HC Deb 24 April 1850 vol 110 cc783-91

Order for Committee read.

Motion made, and Question proposed, "That Mr. Speaker do now leave the chair."


said, that, in moving that the Speaker should leave the chair, in order that the House might go into Committee on the Bill, he should act upon the understanding to which the House had come upon the second reading, namely, that the discussion was to be taken upon the question of going into Committee. He should therefore state, as briefly as possible, the grounds upon which the measure was founded. As the law stood at present, Quakers, Moravians, and persons called Separatists—of whom, by the way, he had never been able to discover one single congregation or member, although he had made very minute inquiries after them—were exempted from the necessity of taking an oath. And not only those, but, by the 1st and 2nd Vict., c. 77, every person who had ever been either a Quaker, a Moravian, or a Separatist, was likewise exempted, and merely obliged to make formal affirmation of the truth of what he was about to state. But there was a large party of religiously disposed persons belonging to the Church of England and other persuasions, who felt themselves compelled by what he believed to be an erroneous, but which they believed to be the true, interpretation of Scripture, not to invoke the name of the Deity upon any account whatsoever. He would beg to call attention to a few of the cases of hardship to individuals arising out of those conscientious scruples. There was an individual named Hoffstadt who had been imprisoned four years and a half, in consequence of his conscientious objection to being sworn. He was a bankrupt, and the law at that time required the last examination of a bankrupt to be taken upon oath. His case was so hard, and his character so excellent, that a good deal of sympathy was excited in his favour. At length a noble Lord in the other House took it up and obtained an Act, the effect of which was general, but it was really intended to apply to his case. By that Act the necessity of the oath was removed from the last examination, and the man obtained his release, but not until he had been four years and a half in prison. There was another case, in which a man named Harwood appeared to prosecute a man named Hetherington at the Old Bailey, in the year 1842. The prosecutor refused to be sworn, he having conscientious scruples, and the consequence was that the thief was suffered to escape, and the prosecutor was sent to prison. In another instance a man was called upon to prove a case of furious driving against a cabman, and, upon refusing to be sworn, he was committed for ten days to gaol, although, if the cabman had been convicted, it was very probable he would not have been condemned to so severe a punishment. Then there was the case of Miss Watson, whose petition he had presented that day. It had occurred only last year upon the Western Circuit. She was committed to pri- son for refusing to take an oath, and the culprit might have escaped, but that there was luckily other testimony upon which she was convicted. But there was one very grave case this year, in which, had murder been committed, the murderer would have absolutely escaped, as there would then have been no evidence whatsoever against him. It was that of an Independent minister who was taking a walk with his daughter, a child of about 14 years of age, whom he left for a few minutes upon the road. A Lascar rushed upon the child from behind the hedge, and attempted to violate her. Her father came up in time to rescue her; but, upon the prosecution of the Lascar, the father declined to take an oath, and had it not been for the discretion of the learned Judge who tried the case at the Old Bailey, he would have been committed, and the prisoner discharged. But the Judge desired the father to stand down, until he could see what other evidence could be produced, and the child's being sufficient to obtain the conviction of the prisoner, the father's was dispensed with. But, had the child been killed by the prisoner, there would have been no evidence against him; These were instances of public grievance. But there were many cases of private suffering arising out of transactions in the civil courts. In one case, a lady was called upon by both parties to an action to give her evidence. She declined to be sworn, and in order to save her from the consequences and to have the benefit of her testimony, both sides agreed to leave the matter to arbitration, on condition that she should pay the costs of both. She consented, and the costs came to between two and three years' amount of her income. So that for nearly three years she had no income, and was obliged to live upon her friends. He could multiply such instances, but these were sufficient to show that there was ground for the measure which he proposed. It should be observed that there was not one single instance of a prosecution for perjury having been instituted against a person examined upon affirmation; so that it was monstrous to say that any detriment to religion could be inflicted by the extension of its operation. In the present Bill be had divided the classes of persons who should be permitted to make affirmation in courts of justice, from those who should be permitted to give affirmation instead of oath upon accepting offices. Upon the former occasion he had been supported in the division which took place by fourteen hon. Members belonging to the legal profession out of the seventeen who voted. He trusted that the present Bill would be found still better entitled to their support. The former Bill, too, had received the approbation of the late and of the present Lord Chief Justice of the Queen's Bench in the other House. The only objection urged against it by the hon. and learned Recorder of London was, that persons of bad character often made statements when put upon their oaths that were widely different from those which they made when they were unsworn. But at present, persons who had so little conscience might avoid taking an oath by merely saying that they had formerly been Quakers, or Moravians, or Separatists; and therefore it was only for the religious that they would be really providing, seeing that the irreligious had nothing to bind them at present. Besides, the Bill would leave the question as to whether those persons who tendered only their affirmation should be examined or not to the discretion of the judge. The Bill was to extend to the colonies, and he would state one more set of cases which had occurred at Honduras. His informant was an Independent minister, who had been imprisoned six weeks for refusing to be sworn, and he stated that seven or eight other persons had been fined from 20l. to 30l. or 40l. for having the same conscientious scruple. For these reasons he called upon the House to give its sanction to a measure which would but extend the privileges which they had already conferred upon a small number of religionists.


had heard nothing to induce him to alter his opinion upon this matter. If it was so absurd, as had been stated, to have allotted to such an insignificant sect as the Separatists, or those who had been Moravians, the privilege of being heard in courts of justice without an oath, that law might be reformed, but it was a bad argument to say that it was necessarily to be extended. The hon. and learned Gentleman acted upon the notion that truth was to be insured by the fear of a penalty for false evidence rather than by the consciousness of an appeal to the Supreme Being. Now, this was both theoretically and practically false. All men had an instinctive dread of offending God, though they might brave the punishment of man. But, allowance to conscientious objection might go much further. A man might say, as some do say, that he had a conscientious objection to giving testimony at all against his brother man: was this man to be relieved of the duty? It appeared to him that when a man came into a court of justice, and said he was not willing to be sworn, it amounted to declaring that he would not execute that branch of the public service which, according to the law of the land, properly devolved upon him; it amounted to neglecting those duties which he was fairly bound to perform. The hon. and learned Gentleman opposite had stated the particulars of four cases; in only two of those cases, however, had the course of justice been interrupted. But how did his Bill provide a remedy for the evils of which in his speech he complained? Of his Bill it might truly be said that it left out the remedy. The hon. and learned Gentleman proposed that men should be sworn or not at the option of the Judge? Surely no person could seriously contend that the work of legislation ought to be confided to the Judges. Let them suppose a prisoner placed at the bar—let them suppose also that all the witnesses brought against him required to be heard on their affirmation. Let it be assumed that the witnesses for the prosecution declared their unwillingness to take an oath—was the Judge in all such cases to institute a preliminary inquiry as to the nature of the scruples entertained by the witnesses? If upon some special ground they were to admit that the scruples of any given individual were to be acknowledged as valid, and that his affirmation was to be received, were they then to institute an inquiry as to whether or not that man was a person to be believed upon his word when all the other witnesses in the case deposed upon oath? But after these witnesses had given their testimony upon affirmation, there would come the witnesses for the prisoners, all of them giving their evidence upon oath; the counsel for the accused would naturally contrast the one with the other, and take a very excusable advantage of the fact that his client's witnesses were sworn, and those against him were not. The prisoner's counsel would tell the jury that his witnesses alone spoke the truth, and that not a word which came from those on the other side was to be believed. As to giving a Judge the power of dealing with the question whether an affirmation might be substituted for an oath, he thought they ought to be careful not to embarrass the Judges by assigning to them any such heavy responsibility; and, looking at the Bill as a whole, he must be allowed to say that he feared its principles would not further the interests of the country or the interests of justice. In recommending this Bill to the House, it could not have escaped notice that the hon. and learned Member had called in to his aid the idea of a persecution, involved, as he imagined, in the necessity of taking an oath, instead of making a declaration. Surely there would be no fairness in designating as persecution the law which required Quakers who declined to enter the militia, to find a substitute. Quakers were, in such cases, obliged to pay a pecuniary fine; but who ever thought of calling that a persecution? The cases were analogous. When there was a public duty to be performed, and men objected to perform it, there was certainly no persecution in their being put to inconvenience on account of that refusal. Society could not go on if no penalty attached to the non-performance of public duties. The hon. and learned Gentleman had told the House, that upon the former division, he had had the support of fourteen lawyers. Now, he (Mr. Goulburn) entertained for the profession of the law a very high respect; but he would take the liberty of saying, that practical lawyers were not the persons best qualified to pronounce judgment upon such a question. He did not feel as much reliance upon their opinions in such a case as upon the opinions of experienced magistrates; and he believed that the great majority of the magistrates in that House would be found to have voted against the measure of the hon. and learned Gentleman. As far as experience went, he should say that his experience fully confirmed his belief that, unless they continued to insist on the taking of oaths, the ends of justice would be frustrated. He had often observed, when statements were made verbally, that they were, for the most part, loose and unguarded; but that when an oath was proposed, witnesses refused to swear to statements which they had very confidently uttered. Every man had a dislike to taking an oath—every man wished to avoid placing that strict restraint upon his language which a solemn adjuration imposed. If the House passed the Bill, any person who wished to avoid giving his testimony on oath could easily evade a duty which few men willingly undertook; and as for the enforcement of true testimony by the dread of a conviction for perjury, every one knew how extremely difficult such convictions were even in the least doubtful case. Then, as juries, would they allow men to go into the jury-box without being sworn, there to decide upon the lives, the liberties, the property of their fellow-men? Upon all these grounds, then, he should oppose the measure; and he now begged to move "that the Bill be committed that day six months."

Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day six months, resolve itself into the said Committee:"


fully concurred with his hon. and learned Friend the Member for the city of Oxford as to the importance of the subject, and the great influence which an oath had in the administration of justice. It was a safeguard of the highest value, but yet he thought it desirable that some such measure as the present Bill should be introduced; for the necessity imposed upon witnesses of taking oaths rendered it often extremely difficult to obtain evidence. If it were possible in all cases to know who the proper witnessess were, to bring them all into court to compel them to swear to the truth of their statements, then the ends of justice would be greatly advanced. But now some of the best and most trustworthy witnesses who came before courts of justice were persons whom nothing would induce to take an oath. The law at present accepted the affirmation of a Quaker, a Moravian, or a Separatist, but an Independent must be sworn. Now there were some Independents, and there were many other classes of our fellow-subjects who objected to taking an oath, and from the benefit of their testimony the community of this country was excluded. He wished to discover any intelligible principle upon which any class of religionists should be excluded from advantages which the Quakers, the Moravians, and the Separatists enjoyed. Was the right hon. Gentleman the Member for the university of Cambridge prepared to repeal the exemption from taking oaths at present enjoyed by certain privileged sects? He believed that the Legislature would never sanction such a proposal—shutting out, as it would, a large mass of testimony, without which the proceedings of courts of justice could not be carried on. It might be very well to talk of the duties that men owed to society; but if a witness believed that the duty which he owed to God was inconsistent with the taking of an oath, it would be most oppressive for any Legislature to endeavour to coerce him. He believed it generally happened that those who were the most scrupulous about taking an oath, were the persons most cautious and conscientious in giving their testimony. Society thus lost a great protection in disregarding the scruples of such men. He felt the force of all that the right hon. Gentleman the Member for the University of Cambridge had said as to the care that ought to be taken in securing courts of justice from being imposed upon by persons who wished to avoid swearing; and every Member who had experience of such things would call to mind the confidence and air of great satisfaction with which statements not on oath were sometimes made, and that when those who made them were called upon to swear to their statements, they immediately became subdued and cowed; but still he thought that with the provisions which the Bill made, the administration of justice might have the aid of evidence from men who scrupled to take an oath. At the same time he fully admitted that the exemption from taking an oath should be confined as nearly as possible to persons whose scruples were grave and real. He did not think that the mere declaration of a witness respecting his own scruples should be admitted, but that the Judges should take every opportunity of examining such witnesses and ascertaining the real cause of those objections to taking an oath. As to the Bill before them, he thought that the public interest required such a measure, and he should support it.


observed, that the effect of the measure would be to introduce two kinds of evidence—one upon oath and one upon affirmation—the effect of which would be most inconvenient. If men dissented from the doctrines of the Church, lot their opinions be known. If they resisted the law, let it not on that account be presumed that the law was in the wrong. He objected to the Bill on many grounds, and upon this amongst others, that it proceeded upon an assumption that men might be exempted from taking oaths without their coming under the head of any particular religious denomination, and be able to evade the law by merely stating that they objected to taking an oath. He never had heard a weaker case than that made on behalf of the Bill; and, as there were strong doubts with respect to the expedi- ency of the measure, he did think that the benefit of those doubts ought to be given to the existing state of the law.


said, that as the exemption extended to Quakers, Moravians, and Separatists, it would be unjust not to give the benefit of that exemption to the Independents.

Question put, "That the words proposed to be left out stand part of the Question."

The House divided:—Ayes 129; Noes 148: Majority 19.

List of the AYES.
Adair, H. E. Heywood, J.
Alcock, T. Heyworth, L.
Anderson, A. Hill, Lord M.
Armstrong, R. B. Hobhouse, T. B.
Bagshaw, J. Hodges, T. T.
Baines, rt. hon. M. T. Howard, hon. C. W. G.
Bass, M. T. Howard, P. H.
Bellew, R. M. Kershaw, J.
Bernal, R. Langsten, J. H.
Blake, M. J. Lascelles, hon. W. S.
Boyle, hon. Col. Lennard, T. B.
Brockman, E. D. Lewis, G. C.
Brotherton, J. M'Gregor, J.
Brown, W. M'Taggart, Sir J.
Busfeild, W. Marshall, J. G.
Buxton, Sir E. N. Marshall, W.
Carter, J. B. Masterman, J.
Cavendish, hon. C. C. Matheson, Col.
Cavendish, hon. G. H. Melgund, Visct.
Cavendish, W. G. Milner, W. M. E.
Cayley, E. S. Milnes, R. M.
Clay, J. Mitchell, T. A.
Clay, Sir W. Moffatt, G.
Clifford, H. M. Morgan, H. K. G.
Cobden, R. Morris, D.
Cockburn, A. J. E. Mostyn, hon. E. M. L.
Collins, W. Nugent, Lord
Crawford, W. S. O'Flaherty, A.
Crowder, R. B. Ogle, S. C. H.
Dalrymple, Capt. Osborne, R.
Davie, Sir H. R. F. Oswald, A.
D'Eyncourt, rt. hn. C. T. Pechell, Sir G. B.
Duncan, G. Pigott, F.
Ellice, rt. hon. E. Pilkington, J.
Ellis, J. Pinney, W.
Elliot, hon. J. E. Power, Dr.
Evans, J. Price, Sir. R.
Evans, W. Pusey, P.
Ewart, W. Rawdon, Col.
Fagan, W. Ricardo, O.
Fordyce, A. D. Rice, E. R.
Forster, M. Rehartes, T. J. A.
Fox, W. J. Romilly, Col.
Gibson, rt. hon. T. M. Romilly, Sir J.
Glyn, G. C. Russell, hon. E. S.
Grace, O. D. J. Rutherfurd, A.
Grenfell, C. W. Scrope, G. P.
Grey, rt. hon. Sir G. Seymour, Lord
Grosvenor, Earl Shafto, R. D.
Hanmer, Sir J. Simeon, J.
Hardcastle, J. A. Slaney, R. A.
Harris, R. Smith, M. T.
Hastie, A. Smith, J. B.
Hastie, A. Stansfield, W. R. C.
Headlam, T. E. Stanton, W. H.
Henry, A. Strickland, Sir G.
Thicknesse, R. A. Wawn, J. T.
Thompson, Col. Willcox, B. M.
Thornely, T. Williams, J.
Tollemache, hon. F. J. Wilson, J.
Townley, R. G. Wilson, M.
Trelawny, J. S. Wyvill, M.
Verney, Sir H. Young, Sir J.
Vivian, J. H. TELLERS.
Wall, C. B. Wood, W. P.
Watkins, Col. L. Bouverie, E. P.
List of the NOES.
Acland, Sir T. D. Graham, rt. hon. Sir J
Alexander, N. Greenall, G.
Arkwright, G. Greene, T.
Bagge, w. Grogan, E.
Bagot, hon. W. Guest, Sir J.
Baillie, H. J. Gwyn, H.
Baldock, E. H. Hale, R. B.
Bateson, T. Halford, Sir H.
Bennet, P. Hall, Col.
Beresford, W. Halsey, T. P.
Berkeley, hon. H. F. Hamilton, Lord C.
Bernard, Visct. Harris, hon. Capt.
Blackstone, W. S. Hayes, Sir E.
Blair, S. Henley, J. W.
Booth, Sir R. G. Herbert, rt. hon. S.
Bremridge, R. Hildyard, R. C.
Bromley, R. Hildyard, T. B. T.
Brooke, Sir A. B. Hill, Lord E.
Buck, L. W. Hodgson, W. N.
Buller, Sir J. Y. Hood, Sir A.
Carew, W. H. P. Hornby, J.
Chichester, Lord J. L. Hotham, Lord
Cholmeley, Sir M. Houldsworth, T.
Christopher, R. A. Hudson, G.
Clive, hon. R. H. Jermyn, Earl
Cocks, T. S. Jolliffe, Sir W. G. H.
Codrington, Sir W. Jones, Capt.
Cole, hon. H. A. Kerrison, Sir E.
Coles, H. B. Knox, Col.
Colvile, C. R. Lacy, H. C.
Compton, H. C. Lascelles, hon. E.
Conolly, T. Legh, G. C.
Corry, rt. hon. H. L. Lennox, Lord A. G.
Cubitt, W. Lindsay, hon. Col.
Deedes, W. Lockhart, A. E.
Denison, E. Lockhart, W.
Dod, J. W. Lopes, Sir R.
Dodd, G. Lowther, hon. Col.
Duckworth, Sir J. T. B. Lygon, hon. Gen.
Duncombe, hon. A. Mackenzie, W. F.
Duncombe, hon. O. Macnaghten, Sir E.
Duncuft, J. Mahon, Visct.
Dunne, Col. Manners, Lord C. S.
Du Pre, C. G. Manners, Lord G.
East, Sir J. B. Manners, Lord J.
Edwards, H. March, Earl of
Egerton, W. T. Meux, Sir H.
Estcourt, J. B. B. Miles, P. W. S.
Evelyn, W. J. Miles, W.
Farnham, E. B. Morgan, O.
Fellowes, E. Mundy, W.
Fitzroy, hon. H. Naas, Lord
Forbes, W. Newport, Visct.
Forester, hon. G. C. W Packe, C. W.
Frewen, C. H. Pakington, Sir J.
Fuller, A. E. Palmer, R.
Galway, Visct. Patten, J. W.
Gaskell, J. M. Peel, Col.
Goddard, A. L. Peel, F.
Gore, W. R. O. Pennant, hon. Col.
Perfect, E. Stuart, H.
Plowden, W. H. C. Stuart, J.
Plumptre, J. P. Tollemache, J.
Portal, M. Trollope, Sir J.
Powell, Col. Turner, G. J.
Prime, R. Tyrell, Sir J. T.
Richards, R. Verner, Sir W.
Seymer, H. K. Vyse, R. H. R. H.
Sibthorp, Col. Waddington, H. S.
Smyth, J. G. Walsh, Sir J. B.
Somerset, Capt. Walter, J.
Sotheron, T. H. S. West, F. R.
Stafford, A.
Stanford, J. F. TELLERS.
Stanley, E. Goulburn, H.
Stanley, hon. E. H. Newdegate, C. N.

Words added. Main Question, as amended, put, and agreed to. Bill put off for six months.