Order read, for resuming Adjourned Debate on Amendment proposed to Question [13th March,]
'That the Bill be now read a second time;' and which Amendment was, to leave out the word 'now' and at the end of the Question to add the words 'upon this day six months.'
§ Question again proposed "That the word 'now' stand part of the Question.
§ Debate resumed.
§ MR. DILLWYN
said, he should support this Bill, which he considered much superior to the cognate Bill which stood lower down on the list of Orders for that Day—the Criminal Proceedings Oaths Relief Bill. In many respects the objects of the 954 two Bills were the same, as they both proposed to give relief to persons who, from conscientious motives, refused to be sworn as witnesses; the Bill to which he had referred only proposed to give this relief in. criminal cases, whereas the Bill of the hon. Member for Tavistock (Sir John Trelawny) would apply to all cases, whether criminal or civil. He could not see why the relief should be confined to criminal cases, for if it was right that the oath should be dispensed with where the life or liberty of the accused was at stake, it must be equally where the character or property of individuals was at stake. But the great difference was that the Criminal Proceedings Oath Relief Bill did not give relief to persons who entertained doubts upon certain matters of religion, or were thought by the judge to be infidels. This Bill, however, would give relief to all persons who might desire to avail themselves of it if the Judge thought they gave good reasons, and he trusted they would hear of no objections to it of the kind called religious objections, for the Scripture said, "Swear not at all." No one, he supposed, would contend, or at all events no large section of the House or of the country would contend—that it was right that any person should be excluded from the protection of the law, in case of any outrage against their person or property being committed, merely because (to use the language of the hon. Mover of the Bill) he entertained doubts as to certain speculative propositions—yet that was the logical effect of the present state of the law. The only question then was whether the proposed change would be injurious to the administration of justice. It was alleged that it would have this effect, that oaths would cease to be taken at all, and that affirmations would become universal. He did not think that result would follow. He could not perceive why persons of any peculiar religious views, or even of no religious views whatever, should be excluded from giving their testimony. Why should they not be examined and their evidence taken for what it was worth? The jury would not be obliged to believe such witnesses—nor, indeed, were they now obliged to believe those who were sworn. The belief of the jury greatly depended on the character of the witness, and the consistency of his statement in itself, and with other testimony, and circumstantial evience. Many Gentlemen, even in that 955 House, and on both sides of the House, whatever might be their belief now, had probably in the course of their lives, and especially in youth, known what it was to have disbelief, and would at such times have been very unwilling to be subjected to a cross-examination on that point. Belief was not a matter of choice. Whatever a man believed or doubted, he could not help it. He (Mr. Dillwyn) would be very glad if he could believe that another man could give him absolution; and that he could buy that absolution for money; but he Gould not believe it, and he had no choice in the matter. The matters which a man was expected to believe were not matters of recorded fact, but matters of future expectation—such, for instance, as the belief in a future state of rewards and punishments. But if any man asserted, not even that he disbelieved, but that he had not a dogmatic belief on that point, the Judge would regard him as an infidel, and refuse to let him be sworn. If a man was willing, from his regard for truth, to submit to the obloquy of avowing his doubts and being rejected as a witness, he thought that such a man was likely to give truthful evidence; and so far from injuring the administration of justice it would advance it to admit the evidence of such persons, and to reduce the number of unnecessary oaths. It was said that the Government ought to have taken up the subject. If so, it was for them to explain why they had not done so. It was not his business to be the apologist of the Government. Still, he could very well understand that, seeing the disposition of the Opposition to use every means of defeating the Government, not always with reference to the principle of the question before the House, and not always with strict fairness, it might be unadvisable for Government to attempt to deal with so delicate and difficult a question. What he sought to establish was not new. It was the existing law of India, which was now a portion of Her Majesty's dominions. The object of the oath was riot 'any privilege given to the witness—it was a duty which he owed to society. All we ask is that his evidence should not be refused on account of his religious, or if you liked, his non-religious opinions. Suppose that in a case like the Road murder, which he chose as the most startling case that had lately occurred, it should be known that a man professing strong speculative doubts, as they had been called, was to be able to give, evidence which would throw light on 956 the matter—if such a witness were asked by counsel—perhaps counsel for the guilty person—whether he believed in a future state of existence, and if he were to reply that he trusted in a future state, and rested his hopes on it, but could not say that he had a dogmatic belief in it, that person would be declared by the Judge or presiding magistrate to be disqualified from taking an oath, and, therefore, of giving evidence; and by the law as now interpreted this great crime would remain undiscovered and the ends of justice be frustrated. In India the law was that persons who, by their age, or by defect of religious belief, were disqualified from taking an oath might be examined on affirmation. That law was expressly intended to apply, not to persons who had doubts the result of long and serious reflection, but to those who, from absolute ignorance and barbarism, were utterly without religion. He trusted that the relief accorded to the whole population of India would not be refused to intelligent Englishmen. If the present Bill became law it would be for the jury to consider whether a witness's belief affected his credibility, he would be subject to the usual cross-examination as to the facts deposed to, and he maintained that such an alteration as was proposed, so far from impeding or interfering with the administration of justice would materially promote it.
§ LORD ROBERT MONTAGU
said, the lion. Member (Mr. Dillwyn) had expressed his hope that no opposition would be made to this Bill on religious grounds. But, those were the very grounds on which the opposition to it would be made; because the grounds on which the author of the measure founded it were the very opposite of religion's. If the hon. Baronet (Sir John Trelawny) had merely wished to enable courts of justice to take evidence which they could not now receive he might have proposed that witnesses should be sworn and examined, and that questions as to their belief in the existence of God and in future rewards and punishments should not be put to them till after they had given their testimony. If that were done the counsel on the other side might then ask the witness such questions with a view to shake the value of his evidence; and the Judge and the jury could then take it at what it was worth. But what the hon. Baronet proposed was that those who thought that no Nemesis attended falsehood and perjury, and who looked upon 957 an oath as an empty and unmeaning form, might dispense with that ceremony, and that their evidence should have the same weight as the testimony of those who believed that a Divine sanction attended the oath they had taken. They were to be released not because they had any conscientious objection to an oath, but because it did not affect their conscience at all. Those who had a sincere religious belief, when put upon their oath, felt an earnest anxiety lest by any incautious word or expression they should unintentionally convey a wrong impression, or give a false colouring to the transaction which they are describing; if, therefore, those who regarded an oath as an idle form were to be exempted, surely those who viewed it as a solemn act and a cause for anxiety ought á fortiori to be relieved. So that if they passed this Bill they would next year have another Bill brought in to abolish oaths altogether. The House ought then to consider to what point the hon. Baronet's theory, that the State had nothing to do with religion, had brought them? It would do away with the testimony to the actual presence of an all-seeing God in our courts of justice. The hon. Member for Swansea (Mr. Dillwyn) also had repeatedly said that a belief in God and in future rewards and punishments was a belief in "speculative propositions." It was on that notion that this measure appeared to be based. The Bill professed to meet the objection of certain persons, to taking an oath; but the fact was that those were the very persons who did not scruple to take an oath. The objection came from the other side, and was directed against the reception of their testimony, which the courts could not admit because of the witnesses' want of religious belief. The hon. Baronet had adduced, as an argument from analogy, the fact that Quakers were allowed to make affirmations in lieu of oaths; but the reason why Quakers were allowed to do so was because they had a very definite religious belief, and strong conscientious objections against taking an. oath. This was, therefore, a guarantee for their truthfulness, and their case could not at all be compared with that of persons who had no belief whatever, and who had no conscientious objection to an oath, which they looked upon as an empty ceremony. That was not an analogy; it was a paralogy. The practice in India had also been adduced as any analogy. There, no doubt, the Natives were permitted to affirm in- 958 stead of being sworn; but the affirmation of a black man was taken at what it was worth, and would not be weighed against a white man's oath. The Act applicable to the colonies assigned, as a reason for allowing the Natives to affirm, that there "existed barbarous and uncivilized persons who had little or no belief or knowledge of God." This, therefore, is also a false analogy. It was one thing to allow these persons, who clung most tenaciously to the scraps and shreds of belief handed down to them by their forefathers, to make affirmations in courts of justice, and quite another to allow those persons who had been taught the Christian religion and knew all its doctrines, and had learnt from childhood about God, but who had deliberately discarded and rejected them and professed to disbelieve in God, to do the same. Slaves and helots in ancient times were not permitted to take an oath; but why? Because it was thought that the influence of their masters might induce them to say what was not true, and that they might thus become perjured. If we look at the great speeches which had come down to us in Greek and Latin we found this argument constantly recurring, that "such and such testimony had no weight, and must not be received, because, was it the evidence of one who had not been sworn." That was what Pagans of old did: yet we were asked to admit testimony that was not given upon oath. But what is the practice in this country? It was well known that persons would go before magistrates to take out summonses and make strong asseverations which, when they afterwards came to be sworn, they shrunk from repeating. That showed the guarantee afforded by an oath for the truth of evidence, and if this security for truth be done away, if this warning against perjury and falsification he forbidden, then not a ghost of a fear of lying or hatred of untruth would remain to haunt the land. The hon. Member for Tavistock (Sir John Trelawny) appeared not exactly to know the nature of an oath. [Laughter.] Hon. Gentlemen laughed, probably because they took the same view as the hon. Baronet, who stated that an oath was a calling down, of vengeanee from God upon yourself if you told an untruth. [Sir JOHN TRELAWNY: I quoted the law.] But the hon. Baronet expressed an opinion [Cheers] and the cheers from some hon. Members opposite show that they share that opinion. But in the oath taken by witnesses 959 there was not a word about calling down vengeance. [Sir JOHN TRELAWNY: You alluded yourself to a Nemesis.] Yes, and he believed that a man could not do a single evil act without being followed by a Nemesis. It is not necessary to call down vengeance, for there is a moral Government of the world, and God takes very good care of His own world, and will never let evil succeed or go unpunished, whether you "call upon Him" or not. What you have to call upon Him for, is help and assistance. In taking the oath the witness promised to tell the truth, the whole truth, and nothing but the truth, and asked the Divine help to enable him to do so. ["No!"] Were not the words used for a thousand years, at the end of the oath, "So help me God?" It was said that honour and honesty would prevent men from making false statements. What is honour? what is honesty without belief in God? I challenge any hon. Member to define these terms. He cannot do so without assuming the presence of a God who orders all the events and arranges all the details of circumstances in the world. Honour and honesty, apart from religion, were nothing but pride and self-interest. If a man did not believe in a God he could refuse to tell a lie only because he was too proud to do so; and he could be honest only because he thought honesty the best policy. These are the mean motives which must influence those who do not believe in God. If he himself did not believe in a God who ruled the world and arranged the course of all its events, he should plot and intrigue, and not allow any compunctious visitings of conscience to stay his hand or divert him from his purpose; [Laughter] he repeated it because he was sure it was true; he would allow no qualms of conscience, no cowardly misgivings to interfere with his action; because without that belief it was mere maudlin, simpering sentimentality, to say anything but "Evil, be thou my good." A consistent Atheist must be a bad citizen and capable of every Machiavelian scheme and falsehood.
§ MR. BAINES
said, that in dealing with this matter there were two evils to be avoided—namely, first, the calling upon acknowledged unbelievers to make an open declaration of unbelief in the existence of God and in a future state, which would be highly offensive to religious persons; and secondly, the holding out of what might seem to be a premium to the pro- 960 fession of infidelity for the sake of giving false evidence. The Bill appeared to be very judiciously drawn, so as to obviate both of those evils. It provided that the witness should declare that the taking of an oath was according to his religious belief unlawful. [Mr. G. HARDY: The hon. Member is in error. He is speaking of a different Bill from that now under discussion.] He begged pardon for his mistake, but he had obtained a copy of the wrong Bill. (Mr. Locke's.) He would not further intrude upon the attention of the House, except to say that he thought it would be a profanation of the sanctity of an oath to allow unbelievers to be sworn and examined first, and then to be questioned as to their religious opinions. There were cases in which, owing to the present state of the law, the evidence essential to the conviction of a murderer had been rejected. To dispense with the oath in exceptional circumstances contemplated by that measure was far from denying the value of religious sanctions.
SIR GEORGE LEWIS
I am aware that, having spoken on this Question before the debate was adjourned, some weeks ago, any remarks which I may now make must be made with the indulgence of the House. I am, however, now desirous of stating in a few words the reasons why I feel compelled to vote against the second reading of this Bill. We have to start from this point—that the general law of this country lays it down that no witness shall be examined in any civil or criminal proceeding in a court of justice without the previous administration of an oath to him. The definition of an oath, on which the noble Lord opposite (Lord Robert Montagu) made some remarks, is very simple. It seems to be a declaration of a fact in which there is a direct appeal to the Supreme Being. An affirmation may be equally founded on a religious feeling, but there is no direct appeal to the Deity; and that is the distinction between it and an oath. I do not concur in the construction which the noble Lord put upon the adjuration at the end of the oath. There are certain classes of religionists who object—but who object on religious grounds, mind—to the taking of an oath; and the law coming to their aid has said that, in the case of members of the Society of Friends, of Moravians, and some other limited religious denominations, they may, on declaring that they belong to those per- 961 suasions, be relieved from the obligation of being sworn, and may make an affirmation. That is a distinct statutory exception made in favour of these defined classes of persons, and it is not founded on any notion that the sanction of an oath is inoperative as regards those persons, but upon their religious objection to the form of adjuration. Our law also provides that pagans, heathens—a Hindoo or a Chinese, for example—may be sworn in an English court of justice according to the form most binding on his conscience, such form being assumed to have a religious sanction. It is, therefore, not based on any narrow or intolerant rule of exclusion, but it always supposes that there is to be a religious sanction for the declaration. When a child is called as a witness the question arises whether he is not of too tender an age to be examined, and he is asked whether he believes in a God, and knows what is the meaning of a future state of rewards and punishments. If he answers in the affirmative he is allowed to be examined. That is an exact exemplification of the doctrine of our law, by which an oath is required in all cases. Now, this Bill is intended to relieve an entirely different class of persons. It is designed to meet the case of a defect of religious belief, where the obligation of an oath is not held by the individual who appears as a witness to be binding on his conscience, but he has no conscientious objection to take an oath, regarding it as a mere idle form of words. ["No!" and "Hear, hear!"] I assume that he is perfectly willing to take the oath. ["No!"] Well, but consider the facts. He does not make the objection; the objection is made to him, and he does not express a desire to make an affirmation. He presents himself as a witness. The counsel on the other side says, "I object to such a person being examined without questioning him as to his religious belief." Before the oath is tendered to him he is asked those questions which will bring out the fact whether he has that religious belief which the law holds to be necessary as the sanction for it. If he answers in the negative the Judge does not permit him to be sworn. In the case which the hon. Baronet (Sir John Trelawny) quoted as the foundation for his Bill, the objection was made by the attorney on the opposite side to the witness, and the witness having answered in the negative, she was told to stand down, and could not be examined. This measure 962 seems to me to proceed in an entirely wrong direction. It assumes that the witness refuses or is unwilling, from alleged conscientious motives, to be sworn. That is not the fact. I am not aware of any class of witnesses ever coming forward and saying, "We are of no religious belief, and we object to be sworn." Being based on an entirely erroneous view of the circumstances for which a remedy is required, the words of this Bill are so general that it might include persons who have a religious belief, but who, nevertheless, think that an affirmation is less binding than an oath. That class of witnesses whom we hear of as kissing their thumbs, being so ignorant as to suppose that that evasion will prevent the effects of their being duly sworn, might take advantage of this enactment, and say they desire to make an affirmation in lieu of an oath. Well, what is the duty which this Bill imposes on a Judge? He is to be satisfied of the sincerity of the witness's desire to make an affirmation. What possible evidence can be furnished to a Judge to satisfy him on such a point? He can only take the witness's declaration itself as the proof of his sincerity in making it. Then we come to the affirmation, namely, "I, A. B., do solemnly, sincerely, and truly affirm and declare that an oath would not, in my judgment, oblige me more closely to speak what is true than my deliberate undertaking so to do." If this Bill were passed I think an objection might still be taken to allowing a witness with no religious belief to affirm on the ground that an oath would not oblige him at all. It would be open to counsel to contend that notwithstanding what was intended by the framers of the Bill, it did not meet the case of a person who was deficient in religious belief, and that he could not take this affirmation. I greatly doubt whether this measure would not exclude the very class whom it is meant to relieve, and admit the very class whom it is not meant to relieve, and, therefore, I confess that I am unable to give it my support.
§ MR. ROEBUCK
said, that was a very difficult and important question, but many feelings and ideas had been imported into it which were wholly foreign to the point at issue. Eschewing fierce language, let them calmly consider the real business before them." They had to ask themselves which of the sanctions now employed they could dispense with, and yet not invalidate 963 the testimony of a witness. In most cases the sanction, of the law and of public opinion was united with the sanction of religion. "Where those sanctions acted separately, if he found that without the aid of public opinion the oath had no influence at all, then he said the sanction of religion alone did not give additional security for the veracity of the witness. In past times every member of a University took an oath that he would conduct himself according to certain laws in that University; and the next minute he broke the oath; yet he did not consider himself a perjurer because the opinion of the world did not consider it a perjury. That was a case in which public opinion did not go with the religious sanction, and in which the religious sanction was wholly useless. The noble Lord (Lord Robert Montagu) was clearly wrong about the meaning of the oath. It meant that the Almighty would visit with His punishment the man who swore falsely. The right hon. Gentleman was quite right as to the question put by the opposing counsel to ascertain the witness's religious faith. If the man who was asked whether he believed in a future state of rewards and punishments had a great regard for truth, and, in spite of public opinion, replied "No, I don't believe that," he was immediately set aside. But if he was a person who, following his own views of what was for his own benefit, was so careless of the truth as to tell a lie and say, "I do believe," then he was sworn. Which of these two men was the most likely to speak the truth? Was the oath any guarantee for the veracity of the witness? He wanted that argument to be answered—not himself to be abused, though to that he was very much accustomed. Tour rule of law excludes a trustworthy man and accepts one who is not trustworthy. They might surround the witness with various sanctions, but the only one that had any real effect was that of law and public opinion. That sanction they obtained equally well by an affirmation. He appealed to the right hon. Gentleman the Home Secretary, who was not a man obfuscated by bigotry, to direct his mind to the question of what was to be done to insure the chances—for they were only chances, that they should receive truth from a witness in a court. The noble Lord talked of a man divesting himself of his religious belief as he would take off his coat. No man divested himself of his religious belief by an act of his own will, 964 but he was divested of it by circumstances. All he could do was to obtain all the evidence he possibly could, and then it depended upon the Almighty whether he must believe or not. To say that the rule of law did no harm was to say what all experience contradicted. If a man was known to be an unbeliever anybody might knock him down or rob him, and then tell his counsel to ask him whether he believed in a state of future rewards and punishments. The man would answer "No;" and thus, from his very determination to tell the truth, having admitted that he did not believe a religious sanction attached to an oath, his evidence could not be taken, the rogue or the thief would escape with impunity. This was not an imaginary case, but one of frequent occurrence. His hon. Friend was not open to the imputation that he was an enemy of religion. The change which he proposed was likely to do good by enabling persons to give evidence who could not now do so, and it ought, therefore, to receive the sanction of the House.
§ MR. WALTER
said, that this Bill proposed to relieve persons who acted from alleged conscientious motives; but then the question arose, what was the true definition of conscience? How could a man be said to act from conscientious motives—that was to have a conscience—who did not believe in the distinction between right and wrong? And how could a man be said to believe in the distinction between right and wrong who did not believe in the moral government of the world? and what was the use of his believing in a moral Governor of the world unless he believed that such Governor would reward or punish men in a future state? Therefore he objected to the Bill, on the ground that it would destroy the principle of conduct which was the main distinction between man and the beasts. If the evidence of a man who did not believe in the existence of an Almighty Being, who would reward and punish him according to his deserts, was put upon the same level as that of a man who possessed such a belief, a blow would be struck at man's natural instincts. If such a man were knocked down and robbed, and then went single handed and without corroborative testimony to give evidence as to the person who knocked him down, it might be a hard case that his evidence would not be received; but the same hardship would occur in the case of a lunatic. You might 965 knock down a lunatic, and his evidence could not be taken. Now his opinion was that they ought to treat the unfortunate—he did not wish to use harsh epithets—but he would say the wretched persons whose minds were so constituted that they were unable to see what everyone else saw, and to believe in the existence of an Almighty Power, as not in their right minds; and he thought that it would be fatal to the interests of society to take a different view of such persons. He entirely opposed the Bill, on the ground that it was intended to relieve a class of persons who were in a state of mind which was very little higher than that of lunatics.
§ MR. DENMAN
said, that it had been decided over and over again that lunatics could give evidence if they were of sufficient intelligence for the matter in hand. He thought those who opposed the second reading of the Bill had forgotten that the great principle in question was, whether it was necessary to exclude a great deal of truth, which, by means of an alteration of the law, might be obtained. As the law now stood, a criminal might escape because the witness against him was an infidel. In the case of a soldier of the German Legion, who was tried at Dover, in the winter of 1856, that objection was raised to one of the witnesses, and, had there not been other testimony, the prisoner would have escaped. The objections which had been taken to this Bill rested only upon sentimental grounds. The real question was, was it necessary to retain the existing sanction, as it was called, of an oath? It was sometimes urged that a witness was affected by a solemn appeal from counsel, "Will you swear that?" or, "Upon your oath is that so?" where he was meditating an untruth. But he would put it to any of his hon. and learned Friends, whether they ever made that appeal to a witness, with any real belief that they were relying on the religious sanction of the oath? He believed that if that appeal had any efficacy at all it was because witness was frightened into telling the truth, by being reminded that he would be liable to be prosecuted for perjury if he told a falsehood. The oath was not needed in the case of a conscientious man; and in that of a shuffler or a liar it was of no use, because they would obtain all the benefits of the sanction of an oath by attaching the penalties of perjury to falsehoods told after an affirmation.
MR. MONTAGUE SMITH
said, that 966 the hon. Member for Berkshire was quite correct in his statement that lunatics could not be examined; and, indeed, the hon. and learned Member for Tiverton answered his own objection when he said that a lunatic could only be examined when he had returned to his senses.
§ MR. DENMAN
had said, that it had been decided that the mere fact of a man's being a lunatic was no objection to his being a witness, if the Judge was satisfied that he understood the particular matter about which he was to be examined.
MR. MONTAGUE SMITH
If he understood the matter no doubt he would be competent to give evidence as to it, and so, if he understood any matter of business, he would, in the intervals of lunacy, be competent to transact it. His objection to this Bill was, that it would induce persons who felt the obligation of an oath to shrink from the responsibility of taking it. Experience in the Courts had taught him that many persons who, from motives of interest or partizanship would tell a simple untruth, would not dare from religious or superstitious feelings to violate the oath they had invoked God to witness. He could not agree with the hon. and learned Member for Tiverton, that when counsel attacked witnesses with the words, "Upon your oath, will you say so and so"—a practice which, he was glad to say, was becoming daily more unfrequent—the religious sanction of the oath was not appealed to.
MR. J. B. SMITH
said, he had presented a petition from a person who refused to take an oath, not because he disbelieved in God, but because he thought it was contrary to the Scriptures. That gentleman's house was frequently robbed by wicked men, who took advantage of his scruples and were set at liberty. He had been allowed to sit in the town council without taking an oath, but party squabbles having arisen, a brother member insisted that as he had not taken the oath he had no right to his seat.
§ SIR WILLIAM HEATHCOTE
said, that the arguments which had been used by the hon. and learned Members for Sheffield and Tiverton applied not so much to this Bill as to the more general and more important question which the House was not then called upon to consider—whether it was right that evidence should continue to be given under the religious sanction of an oath, or whether it would be better to trust to temporal penalties and the force 967 of public opinion. That was a question which might admit of discussion, but hi was convinced that, if we intended to adhere to the system of depending on oath as a mode of securing the truth, the adoption of this measure would only multiply difficulties and inconsistencies, and if they were to admit the principle of the present measure they must, to avoid inconsistency go a step further and abolish oaths in courts of justice altogether. The hon. and learned Gentleman the Member for Sheffield (Mr. Roebuck) had maintained that oaths had little efficacy, and were, if ineffectual, a mockery of religion, and illustrated this position by a reference to the oath formerly imposed on members of the Universities, by which, as he understood it, they bound themselves to observe all the statutes indiscriminately, although many were practically obsolete, and the observation of them never enforced or even expected. But the hon. Member had forgotten a very important portion of that oath. The duty of observing statutes was not imposed absolutely but under an alternative, and the person taking the oath swore that he would either observe the statutes or submit to such penalties as should be imposed for their infraction. This illustration, therefore, which was rather one ad invidium, did not apply. At present the sanction of an oath was only dispensed with where a strong religious objection was alleged, the existence of the religions feeling being itself a guarantee for the truth of the evidence as given. This Bill, however, proposed to omit the oath in cases where there could be no such guarantee; because the very ground upon which it was to be omitted was, that the witness had no religious belief. It was true that many men would give their evidence as truly unsworn as if they had taken an oath; but it was equally true that the administration of an oath made most people more careful and accurate in their statements than they would be without it; and farther, that there were many who even believed that the obligation to tell truth in their evidence depended solely on the complete and formal administration of an oath, to escape from which they resorted to strange and childish expedients to avoid kissing the book tendered to them. But under this Bill such men would only have to allege, not a conscientious scruple, but a mere disinclination to take an oath, and they would then, according to their own code of morality, be at liberty 968 to tell a lie. The House had not then to consider the expediency of abolishing oaths; but he might observe that Parliament had so recently as 1858 adopted a course which showed that it did not think it would be advisable to pass a measure for the accomplishment of that object. It had been thought within the last few years that the Committees of the Lords secured more accuracy from their witnesses than the Committees of the House of Commons, because the former were examined upon oath; while no oath was administered to the latter; and the result was that an Act was passed for the express purpose of enabling the Committees of that House also to take evidence under the most solemn of all sanctions. It would be a reversal of that policy to adopt this measure by which, although oaths would not be abolished in all cases, they would be abolished in those cases in which the safeguard which they afford is most required.
§ MR. LOCKE
after alluding to the various Acts that had been passed from time to time for dispensing with oaths, said that the real question was how the ends of justice could be best furthered. Hon. Members opposite had confined their remarks to the results obtained by the administration of oaths, and had made no reference to the effect of affirmations. What was the state of the law previous to the passing of the Common Law Procedure Act in 1854? "When a witness refused to be sworn the Judge put the question: "Are you a Quaker, Moravian, or Separatist?" "I am neither," was the reply, "but I have conscientious scruples against the taking of an oath." The Judge said, "I can't relieve you, and I must commit you for contempt of Court." Great hardship and inconvenience arose from this state of the law, and it still prevailed in the criminal courts. By the Common Law Procedure Act, if the Judge was satisfied that the witness entertained conscientious scruples, he could allow him to make an affirmation instead of taking an oath. A similar course was proposed in the present measure in regard to the criminal courts. This Bill went one step further than the Bill which he himself had introduced relating to criminal cases, and which stood amongst the orders of the day for committal. The present Bill provided that in civil cases a witness might be allowed to refuse from "conscientious motives" to be sworn, and to make an affirmation. There 969 was this difference between the Common Law Procedure Act, the Bill he had introduced, and the present Bill, the form of the affirmation in the Common Law Procedure Act which he had transferred to his Bill contained these important words, "according to my religious belief," so that a witness who entertained no religious belief whatever, would not be relieved, inasmuch as he must make the affirmation in the form prescribed before he could be allowed to give his testimony. The great object of the alterations that had been from time to time made in the law were made not solely for the purpose of relieving witnesses as for the purpose of furthering the ends of justice by the ascertainment of the truth. For instance, formerly a convicted felon was incapable of giving evidence; but now not an assize passed without a convicted prisoner being brought from gaol and placed in the witness box to give evidence. Formerly the law was that interested parties should not be permitted to give evidence, because it was supposed they must necessarily perjure themselves: now, however, not only interested parties but the plaintiff and defendant themselves were competent witnesses. Nevertheless, by the law as it existed at present, persons who had conscientious objections to taking an oath were disqualified from doing that which was permitted to convicted felons and parties to the cause. The real principle was, and it was that which this Bill sought to establish that the testimony of a witness, whether he swore or affirmed, should be admitted and weighed according to its value as it bore upon the circumstances surrounding the case. Why did not the opponents of the Bill propose to go back to the old law on the subject? If the present Bill did not receive the sanction of the House he should persevere with his Bill, which was not open to the objections which applied to this, but provided that a person desirous of making an affirmation must entertain some religious belief.
§ MR. M'MAHON
said, he admitted that there was a good deal of force in the arguments of the hon. and learned Gentleman who had just sat down, derived from the analogy of cases in which an alteration of the law had been made. But they had never yet said that a person who expressed a disbelief in a future state of rewards and punishments should be allowed to give evidence without the necessity of taking an oath. No necessity had been proposed 970 for the change. The preamble of the Bill did not declare, and no hon. Member had said, that there had been any failure of justice in consequence of the law as it now stood in this respect. The only case mentioned by the hon. Baronet who brought in the Bill was that of Maden v. Catanach, and in it there was no pretence for saying there was any failure of justice. There the witness was not allowed to do justice unless she would swear under the sanction of an oath. She declared she did not believe herself responsible to any Supreme Being for not speaking the truth. Now, he asked, would there be safety for society if an individual like this were allowed to evade the responsibility of an oath? No civilised State allowed any one to be deprived of life, liberty, or property, unless upon evidence given upon oath. There was no real cause for this Bill. He hoped, therefore, the House would reject it, and would not be misled by any supposed analogy of the Common Law Procedure Act. In that Act it was the duty of the Judge to see that the person had really those sincere objections; but in this Bill there was no such thing—all that was necessary was that the Judge should be satisfied of the "desire" not to take an oath. And further, the person was merely to declare negatively that he did not believe that the oath would bind him more closely; but surely that was not sufficient. As for Quakers and Moravians, by the whole tenor of their lives they showed that they disapproved of oaths. He hoped, therefore, without some real cause, the House would not depart from the established practice of the country.
§ MR. MELLOR
said, that as a sort of challenge had been thrown out to hon. Members to mention a case in which a failure of justice had taken place in consequence of the existing law he would mention one. He remembered that at the the assizes of Leicester there was a prosecution for theft. A pawnbroker's assistant, who was a material witness, refused to be sworn, and Baron Alderson committed him to prison. It appeared that this man was on his probation, preparatory to his admission into his Society of Friends. He had not been sufficiently long on probation to be admitted, but he had imbibed their principles. His committal took place on Saturday, and on the Sunday following several gentlemen, members of the Society of Friends, came to him and stated the 971 facts. He made them known to Baron Alderson, who ordered the man to be brought before him on the Monday, in order that he might be discharged; but in the meantime a failure of justice had taken place, the prisoner had been acquitted, and a man had been kept in gaol from Saturday to Monday in consequence of his conscientious scruples. He (Mr. Mellor) without committing himself to the opinion that oaths ought to be abolished, thought that persons who had a religious belief that the taking of oaths was unlawful ought to be allowed to give their evidence on making affirmation, and the jury should be left to say, judging from the circumstances and from the manner in which the witness gave his evidence, whether his testimony was worthy of belief. He should support the second reading, as he believed that the interests of public justice would be better served by the passing of the Bill.
THE SOLICITOR GENERAL
said, he thought it his duty to give his very decided opposition to the second reading of this Bill. There were two matters quite distinct, but both deserving of their serious consideration—one the rule that should determine the competency of witnesses to give evidence in courts of justice in any form whatever; the other, the form in which—their competency being admitted—they should be allowed to give evidence. The alterations in the common law which had hitherto been sanctioned by Parliament applied to the second and subordinate question—namely, the manner in which witnesses should be allowed to testify. Now he would, in the first place, observe that the Bill of the hon. Baronet differed, essentially and in principle, from any of the measures which had hitherto become part of the law, in reference to the form in which witnesses should be permitted to give their testimony. The first relaxation of the requirement of an oath on giving evidence was in favour of the Quakers. In the reign of William III. the necessity of an oath was dispensed with in favour of the Quakers, but in civil cases only; and it was not till the reign of George IV., in the year 1829, that members of that most respectable body were allowed to give evidence by affirmation in criminal cases. By an Act of 1833 the Separatists were admitted to the privilege which they now enjoy, of giving evidence on affirmation both in criminal and civil cases. In both these 972 cases Parliament dealt with the manner of taking the oath, and not with the competency of the persons. The same was the case in the Common Law Procedure Act passed in 1844. In all these instances, Parliament dealt, not with the great fundamental question of competence, but with the manner of taking evidence, and in each of them they proceeded on the known religious belief, on the part of those to whom relaxation was to be applied, and their known religious scruples to taking an oath. Take the case of the Quakers. They were well known as a body believing in the existence of God and in a future state of rewards and punishments; and, therefore, when Parliament dealt with them, Parliament knew that they were a religious body. The same was the case with the Separatists; and when they came to the Common Law Procedure Act, it was obvious that the assumption was that the persons in whose favour it would operate would be persons who were influenced by religious conscience. This Bill differed fundamentally from these previous measures. The Acts themselves were based on the supposition, or the positive knowledge, of religious belief and of a religious conscience; but what was the case with the present Bill? Without making the design very apparent, the real purpose of the Bill was to get rid of an ancient, a still prevailing, and in his opinion most reasonable objection to the competency as a witness of a person who had no belief in the existence of God, or in a future state of rewards and punishments. The House were not to consider the ease or convenience of the witness; they were to consider the interests of society; and he believed those interests required that persons without religious conscience and belief should not be accepted as witnesses in courts of justice, whatever the form of affirmation which they might propose to adopt. If the Bill became law any person who "shall express a desire to make an affirmation instead of an oath," was to be permitted to do so on the Judge being satisfied of his "sincerity." Of his sincerity as to what? Not of his conscientious objection, but of his "desire to make an affirmation instead of an oath." This provision would admit two classes of witnesses—first, those who had no religious belief at all; and next, those who, while having a religious belief, might not consider an affirmation as binding on their conscience as an oath. The operation of 973 the principle now proposed to be established would logically extend much beyond the particular object to which the present Bill was confined; for if the religious sanction of an oath ought to be abolished in the case of witnesses in courts of justice why should it not also be done away with in respect to jurors and to the thousands of other persons employed in the discharge of public duties? It appeared to him that this measure, proposing a most important and fundamental change, was in principle most objectionable.
§ SIR JOHN SHELLEY
said, that the hon. and learned Gentleman, the Solicitor General, had entered the House at the eleventh hour, and had only repeated what had been said over and over again in the course of the present debate. He intended to vote for the second reading of the Bill; but he hoped that it would not go forth that any one who supported the measure must be in favour of no religion. There had been instances showing that a conscientious objection to oaths was not inconsistent with a religious feeling; but, after all, the public interest was the matter to be considered, and that suffered in consequence of many persons being prevented from giving evidence by conscientious scruples on the subject of oaths.
§ SIR JOHN TRELAWNY
, in reply, referred to cases in which witnesses had refused to take the oath in consequence of conscientious objections, and contended that those cases established the existence of a practical evil requiring a remedy. Moreover, it was to be feared, if the existing law were not altered, that persons would affect conscientious scruples to taking an oath when they were not disposed to give the evidence which was required of them.
§ Question put,
§ The House divided:—Ayes 66; Noes 136: Majority 70.
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Bill put for six months.