§ MR. APSLEY PELLATTsaid, that in moving for leave to introduce a Bill to substitute declarations for oaths, he was anxious to remove an impediment in the way of civil and religious liberty, which impediment now existed in the law respecting oaths. He desired to bring in a Bill for the purpose of enabling all who had conscientious scruples against the taking of an oath to make a solemn declaration instead of an oath, when required. He congratulated the House that so far as regarded its Members, the Government intended to introduce a Bill that would enable a Member to go to the table of the House, and take an oath which would not violate his conscience. The numerous cases that have come before courts of jus- 788 tice, and one case which had come before that House, showed that those who were desirous of making a solemn declaration in the place of an oath should be allowed to do so. The great objection felt by those parties was to the imprecatory clause, and to introducing the name of the Deity as a witness of their veracity. He might be told that a Bill was about to be brought in, founded on the Report of the Law Commission; but his objection to the Bill was, that it left in the hands of the judge or the magistrate to determine whether a party who came before them, and desired to make a declaration in lieu of an oath because of conscientious scruples, should be allowed to do so. His desire was that the witness should be allowed to make the declaration simply on stating that he had a conscientious objection to taking an oath. Within the last few years many oaths had been abolished which were formerly taken by the Excise, in the Bank of England, and by pawnbrokers and others in matters of trade. In consequence of Bills emanating from the House of Lords, a vast number of unnecessary oaths had been swept away from the Statute-book, but it was in the power of Parliament to carry this much further. The Members of the House of Lords, from time immemorial, have not been put on their oaths on the most important questions affecting the life of a brother Peer; but they had the power of saying simply, "On my honour, guilty," or "Not guilty." Now, in the progress of legislation and civilisation, why should not the community at large have the power of making affirmation? To show the absurdity of some of the oaths taken by corporations, he would refer to the opinion expressed by a public writer, who stated that Oxford was a national school of perjury: the student was made to swear he would do what he was not allowed to do; the candidate for a degree swore he had done what he had been unable to attend to; and the professor himself swore to many things because he was by statute required to do so. He certainly thought it was better to abolish oaths altogether than that they should be applied to purposes which he could not but regard as unwise and immoral. He would remind the House that, by law, perjury was regarded merely as a misdemeanor, and that a man who swore away the life and property of another could simply be punished as a misdemeanant. Young persons of tender age 789 were sworn simply upon their acknowledgment of the Being of a God who would award the severest punishment should they utter falsehood, although they might know nothing, nor were they examined, as to their knowledge of the nature of an oath. He believed that oaths were utterly useless in courts of law; and he put it to any legal practitioners in that House, who were in the habit of cross-examining witnesses, whether they believed that such oaths had the effect of ensuring veracity. He would ask the House, then, whether they thought it advisable to continue to enforce the existing system of oaths, which led to the incarceration of many persons, merely, if he might use the term, because they were over-full of veracity? Unless it could be shown that society was benefited, that the force of law was increased, that the progress of justice was assisted, and that morality and religion were promoted by the maintenance of oaths, he demanded their abolition in the name of morality, of humanity, and of religion. He believed that if they got rid of the administration of oaths, and so avoided the ribaldry and irreligion frequently exhibited in our courts of law, they would find that far greater truthfulness would prevail. He hoped, therefore, that the House would allow him to introduce the Bill he had prepared on the subject. The Bill was limited to two clauses, providing that every person who, from conscientious scruples, objected to taking an oath, should be allowed, instead, to make a solemn declaration; and that if such person were convicted of having made a false declaration, he should be subject to the penalties of perjury.
§ MR. HADFIELDsaid, that, in seconding the Motion, he must express his belief that the measure of the hon. Member for Southwark would improve the administration of justice. He had himself always felt considerable scruples with regard to the administration of oaths, because he deprecated the over-familiarity which was thus occasioned with the use of the Divine name. He believed that the constant invocation of the Divine name, by enlightened as well as by ignorant persons, had a very demoralising effect, and he could bear testimony, from considerable experience, that the cause of justice and of truth was not promoted by such invocations.
§
Motion made, and Question proposed—
That leave be given to bring in a Bill substituting Declarations for Oaths.
§ VISCOUNT PALMERSTONI shall not oppose the introduction of this Bill, although I must reserve to the Government the right of full discretion as to the line they may take on the second reading. It might have been as well, I think, for the hon. Member to have waited for the Bill about to be introduced in the other House of Parliament; and also for the Bill with regard to oaths to be brought in by my noble Friend the Member for the City of London. I am quite willing to admit that there are a great number of oaths taken on different occasions which may very advantageously be dispensed with, and declarations or asseverations be substituted in their place, as in the case of some municipal officers, where merely executive functions have to be discharged. With regard, however, to the more important question of judicial proceedings, I cannot agree with the hon. Members who have moved and seconded this Motion. It sounded very plausible to say that it was sufficient if the witness were informed that if he told an untruth he would be liable to the penalties of perjury; but that was a very different thing from the impression made upon his mind when he gave his evidence under the solemn sanction of an oath. It is one thing to impose the oath beforehand and another to apply the penalty after the commission of the offence. But I must say I do not agree with the hon. Gentleman (Mr. Pellatt), that, even in the case of an enlightened and honourable man, the sanction of an oath is of no value in the case of the party giving evidence. On the contrary, I should rather say that the better the man and the more educated he is, the more sensible must he be of the obligation imposed on him by the solemn invocation of the Deity. But, Sir, taking the case of an ignorant man, and of one not very scrupulous, it is perfectly notorious that if such a man wishes to give false testimony for the purpose of screening a culprit, or enforcing a claim which he knows to be wrongful, he would have the greatest possible inducement to withhold his evidence if he were allowed to exempt himself—on the mere pretence of a conscientious scruple—from the necessity of taking an oath, by the substitution of a declaration—a declaration, be it remembered, made with the greatest facility by those who make it with the greatest untruth. I, therefore, think that the arrangement to be proposed by a noble Lord in the other House, and who is bringing in 791 a Bill upon this subject, embraces a condition which appears to be essential—namely, that there should be vested in some authority the power of deciding whether the objection of the witness is really a conscientious one or not; for if you leave it to himself to determine that point, then I think you lose the most important security you have to ensure the truth in regard to matters affecting the dearest interests of mankind, and of questions most deeply concerning the best objects of society; and, therefore, I again say, that it will be but a very tardy arrival at justice, if it is only obtained in the shape of punishment on the prosecuted witness; while, in the meanwhile, the gravest injustice may be perpetrated by the decision of a judge and jury founded upon evidence entirely false. Therefore, while I offer no objection to the introduction of the Bill of my hon. Friend, I confess I am not disposed to give that entire latitude to a witness which, if I understand it aright, the measure before us is intended to afford. I think in general that where a witness has really conscientious objections to take an oath, and where he feels in his conscience that the obligation to tell the truth is the same in both cases—every one admitting what you want to secure is the attainment of truth sanctioned by the approval of conscience—that it does not matter whether you arrive at it by an oath or a declaration, all you have to ensure is that in all cases the witness should feel that the declaration is really as binding on him as the oath.
MR. HUMEsaid, he would beg to remind the House that when the Duke of Richmond's Bill, which abolished millions of oaths relative to the Customs, Excise, and other public departments, came down to them, a precisely similar objection was taken to it as that just taken by the noble Lord. At that time voices were raised against removing all oaths with respect to smuggling and the Excise. He, therefore, thought the noble Lord's object would be very much simplified by inquiring what had been the effect upon the Customs, Excise, and other departments where oaths had been entirely abolished. He hoped, however, that his hon. Friend would not press his Motion until he saw what the Government intended to do with the Bill to be introduced into the House of Lords.
THE ATTORNEY GENERALsaid, he would state very briefly, for the satisfaction of his hon. Friend the Member for Montrose, what it was that the Govern- 792 ment proposed to do on this subject. The Report of the Commissioners appointed to inquire into the state of the common law had recommended that, whenever persons entertained conscientious scruples against the taking of an oath, the oath should be dispensed with, and that a declaration should be substituted. It was felt to be a grievous hardship upon persons who really entertained religious scruples against taking oaths that they should be placed in the position of suffering corporal penalties in consequence of such religious and conscientious scruples. It was also felt to be a serious grievance and hardship upon those who stood in need of the testimony of such persons, because they might be deprived of the advantage of important testimony, and might suffer in their persons or their property, in consequence of their being prevented by the law from obtaining the evidence of individuals whose conscientious scruples, and whose readiness to sacrifice themselves on account of those scruples, showed that they were persons whose declarations might be safely taken instead of their oaths. The measure which had been introduced into the other House of Parliament was, therefore, intended to relieve such persons, and to allow them to make declarations in lieu of taking oaths. It was felt necessary, however, to guard against another evil. Those who had practised in courts of justice knew that there were many persons who, not wishing to tell the truth, and yet dreading to forswear themselves, had recourse to many artifices for the purpose of avoiding the necessity of taking oaths. He had seen witnesses kiss their thumbs, and have recourse to all sorts of tricks in order to avoid kissing the book. Now, these persons were desirous of speaking falsely if they could, but they feared the Divine wrath, and it was, therefore, manifest that in such cases that apprehension would operate satisfactorily upon them with regard to the evidence they might give. The Commissioners, after carefully weighing the considerations on both sides with regard to the use and disuse of oaths, came to the conclusion that oaths could not safely be dispensed with. The object to be accomplished, therefore, was to give relief to those persons who really entertained religious scruples against oaths, while they took care not to allow persons who did not entertain such scruples—but who did entertain apprehensions of the results hereafter if they called upon the name of God with 793 falsehood upon their lips—from pretending that they did feel conscientious scruples on the subject of oaths. It had been suggested, in order to guard against the sudden pretence of conscientious scruples, that persons should have been registered for some period antecedent to that at which they were called upon to give evidence, and that, on proof of such registration, they should be exempted from the necessity of taking oaths. It was objected, however, that a regulation of that kind would bear with hardship upon persons who required the testimony of such individuals if they had not gone through the formality of registration. It had been considered that, upon the whole, the best mode of meeting the difficulty would be to leave it to the Judge, before whom a witness declared that he entertained religious scruples against taking an oath, upon such interrogatories as he (the Judge) at the moment proposed to the witness, to determine whether those religious scruples were affected by the individual for the purpose of being able to give testimony without the obligation of an oath, or were the result of honest, conscientious conviction. If those scruples were the result of honest conviction, the Judge was to have power to dispense with the oath; but if the Judge was of opinion that the scruples were merely affected for the purpose of avoiding the oath, it would be in his power to refuse exemption. He must say that, so long as they retained oaths—and, for his own part, a long experience did not dispose him to dispense with oaths in the case of judicial proceedings—he thought they ought not to exempt a man from the obligation of an oath simply because he said that he entertained conscientious scruples on the subject, when, upon investigation, there was reason to believe that he did not entertain such scruples. Such exemption would open the door to great abuse, and would be attended with considerable danger; and he was therefore of opinion that the Bill before the other House was preferable to that proposed by the hon. Member for Southwark.
MR. PACKSsaid, he wished to inquire whether the power of dispensing with oaths would be given by the Bill before the other House to justices at quarter and petty sessions?
THE ATTORNEY GENERALsaid, he apprehended that whoever was qualified under the Bill to administer an oath would 794 also have the necessary power of dispensing with it.
§ Question put.
§ The House divided:—Ayes 109; Noes 108: Majority 1.
§ Leave given.
§ Bill ordered to be brought in by Mr. Pellatt, Mr. Hadfield, and Mr. Blackett.