HC Deb 18 April 1849 vol 104 cc441-51

Order for the third reading read.


having moved the Third Reading of this Bill,


said, he wished to call the attention of the House to this Bill, which the hon. and learned Gentleman had moved should be read a third time. The Bill was extremely plausible in its title, and professed to pay attention to the religious scruples of certain individuals. It was promoted for the relief of gentlemen for whom he entertained the greatest respect, and who, therefore, were entitled to his respectful consideration; but neither of these circumstances would justify him in omitting to call the attention of the House to the dangerous principle which the Bill involved, or to the prejudicial effects it must ultimately have upon the administration of justice. He was one of those who thought that oaths, when properly administered, were very useful in securing satisfactory evidence, and the fulfilment of duties, and therefore he was not prepared to take the step of abolishing oaths in all cases; and still less was he prepared to take a step that would leave it for a man to say whether he would take an oath or not, and thereby open a door to fraud and falsehood. Without making any further preliminary observations, he should proceed to consider the provisions of the Bill. The Bill commenced by referring to the fact that different sects of Dissenters—entertaining conscientious objections to the taking of oaths—had been admitted by different Acts of Parliament to make their solemn affirmation. But what was the principle on which that indulgence was given? It was given because those persons belonged to particular sects that had a religious objection to the taking of an oath. It was on the ground alone of their being so bound that Parliament admitted them to make an affirmation. The Bill went on to say, that because this privilege was given to a certain class of Dissenters, it was expedient that the same relief should be extended to all persons who objected to take an oath. The hon. and learned Gentleman said by this Bill, that because they had given to Dissenters, whoso tenets prohibited them from taking an oath, a certain privilege, they were to give the same privilege to members of the Church of England, who subscribed the Article saying it was conformable to scripture that Christians should take an oath before a magistrate, provided it was consistent with the truth. He must say that very bad reasons had been given for the measure; and the reasons having failed, let them see what this enactment required. It was proposed that after the passing of this Act it should be lawful for any person to appear before any justice of the peace, with one credible witness, to say that he is of good character, and on that statement he is to have a certificate that his evidence shall in future be taken on affirmation. When an individual shall say that a man is of good character; that man on payment of half a crown is to be possessed of a privilege that will entitle him for ever after to be heard in a court of justice without taking an oath. He was to receive a certificate from the magistrate, stating that he is a person of good cha- racter, who conscientiously believes that taking an oath is prohibited by the law of God; but they did not empower the magistrate to inquire into that fact, though he was to certify from his own knowledge that he was a person who had a conscientious objection to take an oath. The party was to bring that certificate to the clerk of the peace, by whom it was to be filed, and a copy given to him; but at the period when that man was called upon to be examined, there might be no evidence of the handwriting to that document of the clerk of the peace. So that, if the name of the clerk of the peace were forged to the document, there might be no means of questioning the correctness of the certificate, though the man producing it was to be examined without taking an oath. That was, he thought, a sufficient objection to the Bill; but it was not one half of the objections he had to make to it. The man having obtained the certificate in the manner he had stated, that certificate was to be valid for ever after during the life of the individual. The man at the time of obtaining the certificate might be a person of good character; but his character might change; he might be convicted of an offence, and known to be notoriously ill-conducted—he might have no character at the time he came to exercise the privilege, but still his statement was to be considered as valid in a court of justice as the oath of a conscientious man, bound by the solemn obligation which an oath imposes. A man might rear up a boy, and be enabled from his good character to give him a certificate; but when that boy went into the world, he might become profligate; and yet on that certificate his statement was to be taken without oath. How could they expect that due respect would be paid to the administration of justice, when a man who received this special favour had violated the conditions on which it was given to him? When a man was permitted to enjoy the privilege intended for a good man, though he was directly the reverse, the effect must be to do a great injury to the administration of justice. He had known numerous instances in which men had not hesitated to affirm facts to which they would hesitate to swear if they were called upon; and he must say that the penalty which was proposed by the law to be imposed for any violation of the truth, namely, imprisonment or fine, was the most inadequate protection that could be enforced against parties violating it. They knew how counsel would uniformly advise with respect to cases of perjury, on account of the difficulty of proof; and the penalties proposed to be imposed by this Bill, though they might appear well on paper, were not much better than a piece of paper when they proceeded to act upon them. It would not, he thought, be just to a man upon trial to submit him to a tribunal having persons upon it possessed of a privilege of this description. It was said that men would not apply for this privilege except they had a religious objection to the taking of an oath; but it often happened that men were not very ready to examine their recollections as to what was past. They required to have a strong influence operating upon such men, to induce them to make an exertion to recollect all the circumstances they were about to depose to, and indolent persons by a new form of affirmation would be consequently released from that labour. By allowing to persons the liberty of departing from the truth, they would inflict a great injury upon the administration of justice. He trusted, therefore, that those parties who had charge of the administration of justice in this country would not allow a Bill of this character to pass. It would not only introduce an anomaly into the law, but afford the means by which a man might have the opportunity of injuring his neighbour. It conclusion, he begged to move as an Amendment that the Bill be read a third time that day six months.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."


regretted extremely that the right hon. Gentleman had taken this course of opposing the Bill on the third reading, and had not stated his objections at an earlier period. He believed the greater portion of his objection had reference to matters of detail which they might have disussed, and the measure might have been modified in Committee. He did not understand that the objections of the right hon. Gentleman applied to the whole of the Bill, and he thought he would be very bold if he said that he objected entirely to the principle of this measure. He thought few persons would be disposed to say that the law should remain as it was with respect to this subject. He begged to call attention to the state of the law in the reign of Charles II., and to a measure passed in the reign of William III., for the relief of Quakers. In the year 1708, they were exempted from giving evidence on oath, in all but criminal cases, and so the law continued up to the time of George IV. Down to the reign of George IV., the Quaker was not allowed to give evidence without oath, but not without protest, for these were the observations of Lord Mansfield on the subject in the case of Acheson v. Everett. That was a qui tarn action, and being one for penalties, it was considered whether, as it was in the nature of a criminal proceeding, a Quaker could be examined. Lord Mansfield said that a Quaker could be examined, and expressed his regret that they could not be examined on all occasions. The result of this state of the law was that, until it was altered, persons were perpetually imprisoned because they would not give evidence on oath. There was another sect, the Moravians, who, as well as the Quakers, refused to take an oath, and they were relieved; and then there was the case of the Separatists, which was most remarkable, as showing the extraordinary position in which they would now be placed if they refused to extend this relief further. The Act with respect to the Separatists was passed in the year 1833; and how many Separatists were there at that time? There were three congregations only in England, four only in Scotland, and sixteen only in Ireland. Three persons composed a congregation—so that the Act was passed to relieve nine Separatists in England, twelve in Scotland, and forty-eight in Ireland. In favour of the present measure they had petitions signed by hundreds of persons; and was he to be told that the relief which was given to nine Separatists in England, to twelve in Scotland, and to forty-eight in Ireland, was to be refused to several hundreds of their fellow-countrymen and countrywomen, who were liable (as had recently been shown at Exeter) to imprisonment if they refused to take an oath, because they did not add to their objection to take an oath some particular heresy which would entitle them to come forward and give their testimony without oath? They talked of giving a premium to dissent; but what greater premium could they offer to it, than to say "You shall be subject to imprisonment for refusing to take an oath, unless you add to that, that you are a Dissenter of a recognised sect." This was a great hardship to the person declining to take the oath; but the hardship did not press upon that individual only, it pressed also upon the community, when the evidence of such a party was lost. If a man were robbed, and if no witness were present but a person who refused to take an oath (that person not being a Quaker, Moravian, or Separatist), the party robbed would be deprived of his remedy against the robber. In referring to the law, he forgot to mention that, to make the climax of this absurd state of things, in the first year of the reign of Her Majesty an Act was passed declaring that not only Quakers and Moravians should be exempted from taking an oath, but every man who had been a Quaker, or had been a Moravian, was relieved from taking the oath. The right hon. Gentleman the Member for the University of Cambridge talked of character, and said that a man without character might avail himself of the privilege; but it appeared that if a man without any character at all could say he had been a Quaker or Moravian, though he had been driven forth from those sects for his bad character, he might at once be examined without oath. That must show the uncertainty in which their legislation would be involved if they did not carry further this principle, for the purpose of giving to the public the evidence of those parties who were indisposed to give their evidence in the present state of the law. The first grievance arose with the Quakers; then followed the cases of the Moravians and Separatists, and they relieved them; and they now had case after case in which the public had been deprived of evidence, and individuals had been punished in consequence of particular tenets held by them as a matter of conscience. Numerous cases had occurred in which great evils had been found to result from the operation of the law as it at present stood. One most remarkable case was that of a bankrupt, who was imprisoned for four or five years because he could not pass his last examination on oath, and he was only liberated by the passing of an Act in the 3rd and 4th Vic, which enabled bankrupts to pass their last examination without an oath. Another case occurred of a person having been run over by a cabman while furiously driving. The witness who saw the transaction had conscientious scruples to give his evidence upon oath; the prosecutor could obtain no redress; the witness was imprisoned, and the prisoner acquitted. The most recent case which had occurred was at the last assizes on the Western Circuit, where a lady of the name of Watson, of a most respectable character, refused to take the oath. After having communicated with a clergyman on the subject, and still refusing, she was at last, with great repugnance, committed by the learned Judge who presided. In civil cases similar grievances had occurred. In the case of Boddington v. Wood, a lady of the name of Ashby was called, who refused to be sworn, and, in order to avoid going to prison, it was finally arranged that the case should be referred to arbitration, when she could give her evidence not upon oath, she undertaking to pay all the costs of the suit up to that time, amounting to 150l.—more than the whole of her annual income. Several of the Judges felt deeply the unpleasantness of the situation in which they were placed by the operation of this law, and the Lord Chief Justice of the Queen's Bench would be perfectly satisfied with a witness stating, when about to be examined, that he had an objection to take an oath. The only reason why he (Mr. Wood) had adopted in his Bill the plan of obtaining a certificate before the witness gave his evidence, instead of allowing him to make a declaration of his unwillingness when put into the witness-box, was, that he was desirous of following the plan pursued in the Bill passed in 1840, thereby preventing a man saying on the spur of the moment, in order to evade speaking the truth, that he had an objection to take an oath. His having obtained the certificate would show that he had previously taken some pains and trouble in order to avail himself of the privilege. He was sorry to have heard the right hon. Gentleman the Member for the University of Cambridge state, that he had known instances of persons having affirmed what they would not have sworn to. In answer to that statement he would say, that, in all his experience, in every single instance where there had been a refusal to take an oath, it was by persons of the most unblemished character; he had not known of one instance having occurred of a villanous character refusing to take an oath. He had seen in his time some of the most villanous of witnesses; but he had never known any of them refuse to take an oath. He knew that it had been said that witnesses would state before Committees of the House of Commons, where they were not examined on oath, what they would not repeat before Committees of the House of Lords, where they were examined on oath. He denied that such was the case; at least in his experience of fourteen years before these Committees he had not found it to be the case. He hoped, therefore, that the House would consent to the third reading of the Bill.


said, that whatever doubt he might previously have entertained upon this Bill, it had been much removed by the hon. and learned Member for Oxford; because that hon. and learned Gentleman had not answered one of the objections which had been urged against it. The cases which he had brought forward in support of the Bill, would go as far as anything could, in his mind, to show that it ought not to pass. On what ground had he rested his measure? Not upon the conscience of the individual refusing to take the oath; but mainly upon the ground that the ends of justice might occasionally be defeated from the want of some person's evidence, whose refusal to be sworn got him imprisonment, whilst the party accused was in consequence discharged. How did the hon. and learned Gentleman deal with the main question? He went into an historical account of the reasons for effecting the alterations already made; and what did it amount to? Why, that heretofore the Legislature had dealt only with religious classes or sects. But this appeared to be a security that the scruple to take an oath was not one of a light or frivolous nature. The hon. and learned Gentleman did not seem to deal quite fairly with this subject, however; for after stating the number of Separatist congregations in England, Scotland, and Ireland, in the year 1833, he said that each congregation was composed of three persons, and that those congregations multiplied by three gave the whole number of individuals belonging to that sect in whose favour they had legislated. Now, did the hon. and learned Gentleman mean to give the House to understand that those congregations did really consist of no more than three persons each? He thought the hon. and learned Gentleman would hardly venture to say that; but from what he had stated, it was plain that he wished to lead the House to think so. No one who had had experience in taking the testimony from witnesses could for a moment doubt that a good many persons would make statements more loosely—he would not say falsely; but more loosely and highly coloured, when they made them as unattested statements, than when they made them upon oath. If it were necessary for the ends of justice that testimony should not be received upon oath, or that persons should not be compelled to do any thing that they did not like to do, why had not the hon. and learned Gentleman proposed to exempt persons from serving on juries who did not like to serve? No doubt it was a disagreeable thing to give testimony upon a point upon which the witness had to strain his recollection: no doubt it was also a disagreeable thing to have to serve those offices; but would the hon. and learned Gentleman propose to exempt any person from serving on a jury, merely because he had a conscientious objection to serving on a jury in a case, for instance, where the life of a man was at stake? For his part, if the principle of the hon. and learned Gentleman's Bill were adopted, he could not see where they were to stop. Again, if this measure became law, the noble Lord at the head of the Government might withdraw his Parliamentary Oaths Bill. He did not know if that were the intention of the hon. and learned Member for Oxford or not. [Mr. WOOD: No!] But if this Bill should become law, there was no doubt that the noble Lord might withdraw his Parliamentary Oaths Bill altogether. If he understood the principle of the measure it was this—that any person who went before a magistrate, and said that he had conscientious objections to taking an oath, should be allowed to make affirmation instead thereof; and in that case, he saw no objection why one of the hon. Members for the city of London (Baron Rothschild) who had not yet taken his seat in that House on account of certain conscientious objections which he entertained to a particular oath, might not, under this Bill, go before a magistrate and obtain his certificate, and come here and make a declaration.


But he must declare "upon the true faith of a Christian."


was not aware that it was necessary to make the declaration in such terms. He would go as far as any man in relieving the religious scruples of persons; but upon balancing the convenience and the inconvenience which would be attendant upon the present measure, he thought that to take each man's individual assertion, without anything to make it certain that his scruples were conscientious and religious, was a step which would be fraught with great injustice. If they took such a step as that, they must do away with oaths altogether.

Question put, "That the word 'now'

stand part of the Question." The House divided:—Ayes 70; Noes 46: Majority 24.

List of the AYES.
Adair, H. E. Marshall, W.
Aglionby, H. A. Matheson, J.
Armstrong, Sir A. Matheson, Col.
Baines, M. T. Morris, D.
Baring, rt. hon. Sir F. T. O'Connell, J.
Berkeley, hon. Capt. Pearson, C.
Berkeley, C. L. G. Pinney, W.
Bernal, R. Rawdon, Col.
Bouverie, hon. E. P. Rice, E. R.
Boyle, hon. Col. Romilly, Sir J.
Brotherton, J. Russell, Lord J.
Brown, W. Rutherfurd, A.
Cobden, R. Salwey, Col.
Dalrymple, Capt. Scholefield, W.
Duncan, G. Scully, F.
Dundas, Adm. Sheil, rt. hon. R. L.
Evans, W. Simeon, J.
Ewart, W. Smith, J. B.
French, F. Somerville, rt. hn. Sir W.
Gibson, rt. hon. T. M. Stansfield, W. R. C.
Glyn, G. C. Sullivan, M.
Greene, J. Tennent, R. J.
Grey, rt. hon. Sir G. Thicknesse, R. A.
Grey, R. W. Thompson, Col.
Hallyburton, Lord J. F. Thornely, T.
Harris, R. Trelawny, J. S.
Hastie, A. Tufnell, H.
Hayter, rt. hon. W G. Watkins, Col. L.
Hobhouse, T. B. Wilcox, B.
Hume, J. Williams, J.
Jervis, Sir J. Williamson, Sir H.
Kershaw, J. Wilson, J.
King, hon. P. J. L. Wilson, M.
Lewis, G. C.
M'Gregor, J. TELLERS.
Maitland, T. Wood, W. P.
Marshall, J. G. Buxton, Sir E.
List of the NOES.
Arkwright, G. Jolliffe, Sir W. G. H.
Bagge, W. Lindsey, hon. Col.
Baldock, E. H. Lygon, hon. Gen.
Bankes, G. Newdegate, C. N.
Barrington, Visct. Packe, C. W.
Beckett, W. Pakington, Sir J.
Bennet, P. Patten, J. W.
Beresford, W. Peel, rt. hon. Sir R.
Blair, S. Plumptre, J. P.
Bourke, R. S. Portal, M.
Brooke, Lord Richards, R.
Buller, Sir J. Y. Sidney, Ald.
Cobbold, J. C. Spooner, R.
Coles, H. B. Stafford, A.
Compton, H. C. Trollope, Sir J.
Duckworth, Sir J. T. B. Turner, G. J.
Edwards, H. Vyse, R. H. R. H.
Egerton, W. T. Waddington, H. S.
Fellowes, E. Walsh, Sir J. B.
Fitzroy, hon. H. Willoughby, Sir H.
Fuller, A. E. Worcester, Marq. of
Greenall, G.
Hale, R. B. TELLERS.
Harris, hon. Capt. Henley, J. W.
Hood, Sir A. Goulburn, H.

Main Question proposed.

Upon the Question, "That the Bill do pass,


admitted that he was taking an unusual step in opposing the Bill at this stage; but the extraordinary course pursued by the Government compelled him to do so. The Bill had reached the third reading without any opinion being expressed by them on the measure; and although the Attorney General was present when the right hon. Member for the University of Cambridge and the Member for Oxfordshire, both men of great weight in the House, had expressed an opinion that it would defeat the ends of justice, not a word had he said in answer, but the Members of the Government voted in a body for the Bill. He (Captain Harris) had a strong objection to the measure. A case occurred at Southampton last week: a rogue attempted to swindle his brother's widow out of some property, and employed counsel; upon the oath being administered his conscience pricked him, and he evaded kissing the book by touching his thumb with his lips, upon which his counsel threw up the brief.

And it being Six of the clock, Mr. Speaker adjourned the House till To-morrow without putting the Question.