HC Deb 28 July 1851 vol 118 cc1607-27

Order read for resuming Adjourned Debate on Amendment proposed to Question [22nd July]— That David Salomons, Esq., is not entitled to vote in this House, or to sit in this House during any Debate, until he shall take the Oath of Abjuration in the form appointed by Law.


said, he dissented from the Resolution as it stood, and, even when amended, it was by no mean such as he could wish; but he would accept it, as affording a fair chance of bringing to a satisfactory decision a question of a most unpleasant nature. He could not entirely approve of this Amendment, because it seemed to call on the hon. Member for Greenwich to take the oath of abjuration a second time—for that the hon. Member had taken the oath already he firmly maintained; but it was better he should take it a second time than have his seat in Parliament sequestrated; and without some such resolution as that now proposed, the hon. Member would be excluded from all privileges belonging to the seat, though the seat—as in the case of the hon. Member for the City of London—might be declared full. The noble Lord at the head of the Government seemed to press for a decision on this question. The noble Lord could hardly object to the House paying some regard to the religious scruples of the hon. Member for Greenwich: indeed, he (Mr. Anstey) was glad to see the House adopting more liberal views, to judge by the example of the hon. Member for the University of Oxford (Sir R. H. Inglis), who last year tenaciously adhered to the notion that until Baron Rothschild abjured Judaism and professed Christianity he was not entitled to be spoken of, even in courtesy, as the hon. Member for the City of London; but who had now abandoned that notion, and spoke of Alderman Salomons as the hon. Member for Greenwich. The effect of the oath was the substance of the oath, and the hon. Member for Greenwich had been called on to subscribe to the effect of the oath. He (Mr. Anstey) had repeatedly quoted two Acts of Parliament (8 Geo. I. and 1 Geo. III.), in which the effect and the solemnity of the oath were separated; and whilst lawyer after lawyer had been raising technical objections, they had in no way referred to his argument on those statutes. His argument was, that when Parliament had declared what was of force and effect in the oath, common law would step in and take the effect as substance of the oath in one hand, and with the other change the solemnity, to afford relief to persons willing to subscribe to the substance, but not capable of subscribing to it in a particular form. In neither of those statutes to which he had referred did the words "on the true faith of a Christian" appear, and, therefore, it was evident those words were not considered part of the substance of the oath, but merely the form of adjuration. Under the 6th George III., chap. 53, there would be no adjuration in the oath at all, unless "on the true faith of a Christian" was that form, because the words "so help me God" were not contained in it. To transfer legality of title from Sovereign to Sovereign, the body of the oath had been altered, not by Act of Parliament, but by Resolution of the House; "Queen" had been substituted for "King," and "United Kingdom of Great Britain and Ireland" for "Great Britain and Ireland: if, then, the House had power to alter the body of the oath, they had much more to alter the form of adjuration. In the case of Mr. Pease, the House not only resolved that the words "the true faith of a Christian "should be omitted—although, if those words had not been thought to form the adjuration, Mr. Pease, as a Quaker, would have had no objection to repeat them—but even altered some passage in the body and substance of the oath, in which an allusion was made to "force of arms." Either the alterations made already were illegal, or the alterations he proposed were legal; and the House having altered the oath by resolution on former occasions, could do so again in the present instance. The Attorney General had said there was no parity between the alterations he proposed and the alterations in former instances; if it was only the alteration of a word, he (the Attorney General) would agree to it, above all, if that word was a proper name. Supposing the hon. Member for Greenwich had read on to the word "Christian," and concluded the oath with the words "on the true faith of a Jew, so help me God," here would have been only one word altered—one proper name substituted for another proper name, and the all-important words "on the true faith" would be retained. It might be absurd to put such a case; but the Attorney General compelled the absurdity, for that was the legitimate and natural consequence of the right hon. Gentleman's argument when pushed to its extreme. The hon. Members opposite, and especially their great leader in another place, had objected to the admission of the Jews upon conscientious grounds. But what did the Earl of Derby say when he was consulted on a similar matter in his capacity of a Privy Councillor and a Minister of the Crown, and not as the leader of a faction? Did he say then, as he said now, that these words were a part of the constitution—that they meant a profession of Christianity, and that to change them would be to change the religion of the State? In the year 1829 Sir James Kempe, the Governor of Canada, consulted Sir George Murray, the then Secretary for the Colonies, on an opinion of the Canadian Attorney General as to the effect of a local Act to extend certain privileges to persons professing the Jewish faith. By a clause in the 31st George III., chap. 31, certain local and provincial Acts were required to be laid before Parliament and the Sovereign, through the Secretary of State for the Colonies, before they could pass into law; and amongst those required to be so submitted were all Acts containing any provision relating to any religious form or mode of worship. The question was whether Acts removing the civil disabilities of Jews in Canada must necessarily be submitted to Parliament, and allowed by the Queen. That question was much considered by the Duke of Wellington and the law advisers of the Crown under his administration, and by Lord Grey and the law advisers of the Crown under his administration, until four years afterwards, when, on the 28th of August, 1833, Lord Derby, then Mr. Stanley, wrote thus to Lord Aylmer, the then Governor of Canada:—"I am not aware why this difficulty (the Jewish disabilities) should not be removed by an enactment of the provincial legislature. If it is supposed that such a law should be laid before Parliament, I cannot think the opinion well founded." He (Mr. Anstey) thought the noble Earl was right in 1833, and wrong in 1851. The question recurred, "Why did they swear the hon. Member for Greenwich on the Old Testament? Because he was a Jew. What authorised them to do that? The Common Law. The House merely followed the example of courts of justice, who every day decided that "the Holy Gospel" of the Jew was contained in the Pentateuch. In the same way he held that the House would be justified in allowing the omission of the words "on the true faith of a Christian." He conceived that the House of Lords had no concern in the matter. All that was required to be done was a mere ministerial Act, and this the House of Commons were perfectly competent to do of their own accord. The noble Lord at the head of the Government professed to be anxious to see the hon. Member for Greenwich admitted. Why, then, did he throw an obstacle in the way of the settlement of the question? The House was not asked to decide the question, but merely to leave it for the decision of a court of justice. The Resolution proposed by the noble Lord, however, might so far prejudice the case as to create a doubt in the minds of a jury whether, in the face of such a Resolution, they would be justified in deciding in favour of the hon. Member for Greenwich. It was quite true that this difficulty might be overcome when the rest of their proceedings were put in evidence, and when the jury were informed by what inconsistent steps the Resolution had been arrived at; but this would depend upon the condition that they had a bench of Judges and twelve men in the jury box, of firmness, acuteness, honesty, and enlightenment sufficient to enable them to disregard the terrors of interfering with Parliamentary privileges, and to do their duty to the subject. But it was because he did not wish to reduce the question to this fearful contingency, that he wished the House to adopt the Amendment proposed.


said, he had taken no part in the discussion of this question, either on this or on former occasions; not because he had underrated the importance of the subject, but partly because the matter was amply discussed by others, and partly because the conclusion at which he had arrived was a painful one, against which he had struggled, and was consequently not one which he was desirous of pressing upon those who could conscientiously come to a different result. But the case had now assumed a different aspect, and he was therefore anxious to state the view he took of it. In the first place, he begged to say that he did not think it possible to exaggerate the absurdities and inconsistencies that existed under the present law. He felt that the oath of abjuration was utterly unsuitable to the present times; had become entirely obsolete, and that it was not desirable for any reason whatever that it should be retained. As had already been remarked by his hon. and learned Friend the Member for Youghal (Mr. Anstey), "the descendants of the person who pretended to be Prince of Wales during the life of the late King James II." were all extinct; and even had they not been extinct, they would not be of any importance in modern times, such as to make it desirable that they should be made the subject of an oath. Under these circumstances, the oath was worse than useless—it was most objectionable to compel Members when they first entered upon their duties in that House, whether they were Christians or Jews, to go through the solemnity of taking that unnecessary oath: it was a practice calculated to impair the idea of the sanctity of an oath, and to weaken the sense they would otherwise have of the engagements which upon such occasions they might fairly be called upon to enter into. If the oath itself was obsolete and unsuited to the times, the mode in which it was taken was still more improper, and, in his mind, approached even to blasphemy. In the first place, they handed to a Jewish Member coming to the table of the House an Old Testament, thereby recognising his denial of the truth of Christianity, and then, after recognising his denial of the truth of Christianity, they called upon him to swear upon the true faith of a Christian. It was also most unfair and ungenerous to retain an obsolete formality, not for the purpose for which it had been created, not for any purpose which was ever imagined by those who framed it, but for the purpose of making it the means of precluding a portion of our fellow-subjects from the exercise of their just rights and privileges, which rights and privileges could not be now taken away by open and direct legislation. For his part, however, even if the evils and inconsistencies of the present law were ten times as great as they are, he did not think the House would be justified in so far violating the constitution as to take upon itself the power of altering the law and redressing the evil without reference to the other branch of the Legislature. This proposition seemed to him so clear and self-evident, that he felt he was open to the charge of uttering simple truisms, when he stated it to the House; but at the same time when Motions like the present were seriously proposed for their adoption, it became necessary to state such propositions, however obvious and undoubted they might be. Though, however, it was quite clear that the House of Commons alone could not alter the law on account of its evils; yet he admitted it was a different question what the existing law really was, and whether a Jew could be permitted to omit the words "on the true faith of a Christian." Although on this question he had a strong opinion, yet, after the conflicting statements that had been made by high authorities on the subject, it would be presumptuous in him to say that the matter was absolutely free from doubt. If, however, the subject was accurately considered, the apparent difficulties would vanish, and he thought that the House would at once see that they had no power to allow the Jew to omit the words in question from the oath. Much misconception had arisen from the fact, that they had allowed the Jew to swear on the Old Testament. Members imagined that the House in so doing had exercised somewhat of a dispensing power, and they thought that if a power existed to alter, for the sake of the Jew, the mode in which the oath was administered, the book on which he was to be sworn, then that by an exercise of a precisely similar power, they might omit the words "on the true faith of a Christian," from the oath itself. This idea was not an unnatural one, but it arose from an inaccurate conception of the principle upon which the House proceeded, when it allowed the hon. Members for London and Greenwich to swear on the Old Testament. The fact was, that this House exercised no dispensing or peculiar power upon that occasion: it simply administered the oath in the manner prescribed by the common law, which is, with respect to a Jew, by swearing upon the Old Testament. By the 6th of Geo. III., the Act prescribing the present oath, two things had been enacted, first, that the oath should be taken, and second, that a certain form of words should be used. When the statute enacted that the oath should be taken, it did not prescribe whether it should be taken on the Old or the New Testament, but left that to be decided according to the common law. When they referred to the common law they found that it was quite as much a portion of that law that the Jew should be sworn on the Old Testament, as that the Christian should be sworn on the New Testament. This was the view taken and acted on by Lord Hardwicke. The House, therefore, in permitting Jews to be sworn on the Old Testament, exercised no inherent power of its own, but simply adopted and acted upon the practice of the common law, as laid down by Lord Hardwicke, and recognised at various different periods; but the statute itself gave no power to omit from the oath any expressions which it contained, and which were in truth intentionally introduced in consequence of the distrust at that time prevailing with respect to the Roman Catholic subjects of the Crown. A good deal had been said as to whether the words "on the true faith of a Christian" were of the substance of the oath, or whether they were simply words of adjuration. It was, however, quite a separate and distinct matter to leave out words from the body of the oath; and the practice of Jews swearing by the common law on the Old Testament, constituted no argument, afforded no analogy, to justify the House in exercising such a power. In his view, the question was not very material, because, whether they were of the substance of the oath, or words of adjuration, in either case they were something prescribed by the statute in addition to the ordinary taking of an oath. There was no doubt but the words "on the true faith of a Christian," as well as other expressions in the oath, were distinctly prescribed by the Legislature as guarantees to be enforced by the House; and therefore, however absurd the law might be, there was no authority enabling the House to omit those words, and the oath must be taken according to the form prescribed. An argument had been raised on the 10th George I., which he confessed had surprise him. That statute was quoted as an authority to justify the House in leaving out the words in question. The legitimate argument from the statute was directly the reverse. For a particular period, and a particular occasion, this Act authorised the omission of those words. The inference was, that except on that occasion the omission was not authorised, and that it required an Act of Parliament to justify such an omission. His hon. Friend the Solicitor General felt that this statute was opposed to his view, and laboured to reduce its effect. And the other, the Government argued strongly from these statutes in favour of their view; but neither party last year thought that it could be seriously argued, that this statute afforded an argument in favour of the omission of these words from the oath. What then was the House to do? It would not, in his mind, be doing its duty if it tamely submitted to the decisions come to in another place on a question involving the principles of religious liberty, and in favour of which the majority of that House had again and again declared. The electors of the city of London had exhibited a steady perseverance in this question; and they would not be doing their duty towards them or towards themselves if they allowed the question to rest in its present state. How then must it be carried? Not by violating the constitution or the law; but it must be carried in the same manner as other great questions which were opposed by a minority, namely, by throwing upon those who resisted the change, the responsibility of carrying on the Government upon the principle involved in that resistance. He believed that if the Government took up the question next year in an earnest and sincere spirit, success would attend their efforts. He regretted the delay that had already taken place; but there was this consolation, that when this measure was carried, as carried it would be, it would be more valuable than if carried in the first instance, and would effect a triumph by promoting the cause of civil and religious liberty, not only in this country, but throughout the world.


did not conceive that noble Lords who had thrown out the Jews Bill in another place, had exercised more than their constitutional privileges; neither did he participate in the opinions of some individuals who charged the noble Lord at the head of the Government with lukewarmness and indifference on this question. He believed the noble Lord to be sincerely anxious for the success of the measure which he sent up to the Lords, and that no man was more desirous to admit the Jews to seats in the Commons' House. With regard to moral influence, he did not see how the discussions of the last few days could have the effect of exercising any moral influence over those who rejected the Jews Bill in another place, as those discussions had had no relation to the propriety of the measure, but only to the law of the question. As regarded the law, he did not agree in the conclusions of his hon. and learned Friend who last spoke. In order to ascertain what the law really was, it was necessary to look into the black-letter Acts on the question. The first of all these Acts was that of the 13th of William and Mary, which provided that the oath of abjuration should be taken before any Member could take his seat. The Act of the 1st of George I., ch. 13, introduced a new oath, but it had reference only to persons in the pay of the Government. Another Act, the 9th of George I., passed, which extended the abjuration oath beyond the parties referred to in the Act of the 1st of George I. It extended to every person in England, Wales, and Berwick-on-Tweed, and the oath was to be taken before the 25th of November. If not taken by that time, it was to be taken before the 25th of March in the following year. In the following year the 10th of George I. was passed, and it extended to all the subjects of His Majesty, except women, who were expressly exempted. In the last clause of that Act it was provided that when the oath was tendered to persons of the Jewish persuasion, the words "on the true faith of a Christian" should be omitted. That showed that the oath was to be taken in the form which was most binding on the conscience. His hon. and learned Friend said that this Act was of local application, and only passed for a particular time. No such thing, for every person in the kingdom was to take the oath in the form prescribed in the Act of Parliament except the Jew, in whose favour the words "on the true faith of a Christian" were omitted. This showed the meaning of the Legislature, and proved that the terms in question might be varied according to circumstances. For if a Jew took the oath, omitting the words "upon the true faith of a Christian," and a Christian took the oath with those words, what was the difference in regard to what they swore to? Did they swear to a different thing? No. The difference was not in what they swore to, but in what they swore by; one swore by the faith of a Christian, the other swore on the faith of a Jew. That was no part of the oath, but only of the adjuration; and since the case of "Omichund v. Barker," the rule had been that the adjuration which was binding upon the conscience was to be observed.

Question put.

The House divided:—Ayes 50; Noes 88: Majority 38.

List of the AYES.
Aglionby, H. A. M'Cullagh, W. T.
Alcock, T. Martin, J.
Barron, Sir H. W. Mitchell, T. A.
Bethell, R. Murphy, F. S.
Boyle, hon. Col. Norreys, Sir D. J.
Brocklehurst, J. O'Brien, J.
Brotherton, J. O'Connell, M. J.
Cowper, hon. W. F. Osborne, R.
Crawford, W. S. Pilkington, J.
Currie, R. Scobell, Capt.
Dawes, E. Scully, F.
Devereux, J. T. Smith, J. A.
D'Eyncourt, rt. hn. C.T. Spearman, H. J.
Duke, Sir J. Stuart, Lord J.
Ellis, J. Tancred, H. W.
Evans, Sir De L. Thompson, Col.
Evans, J. Thompson, G.
Fitzroy, hon. H. Thornely, T.
Forster, M. Tollemache, hon. F. J.
Fox, W. J. Villiers, hon. C.
Geach, C. Wakley, T.
Heathcoat, J. Walmsley, Sir J.
Henry, A. Willcox, B. M.
Hutt, W.
Kershaw, J. TELLERS.
Langston, J. H. Anstey, T. C.
Locke, J. Hobhouse, T. B.
List of the NOES.
Baines, rt. hon. M. T. Hallewell, E. G.
Bankes, G. Hamilton, G. A.
Baring, rt. hn. Sir F.T. Hanmer, Sir J.
Barrow, W. H. Hastie, A.
Bellew, R. M. Hatchell, rt. hon. J.
Beresford, W. Hawes, B.
Birch, Sir T. B. Headlam, T. E.
Booth, Sir R. G. Heald, J.
Bouverie, hon. E. P. Henley, J. W.
Bowles, Adm. Hervey, Lord A.
Bremridge, R. Hildyard, T. B. T.
Buller, Sir J. Y. Hodges, T. L.
Bunbury, E. H. Hogg, Sir J. W.
Cabbell, B. B. Hotham, Lord
Campbell, hon. W. Inglis, Sir R. H.
Campbell, Sir A. I. Jones, Capt.
Cardwell, E. Labouchere, rt. hon. H.
Child, S. Lacy, H. C.
Clements, hon. C. S. Lewis, G. C.
Cockburn, Sir A. J. E. Lindsay, hon. Col.
Cocks, T. S. Lockhart, A. E.
Coles, H. B. Lowther, hon. Col.
Collins, T. Manners, Lord C. S.
Cowan, C. Morris, D.
Craig, Sir W. G. Naas, Lord
Cubitt, W. Newdegate, C. N.
Currie, H. Oswald, A.
Denison, E. Packe, C. W.
Dodd, G. Palmerston, Visct.
Dundas, Adm. Parker, J.
Dundas, rt. hon. Sir D. Portal, M.
Dunne, Col. Reid, Col.
East, Sir J. B. Ricardo, O.
Ferguson, Sir R. A. Richards, R.
Forester, hon. G. C. W. Rumbold, C. E.
Freshfield, J. W. Russell, Lord J.
Fuller, A. E. Sandars, G.
Goold, W. Seymour, Lord
Gore, W. O. Somerville, rt. hn. Sir. W.
Goulburn, rt. hon. H. Spooner, R.
Graham, rt. hon. Sir J. Stanford, J. F.
Gwyn, H. Thesiger, Sir F.
Wigram, L. T. Wood, rt. hon. Sir C.
Williamson, Sir H. Wrightson, W. B.
Hayter, W. G. Hill, Lord M.

said, that he begged to represent to the noble Lord and to the House the manner in which the proceedings of Her Majesty's Government, and of the noble Lord at the head of it, would be regarded in after times. Let them observe the state of the question before the House. A point having arisen whether certain Gentlemen elected Members of that House by overwhelming majorities of two of the largest constituencies of the kingdom should be sworn at the table of the House, and in what manner that should be effected, it had been admitted on all sides of the House that there was no principle in law nor any statutory enactment that prevented the admission of the Jew to be a Member of that House; but Gentlemen on the other side of the House discovered that the form used, and particularly the language at the end of it, might serve the purpose that they had in view. Accordingly, professing to act on Christian principles, and with a view to preserve the Christianity of the House, they adopted the principle of letting the end sanctify the means; and although it was admitted on all sides that the words in question were not intended to have any reference to Jews, and although it was plain by the language of the Act of Parliament that they were introduced for a purpose altogether different and diverse, still those Gentlemen had not scrupled to avail themselves of that technical objection, and upon that to rest the whole of their opposition to the admission of the Jews. Now, let them observe, that upon this question the great principle evolved itself for the first time—shall any citizen of this empire, in all other respects qualified to be elected a Member of that House, be excluded from the House on account of his religious faith? He repeated that this principle now for the first time evolved itself, for it never arose with respect to the Roman Catholic, who was not excluded on account of his religious faith, but because it was believed, rightly or wrongly, that, along with his religious faith he held a particular political tenet—that citizens and subjects might be absolved from their allegiance; and it was on that ground, and that alone, that Papists were excluded. To have struggled for the whole of his life to establish the great principle of civil and religious liberty, had been the pride and glory, and would hereafter be the greater part of the reputation, of the noble Lord at the head of the Government; but he (Mr. Bethell) regretted his shortcomings on this occasion. The moment that this technicality was brought forward on the other side, he might have crushed the petty attempt, and have upheld and carried out a great principle, had he really had faith in it; and that House and the country would have abided by him in that course. He might have declared that the Jew, if not excluded by common or statute law, should not be excluded by this wretched attempt to pervert mere formal words into substance, and to convert them into a purpose altogether alien from that contemplated by the Act of Parliament. But, playing the game of his opponents, he gave up that great principle, and declared his intention to bring in an Act to make law of that which was already the law. By so doing, he brought the matter to this pass, that unless those on that side of the House who were in favour of this great principle took their stand there, and fought out the battle that he should have fought, this great question must be altogether abandoned until the light of free discussion should break in upon another place. He called on him not to pursue so suicidal a course as to bring forward a Resolution, which was a most wretched and miserable conclusion of these debates and this protracted investigation of the subject, inasmuch as it was really no more than the question itself, in the shape of an affirmative proposition couched in very bad English. That Resolution declared that Alderman Salomons was not entitled to sit and vote in that House, not having taken the oath in the form appointed by law. Now what was the form appointed by law, and whether Alderman Salomons had taken the oath or not, were the questions that had been so much discussed, and they were questions which it belonged to that House to decide. If there were a difficulty about the matter, he trusted that House would adopt a course analogous to that pursued by the other branch of the Legislature. Had a question of similar difficulty arisen there, recourse would have been had to the advice of the learned Judges on the construction of the statute. Now, the duty of the House of Commons as legislators was at an end when they had made the law; its interpretation belonged to the proper tribunals of the country. And as they had not the opportunity of consulting the learned persons who presided there, the proper course on a question which certainly admitted of great doubt would have been, not to bring forward a Resolution that should conclude the matter, stifle discussion, hang up this question in a most unsatisfactory state, and be, so far as that House was concerned, a prohibition of further agitation on the subject, but to have left the matter to the decision of the proper tribunals to whom the constitution had committed the sole right of interpreting the statute law when once it was passed by the Legislature. But, although entreated to adopt that course, and to admit of the light to be derived from the learning which would have been brought forward by the learned counsel at the bar, the noble Lord had refused, as far as he was concerned, to promote any further discussion, and was now prepared to contend that this matter should not be put in course of investigation and trial before the proper tribunals of the country, and would not lend his aid to have this important legal question legally determined. Let them do what they would, however, to prevent a trial in a court of law, it would be had, and the opinion of a court would be pronounced; and what reputation and character would they have before the country, if, having prevented any further discussion in that House, by a resolution of the kind proposed (totally at variance with what they had previously professed), they were found to have put upon a statute an interpretation totally at variance with the judicial and rightful interpretation of it by the Courts of Westminster Hall? They must then do that which they had been obliged to do before, whenever the House had been brought by its leaders into conflict with the people, instead of being the exponent of their desires, feelings, and wishes. The House was in a false position whenever it put itself in opposition to the great constituencies. They had placed themselves in that false position, and they might depend upon it that on every vacancy which arose Jews would come forward, and if there was any liberty or independence in the constituency, they would be returned; and if the Parliament lasted long enough, Jew after Jew would be returned, until they were brought to a sense of their position by the miserable absurdity in which they found themselves involved. For what could be more absurd than to admit that Baron Rothschild was the legal Member for the City of London, and Alderman Salomons for Greenwich, and yet to refuse to admit them to a seat in that House; thus overruling all the political rights of that large body of the constituency of the United Kingdom by a resolution which refused to allow the matter to be investigated? He begged the House to consider how disadvantageously their course on this occasion contrasted with former precedents. The case of Wilkes had been alluded to; but there was another, that of Horne Tooke, which had not yet been cited in the course of the debate. Horne Tooke, being a priest in holy orders, was permitted to take his seat, and on that occasion a question was raised as to whether the election was legal, or whether the election was not a void one altogether. On that point there was a great difference of opinion, and many conflicting opinions were given by lawyers who were Members of the House. The House resolved that, in consequence of those doubts and of the difficulties in the state of the law, they would pass a Bill to alter the law, or rather, in fact, to declare it for the future; yet Horne Tooke retained his seat, spoke throughout the whole of that Session, and continued to sit, act, and vote as a Member of that House until its termination. The House in that instance did not proceed to the disfranchisement of the constituency which elected Horne Tooke, or to the exclusion of the elected Member. He adverted to that matter to show in what a different way that Parliament acted when a question was started and difficulties arose with regard to what was the law. He humbly submitted that in conformity with what had previously taken place, they could not exclude Mr. Salomons until the whole question bad been discussed before a tribunal which was the legal expositor of the law in question, and to whose decisions on the point the most bigoted and obstinate in that House would have the grace to submit. He entreated the noble Lord to withdraw this Resolution, and to consider what sort of an account he would have to give of his conduct in this matter, when he might unquestionably have prevented matters reaching their present pass, or at all events have suspended the decision of the House until the question had been submitted to a legal tribunal. He was far from wishing that any question which it was one of the privileges of that House to decide, should be determined by another court; but this question involved what was part of the law of the land, and they would, therefore, involve themselves in no inconsistency, or any surrender of their undoubted privileges, in obtaining from a court of law the proper construction of the law, for in all that they had been doing they had been professing to be trying to ascertain, and then to follow, what was the law according to the true construction of the statute. He begged the noble Lord, out of regard to his own credit, to let the matter rest undetermined at all events for this Session, further than it might be considered to be prejudiced by the proceedings of last Session, which went upon different grounds; and, in the meantime, let an effort be made to obtain an interpretation, by the tribunals to whom the constitution had committed the duty, of that statute upon which Gentlemen on the other side relied, and which those on that side of the House admitted to be the only obstacle to the admission of the Jews.


said, that he must observe that although the hon. Gentleman who had just resumed his seat was a very eminent lawyer, with all the resources at his disposal that his knowledge of the law gave him, he had carefully abstained from all reference to the legal part of the question. He had instead appealed to him (Lord John Russell), and had said that if he valued religious liberty, and would follow the broad principles of the constitution, and had a regard for religious peace, he would act as he (Mr. Bethell) advised him. But as this was a legal question, he thought the hon. and learned Gentleman should have shown that the course which he had recommended was in accordance with the law; for whatever might be his (Lord John Russell's) opinion on the advantage of admitting a Jew in Parliament, he could not act on those principles if the law were against him. If the hon. and learned Gentleman had shown him that it was clear according to law that they might admit Mr. Alderman Salomons to take his seat in that House, and could have shown him how he could effect, what he wished to see, all religious disqualifications abolished, he could understand that being urged upon him as an additional argument; but that on a question of law this should be the only motive appealed to, only showed that the hon. and learned Gentleman, who was so good an authority, did not rush into those topics that others less acquainted with the law were apt to do; but, on the contrary, he carefully abstained from them, because he knew the ground, and knew that it was ground upon which he could not obtain a sound footing. The hon. and learned Gentleman had also on this, as on former nights, avoided all reference to the history of this case, and had spoken as if he (Lord John Russell) had for the first time brought forward a resolution which he had concocted in bad English (as he was pleased to say), and had endeavoured to induce the House to adopt it for the first time. But this Resolution, as those who had been longer in the House than the hon. and learned Gentleman were well aware, was not an original resolution of his (Lord John Russell's); and this was not the first time that it had come before the House. Last year his hon. and learned Friend the Solicitor General had a Committee on this subject; and though that Committee was not authorised or desired to report opinions, yet in the course of the discussions in that Committee, it was not difficult to discover what was the opinion of Members of that Committee on that subject; and out of twenty Members who composed that Committee, his hon. and learned Friend the Member for Oxford had not more than one Member with him upon the question as to whether Baron Rothschild could take his seat. It was quite evident what was the opinion of the legal members of that Committee, and of others who had had long experience in that House; they were not prepared to defend the view which the hon. and learned Member for Oxford (the Solicitor General) took upon the question. What occurred when Baron Rothschild came to the table of the House to take the oaths? His right hon. Friend.the Master of the Rolls proposed two resolutions, one of which was in the terms of the Resolution now before the House; and after a great deal of discussion, and after an Amendment had been moved by the hon. Member for Montrose (who, he regretted to say, was now absent from indisposition), the House decided by a majority of 166 to 92 in favour of the Resolution which now stood on the Journals of the House. So that, so far from the House adopting and placing on its records for the first time this Resolution, they would only be reaffirming what they had already adopted. That being the case, it did not appear to him necessary again to argue the reasons for this Resolution. Alderman Salomons having taken a course not exactly the same as, but similar to, that taken by Baron Rothschild, it appeared to him, if the House came to any resolution on the subject, that that which it could most fitly come to was the Resolution already placed on its Journals. The hon. and learned Gentleman said, "Why not take the opinion of a court of law?" He (Lord John Russell) had no objection to the opinion of a court of law being taken on those questions which properly belonged to such a tribunal; and they had been informed that day by the hon. Member for Greenwich (Mr. Alderman Salomons) that the opinion of a court of law would be taken as to whether or not he had incurred the penalties contained in an Act of Parliament. Now, that was a question which properly came before such a court; but how they could refer to a court of law the question whether a Member at the table of the House had properly taken the oaths or not, he really could not conceive. For that House to wait there till a court of law had given its opinion on that point, was a course which he thought the hon. and learned Gentleman must see it would be impossible for the House to adopt. The hon. and learned Gentleman quoted some cases, and others had quoted them, as if they were precedents in this matter. But he held that these precedents were totally inapplicable. In one instance, that of Mr. Wilkes, the House of Commons, proceeding on its own view of its own powers, chose to say that the author of a libel ought to be expelled from the House, and afterwards that a Member who had been expelled from that House could not sit in it again. But in those cases the House proceeded entirely on its views of its own character, and on certain precedents which were thought to bear on the question. They were not proceeding upon the construction of any law; but, right or wrong (and he believed they were very wrong), they were proceeding on their own opinion of what the House ought to do in a matter on which the law did not guide them. So that these precedents had nothing to do with the present case; and he must again repeat that the question before them was whether they were right or wrong in the interpretation of the Act of Parliament which stood before them? The hon. and learned Gentleman spoke of the question as if it were a matter for his (Lord John Russell's) discretion, or the discretion of the Members of that House to settle. But, as far as he could learn, hitherto, and until the last year certainly, it had been generally supposed that the interpretation of the law could not be other than that which the House had put upon it. It was alleged that the case relating to the oath of abjuration was not exactly the same, but very similar to that of a declaration contained in an Act of Parliament which he had had the honour of introducing in that House. It was a declaration which persons admitted to offices were allowed to make, and to that declaration was added by the House of Lords an Amendment, to which this House afterwards assented—the words "on the true faith of a Christian." Yet, in 1845, and not without former precedents, a Bill was introduced by Lord Lyndhurst—a considerable authority in any matter of this kind—and in the preamble of that Act it was declared, "Whereas, persons of the Jewish persuasion cannot conscientiously make the declaration contained in the Act" to which he had referred. Why, according to the doctrine now laid down, that preamble should have been that the parties were not obliged in that declaration to use the words "on the true faith of a Christian." Instead of which here was an Act of Parliament, solemnly passed by Parliament, declaring with respect not to all offices, nor to every instance in which the declaration was required to be taken, but with regard specifically to municipal offices, that the words "on the true faith of a Christian" should not be necessary to be taken, and that those having a conscientious objection to the words so mentioned might make the effect of the declaration in other words. This Act of 1845 was an additional proof that hitherto the law was interpreted in the sense in which he understood it. He thought the House of Commons could not do otherwise, therefore, than to persist in its previous course, and attach the same sense to these words. If, in the course of the question coming before a court of law, any new light should be thrown on the subject, there was no reason why the House of Commons should not avail itself of that new light; but he thought all the information which they had at present before them, must induce them to believe that they would overstep the law if they permitted Alderman Salomons to take his seat without taking the whole of the declaration.


said, he could not allow the arguments of the noble Lord to pass altogether unnoticed. Since the agitation on the Jew question first began, an Act had been passed, and the preamble of that Act the noble Lord applied as a kind of argument against the right of a Jew to sit in Parliament. Now, the first legislative measure to relieve the consciences of the Quakers was passed in the time of William III.; and ever since that time down to a recent period there had been an accumulation and a superfluity of enactments for the same purpose. Among these Acts was an Act of George II., allowing Quakers to affirm; but the power previously existed, and that Act was wholly unnecessary. So there was equally no necessity for the Act of 1845, which had been cited in this case by the noble Lord. There existed the 1st & 2nd of Victoria, which allowed the omission of the words objected to by the Jew when appointed to "any office, or employment, or on any occasion whatever"—a declaration as general as words could be; and that statute was in force in 1845, when the statute which the noble Lord quoted became law, and therefore the Act of 1845 was supererogatory. Yet the noble Lord had been totally silent with regard to the 1st & 2nd Victoria. Again, there was no distinction between this case and that of Mr. Wilkes. There were no precedents for the course recommended by the Government, and they had not the decision of a single court of law in their favour; it was, therefore, only just and reasonable to demand that they should allow the matter to stand over until it had been entertained by a court of law, whose jurisdiction was admitted to be competent to decide upon it. Although an election petition complaining of the undue return of a Member of that House did not prevent them from allowing that Member to sit and vote; although the validity of his right to do so remained undecided for months; yet, by this Resolution they refused to allow an. hon. Member, against whose return no complaint had been made, and who had taken the oath in some form at all events, to sit for a few weeks, or even days, pending the decision upon an objection to his claim, raised upon an absurd, obsolete, and condemned statute. It might be worthy of those hon. Members who were zealous for "Christianity," as they called it, but which he called intolerance, to furbish up such a rusty weapon as that in our day; but it was unworthy of the noble Lord, who had hitherto distinguished himself as the champion of civil and religious liberty. And he still ventured to urge upon the noble Lord, for the sate of the right of the subject and of the freedom of the constuencies, to withdraw the Resolution altogether, and to submit it to the House in another shape at the beginning of the next Session, when he would have the assistance and guidance of the Courts at Westminster, which would certaily give a decision on the subject during the recess.


wished to protest against the conclusion to which the noble Lord had come, that because this Resolution had been passed last year in the case of Baron Rothschild, they should therefore again adopt the same in the case of the hon. Member for Greenwich. He had protested at the time, and he still protested, against the Resolution of last year, and he thought it was drawn up unskilfully and in haste, and that it went far beyond the necessities of the case. Even conceding, as he did, that the noble Lord, from his peculiar position, was bound to lend his aid to protect the rights of that House, and to prevent those rights, and the law of the country also, from being infringed; yet he did feel strongly that the noble Lord had come to a harsh and unduly severe decision with respect to the rights of the hon. Members for London and Greenwich, and the rights of their respective constituencies. The noble Lord might, with the support he could command, carry the Resolution he had proposed; but he might be assured that the hon. and learned Member for Aylesbury spoke the words of truth, of experience, and of wisdom, when he said that such a Resolution could not terminate the discussion of this most important question. They would come again and again before the House in every way that ingenuity and perseverance could devise; and if they were, as he presumed they should be, defeated that night, they would submit to their defeat with the most certain and de-liberate conviction that they would ultimately be triumphant.

Main Question put.

The House divided:—Ayes 123; Noes 68: Majority 55.

List of the AYES.
Adderley, C. B. Birch, Sir T. B.
Baines, rt. hon. M. T. Boldero, H. G.
Baldock, E. H. Booth, Sir R. G.
Baldwin, C. B. Bowles, Adm.
Baring, rt. hon. Sir F. T. Bramston, T. W.
Barrow, W. H. Bremridge, R.
Beckett, W. Broadley, H.
Bellew, R. M. Buller, Sir J. Y.
Beresford, W. Cabbell, B. B.
Cardwell, E. Jones, Capt.
Carew, W. H. P. Knightley, Sir C.
Child, S. Knox, hon. W. S.
Clements, hon. C. S. Labouchere, rt. hon. H.
Cockburn, Sir A. J. E. Lacy, H. C.
Cocks, T. S. Legh, G. C.
Coles, H. B. Lewis, G. C.
Collins, T. Lindsay, hon. Col.
Conolly, T. Lockhart, A. E.
Cotton, hon. W. S. Lowther, hon. Col.
Cowan, C. Manners, Lord C. S.
Cowper, hon. W. F. Matheson, Col.
Craig, Sir W. G. Melgund, Visct.
Currie, H. Meux, Sir H.
Denison, E. Morris, D.
Duckworth, Sir J. T. B. Naas, Lord
Dundas, Adm. Newdegate, C. N.
Dundas, rt. hon. Sir D. Ogle, S. C. H.
Dunne, Col. Owen, Sir J.
East, Sir J. B. Packe, C. W.
Ebrington, Visct. Palmer, R.
Egerton, W. T. Palmerston, Visct.
Estcourt, J. B. B. Parker, J.
Ferguson, Sir R. A. Plowden, W. H. C.
FitzPatrick, rt. hon. J.W. Pusey, P.
Forester, hon. G. C. W. Reid, Col.
Freestun. Col. Ricardo, O.
Freshfield, J. W. Richards, R.
Fuller, A. E. Rumbold, C. E.
Goold, W. Russell, Lord J.
Goulburn, rt. hon. H. Russell, F. C. H.
Graham, rt. hon. Sir J. Sandars, G.
Grenfell, C. P. Seymour, Lord
Grenfell, C. W. Sibthorp, Col.
Grosvenor, Earl Somerville, rt. hn. Sir W.
Gwyn, H. Sotheron, T. H. S.
Hall, Col. Spooner, R.
Hallewell, E. G. Stafford, A.
Halsey, T. P. Stanford, J. F.
Hamilton, G. A. Sutton, J. H. M.
Hamilton, J. H. Taylor, Col.
Hanmer, Sir J. Thesiger, Sir F.
Hatchell, rt. hon. J. Tyrell, Sir J. T.
Hawes, B. Waddington, H. S.
Hayes, Sir E. Wigram, L. T.
Headlam, T. E. Williamson, Sir H.
Heald, J. Wilson, J.
Henley, J. W. Wood, rt. hon. Sir C.
Hervey, Lord A. Wortley, rt. hon. J. S.
Hindley, C. Wynn, H. W. W.
Hodges, T. L. Young, G. F.
Hogg, Sir J. W. TELLERS.
Hotham, Lord Hayter, W. G.
Inglis, Sir R. H. Hill, Lord M.
List of the NOES.
Adair, H. E. Douglas, Sir C. E.
Aglionby, H. A. Duke, Sir J.
Alcock, T. Duncan, G.
Anderson, A. Evans, Sir De L.
Anstey, T. C. Evans, J.
Armstrong, R. B. Ewart, W.
Bell, J. Fitzroy, hon. H.
Bright, J. Forster, M.
Brocklehurst, J. Fox, W. J.
Brotherton, J. Geach, C.
Clay, J. Greene, J.
Crawford, W. S. Hall, Sir B.
Currie, R. Heathcoat, J.
Dawes, E. Heywood, J.
Dawson, hon. T. V. Hobhouse, T. B.
Devereux, J. T. Hollond, R.
D'Eyncourt, rt. hn. C.T Howard, Sir R.
Hutt, W. Smith, rt. hon. R. V.
Langston, J. H. Spearman, H. J.
Locke, J. Stuart, Lord D.
M'Cullagh, W. T. Stuart, Lord J.
Mahon, The O'Gorman Tancred, H. W.
Mitchell, T. A. Thompson, Col.
Murphy, F. S. Thompson, G.
Norreys, Lord Thornely, T.
Norreys, Sir D. J. Tollemache, hon. F. J.
Nugent, Sir P. Villiers, hon. C.
O'Brien, J. Walmsley, Sir J.
O'Connell, M. J. Westhead, J. P. B.
Osborne, R. Willcox, B. M.
Pechell, Sir G. B. Williams, W.
Pilkington, J. Wilson, M.
Power, Dr.
Salwey, Col. TELLERS.
Scobell, Capt. Bethell, R.
Scully, F. Smith, J. A.