had made great sacrifices, not merely because he would not take an oath, but because he was in an office in which it was a part of his duty to administer oaths. He had resigned his appointment on that ground. He trusted the House would not now refuse to sanction a principle which it had sanctioned in many previous Sessions.
§ Sir B. Inglisentertained a very different hope from that expressed by the hon. Member who had just stated, that the House could not refuse to sanction a principle which it had sanctioned in former Sessions. The hon. Gentleman might with more reason say, that the House ought to agree this day to the principle to which it agreed on Tuesday fast.—[Hear, hear."] The hon. Gentleman had referred to the case of an individual who made great sacrifices to his conscientious scruples. With that individual no man could sympathise more than he did. Still they were not at liberty to break down the sanctity of that barrier, which all civilized countries had Considered a protection to society, namely, the sanctity of an oath, merely in deference to the conscientious scruples of a small number of individuals. Whatever might be the merits of the bill, it was not a bill to relieve members of the Church of England—it was not professed to be such. He contended that a man who objected to an oath as inconsistent with the duties of a Christian man, was not a member of the Church of England. The 39th Article of religion relating to the taking of oaths, expressly said,
We judge the Christian religion doth not prohibit, but that a man may swear when the magistrate requireth it in a cause of faith and charity, so it be done according to the prophets teaching, in justice, judgment, and truth.He contended, that as long as that remained an Article of the Church of Eng- 874 land, though a man's scruples might he respected as a Quaker, or a Moravian, or a Separatist, yet that no man had a right to call himself a member of the Church of England, who held that the taking of an oath was inconsistent with the law of God. He perceived that the right hon. Gentleman opposite, formerly a Chief Justice, (Sir C. Grey), was burning with impatience to answer him.—[Sir C. Grey, Hear, hear.]—He had on different occasions addressed the House in opposition to bills brought forward on similar principles. Men spoke more restrictedly and more carefully when speaking under the sanction of an oath, than when speaking under no such sanction. He knew we ought to speak with the same regard to truth whether speaking an oath or not; but they would disown all experience, if they did not admit that persons spoke much more restrictedly and carefully when speaking, on an appeal to God or God's own book, than when speaking under other circumstances. It must be in the recollection of many hon. Gentlemen who had ever been in courts of justice, that persons who were perfectly willing to make statements when they were in a private room, frequently paused and hesitated when they were called on to make them on oath. He thought it would not be safe to leave these things to the discretion of individuals, or relax that bond of society which the taking of an oath had been in all ages of the world. The present bill did not provide for the doing away with the taking of oaths altogether; but it followed, that if such a bill should be brought forward, the hon. Member who brought forward this motion ought in consistency to give his support to such a bill. Believing, as he did, that it was not safe to relax the restriction of oaths in the present state of society, he should vote in favour of the amendment of his right hon. Friend.
§ Sir Charles Greyacknowledged that it was not without considerable impatience, and even something approaching to intolerable impatience, that he heard his hon. Friend, the Member for the University of Oxford state, that no man could pretend to be a member of the Church of England who had the least scruples against taking oaths. His hon. Friend formed that argument upon one of the articles of the Church of England. When he remembered there was a text which said, "Swear not at all," he thought a person might reasonably, with every inclination 875 to adhere to the Church of England—and give his acquiescence to the articles.—entertain objections to taking an oath. He had sat as a judge in India, and he could not help remembering, that if an implicit adherence to that one of the thirty-nine articles quoted by his hon. Friend was absolutely indispensable to prove a man to be a Protestant Christian, he must also give an implicit adherence to another of those articles which would condemn one hundred millions of persons, among whom he had lived, to eternal punishment. He had signed the articles in his youth, when he matriculated in the University, of which the right hon. Baronet was the representative; but if he were to be called upon to do so now, as a test of his adherence to the Church of England—if they were to be taken literally, according to the words contained in them, he should long pause before doing so. He believed that it would be impossible to conduct the business of a court of justice, unless they allowed some substitution for the strict and formal mode of the oath now administered. In India they were obliged to substitute for the oath administered to Christians, a form of oath which was considered binding upon the Hindoos, that of swearing them upon the Ganges water, and making them swallow a portion of it, and it was deemed by the people, that if they spoke untruly, some immediate punishment would befal them; but when this practice, which had prevailed secretly for some years, became known, it was held by the Hindoos generally, that this was such a degradation of the ceremonies of their religion, that it would not be a greater crime to commit perjury, and accordingly an act was introduced into Parliament, giving the courts in India liberty to administer the oath in whatever way was most binding on the consciences of the people. He thought the course of justice in this country would be best advanced, by allowing witnesses to give their evidence under such obligation as they should deem to be most binding on their consciences.
§ Mr. Ewartthought the members of the Church of England had great cause to complain of the course which had been pursued on this occasion by the hon. Baronet, the Member for the University of Oxford, and the right hon. Gentleman, the Member for the University of Cambridge. Whenever any measure was brought in, like this, which opened the 876 door of the Church to a large number, by giving facilities to conscience, those individuals came down, with all the zeal of enthusiasts, to oppose it. This bill was to give relief to members of the Church of England, who entertained scruples in taking an oath, and down came the members for the Universities of Oxford and Cambridge, with narrow sectarian views to resist it. The tendency of their conduct was to reduce the Church of England to a small sect. The hon. Baronet, the Member for the University of Oxford, had accused the Church of England of an act of tyranny over the consciences of men, by imposing upon them the necessity of taking oaths; and the hon. Baronet asserted, that this arbitrary power was exhibited in one of the thirty-nine articles of that Church. The hon. Baronet, however, had been unjust towards the Church of England; for the very article to which he had referred used these words: "That it doth not prohibit men, if they think fit, from taking an oath." Therefore the article was not compulsory, but promissory only. It did not say, "If you do not take an oath, you are not a member of the Church of England;" all that it did was to allow those who pleased to take an oath. But why did not the hon. Baronet act consistently? He granted liberty to members of other religious sects—the Quakers, the Moravians, and the Separatists, to dispense with taking oaths. Why should he deny the same liberty to conscientious members of his own sect? The hon. Baronet did not do justice to that church, the cause of which he came forward to support. The right hon. Gentleman the Member for Cambridge, had said, that if the bill went so far why not farther. Why should it be limited to Christians? Why not extend it to all persons? The answer was, that his hon. Friend did not contemplate a general measure; his only object was an extension of an existing principle. He found the principle existing, and he proposed to extend it to other sects' as well as to the Quakers, Moravians, and Separatists. The right hon. Gentleman had said, if you extend it to all Christians, you ought to extend it to Mussulmans, but Mussulmans took the oath already. They swore on the Koran, He gave his support to the bill of his hon. Friend, as a measure founded on principles of justice and policy, and highly cal- 877 culated to promote the best interests of both morality and religion.
§ Mr. Warburtonobserved, that in some cases the testimony of an individual might be valuable to himself; but in ninety-nine out of every hundred cases the testimony was for the benefit of other parties. Now, if the House did not pass this bill, they would deprive those other parties of the power of receiving the testimony of honest witnesses; and if they wanted the testimony of an unwilling witness, he might say, that he declined to take an oath—that he believed in the literal meaning of the command, "swear not at all," and thus an unwilling or dishonest witness might avoid giving any testimony. The majority, therefore, were interested in this measure, and they were not legislating for individuals, but for the public generally, and were enabling them to obtain the testimony of parties who had, or professed to have, scruples of conscience.
§ The House divided on the original question:—Ayes 91; Noes 59: Majority 32.
| List of the AYES. | |
| Aglionby, H. A. | Hodges, T. L. |
| Ainsworth, P. | Hoskins, K. |
| Alston, R. | Howard, hn. E. G. G. |
| Archbold, R. | Howick, Lord |
| Baring, rt. hn. F. T. | Hume, J. |
| Barnard, E. G. | Hutt, W. |
| Bowes, J. | Hutton, R. |
| Bridgeman, H. | Langdale, hon. C. |
| Briscoe, J. I. | Langton, W. G. |
| Brownrigg, S. | Leader, J. T. |
| Bryan, G. | Lennox, Lord A. |
| Campbell, Sir J. | Lushington, C. |
| Childers, J. W. | Lushington, rt. hn. S. |
| Clive, E. B. | Mildmay, P. St. J. |
| Dalmeny, Lord | Morrison, J. |
| Denison, W. J. | Muntz, G. F. |
| Duncombe, T. | Muskett, G. A. |
| Elliot, hon. J. E. | Oswald, J. |
| Euston, Earl of | Paget, F. |
| Evans, Sir De L. | Parker, J. |
| Evans, G. | Pattison, J. |
| Fielden, J. | Pechell, Captain |
| Finch, F. | Philips, M. |
| Fitzpatrick, J. W. | Price, Sir R. |
| Fitzroy, Lord C. | Protheroe, E. |
| Greenaway, C. | Pryme, G. |
| Greg, R. H. | Rawdon, Col. J. D. |
| Grey, rt. hn. Sir C. | Rice, E. R. |
| Grey, rt. hn. Sir G. | Roche, W. |
| Hastie, A. | Russell, Lord J. |
| Hawkins, J. H. | Russell, Lord C. |
| Hill, Lord A. M. C. | Rutherfurd, rt. hn. A |
| Hobhouse, rt. hn. Sir J. | Salwey, Colonel |
| Hobhouse, T. B. | Scholefield, J. |
| Seale, Sir J. H. | Turner, E. |
| Sheil, rt. hn. R. L. | Vigors, N. A. |
| Smith, B. | Villiers, hon. C. P. |
| Smith, R. V. | Wakley, T. |
| Somerville, Sir W. M. | Warburton, H. |
| Stanley, hon. E. J. | Ward, H. G. |
| Steuart, J. | Williams, W. |
| Stewart, J. | Wood, B. |
| Style, Sir C. | Worsley, Lord |
| Teignmouth, Lord | Wrightson, W. B. |
| Thornely, T. | TELLERS. |
| Troubridge, Sir E. T. | Hawes, B. |
| Tufnell, H. | Ewart, T. |
| List of the NOES. | |
| A'Court, Captain | Granby, Marquess of |
| Ashley, Lord | Harcourt, G. G. |
| Baillie, H. J. | Hawkes, T. |
| Baring, H. B. | Hodgson, R. |
| Barrington, Viscount | Hogg, J. W. |
| Bentinck, Lord G. | Hope, G. W. |
| Blackbuvne, I. | Ingestrie, Viscount |
| Blair, J. | Irving, J. |
| Blennerhassett, A. | Kelly, F, |
| Botfield, B. | Knight, H. G. |
| Bradshaw, J. | Lascelles, hon. W. S. |
| Broadwood, H. | Lincoln, Earl of |
| Bruce, Lord E. | Lockhart, A. M. |
| Bruges, W. H. L. | Mackinnon, W. A. |
| Buck, L. W. | Mathew, G. B. |
| Buller, Sir J. Y. | Nicholl, J. |
| Burrell, Sir C. | Peel, rt. hn. Sir R. |
| Castlereagh, Viscount | Perceval Colonel |
| Clerk, Sir G. | Praed, W, T. |
| Clive, hon. R. H. | Pusey, P. |
| Cochrane, Sir T. J. | Richards, R. |
| Dalrymple, Sir A. | Sandon, Vicount |
| Darby, G. | Sheppard, T. |
| Darlington, Earl of | Somerset, Lord G. |
| De Horsey, S. H. | Sturt, H. C. |
| Dick, Q. | Thornhill, G. |
| Eliot, Lord | Vere, Sir C. B. |
| Estcourt, T. | Young, J. |
| Gaskell, J. Milnes | TELLERS. |
| Gladstone, W. E. | Goulburn, rt. hn. H. |
| Graham, rt. hon. Sir J. | Inglis, Sir R. H. |
§ House in Committee.
§ On Clause 3, which provides that a person making the solemn affirmation and declaration without having subscribed the preliminary declaration, shall be guilty of a misdemeanour, and, on conviction, be imprisoned and kept to hard labour for a period not exceeding six calendar months,
§ Mr. Finchobjected to the imposition of hard labour as part of the penalty; he thought the simple imprisonment would be quite sufficient, and he would therefore move as an amendment to leave out the words, "and kept to hard labour."
§ Mr. Haweswas willing to accede to the request of the hon. Member so far as to leave it optional with the judge; inser- 879 ting, therefore, the words "with or without hard labour;" but at the same time he was bound to tell the committee that this part of the bill had been deeply considered by a learned judge, who had thought this limitation proper.
§ The Attorney-Generalhad no prepossession in favour of hard labour as a punishment; and he thought that it ought never to be inflicted, because it was an infamous punishment, unless in infamous cases. Here, however, they had a party virtually guilty of perjury; and if ever this degree of punishment ought to be inflicted, this was the case in which it ought to be retained.
§ Sir Robert Peelsaid, that there were two certificates which must be perfected before the party could be exempted. First, there must be the certificate of two magistrates that the party was a moral and religious character, and having that certificate he must go to the quarter sessions, or such places as oaths of allegiance were taken, and there enter into the declaration. Now the party could produce the certificate of the magistrates, yet that alone would not be sufficient; he must also produce a solemn declaration, and that second never could be produced, because it must be entered in a book and filed in the court. He would ask the hon. Gentleman who introduced this bill, what would happen if a party, summoned suddenly as a juror or a witness, should have a conscientious objection to take an oath, and yet should not have made the preliminary declaration, would the hon. Member prosecute such a man?
§ Mr. Hawesreplied, that very point was embodied in a bill introduced last year, and objected to effectually by hon. Gentlemen opposite: but if the right hon. Baronet would allow him to put his name at the back of a bill to allow an immediate declaration, he would immediately draw a bill, and introduce it in the next session. He was afraid it was an appeal in vain.
§ Clause with amendments agreed to.
§ Upon the schedule,
§ Sir R. Peelsaid, that he objected to the bill now before the House, because he conceived that the result of it would be to allow every person called upon to give evidence in a court of justice to do so upon such a form of affirmation as he pleased to say was binding upon his conscience, The certificate required to be 880 produced, signed by two magistrates, of the good moral character of the man, was as objectionable as the rest of the bill, and it, in fact, destroyed the principle of the measure. He could understand a man entertaining a conscientious scruple to an oath, but to say that that scruple should not be attended to until the certificate of the religious character of the man was produced, which some difference in creed between him and the magistrate might prevent the latter from granting, would be going too far. He begged to point out these circumstances as defects in the bill, upon which it was impossible that, as an act, it could be carried out.
§ Mr. Hawescomplained that these general objections should be brought forward at so late a period of the discussion upon this measure as upon the schedule being proposed to be agreed to. With regard to the certificate, any person of known good character could obtain it from a magistrate upon the representation of two credible witnesses; the burden of certifying, therefore, not being thrown upon the magistrate from any knowledge of his own. This, however, was not an objection which must be fatal to the bill, and he thought that it ought not to be rejected upon such a ground. The same law which was proposed to exist in all cases had already been long in force with regard to Quakers and other separatists, and the evidence of persons of those creeds, which had been hitherto excepted from the general rule, had been received with the greatest confidence. He conceived, that the bill might be easily amended to suit the views of the House.
§ Schedule agreed to, and bill ordered to be reported.—The House resumed.