§ The Baron Lionel Nathan de Rothschild having come to the table, Mr. SPEAKER acquainted him that the House had yesterday made the following Order:—
§ "Ordered—That Baron Lionel Nathan de Rothschild, one of the Members for the City of London, having presented himself at the Table of the House, and having previously to taking the Oaths requested to be sworn on the Old Testament (being the form which he has declared at the Table to be most binding on his conscience), the Clerk be directed to swear him in on the Old Testament accordingly."
§ Whereupon the Clerk handed to him the Old Testament, and tendered him the Oaths; and he accordingly took the Oaths of Allegiance and Supremacy, repeating the same after the Clerk; the Clerk then proceeded to administer the Oath of Abjuration, which the Baron de Rothschild repeated after the Clerk as far as the words, "upon the true faith of a Christion;" but upon the Clerk reading those words, the Baron de Rothschild said, "I omit those words as not binding on my conscience;" he then concluded with the words, "So help me God!" (the Clerk not having read those words to him), and kissed the said Testament.
§ Whereupon he was directed to withdraw.
§ MR. HUME
said: I rise to order, Mr. 487 Speaker; and I rise to order upon this ground. As I understand from you, you have directed the hon. Member for the city of London to retire. He has taken the oaths at the table. [Loud cries from the Opposition of "No, no!"] He has taken the oaths at the table. ["No, no!"] He has, I repeat, taken the oaths at the table. If Gentlemen will hear what I am saying, they will hear me assert that the hon. Member has taken the oaths in that form and in those words which are most binding upon his conscience. The vote which the House came to last night expressly states that he should do so, as he had previously declared he would use such words as were binding upon his conscience. Having done that, he has complied with the requisition of the House, and therefore I object to his being directed to retire. I shall conclude by moving that the hon. Member do take his seat.
§ MR. SPEAKER
The hon. Member rose to order, and he cannot propose that Motion. I directed the hon. Member for the city of London to retire, because he did not take the words in the last oath which are prescribed by the Act of Parliament. I therefore desired the hon. Member to withdraw, in order that the House might come to a decision upon the case.
§ SIR F. THESIGER
then moved—That Baron Lionel Nathan de Rothschild, one of the Members for the City of London, having refused to take the Oaths prescribed by Law to be taken before a Member can sit and vote in this House, Mr. Speaker do issue his Warrant to the Clerk of the Crown, to make out a New Writ for the electing of a Citizen to serve in this present Parliament for the City of London, in the room of the said Baron Lionel Nathan de Rothschild.
§ Motion made, and Question proposed accordingly.
§ MR. ANSTEY
said: I do not know whether this is the proper time for me to move the resolutions of which I have given notice. I will not, of course, stand in the way of the business of the House; but I wish to know whether it is competent for me, upon the Motion of the hon. and learned Member for Abingdon, to move the two resolutions of which I gave notice last night.
§ MR. W. P. WOOD
My hon. and learned Friend the Member for Abingdon 488 has moved for a new writ for the city of London, and he has not vouchsafed to state to the House any reasons for the Motion. I shall take leave to move an Amendment before I sit down—that the seat of the hon. Member is full. I apprehend that this is a question which is of extremely deep importance to the privileges of this House, and one which not only concerns the privileges of the House, but concerns most deeply the country at large, and the rights and privileges of the electors of this kingdom. Sir, the electors of London have, I think, shown exemplary forbearance throughout the whole of this matter. It has been no wish of theirs to try the question in any way which would subject the House to that which seems to be more dreaded than, I confess, I think the House of Commons ought to dread it—the possibility of a difference of opinion between this House and any of the courts of law. The electors of London were quite satisfied so long as they were convinced that there was an intention to have the question fairly brought before the consideration of both Houses of Parliament. They were quite content not to insist upon a right which any party could question; but though they believed it to be their right to send Baron de Rothschild to this House, and though they believed it their right that he should take his seat in the mode in which we now insist he has taken his seat, yet they were perfectly ready to have the question removed from and placed beyond the possibility of all doubt, if there had been really any serious effort made to bring it to that issue. But, Sir, what has happened? A Bill was brought forward in the first instance, which would have removed and cleared away all doubts. It was passed by a large majority of this House, but it was rejected elsewhere. The Baron de Rothschild, with that straightforward conduct which he has pursued throughout, thought it right upon that decision to resign his seat into the hands of his constituents; he thought it right to lay the case again before the electors of the city of London, and to say to them, "You have elected a man as to whose power to take his seat it is said doubt exists, and an attempt has been made to clear it from all possibility of doubt; but that attempt having failed, I wish to know whether it be your intention to send me again as your representative, to contest the question?" The answer of the electors was, by an immense majority, in the affirmative, 489 That being so, they waited patiently another year. In that year, another Bill was passed by a considerable majority through this House; but it was again rejected. The electors waited, perhaps, too patiently, for this third year. In the mean time, some facts had transpired with regard to the admission in a much stronger case, as I shall demonstrate before I sit down—the admission of Mr. Pease to sit in this House without taking the prescribed oaths. The circumstances of that case had only recently transpired, because unfortunately the records of them were burnt or destroyed during the fire which consumed the Houses of Parliament; and consequently full information of them only accidentally oozed out at the beginning of this year. Upon that information being obtained, it struck me, and it struck others also, who were competent to advise upon the subject, but who were not under the same influences that Members holding seats in this House might be, but who could give calm and deliberate counsel, that there were most important features in that case which deserved to be sifted and investigated as forming a precedent. I, therefore, as an elector of the city of London, moved for a Committee in order to obtain all the information and light which could be afforded upon the subject. In the course of that investigation I was precluded—and I complain of it in no way whatever—from offering in the report a single observation upon any of the facts that might be obtained. The report, therefore, I admit seems to be a not easily intelligible report; still it is intelligible to those who can give calm and continued attention to the subject, though it is not easily intelligible, from there being no less than some seven or eight and twenty Acts of Parliament bearing upon the point. Mr. Pease's case was investigated; and I shall be able to show the House from the report of that case, that under the existing state of the law, the House is not called upon to take any active steps in this matter as they did in Mr. Pease's case, but that, by what has taken place here now, the oath has been duly taken, and that whether duly taken or not, the seat is unquestionably not vacant. There are two points which the House will bear in mind—namely, that it is one thing to determine that the oath has been duly taken, and another that the seat is vacant. As I have already said, a Bill was brought into the House upon this report; and again relying upon the same forbearance of the electors of 490 London, we have shown no anxiety whatever to precipitate the House into a collision either with the other House on the one hand, or with any court of law upon the other. They (the electors of London) are persons who have all along, as a body of electors, been distinguished and remarkable for their calmness. No body of electors in the kingdom have shown themselves more remarkable in this respect. But when they found, at the close of the Session, that the Bill which would solve and settle the question was about to be withdrawn, it was impossible the electors of London could remain in such a position during the whole of the third Session without bringing the case to a distinct issue. I am sorry to be obliged to enter into a legal argument, for it is always an irksome task; but I hope to be able to place the case in such a clear and distinct point of view that I think I shall carry some hon. Members with me from the opposite side, and I do not despair even of the noble Lord, who pronounced an opinion upon the subject before it was argued. I say I do not despair of carrying conviction to every mind, first, that this oath has to every intent and purpose been properly taken; but, secondly, if that be not perfectly established to the satisfaction of every Member of the House, that, upon the statutes, there is no vacancy in the seat. In order to arrive at this we must first of all divide the oaths into two distinct classes; and I will take the second point first—that with regard to the alleged vacancy in the seat—because it will place the House in the position of seeing how much they will be conceding if the proposition of the hon. and learned Member for Abingdon be agreed to. The oaths must be divided into two classes with regard to this question, namely, those of allegiance and supremacy on the one hand, and that of abjuration on the other. By the statute 30th Charles II., the penalties were enacted which now regulate the oaths of supremacy and allegiance; that is to say, they are regulated by reference to the Act 30th Charles II. in this way. The statute 30th Charles II., directs the oaths to be solemnly taken at the table. The 1st William and Mary, c. l, repeals in words the Act 30th Charles II., but re-enacts it to the extent of the penalties by saying that these two oaths should be taken under the penalties of the statute of Charles II. These penalties are clearly and distinctly stated. If those oaths had not been taken, it is clear the seat would be absolutely va- 491 cant. But nobody has any doubt but that the two oaths in question have been properly taken. I need not argue that, for they were sworn to in the mode directed by the House. Now the penalty, if they had not been taken (page 6, Report), was, that the party not taking them, should be disabled to sit and vote in the House of Commons. He should "be deemed and adjudged a Popish recusant convict," and "disabled from sitting and voting in the House of Commons, then and in every such case without any conviction or other proceedings;" and "the place or places for which they or any of them were elected is hereby declared void; and a new writ or writs shall issue out of the High Court of Chancery by warrant or warrants from the Speaker of the House of Commons for the time being." Mark how clear the Legislature is, when it is intended you should move for a new writ. It does two things. At first it declares that the seat shall be void as if the party had never been elected; and then it says that a new writ shall be moved for. But now comes the oath of abjuration; and with regard to this oath the case is remarkably different. In the first place, you have the 13th Wm. III., c. 6 (Report, page 11); and the penalties which that Act prescribes if the oath of abjuration be not taken, are, that "every person so offending shall from thenceforth be deemed and adjudged a Popish recusant convict to all intents and purposes whatsoever, and shall forfeit and suffer as a Popish recusant convict," and "shall be disabled from thenceforth to sit or vote in either House of Parliament." Let the House mark these words—" shall be disabled from henceforth to sit or vote in either House of Parliament." Upon these penalties I can quite understand the hon. and learned Gentleman the Member for Abingdon raising an argument—though not, in my judgment, a valid one—and saying that a Member who is disabled by statute is in the position of a Member whose seat is void; and that, therefore, a new writ must be moved. But the oath of abjuration, as settled by the Act of William, was altered by the Act 1st Geo. I., c. 13 (Report, page 16); and the difference is very remarkable. It is stated by the Committee, that by the 17th section—The penalties are precisely the same in respect of Peers or Members of the House of Commons not complying with the provisions of the Act, as those contained in 13th William III., c. 6, except that the declaration that the offender shall be deemed a Popish recusant convict, and shall forfeit and suffer as such, and shall be disabled 492 from holding or executing any office or place of trust, civil or military, is omitted.But I am obliged to plead guilty to an omission from the report here, for there was another important variation. The Act of George omits the disability to sit and vote in Parliament. The House will find an important difference between the 17th section of it and the Act of William. The 17th section says that "any such person so offending shall be disabled," and so on; but it leaves out the words "disabled to sit and vote in Parliament." The House will see how strong this is with regard to the seat being void. You have it in the Statute of Charles, that if the party do not take the oaths of allegiance and supremacy he forfeits his seat; it is void, and a new writ may be moved for. When we come to the oath of abjuration in William's Act—and recollect this Act was passed at a time when a single vote might have been of the greatest consequence, for William was then upon his deathbed—it was thought necessary by Parliament to say, that persons refusing to take it should be disabled to sit and vote; from which it might be arguable that a new writ should be moved. But when you come to the Act of George I., when Parliament reconsidered the whole question, they deliberately omitted this disqualification. They came to a deliberate conclusion, that the party should not be so disabled and disqualified. They altered the oath. The old penalties therefore could not apply. They enacted a new oath, and rejected several of the former penalties. They rejected the penalties attaching to Popish recusant convicts—the disability for civil and military office, and disability to sit and vote. I say, therefore, that the oath of abjuration, as it has been taken by the hon. Member, does not disqualify him from sitting and voting in this House. He may be subject to penalties for sitting and voting, which any man may be entitled to recover, though I would not recommend any one to try the question in a court of law, but unquestionably he is not debarred from sitting and voting. I say, then, that this is tantamount to a legislative declaration that the Baron de Rothschild is not disabled from sitting and voting. I have now dealt with the question as to the new writ; and I will proceed to deal with my Amendment, that the seat is full. The question arises in this manner. Has the hon. Member for the city of London taken the oath of abjuration or not? The whole question, 493 I apprehend, will turn mainly upon, this—whether these words, "upon the true faith of a Christian," are a portion of the adjuration or the invocation by which he sanctifies the oath, or whether they are a declaration and statement of Christian faith contained in the body of the oath. If they be words of adjuration, I have already shown the House, in the debate yesterday, and I shall only refer to it now, the universal concurrence of jurists of every country, beginning with the Digest, that when an oath is taken the only question is, not how it is sworn, but whether the thing be sworn or not. That is the principle contained in the declaratory Act at the end of the report; and the questions you have to ask are, has an oath been taken, and has it been taken with a solemnity that binds the party? If it has, then, to all intents and purposes, it is sufficiently well taken. Just let the House mark the case of the Quakers; for that will show most distinctly and plainly that these words are not part of the oath by legislative declaration, and that they are not in any sense the thing the man swears to, but the mode the man swears by. That is in substance my proposition. You must distinguish the two parts of an oath into what the man swears to, and what he swears by. But just see how the case stands with regard to the Quakers. It is this—you first of all had the general statute of 7th and 8th William and Mary. c. 34 (Report, p. 9), which is—An Act that the solemn Affirmation and Declaration of the People called Quakers shall be accepted instead of an oath in the usual form.After reciting thatDivers Dissenters, commonly called Quakers, refusing to take an oath in courts of justice and other places, are frequently imprisoned, and their estates sequestered by process of contempt issuing out of such courts, to the ruin of themselves and families,It enacts that, after a given day—Every Quaker who shall be required upon any lawful occasion to take an oath in any case where by law an oath is required, shall, instead of the usual form, be permitted to take his or her solemn affirmation or declaration:Which saidSolemn affirmation and declaration shall be adjudged and declared to be of the same force and effect as if such Quaker had taken an oath in the usual form.Now, let the House pause here. Just see what you have done by this Act. You had taken this step, that whereas an oath had always hitherto been required, you indulged this sect with the peculiarity of 494 permitting them to make affirmation instead of an oath. All the Act could do was this—it could only excuse them from "swearing" to anything in the oath contained. It is impossible to say the Act would justify a Quaker in omitting any part of the substance of the oath; it could only justify him in making a declaration in lieu of the oath, just as the common law allows Jews to swear in courts of justice in their own particular form in the place of the ordinary oath. You then come to an Act of Anne, which is of considerable importance. It is the Act 6th Anne, c. 23. This was an Act solely relating to a special case. It related entirely to Scotland. It was only to relieve the Quakers in a special case; and it enacted that the oath of abjuration should be taken with regard to certain matters in Scotland. Then comes the clause relating to Quakers—That any person who shall refuse to take the oath hereinbefore recited, or, being a Quaker, shall refuse to declare the effect thereof upon his solemn affirmation, as directed by the Act of William, he shall not be capable of giving any vote for the election of any Member to serve in the House of Commons, for any place in Great BritainHow then does the case stand here? So far as I have gone, the Quaker would be precisely in the situation of Baron de Rothschild. There is the oath of abjuration, and there is an Act of William III., saying he may make affirmation instead of swearing, just as Baron de Rothschild wishes to swear in one form rather than other. The Act of Anne does not say the Quaker may omit a single syllable, but that he shall declare the effect of the oath. What then follows? Why, that if the oath be carefully looked to, we find not only the words "upon the true faith of a Christian," but also in the middle, several times, the words "I swear." It was natural, then, there should be some doubt as to the best way of taking the declaration of its effect by a Quaker; and it was necessary to deal with the difficulty. Then came the statute of the 1st George I (following that of Anne) c 6, which said that several disputes had arisen concerning the effect of the abjuration to be taken by the people called Quakers upon their solemn affirmation as directed by the Act of Anne; and for preventing the like inconveniences in future, it enacted—That in all cases, wherever the effect of the said abjuration oath may be legally tendered or required of the said people called Quakers, or any 495 of them, he or they shall take the effect thereof in the following words.The form is then given, and it concludes with these words:—And I do make this recognition, acknowledgment, renunciation, and promise, heartily, wilfully and truly, omitting the words 'upon the true faith of a Christian.'We have here, then, a distinct legislative declaration upon the subject I set out with. I asserted that the whole effect and substance of the oath is embodied in the oath without the words "upon the true faith of a Christian." You have the thing to be sworn to distinguished from what it is sworn by. So says the Legislature. So does the Legislature clear all doubts. The Quaker does not use these words. But why was the Quaker excused from using them? Unless they were words he swore by, he had no pretext for being excused, nor had he the slightest pretence for omitting them. Therefore, if to affirm on the true faith of a Christian was objected to by Quakers, and that was not held an essential part of the substance of the oath, it was clear that they were free to except those words, and that by excepting those words they got rid of the difficulty. The Legislature said, "We will split the oath into two—the thing to be sworn to, and the thing to be sworn by; we will excuse the Quaker from swearing, because he says he won't; we will make him however affirm the substance of the oath, and adhere to it like anybody else." If the thing stood there, I say it would be utterly beyond all cavil or dispute; if it rested there, it would be unquestionable that those words were words of adjuration, and did not affect the other part of the oath, which contains its whole substance and effect. I will go on now to see how you dealt with the case of Mr. Pease, arising under the state of things which I have just described. Up to this moment you had, after all, only the Act, which said that difficulties had arisen under the Act passed in the 6th year of Queen Anne—a local Act referring to certain transactions in Scotland—which difficulties were cleared away by a special statute. But afterwards the Legislature was obliged to enact a new affirmation for Quakers, and for this reason: The Quakers, very naturally, were not altogether pleased with that form which the Act of William III. provided; it began by declaring, "in the presence of Almighty God." The Quakers did not like that form, it seemed to them some- 496 thing like an oath; and accordingly you will find that in the reign of George I. they obtained relief from that particular difficulty by an Act which not only removed that difficulty, but went on to relieve them from any other difficulties that might occur—I mean the Act of 8th George I. c. 6. Some reliance was placed on that Act in Mr. Pease's case; but it will be found that it by no means clears away any difficulties that arose therein. It is called an Act for relieving the people called Quakers from any difficulties in taking oaths in cases where oaths are by law to be taken. It recites the form of abjuration laid down in the statute of William III., the inconveniencies that had been found to arise respecting its use, and says—Whereas the inconveniencies experienced by the people called Quakers in taking declarations are not sufficiently removed, be it enacted that in all cases where by law any Quaker is required to subscribe the declaration of fidelity in the form mentioned in the Act of the 1st year of His present Majesty, or to make a solemn declaration or adjuration in the form provided by the Act of the 7th and 8th of William III., or to take the abjuration oath in the manner prescribed by the Act passed in the 1st year of His Majesty's reign"—Here I will pause to observe that that Act only remedied a special grievance which subsisted under the Act passed in the 6th year of Queen Anne, and it says—That in order to avoid the difficulties that have arisen under the Act for remedying this grievance, the Quaker, when he is required to take the oath of abjuration, shall take this form, instead of the form prescribed by the Act 1st George I.The words of the form there given differs from the words given in the Act of William, but still they do not contain the words, "on the true faith of a Christian;" another proof that the substance of the oath is not affected by those words. But in Pease's case you did not stand on the Act of the 6th year of Queen Anne, nor even on the statute of George I.; you stood on an abjuration oath totally different in form prescribed by the Act 6th George III. c. 23. When Mr. Pease came to the table to be sworn, his abjuration could not be that provided by the statute of George I., because that form spoke of different things from those mentioned in the Act 6th George III. It spoke of the Pretender James, and the dangers arising from his machinations, and on account of this, the Act 6th George III. was passed, totally altering the form. When Mr. Pease came up to 497 the table, you could not point to any form of words enabling you to dispense with the oath, except that of the Act George I.; and since that gave you a totally different form, not corresponding with the form in the Act 6th George III., it was impossible for Mr. Pease to take his scat, unless you went back to the old Acts, which said generally that Quakers may affirm instead of swearing. I do not complain of the decision in Mr. Pease's case; I argue on the assumption that it was right; but I say that that being right, it is impossible for the House to escape the conclusion that the oaths have been taken in this case. When Mr. Pease came to the table, he could not show in the Statute-book any form of declaration verbally and identically the same with that he wished to make, and which he ultimately did make. He could only show the old declaration of the statute of George I., which was totally inapplicable to the then state of things, and he relied on the general principle that Quakers may affirm, and are excused from swearing, and that not by the words of the Acts, but because, from the force and analogy of the Acts, they may be allowed to affirm instead of swearing. Upon that principle alone, I contend, this House proceeded, and seated Mr. Pease. We have Mr. Pease's evidence before the Committee that a new form of declaration was prepared for him, a totally new form. That is most important when you look to the form which Baron de Rothschild has now subscribed at the table of the House. Mr. Pease came to the table of the House in virtue of a resolution passed by the House not turning on any special form, which was this:—That it appears to this House that Mr. Pease is entitled to take his seat on making a solemn declaration and affirmation to the effect of the oath directed to be taken.There was no law whatever which allowed the House to do that, unless you reasoned thus: "Quakers are allowed to affirm instead of swearing; 'upon the true faith of a Christian' is swearing; they, therefore, may be allowed to take the oath of abjuration without those words, on the true faith of a Christian;' they may take the effect and whole substance of it, and if they do that, they are within the statutes which enable them to take the effect and substance." Well, the resolution I have read was passed by this House. Now, I say, that is the; whole question. The whole question we 498 have to argue is this, has Baron de Rothschild sworn the oath? I say the oath; a Quaker was obliged to affirm the substance of the oath—he had only liberty to escape from swearing; and, therefore, because he might escape from swearing, he was allowed to escape taking the words "on the true faith of a Christian." But Baron de Rothschild says, "I wish to take the oaths on the Old Testament;" the House says, "You have a right to swear on the Old Testament;" he then says, "Those words are not binding on me, and are not part of my mode of swearing; they are not binding on me, but I have done all that the Quaker has done, and more, yet you have given the Quaker greater liberty than me. Put me in the position of the Quaker to this extent; you let the Quaker affirm, and by your statutes and resolutions doing that, you have told us what affirmation is and what swearing is; you have told us that 'on the true faith of a Christian' is a form of swearing, and all that I ask is not to be called upon to swear in a form of words which is not applicable to my case." It has already been shown, by the constant dictate of all the celebrated authorities from Augustine downwards, as well as from the solemn judicial decision of Lord Hardwicke in the case of Omychund and Barker, which has ever since been held sound law, that all you have to require from a man who comes to be sworn is, that he shall be sworn by an oath attesting the existence of a Deity who will avenge the falsehood if he shall swear falsely. Every lawyer is aware that you are not even allowed to ask a man whether he is a Christian, or whether he believes the Gospels. The only questions you are permitted to ask arc, "Do you believe in a God, and in a future state of rewards and punishments?" When you find, then, words from which you have liberated the Quaker, simply because they constituted a form in which he refused to pledge himself by oath, you cannot refuse the Jew who has taken the oath omitting simply those words of adjuration. Now, we come to the declaratory statute of Victoria, which really only enounces what was the common system of jurisprudence all over Europe, and what was the common system of jurisprudence in this country. What was this? That in all cases where an oath may be lawfully administered to any man, whether as a juryman or a witness, or on his appointment to any office, or on any occasion whatever, such person is 499 bound by the oath so administered if administered in such a form as he declares to be binding upon his conscience. Now, Baron de Rothschild has taken the oath in the form and with the ceremony which he declares to be binding upon his conscience. The House is now in a stronger position than that in which it stood in Mr. Pease's case. In that case too it might apprehend, as here, some danger of that so-much dreaded conflict with authorities out of doors. They might do so, but they were not deterred by it; they boldly did what they thought right in Mr. Pease's case, and seated the Member returned by the constituent body. What was this dreaded contingency? Does it not present itself in an hundred cases? A gentleman is petitioned against for being a contractor; the House determines he is not; but yet he may be sued, and he is liable by statute to a penalty of 400l. or 500l. if he sits, being a contractor. The court of law is not bound by the decision of the House on the case, and so the contingency occurs immediately. I say that this is a danger which cannot be avoided, when the Legislature enacts matters which concern this House and the public, and on which it is necessary for the House and for the ordinary judicatures to come to a conclusion. The House must take upon itself to decide the matter one way or the other, and ought to do it, I submit, quite irrespectively of what may be the ultimate decision of a court of law on the subject, of course endeavouring to decide it according to law, but not having any fear or dread of doing that which they conceive to be consistent with law and with the justice of the case. But the argument of those who oppose Baron de Rothschild's claim is this; they say that the Act 6th George III., under which the oath of abjuration is now administered, enacts that the oath shall be administered henceforth (abrogating the statute of George I.) in such form and manner as hereinafter set forth; and it is said that "form and manner" means totidem verbis. But those who maintain this are in a great difficulty. We do not swear to obey King George III., which is the form in the Act; we none of us swear to that; we swear to obey Queen Victoria. It is remarkable that in the courts of law this change was simply the act of the administering officer; but this House was not quite so easy. This House, on the accession of Anne, appointed a Committee to say how they were to deal with the oaths prescribed to be taken by the 500 statutes of William III. That Committee recommended very large and extensive alterations in the oaths, all of which alterations simply came to this—that the oaths are to be administered mutatis mutandis. But if the oaths are to be administered mutatis mutandis, we get out of the otherwise insurmountable difficulty which embarrasses those who hold that they are to be administered totidem verbis. Mutatis mutandis, I say, can only mean, changing that which the nature and reason of the thing requires you to change. The nature and reason of the thing requires you to change the name of the existing Sovereign; in the same manner the nature and reason of the thing requires you, when you are swearing a Jew, to omit the words, "on the true faith of a Christian." Is there any one who can be absurd enough to defend a position so preposterous as that you should ask a Jew to be sworn "on the true faith of a Christian?" Baron de Rothschild has sworn on the Old Testament, as he was most properly allowed to do; and a now case having arisen, are we to be told that the House may not act as circumstances require? Lord Hardwicke had none of these scruples; he dashed out with one stroke of his pen the words "upon the Holy Gospels," and substituted "in such manner as the witness shall acknowledge binding." We have an over-scrupulous nicety prevailing in this House, I have observed, much beyond what prevails in courts of law, in which hon. Members have got an erroneous notion that niceties and refinements are carried to an extravagant decree of technicality. The consequence is, that when legal questions come before Local Committees, there is a reverence for technicalities far exceeding what prevails in any court of law. As the Chief Baron says, in Omychund v. Barker, "when a court finds anything positively and precisely laid down by the existing law, it must decide precisely according to the existing law; but if it finds a doubt existing, or a new case arising, it has recourse to the fountains of law, the principles of reason and common sense." The courts of law continually deal even with statutes in this way. There was a statute—now repealed—with respect to wills, enacting, in the most positive terms, that every person to whom a legacy was given, and who should be a witness, should have the will declared void as respected him, without any exception whatever. The courts of law, in examining the statute, asked what was the reason 501 of it? The ground was, to prevent inconvenience of wills relating to real property being set aside, by a small legacy to any of the witnesses rendering them incompetent as parties interested; tin-Legislature said, in order to prevent the enormous inconvenience of everybody thus losing the whole property to which he is entitled under the will, we will take away the individual's property in the legacy, and then he will be an unexceptionable witness. But a case arose of a will of personal estate, and the courts of law pronounced the rule inapplicable to this class of cases, and said that the parties should have their legacies notwithstanding the words of the statute were general. That is the way in which, as I wish the House to see, the courts act, on the common sense and reason of the thing when a doubtful point arises. Well, suppose this case then to come before a court of law—they find the words, "on the true faith of a Christian" in the oath; a Jew has refused to take the oath in that form, but he has taken it in his own. They will ask, what was the occasion of this law? Was it levelled at the Jews? Why, no; they look at the meaning of an Act, and in order to discover the true meaning of an Act, and construe it properly, I admit you cannot go out of it; you have no business with anything extrinsical. You must look then at its contents; and you find that if the Jew does not take the oath in this manner and form, the Act pronounces him a "Popish recusant convict." I say, then, that any court of law in England would be perfectly justified in coming to the conclusion that in that state of things this Act was not levelled at the Jews. They would say, "it is impossible that the Legislature can turn a Jew into a Popish recusant." But the matter does not rest hero. The court has to look to the inconveniences which may arise in the execution of the Act; and there is one monstrous inconvenience which would arise under the Act of George III., which contains penalties against all those who refuse to take the oath of abjuration. In the 5th section we find that any two magistrates have a right to go into the house of any person in the kingdom whom they conceive to be disaffected, and tender the oath of abjuration; if he refuse it, he is again a Popish recusant convict. Can we conceive that the Legislature intended that any two magistrates might go to a Chartist meeting, select a Jew, and say to him—"Take the oath of abjuration wholly 502 and entirely; if you do not, you are a Popish recusant convict, and shall be dealt with accordingly." When the Judge came to look at the Act, he would say it was nonsense to pretend that there was any intention of applying it, to a Jew. If that is so, let us see if there is anything else in the Act requiring the oath to be taken on the true faith of a Christian. The Act says it should be taken "in the manner and form following;" but then you have the statute of Victoria, declaring that any person taking the oath in the manner which he declares to be binding upon his conscience shall be held to have taken it in the true manner and form. Then the only difference between us can be this—is the portion we call the form contained in the words "the true faith of a Christian," any more than can be said to be contained in I the words "the holy gospels," or in the ceremony of kissing the book? I have dwelt on this previously, and there is no occasion to re-argue the point. It appears to me, that any court of justice in the kingdom, going through the whole Act, and construing its sense fairly, finding that if it was levelled at any particular class, that class could not be Jews, and that a certain class of religionists, the Quakers, had been exempted from its operation on the ground of its being an oath, and permitted to give their affirmation instead—finding, also, that an individual had taken the oath in the manner he declared binding on his conscience, and therefore had taken the oath fully in the manner required by law must find in consequence that Baron de Rothschild had been sworn to the complete effect and substance of the oath. No court in the world could hold that he was liable to the penalties provided for breaking it. I now come to the argument which is, I believe, the only one that can be said to have any shadow of weight in it, and it is but a shadow. Our opponents say the Legislature has thought fit, on two occasions, expressly to enact that the Jews shall have this oath administered to them without the I words "on the true faith of a Christian;" and they add, if the Legislature has so enacted in two cases, it is necessary to enact similarly in every case; and if so, you cannot get rid of the difficulty without another Act. Those two Acts are, first, the 10th Geo. I., obliging all persons being Papists to register their names and real estates, and to take the oath of abjuration under penalty of forfeiting their estates; this Act says, that to persons professing the Jewish religion, the oath shall be ad- 503 ministered, omitting the words "on the true faith of a Christian," in like manner as Jews are sworn in courts of justice. This Act does not at all show that these words are not words of adjuration. I can well understand, however, that the courts might at this period have had some difficulty in such a case; for the great case of Omychund and Barker had not yet occurred, by which it was decided that oaths were to he administered to every one according to the form of their religion, and it was therefore quite right that those doubts should be cleared away. The other Act is the 13th of Geo. II., passed after the argument in that case, and it is remarkable that this Act does not take upon itself to say positively that the Jews cannot take the oath. It is an Act for naturalising foreign Protestants and others; and the third section says that, whereas the words, "on the true faith of a Christian" are contained in the latter part of the oath, and whereas persons professing the Jewish religion may be prevented from taking the oath, &c.—observe, "may." It does not say that they will or must be so prevented, but suggests a doubt that they may be, and thereupon proceeds to point out how the difficulty is to be removed. The plain and clear sense is, that the oath is to be administered in the form which Jews admit to be binding. Hon. Members will find that Acts of Parliament very commonly enact much of that which is already law. Here you have only a prima facie case, suggested at a time when the matter was not settled, and the principles of law not so clearly understood as now; and after all, the Act only says, that the Jews may be prevented from taking the oath. Let us assume for a moment that this is the argument. If you find an Act of Parliament enacting that such and such a state of things should be law, and not a declaratory law, you assume that the law must have been different prior to the passing of the Act. Where would the House have stood in Mr. Pease's case? There was an Act passed afterwards, saying that the oath was to be taken in the very way in which Mr. Pease had already taken it, yet it was not declaratory. According to the argument I am supposing, before you passed that Act, the Quakers could not affirm the effect of the oath in the way Mr. Pease did affirm it. And yet Mr. Pease did so affirm, and the House allowed it. Just so in this case, according to the argument I am supposing, we find an Act of Parliament saying that the 504 Jews may take the oath in a particular way; therefore we are asked to presume that they could not take it in that way before the Act passed. So much then for the apprehension of conflict between this House and some of the lower courts of jurisdiction. If you say that a man is to be deprived of the rights and privileges to which he is entitled by virtue of some doubtful Act of Parliament which may be thought inconsistent with them, I say that in Mr. Pease's case you had virtually no foundation to go upon when you determined that he should take his seat. But the truth is, you acted rightly in Pease's case. You acted upon a general principle there, and the case is most important. It is a very solemn duty we have now to perform. We are about to exclude a gentleman who, by the resolution we have already passed, is declared to have a clear and distinct right to his seat—who has been elected twice by one of the first constituencies of the kingdom, and who is admitted to be in every respect qualified as a representative; and to exclude him upon the narrowest technicality which the mind of man can conceive. I deny that there being a statute which introduces into an oath the words "on the true faith of a Christian," following in the wake of an old statute of King James for the suppression of Popery, and declaring that persons refusing the oath are Popish recusants, any court of law in the kingdom would say that the Act had any application whatever to such a case as that before us. I feel very great confidence that the only conclusion to which a court of law must come would be, that the oath must be taken in its full substance and effect; that Baron de Rothschild has been sworn in the form most binding upon his conscience; that he has, therefore, taken the oath in a legal manner, and is bound by it. The noble Lord at the head of the Government has said that the House must not take upon itself any dispensing power. The courts do not take upon themselves any dispensing power, but they act with large liberality in the construction both of common and statute law. The courts of common law got rid of the statute of Edward I. regarding entails, by their systems of fines and recoveries. In the case of Omychund and Barker, they got rid of a common-law writ which had existed for centuries; they got rid of the difficulties arising from the state of the law as to legacies. The courts of law look to the substance and true meaning of the Act, and are not to 505 be diverted from giving it effect by miserable technicalities. When a party comes to be sued for pecuniary or other penalties, they will view the Act in the strictest possible way, examine every clause and every word, and rule every point favourably to the defendant. In this case, then, the courts would strain every point not against but for Baron de Rothschild. Here, in this House, the penalty is that of forfeiting the immense privilege of representing the electors of the metropolis. The person elected bears in himself the rights and privileges of that great body of electors, and we are bound, therefore, to give the Act the fairest and most reasonable construction. It is impossible for you, then—for the reasons I urged at the commencement of my address—to accede to the Motion of the hon. and learned Member for Abingdon, which states that the seat is void. But I go beyond that, and say that you must accede to the proposition I have made, because, upon the whole effect of the statutes, and upon a liberal construction of them, the only question that arises is, "Has the Crown preserved to itself the security which those Acts were intended to give it?" All that you want is, that the succession to the Crown, which those Acts were passed to strengthen, should remain in unshaken security. Baron de Rothschild has taken the oaths in the manner which the Act of Victoria directs—the manner most binding on him in conscience and honour; he is willing to assent to the full protection which the Legislature declared the Crown should have, and which we all have a right to have against any invasion of our liberties by a pretender to the Crown. I ask you then to say, whether the whole effect and substance of the oath has not been adhered to in this instance, as required by law, and whether Baron de Rothschild is not entitled to take his seat.
To leave out from the word 'That' to the end of the Question, in order to add the words 'this House is of opinion, that the Seat of Baron Lionel Nathan de Rothschild, as one of the Members for the City of London, is full,' instead thereof.
§ Question proposed, "That the words proposed to be left out stand part of the Question."
The ATTORNEY GENERAL
said, he would express as shortly and distinctly as 506 he could the views he had formed upon this subject. He had endeavoured to divest himself of every wish, of every feeling, he had previously entertained upon this question. The House was aware that on every occasion when the question came before the House, he had voted for the admission of the Jews, he had expressed his opinion in favour of their admission, and his intention to do everything he could in order to obtain for them admission. But, on the present occasion, he felt that he was bound to discard, as far as possible, every feeling of that description; the functions which the House had to discharge now being of a purely judicial character—not of a quasi judicial character, but of a purely judicial character, and nothing else. He expressed himself thus strongly, because it was impossible not to perceive—as it was perhaps impossible that there should not exist—a strong degree of personal feeling on both sides, whether the hon. Member for the city of London should be allowed to take his seat in that House. The hon. and learned Member for Abingdon had moved that a new writ should issue for the city of London; but he must say that he entertained some doubts whether that was the right course to pursue, even assuming that his hon. and learned Friend's view of the case was the correct one. He could not doubt that the Motion of his hon. and learned Friend the Member for the city of Oxford was right, if it were once admitted that the view he had taken of the case was correct, In reference to this part of the case, they would perhaps permit him to refer to the case of Mr. O'Connell. He admitted that there was some difference between the cases, but still they were sufficiently similar for his purpose, Mr. O'Connell was called in on the Friday, and asked if he would take the oaths. He stated that he was content to take the oaths of allegiance and abjuration, but that he could not take the oath of supremacy. Thereupon the debate was adjourned, and on the following Monday, Mr. O'Connell was heard at the bar of the House. On the following day he was again called to the bar. The Speaker asked him if he was willing to take the oath. On his refusal, a resolution was come to that he was not entitled to sit in the House unless he took the oaths, and therefore that a new writ should issue. Now, it appeared to him that there was some distinction between that case and the present, because the hon. Member 507 for the city of London had not refused to take any oath, but contended that he had taken the oaths in the form most binding on his conscience; but if the House should be of opinion that he had not taken the oaths in the form prescribed by law, still he was of opinion that, as in the case of O'Connell, he should be again called in, and that Mr. Speaker should again ask him if he still refused to take the oaths. If it was quite certain that the Member for the city of London would refuse to take the oath in any other form, then that proceeding would be superfluous; and if the view taken by the hon. and learned Member for Abingdon should meet the concurrence of the House, then his Motion would follow. With respect to the question, he had come to a conclusion which was a very painful one to him; but he felt that, if he were sitting as a judge solemnly to decide the case under the obligation of an oath in such a manner as to administer substantial justice to both parties, he could not say that the hon. Member for the city of London had taken the oaths. He had listened with the greatest interest and pleasure to, he must say, the able legal argument of his hon. and learned Friend the Member for the city of Oxford; and knowing, as he (the Attorney General) did, the sincerity and earnestness of his mind, it was with great regret he felt constrained to say that his hon. and learned Friend's arguments had not produced any effect upon his mind, and he would state his reasons very shortly; for really what his hon. and learned Friend the Member for Abingdon had stated, taken with what his noble Friend at the head of the Government said yesterday, seemed to him to contain the substance of the whole argument. Here was a statute which prescribed an oath to be taken. Could they tamper with that statute—could they say that there was any part of the oath which was not of the substance of the oath—could they say, when they had an oath in which there was the common abjuration at the end, "So help me God"—could they say that the clause previous to that, "on the true faith of a Christian," meant the same thing, and was to be treated simply as a synonymous expression, and might therefore be dispensed with and struck out? He must say he was not able to come to that conclusion; and though a great deal of ingenuity had been expended upon the point by his hon. and learned Friend, nothing that he had alleged was, 508 in his view, able to get over the plain and commonsense meaning of the statute. Here was an oath which was to be taken in certain set words—it was a statute they were bound to obey. They had not the power to vary it. That was really, as it appeared to him, the substantial argument in favour of the view of the hon. and learned Member for Abingdon; and he could not get over it, nor would he weary the House with more than one or two additional grounds which appeared to him to strengthen this view of the case. It appeared to him to be a dangerous doctrine to hold that a particular set of words were merely in the form of abjuration, and might be got rid of as something distinct or different from the oath itself. And with relation to the present case, he thought that view was overruled by the two statutes 10th George I. and 13th George II. These statutes referred to oaths which in certain circumstances were to be taken by Jews; and as it was admitted that no Jew could take an oath containing the words "on the true faith of a Christian," the statutes went to alter the form of the oath by omitting these words, in order that they might take it. This was not a declaratory statute, as his hon. and learned Friend had attempted to show; it was in terms an express and distinct enacting statute. Then how could it be said that in the present case the Legislature had put words into an oath which might be dispensed with, when in another and analogous case it was held that these words could not be dispensed with without an Act of the Legislature? He would now refer to the case of Mr. Pease, and see how it stood. Mr. Pease's case did not appear very distinct, but he would assume that the words "on the true faith of a Christian" were omitted—[Mr. B. OSBORNE: Mr. Pease himself says they were.] He would admit that; but it undoubtedly formed no part of the decision of Parliament. The only thing decided by Parliament was, that he should take an affirmation instead of an oath. It was notorious to Parliament, and it was notorious to the whole world, that a Quaker was a Christian. The question never rose, whether Mr. Pease was to be treated as a Christian. It was true he objected to the words "on the true faith of a Christian," because there was something in them of the form of an abjuration, and he objected to them as he would have objected to the words—"on the true faith of a gentleman." But if the question had been 509 raised, and if it had been stated that he must necessarily affirm that he was a Christian, Mr. Pease would not have had the slightest hesitation to affirm that he was so. Then, he must say, that the observations of his hon. and learned Friend on the 3rd and 4th William IV., instead of assisting the present question, really appeared to have a contrary tendency, because it would appear from that Act as if Parliament had doubted whether it had acted correctly; and in order to set at rest all doubts and disputes on that point, Parliament passed, not a declaratory but an enacting statute. There could be no doubt that if Baron de Rothschild were now allowed to take his seat, and an Act analogous to that of the 3rd and 4th William IV. were afterwards passed, all doubts on that particular case would be removed. He must, therefore, state that Mr. Pease's case was not conclusive on the present occasion; but even if it were considered to be strictly analogous to the present case; would it be contended that it clearly appeared—seeing Parliament had itself passed an Act to correct any errors it might have fallen into on that occasion—that that was a precedent fit and proper for the House to follow? To him it appeared to amount to no more than this—that no decision of this House could enable them to dispense with the Act of Parliament. He would now refer to another Act, which had been much quoted, the 1st I and 2nd Vict., which enacted that in all cases where an oath is taken in the form most binding on the conscience, such oath shall be held valid and binding. Now, as his noble Friend stated yesterday, that Act referred to courts of law; but there was nothing in the Act which enabled them to administer an oath, the terms of which were prescribed, in a manner different from that in which it was prescribed; all that it really amounted to was only this, that when an oath was taken in a particular form, the person taking it should be liable to all the consequences as if he had taken it in the usual manner. Therefore, on looking to this Act most attentively, he must say he failed to observe anything in it which compelled the House to administer the oath, or enabled the Member for the city of London to take it in the form he desired. He could not fail to the struck with the fact that a great part of his hon. and learned Friend's argument went to this, that the oaths were of no avail, for he asserted that the oath of allegiance was 510 covered by the oath of fidelity, and that the oath of abjuration was unnecessary, for there was nobody to abjure. But the proper course, when an oath encumbered the Statute-book, was to remove it. But that House had not of itself power to say that this was a useless oath, and therefore they might dispense with it. He must say he felt strongly upon this point, because let them observe the consequences. If they were to judge whether an oath was useless or not, that would absolutely be claiming a power in the House of Commons to dispense with any oath. The only safe way was not to look a bit beyond the letter of the statute. Undoubtedly there were a number of useless and evil laws which infested the Statute-book; nay, he might say they were not only useless but injurious; but it was not to be thought they could therefore dispense with them, he saw no middle course, therefore, between standing upon the exact words as imposed by statute, and coming to a dispensing power, which, carried out to its full extent, might enable them to abrogate all the laws of the realm. He was quite ready to admit that the observations of his hon. and learned Friend with respect to the courts of law, and the manner in which they had dealt with Acts of Parliament, were correct. But he could not say that the rules of the courts of law in that respect were worthy of their imitation. There were several cases in which the courts of law had, by a series of decisions, repealed Acts of Parliament. The Statute of Uses was absolutely repealed by a series of decisions in the courts of law, and so was the Statute of Frauds. But he conceived that that was not a wise course which the courts of justice should pursue. They were much stricter in modern times; and it was not a wise thing to allow courts of justice to dispense with Acts of Parliament; but, above all, it appeared to him that it was incumbent on this House of Parliament to keep strictly within the letter of a statute, which it was in its power at any time to remove, if it could obtain the assent of the other House and of the Crown. The most dangerous results would arise from any other course. Observe what Baron de Rothschild did with respect to the oath of abjuration. He took the oath in the regular manner till became to the words "on the true faith of a Christian," and then he stated he would omit those words because they were not binding on his conscience. But, was it not pos- 511 sible that some other person might conscientiously omit some other part of the oath because it was not binding on his conscience? Was it not possible that other oaths or other parts might be omitted because the party considered that they were not binding on his conscience? He (the Attorney General) had voted that Baron de Rothschild should be at liberty to take the oaths in the manner that he considered binding on his conscience; but he did not then refer, nor did he consider it necessary to refer, to the nature of the oaths which he was about to take. He never intended to vote that Baron de Rothschild should constitute himself the judge as to what words he would omit as not binding on his conscience. For that he could not conscientiously vote according to the view he took of the case. It had been stated by his hon. and learned Friend, that, in point of fact, they did change the form of the oath; that the change was made from the words "Our Sovereign Lord King George," to "Our Sovereign Lady Queen Victoria." But he would really submit—and the matter was familiar to every lawyer—that that was no change at all. It might as well be said that there was a change in the oath because they inserted the name of the party taking it instead of the usual form, "I, A. B." Giving, therefore, the best attention to the subject that he possibly could, it did appear to him that the words "on the true faith of a Christian" were a part of the oath to be taken, and that though it was partly of an abjuratory character, yet it was not the less a part of the oath which it was the duty of Members to take before they could take their seat in the House. His hon. and learned Friend had expressed surprise that the noble Lord at the head of the Government should have expressed an opinion upon this subject before he heard the argument. But his hon. and learned Friend was himself in the same situation—he had expressed an opinion before he heard the arguments; and the fact was, that every person must necessarily look into the case for himself—see what its bearings were, and then come to a conclusion. He had not hesitated to state the result to which he had come, liable no doubt to be altered by argument. He had listened with the greatest attention to what, he must say, was the ablest argument he had ever heard on this subject, from his hon. and learned Friend; but that argument had failed to remove from his mind the difficulties raised by what he 512 might call the broad and common-sense view of the question. That though the Act might be useless—though it might be foolish—though it might be unnecessary—yet they could not, so long as it remained on the Statute-book, dispense with any portion of the oath which it presented. He believed that these words, "on the true faith of a Christian," were an essential part of the oath. ["Oh, oh!"] He was speaking simply in a judicial character, and he must say, conscientiously, that Baron de Rothschild had not taken the oaths in the form which was prescribed by the Act of Parliament, or in the manner which would qualify him to take his seat in that House.
§ MR. C. ANSTEY
said, that although he considered the speech of the hon. and learned Attorney General both illogical and self-contradictory, he believed it to be the ablest that could be delivered on that side of the question. He believed, too, that it had been made with the view of giving some sort of justification to the indiscreet and unreasonable speech of the noble Lord at the head of the Government on the previous day. His hon. and learned Friend, however, had forgotten one point, and had, in consequence, fallen into the very error of the noble Lord. He forcibly reminded the House that this was a judicial question. If so, why was it to be prejudged? Why was it made a Cabinet question? Why was the law officer of the Crown put forward to defend the course of the Prime Minister? Surely it would have been more seemly and decorous in hon. Gentlemen on the Treasury bench to have allowed the friends of Baron de Rothschild to have exhausted the arguments in support of his claim before they called upon a majority to disaffirm it; for no one could doubt, after the speech of the noble Lord the day before, and of the hon. and learned Attorney General that day, that such would be the course pursued. He protested against this prejudging of a judicial question. The speech of his hon. and learned Friend the Attorney General was no reply to the arguments of the hon. and learned Member for Oxford. He contented himself with the sic volo sic jubeo declaration that such was his opinion, and that he had arrived at it with much difficulty. The Minister said it was a question of doubt. If so, why not give the claimant the benefit of the doubt? Simply because he was a Jew, and belonged to a body that was neither powerful nor formidable. The 513 course taken with regard to Mr. O'Connell was not thought necessary to-day. But the Roman Catholics of Ireland whom he (Mr. O'Connell) represented, were 7,000,000; the Jews only 40,000. His hon. and learned Friend had not even attempted a reply to the argument raised on the case of Mr. Pease, who was admitted into Parliament on an affirmation prepared by himself, unopposed even by the hon. Baronet the Member for Oxford University, and absolutely confirmed afterwards by an Act of Parliament, so satisfied was Parliament that the course which had been taken was correct. His hon. and learned Friend wriggled out of the difficulty by declining to say on the one hand that a new writ ought to issue, or on the other that the seat was full. And yet this was a judicial question. He believed that there was not a single court of justice in Christendom that would disgrace itself by such a mockery of justice. The Act of George III. required that the oath should be taken in the form therein stated, that the parties should swear true allegiance to King George the Third, and that they should abjure all allegiance to the house of Stuart. The hon. and learned Gentleman said that Act was no longer valid, George the Third not being now in existence, and the House of Stuart being no more. At every vicissitude there was a new Act of Parliament. There was one on the death of Queen Anne, and on the death of George the First, and another in the reign of George the Third, which superseded all the others; and it was intended by that Act that the oaths of abjuration should cease when the necessity for them passed away. The oath expired on the death of the Sovereign; and according to the argument of the hon. and learned Gentleman the Attorney General, it was not competent for Parliament to alter the oath. The House of Commons had dispensed with the oath in the case of Mr. Pease, and Parliament subsequently passed a declaratory Act, taking the affirmation of Quakers instead of an oath. The hon. I and learned Gentleman the Attorney General said that was a good precedent; but he had a higher authority than the hon. and learned Gentleman; he had the authority of the noble Lord now at the head of the Government, who, in a speech made on the 12th of March in that House, when his hon. Friend moved his Committee to inquire into precedents relating to the question of Jews, or other persons being 514 admitted to take their seats in the House without being sworn, said—It was of very great importance that there should be a Committee. It appeared to him that the question both as to the Acts of Parliament, and as to the manner in which the House interpreted the Acts in the case of Mr. Pease, were of very considerable consequence. He was at a loss to understand how it was that Mr. Pease made affirmation in the way he did, and that afterwards an Act should be passed appointing the mode in which that affirmation should be made, for, if the House were justified in admitting Mr. Pease upon His affirmation, it appeared to be unnecessary afterwards to enact, by a fresh Act, that he should make that affirmation in a certain way.That was the declaration of the Prime Minister, who told them yesterday that the point was not new to him. But how had the courts dealt with the oath of abjuration? He could tell the House that they had in some cases altered the whole body of the oath. Then would it not be an answer to any action for pains and penalties, that he took the oaths according to the decision of the House of which he was a Member? The same argument was used with great effect by the right hon. Gentleman the Member for Montgomeryshire in the case of O'Connell. He told them that whatever their decision might be that day, it would be binding in any court of law. He (Mr. Anstey) said the same in this case. They ought not to shrink from doing their duty, and let the courts do theirs, fiat justitia ruat cœlum. He did not wish to subject Baron de Rothschild not only to the loss of his seat, but to perpetual disability; and he therefore gave his hearty support to the Amendment proposed by the hon. and learned Member for the city of Oxford.
§ MR. HUME
wished to ask one plain question. It would be quite impossible for him to attempt to enter into the legal arguments of the case, after the very masterly and very able speech of his hon. and learned Friend the Member for the city of Oxford; but he wished to observe that one argument had been used which had not been answered by the hon. and learned Member for Abingdon. The hon. and learned Member called upon the House to agree to a Motion to the effect that the hon. Member for the city of London had virtually vacated his seat, because he had not taken the oath of abjuration in the prescribed form; and he wished to ask him by what statute or by what law he considered the hon. Member had rendered his seat vacant? Now no one, he apprehended, would doubt that the Baron de Rothschild 515 had taken the oaths of allegiance and supremacy, and having taken those two oaths, he (Mr. Hume) contended that he could not be expelled. The last oath, the oath of abjuration, was one of pains and penalties, but the Baron de Rothschild would not be subject to those pains and penalties unless he had sat and voted. Perhaps it might be better, as the hon. and learned Attorney General was in the House, that he should put the question to him. He wished to know from that hon. and learned Gentleman by what law the hon. Member for the city of London had vacated his seat? He had taken the oaths of supremacy and allegiance; but it was said he had not taken the oath of abjuration. In his (Mr. Hume's) opinion, he had.
The ATTORNEY GENERAL
said, it appeared to him the seat did become vacant, assuming that Baron de Rothschild substantially refused to take the oath of abjuration. The statute of the 6th Geo. III., c. 53, enacted that all persons refusing to take the oath of abjuration should be "subject and liable to the same penalties and disabilities as by the laws and statutes aforesaid were enacted." In the laws and statutes previously referred to, was included the statute of William III.—[Mr. P. WOOD: No, no!]—the statute of William III., which declared that a person was disabled from sitting and voting.
§ Mr. W. P. WOOD
would ask the hon. and learned Attorney General to read the words which he supposed continued in the succeeding Act the penalties in question.
The ATTORNEY GENERAL
read the words which referred to the penalties imposed by the statutes now subsisting. They were as follows:—And that all and every person and persons who are enjoined and required to administer, take, or subscribe the oath of abjuration and the assurance in the said above-mentioned Act contained, shall respectively administer, take, and subscribe the oath of abjuration, and subscribe the assurance, according to the form herein set down and prescribed in such courts within such time limited, in such manner and with due observance to the same requisites, and with benefit of the same savings, provisoes, and indemnities as by the said Act above mentioned, or by any other Acts, or any other part of them now subsisting, are directed and enacted: and in case of neglect or refusal, he or they shall be subject and liable to the same penalties and disabilities as by the laws and statutes aforesaid are enacted.516 He contended that the Act of Parliament not having been repealed, the penalties must be held to continue.
§ MR. W. P. WOOD
said, the Act of 1st Geo. I., had been distinctly repealed, and a new oath and new penalties had been substituted.
The ATTORNEY GENERAL
desired there should be no misunderstanding on this point. His hon. and learned Friend would admit there had been no direct repeal of the Act of William III. He contended, however, that it had been virtually repealed, and that other penalties had been imposed.—[Mr. W. P. WOOD: And another oath.] He could not admit that the Act had been repealed. The later statute found the statute of William III. in force, and enacted that the penalties enumerated in "existing statutes" were to be continued.
MR. V. SMITH
was not prepared to assume that the Baron de Rothschild had refused to take the oaths, yet that was the first declaration in the Motion of the hon. and learned Member for Abingdon. That hon. and learned Gentleman also proposed that a new writ should be issued for the city of London. On what ground did he make that proposition? The most eminent legal authorities differed as to whether the law disabled Baron de Rothschild from sitting in Parliament or not. The report of the Committee which had been presided over by the hon. and learned Member for the city of Oxford, who had argued this question with so much ability, referred to the statute of the 1st of George I., c. 13. That Act altered the form of the abjuration oath to be taken by Members of Parliament; the report stated that, as the form had been again further altered, the Committee did not consider it necessary to set it out at length in their report, and that they would merely remark that by section 17 the penalties for non-compliance were precisely the same in respect of Members of Parliament as those contained in the 13th of William III., c. 6, except that the declaration—That the offender shall be deemed a Popish recusant convict, and shall forfeit and suffer as such, and shall be disabled from holding or executing any office or place of trust, civil or military,was omitted. He understood the hon. and learned Member for the city of Oxford to say, that there was excepted the disability to sit in Parliament Now, was that the case? Was that in force? If so, the House had no power to issue a new writ. 517 They should have time to consider, if not a Committee to inquire into, the actual state of the law. Gentlemen would come to the worst of all party votes if they pretended to construe the law with their present information.
§ SIR G. GREY
felt, to a certain degree, the difficulty which had just been stated by his right hon. Friend. The Motion of the hon. and learned Gentleman the Member for Abingdon, he believed, recited that Baron de Rothschild had refused to take the oaths prescribed by law; what he understood Baron de Rothschild to say, and what he presumed would be entered upon the journals of the House, was, "I omit those concluding words because they are not binding upon my conscience." He (Sir G. Grey) was prepared to vote against the Amendment of the hon. and learned Member for the city of Oxford, that the seat was full, but thought the House ought to proceed with great caution and deliberation before agreeing to the issuing of a new writ. It must be remembered that this would be a precedent for future time; that there would appear upon the journals a statement that a Member came to the table, took the first two oaths prescribed by law, and took the last with the omission of certain words, alleging as a reason for not taking those words, not that he could not conscientiously take them, not that he positively refused or declined to take them, but that he omitted them because they were not binding upon his conscience. Now, he (Sir G. Grey) thought, with the hon. and learned Attorney General, that those words formed part of the oath prescribed by law, and that the House was not authorised to exercise a dispensing power, and say that the oath was complete without those words; but he thought the House ought to have something more than the mere statement of a Member that he omitted them because they were not binding upon his conscience before they proceeded to declare the seat vacant. There was also another question raised by the hon. and learned Member for the city of Oxford, namely, whether, assuming the refusal to be final and complete, the seat thereby, under the existing statutes, became vacant. He understood the hon. and learned Member to refer, first, to the 30th of Charles II., which had no reference to the oath of abjuration, but referred merely to the two other oaths, and that that Act expressly declared that in the event of a refusal to take those two oaths 518 of allegiance and supremacy, the seat should be void, and a new writ should issue; and the hon. and learned Member remarked that this was the clear and unambiguous language of Parliament when it meant to declare the seat vacant. But his hon. and learned Friend did not, he thought, place sufficient stress on the fact that the 13th Wm 111., e. 6, which contained the oath of abjuration, also provided—That from and after the 25th day of March, in the year of our Lord 1702, no person that now is or hereafter shall be a Poor of this realm, or Member of the House of Peers, shall vote or make his proxy in the House of Peers, or sit there during any debate in the said House of Peers; nor any person that now is or hereafter shall be a Member of the House of Commons, shall vote in the House of Commons, or sit there, during any debate in the said House of Commons, after their Speaker is chosen, until such Peer or Member shall from time to time respectively take the oath aforesaid, and subscribe the same in manner following (that is to say), the said oath shall be in this and every succeeding Parliament solemnly and publicly made and subscribed, between the hours of nine in the morning and four in the afternoon, by every such Peer and Member of the House of Peers, at the table in the middle of the said House, before he takes his place in the said House of Peers, and whilst a full House of Peers is there, with their Speaker in his place; and by every such Member of the House of Commons, at the table in the middle of the said House, and whilst a full House of Commons is there duly sitting, with their Speaker in his chair.And it further enacts—That if any person that now is or hereafter shall be a Peer of this realm, or Member of the House of Peers, or Member of the House of Commons, in this or any succeeding Parliament, shall after the said 25th day of March presume to vote or make his proxy, not having taken the said oath and subscribed the same as aforesaid, every such Peer or Member so offending shall from thenceforth be deemed and adjudged a Popish recusant convict to all intents and purposes whatsoever, and shall forfeit and suffer as a Popish recusant convict, and shall be disabled to hold or execute any office, or place of profit or trust, civil or military, in any of His Majesty's realms of England or Ireland, dominion of Wales, or town of Berwick-upon-Tweed, or in any of His Majesty's islands or foreign plantations to the said realms belonging; and shall be disabled from thenceforth to sit or vote in either House of Parliament, or make a proxy in the House of Peers.Such were the words of the 13th William III. His hon. and learned Friend contended that this statute had been repealed, and admitted that, if were in force, it would justify the issue of a new writ, and bar any Member not taking the oath of abjuration from voting or sitting in that House. He would not dwell upon the 1st Anne, sec. 2, c. 22, nor upon the 6th Anne, c. 7, which also enacted that the 519 oath of abjuration should be taken, and contained the words, "on the true faith of a Christian," but would advert to the subsequent Acts. The 1st George I., c. 6, admitted Quakers by affirmation instead of the oath of abjuration; but being special in its restriction to that body, the 6th George III., c. 53, recited the Act of 1st George I., and enacted that—From and after the 4th day of June, 1766, the oath of abjuration in the said Act (1st George I.) shall be administered in such manner and form as hereinafter set down and prescribed.The form of oath was then recited, and it distinctly contained the words—And I do make this recognition, acknowledgment, abjuration, renunciation, and promise, heartily, willingly, and truly, upon the true faith of a Christian.But what further?—And that all and every person and persons who are enjoined and required to administer, take, or subscribe the oath of abjuration and the assurance in the said above-mentioned Act contained, shall respectively administer, take, and subscribe the oath of abjuration, and subscribe the assurance according to the form herein set down and prescribed in such courts within such time limited, in such manner and with due observance of the same requisites, and with benefit of the same savings, provisoes, and indemnities as by the said Act above-mentioned, or by any other Acts, or any part of them now subsisting, are directed and enacted; and in case of neglect or refusal, he or they shall be subject and liable to the same penalties and disabilities as by the laws and statutes aforesaid are enacted.Thus making the party refusing to take the oath subject to the penalties of 1st George I., and not merely of that Act, but to the penalties in every other Act then subsisting. The real question was whether the 1st of George I. repealed the Act of William III. by implication. He (Sir G. Grey) had the strongest opinion that it did not; but, sitting judicially as the House was, he thought they would be acting hastily, if with the conflict of opinion upon that question, they should order a new writ without taking more time to look into a point upon which the hon. and learned Member for the city of Oxford, and the hon. and learned Attorney General, appeared to be at variance. Forming the best opinion that he (Sir G. Grey) could, he agreed with his hon. and learned Friend, that the Act of William III. was in force at the time of the passing the 6th George III., and was still in force, and was one of the Acts there referred to as subsisting, and that the penalties of the Act of William III. were kept alive by the 6th of George III., and still attached to a Mem- 520 ber refusing this oath. But, upon both grounds—the question whether there had been such a distinct refusal to take the oath as to bring the case within the Act, and whether the Act was still in force—he thought it would be well not to adopt the Motion of the hon. and learned Member for Abingdon, without further consideration and investigation.
§ SIR F. THESIGER
said, he was extremely anxious that the House should proceed in this matter with all proper caution and deliberation. In proposing the resolution in the form in which it was submitted, he believed he was following the course of precedent. There could be no doubt whatever that instances had occurred in the journals of the House in which persons had come to the table, and upon their refusal to take the oaths there had been an immediate Motion for the issue of a new writ. In the present instance, Baron de Rothschild, after going through two of the oaths, and the greater part of the third, came to the words, "on the true faith of a Christian," which in his (Sir F. Thesiger's) opinion were a necessary and essential part of the oath, and then closed the book, saying, "I omit that portion of the oath, because I do not consider it binding on my conscience." [Mr. HUME: "I omit those words," was the expression.] "I omit those words," and Baron de Rothschild then kissed the book. Now, he had certainly understood, when Baron de Rothschild said, "I omit those words" for the reasons he explained, that it was a distinct refusal to swear those words. He (Sir F. Thesiger) had no desire to preclude by any misrepresentation a Member who had been returned to that House; but if this was a refusal to take a substantial portion of the oath, he should like to be informed in what mode the hon. and learned Gentleman the Member for the city of Oxford proposed they should ascertain clearly and distinctly whether it is the intention of Baron de Rothschild to take the oath prescribed by Act of Parliament. He was in the hands of the House, and was ready to pursue any course they might think fair and right.
§ MR. W. P. WOOD
I have communicated with Baron de Rothschild, and I am authorised to say that what fell from him may be taken as a refusal to take these words.
§ SIR F. THESIGER
apprehended, then, the hon. and learned Attorney General would readily grant that there was no 521 necessity for giving Baron de Rothschild on the present occasion what the hon. and learned Gentleman called a locus penitentiœ,as, if the Baron de Rothschild were called in again, he would only repeat what he had already said, and what he had declared to be equivalent to a refusal.
§ SIR G. GREY
said, after what what had fallen from the hon. and learned Member for the city of Oxford, namely, that the words of Baron de Rothschild were to be considered a refusal to take the words in question, he proposed to follow the precedent adopted in the case of Mr. O'Connell. Mr. O'Connell came to the table and refused to take the oath of supremacy. That refusal was not held to be final by the House; but, after debating the question, the House decided, not that a new writ should issue, but that Mr. O'Connell was not entitled to take his scat without taking the oath. Mr. O'Connell was then called in, and he asked to look at the oath. "I decline to take it," he said, "because it contains two propositions which I believe to be untrue." The course in that case would have been to communicate to Baron de Rothschild that the words were essential, and it would be for him then to decline to take them. If the words uttered by Baron de Rothschild were to be regarded as a refusal to take the words, and they could appear upon the journals of the House, another objection would be got rid of.
§ MR. ROEBUCK
hoped the House, on coming to a decision, would not proceed too fast. There were two propositions now before them. First, there was the refusal to pronounce the words "on the true faith of a Christian;" the next proposition was, whether the refusal to take these words was in fact a refusal to take the oath. The second proposition was one which they must resolve amongst themselves: all that they were authorised to assume by the hon. and learned Member for the city of Oxford was, that Baron de Rothschild refuses to take these words. He (Mr. Roebuck) should be prepared at the proper time to argue that he had taken the oath.
§ MR. ALDERMAN SIDNEY
said, he felt considerable difficulty in rising, after so many able lawyers had spoken; but the question was, whether they were fit in that House to decide the matter at variance or not. If it was a judicial question, and the House were the judges, he took it that it did not require the learning of a lawyer to enable them to form an 522 opinion, but the sound sense and the common sense of an individual. He had listened with interest to the debates of the last three days, and he had asked himself the question whether, if the matter were referred to him as a magistrate, he could decide that Baron do Rothschild had taken, the oath of abjuration? Well, after hearing all the arguments on both sides, he had come to the conclusion that the question whether they were to admit a Jew or not, had been virtually decided by last night's debate. The party stated his belief in the Old Testament: he was permitted to approach the table of the House, and subscribe the oaths upon the Old Testament. Therefore the question was now narrowed to the very smallest issue, namely, whether the House were competent to construe the oaths to be administered in a judicial sense. If they were to act judicially, this was a question, above all others, that concerned their characters as judges. That character required them to divest themselves of every prejudice and all party feeling; and he would ask the supporters of the Government on the other side of the House to consider that this was not a party question, in which they could reconcile their minds to follow the leader of their party. To gain credit either from their own consciences or from the country, they must act as magistrates and judges. For his own part, he considered the time had gone by when the House ought to declare to the world that a constituency like the enlightened constituency of the city of London was not competent to form an opinion as to the candidate that was fit to represent them. He thought the House, if it agreed to the Motion of the hon. and learned Member for Abingdon, would be placing itself altogether in a wrong position. He did think the hon. Member for Montrose had ample grounds for asking Mr. Speaker whether he had sufficient authority for saying that any hon. Member must withdraw from that House. He (Mr. Alderman Sidney) deliberately stated his conscientious belief that Baron de Rothschild had taken the oaths required by law, and that he was in every sense of the word a Member of that House. He therefore trusted the House would not stultify itself by proclaiming to the world and to the city of London in particular, that the man who had been twice returned by an immense majority, was unacceptable to the House, and that they required him to undergo again the farce of a third election.
§ LORD J. RUSSELL
I rise, Sir, merely for the purpose of asking the House to come to some decision respecting the order of its proceedings. I think it might be better to adjourn for a few hours and then resume this question. If the hon. and learned Member for the city of Oxford, or the right hon. Member for Northampton, think they are not in a fit state to decide this question without further delay, it will be for the House to consider whether it will grant that delay. I wish to know particularly what the hon. and learned Member for the city of Oxford represents Baron de Rothschild to state to be his wish; because the hon. Member for the city of London ought at all events to have no reason to complain that his case was not fully heard.
§ MR. W, P. WOOD
I understand that several hon. Gentlemen wish to take part in this debate, and as I certainly desire to have the question discussed in the fullest and amplest manner, I therefore think it should be adjourned till the earliest opportunity.
§ MR. DISRAELI
The general opinion being that the point is narrowed to a very limited issue, namely, whether an Act of Parliament shall be repealed or not, I think it advisable that if the debate is postponed, it should be postponed for a longer time than a few hours, to enable us to give a serious consideration to so grave a question. In that case, if the House would agree to an adjournment till to-morrow—["No, no!"]—it might be convenient for the House when it resumes at five or six o'clock, to proceed this evening with the Order on the paper of to-day for considering the Lords' Amendments to the Irish Franchise Bill. I know that this can only be done by the hon. Gentlemen having Motions on the paper consenting to give up their right to the precedence; but considering the time this question of privilege has taken, it would be better if we could come to an understanding that we shall proceed with the Lords' Amendments to the Irish Franchise Bill at six o'clock, and adjourn the present debate till to-morrow. I throw out this suggestion to the consideration of the noble Lord at the head of the Government.
§ LORD J. RUSSELL
After what the hon. and learned Member for the city of Oxford has said, I move that this debate be adjourned till Six o'clock.
§ Motion made, and Question proposed, "That the debate be now adjourned."524
§ MR. W. P. WOOD
Sir, I must withdraw what I have stated. I had thought that several hon. Members near me wished to address the House; but they have since informed me that they do not wish to do so. If that be the case, then I apprehend that it is the wish of everybody that we should proceed to a division at once.
§ MR. B. OSBORNE
Sir, before the House goes to a division, I wish to state very shortly the reasons why I do not wish to address the House on this question. I am one of those who take what the hon. and learned Gentleman the Attorney General calls the common-sense view of this question, and I intend not to allow my judgment to be misled by the quibbles of lawyers, or by "the uncertain" mode of proceeding (to call it by a mild name) of the Prime Minister. ["Oh, oh!"] I repeat it, because this question has from the beginning been prejudged. Sir, we have been dragged through a most disgraceful proceeding in this House. What was the course that the Government pursued yesterday? Yesterday they came down and moved, through the mouth of their Attorney General, that Baron de Rothschild be heard at the bar by his counsel. Well, but the noble Lord, after putting the hon. Gentleman to great expense in retaining counsel, and after having raised the expectations of the city of London, the noble Lord gets up and says, "Very true. I have consented that the hon. Member be heard by counsel, but my mind is made up, and whatever the counsel's arguments may be, I call upon the House and my supporters to decide against it." Therefore I feel that the question has been prejudged. We are told that this is a judicial question; but we know very well, by the course that Her Majesty's Government have taken, that it is not a judicial question, and that it is made a party question by them. They have been tampering with the question before the House. There can be no use in adjourning the debate. But if I have no hope from this House, I have faith in the citizens of London; and I tell the House that it is engaging in a conflict from which it can only come out with disappointment and disgrace.
§ LORD J. RUSSELL
I think, Sir, when the hon. and gallant Member for Middle- 525 sex again vises to say that he does not intend to speak, and then goes on to make a statement, he had better state the facts more correctly. My hon. and learned Friend the Attorney General said, following the case of Mr. O'Connell, that he should propose that Baron dc Rothschild be heard at the bar by himself or by his counsel. Then the hon. and learned Member for the city of Oxford stated that he was authorised by Baron to Rothschild to declare to the House that he did not wish to be heard by counsel on that point. But, after that declaration had been made, there subsequently was a debate, in which the hon. and gallant Member for Middle sex stated very strongly his opinion on this question. That being the case, I thought myself entitled, as well as any other Member, to have and to state my opinion. I accordingly did so, declaring at the time that I thought this a judicial question, and that I certainly did not wish to influence the vote of any Member of the Cabinet, or any other Member of the House, upon it.
§ MR. STANFORD
said, he hoped the debate would be adjourned, as he did not wish to record his vote till after careful deliberation. He had not had the advantage of other hon. Members who had heard this important and grave question discussed in other Sessions of Parliament. Therefore he wished for time, and hoped he would not be compelled to vote immediately, when there was such a conflict as to the legal view of the question.
§ Motion, by leave, withdrawn.
§ Question put, "That the words proposed to be left out stand part of the Question."
§ The House divided:—Ayes 221; Noes 117: Majority 104.
|List of the AYES|
|Acland, Sir T. D.||Birch, Sir T. B.|
|Adair, R. A. S.||Blackall, S. W.|
|Arbuthnott, hon. H.||Blackstone, W. S.|
|Arkwright, G.||Blair, S.|
|Arundel and Surrey, Earl of||Blakemore, R.|
|Boldero, H. G.|
|Bagot, hon. W,||Booth, Sir R. G.|
|Baillie, H. J.||Bouverie, hon. E. P.|
|Baines, rt. hon. M. T.||Bowles, Adm.|
|Baldock, E. H.||Brainston, T. VV.|
|Baldwin, C. B.||Bremridge, R.|
|Baring, rt. hon. Sir F. T.||Brisco, M.|
|Barnard, E. G.||Broadley, H.|
|Barrington, Visct.||Brockman, E. D.|
|Bateson, T.||Brooke, Sir A. B.|
|Bellew, R. M.||Brown, H.|
|Beresford, W.||Buller, Sir J Y.|
|Berkeley, Adm.||Burghley, Lord|
|Burrell, Sir C. M.||Heneage, G. H. W.|
|Buxton, Sir E. N.||Henley, J. W.|
|Cabbell, B. B.||Herbert, H. A.|
|Carew, W. H. P.||Herbert, rt. hon. S.|
|Carter, J. B.||Herries, rt. hon. J. C.|
|Cavendish, hon. C. G.||Hervey, Lord A.|
|Chandos, Marq. of||Hildyard, T. B. T.|
|Chatterton, Col.||Hill, Lord E.|
|Childers, J. W.||Hill, Lord M.|
|Cholmeley, Sir M.||Hobhouse, rt. hon. Sir J.|
|Christy, S.||Hobhouse, T. B.|
|Clements, hon. C. S.||Hope, A.|
|Clive, hon. R. H.||Hornby, J.|
|Clive, H. B.||Hotham, Lord|
|Cobbold, J. C.||Houldsworth, T.|
|Cocks, T. S.||Howard, Lord E.|
|Cole, hon. H. A.||Howard, hon. C. W. G.|
|Coles, H. B.||Howard, Sir R.|
|Colvile, C. R.||Inglis, Sir R. H.|
|Corry, rt. hon. H. L.||Jermyn, Earl|
|Cotton, hon. W. H. S.||Jocelyn, Visct.|
|Cowper, hon. W. F.||Jolliffe, Sir W. G. H.|
|Davies, D A. S.||Jones, Capt|
|Dickson, S,||Labouchere, rt. hon. H.|
|Disraeli, B.||Lacy, H. C.|
|Duckworth, Sir. J. T. B,||Lascelles, hon. W. S.|
|Duncuft, J.||Legh, G. C.|
|Dundas, Adm.||Lennard, T. B.|
|Dundas, rt. hon. Sir D.||Lewis, G. C.|
|Dunne, Col,||Lewisham, Visct,|
|Du Pre, C. G.||Lindsay, hon. Col.|
|East, Sir J. B.||Lowther, hon. Col.|
|Egerton, W. T.||Lowther, H.|
|Ellice, rt. hon. E.||Lygon, hon. Gen.|
|Elliot, hon. J. E.||Magan, W. H.|
|Emlyn, Visct.||Manners, Lord J.|
|Estcourt, J. B. B.||Martin, C. W.|
|Farnham, E. B.||Matheson, Col.|
|Fellowes, E.||Maule, rt. hon. F.|
|Ferguson, Sir R. A.||Maunsell, T. P.|
|FitzPatrick, rt. hn. J. W.||Melgund, Visct.|
|Floyer, J.||Meux, Sir H.|
|Foley, J. H. H.||Moore, G. H.|
|Forester, hon. G. C. W.||Morgan, O.|
|Fox, R. M.||Mostyn, hon. E. M. L.|
|Fox, S. W. L.||Mullings, J. R,|
|Freestun, Col.||Naas, Lord|
|Frewen, C. H.||Napier, J.|
|Fuller, A. E.||Neeld, J.|
|Gladstone, rt. hon. W. E.||Neeld, J.|
|Goddard, A, L.||Newdegate, C. N.|
|Gordon, Adm.||Newry and Morne, Visc.|
|Gore, W. R. O.||Nicholl, rt. hon. J.|
|Goulburn, rt. hon. H.||Nugent, Sir P.|
|Graham, rt. hon. Sir J.||Paget, Lord A.|
|Greene, T.||Palmer, R.|
|Grey, rt. hon. Sir G.||Palmerston, Visct.|
|Grogan, E.||Parker, J.|
|Guernsey, Lord||Patten, J. W.|
|Gwyn, H.||Pelham, hon. D. A.|
|Halford, Sir H.||Pennant, hon. Col.|
|Hallyburton, Lord J. F.||Pigot, Sir R.|
|Halsey, T. P.||Plowden, W. H. C.|
|Hamilton, G. A.||Plumptre, J. P.|
|Hamilton, J. H.||Powlett, Lord W.|
|Hamilton, Lord C.||Prime, R.|
|Harris, hon. Capt.||Pusey, P.|
|Hatehell, J.||Raphael, A.|
|Hawes, B.||Reid, Col.|
|Hayes, Sir E.||Richards, R.|
|Hayter, rt. hon. W. G.||Romilly, Col.|
|Headlam, T. E.||Romilly, Sir J.|
|Heald, J.||Rufford, F.|
|Russell, Lord J.||Tyrell, Sir J. T.|
|Seymour, Lord||Vane, Lord H.|
|Shelburne, Earl of||Verner, Sir W.|
|Sibthorp, Col.||Vesey, hon. T.|
|Smith, rt. hon. R. V.||Vyse, R. H. R. H.|
|Somerset, Capt.||Waddingson, D.|
|Somerville, rt. hn. Sir W.||Waddington, H. S.|
|Sotheron, T. H. S.||Walsh, Sir J. B.|
|Spooner, R.||Wellesley, Lord C.|
|Stafford, A.||Williams, T. P.|
|Stanford, J. F.||Willoughby, Sir H.|
|Stanley, hon. E. H,||Wilson, J.|
|Taylor, T. E.||Wodehouse, E.|
|Tenison, E. K.||Wood, rt. hon. Sir C.|
|Thicknesse, R, A.||Worcester, Marq. of|
|Thornely, T.||Wortley, rt. hon. J. S.|
|Thornhill, G.||Wynn, Sir W. W.|
|Tollemache, J.||Yorke, hon. E. T.|
|Townley, R. G.||TELLERS.|
|Trevor, hon. G. R.||Thesiger, Sir F.|
|Trollope, Sir J.||Cardwell, E.|
|List of the NOES.|
|Abdy, Sir T. N.||Hodges, T. L.|
|Aglionby, H. A.||Hollond, R.|
|Alcock, T.||Hume, J.|
|Anderson, A.||Hutchins, E. J.|
|Anstey, T. C.||Hutt, W.|
|Armstrong, Sir A.||Jackson, W.|
|Barron, Sir H. W.||Kershaw, J.|
|Bass, M. T.||King, hon. P. J. L.|
|Bernal, R.||Langston, J. H.|
|Bright, J.||Locke, J.|
|Brocklehurst, J.||Lushington, C.|
|Brotherton, J.||M'Cullagh, W. T.|
|Brown, W.||M'Gregor, J.|
|Bunbury, E. H.||Mahon, The O'Gorman|
|Caulfeild, J. M.||Mangles, R. D.|
|Clay, J.||Matheson, A.|
|Cobden, R.||Milnes, R. M.|
|Cockburn, A. J. E.||Mitchell, T. A.|
|Colebrooke, Sir T. E.||Morris, D.|
|Collins, W.||Mowatt, F.|
|Corbally, M. E.||Norreys, Lord|
|Crawford, W. S.||Norreys, Sir D. J.|
|Dawson, hon. T. V.||O'Connell, M.|
|Devereux, J. T.||O'Connell, M. J.|
|D'Eyncourt, rt. hon. C.||O'Connor F.|
|Douglas, Sir C. E.||Ogle, S. C. H.|
|Duke, Sir J.||Osborne, R.|
|Duncan, G.||Pechell, Sir G. B.|
|Duncombe, T.||Perfect, R.|
|Ellis, J.||Pilkington, J.|
|Fagan, W.||Pinney, W.|
|Forster, M.||Price, Sir R.|
|Fortescue, C.||Rawdon, Col.|
|Fox, W. J.||Reynolds, J.|
|Grace, O. D. J.||Rich, H.|
|Greene, J.||Robartes, T. J. A.|
|Grenfell, C. P.||Roebuck, J. A.|
|Grenfell, C. W.||Sadleir, J.|
|Grey, R. W.||Salwey, Col.|
|Grosvenor, Lord R.||Scholefield, W.|
|Hall, Sir B.||Scrope, G. P.|
|Hanmer, Sir J.||Scully, F.|
|Hardcastle, J. A.||Sheil, rt. hon. R. L.|
|Harris, R.||Sheridan, R. B.|
|Hastie, A.||Sidney, Ald.|
|Henry, A,||Somers, J. P.|
|Heywood, J.||Spearman, H. J.|
|Heyworth, L.||Stanley, hon. W. O.|
|Stanton, W. H.||Walmsley, Sir J.|
|Stuart, Lord D.||Watkins, Col. L.|
|Stuart, Lord J.||Wawn, J. T.|
|Tancred, H. W.||Westhead, J. P. B.|
|Thompson, Col.||Willcox, B. M.|
|Thompson, G.||Williams, J.|
|Tollemache, hon. F. J.||Wilson, M.|
|Trelawny, J. S.||Wyld, J.|
|Tufnell, rt. hon. H.||Wyvill, M.|
|Tynte, Col. C. J. K.||TELLERS.|
|Villiers, hon. C.||Wood, W.|
|Wakley, T.||Smith, J. A.|
§ Main Question again proposed.
§ LORD J. RUSSELL
said, after what had taken place, that it was doubtful whether the omission of the words "on the true faith of a Christian," were sufficient to justify its being recorded that Baron de Rothschild had refused to take the oath. I think the House ought to have time to deliberate as to whether either the Acts of Parliament, or the precedents and usage of the House, make it necessary or incumbent on it to proceed immediately to issue a new writ. I wish that time should be allowed for the utmost deliberation; and I hope the hon. and learned Gentleman the Member for Abingdon will not press his Motion at the present time, but that he will' consent to defer it to a future day to enable us to consider what course ought to be adopted.
§ SIR F. THESIGER
I am extremely anxious to leave this question entirely to the noble Lord. [Cheers.]Really, I sincerely mean what I say. On a question which concerns the privileges of the House, I think it is peculiarly for the noble Lord at the head of the Government to decide what course ought to be adopted. Of course, I have not so much knowledge of the rules and usages of the House as the noble Lord, and therefore I am anxious to receive his instructions on this subject, as to the proper course that ought to be adopted. I have no desire whatever to hurry this matter; but, on the contrary, inasmuch as there are precedents which require us, in my opinion, to act in a particular way in the position in which we are now placed, I am anxious that ample opportunity should be afforded for considering the proper course to be adopted. Therefore I adopt the suggestion of the noble Lord, and I do not see why that statement should have somewhat excited the other side of the House, because I was desirous to adopt the course most respectful and proper for the House. It may be desirable, under the circumstances, to proceed carefully, and to adjourn the House 529 for the purpose of ascertaining what may be the effect of the different precedents on this subject. With respect to the question as to the refusal of Baron de Rothschild to take the oaths, I think, if it is required by the House that we should have more distinct information on the subject, that it may be entered on the journals, of course I am ready to accede to that; for as this case itself may be taken as a precedent, the journals ought to be full and satisfactory on the subject.
§ MR. HUME
said, the hon. and learned Member for Abingdon seemed somewhat surprised at some little demonstrations of wonder at his conduct being exhibited on that side of the House. The hon. and learned Member now bowed, and said he was very anxious to leave it all to the noble Lord. Why did he not do that at first, instead of stepping forward to interfere with the course of the noble Lord? The hon. and learned Gentleman's speech was altogether inconsistent with his practice; he said one thing, and did quite another. For his (Mr. Hume's) part, he hoped the House would not accede to the hon. and learned Gentleman's wish; he trusted they would at once proceed to the division, and negative his Motion.
MR. V. SMITH
said, this was a matter for the House of Commons itself, and not for any Minister of the Crown, to decide. But when the hon. and learned Gentleman the Member for Abingdon talked of proceeding with excessive caution, he (Mr. V. Smith) must say a man that more rashly rushed to a conclusion than the hon. and learned Gentleman he never knew. To the present Motion it was impossible for the House to assent; because the hon. and learned Gentleman had been in such a hurry that he made a mistake in his Motion, and stated what was untrue, namely, that Baron de Rothschild had refused to take the oaths. Baron de Rothschild came to the table, and took every essential part of the oath; and when he came to a certain form at the end, he said, "I omit these words." No notice was taken of this at the time, and no hon. Member got up and remonstrated against it. Baron de Rothschild then covered his head (which is the custom with members of the Jewish persuasion), he kissed the book, and said, "So help me God!" If that was not taking the oath, he (Mr. V. Smith) should like to know what was. If, therefore, the hon. and learned Gentleman had not been in such a hurry to proceed without cau- 530 tion, he should have put it that Baron de Rothschild took the oaths, but omitted certain words which the hon. and learned Gentleman considered to be necessary, and then have framed his resolution accordingly. But what the hon. and learned Gentleman now did was, to ask the House to assent to what was false in point of fact—that Baron de Rothschild had refused to take the oaths. If an adjournment was to take place, he hoped it would be for the instruction of hon. Members, and that his noble Friend, or some other influential Member, would propose that they should have a Committee as to the issuing of a new writ, because they had had a Committee on the oaths, but, not on the voiding of the seat. That was a point on which they required information; but if they adjourned, he hoped they would not permit the hon. and learned Gentleman to withdraw his Motion, but would insist on negativing it at once, and then they would be able to proceed with due deliberation in the exercise of one of the most constitutional functions that any Member could ever be called upon to exercise.
§ SIR R. H. INGLIS
thought the right hon. Member for Northampton had been permitted to use language of a totally unparliamentary character towards his hon. and learned Friend the Member for Abingdon. The right hon. Gentleman said, his hon. and learned Friend had made a Motion that was "false" in fact—for these were the words; but let those who thought these words conveyed no imputation, consider the same language for a moment as applied to themselves. However, he would say no more as to that; but he rose chiefly because the right hon. Gentleman stated that the hon. Member for the city of London had taken the oaths. Now, if he (Sir R. Inglis) limited himself to one point in the oath of abjuration, he should still feel justified in calling the right hon. Gentleman's attention to what was the fact. Baron de Rothschild might have taken "an" oath, but he had not taken "the" oath—which was the whole point at issue. Supposing he had omitted to take Clause 3 or Clause 4, would the right hon. Gentleman then have said that he had taken "the oath." He (Sir R. Inglis) did not mean to deny that Baron de Rothschild might have taken "an oath," which he called the oath of abjuration; but he denied that he hail taken that oath which the law of the land and the usage of Parliament combine in requiring every Mem- 531 ber of the House to take before he could sit and vote; and therefore he contended that his hon. and learned Friend's Motion was neither premature nor ill-advised. The question was, whether the hon. Member for the city of London had or had not taken the oaths, and it would be found that he had declined to do so, because he had specifically said, "I must omit the words 'on the faith of a Christian,' because they are not binding on my conscience." He might have applied the same assertion to any other clause.
§ LORD J. RUSSELL
I rise, Sir, to move that the debate be now adjourned to Twelve o'clock on Thursday next; and I beg to state, that the hon. and learned Attorney General will then propose such a resolution or resolutions as he and I shall think most conducive to the dignity and usages of the House.
§ Motion made, and Question proposed, "That the debate be now adjourned."
§ MR. DISRAELI
hoped, if the adjournment took place till Thursday, they would be enabled to proceed with the consideration of the Lords' Amendments on the Irish Franchise Bill at six o'clock that evening. He understood that hon. Members with notices of Motion had expressed the most amiable disposition to advance public business, and if the hon. Member for Stroud would withdraw his Motion, there would be no obstacle to proceeding with the Bill that evening.
§ SIR B. HALL
did not object to the adjournment to Thursday, but he wished to remind the House that the resolution of the hon. and learned Member for Abingdon would have still to be decided on when the question next arose, and would have to be put from the chair before the noble Lord submitted his resolution. He, for one, should insist that the Motion of the hon. and learned Member for Abingdon should be affirmed or negatived by the House, and would not allow it to be withdrawn.
§ MR. W. P. WOOD
said, that as the object of the adjournment was to enable the noble Lord to submit some proposition to the House which could not be submitted as an amendment on the resolution of the hon. and learned Member for Abingdon, on which the sense of the House must be taken, he could not see why they should not dispose of that resolution now.
§ MR. ROEBUCK
wanted to know why they were going to adjourn at all? All the real facts were before them, and their sole 532 remaining duty was to draw the conclusion. If they were to adjourn without any expression of opinion on the resolution, they would be as far from a conclusion as ever.
§ MR. HUME
appealed to the House if the noble Lord was not doing an act of grave injustice to the hon. Member for the city of London? The question stood now as recorded, that the House had admitted for the time a new writ ought to issue. Really the question ought to be disposed of one way or other. In justice to the hon. Member for London, the resolution ought to be forthwith negatived or withdrawn.
§ MR. C. ANSTEY
wished to ask the noble Lord, whether he proposed an adjournment on the ground that the resolutions he intended to frame would be of such a character that the hon. and learned Gentleman the Member for Abingdon and his friends, would allow their resolution to be negatived when they heard them next Thursday, in order to insure the success of the noble Lord's proposition?
§ MR. AGLIONBY
hoped the House would not hesitate to take a division on the Motion of the hon. and learned Member immediately. He could not consent that the hon. and learned Member should throw on Government all the responsibility and odium of further delay. The Government had quite enough odium and responsibility as it was, and they certainly ought to support hon. Members in opposing the resolution, and in rejecting it at once. Let them make the field clear for Thursday next, and then take their own course honestly and conscientiously.
§ LORD J. RUSSELL
Some hon. Members have asked me, and especially the hon. and learned Member for Sheffield, questions with respect to the course I have proposed to adopt. Now, I have stated, I think it desirable this resolution should be adjourned, and I am fully aware that, when it comes before us on Thursday next, the resolution I may have to propose cannot be brought forward as an amendment to the resolution of the hon. and learned Gentleman the Member for Abingdon; but if the adjourned debate comes on, I shall propose to negative that resolution; and then the hon. and learned Attorney General can propose such a resolution as he shall think fit. It appears to me that this is the better course to adopt. The hon. and learned Member for Cockermouth has advised me not to take the odium of postponing this 533 resolution, and of not negativing it at once. I can only say that appears to me to be the course the House ought to take, and that it is better to adjourn the debate on this resolution, than proceed at once to a decision upon it. As to any quantity of odium being incurred thereby, I don't think I should have been at all wise in accepting the office of Minister of the Crown if I had not been ready to bear any amount of odium which the hon. and learned Gentleman or others might think fit to throw upon me. If I wish to avoid odium, I fear I can hardly act honestly and conscientiously.
§ MR. AGLIONBY
explained. He had not referred to any odium attaching to the noble Lord, but to the hon. and learned Gentleman the Member for Abingdon's throwing odium upon the Government.
§ SIR F. THESIGER
said, he was perfectly secure in leaving the question in the hands of the noble Lord; and for the purpose of removing any impediment which might be offered to the noble Lord by his resolution, he was content to withdraw it. If the House would not permit him to withdraw his resolution, he was ready to have it negatived, on the understanding that his object in doing so was to make way for the proposition of the Government.
§ Motion, by leave, withdrawn.
§ Main Question put, and negatived.