§ LORD JOHN RUSSELL
In rising to make the Motion of which I have given notice, upon a subject which concerns the seats of Members in this House—a Motion which my noble Friend (Viscount Palmerston) has allowed me to make in precedence of the Orders of the Day—I should be wanting in respect to the House, if I did not lay before it the grounds of that Motion; although, on the other hand, it would be highly presumptuous in me to attempt to submit to the House anything like a complete argument upon a question of law which I ask to have discussed by the persons most competent to deal with it. I shall, therefore, endeavour to lay such a statement before the House as may justify me in asking for the appointment of the Committee which I propose, leaving the complete discussion and sifting of the question to the members of the Committee. Sir, I have upon the paper to-night a Bill 934 respecting the validity of certain oaths. Since I introduced that Bill, Baron Rothschild has informed me that the suggestion has been made to him—it is not material, at the present moment, to say by whom— that the Act to which I have referred in my notice would enable this House to make an order by which he could take a declaration at the table, in lieu of the oath of abjuration; and that, if the House should be pleased to adopt that course, he would feel no objection to make a declaration so established by order of this House. When I was thus informed, I looked carefully at the Act to which I was referred, and I will endeavour to state the general purport of that Act, and the policy upon which it appeared to me to be founded. At the commencement of the reign of William IV. it was the opinion of Parliament that some endeavours ought to be made to reduce the great multiplicity of oaths, which had become a scandal to this country, and which frequently led to an appeal to Almighty God in cases the most frivolous, and even in cases in which it was notorious that the oaths were unnecessary. Among those whose special attention was directed to this subject was the Duke of Richmond, a man of very great capacity, and of the highest integrity. The Duke of Richmond brought the question before the House of Lords; and on his suggestion, or the suggestion of some other person, a Bill was passed, relieving the departments of the Excise and Customs from a great number of unnecessary oaths. In 1835, a further step was taken in the same direction, and a Bill was presented to the House of Lords, by which, starting from the principle of the first Act, it was proposed to include all the great departments of the State, and to enable the Lords Commissioners of the Treasury to appoint certain declarations which were to be taken in the office of the Treasury itself, in the offices of the Secretaries of State, and, in fact, in all the highest and most important offices in this country. The policy, therefore, was, as it were, an ascending policy, mounting from the minor departments of Custom-house officers and excisemen to the distinguished personages administering the Government of the empire, and, as the Act which I propose to amend was supposed to extend only to oaths taken in courts of justice, so the Act to which I am now referring was one of a totally different description, and applied to all those oaths which had been appointed to be taken by persons having 935 a share in the administration of affairs. I shall state some of the provisions of the 5 Will. TV., cap. 8, which is, in fact, the foundation of the Act to which my Motion relates. That Act was entitled:—An Act for the more effectual abolition of oaths and Affirmations taken and made in various Departments of the State, and to substitute Declarations in lieu thereof; and for the more entire suppression of voluntary and extra-judicial Oaths and Affidavits.It was provided in the Act that it should come into force on the 1st of June; but it did not receive the Royal assent till the 12th, and therefore it was necessary to pass another to amend it. The latter is the Act to which my Motion refers,—namely, the 5 & 6 Will. IV., cap. 62. It is called an Act to repeal the former Act, and to make other provisions for the Abolition of unnecessary Oaths. In the 6th section the oath of allegiance is declared to be an oath for which no substitution of a declaration shall be allowed. That is very remarkable, because it shows the intention of Parliament with regard to the oath of allegiance, separating it from the oath of abjuration and various other oaths. The 7th section excepts judicial proceedings, and declares that the Act shall not extend to them, thus still more clearly confining the Act, and pointing it to the administration of oaths in the higher departments. The 8th section is to the following effect:—And be it enacted that it shall be lawful for the Universities of Oxford and Cambridge, and for all others bodies corporate and politic, and for all bodies now by law or statute, or by any valid usage, authorized to administer or receive any oath, solemn affirmation, or affidavit, to make statutes, by-laws, or orders, authorizing and directing the substitution of a declaration in lieu of any oath, solemn affirmation, or affidavit, now required to be taken or made.
The Act likewise provides a schedule showing the form of affirmation which was to be taken instead of an oath, where, by any proper authority, the one was substituted for the other. "I, A. B., do solemnly and sincerely declare that"—here there was a blank for the substance of the declaration —
And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of an Act made and passed in the——year of the reign of His present Majesty entitled, &c.
I beg again to read the words of this section:—
It shall be lawful for *** all bodies corporate and politic, and for all bodies now by law or by statute, or by any valid usage, authorized to
administer or receive any oath, to make Statutes, by-laws or orders, authorizing and directing the substitution of a declaration in lieu of any oath.
Now, Sir, it is plain from those words, placing upon them the usual construction that words should have, that the House of Commons, being a body authorized by valid usage to administer and receive oaths, is a body which is included within the provisions of that Act of Parliament. In stating this opinion, I, of course, am only saying what occurs to me, as a plain unlearned man, as to the meaning of this Act; but, in proposing a Committee, I am proposing to refer to the most learned persons in this House to inquire what is the true meaning of this statute. When, upon former occasions, I proposed Resolutions, and thus aided in preventing Baron Rothschild and Mr. Alderman Salomons from taking their seats in this House, by virtue of what I conceived to be the existing law, I took the opinion of the Attorney General of the day, whom I considered to be the best fitted to guide upon those occasions. Although there were learned authorities, upon each occasion, who differed from me—and I will not say now that I am perfectly convinced I was right as to the law—yet, as I took the best advice I could obtain, so I should hope that this House will, upon the present occasion, have the assistance and opinion of the learned Attorney General, who, not only by his official position, but from his eminent abilities—abilities of which we have had such recent proof in this House—is peculiarly qualified to lead this House, and to give them an opinion upon this matter. But, passing from the question of the plain meaning of these words it occurs to me that it may be said in reply that it was not the intention of Parliament, in passing that Act to include therein oaths to be taken at the table of this House. I can see no reason for that exception, because, as the Act especially excludes proceedings before Parliament, and judicial proceedings, thereby providing for the case of impeachments, we must thence conclude that the oaths to be taken in Parliament, at the table of this House, were to be included in the Act. But I think it would ill become those who have excluded the Jews, by virtue of a harsh and strict literal interpretation of the present law, to insist now that what would appear to be the plain construction of the Act to which I have referred ought not to be carried into effect, if it could by any means be shown that it was not the intention
of Parliament, in passing the Act, to maintain that construction. Every one knows now that the words "on the true faith of a Christian," which exclude the Jews, were placed in the oath, not to exclude Jews, but a certain class of Roman Catholics. Every one knows that that class of Roman Catholics has now ceased to exist; but that even if such persons did exist, they could take seats in this House, and hold office, because the Roman Catholic oath which they would now take does not contain the words, "on the true faith of a Christian." Therefore, I think it would be a bold proceeding for persons who have kept out the Jews by all sorts of technicalities, by insisting, against the meaning and against the intention of Parliament, for a strict literal interpretation of the words, to come now and say, "It is quite true the construction of the Act is so; it is quite true that the words cover a declaration ordered by Parliament; but we do not think Parliament could have intended as much, and we will apply just the reverse argument we have hitherto applied, and, having formerly excluded the Jews by a strict and literal interpretation, we will now exclude them by a lax interpretation, being determined never, in any way, to let them into Parliament. "That appears to me to be the nature of the case, as it stands upon this Act of Parliament. But there is a further question which I have heard raised. I have had the advantage of speaking to several gentlemen learned in the law, and I am told that doubts may be started even if the House should make an order, as they are empowered to do by this Act, that instead of the oath of abjuration a declaration should be ordered to be made, whether in that declaration the words "on the true faith of a Christian" should not be introduced. With respect to that argument I should say we have plenty of precedents to guide us, and to induce us to leave out those words. In the first place, these words constitute an oath, and they are as such left out, we shall be following, so far as I can collect, the precedent of the ease of Mr. Pease? What was the case of Mr. Pease? That gentleman came to the table and asked to be allowed to affirm. He was ordered to withdraw. A Committee was appointed, who came to this Resolution—that Mr. Pease should be permitted to take his seat upon making a solemn affirmation and declaration to the effect of the oaths. Mr. Pease was examined by the Committee and
asked whether members of the Society of Friends objected to use the words "on the true faith of a Christian," and he replied, "Yes, I believe they would almost universally object." He was then asked, "Would they consider the words, 'on the true faith of a Christian,' to be swearing?" Mr. Pease replied, "Yes, many would object under such a view." It appears, therefore, as far as can be ascertained—for the public records were destroyed by the fire of the old Houses of Parliament—that Mr. Pease, not feeling himself able to take the oath of abjuration, and there being no special form of declaration which he was authorized to make at the table of this House, the Select Committee—which included a man of the greatest eminence, one who fully understood the forms, precedents, and privileges of this House — Mr. Charles Wynn—recommended that he should be permitted to come to the table and make an affirmation. But there is further evidence in an Act which was passed in the course of the same Session, the 3 & 4 Will. IV., c. 49. That Act was introduced by the present Lord Carlisle, and it seems to have been the opinion of those who drew that Act that it was desirable, in order to prevent all doubt or cavil thereafter arising, to lay down the precise form of declaration to be taken on any future occasion in lieu of abjuration. The form is accordingly set forth. But first they state in the preamble the object of the Act:—
And whereas some doubts may arise as to the form of the Affirmation to be taken in lieu of the Oath of Abjuration by persons of the persuasion of the people called Quakers;
They then set out the form of the declaration, which ends with these words—
And I do make this recognition, acknowledgment, renunciation, and promise heartily, willingly, and truly;" omitting "on the true faith of a Christian.
Those words are very remarkable. I don't know that in general Acts of Parliament are intended to be sarcastic or contemptuous, but the words, "whereas some doubts may have arisen," would seem to mean that there are some people of weak understanding who might raise doubts, and it was only to remove the scruples from the minds of those persons that the Act of Parliament was required. In the declaration therein enacted the words were, "I declare willingly and truly," omitting the words, "on the true faith of a Christian." Now, upon the Act to which I have referred, and
the precedent I have quoted, I rest my proposal that a Committee of the House should sit in order to ascertain what is the proper construction of the Act; and if they should be of opinion that the terms of the Act would bear an interpretation that would admit of the substitution of a declaration instead of the oath of abjuration, then the question will arise in what manner the House should make an order for that purpose. "Order" is the word in the statute, and "Orders" are the very form by which the House carries into effect its own regulations. If they can do so it will be a great relief to many persons. My noble Friend at the head of the Government, in proposing an alteration of the oath, said in regard to the oath of abjuration and that portion of it referring to the person calling himself Prince of Wales and afterwards James VII. Of Scotland, that it was difficult for Members of this House to swear to all those propositions without an inward blush. If we should be enabled to substitute a declaration for an oath, it will be far less offensive to make a declaration of what in a great measure is mere harmless nonsense than to make a solemn public oath as to such matters. We are precluded by the vote of the House of Lords from adopting the sensible form of oath which the Government proposed early in the Session. They have decided we shall not have the power to alter the oath; they will not give their consent to any such alteration; and, therefore, it behoves us to consider how we may best release ourselves from the reproach which rests upon us. Above all, when a Member is elected to this House by a numerous and respectable constituency, when he has a prima facie right to his seat, if he be duly elected, it would be very desirable, if possible, to find that the law interposes no obstacle to his enjoyment of the privilege to which he has been elected. Everything of the nature of a restriction ought to be, according to the spirit of the laws of England, an exception; and, if the law entitles us to make such a change as I have just referred to, I think it will be hailed by this House as a relief from the present difficulties. The noble Lord concluded by moving for a "Select Committee to consider whether the Act 5 & 6 Will. IV., c. 62, is applicable to Oaths appointed by Law to be taken by Members of this House at the Table previously to their taking their Seats, and in what
manner the said Act can be so applied, and to report their Observations thereupon to the House. That the Committee do consist of the following twenty-five Members:—Viscount PALMERSTON, Sir GEORGE GREY, Mr. DISRAELI, Mr. WALPOLE, Sir JOHN PAKINGTON, Lord JOHN RUSSELL, Sir JAMES GRAHAM, Mr. GLADSTONE, Mr. ATTORNEY GENERAL, Mr. SOLICITOR GENERAL, Sir FREDERIC THESIGER, Sir FITZROY KELLY, Lord STANLEY, Mr. HORSMAN, Mr. HENLEY, Mr. ROEBUCK, Mr. MALINS, Mr. HEADLAM, Mr. ATTORNEY GENERAL for IRELAND, the LORD ADVOCATE, Mr. DILLWYN, Mr. NAPIER, Lord ROBERT GROSVENOR, Mr. WHITESIDE, Mr. COBBETT, and all gentlemen of the Long Robe, Members of this House."
§ SIR FREDERIC THESIGER
It is not my intention to divide the House on the Motion of the noble Lord for a Select Committee of inquiry, but at the same time I cannot permit the matter to pass without some observations. The noble Lord professes to have discovered, or rather to have had suggested to him, the existence of an Act of Parliament, long overlooked or forgotten, which will accomplish the darling object of a ten years' wish of the noble Lord, which will render of no avail the opposition of the House of Lords, and place the last stone on the edifice of civil and religious liberty. The noble Lord instead of coming forward with a Resolution that this Act of Parliament, which the Committee will be called on to consider, does accomplish that object, proposes to delegate the functions of the House to a Committee, which is, to say the least, of a most extraordinary character. There is nothing that that Committee will have to do but to consider the effect of the Act of the 5 & 6 Will. IV. There are no other labours the Committee will have to perform—no search for authorities or precedents, no inquiry after any other Act of Parliament which may be supposed to bear on the question;—all the Committee has to do is to anticipate the functions of the House by reporting whether the 5 & 6 Will. IV. does or does not attain the object which the noble Lord has in view. Now, considering that the Committee ought to proceed to their duty with unprejudiced minds, and that the subject ought not to be prejudged, I think it would have been better if the noble Lord had abstained, as he promised, from entering into any argument as to the effect of that Act; but inasmuch as the noble Lord 941 thought proper not to abstain from entering into such Arguments as would, he thought, induce the House to acquiesce in his views, I am compelled to follow his example. I have been taught by him, and in the words of the dramatic Jew, with which the noble Lord must be familiar, "it shall go hard but I will better the instruction." This is not by any means a new question to the House. If there had never been any earnest and intelligent minds previously directed to this subject, one might have supposed it possible that this Act of Parliament—which has now been in existence for more than twenty years—had escaped observation; but that this wonder-working statute should, under all the circumstances that are familiar to the House, have been left to the discovery of this year, is to my mind perfectly astonishing. It will be recollected that in 1850, after two defeats which the noble Lord had sustained on Bills introduced by him to enable the Jews to sit in Parliament, that most learned and excellent person, the present Vice Chancellor, Sir William Page Wood, who had earnestly and zealously contended in favour of the Jews, moved for a Committee to ascertain whether it could not be possible to avoid the opposition of the House of Lords, and by means of a Resolution accomplish the introduction of the Jews into this House. [3 Hansard, cix. 810.] I wish the House to see what was the form of the appointment of that Committee, because it affords no precedent to the noble Lord in the proposal he has made on this occasion. The Motion of Sir W. Page Wood was:—That a Select Committee be appointed to search the Journals of this House, and report such precedents and such Acts, or parts of Acts of Parliament, as relate to the question of Jews or other persons being admitted to take their seats in Parliament without being sworn upon the Holy Gospels; and further to inquire and report in what manner Joseph Pease, Esq., on taking his seat in this House, in the year 1833, made affirmation to the effect of the oaths required by law to be taken by Members before taking their seats in this House; and also to inquire and report in what manner Jews and other persons, not professing the Christian religion, are permitted to make oath in courts of justice and other places where an oath is allowed, authorized, or required to be taken.The House will remember that the fruit of the Committee's labours was a very able and voluminous Report, containing the provisions of all the Acts of Parliament bearing on the subject, from the time 942 of Elizabeth down to the passing of the 1 & 2 Vict. c. 105—the Act to which the noble Lord's Bill which is now before the House applies—a Bill which he calls a declaratory, though it seems to me to be an amending Bill. It is remarkable that from the beginning to the end of that Report there is no allusion made to the 5 & 6 Will. IV., and we should be doing injustice to the learned and diligent persons who formed that Committee to suppose that that Act had escaped their observation. It is perfectly clear that such an Act, which had been fifteen years in existence at that time, must have been in their recollection, and that they must have adverted to it, but believing it had no bearing on the question they omitted it from their Report. What were the apprehensions entertained by the sagacious mind of Sir Robert Peel on the movement of Sir W. Page Wood on that occasion? He foresaw that the object of the Motion was to obtain the admission of the Jews to Parliament by means of a Resolution, and I entreat the attention of the House most earnestly to the observations he then made, because I am afraid we are on the eve of a crisis on this question. I earnestly hope every Member will feel the necessity of caution and discretion on this question, and not push matters to an extremity, unless in case of absolute necessity. On the occasion to which I have referred Sir Robert Peel said:—He understood the hon. and learned Gentleman the Member for the city of Oxford to propose a Committee to make an inquiry which should not prejudge the question at issue. If that were the understanding, he (Sir Robert Peel) would offer no objection to the appointment of the Committee; but this he must say distinctly, that there was no hon. Gentleman who had voted strenuously against the admission of the Jews who would watch with greater jealousy than he would watch any attempt by the House of Commons to supersede the authority of the House of Lords.And afterwards he said:—Still he must say again that, after having twice voted for the admission of the Jews to Parliament, there was no gentleman in that House who would watch with greater jealousy than he would lest any interference should be attempted by the House of Commons with the House of Lords.The result of the Committee of Sir W. Page Wood was that which had been anticipated by the foresight and sagacity of Sir Robert Peel; an attempt was afterwards made by means of a Resolution to induce the House to decide that Baron Rothschild, having refused to take the oath of abjuration, 943 with the words "on the true faith of a Christian," had fulfilled all that was required by the Act of Parliament, and was entitled to take his seat. The noble Lord (Lord John Russell) defeated that attempt. The noble Lord had acted with caution and prudence. He was then Prime Minister, and proceeded very properly under the advice of the law advisers of the Crown [Lord JOHN RUSSELL: of the Attorney General of that day]. I must say the noble Lord's mind is peculiarly susceptible of impressions; for he adopted to the full the advice given him by the Attorney General, and expressed himself on that occasion with regard to proceeding by Resolution in the strongest and most emphatic language. I ask the particular attention of the House to what the noble Lord said, because his mind seems now to waver a little on the subject. He does not come boldly forward and say, "I believe we can seat Baron Rothschild by means of a Resolution," but he throws out hints and half intelligences and says nothing decisive, because the noble Lord knows that he might place himself in a situation from which it would be impossible to retreat without taking some step that would interfere with that constitutional course which he has generally, though I am sorry to say not universally, followed. The noble Lord on the occasion I have referred to said:—I think myself that it is not in the power of this House to dispense with the words 'on the true faith of a Christian.' When that question comes to be debated I certainly, according to all the study which I have been able to give to the subject, shall feel myself compelled to vote against these words being omitted in the oath."—[3 Hansard, cxiii. 432.]Then we find him using these remarkable words:—But according to my deliberate opinion, I cannot lend myself to the changing of the words of the oath, 'on the true faith of a Christian," without the sanction and support of an Act of Parliament."—[3 Hansard, cxiii. 434.]But what were the words of the noble Lord's master and instructor, the Attorney General upon that occasion? Sir John Romilly said:—Here was a statute which compelled an oath to be taken. Could they tamper with that statute; could they say there was any part of the oath which was not of the substance of the oath; could they say where they had an oath in which there was the common adjuration 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 944 there fore 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 on the point by his hon. and learned friend, nothing that he had alleged was, in his view, able to get over the plain and common sense 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."—[3 Hansard, cxiii. 507.]The noble Lord was so instructed in the year 1851, when Mr. Alderman Salomons, having been returned for Greenwich, came to the table, and having attempted to qualify himself by taking the oath of abjuration with the omission of the words "on the true faith of a Christian," refused to withdraw from the House upon the assumption that he had a legal right to remain, having so taken the oath. The noble Lord upon that occasion also put himself prominently forward; he himself moved that Mr. Salomons should withdraw; he defeated an Amendment which was made, declaring the seat for Greenwich to be full by the election of Mr. Salomons, and having carried his Motion that Mr. Salomons should not be permitted to remain in the House, he moved a Resolution, which he also carried, in the following terms:—That David Salomons, Esq., is not entitled to vote in this House, nor sit in this House, during any debate, until he has taken the oath of abjuration in the form appointed by law.The noble Lord saw the danger upon those two occasions of attempting to seat a Jew by means of a Resolution of this House, and without the aid of an Act of Parliament; but I cannot help fearing, from the observations which he has made as to some doubt which he entertains whether the law had been properly laid down to him on those occasions by his Attorney General, that he is really now of opinion that he can by means of a Resolution, by the aid of this suddenly discovered Act of Parliament, carry out all that he has in view. As he has chosen to discuss this matter, and to enter into an argument upon the Act of Parliament, in order to prepare the unbiassed and impartial minds of the Committee, I hope he will forgive me if I follow his example; and I hope the House will bear with me for a few moments while I show that nothing can be more absurd or unreasonable than the opinion that this Act of Parliament can apply in any way to this particular case. The noble Lord says he leaves it, not to wiser, but to more technical heads—to a Committe of twenty-five 945 Members, besides all the Gentlemen of the Long Robe—Members of this House—I can't promise him many at this period of the year—to put a construction on this Act. But I do not think it requires a lawyer to put a construction on the Act. Any person of fair intelligence looking at the objects of the Act which the noble Lord Las described, will find that its words speak plainly for themselves, and that they entirely exclude this particular case. The noble Lord says that this Act was intended to prevent frivolous oaths; and then, with an ingenuity not surprising in him, he tells us that the Legislature went upon an ascending scale; having first got rid of frivolous oaths in matters of Customs and Excise, that they then rose to the Treasury, and by this 8th clause to the two Universities, and other bodies politic and corporate. In this clause the Legislature was incautious enough to insert the words, "all other bodies," which words the noble Lord argues include this House, since this House is a body politic, and is empowered "by statute and valid usage to receive and administer oaths, solemn affirmations, and affidavits." I will read the words of this extraordinary clause which is to do such wonders, and I will ask any one of plain understanding whether it is not apparent upon the reading of them that these words were not intended by the Legislature to include the House of Commons? The clause runs thus:—And be it enacted, that it shall be lawful for the Universities of Oxford and Cambridge, and for all other bodies corporate and politic, and for all bodies now by law or statute, or by any valid usage, authorized to administer or receive any oath, solemn affirmation, or affidavit to make statutes, by-laws, or orders [the noble Lord would here insert 'standing'] authorizing and directing the substitution of a declaration in lieu of any oath, solemn affirmation, or affidavit now required to be taken or made.Then comes the proviso,—and there is something very saving in this proviso:—Provided always, that such statutes, bylaws, or orders be otherwise duly made and passed according to the charter, laws, or regulations of the particular University, other body corporate and politic, or other body so authorized as aforesaid.The very reading of these words is sufficient to show that the House of Commons was certainly not intended to be comprehended in them, for it clearly refers to bodies corporate and so on, governed by laws, charters, and regulations. "But," says the noble Lord, "how hard it is 946 upon the Jew; he is met at every turn—first of all by a strict interpretation of an Act of Parliament, and then by a lax interpretation." The noble Lord told us, and I am glad to hear it, that we are likely to have the benefit of hearing the opinion of the Attorney General in the course of this discussion. I quite concur in all that the noble Lord has said of the great legal knowledge and intelligence of my hon. Friend the Attorney General, of which the House has recently had such an excellent opportunity of judging; but my hon. and learned Friend will very much disappoint me if he lends the weight and authority of his reputation to the construction which the noble Lord has put upon this Act. If I am to have my hon. and learned Friend for an opponent, he will concede to me, I am sure, that it is one of the commonest rules of interpretation, that where there is a specific enumeration of persons or things, followed by general words, that those general words must be applied to persons or things of like kind; and I would ask whether the words in this clause, "all other bodies," must not be interpreted to mean all bodies like to corporations—bodies quasi corporations? Another rule is, that where an Act of Parliament begins with an enumeration of persons or things of a lower class, and then contains general words, that those general words cannot be applied to things of a higher class. It has been held, for instance, that where an Act of Parliament contains the words, "deacons, priests, archdeacons, deans, and others having spiritual preferment," that those words do not include bishops, because they were of a higher order than those enumerated in the Act, although it might be supposed that, they were included in the general words, "others having spiritual preferment." But there is another consideration. Suppose you should convert this, oath into a declaration, it would be impossible to get rid of the substantial part of the oath, and it has been decided over and over again, not only in this House, but in the courts of law, that the words "on the true faith of a Christian "are a substantial and essential part of the oath. I stated that the proviso was important in this matter. It shows most clearly that the provision of the Act cannot apply to this House. That proviso is that any order which is made is not to be contrary to "the charter laws or regulations of the particular University, or other 947 body politic or corporate, or other body so authorized as aforesaid." That clearly shows that it relates to bodies which have governing charters or regulations. The noble Lord has said that the House in the case of Mr. Pease did by a Resolution get rid of the words "on the true faith of a Christian" from the declaration or affirmation. I earnestly entreat the House for a moment to consider this, which is constantly referred to by the noble Lord and by those who support Baron Rothschild, as an authority and a precedent in this matter. Did the House by a Resolution get rid of the words "on the true faith of a Christian?" No. If the noble Lord will have the kindness to turn to the 8 Geo. I. he will find that a form of affirmation was given for every case in which it was to be taken, and that the form of affirmation to be taken by the Quaker in lieu of the oath of affirmation omits the words "on the true faith of a Christian." Then comes the 22 Geo. II., upon which Mr. Pease was seated. By the 22 Geo. II., c. 6, it was provided,—That in all cases wherein by any Act or Acts of Parliament now in force, or hereafter to be made, an oath is or shall be allowed, authorized, directed, or required, the solemn affirmation or declaration of any of the people called Quakers, in the form prescribed by the said Act, made in the eighth year of his said late Majesty's reign, shall be allowed and taken instead of such oath, although no particular or express provision be made for that purpose in such Act or Acts.So that, so far from the House seating Mr. Pease by virtue of a Resolution that the words "on the true faith of a Christian" might be omitted, as has been over and over again asserted, that was done under an Act of Parliament the 8 Geo. I.;—he was seated under the general words of which the 22 Geo. I., provided that in all cases in which an oath was required a Quaker should be allowed to make an affirmation in the form prescribed by the 8 Geo. I. The noble Lord has adverted to the fact that an Act of Parliament was subsequently passed to remove doubts which were said to have existed in the minds of some unreasonable persons. Now, I believe that that Act of Parliament was passed in consequence of a doubt being entertained as to whether Mr. Pease could sit upon an Election Committee without being sworn. I am not one of those persons who come within the sarcasm of the preamble to which the noble Lord has referred. I think that the Acts of George I. and George II. 948 were sufficient, and that there were upon them no doubts that Mr. Pease might affirm upon acting on an Election Committee as well as upon taking his seat in this House. At the same time, for the noble Lord over and over again to urge this upon the House as an authority for seating Baron Rothschild seems to me not to be consistent with the research and the diligence which the noble Lord has invariably displayed in these matters, with the exception of this unfortunate Act 5 & 6 Will. IV, I do not want to go into the argument to which the noble Lord—I was going to say has provoked, but I will say has invited me—with regard to the general question of the right of the Jew to sit in the Legislature. I do not think that this is an occasion upon which I am called to enter into that question. At the same time I must make a single remark upon the extraordinary course which the noble Lord has pursued with regard to nominating this Committee. The noble Lord has pursued an unusual course in proposing to nominate the Committee at the same time that he moves its appointment. But he may say that he is pressed for time, and therefore it is important to save a day. That is a very good answer to anything which might be said upon this subject; but I think that upon a question which he considers of so much importance the noble Lord might have turned a little attention to the previously expressed opinions of the hon. Gentlemen who are, according to his Motion, to form the Committee. There are upon it twentyfive names, and those who have invariably opposed the admission of Jews number but six, while there are nineteen who are known supporters of the Jews. Now, do not let it be supposed for a moment that I mean to say that any hon. Members who may be selected as members of this Committee would violate their duty or decide contrary to their convictions; but I am old enough to know what is the effect of preconceived opinion and impression upon these matters. I confess that when I am the advocate of one side or the other I never feel myself so impartial as to think that there is much reliance to be placed upon my judgment; and therefore I do think that hon. Gentlemen who fairly and justly entertain strong opinions upon this subject, and have manfully and consistently maintained them, may have such impressions upon their minds that they may see the force of arguments in a manner 949 totally different from what they would if their minds had been perfectly free and unbiassed. On that account, although considering what is the opinion of the majority of this House, I do not expect that the noble Lord will give us a Committee in equal terms—if I may use that expression—although I must expect that he will take the benefit of a considerable majority—it docs strike my mind that he has a little o'erflown the measure, he has gone a little too far, and has not dealt quite right with us in the names which he has selected to form his Committee. And, then, not satisfied with this, we are to have a flood of gentlemen of the Long Robe, who may attend; and why those who are named are so honoured, and are not allowed to come in under the general description, I do not know. Does the noble Lord think that the general description does not apply to us? This is a large Committee. How many Gentlemen may at this period of the Session find it convenient to attend, how many of those unknown Members who lie behind under the general term of "Gentlemen of the Long Robe" may avail themselves of their privilege, it is impossible for me to say; but I put it to the noble Lord's fairness and candour, whether he really thinks that he has done us justice in selecting a Committee of the complexion to which I have called attention? I have thought it right to press these observations upon your attention. I shall certainly not divide the House upon the Motion for the appointment of this Committee, but I do trust that when we come to its nomination we shall find that some little justice will be done to us. If we do not, I am quite prepared to resist so far as to enable us to get that justice to which I think we are entitled.
§ COLONEL FRENCH
said, that the object of the noble Lord was not, as the hon. and learned Gentleman had sought to represent, to supersede the authority of the House of Lords, and seat Baron Rothschild by a Resolution, but to refer an existing Act of Parliament, which had already received the concurrence of the House of Peers, to a Committee to be composed chiefly of men the most eminent for their knowledge of constitutional law and of the rules of that House, or for legal attainments. The hon. and learned Gentleman asked why this Act had not been brought forward before? He believed that the reason of that was that it was 950 not known. If he was correctly informed, it was a gentleman of great legal knowledge, Mr. Anderton, the Under Sheriff, who, on reading over the Act, was struck by this clause, and brought it under the consideration of the Attorney General. That hon. and learned Gentleman read it, and expressed his opinion that there could be no doubt whatsoever as to the legal meaning of the words, and his surprise that his attention had not been called to them before. No unlearned person reading this clause could doubt that according to it the House had power to make a declaration under which the Member for the City of London, Baron Rothschild, could take his seat.
§ MR. GARNETT
said, he had voted with the Government in favour of the Bill introduced by them for enabling Jews to sit in Parliament; but, after that measure had been rejected by the House of Lords, and the noble Member for the City of London moved for leave to bring in a Bill to amend the 1 & 2 Vict. chap. 105, it appeared to him, from the temper exhibited by those who supported the noble Lord, that they were about to embark in a course of proceeding which might be attended with more or less danger not only to the character and dignity of that House, but to the constitution of the country. Now, however much he was attached to the theory of civil and religious liberty, he was more attached to the practical security of our glorious constitution. The course the noble Lord was pursuing seemed likely to bring that House either into direct collision with the House of Lords, or, what was still worse, into collision with the courts of law, and he had therefore thought it his duty as a humble Member of Parliament to give his vote against the Motion of the noble Lord. If that House had the right of exercising a control with respect to measures sent down to them by the House of Lords, surely the House of Lords had an equal power of deciding upon any measures sent to them by the House of Commons. He had no objection whatever to see a Jew take his seat in that House, and he had voted for a measure which would have accomplished that result from mixed motives. His impression was that they had arrived at such a condition of things as between the Church of England and the State that it was necessary to have some decided proof that no identity existed between the House of Commons 951 and the Church of England, and by admitting Jews into that House a proof would be afforded that such was the case.
§ VISCOUNT PALMERSTON
I am not going to enter into the arguments either of my noble Friend in favour of the interpretation he is desirous to put upon the Act of Parliament to which his Motion refers, or of the hon. and learned Gentleman opposite who dissents from that interpretation. I am only going to say that I concur in the Motion of my noble Friend. I think the matter is one of sufficient importance to justify its being referred to a Select Committee as proposed by the noble Lord; and therefore I simply acquiesce in my noble Friend's Motion, reserving myself entirely free as to any opinion I may form of the interpretation to be put upon the Act, or of the observations the Committee may report as the result of their inquiry.
§ MR. NEWDEGATE
would ask whether the noble Lord at the head of the Government approved of the mode of selection proposed, which was a most unusual course to take. The House ought to resolve in the first place that a Committee should be appointed, and then proceed to resolve that it do consist of twenty-five members, and then to nominate the members individually; but in this instance it was proposed to lump the whole together, and this, as it appeared to him, was a most unusual proceeding.
§ Motion agreed to nem. con.
§ LORD JOHN RUSSELL
then moved, "That the Committee do consist of the following twenty-five members," and was proceeding to read the names of the Committee, when
§ SIR FREDERIC THESIGER rose to order. The noble Lord seemed to him to be anticipating the Resolution of the House, which had not yet determined that the Committee should consist of twenty-five members. He apprehended that the noble Lord should, in the first instance, move that the Committee do consist of twenty-five members, and if that Resolution were agreed to that he should then nominate the Committee.
§ LORD JOHN RUSSELL
said, no doubt the mode of proceeding suggested by the hon. and learned Gentleman was the course usually adopted; but if he moved that the Committee consist of twenty-five 952 members he would exclude many members of the legal profession, whose assistance would be most valuable to the Committee. It was the practice in old times to move such Resolutions in the form he had proposed, and Mr. Speaker would doubtless say whether the rule had been altered.
§ MR. SPEAKER
said, that the form proposed by the noble Lord was in conformity with the ancient practice of the House, when the Committee was to exceed a prescribed number; it would, however, be necessary to put the proposition in two distinct Resolutions; and the mode in which he was about to put it would raise the question.
§ VISCOUNT PALMERSTON
suggested that the noble Lord might frame the Resolution in these terms, "That the Committee do consist of all Members of the Long Robe, and the twenty-five following Members.
§ SIR FREDERIC THESIGER
expressed some doubt whether the noble Lord could at present move the nomination of his Committee. The House had determined that the Orders of the day should be postponed until the Motion of the noble Lord had been considered, but they had not determined that the Orders of the Day should be postponed until the noble Lord's Committee was nominated. The House had considered and adopted the noble Lord's Motion for the Committee; but it was anticipating the Resolution of the House to say that it should consist of twenty-five certain members. The House had not yet resolved whether it should consist of twenty-five or any other number.
§ LORD JOHN RUSSELL
observed that the hon. and learned Gentleman had very accurately assumed, in his former speech, that it was in consequence of the urgency of the time that he (Lord John Russell) had proposed to follow a course frequently pursued under similar circumstances, and now to nominate the Committee. He had given due notice of his Motion in the Orders, and if the hon. and learned Gentleman pressed his objection, and forced his Motion down to the end of to-night's business, and perhaps of every night's business during the week, the help the hon. and learned Gentleman had seemed to tender at the commencement of his speech would be entirely useless. He (Lord John Russell) did not think it desirable to adopt the suggestion of his noble Friend (Viscount Palmerston), 953 for a Resolution in that form would seem to imply that the hon. and learned Gentleman nominated on the Committee were not "gentlemen of the Long Robe." He would, therefore, simply move "that the Committee do consist of twenty-five members."
§ MR. BENTINCK
said, he was at a loss to understand upon what ground the noble Lord urged the nomination of the Committee with so much haste. He (Mr. Bentinck) strongly objected to the noble Lord's mode of proceeding, and he did not think the circumstance that the close of the Session was fast approaching was any reason for departing from the usual practice of the House. That practice invariably was that the House, having acceded to a Motion for the appointment of a Committee, the Committee should be named, and after proper time had been allowed for consideration the House should be called upon to decide on the constitution of the Committee. He (Mr. Bentinck) thought, therefore, the course now proposed by the noble Lord was fairly open to objection. This was neither more nor less than an attempt on the part of the noble Lord to introduce a second Jew Bill during the same Session. That course might not be unconstitutional according to the letter of the law and the custom of Parliament, but he (Mr. Bentinck) maintained that in spirit it was highly unconstitutional. He would put it to the Speaker whether the noble Lord was proceeding in conformity with the rules of the House?
§ MR. ROEBUCK
said, it was an exclusive proposition to put it that the Committee should consist of "the following twenty-five members." No other name could be added to it. He would suggest, that the question should be put in such a form as would entile all gentlemen of the Long Robe, Members of the House, to be of the Committee.
§ LORD JOHN RUSSELL
said, he was in the hands of the House as to the form of putting the Resolution.
§ MR. SPEAKER
said, it appeared to him the correct mode of putting the Resolution was, that the Committee consist of twenty-five Members and of all the gentlemen of the Long Robe Members of that House.
§ MR. HILDYARD
said, that among the twenty-five names proposed, there were many gentlemen of the Long Robe.
§ MR. SPEAKER
said, that twenty-five Members would be nominated by the House, and all other Members of the House who were also gentlemen of the Long Robe would be upon it.
§ MR. CONOLLY
said, in common with many of his hon. Friends around him he was at a loss to understand what really was the question before the House. They had now three questions before them, and he should like to know which of those questions he was to offer his opinion upon.
§ SIR HENRY WILLOUGHBY
asked if the noble Lord the Member for the City of London wished his Committee to consist of more than 100 Members? He believed there were ninety-seven Members of the bar in the House, and if twenty-five others were added the Committee would consist of 122. Now, he did not think such a Committee would do much work in the dog-days.
§ MR. SPEAKER
suggested that, by a slight alteration, the Resolution might be put thus,—That the Committee do consist of twenty-five Members to be nominated by the House, and of all the gentlemen of the Long Robe, Members of this House.
§ MR. COX rose to remind the House, that there were Members of that House belonging to the legal profession who were not members of the Long Robe. There was the hon. Member for Sheffield (Mr. Hadfied), for instance, and himself. Now, he did not suppose that the addition of two or three names to the Committee would make much difference, and he thought that his hon. Friend and himself might be included. For himself, he was particularly desirous of being on the Committee, for 2,000 or 3,000 of his constituents were of the Jewish persuasion, and he was sure they would be better satisfied if one of their representatives was placed upon the Committee, by whom a question so important to them was to be decided. He would move that the words "Legal Profession" be substituted for the words "Long Robe." He understood the noble Lord had no objection to the alteration.
§ MR. WARREN
said: One word on the last proposal by the hon. Member for Finsbury. It seems the noble Lord the Member for the City of London will have us gentlemen of the Long Robe on his Committee, and the House too seems of that opinion: but gentlemen of the Long Robe are in the habit of being paid fees for their opinion; and, in that point of view, it is very agreeable to us to have a brace 955 of Attorneys on the Committee, to look after that little matter.
suggested that the course to be taken with respect to the hon. Member for Finsbury (Mr. Cox) and the hon. Member for Sheffield (Mr. Hadfield) would be for some Member to propose the addition of their names to the Committee when it was proposed to nominate the members of it.
§ SIR FREDERIC THESIGER
apprehended that could hardly be done, for if the Committee were to be selected that night notice must be given in the usual way before any fresh names could be added to it.
§ MR. HENLEY
said, there were already fifteen hon. and learned Gentlemen upon the list of the Committee, and if the Resolution were put in the form last suggested the House would be in the position that they would have to find other ten names to make up the Committee of twenty-five, exclusive of the gentlemen of the Long Robe.
§ MR. SPEAKER
then put the Question, that the Committee consist of twenty-five members nominated by the House, and all the gentlemen of the Long Robe, Members of the House.
§ MR. BENTINCK rose to speak on the Resolution,
§ MR. ROEBUCK rose to order, and said that the Question having been put from the Chair the hon. Gentleman could not speak upon it.
§ MR. BENTINCK rose to order. The Question now before them was a new Question, and he held that he had a right to speak upon it.
§ MR. SPEAKER
The Question is precisely the same as that before the House when the hon. and gallant Member spoke last.
§ MR. BENTINCK
again rose, and submitted that the Question the Speaker had now put was not the Resolution they had before them originally, as proposed by the noble Lord. That being the case, he must insist upon his right to address the House. Nothing could show more completely the error into which the noble Lord had fallen, and in which the House was about to follow him, than what had occurred during the 956 last twenty minutes. The noble Lord had taken the unusual course of moving for the appointment of a Committee and proceeding to nominate the Committee on the same day. One who was so well acquainted with the practice of Parliament as the noble Lord, ought certainly to have adhered to those rules by which it was provided that when a Committee was to be nominated Members should have due notice of the names proposed, and the opportunity of giving notice of such names as they might desire to substitute.
§ SIR HENRY WILLOUGHBY
considered the Resolution as now submitted was an Amendment upon the original Motion—and therefore it was open to Members to speak upon it.
remarked that the proper course would be for some hon. Member to propose the Amendment in the usual way, and then they would have had the opportunity of discussing it.
§ MR. SPEAKER
There was some difficulty in carrying out the proposition in accordance with the orders of the House. I suggested the alteration of a single word in the Resolution to meet that difficulty, This the noble Lord the Member for London adopted, and in the form, as so altered, the noble Lord's Resolution was proposed and put from the Chair.
Select Committee appointed,—
To consider whether the Act 5 & 6 Will. 4, c. 62, is applicable to Oaths appointed by law to be taken by Members of this House at the table, previously to their taking their seats, and in what manner the said Act can be so applied, and to report their observations thereupon to the House.
That the Committee do consist of twenty-five Members nominated by this House, and all Gentlemen of the Long Robe Members of this House.
§ SIR FREDERIC THESIGER
urged that there was a strong reason for not proceeding with the nomination that evening. There was a great desire on the part of many Members on that side of the House that some other names should be substituted for some of those proposed by the noble Lord. Under the circumstances, the noble Lord was aware that all they could do was to strike out those names to which they objected, as by the Orders of the House they could not move to substitute other names without giving previous notice. He trusted the noble Lord would be induced to postpone the nomination to a future day.
§ LORD JOHN RUSSELL
said, he really thought the objection of the hon. and learned Gentleman was attributable to the 957 unfortunate position in which he and those who agreed with him stood in the House. According to party distinctions there was as fair a division in the constitution of the Committee as could possibly be; but it so happened that some of the most distinguished members of the party to which the hon. and learned Gentleman belonged were in favour of the emancipation of the Jews. He could not leave out of the Committee the right hon. Gentleman the Member for Buckinghamshire (Mr. Disraeli), or the right hon. Baronet the Member for Droitwich (Sir.T. Pakington), or the noble Lord the Member for King's Lynn (Lord Stanley). They were persons with whose general politics he did not agree, although upon this subject they were too enlightened to oppose the views of which he was the advocate. He was disposed to go on with the nomination of the Committee, and would move "that Viscount Palmerston be a Member of the Committee."
§ Motion made, and Question proposed,
§ "That Viscount Palmerston be one of the Members of the said Committee."
§ MR. NEWDEGATE
must be allowed to state, that in consequence of what had fallen from the noble Lord the Member for the City of London, it would appear that the presence of some 200 Members of that House was about to be ignored altogether. They might have the misfortune of differing from certain hon. Gentlemen on their own side of the House, still the question before them was one which affected the whole House of Commons; and, therefore, on the part of more than 200 Members he claimed a fair opportunity for discussing the constitution of the Committee, and he would call upon his friends now to associate together in the assertion of their constitutional rights. The constant endeavour had been to represent that this was a struggle between the House of Lords and the House of Commons, and that not a single Member of the House worthy of consideration was opposed to the measure. It was evidently, therefore, a question touching the independence of 200 Members of that House, and unless due opportunity was afforded them of discussing the nomination of the Committee he trusted those 200 Gentlemen would show that they were capable of forcing upon the attention of the very Liberal majority the fact of their existence. He would be very loth to have recourse to anything bearing the slightest appearance of foul play; still he must acknowledge he was not 958 disinclined to have recourse to the forms of the House to defeat a measure of that important nature, when it was attempted to be brought forward at two o'clock in the morning. The noble Lord, however, had endeavoured to vindicate his claim. Well, he (Mr. Newdegate) hoped that those who acted with him would manifest a similar determination, and refuse to be balked of their claim. And although, unfortunately, they might be deprived of the leadership of certain hon. Gentlemen on the front benches, still he was happy to say they were not without leaders even on that bench—Gentlemen who were recognised as the real leaders of the Conservative party of this country. He would move, then, that the nomination of the Committee be postponed, in order to allow him and his friends an opportunity of submitting to the House a notice indicative of their opinions with reference to the constitution of the Committee. He had no desire to oppose this inquiry if adequate grounds could be shown for it; but it should be remembered that the present notice had only made its appearance on Saturday morning, and consequently that was the first opportunity which had been offered of giving notice of objection to the constitution of the Committee. Feeling, then, that no other means were open to him of frustrating what he must designate as this deliberate attempt to interfere with the privileges of Members of that House, he should move that the nomination of the Committee be postponed.
§ LORD JOHN RUSSELL
said, he would not follow the hon. Gentleman opposite into the personal considerations which he had raised. At the same time he could not overlook the fact that it was owing to the kindness of his noble Friend at the head of the Government in postponing the Orders of the Day that he had been allowed to bring forward the question that evening. That would make him very unwilling to stand in the way of the ordinary business of the day, and which, no doubt, his noble Friend was anxious to push forward. If, therefore, his noble Friend should prefer it, he would postpone the nomination of the Committee until to-morrow, subject, however, to the presumption that in case the nomination was postponed, advantage would not be taken of the circumstance to throw fresh obstacles in the way of the Committee being formed.
§ VISCOUNT PALMERSTON
said, he had postponed the Orders of the Day hoping that the Motion of the noble Lord would not altogether defeat the progress of other business to-night. Perhaps the course now proposed—namely, to give notice of the nomination of the Committee for tomorrow—would be the best, and he would promise that it should have precedence.
§ MR. HENLEY
called the attention of the noble Lord to this fact, that putting aside for a moment the names of Gentlemen who were Gentlemen of the Long Robe, there were thirteen Members not of the Long Robe, including the right hon. Baronet the Secretary of State for the Home Department (Sir G. Grey), and the right hon. Gentleman the Member for the University of Cambridge (Mr. Walpole), who, though hon. and learned, were not usually classed with hon. and learned Gentlemen. But of those thirteen only two opposed the views of the noble Lord. He thought thirteen to two was rather too great a disproportion.
§ MR. HENLEY
said, that as the noble Lord had made an error in counting he hoped he would now correct it.
LORD JOHN MANNERS
suggested that the noble Lord should not depart from the usual and salutary practice in the appointment of Committees—that of consulting with the leading members who wore opposed to the course which it was proposed to take as to who should be nominated.
§ SIR FREDERIC THESIGER
did not intend to offer any factious opposition to the noble Lord, but wished it to be distinctly understood that he might propose some alterations in the constitution of the Committee.
§ MR. BENTINCK
, in order to prevent misconception, called the attention of the noble Lord to the fact that no pledge had been given by a large body of Members on the Opposition side of the House as to the course they might take to-morrow. If the noble Lord was determined to press two Jew Bills through the House in one Session he must expect to find a determined opposition given to a proceeding at once so unusual and so unconstitutional.
§ SIR HENRY WILLOUGHBY
thought 960 that the Committee was very unfairly constituted, and hoped the noble Lord would revise the list of Members, which at present stood nineteen to six.
§ Debate adjourned till To-morrow.